Mattiace Petrochemical Company

MATII.A.CE PETROCHEMICAL COMPANY 15 Mattiace Petrochemical Company, a Division of Mat- tiace Industries, Inc.; M & M Drum Company., Inc.; and Petro Chemical Haulers Co., Inc. and Lo- cal 821, Manufacturing, Retail, Service, Clerical & Miscellaneous Employees and The Subcommittee, Party in interest and George Britton. Cases 29- CA-5352, 29-CA-5352-2, 29-C A-5435, and 29- CA-5658 October 20, 1978 DECISION AND ORDER BY MEMBERS JENKINS. MuRPHY. AND TRLTSDAL~ On March 15, 1978, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings. 1 and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section IO(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Mattiace Petrochemical Company, a Division of Mattiace Industries, Inc.: M & M Drum Company, Inc.: and Petro Chem1cal Haulers Co., Inc., Glen Cove, New York, its ul~icers, agents, successors, and assigns, shall take the act10n set forth in the said recommended Order. 1 The Respondent has excepted tn certam l"redJhil11: ftnd1ng.., m.!Jt· p, !he AdmlfliStratJve Law Judge. It IS the Board's estahh~heJ r·lliC\ 1111[ ll) ,,\t"f- rule an AdmanJstratJ\e Law Judge\ resolutton~ "tth rc-.ptLI tn tiCLithilJI_\ unless the clear preponderanL·e of all of the relc\Jnt t'\1Jcr11:e uiO\tnu.''- w. that the resolutions are ln4:0rred. 51tandard On H td/ Produ1 11. /n, 91 :'>ILRB 544 (1950). enfJ. 188 F 2J 362 ild Ctr !'I'll We h:ne c.~rdulh e\ammed the record and ftnd no ha~1~ for re\er~Jnc h1:-. f1'ldmg' ~Respondent excepts to certam factual m.J.ccurJ.c .... Jt:'i 111 the Den..,lliO l \H example. the AJmJnl~tra!lve Law Judge ~a ... cunfu ... cJ JhliUt v.htt.h I.J.\o,.~ct repre.\ented wh1ch p3rt and ahout the pt~rct:ntage ,)f "'h't \... ht·ld h: ll'Il.l\11 members of the Matt1ace famd~ and menlldneJ an t•mrlt,~ee .trnlng~ f,H whJCh there 1s no evh.ience. V.'e have e'amtned the record ;tnd fmJ th<il the errors ad\lerted are nonpreJUdJn..tl and ha\'e nn hcanng nn tht· rt:,ult reac heJ here~ n. DECISION STA TEME.NT Of TH~. CASE JoHN M DnR. Administrative Law Judge: Local 821, Manufacturing, Retail, Service, Clerical & Miscellaneous Employees, herem called Local 821 or the Charging Union, filed a charge in Case 29-CA-5352 on December 2, 1976,1 the charge in Case 29-CA-5352-2 on December 16, and the charge in Case 29-CA-5435 on January 28 against Matti ace Industries, Inc., alleging violations of Section 8(a)(l), (2), and (3) of the Act. On January 31, the Regional Director issued a complaint agamst Mattiace Petrochemical Company, a Div1sion of Mattiace lndustnes, Inc., M & M Drum Company. Inc .. and Petro Chem1cal Haulers Co .. Inc .. herein respectively called Mattiace. M & M and Petro Chern and collectively called Respondents, alleging that Respondents constitute a single integrated busmess enterprise engaged in interstate commerce wh1ch violated Section 8(a)(l), (2), and (3) of the Act. It was alleged that Respondents, by Mattiace's presi- dent, Lou Matllace, violated Section 8(a)(2) by instituting and then controlling and dominating an organization railed the Subcommittee, which functioned as a labor or- ganization. Section 8(a)(3) and (I) were allegedly violated by the discharge of brothers RIChard and Ronald Vanden- berg and by interrogating and threatening employees, promising benef1ts. conducting an unlawful poll, surveill- ing employees' umon activities, and confiscating union ma- terials. On May 18. George Britton filed a charge in Case 29- CA-5658 allegmg that he had been unlawfully discharged in violation of Section 8(a)( I) and (3), and on June 20, the Regional Director issued a complaint in that case alleging that Resp,mdents had so violated the Act. Both complaints alleged the -.arne commerce data and corporate allegations, and the cases were consolidated for tnal. Respondents' answers demed that they constituted an integrated busmess enterpnse but agreed with the com- merce facts and that Britton and Richie Vandenberg had been discharged but denied that Ronald Vandenberg had been d1schargeJ or that Respondents had in any other way v1olated the Act. All parties were afforded full opportunity to appear, to examme and cross-examme Witnesses, and to argue orally at the hearing held m HICksville, New York, and Plainview, NewYork,onJulv II. 12, D. and 14, 1977.GeneralC'oun- sd argued orally. and a brief from Respondents has been rece1ved and cnnsidered. The principal questinn m th1s case is whether the Van- denbergs and Britton were discharged at least 1n part for umon and concerted activities. The establishment of the Subcommittee and the facts underlymg most of the 8(a)( I) allegations are either adn11tted or not contested, With only the conclw.wns disputed. After assessmg the evidence, I have concluded and find, as set forth below, that Respon- dents violated Section 8(a )(I), (2). and (3) of the Act, as 1 t nk..,, ~rt'\.·lfll .• lll\ ..,t:llcJ t)ther~t,t', the e\ent... herc1n <)I.::(Urred het~et~n .lui\ l\l/(1 ..tnd \1.t\ 1'}...,7 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleged. I have determined credibility adversely to Louis Mattiace, who was the moving factor in the 8(a)(2) and (3) violations. This adverse credibility determination is based on his testimony being contrary not only to the General Counsel's witnesses but to most of Respondents' witnesses and on the fact that he testified evasively and mainly to conclusions and not facts. On the entire record in this case, including the exhibits and testimony, on the contradictions in testimony, and on my evaluation of the reliability of the witnesses based on the evidence, I make the following: FINDINGS Of FACT I. COMMERCE FINDINGS AND UNION STATUS Mattiace, Petro Chern, and M & M are New York cor- porations engaged in business at the yard or plant site in Glen Cove, Long Island, New York. Mattiace is engaged in the manufacture, sale, transporta- tion, and distribution of chemicals and related products and during the past year received, at Glen Cove, chemicals and other goods valued in excess of $50,000 directly from points outside the State of New York. Petro Chern is engaged in the transportation and distri- bution of chemicals, solvents, and related products and during the past year received in excess of $50,000 for its trucking services which were performed in interstate com- merce and for firms including Mattiace. M & M is engaged in the refurbishing, sale, and distri- bution of steel chemical drums and related products and during the past year received, sold, and distributed prod- ucts valued in excess of $50,000, performing said services for Mattiace, among others. Respondents admit, and I find, that Respondents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondents admit, and I find, that Local 821 is a labor organization within the meaning of Section 2(5) of the Act. Respondents admit, and I find, that Highway and Local Motor Freight Drivers, Local 707, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 707, is a labor organization within the meaning of Section 2(5) of the Act. Respondents deny, but I find, as set forth infra, that the Subcommittee is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Undisputed Facts Lou Mattiace is the president and 50-percent stockhold- er owner of Mattiace and his brother, Otto, is the secretary with 30 percent of the stock and a third brother, Peter, is the treasurer with 15 percent of the stock. The fourth brother, Billy, is the plant or yard manager for Mattiace as well as for Petro Chern and owns 5 percent of the Mattiace stock. Otto owns 100 percent of the stock and is the president of Petro Chern, and Billy is the secretary and plant manag- er. Peter Mattiace is the president and secretary of M & M, while Otto owns 100 percent of its stock. Mattiace deals in various petroleum-based chemicals, in- cluding solvents for paint and other industrial purposes. It brings its raw materials to its plant in tractor-trailer tanks. After the material is processed, it is sold and shipped either in tank bulk lots or in drums. The deliveries in drums are