Rispo Realty and Development Co.

I) (SIl()NS I NAI toNAlI AI/PR Rl I)INS OAR!I) Risipo Rcal andi Dcvelopmcnt (lompan and/ior Rispo Building Company and Anllho) (aterinacci. ('ase (CA 10048 iarch 19, 197) I[:,'ISION ANI) )RI)I:R By' /Nini RSN l PNI [), 4i RI'Ii, AND) I RI ISI)AI I On Novenmber 9. 197. Administrative Iasw .1 tdgce Irving M. lierman issued the attacel d I)ccic!sion in this proceeding. Iheractcr, R espoindent filed excep- tions and a upporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as aiiiended, the Na- tional Labor Relations Board has Idelegated its ail- thority in this proceeding to a three-niember tpanl. The Board has considered the record and the L- tached [)Decision in light o te exceptions ad briet and has decided to alirm te rlings tindings.t nd conclusions of the Adminisr:atixe lxass Judge a to adopt his recommended ()Order. () Rl)il Pursuant to Section 10(c) of the Ntional Iabor Relations Act, s amenrded, the Nationial I hor Rcla- tions Board adopts as its ()rder tlhe recommenrded ()r- der of the Administrative l.aw .lJudge and heicby or- ders that Respondent, Rispo Realtv and Development ( orpan ailid/or Rispo Buildil (otI- pany Pmi, ()Oht, its oieers, agents, succssors. and assigns, shall take the actitn set orth in tIle said reconmmended rd(tr', xcept tha te aIllached iioice is substituted fknr that of the ,Adiniisiti\ C I. Ii Judge. ResponidenI has ex, pted f . . c .. t inn c .clilitll x \ iillll!' d .iite I .tihe \d- iiiniratixe It,a, Judge It L th n [iod's ',ii .]hi d poc> ItOl I 'iX ll ait adilirstrat iv n a Sk dg's ceSOg t i nntqs I altI ne-pe'i rI) ClcdlibitrI it11'II ' Ihe cl hir pernl crl ancr c it t ti' Cl lin t C %i dl ltC CiTiMi e tIe, ill CI III i t tilet resolutiT ; Me niti lvln t .NtninIrrd /t'i, .l / / l t t<. lir - I NL } 5iO 44 i1950). enid 188 t'.2d 3i2 3li ('i, it) ) We tunia , .aiehilt e nIlllr il the vctioi nid imid Io bnsis l yr t'ln icrstn lsincing zResp nmdent's uqtIuetl itnr iorl witlnnlllCll I I icl'h ictc i A t II'inc r il and Respn mrdent' exceptitun ad in l d dci t l c l linti' -iC iill posiiwmn of the parties APITFNI)I\ Ni)IIi 'I'i ltt mi it(1 i POSItI) IBY ORDIR ¢11 I1lt1 NAII(NA Ixto, i/r RFI A IINS BI()AID An Agency of the linited States (overnmcnt 'I: xx tti NI threaten to work n11onlni;,on. WI: vlt I Nt warlln aw, eMplo] eis not o coll- plain to their union about volking_. conditions. TI \ I ,oI discharge or otherwise discrimi- niate Li, 1 _\'sl an> eruploveic for seeking te assist- aniicc i' 1 tninon hr otherwiC engaging i union llr oer ;tl\it\ pltected 1\ Section 7 o' the National I.:tor Rclltions A\t, as amended. IVI \\ I I Not in i othcr itanner interfere itil. i tstr;in. o (tWIe iiC Il\ enlploCee i the ex- CICIsC o) te Fihis tiLltrantccd ulCdr tlhe Na- tional Labo Relattons Act. Wii \ktlI t lcr Athon; (aterinacci ull rein- stttenient t his former j ob or, it' that job no longer exists, to t sulstantiall, equivalent ob. \\ithout prejudicc to hs seniority or ther rights and [' ivilegcs preCiton eno ed. lanlld make himi hlnltIc for an> lss of I;'_ sulet red bx reason of his dis'a ruc. RitnIN, Ri Ia tl' AN) )t.I xli.I'Mi NI ( )M- in\NY AsNI iO Rt'si() B 'IA)lNi ('/MIPANY I)tXISIN(i S,II' () I iit i l i (',sl IR\. INt tM. II I M ;\clrt\itit'.tr1ittsI'e las Judge: This .,sc ',is heard t hcf'c imt A:pril 28 ind 2, 977, at ('le\e- tLnid, ()11o.' t tI tC 'ge wids lied b A\nThons (er1ac'i, in dei.duti. t )cc.nlict . 1976. irn] ietded Ianuirx 27, 19')77, I)c .nnd tliet Ld'.ix ice WISmade, ('orplaint ssued t;1ilt 'r 77. 197.2 lhic prinmar, issues ie whether ispo Rcltj ; d l)cCslnpmCn ( oipa5t :itl or Rispo Buitding ('npiiiit, IcIt'iit callled RspInudciiI. th'reatened ('ateri- nanct Icgardillg litl,, I11toi1 In[tilv \, It! viktion of Section S(a)(l ol the National I lhnr Relations ct, as anended (21) t." (S'. ~ i, (' w'y. i). nlcill iCticdl ihe \c, and laid him il tin ()IIc c ol',ic 4 ev,ttlse lli ris union rIi sit,. ilnorning ait th;kt s'il it> i ,r liahle i; 1 1 u a ztttle old r t as a e 'net- J)ir cri [h i li[ ,tF '¢,as i~u ~t\'ia'[ 101 br ruilk i .ll indcpcn-r ccil t':li'rl t Tl l li llt In i;1 t ir i a eCllplocIn e-nIienher of' the [ !itll. I1 ', , ii"11 (1 Secttnin Stat( I tInd (3) (it the Aci. Inon Ilh t eIntl ccolIcdt . ilcludilng ilx ohservation of' the v, Ittlesses Is" nIt tJl / l. i l'tc[ dulcOllp n ilter de onsiderat[ioni nit te hiitcl's lilcd oi behll t (cnei' ('ounsel and Re- sl'nTtmtenI. I iike Ihc tnlton,iing: I NIrt-N(;s iNt[ ('rN I '"ttONs I. RiSP()Ni)iNI S lI INI SS Ii is inlStilated .t the [eariliig hat Respondeni ,, in ()hio CtIr'On'nrInlI Cr'lgNeimd in the ConIUtICin indlstr'v, tiltrri?, dc' dcloptl[i antd sclin, rscidtcntial hsing i Ohion, vnth its ain oilices In Pi tria. )hin that it annually re- ccli s gI tsiese tiIes IOl i t% operal ins in ecess of $5((00~t and rcCtiCs gnodrs Iued at over S5f.000 ITom Ilrest ('it\-PnotcIsks Colp . it Ohit col-pratioll. with its principtl place f busilness a Bedord I leights. Ohio, where II,, l SC, II] Lnle [tie H/li trite- th't ic sined I iIii. A lI t ' 1 t lJ' i i cll 'Cp11Sjtt 1ITi . Irc itrehN ci'retc ' ] 241 NLRB No. 20 158 RISP() RAI T'Y ANI) 1)FVFI O)PMIN ( O it engages in the sale of lumber products fr home buildinlg: and that Forest C('it-Palevskv Corp. annui;lil receives illoss revenue frontm its business of more than $5),.X) anlld re- ceives goods valued in excess o .50.0t(0 directl tiotl points outside Ohio. Respondent does not dispite urisdic- tion here, and I find that it is and at all mterial times has been an employer engaged in comnlerce and in operalioins affecting commlerce withinl the menilng of Section 2(2). (h). and (7) of the Act. 11. I AIOR OR(Gs.iZ7\tI()l 1N\(W \11il International Uinion of ()peratinIg nginecrs, A'I (I( CLC, I.ocal Inion No. IS (herein (c.tlcd the ll llon). is a labor organiT7tion within the nmeainlg i f Seclil 2( ) iof the Act. ll. 1ill t NI StR i AsOR iR ( (IS A. 7h l;a st Respondent commenced ork on the P'rimrose Estates project on May 3. promptl! signin the I:nion's ()hio State Highway tHeavy Agreelent ' Until then Respondenl had not worked with employees on its owin pa nroll hilt rather through union subcontractors. I'he Primrose job involved the construction of single-family residences. Caterinacci. a member oft the IUnion. Nwas hired hb Re- spondent on July 20 pursuant to his refirra.l from the union-operated hiring hall. Ulpon his assignment to a ('alter- pillar 235 backhoe loader, he noticed no oiler was present and asked Rispo where the oiler was. Rispo said he did not think he needed one. (aterinacci insisted thit that machine required one "tinder the lahor agreement." and Rispo ac cordinglI called the hall. A\n oiler named Russell arrived about 11 o'clock that morning. 