in the New York-New Jersey area, with one drum truck cov- ering Long Island and the other covering the City and New Jersey. The tank deliveries are either in the New York area, and called locals, or in other States such as Ohio, and are over-the-road hauls. For some period of time, Mattiace used to process its steel drums, picking them up from customers, cleaning and reconditioning them for its use, and refilling and delivering them. At some time in the 1970's, M & M was set up as a separate corporation to handle the cleaning and recondi- tioning of steel drums. Pickups of empty drums and deliv- eries of filled and unfilled drums continued to be per- formed by Mattiace trucks. At times Mattiace supervisors and employees receive and sign for M & M goods, since M & M does not have a delivery dock. Such materials are then transported to the M & M quonset hut located on the yard. M & M has its own employees, who work in the quonset hut reconditioning the drums. Some time in 1975 or 1976, Petro Chern was established and two drivers, Fred Lauria and George Britton, were switched from their employment at Mattiace to Petro Chern. The principal advantage to these two employees was that the wage rates paid by Petro Chern were substan- tially higher than at Mattiace. They still received their as- signments and duties from either Billy Mattiace or Russell Meek, who is Billy's brother-in-law and handles evening and night-shift operations as a dispatcher. There are three mechanics, who work in a shop some- what separated from the main yard. Two of the mechanics are on Mattiace's payroll, while the third was paid by Petro Chern. The three work interchangeably on the trucks, trac- tors, and trailers without regard to whether they are Matti- ace or Petro Chern workers, and there is no accounting made or bills given to the Companies for the parts used or labor performed. Apparently one tractor or trailer has the lettering "M & M" on it and work on that vehicle is per- formed at the yard by the mechanics on the same basis. The yard and dock work is under the control of Mattiace Supervisor P1errre Samsonoff. As will be seen infra from the control exercised by Louis Mattiace in initiating and pushing through the demotion of Britton from Petro Chern driver to Mattiace yard worker and by his discharge of Petro Chern mechanic Ronnie Van- denberg, it is clear that Lou Mattiace exercised control over the Petro Chern employees as well as the Mattiace employees and that no interference with such control was offered by Petro Chern President Otto Mattiace. As was testified, when Petro Chern drivers did not come to drivers meetings. Lou Mattiace instructed them to do so. There was no distinction in functions or job content as between the local and over-the-road delivery drivers for Mattiace or Petro Chern, both performing essentially the same work in tLe same areas and alternating the over-the- road tnps. The essential difference, and one which the MA TIU.CE PETROCHEMICAL COMPANY 17 Mattiace employees complained about, was the difference in pay rates. For example, George Britton was hired in the fall of 1974 by Peter Mattiace to drive a drum truck and was paid by Mattiace. He was switched to a tank truck shortly there- after and was laid off in December 1974 because business was slow. He was recalled to work around May 1975 and was later switched from Mattiace to Petro Chern as an over-the-road driver, where he was working in September 1976. His salary went from around $270 per week to around $400 with his switch to Petro Chern. Drum drivers would pick up empty drums for M & M and deliver them to the M & M hut. In 1976, they were told by Lou Mattiace that they would be paid a bonus of $1 per drum for the amount of new drums they picked up for M & M. Lou Mattiace, from the facts, was directing the employ- ees of the Respondents and directing their activities for Respondents. From what has been said there and from the further description of the demotion of Britton and the firing of Ronnie Vandenberg, it appears clear that Mattiace, Petro Chern, and M & M were and are run as a single integrated enterprise. While there is no interchange of employees who work on the interior of the M & M quonset hut, the Matti- ace employees who drive trucks labeled M & M Drum Co., Inc., clearly are being held out to the public by Mattiace as employees of M & M. The position of M & M in the chain of work performed and the work done for it 1:-y Mattiace drivers makes it a unit with Mattiace. The control of the drivers, being centralized as it is, and the interchangeability of over-the-road drivers and runs, clearly makes Petro Chern and Mattiace one entity. Therefore I conclude and find that Mattiace, Petro Chern, and M & M are a single, integrated enterprise. B. The Subcommittee Richard (Richie) Vandenberg was hired as a Mattiace driver in June 1975. He had been a member of the Team- sters Union for a number of years and told Peter Mattiace when he was hired that he had been a union member and did not think he would stay too long. Peter Mattiace told him that they were nonunion. Around rnid-1976, according to Richie, two new trucks appeared on the yard with the name "Petro Chemical Haulers Co., Inc." on them. Fred Lauria and George Brit- ton were made the Petro Chern drivers, and their weekly salaries were between $400 and $500, while the Mattiace drivers were making around $270. Richie asked Billy Mattiace about this pay differential, since he and the other Mattiace drivers did not understand it when they were doing the same work. He got no response from Billy. The drivers were "moaning and bitching" about the situation, and Richie continued to tell them that with a union, this would not happen. John Modzelewski, who had been an over-the-road driver with Mattiace since January 1976, said that around June or July Billy Mattiace asked him "What is this union s---?" Modzelewski said he had heard nothing about it. Shortly thereafter Billy Mattiace called a meeting of the Mattiace over-the-road drivers off the yard, on the prop- erty of Long Island Metals Company, with whom Mattiace shared a driveway. At this meeting, according to Modze- lewski, Billy Mattiace said he wanted to find out who was behind the union business and, that if he did not find out they were not going to have any bonuses and they would just operate by the book and there would be no personal business between them. Billy asked a few of the men who was behind it. The drivers evaded his questions but com- plained about variolls things they were unhappy with. They complained about the difference in pay rates between Mat- tiace and Petro Chern and about being assigned to take an over-the-road trip with only a few hours' break after hav- ing worked a full day on local trips. Billy said he would straighten that out. According to Richie, drum driver Ed- die Snyder said he did not like taking out trucks that were in bad shape, with b<·.d brakes and no lights or signals. Billy said he would have the mechanics work on the trucks. Somebody else brought up that they would like to have a dental plan. Billy Mattiace said he would look into it, and the meeting ended. Billy Mattiace admitted that he heard a union petition was going around and wanted to find out what was going on and called this meeting. He said that they discussed the problem with over-the-road assignments, among other things, and he agreed he probably asked the question "What is this union s~-?" Soon thereafter. Lou Mattiace called a meeting of Matti- ace employees at a local restaurant on July 12. Minutes' of the meeting were prepared by an employee of Mattiace for Mattiace records and set out the following: After the dinner, Lou Mattiace, opened the meeting outlining the purpose for which the get-to-gether was held. He detailed the many benefits to which all are entitled. Since this meeting these benefits have been thoroughly outlined in a brochure distributed to all who attended the meeting. Further, it was decided that the mechanics who ser- vice our trucks along with William and Lou Mattiace would meet once a month to go over problems and th~ expense of keeping our trucks in good repair. It was also decided that a Sub-Committee be formed to discuss and act on the suggestions and problems presented by the drivers and personnel of the Terminal to make for more efficient operation of our Terminal and service to our customers. Sub-Committee to be composed of: Ronnie Hand Eddie Snyder Russell Meek Pierre Samsonoff Ronnie Vandenberg Richie Vandenberg William Mattiace Lou Mattiace The above Committee to meet once a month. Several matters were briefly discussed and were to be presented to the aforementioned Committee for discussion and decision. Meeting was adjourned at 10 p.m. John Modzelewski. who attended the meeting, testified that Lou Maltlace said he did not want to see a union 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come in and that they should use the Subcommittee to resolve any differences. . . Supervisor Pierre Samsonoff testified that at th1s meetmg he told Lou Mattiace that he knew Lou d1d not want the Union but that about half the people were for a union and half were against it, that they should have a committee like a union; and if they had problems, they could take them up. . . Following the meeting Mattlace. 1ssued a pamphlet de- scribing its policies and beneftts, mcludmg med1cal plan. holiday and sick days, etc. Around that tlme the Matllace employees received 1aises ranging from $20 to $50 per week. Richie Vandenberg rece1ved a $20 ratse and asked Billy Mattiace why he did not get more. Billy told him to see Lou, who responded that he had started at a higher rate and was therefore getting a smaller raise. Richte sa1d he dtd not think that was fair and brought up the recurrent prob- lem of being. assigned an over-the-road trip after working lcoally all day and having insufficient time to rest before the scheduled departure. Again, Lou said they would try to give them a day or at least a half day except in emergency situations. Members of the Subcommittee were notified of their ap- pointments by memorandum and learned about the first meeting scheduled for August 16 by a not1ce attached to their paychecks. At the August 16 meetmg, accordmg to the Respondents' minutes, among other top1cs, the 9ues- tion of the Company's providing new summer and wmter uniforms was raised by an employee, and Lou Matttace said Mattiace was working on the 1975 sick days and the employees would receive the proper compensation for them. Lou also discussed a work incentive program for mechanics and drivers and said that drivers would receive $1 for each reconditioned drum they picked up. The matter of a tardy employee was also discussed. . Another meeting was held on Ocotber 12, w1th Hand, Snyder, the two Vandenbergs, Billy and Lou Mattiace, Samsonoff and Meek present. This meeting discussed what action should be taken in regard to George Britton follow- ing an accident. It was decided that Britto? should be. re- moved as a Petro Chern driver and placed m the Mattlace yard crew. This matter will be discussed infra in reg~rd to Britton. Lou Mattiace said that there would be a re~1ew of the bonus program and that on the anniversary of employ- ment an employee would be considered for a raise in salary. He complained about the high amount of repairs and truck insurance, and it was decided that if any employee had a special problem a special meeting would be called. Eddie Snyder brought up the question of inclement weather and whether the trucks should be held back for a later depar- ture. Hand suggested cleaning out the tank trucks to make sure all solvents were removed. Samsonoff brought up the problem of not getting orders promptly from Palumbo. the sales manager, and new directions were given to tank dnv- ers about flushing the tanks. . In a meeting he called on November 17, Lou Matt1ace stated he wanted Richie Vandenberg discharged. After a split vote, Lou Mattiace broke the tie and Richie was dis- charged. His discharge and the dtscharge of Ronn1e Van- denberg at that meeting will be considered infra. On these facts we have the Subcommittee established by Lou Mattiace, who appointed its members. beginning as an alternative to the employees bringing in a union. It has no structure, and no rules to guide it and acts in a number of capacities. The Subcommittee took up employee griev- ances and handled matters concerning wages, hours, and working conditions, including job assignments and the dis- charge or retention of employees. Management controlled it. casting a deciding vote if there was a tie. This Subcom- mittee engaged in collective bargaining and was not an adjudicatory body acting under strict rules as in Sparks Nugy;et, Inc., 230 NLRB 275 (1977). The Subcommittee acted under management control and participated as a la- bor organization, and I conclude and find that it was estab- lished, dominated, and controlled by management and that as such, Respondents violated Section 8(a)(2) and (I) of the Act. I will enter an appropriate order that the Subcommit- tee be disestablishec and disbanded. C. The Discharges of Richard and Ronald Vandenberg Richie Vandenberg was hired at $5.75 per hour, which was more than most of the other drivers were making. As stated above, during the meeting held by Billy Mattiace off the premises, Richie complained abo~t dou~le runs and the wage differential between the Mattlace dnvers and the Petro Chern drivers. Later he complained to Lou Mattiace concerning the amount of the raise that he received and the over-the-road double scheduling. Other employees and supervisors corroborated Richie's statement that he talked about the Union at the yard, particularly when there were problems, stating that if they had a union such things would not happen or would be cleared up. Ronald (Ronnie) Vandenberg was hired as a mechanic in July 1975 and placed on the Petro Chern payroll. His original salary was $5.75 per hour and was ra1sed to $7 per hour in the fall of 1976. According to Modzelewski and Richie, whenever talk about a union began, Billy Mattiace and Meek would be- gin closely checking trucks, including tires_, oil, etc., and telling the employees about 1t. Me~k sa1d they began checking the trucks closely after umon pamphlets were found in them, indicating it was a security measure. Since the closer scrutiny occurred on various occasions when union talk was occurring, it is obvious from the com- ments to the various employees that it was not a security measure but designed as retaliation to demonstrate what Respondents could do if the employees brought in a union. I find that such action violated Section 8(a)( I) of the Act. In October or November, Richie brought a union pam- phlet back from a trip and gave it to an employee. who made copies and put them in the trucks. When he ~arne back to the yard that evening, Billy Matt1ace asked R!ch1e what was going on and what was the problem. R1c!ue asked what he meant, and Billy showed him a pamphlet, asking who put them in the trucks. Richie s~id he did not know, and Billy said he thought R1ch1e d1d know who brought the union stuff in and wanted to find out who distributed it. Billy testified that it was possible he might have asked several employees about who distributed the union pam- phlet. . . It is found that this was unlawful interrogatiOn and v1o- MATIIA.CE PETROCHEMICAL COMPANY 19 Ia ted Section 8(a)( I) of the Act and further indicates Re- spondents' view as to who the union instigator was. On Sunday, November 14, Steven Lollo, the business agent of Local 821, contacted Richie Vandenberg. and a meeting was set up for Monday, November 15. Richie and Ronnie met with Lollo, signed union authorization cards for Local 821, and took authorization cards to distribute to other employees. On Tuesday Richie talked to other driv- ers about joining the Union but did not schedule a meet- ing. At noontime Richie called in and was told he was scheduled to take a trip to Cleveland that night at 9 p.m. However, he was told