'I'he e idence shosS hil to have been 54 ears old wihen he testified, but tie appeared about 10 ears older. Respondeint complaiined abhout Ris- sell's age and laid him off ater somei 17 dlays. (aterinacci testified that throughout this period he had '"[tnlanl, discus- sions" with Rispo, practicall "on] a dail ' basis. regarding Rispo's demand that Russell, in addition to his duties as oiler, perform certain duties as a laborer, Including "hboth carrying materials and perhaps actuallI sworking with the shovel," and that he insisted to Rispo, "in no ,av i ai I gonna allow it." Russell's estimon\ nowhere mentions such a demand by Rispo. On the contrar, lie testilied that his only dispute with Respondent concerned his refusal to coin- ply with Rispo's request "(one time." shortls after he stairled working, that he commence the day an hour earlier and quit an hour earlier than C'aterinacci so that e could get the machine ready for operation. Russell pointed out that the agreement required a halt-hour's overtinic pay perl dia' for this purpose. and despite his rejection of Rispo's request because Rispo declined to pal such premiumri Russell ad- mitted "[t]here was no great argument " "According to Albert Rispo. Respindnl's lner nhertciin ,.lled Ripol. he invited the Union n the job hbecau.it he w.ianted quaiitied mle alind n l hr problems. Russell testified that he referred Rispo to (aterinacci concerning Ihis request because "Ton3 is the boss on the rig when ou are he oiler. lhe operator is your boss." Rispo apparently did discass this matter with ('aleri- nacci, who endorsed Russell's position ('aterinacci further eslitiel tha;i he advised l)udle Snell. business aent fr the I mnion of Rispo's demland that the oiler also d laborers' xork: that Snell discussed this with Rispo -sithin the first "week of nlv emplo ilent \ith Rispo," taking the pition "that the oiler definitls cannot do labOlers' sork": lhat Rispo "accepted it. hbut that nev- ertheless Rispo renewed his demand after Russell's replace- ment h Siml pson, a ounger man: and that Simpson re- fused on his (Caterinacci's) ads ice Snell could not "recall" aIn' concrs ation su ith ( aterinacci about Rispo's wanting oiler t do laborers' wo rk r "remember" discussing the subijecl sitlh Rispo. Ie testified furtlher that Simpson nev er repoiuted such a deni;nd to hin;- and tha;t it couldn't have hilppened s ith Russell. who "could hardls alk around" And 'c lildit'l see t di laborers' Wol-k." But Snell dlid ad- nit t;hat h "ntighl hve had" such a conversation wsith ('atel'inacci Sintpson. testil'\ inc on rebuttl fur the (General ('sn sel. did lis aidsert o this issue. Around the enCd of ugust r earl, September. ('ateri- iaIcci startced digging basements On Septenmber 10. at the enld of the ssork eeCk Rispo told ('aterinacci a.nd Sitlpson thal t lie h no furthel neced tr the ('aterpilla r tor r tIhe and thl-at he as la)ing them ,ll. \ hein i ('aterinacci caime in the tollow ring Mondax tor his pa'ircheck, Rispo said that there was still work available for hint o a smaller mchiie, ai John leere 410 ubber tire backhoe loader.' so Cateria- taccl conltinued on the job, solking mostly on the 410 but ailsi ding some work with the 235 Caterpillar, primaril in excla. ting the basements. When he was thus reassigned to the 235, he told Rispo that Simpson oiuld hase to he re- called, hut Rispo refused because he did not want to have to pay the contractually guaranteed 40 hours tor an oiler whose serv!ces v rec required onls a few hours per week.? Aroundi the satme time. (aterinacci got into a fight svith one ot the lahiboers ario ( ianci), who threatened t shool him. ('aterinacci telephoned Snell at home about both these matters. Snell cautioned him t stay awax from the joh the next da. it Iridas. Rispo telephoned Caterinacci as to the reason lor his ahsence and, when informed, promised to tire ('ianci aind assured (aterinacci it would be safe to report the tollowing Nlolida',- September 20, which he did. That da. ('ateriraccl met ith Rispo Snell. and another husi- ness agent. lacamnpo. to discuss the recall of Simpson who was also present. ('ateriiacci and the business agents agreed to waise the guarantee but required Rispo to pay Simpson for the S hours the 235 machine had actualls been worked ('aterinacci dissented. however, from the business agents' further decision not to require the oiler when the 235 was used in excavitint basements because smaller ma- chines not requiring an oiler could be used for that pur- I tentlfied 1i1 the agreement as district representaiii 1 he ubstantialls targer 235 Calerpilltr had a ractor-tspe undercarriage on a caterpillar tread Appa.reitl the guaralntie .applic.hi it the 235 (cquipment over half- 'lard capicit) culd he avoided nls f the machine renmained idle for 7 days Simpson's recall, however, was avoided at his on request. because his emplosment beyond a 12-dav penod would have forced him to the bottom of the referral lit undel the rules of the hinng hall. 159 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pose.'0 Nevertheless, Caterinacci accepted this decision at the time on the theory that the 235 would only be used on a part-time basis and that basements would be dug only once in a while, and it was evidently in this connection that he testified that the digging of the hole was not covered by Respondent's contract. Caterinacci testified that Rispo was angry over having to pay Simpson for the 8 hours not worked and told Cateri- nacci on September 21 to see him before going to the busi- ness agent it another situation like this arose in the future. A few days later, on September 24 (a Friday), according to Caterinacci, Rispo told him that he was not going to abide by the union rules, but would work with owner-operators or subcontractors, and he asked Caterinacci if he would work for him in such capacity. Caterinacci testified that he said he would, and Rispo said he would get back to him. Rispo denied telling Caterinacci not to complain to the Union or that he would not comply with union rules. He also denied inviting Caterinacci's services as an independent contractor, testifying that while he told Caterinacci, as he did many others, that if he could not get the work done properly he would hire an independent contractor, it was Caterinacci's idea to propose himself for that role. Shortly after this conversation with Rispo, Caterinacci testified, he telephoned Irwin, the Union's then president, at home and reported Snell's decision that no oiler was re- quired on the 235 when excavating basements, to which Irwin angrily replied that Snell was wrong and that Cateri- nacci should tell him so. On the morning of October 4, the following Monday, while Caterinacci was digging a basement just after reject- ing Foreman Jim Ebsch's order to leave the 235 and per- form another job with the 410, Snell walked up to them, and Caterinacci "jumped on Dudley real hard about run- ning this machine without an oiler" and about having to switch machines in the midst of a job, which had appar- ently become a regular occurrence. Snell