to continue with his regular tour of duty that day, which brought him to the yard after 4 p.m., having worked since before 6 a.m. John Modzelewski and Richie pulled into the yard about the same time and they discussed the Cleveland assign- ment. They went into the office, and Russell Meek told Richie he was due to leave at 9 o'clock on a trip to Cleve- land. Richie told Meek that he could not go. that he had worked all day and was tired. and besides that he had been up over the weekend with his daughter, who was sick, and he could not leave at 9 o'clock that night for a 10- or 12- hour trip. Meek asked Modzelewski if he could go. Modze- lewski said that he would not take the trip at 9 o'clock that night because he was tired from having worked all day but would take it at 6 o'clock in the morning after he had gotten enough sleep. Richie said that he would take the trip the following morning at 6 o'clock after he slept. Meek said that he would have to contact Sales Manager Palumbo to find out what to do. He called Palumbo, who said he would get in touch with the customer to see if they could make a later delivery and maybe fake a breakdown. He said to let Richie leave the following morning at 6 o'clock. Meek said he would contact Billy Mattiace about it. Richie and Mod- zelewski left the office. While standing outside discussing the problem caused by these double run assignments, they were approached by Peter Weekes, a local driver who had driven a few over-the-road trips and wanted to become a regular over-the-road driver. Peter Weekes had been a friend of Ronnie Vandenberg for about 6 years, and when Ronnie started working for Respondents, Weekes would come in and assist in break- ing tires and doing other odd jobs and got to be known by the Mattiace officials. Richie and Ronnie taught Weekes to drive a truck, and thereafter Weekes was hired by Mattiace as a local driver. Weekes wanted more over-the-road work because he could make more money, since there would be more overtime and hours on long trips. When they mentioned the trip, Weekes said he would be glad to take it. Richie told Weekes to stay out of it because on over-the-road trips they were supposed to have time off the previous day and they all had worked the whole day and should not be taking such a trip and that to work that way was a safety hazard. Weekes ktpt insisting that he would go and Richie kept telling him to stay out of it, saying that they were trying to establish a precedent and that if they had a union they would not have to work that way. Modzelewski corroborated Richie's testimony about the incident, saying that they both knew Weekes wanted to be a regular over-the-road driver. Asked whether Richie might have called Weekes a "scum bag." Modzelewski said he may have. but after all. they were a bunch of truckdnvers. not hairdressers, and that was the regular language they used with one another. Modzelewski said Weekes was not offended by the language and agreed to "cool it" about taking the trip. Peter Weekes testified that he pulled into the yard on the afternoon of November I~ and after parking his truck went over to where Modzelewski and Richie Vandenberg were talking. He said thzt Vandenberg asked if he would take a trip to Cleveland and when he replied that he wo11ld. Van- denberg. used very vulgar language, told him that he was crazy and would be lousing up the works. During cross- examination Weekes rather reluctantly agreed that Van- denberg said he would be throwing a monkey wrench into the works and should not go and that he understood Van- denberg was talking about the problem of coming in after work locally all day and having to go right back out on a long trip and that they were trying to put a stop to that practice. Weekes knew it was a Department of Transporta- tion rule that a person had to have 8 hours sleep after that much working but avoided saying whether he understood that it was Respondents' policy to try to avoid the rule. He went into the office to do his paperwork and told Russell Meek that he would take the Cleveland trip. Modzelewski and Richie came into the office shortly thereafter, and driver Gary Sulka was also present. Meek, Modzelewski. and Richie agreed that at that time Richie offered to let Sulka or Peter Weekes use his truck if they were assigned the trip. Peter Weekes did not recall such. Weekes testified that when he first went into the office he told Meek about the conversation outside. Meek testi- fied that Weekes was upset over not getting the run and told him that both Richie and Modzelewski had harassed him and that Richie and Modzelewski were upset with him. Meek's testimony indicated that Weekes did not raise this issue of harassment until after Richie and Modzelewski had come back into the office and left and after he had told Richie he would let him know about the trip and told Weekes he would not get the run. Meek testified he re- called telephoning Richie about the trip and where to hide the trip money in Richie's truck. Weekes said that he was not offended by the language Richie used, that it was everday talk and although he did not like being called it, the main thing was that they were taking money out of his pocket and he felt he was being harrassed. From the sequence of events, however, it is clear that Weekes was not harassed enough to avoid asking Meek if he could take the trip, insisting that he was ready to leave at 9 p.m. Meek called Billy Mattiace and told him about Vanden- berg not wanting to leave at 9 p.m. because he had been working all day and was tired and that he would take the trip at 6 o'clock the next morning, and Billy then set the trip for 6 o'clock the following morning. After Weekes had volunteered to take the trip and told Meek about the "har- assment," Meek called Billy and told him what Weekes said and that Weekes wanted to take the trip. Billy told Meek that it was Richie's turn to go and let it stand as it was. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Richie left for Cleveland about 6 a.m. He called in be- tween 2 and 3 p.m. expecting as usual to go to Tennessee for a return load but was told to come straight back. On the morning of November 17, Billy told Lou Matti- ace that he had postponed the run and that there had been some confusion and harsh words between Richie and Weekes and that Richie offered to let any of the others go and use his truck but that he had told Meek to have Richie take the trip. Meek testified that Billy did not seem con- cerned about the lateness of the trip or that it would not go on time. Contrary to Meek's and Billy's testimony, Lou Mattiace testified that Meek said he offered the trip to Weekes but then withdrew the offer because of the "quarreling" be- tween Richie and Weekes and permitted Richie to take the trip in the morning to avoid further disturbances. Meek testified that when he told Lou Mattiace about the Cleveland trip Lou became excited because the load would be late, saying they would have to tell the customer there was a breakdown. Further, when he told Billy and Lou about Weekes' report to him, he informed them that Weekes said both Richie and Modzelewski had talked to him. Lou Mattiace testified that Weekes called him in the morning and asked for a meeting and that he told Weekes to come to his office. Lou Mattiace testified as follows: Peter told me that Richie Vandenberg had violently cursed at him, had threatened him that if he did take the delivery out that night that there woulci be trouble and that he told Peter that he did not want the deliv- ery to be taken out that night by Peter. After describing Richie's actions as harassment, threats, and coercion, Lou Mattiace said he had Modzelewski sent to his office and told him that it was a serious matter and that he was concerned that Richie would take it upon him- self to threaten an employee and cause inconvenience to a customer. He testified that Modzelewski told him he was not there and heard nothing and that he subsequently told the members of the Subcommittee that he had talked to Modzelewski who knew nothing about the event. Contrary to Lou Mattiace's testimony, neither Weekes nor anyone else ever claimed or testified that Richie ~hreat­ ened Weekes in any manner. Weekes testified that he was told to see Lou Mattiace on Wednesday afternoon before 4 p.m. when he had finished work and that at that time he told Lou Mattiace his version of what happened and that Modzelewski was present. This testimony would indicate that Lou Mattiace had made his decision to discharge Ri- chie before talking to Weekes, since by that time he had called an emergency meeting of the Subcommittee and had orders sent to Richie to return directly from Cleveland. Modzelewski testified he was called in to see Lou Matti- ace on Wednesday and was asked what went on between Weekes and Richie, that Lou had heard that Weekes was harassed. Modzelewski told Lou Mattiace that he heard the conversation and that Weekes was not harassed or threatened and nothing harmful was said to him. Lou Mat- tiace, using a vulgar word in referring to Richie, said it was not right for Richie to deny another man a chance to work. Modzelewski replied that Richie did not deny anybody any work and that to make a run in that manner was unlawful. He was not told to come to the subcommittee meeting and was away from home that evening when they tried to reach him. Again contrary to Lou Mattiace's testimony, all those who testified concerning the subcommittee meeting said that Lou Mattiace did not mention having talked to Mod- zelewski or that Modzelewski knew nothing of the event. Indeed, the fact that members of the Subcommittee tried to get in touch with Modzelewski for his version of the event demonstrates that Lou Mattiace could not have said what he claimed. The subcommittee meeting scheduled for Friday, No- vember 19, was changed by Lou Mattiace on an emergency basis to the evening of Wednesday, November 17. Ronnie Vandenberg was notified in the afternoon and arrived late. When he arrived, hf· not1ced that Weekes, who was not a member of the Subcommittee, was present. Lou Mattiace told him that there was a problem with his brother's refus- ing a load to Cleveland. Ronnie replied that at the previous meeting they had discussed the problem of late trip assign- ments and the need for drivers to have time off before taking trips and that Lou Mattiace had agreed that a driver going on a trip would have the previous day off if at all possible, or at least enough time so that he could rest and get his things together. Lou Mattiace said he did not recall that and said Richie Vandenberg was not suited for Re- spondents because he refused a load and tried to discour- age others from taking a load and that he did not want Richie any more but would allow the Committee to vote on it. Ronnie asked why it was necessary to have the meeting before his brother could get back and be present to defend himself and received no reasonable response. Lou Mattiace then had Meek and Weekes tell their stories. According to Ronnie, Weekes said that Richie had harassed him and called him names and said that Mattiace was no good and that the over-the-road drivers were trying to set a prece- dent and for Weekes to keep his nose out of it. Because of their prior close relationship, Ronnie Vandenberg got an- gry and asked how Weekes could do such a job on Richie after he and Richie had taught Weekes how to drive, that he was turning the tables on them and trying to cut his brother's throat. Some vulgarities may have been used. Lou Mattiace said that Ronnie could not talk to Weekes like that, and Ronnie replied, "Who says I can't?" Lou Matti- ace fired him. Ronnie said "good" and walked out; he de- nied making any gestures or movements towards Weekes or Lou Mattiace. As he was walking out, Otto Mattiace said they should talk it over, and he replied that Lou had said that he was fired and left. Lou Mattiace said that while Weekes was speaking Ron- nie "demonstrated a loss of temper and the sign of violence directed to Weekes." He said that Ronnie stood and shout- ed insults and abusive language and threatened Weekes violently and physically and when he tried to calm Ronnie down by asking him to compose himself and take a walk, Ronnie "-maintained his til temper demonstrations and then turned on me and started to threaten me, started to threaten our Company, insulted our Company with many gestures of ill management and inefficiency and then di- rected to me abusive language and said, you know, that he MATIIACE PETROCHEMICAL COMPANY 21 quit." Mattiace then told Ronnie he was fired, and Ronnie left. After that, according to Lou Mattiace, the Subcom- mittee wanted to contact Modzelewski and tried to do so but were unable to reach him. They then had a vote which was a deadlock, and he broke the deadlock by voting to terminate Richie. Pierre Samsonoff, Respondents' platform supervisor, tes- tified that he was surprised by Lou Mattiace's wanting Ri- chie fired and the acceleration of the meeting. During the meeting Lou said Richie Vandenberg had cursed Peter Weekes about a trip. Weekes said that Richie told him not to take the load, that if he did, he would be a "scum bag." Ronnie got mad and cursed at Weekes, and when Lou Mattiace told him to cool down, Ronnie's termperature was so far up that he could not do so and cursed at Lou Mattiace who then told Ronnie he was fired for cursing. After he was fired, Otto tried to cool Ronnie down, saying that if he apologized he might get his job back, but Ronnie said that he did not give a damn, that he had been fired and that the business stank. Some of the others at the meet- ing said they would do the same thing if someone was trying to fire their brother, but Lou Mattiace said that he did not want to hear about it, that Ronnie was fired and that was that. Samsonoff stated specifically that there were no threats made to Lou Mattiace and that the meeting should not have been held without Richie Vandenberg present. Asked about the language. Samsonoff said that was the way that he had learned English, that the yard language consisted of vulgarisms and it was almost a sign of affec- tion among the employees to call one another a "scum bag," that it was just like saying good morning. Meek said that at the subcommittee meeting he told them what Weekes told him and that he did not hear any- thing between Weekes and Richie Vandenberg or Modze- lewski. He reverses the order of "you're fired-! quit" in regard to Ronnie but says that there were words between Ronnie and Peter Weekes. He knew Richie Vandenberg had talked about the Union and was in favor of bringing the Union into the plant. Meek also agreed that Richie Vandenberg had said that Sulka or Peter Weekes could take his truck if Meek wanted to send it out early. Meek stai.ed that when Weekes came in and told him that Richie Vandenberg and Modzelewski had verbally abused him and called him names that he had spoken to Weekes previ- ously and told him that he was not going to get the Cleve- land trip. Billy Mattiace was at the subcommittee meeting and said that Ronnie used some rough language to Weekes. As to why it was so urgent to discharge Richie Vandenberg. Billy Mattiace said that Lou figured Richie had no right to degrade another fellow worker but that he really knew of no reason why the subcommtttee meeting could not have waited until Richie returned from his trip. Billy also stated that at the meeting Lou Mattiace told Ronnie not to get hot, that it involved his brother and that Ronnie asked to have the meeting postponed until his brother could be there. Peter Weekes testified that at the subcommitteee meet- ing he told them about Richie's using crazy. vulgar lan- guage but did not say that any threat had been made to him. He said that Ronnie got mad and satd that he would cut and kill him. At the meeting they were told by Lou Mattiace that Richie was coming back empty from Cleve- land, and Ronnie objected to the meeting being held with- out Richie present. No satisfactory explanation was