objected to Cateri- nacci's tone and suggested that Caterinacci appear at an advisory board meeting of the Union scheduled for that evening, where he could raise his problems. When Cateri- nacci finished work that day, Ebsch gave him his check and told him he was laid off. Ebsch testified that Caterinacci was expecting the layoff "[blecause he was told before that that the basements weren't right. We just couldn't afford to do basements that way and have the other contractors leave the job project and both the machine and him were gonna leave." Caterinacci testified, however, that he went to Rispo to ask what it was "all about," and Rispo said: "That's it, the machine is all done. I'm gonna do the work with-I am trying to run this turn the work over to sub-contractors and the only way you are gonna be able to work for me is if you give me a bid or a figure on these basements and you take the work on a sub-contract basis. That's the only way you're gonna work for me." At the advisory board meeting that night, according to Caterinacci's undenied testimony, Snell acknowledged that he had erred in his position that an oiler was not required. 10 Snell testified that although the contract provided no such exception, it had been the practice for 15 20 years not to require an oiler on the larger machine in excavating basements for single-family homes. He admitted, however, that Irwin, then president of the Union, and since elevated to business manager, held a contrary view. Snell did not testify concerning what happened at that meeting. However, despite his admitted vagueness concern- ing dates and the sequence of events, he did testify that on one occasion-he thought it was the meeting of September 20-he instructed Rispo to call the hiring hall for an oiler whenever Respondent used the 235 and that Rispo agreed that if the oiler dispatched were young, he would keep him even for digging the basements. On October 5 or 6 Caterinacci returned to the site to collect some money still due him. Again, according to him, Rispo said he did not want to assign the work to union people, but wanted it to be done by owner-operators or subcontractors, and asked Caterinacci if he would bid on the approximately 30 remaining basements;" and Cateri- nacci said he would give him a bid in a couple of days, which he did. On October 23, according to Caterinacci's uncontra- dicted testimony, Rispo and his attorney, his son, met at the union hall with Snell and Steve Mayor. the head of the Union's Cleveland district. Caterinacci, though present, did not participate. Respondent sought an exception from the wage and other conditions of the contract, claiming that it was too small a company to be able to afford such condi- tions. Particularly mentioned were its inability to pay an oiler just to perform oilers' duties and its lack of freedom to move an engineer from one machine to another as needed. Mayor said he could do nothing about this but that Re- spondent would have to go to a higher union authority. Respondent asked whether it could still use union people if it canceled the agreement, and Mayor responded nega- tively. Rispo became angry and said it was impossible for him to work this way, and the meeting ended with Mayor's reiteration that he could not help Respondent. Rispo testified that "[b]eginning the latter part of August and the first of September," he had two operators, i.e., Caterinacci, who operated the 235 Caterpillar backhoe, and Sylvester Rich, also a Union member, who had been on the job since May and who ran the 555 front-end loader- crawler: that by September 30, eight or nine basements had been dug, all but one by Caterinacci; that every one had "problems" in that they were dug too deep, too shallow or too wide; that where too much had been dug out, they had to backfill with sand, an expensive operation; and that the masonry contractor complained that the poor workmanship made his job harder and threatened to quit. The contractor, Foley, confirmed that the basements had been dug improp- erly and that he had complained to Rispo about the addi- tional material and labor this entailed on his part. However, while he testified that "the pitman t2 can only do so much" to correct a digger not digging level, his testimony accords with the general agreement that it is the pitman's responsi- bility to maintain the grade. And he conceded his inability to say whether any of the problems here involved were Caterinacci's fault. Indeed, he testified that he had actually been present while one basement was being dug by Cateri- nacci and "observe[d] the workings between [Caterinacci] " According to Rispo, eight or nine basements had been dug by the end of September. almost all by Caterinacci. 12 The laborer who works with the digger, supplying necessary information from the pit to the digger in the cab of the machine, some 8-10 feet above the ground, as to where and how much to dig. 160 RISPO REALTY AND DEVELOPMENI CO. and the pitman," but saw nothing unusual. And while he also corroborated Rispo's testimony that the basements were dug properly after Caterinacci's departure," he admit- ted not knowing whether there was a new pitman on the job at that time. Foley was also displeased over what he deemed Caterinacci's lack of cooperation generally, as by not building a road for Foley's trucks. Caterinacci testified that he once "turned [Foley's company] into the union hall" for "running equipment without an operating engineer." Foley, whose testimony came later, did not deny this. Rispo also testified on direct examination that Cateri- nacci "would constantly" break the sewerlines. on each oc- casion costing $1,000-$2,000 to repair, and he once told Caterinacci, "[TIhat's the third time you've done that." On cross Rispo admitted that in his investigative affidavit he had accused Caterinacci of breaking only two sewerlines.'4 Rispo testified further that he received several complaints from the pitman and the foreman that Caterinacci would not take directions or instructions. According to Rispo, Caterinacci looked like a "good man" when he started work, but his inefficiency began to manifest itself within a week or 10 days, and the longer he worked, the more inefficient he became. Rispo testified that, among other things, he told Caterinacci in this connection that "[o]n every occasion he dug a basement I would tell Tony try and do a good job, won't you. You know, take a little more time if it takes that and do a good job." Asked on cross when he first spoke to Caterinacci about his ineffi- ciency, Rispo testified that he spoke to Caterinacci about the basements, but not about the sewerlines. He quickly "correct[ed]" himself, repeating that he had berated Cateri- nacci for "the third time," but a bit later stated that "the first time" he talked to Caterinacci was when he broke the sewerline for "the second time." As stated, Caterinacci started digging