offered as to why the meeting could not have been held as originally scheduled so that Richie Vandenberg could be there to face the charges brought against him. The only thing that seems to be relied on by Respondents is Lou Mattiace's fear of some violence. This fear can only have been self-gen~rated by Lou Mattiace, since no one else testified to any threats or violence which in any way had anything to do with Richie Vandenberg. In the same manner, Lou Mattiace's instruc- tions to Billy Mattiace and Russell Meek following the meeting to go out and intercept Richie Vandenberg on his way in and fire him on sight was occasioned by Lou Mattiace's "fear." He testified: I was concerned that Richie Vandenberg had a tre- mendous amount of anger in him, destruction motiva- tion within himself towards our company, possibly our equipment. Explaining further why he so instructed Meek and Billy, he said: My action was precipitated on the feeling that Richie Vandenberg had been very destructive with his discus- sion with Peter Weekes. His orders were not followed by Billy or Meek, who al- lowed Vandenberg to bring the truck to the terminal. In regard to Ronnie Vandenberg, I credit Vandenberg and Respondents' witnesses, Supervisor Samsonoff and employee Snyder. that Lou Mattiace discharged Ronnie Vandenberg. Eddie Snyder, who was a member of the Sub- committee, said that Ronnie was mad but had a right to be mad about what was going on, since they had called a meeting in Richie's absence and were trymg to fire Richie for no reason that they could see. Snyder said that the story Peter Weekes gave was that Richie did not want to leave right away after having worked all day and said something to the effect that if they had a union that would not happen and they would not have double loads. Snyder said he knew that a union was in the air at that time. When Richie Vandenberg entered the office about 2 a.m. on November 18, he asked Billy Mattiace, seeing him there that late at night, whether he had been evicted. Billy replied that he had not but, after giving Richie time to complete his paperwork, told Richie that he was being evicted. When he asked what Billy meant, Billy said that the Subcommittee had a meeting and Richie did not work there anymore, he had been evicted. He asked what for, and Billy said for refusing to take the load to Cleveland and what you said about the Union to Peter Weekes. Ri- chie told Billy Mattiace that he could not believe it. Respondents' supervisor, Russell Meek, corroborated Richie's testimony, saying that when Richie asked about his work for the next day, Billy Mattiace told him to come back and clean out his truck, that he had been evicted. Richie asked if that meant fired and Billy said yes. When 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he wanted to know why, Billy told him it was because of the trouble with the load and about the story that had to be told about a truck breakdown and getting the load to Cleveland and what had happened with the Subcommittee and that the Subcommittee had decided to discharge him. When questioned further about the main reason for the discharge being that the load was not delivered on time. Meek said he did not know exactly what Billy said and that could be the reason. When shown his affidavit, Meek re- called that the most important thing Billy mentioned as the rea~on for discharge was because the load was late and not on time, and not because of what was said to Weekes or the subcommittee meeting. Billy Mattiace said he told Richie that he was being dis- charged because he deprived Peter Weekes of making extra money and for using vulgar language to Weekes. When asked whether there was any mention of union activity, Billy said Richie mentioned the Union but Billy told him that was not the reason for the discharge. This testimony is contrary to the admission of Billy Mat- tiace that he never considered sending Weekes on the run because it was Richie Vandenberg's run to begin with. Since Billy had decided that Weekes would not go and that it was Richie Vandenberg's run, nothing that Vandenberg did could have interfered with Weekes earning money or having the opportunity to take the trip. In regard to the statement that Richie was discharged for using vulgar lan- guage, it was clear from the testimony of General Counsel and Respondents' witnesses that vulgar langu!lge was the norm on the yard. As Modzelewski said, these men were truckdrivers, not hairdressers. Billy Mattiace admitted that everybody knew that Ri- chie Vandenberg was in the Union and that he had heard Richie say a number of times that if they had a union they would get more pay or this or the other thing would get straightened out. He further admitted that he knew Richie Vandenberg was trying to organize a union at the yard and had seen a union pamphlet. Vandenberg testified to Billy's questioning him about the pamphlet, asking wh.:> brought it on the yard and passed it out, saying he thought Richie knew who did it. The admission by one of Respondents' owners and sup- ervisors that he knew Richie Vandenberg was atternpting to organize a union is imputable to the other owners, offi- cers, and supervisors. Additionally, it is clear that Richie Vandenberg's efforts to have the drivers maintain a uniform policy of not want- ing to take double runs, which amounted to concerted ac- tivity, was offensive to Lou Mattiace, who so indicated by his language converning a driver causing inconvenience to a customer. Adding that and union activity together was sufficient for Lou Mattiace to discharge Richie Vanden- berg. and I conclude and find that such discharge was in violation of Section 8(a)(l) and (3) of the Act. While there is no admission by any of Respondents' sup- ervisors or agents that they knew Ronnie Vandenberg was seeking to organize a union, the fact that this was a small company, that Ronnie and Richie are brothers, that the subcommittee meeting was accelerated right after Ronnie and Richie had signed union authorization cards. along with the way in which the meeting was run and the overall timing, are sufficient, I find, to impute that Respondents knew Ronnie Vandenberg was also active for the Union. Certainly, Ronnie Vandenberg's efforts in this subcommit- tee meeting to defend his brother and seek to have the meeting postponed were concerted activities within the meaning of the Act. Any vulgar language used in the cir- cumstances was brought about by the circumstances and was not language that would have shocked those present, who were used to it. An opportunity presented itself to Lou Mattiace to rid himself of both brothers, and he took the opportunity, discharging Ronnie Vandenberg as well as Ri- chie. I conclude and find that Respondents' actions in dis- charging Ronnie Vandenberg violated Section 8(a)(l) and (3) of the Act. Richie and Ronnie Vandenberg made independent visits to Lou Mattiace after their discharges, apologized, and sought their jobs baC"k. Lou Mattiace refused. After Richie Vandenberg's discharge, Supervisor Samsonoff asked Modzelewski about the conversation between Richie and Weekes, and, according to Samsonoff, Modzelewski, who was upset about the discharge, said that he did not know anything about it. Such a denial coming after the dis- charges is entirely understandable. D. Subsequent Events and Britton's Discharge Shortly after the Vandenberg discharges, Local 821 Busi- ness Agent Steven Lollo began passing out literature and union authorization cards immediately outside Respon- dents' yard. Billy Mattiace observed the distribution and noted in a notebook which employees took the pamphlets and authorization cards and asked the employees to tum them over to him. Billy Mattiace said it was possible that he asked the drivers if they had received the first union pamphlet and that it was possible that he asked Sulka, Bil- lotti, and Modzelewski who distributed the union pam- phlet. Modzelewski testified that after the first pamphlet was distributed Billy Mattiace went around checking everybody's tire pressures and other things about the trucks and giving the drivers a hard time. He said that Billy also asked the drivers whether they had gotten pamphlets when Lollo was distributing them. He testified that Billy had a book he kept concerning the Union and was check- ing off each day whether the people got a pamphlet or authorization card. Billy's booklet was later produced and had columns as to whether a person got a union card, whether it was received outside or through the mail, and whether the employee kept the card or gave it to Billy. Modzelewski also testified that Russell Meek, at the time the pamphlet distribution was going on, warned the drivers that they had better watch their step or they might be re- placed by owner-operators. George Britton testified that after the pamphlets were placed in the trucks Billy Mattiace said that if he caught the guy who passed them out he was going to get bounced (fired) and asked Britton whether he had passed out the pamphlets. Britton said that when he got some literature from Lollo Billy Mattiace asked him what the guy was giving to him, and he responded union authorization cards and literature. Billy asked where it was, and Britton said it MATIIACE PETROCHEMICAL COMPANY 23 was in his car. Billy went to Britton's car, opened it, and took the materials. When Britton told Lollo about this con- fiscation, Lollo gave him some more, and Billy Mattiace asked for them, saying he was collecting them. Britton asked Mattiace why he should give them to him, and Billy asked if Britton wanted to keep his job. When Britton re- plied yes, Billy said, 'Then give me the cards," and Britton did so. Respondents' witness Snyder testified that Billy Matti- ace asked him who he thought would vote for a union and that he responded that was a ridiculous question and would not answer it. Billy told him that George Britton or somebody had told him that Snyder was the main man for the Union. Snyder responded that was ridiculous. Billy then mentioned a number of employees' names and asked whether this person or that would go for the Union. Snyder told Billy that he had been there 5 years and was not about to jeopardize his job by getting involved with the Union and have somebody come up with a reason to fire him. It is clear that Billy Mattiace on behalf of Respondents kept the activities of the Charging Party and the employees under surveillance, interrogated them concerning their re- ceipt of pamphlets and authorization cards and then con- fiscated them, interrogated the employees about union sen- timents and knowledge of who supported the Union. and threatened them with loss of jobs if they supported the Union. By these actions Respondents violated Section 8(a)(l) of the Act. About the first of December, Billy Mattiar.e called a meeting at a local restaurant at which he passed out blank slips of paper and told the drivers that he wanted them to indicate whether they wanted the Union or not and to give him their "ballots" in an envelope and he wouid turn them over to the union organizer. He gave out paper and enve- lopes to some drivers, such as Modzelewski, who could not attend the meeting and told them to mark yes or no and give it to him before the meeting. Billy Mattiace testified that he told the drivers that he wanted to get them together and give the union man a vote on whether they wanted a union or not. They were to vote what they wanted and put their "ballots" in envelopes. He said he told drivers who would not be at the meeting to write down what they wanted and put their "ballots·· in an envelope and admitted that he had an opportunity to look into them and see how they voted but said that he did not do so. This polling by Billy Mattiace did not come within the limits prescribed by the Board in that no guarantees against repercussions or that they were free to exercise their choice were given to any of the employees, nor was a valid reason or purpose given for this ballot. I find that under these conditions this polling violated Section 8(a)( I) of the Act. I further find and conclude that Russell Meek's statement to the drivers to watch their step or they might be replaced by operator-owners co~stituted a threat in vio- lation of Section 8(a)( I) of the Act. From the facts stated previously concerning the notifica- tion to the drivers concerning their benefits, the new uni- forms, and the wage increases given, I find that these bene- fits and promises of benefits, along w1th increased past sick leave benefits, were given or made by Respondents to in- duce the employees not to support the Union and so vio- lated Section 8(a)( I) of the Act. After these discharges and Respondents' 8(a)( I) activi- ties, union talk died down, and some time later Lollo stopped showing up outside of the yard. George Britton was still working in the yard following his October demo- tion and having problems with his arm but continually sought to be reinstated as a driver. In September Britton, a Petro Chern driver, had a bad accident on the Loag Island Expressway. He testified that earher in the summer the brakes on that particular trailer had been fixed but then locked up and started smoking. He was instructed to return the trailer to the company which did the brake work. They informed Britton that a defective "spitter" valve on the air tank had caused the air to leak out and the brakes to lock but that they had temporarily fixed it up so that he could drive it. Britton called the yard and was told to bring the trailer back and the Respondents' mechanics would install a new valve. Britton was later told that the trailer was fixed. In September. while driving on a slippery roadway, Brit- ton heard a snap and found that his trailer was swinging around him in the left lane "like a whip" and forced the tractor into a wall. The accident injured his arm and gave him a number of bruises, and he was ambulanced to a hospital. After he got home, he received a call from Peter Mattiace, who asked him to come back to the accident site. When he arrived the tractor had been towed away, but the trailer was there with its brakes locked. Britton told Peter and Billv Mattiace what happened. He testified that they tried to get him to say that the throttle had stuck but that he would not do so. It was indicated that if that had been the cause of the accident it would have been covered by work another firm had done on the truck that summer. The tow driver on the scene said the air tank would not hold pressure and therefore the trailer's brakes would not re- lease. The valve fitting had to be plugged before the trailer could be moved, because the valve was missing. Later, Re- spondents' mechanics signed a document that the valve was missing. Britton testified he checked the mechanics' records and found that the defective valve had never been replaced. On October 12. a subcommittee meeting was held, and Lou and Billy Mattiace gave their versions of the accident, stating that Britton was careless and going too fast for the conditions. Britton was called into the meeting and told it would be one of three things. he would be fired, reinstated to his driving job, or put in the yard. Britton complained that the accident was not his fault but had been caused by the brakes locking on slippery pavement. The Subcommit- tee then met without Britton and was told by Lou Mattiace that he did not want anybody wrecking his equipment (a Petro Chern tractor and trailer) and that if the Subcommit- tee voted to put Britton back on the road the insurance company would cancel his insurance. Under this pressure (knowing Respondents could not operate without insur- ance) the Subcommittee voted to put Britton in a yard job. Britton was told of the decision within a few days and checked with the msurance company after being told by Lou Matllace that the msurance company would not let 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him drive. He testified that the insurance company said this was false. Britton continued to have physical problems