basements the latter part of August or early September and dug four or five with Cianci as his pitman.5 According to Rispo, the masonry contractor complained right after each basement was dug, as did Caterinacci's pit- men, first Cianci and then Mike Graham. However, after Cianci testified that he complained to Ebsch "a couple times," he admitted, "I tell you the truth, I didn't make a complaint because I didn't want to get involved with his ideas .... I wanta keep my job and I don't wanta get to anybody about this guy bein' bad .... ",6 Ebsch, who con- fessed to some memory difficulty, testified that he reported to Rispo that all but one of the basements were unsatisfac- tory, "they looked like a bomb hit, they was nowhere near what they was supposed to be."" The lone exception, ac- cording to him, was the last one, and Ebsch himself had 1t After Caterinacci's discharge his former duties were performed by Rich and by Ebsch, who, although a laborer, had permission from the Union to do such work in emergencies, using the Deere rubber tire backhoe. 1 The other operating engineer, Rich, while testifying that in his opinion Caterinacci could not dig a basement, considered that Caterinacci "did good work on the sewer lines." 1s Cianci testified he worked with Caterinacci all day every day for 5 or 6 weeks. He had never worked on basements before. :' Cianci had been rehired in March 1977 and was still in Respondent's employ at the time of the instant hearing. 1 He did not mention Cianci as the source of any information on this subject, testifying that his attention was called to the matter by the bricklay- er. acted as pitman on it. Graham, besides testifying to the poor quality of the basement pits, added that the work was slow, and in this connection testified: Q. Did ou ever receive any complaints about the basements? A. Did I receive any complaints? Q. Yes'? A. Only from the laborer tforeman. Q. Who was that' A. Jim Ehsch. Q. What complaint did you receive from Jim Ebsch? A. Just that it was too slow and he wanted me to get things goin' and get production movin'. Git produc- tion. this is what I was gettin' paid for.' Graham testified further that he asked Caterinacci wh, he took so long, and Caterinacci said on more than one occa- sion that Rispo had a lot of money "don't worr, about it. take your time and dig and keep this job goin'.'* Rispo gave no testimony concerning such statements to Graham. '1 In a prehearing statement Graham had testified that Caterinacci was qualified to run the machine, and "the only problem I had on the job was the work was going too slowly." to Under palpably leading questioning on direct examination. Graham tes- tified that Catennacci called him about the instant case and told him "he'd pay me for comin' down and estifying you know, f I'd come down and testify. he'd make my day's wages or whatever. whatever I wanted to come down and testify To see his attorney or to come here to court He would pay me a day's wages or whatever, he never made ann mention of a specific sum." After objection was then sustained to Respondent's question whether Graham had ever been threatened. Graham testified as follows: Q. (By Mr. Rispo): Did you talk with Mr Catennacci on more than one occasion? A. Yes sir. I spoke to him more than once. Q. Did you offer to testify for him? A. No. I didn't sir Q. And, was there-what was Mr Caterinnacci's response? A. His response was when he had talked to me about testifying or seeing his attorney was he had to get to Mario [Cianci] who had worked there but had been fired in the meantime and I didn't know and the oiler I didn't know because I had not worked there at the time his oiler had worked there. He had a problem with Mano which he explained you know, he had a problem with this man on the job. And, he said he knew how he could get to Manrio through his brother or, if not, he had people he knew he could get to to get to Mario or anyone else for that matter, that didn't want to go along with him. JUDGE HERMAN: What did you take that to mean? THE WITNESS: Exactly what I said, he left it to me to take it the best way I knew how, you know. Q. (By Mr. Rispo): Would you tell us exactly what Mr Tony Caten- nacci said, what his exact words were? A. As I can recall, to the best of my knowledge, his exact words were: that he had to talk to these people, get them to see his attorney and if he had trouble with Mario. he didn't know if he could git to him or not and he said but if I couldn't I had people that could get to his brother, through his brother to him the same as anybody else who I need to testify more or less you know, to the best of mv recollection. That he has people that can get to people. But. you could take that I mean I could take that any way I wanted to Catennacci firmly denied on cross-examination offering Graham money to testify or threatening him or anyone else in this connection. On the contrary. he testified that Graham had agreed. at his request. to testify if Caterinacci needed him as a witness, but that he did not call him as a witness, because Graham had thereafter informed him about possible work opportunities of- fered him by Rispo, and he "could see that Mike Graham was going to be not too anxious to testifv in my behalf" Caterinnacci admitted. however, that he did not see Graham on the Primrose job after that conversation. Caternnaccl also had denied on cross-examination offering money to one Frank Capote for testifying. Capote was never called as a witness. 161 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although he did testify that Cianci reported to him after Caterinacci's discharge, that Caterinacci had told Cianci to slow down on the job and that Caterinacci had said to Cianci that he would try to sue Rispo "to make some money off him" because he was a millionaire. On cross-examination Caterinacci had earlier testified as fobllows in this connection: Q. Did you not in fact on numerous occasions, di- rect the laborer who was working with you to slow down? A. No. Q. You never did? A. I never did. Q. Didn't you in fact Mr. Caterinacci, say Mr. Rispo is a millionaire and I should get some of that money? A. I never said that. Q. Never did? A. I never did. Q. Didn't you in fact Mr. Caterinacci say to those laborers that you would find a way to get Mr. Rispo one way or the other? Did you say that? A. No, sir. Q. Didn't you in fact say that if you had to you would fall down and get hurt and pretend you were hurt to file suit? A. I never said anything like that. Caterinacci had also testified that he had received no complaints from Ebsch, and the sole complaint from Rispo was that the masonry contractor had been complaining about the fill's costing too much money and that if he did not cease such complaints Rispo would get another con- tractor, that he had no trouble with the grades prior to Graham's becoming pitman, and that the only complaint from a pitman was from Graham, whose grading problems stemmed from a faulty transit. According to Caterinacci, he examined the transit when Graham was experiencing diffi- culty and was unable to detect the crosshairs, so he showed it to Rispo, who likewise could not locate the crosshairs, and they determined to get it fixed. The transit" had been purchased from United Survey, Inc., apparently about mid-August. Despite the testimony of United's official, Easa, that the instrument was "new" when sold to Respondent, it had been used as a demonstra- tor by United's salesmen and was sold without a guarantee. Other United representatives, testifying for Respondent by deposition," described its condition as of the time of sale as "good" or "workable," respectively. Its return to United for repair occurred September 27. Although Brown found the crosshairs easily by focusing the transit, United decided to send it to Anderson Instrument Company in Canton, Ohio, to check it out. It was brought to Anderson by Brown sometime in October and there received by Anderson's re- pairman, Mallalieu, who also found the crosshairs but, on visual inspection, according to his own testimony and that of Brown, noticed the absence of a level vial adjustment nut and washer that belonged on the transit. Thereafter, on Oc- 20 Variously spelled Lietz or Leitz. 21 President Tartabini and salesman Brown. tober 21. Mallalieu replaced the missing parts, adjusted the crosshairs and the level vial, and cleaned the lens. Brown picked up the transit on October 26 and received an in- voice 22 covering the work done on it. United billed Rispo in turn on November 8 in the amount of $34.58, specifying the cleaning of the lens and "misc[ellaneous] work," including replacement of the missing parts. Brown returned the tran- sit to Ebsch, who gave the following testimony: Q. Could the basements be dug improperly because of a defective transit? A. There wasn't nothin' wrong with the transit, we sent the transit to the shop to see if there was somethin' wrong with it and the transit was perfect. Q. How do you know that? A. They checked it at the shop and there was noth- in' wrong with it. Q. They didn't make any repairs on it? A. No. Q. How do you know that? A. The man told me when he brought it back there was nothin' wrong with it. Q. Which man told you that? A. The man from United returned it, I don't know his name. Q. Did he do the repair work? A. Did he do the repair work? Q. Yes? A. I don't know if he done the repair work or not. Brown testified in this connection as follows, first on direct examination by Respondent: Q. And on your arrival at the job, did you have occasion to discuss the service done with Mr. Rispo or his foreman? A. I mentioned-I talked with the foreman. I be- lieve I mentioned something to the effect that there was nothing wrong, you know, with the transit, other than a part missing. Q. Did you say there was a part missing? A. If I recall right, being that the transit came in for the repair of the crosshairs, you know, the crosshairs being missing, I mentioned that the crosshairs were okay. Q. You don't remember saying anything about a part missing? A. Well, if I did say anything about the transit, I probably would have mentioned that. Brown testified on redirect examination: Q. (By Mr. Rispo) Mr. Brown, if you can, as care- fully as possible remember what it was that you told Mr. Ebsch when you turned the transit to him from Anderson Instruments? A. I believe I stated that there was nothing wrong with the transit. Rlso:Thank you. No further questions. BAASTEN:One more. 2 His testimony inadvertently terms it "a receipt." 162 RISPO RFALTY AND DEVELOPMENt CO. On recross-examnination, Brown testified: Q. (By Mr. Baasten) Mr. Brown did you make any further statements other than that there was nothing wrong with the transit? A. Once again, if I said anything, I said there was nothing wrong Rispo:Objection. A. -with the transit. I might have mentioned some- thing about that nut, but I doubt it. I doubt very much whether I mentioned that. Brown also testified that he mentioned the missing nut to Respondent's counsel "quite a few times." Mallalieu testified that the absence of the nut and washer would "more than likely" cause the user of the transit to err in thinking the telescope was level, and this would [djefi- nitely" account for the basement level being too high or too low. He also indicated that Caterinacci's inability to bring the crosshairs into focus "possibly" demonstrated an unfa- miliarity with the instrument.23 He testified, however, that this particular type of transit is not normally used for the kind of work here involved because of its complicated na- ture and that the two instruments commonly used in this work are a straight level or a level transit. which are simpler to operate. Respondent pressed Mallalieu as to how the nut could have come off, and Mallalieu stated that it could have been jarred loose by vibration, or it could have loosened itself or been removed. In his deposition, Ebsch testified to other defects in the basements not previously mentioned by any witness, in- cluding himself, and which could not be attributed to the transit. Respondent also inquired, on redirect examination in Tartabini's deposition, into his family relationship with Caterinacci and the latter's reputation in the community for veracity. Tartabini's testimony was that he is married to Caterinacci's sister, he has known Caterinacci since 1950 or 1951, they see each other about once a month when they happen simultaneously to be visiting Caterinacci's mother. and Caterinacci enjoys a reputation as "a good operator" and "is a truthful individual, outspoken but truthful." Concluding Findings2 ' This case turns on credibility, and I find Caterinacci's account of the essential facts more believable on the record as a whole than the version urged by Respondent. Indeed. Caterinacci's testimony as to some salient facts stands un- contradicted and in other instances is supported by that of Respondent's witnesses. Respondent even elicited from Tartabini, whom it called for examination by deposition admissions that Caterinacci has a reputation as "a good operator" and "a truthful individual."" 12 President Tartabini of United Surve, affirmatively answered Respon- dent's question on direct examination (in his post-hearing deposition) whether "a person possessing ordinary skill in the use ,f the Lietz transit [wouldl he able to locate the crosshairs" 14 The defense of an alleged failure to exhaust the contractual grievance- arbitration machinery was stricken at the hearing on the authority of General American Transportation Corporation. 228 NLtRB 808 (1977), and has appar- ently been abandoned in Respondent's brief which confines its argument to the substantive merits. 12 I infer from Tartabinl's testinon> of the limited nature of his social contacts with Caterinacci that their relationship was less frlindls than that generally obtaining between brothers-ln-llw. Whatever Respondent's general feelings may have been in respect to the Union and hateer its motive initiall in signing a union contract, there is no doubt of its objection and resistance to some of the things (Caterinaccl insisted it was obliged to do under its contract. Respondent urges in its brief that beginning with Caterinacci's demand for an oiler on his first day of work, Rispo "complied with hat- ever he was told concerning the union rules and he did so promptly, indeed immediately." 'Ihis statemnent hardly its the instant record in respect to Caterinacci'dsdenands gen- erally, for Caterinacci liund it necessar to lodge repeated complaints with Snell which caused Snell's intercession on these occasions. Indeed, Respondent's brief itself acknowl- edges these disputes. It asserts, however that "[c]' er issue .was either immediately conceded h\ the employer or upon appeal to the business agents, the employer \was up- held in his interpretation of the union agreement." But this too misstates the record. True, Snell asserted his belief that Respondent's contract at least b custom - did not re- quire an oiler on the Caterpillar 235 for digging basements for single-family homes, but he conceded that Union Pres- ident Irwin held a contrary view. Besides, the 235 was obi- ously used by Caterinacci for work other than basement digging because that was the machine he started on at the jobsite about a month before he commenced digging base- ments. The dispute over the basement work simplb involved application of the contractual 40-hour guarantee. And Snell did not deny Caterinacci's testimony that at the advisor' board meeting on October 4, he agreed that his earlier posi- tion that the oiler had not been needed was mistaken. Snell himself testified that Respondent was ultimately instructed to call for an oiler when using the 235. even for the base- ment work. Also, while Caterinacci did not succeed on Sep- tember 20 in getting Simpson paid or the full 40 hours under the contractual guarantee, the business agents de- cided that he was to he paid for the 8 hours that the 235 had actually been used without him. Ihe evidence as a whole even supports (aterinacci's testimony conceriing Rispo's insistence that the oiler perform additional duties. including those of a laborer. Notwithstanding the absence of supporting testimony on this point from Russell anid Simpson and Snell's inability to recall (Caterinacci's raising the matter, Snell did testify that Rispo had coimpl;ained about Russell's age and that his agreement to use an oiler on the 235 was conditioned on the referral of younger man. It is a fair inference that a desire for versatility and partic- ularly the capacity for heavy work underlay Rispo's request lbr a younger man. It is clear, therefore, that ('aterinacci's continued pres- ence on the job as a union man posed a potential source of what Respondent was convinced were unnecessary costs ot operation which it had earlier sought to avoid by the "lav- off' of September 10. 2 More than that. Respondent's con- cern in this respect derived from a growing awareness of the restrictions imposed by its contractual commitments. The October 23 meeting, ('aterinacci's account of v hich s.as entirely undisputed, demonstrates Rispo's fear that strict conformity to the contract exceeded Respondent's capacitl "2On that occasion Respondent had prematurel annoulnced ii .s. geling nd of the Caterpillar 235 163 L)E((ISIONS OF NATIONAL, LABOR REL-ATIONS BOARD and that particular aspects of Rispo's request for relief were precisely among those points ('aterinacci had raised. These circumstances at once belie Respondent's contention in its brief that Caterinacci's testimony of Rispo's complaints about the union rules at the October 23 meeting2 ' was illogi- cal" and provide potent support for the General Counsel's allegation that Caterinacci's discharge was motivated by his protected activity. Bolstering this conclusion is Rispo's ad- mission that he had said many times that if he could not get the work done properly, he would hire an independent con- tractor. Since an independent contractor, working with the same engineers available to Respondent. was not likely to improve the situation, Rispo's admitted statements amrounted to threats to operate nonunion. Respondent relies on two indicators of an absence of un- lawful motivalion: first, that it had no further need for the ('aterpillar 235 and hence for Caterinacci and, second, Caterinacci's incompetency. he former involves a n,on .se- quitur since the uncontested evidence establishes that C('aterinacci's work on the job had not been confined to the 235.1' Apart from the discontinuance of the use of the 235 on October 4, there is no evidence of any decline in the need for two operating engineers. the situation that had prevailed for the previous 2 months. On the contrary, it appears front ('aterinacci's uncontradicted testimony that after his discharge some 30 basements remained to be dug. approximately three times the number dug up to that point. And there can he little doubt that Respondent would have preferred to continue with the larger machine if it could have avoided the restrictions ('Caterinacci had successfully insisted upon.2 Apparently, Ebsch and Rich together filled the void left by Caterinacci's discharge. However. Respon- dent tendered no evidence of the extent of the extra work required of them to accomplish this. Moreover. Ebsch's tes- timony mentioned only the poor work on the basements as the reason Rispo had told him for the discharge. In these circumstances, I find that unless the discharge was actually caused by ('aterinacci's incompetence, it would not have occurred at that time hut for his protected activity. Thus, Respondent's defense reduces to the alleged incompetence, and I find this position also lacking merit. It is idle to question Respondent's contention that the r2 Fssentiallt in keeping with Rispo's earlier threat to Caterinacci not to abide by the union rules and his warning against complaining to the business agent in the futures ' Ithe allegation in Respondent's answer that Caterinacci had been hired "fuir the sole purpose" of operating the 235 is without evidentiary support. Rather. as (aterinacci testified. notwithstanding the announced layoff on September 10. he conlinued n the job, spending most of his time operating the 410. iV Respondent argues in its bnef that "lilt is totally illogical and it makes no sense at all that the emploer would be complaining to the union [on October 231 about an iler on the Cat 235, when the oiler was never used on the job after the 4th of October and when the business agent had ruled in favor f the employer saying that it did not require an oiler on the machine." Itowever, as already observed, Respondent offered no evidence whatever to contradict Caterinacci's account of the October 23 meeting. As for the logic of the testimon, it must be remembered that Rispo had first announced the discolntinuance of Ihe 235 on Septernber 10 and then reinstituted its use. It may well have done so again. particularls if the Union had acceded to its request for a lifting o the contractual restinctions The argument miscon- ceives the record in respect to the requirement for an oiler As found above, Snell had infirmed Respondent that an oiler would be required it the ma- chine were used and that Respondent ,ould have to call the hiring hall theretor digging of the basements was not all it should have been. However, the extent of the defects in the digging process is less easy to ascertain from this record. To Ebsch, who was given to hyperbole despite his admittedly weak memory, the basements (save the last one, on which he had person- ally served as pitman) "looked like a bomb hit, they was nowhere near what they was supposed to be." Yet Graham, who also testified to their sorry condition, contrary to his investigative affidavit, testified further, in conformity with his investigative affidavit, that Ebsch's only complaint to him was that the digging was too slow. But Ebsch's testi- mony did not mention slowness at all, and indeed Rispo testified that he urged Caterinacci to "take a little more time" if necessary. And after testifying that Caterinacci "constantly" broke the sewerlines, Rispo conceded, in testi- mony filled with confusion, that such mischief was far less than "constant." Moreover, while Rispo testified that com- plaints about Caterinacci's work had emanated from Cianci, among others, Cianci reluctantly admitted that he had made no such complaints, thereby contradicting his prior testimony in this respect. And Rich testified that Caterinacci "did good work on the sewer lines." Respondent's difficulty in reconciling these conflicts is compounded by analysis of the evidence concerning re- sponsibility for whatever problems existed in the digging. It is clear that the pitman has the duty to show the operator where and how much to dig. But obviously, disregard of the pitman's instructions, if they are correct, will justify blam- ing the operator. The question is whether Respondent here thought the fault was Caterinacci's rather than his pitmen's and, if so, whether this really motivated his discharge. Not alone from his unconvincing demeanor, Rispo's testimony on this point seems plainly incredible. According to him, Caterinacci's ineptitude started to emerge within a week or 10 days after his hire and progressively worsened as he con- tinued on the job; and he took Caterinacci to task for it "[o]n every occasion he dug a basement." Yet on September 10, after Caterinacci had been on the job for 6 weeks, when Respondent had the opportunity to rid itself of him, sup- posedly on the same bases now asserted, it chose instead to continue his employment. And even as late as September 20, only 2 weeks before his discharge, Respondent still kept him on, albeit at the price of firing Cianci, who had been on the job longer than Caterinacci, had been Caterinacci's pit- man for some four or five basements, and who, according to Rispo, had complained about Caterinacci after each base- ment was dug.35 Despite Caterinacci's retention thus far, his discharge came 2 weeks later, just after digging the lone basement that Respondent concedes was done right. More- over, since this was the one on which Ebsch acted as pit- man, it is a fair inference that the pitmen, at least one of whom had had no prior experience on basements, were more to blame than Caterinacci for the poor condition of the other basements. "I find incredible Rispo's testimony that Cianci waited until after his discharge indeed until after Caterinacci's discharge-to tell Rispo that Caterinacci had urged him to slow down and had said he would sue Rispo. It defies reason that Cianci, who had a family to support, would have withheld infbrmation of this kind, which might well have saved his job. Alternatively. and by the same token, assuming Cianci did come up with this information, as Rispo testified, I would find it incredible that Rispo would have believed it at that late date 164 RISPO REAI.TY AND DEVELOPMENT CO The evidence establishes, in addition, that at least some of the trouble stemmed from the faulty transit. Respon- dent's brief stresses the presence of the crosshairs in attack- ing Caterinacci's testimony in this connection. Regardless of that, however, the transit was in fact defective. and the defect, according to Mallalieu, probably the most plainly disinterested witness in the case. "[d]efinitely" underlay the digging errors."' But Respondent's brief argues that it did not know of any defect at the time of the discharge and that "[tJhe Labor Board cannot use hindsight to penalize an em- plover where he, in good faith, evaluates a man as incompe- tent to perform his assigned duties." The difficulty with this contention is that the claimed "good faith" does not quite square with the facts. True. Respondent did not learn of the nature of the defect in the transit until after Caterinacci's discharge. However, it certainly entertained some doubt of the transit's reliability or it would not have sent it to United Survey to be checked out. Yet it effected the discharge while that question was still pending resolution. Respon- dent urges, moreover, relying on the testimony of Brown and Ebsch, that it was unaware of any functional defect "even later when the unit was returned to the jobsite." Brown's testimony on this point is equivocal. While he did testify. as Respondent observes, that he "believe[d]" he told Ebsch there was nothing wrong with the transit and that he doubted very much whether he mentioned the miss- ing nut, he conceded that he "might have mentioned" it: and, according to his testimony recited supra. he "probably would have mentioned it." Even Ebsch's testimony, despite his obvious effort to pin down the case, is less than categori- cal, for after testifying flatly that no repairs had been made on the instrument, he was asked whether Brown had done the repair work, and he replied, "I don't know if he done the repair work or not." 32 It is difficult to believe that Brown, who had witnessed Mallalieu's discovery that the nut was missing and who had received Anderson Instru- ment's invoice when he picked up the repaired transit, would have told Ebsch that nothing had been wrong with it; and I find that if Brown did not specifically mention the repair, what he said was that there was nothing wrong with the transit at the time he was returning it to Ebsch, meaning that whatever had been wrong had since been corrected. Assuming, however, that Ebsch understood Brown to say that nothing had ever been wrong with the transit, Respon- dent certainly knew by November 8, at the latest, when it was billed by United Survey, that the transit had in fact been repaired at least to the extent of replacing the nut and washer. Hence Foreman Ebsch had to be misrepresenting the facts when he testified that the transit was "perfect" when Respondent sent it out to United, that nothing was found wrong with it, and that no repairs had been made on it. And Respondent's present reliance on such testimony must undermine its claim of good faith. Rather than simply a matter of "us[ing] hindsight," the case is not different in principle from the common situation in which a false expla- nation for a discharge is held to indicate an unlawful mo- tive. This inference is only strengthened here by the various I' Ebsch's restored memory in his post-hearing deposition, encompassing other errors no one, including himself. had theretofore been able to recall. is not credited. 32 Both this question and the answer were conspicuously absent from Ebsch's testimony on this matter quoted at length in Respondent's brief. diversionary attempts in the record, such as the inquirD into the family relationship between Caterinacci and Tarta- bini;' the thinly veiled suggestion that the missing nut had been deliberately removed;" or the cross-examination of Caterinacci suggesting misconduct by him well beyond any positive evidence offered and some of which was adduced only through leading questions on direct examination of Respondent's witnesses, some of whom contradicted them- selves and each other. I specifically discredit all evidence that Caterinacci made promises or threats for the giving of testimony, or that he sought to slow down the work or ad- vocated obtaining money from Respondent other than his due as an employee. I find. on the contrary. based on the entire record. that these baseless complaints and Caterinacci's alleged poor work were advanced pretextually in order to cover up a discharge for Caterinacci's protected activity in calling the Union's attention to alleged violations of the agreement, especially after Caterinacci had ignored warnings to abstain therefrom. CON(I.EUSIONS OF LA\V I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has violated Section 8(a)( 1) of the Act by threatening to work nonunion and by warning Caterinacci not to complain to the Union about working conditions. 4. Respondent has violated Section 8(a)(3) and (1) of the Act by discharging Caterinacci over his protected activity. 5. he aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY In order to remedy the unfair labor practices found herein, my recommended Order will require Respondent to cease and desist therefrom, and, because discrimination in employment for union activitN goes to the heart of the Act, to cease and desist from infringing upon the Section 7 rights of its employees in any other manner, and to post the usual notices. Moreover, in order to effectuate the policies of the Act, my recommended Order will require Respondent to offer Caterinacci full reinstatement with backpay. In ac- cordance with customary requirements. reinstatement shall be to his former job or. if that job no longer exists, to a substantially equivalent position. without prejudice to his seniority or other rights and privileges. He shall be made whole for any loss of earnings he may have suffered by reason of the discrimination against him hb payment to him of a sum of monex equal to that which he would have earned from the date of discharge to the date of a valid 11 There is not the slightest suggestion in the record (even if Tartabini were friendly with Caterinacci. contrary to m) finding. supra, fn. 25) that either the purchase of the transit or its return fol sers icing awas in an) way attribut- able to the famil? relationship or. indeed. that Tartabini or United had knowledge of ans connection between the transit and Caterinacci " If it had been so removed hb (aterinacci or ansone in league with him, one would have to wonder Ah, (Caterinacci complained about the crosshairs rather than the nut 165 I)1(ISIONS ()OF NAII()NAIL LABOR Rl.I.ATIONS BOARD offer of reillstatemlient, less nlet ca11iitiigs dituriig such period, and interest thereon. to be contllputed in the mantllner pc- scribed in -'F. . oolwtorlh ( 'ompwt'l. 90 N IR B 289 ( 950(), and Floridal Stel ( orplorelion, 231 N LR 3, i51 (1977). Upon the ftoregoing findings of fact aid conclusions Iof law, and the entire record hercein, and pursuait to Section 10(c) of the Act, I herbch recolmcnded the following: ()ORl) R" The Respondent, Rispo Realty anid )evelopment ('om- parIy ad/or Rispo Building Company, Parmia, ()hio. its officers, agents successors, aid assigns, shall: 1. ('ease and desist fromn: (a) Threatening to work nonunion. (b) Warning its emploiyees not to complain to their union about working conditions. (c) Discharging or otherwise discriminating against any employee for seeking the assistance of' a union or otherwise engaging in union or other activity protected by Section 7 of the National I.ahor Relations Act, as amended. (d) In alny other manner interfering with, restrailing, or coercing any of its employees il the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following aftirnmativc action necessary to ef fectuaate the policies of the Act: "See, gencralbl), so Plunlhin & tlrang ( , 138 N RB 716 (1962) 'u In the event no exceptilns, are filed as povided h Sec. 1112.46 of he Rules and Regulations of the National l.ahr Relalilons Board, the findings. cotnclusions, and recommended Order herein shall, as pros ided in Sec. 102.48 of the Rules and Regulations, be adopted bs the Board and become its findings. conclusions, and Ol-der anand all ohiections thereto) shall he deemed waived fir all purposes. (a) Offer Anthony ('aterinacci full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of his discharge in the manner set forth in the section of this Decision entitled "Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security records, timecards, personnel records and reports, as well as all other records necessary to analyze and compute the amount of backpay due under the terms of this recommended Order. (c) Post at its jobsites within the territorial jurisdiction of International Union of Operating Engineers. AFL-CIO ('C(', Local Union No. 18, copies of the attached notice marked "Appendix."' Copies of said notice, on forms pro- vided by the Regional Director of Region 8, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places at each of said jobsites, including all places where notices to employees are custom- arily posted. Reasonable steps shall he taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days of this Order, what steps Respondent has taken to comply herewith. 13 In the event that this Order is enforced by ajudgment 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 tIited States Court of Appeals Enforcing an Order of the National l abor Relations Board" It6