from the accident but worked in the yard, having received a pay cut from about $400 per week to $270. In February a driver opening occurred, and one of the yard employees was asked to fill it. After driving for one day, the yard employee said he did not want to drive any more, and Billy Mattiace offered the drum truck driving job to George Britton. Britton said that he wanted the job but that his arm still bothered him and he was somewhat shaky from the accident and would "walk it around," which term Billy used and understood to mean that George would take it easy on the job. Billy Mattiace indicated to Britton by a shrug of his shoulders that that was all right with him. Britton began driving a drum truck and nothing was said about insurance. Britton testified that he had a number of troubles with the truck, since it was not maintained properly. He testified about breakdowns, losing oil compression, a lift gate be- coming inoperable, and being sent out with practically bald tires and having them blow, noting that all these prob- lems with the vehicle kept him from working efficiently and quickly and prolonged his time on the road. He got to the point that he told one of the mechanics that if they wanted to send him out and have the truck break down, he would go ahead and do it because they would be paying him overtime while he was sitting there doing nothing. During the period between February and May, he stat- ed, he hit the fender of one car and reported it to Billy Mattiace. He told Billy that nobody was in the car at the time, that the man was not around but that Britton had talked to a man in a diner across the street who knew whose car it was and asked the man in the diner to leave the guy a message that he was leaving a note on the car. Billy Mattiace asked him if he could just take off and for- get about it, but he refused to do so. Some time later Britton was questioned by Billy about whether he hit a car and left the scene of the accident, that somebody had called in about such an occurrence. When they inquired further into it, they found that the complain- ant was talking about a truck with a different name on it, ano Billy told Britton to forget about it. Toward the middle of May, with Lollo no longer around, the men started talking about union and the Teamsters was mentioned. A driver from Roadway Express dropped by and talked to Britton at the yard about it. Britton contact- ed a Local 707 organizer named Alimena and arranged to meet him at a diner in Glen Cove, Long Island, on the evening of May 16. A week or two before this, Britton had reinjured his arm and, when he called in to see about relief, was told that Billy was in conference with Lou Mattiace and could not be disturbed. Britton went to the yard, checked out, and was leaving with compensation papers on his way to the doctor when he got a message to stop by and see Lou Mattiace. Lou Mattiace took the compensation papers away from him, saying that Respondents would lose their insurance and for Britton to go to the doctor and he would pay for it. The doctor asked Britton for the compensation papers, and he said Lou Mattiace had taken them from him. The doctor told him that was not proper, and Britton then went to the compensation lawyer, who said Respon- dents could not do that and filed the compensation papers for him. Lou Mattiace later talked to Britton about it and bawled him out, saying he should not have done that be- hind his back after he specifically told him not to file com- pensation papers. After Mattiace had told him he expected him back at a certain time, Britton reported back to work even though his arm had not healed. Britton told the doc- tor he was out of sick time and had to go back to work. Britton returned to work but hurt his arm again on May 16, the same day that he was supposed to meet Alimena in the evening. Since he was not sure that he would be able to meet Alimena, he called John Modzelewski and asked him to meet Alimena at the appointed meeting place at 4 p.m. When he found out that he could not see the doctor until that evening, Brittor went to the meeting, and both he and Modzelewski signed union authorization cards for Alimena and took other cards to be distributed. When they left Al- imena, they went to the yard for a scheduled meeting and saw Joseph Billotti talking to Billy and Lou Mattiace and remarked on it. That morning Billotti had asked Britton to stop for coffee for the first time since they had known one another. They met and talked and the subject of union came up. According to Britton, Billotti said that if the Teamsters came in there, he would sign up right away. Britton told Billotti that they had the Teamsters coming down there. Joseph Billotti had not worked for Respondents very long, and his wife worked in the office for Lou Mattiace. Billotti testified that he stopped for coffee with Britton that morning and they talked about a union. He said Britton told him he had a sheet going around for the Union that was at Roadway Express but that Billotti said he was not really interested in it and denie~ saying he would sign a union card for the Teamsters. Billotti remembered, after being shown his affidavit, that he attended the meeting at Respondents that evening with the other drivers and ad- mitted he talked to Lou Mattiace that afternoon or eve- ning. Billotti said he asked Lou Mattiace what would hap- pen if a union came in and mentioned to him that Britton had a sheet going around and whoever did not sign the sheet would not be able to work and that Modzelewski and Snyder had signed for the Union. Billotti admitted that he was the one who initiated the meeting and asked Britton to have coffee with him that morning, although they had nev- er done so before or since. Respondents' meeting dealt with planned expansion, and there was some mention of putting on owner-operators and getting rid of below par people. Britton left the meet- ing early in order to see the doctor. Britton worked the following day, May 17, and when he got to the yard, he asked a mechanic to tighten up a truck mirror. The mechanic told him that it was his last day as a mechanic. that he was going to start driving Joe Billotti's truck. Britton saw Billotti and asked Billotti what he was going to be driving. Billotti laughed and said he was going to be driving Britton's truck. Britton asked what he was going to drive, and Billotti said he did not know. Britton went into the office and looked at the route sheets but did not see his name. Billy Mattiace, after not answering him MATTIACE PETROCHEMICAL COMPANY 25 initially, later came outside and said he wanted to talk to him. Billy handed Britton his check and said they did not need him anymore, that he was "accident prone." Britton asked, "What do you Mean? Is it my fault the brakes broke or somebody ran a car underneath the truck?" Billy repeat- ed that he was "accident prone." When Britton asked if he was talking about his arm or the trucks or what, Billy said he was talking about Britton's arm. As he left, Britton told two other employees that Billy said he was firing him for hurting his arm. A few days later, Britton called back and spoke to Billy about his job, and Billy said he had been fired because he was "accident prone" with the trucks. Respondents referred to a number of accidents that Brit- ton had, going back to the one on the expressway the previ- ous September when Britton, by the Subcommittee's ac- tion, had been relegated to the yard. Other accidents were mentioned, one which occurred when he was inside a building and a car ran into his truck on the street and a second one on the expressway when a car ran under the rear of his truck. None of these accidents were in any way Britton's fault. Never, prior to this time, had anything been said to Britton about being "accident prone." In addition to the Company making this claim, it also produced some route sheets, claiming that Britton was tak- ing too much time to complete his route. They said they gave his route sheets to employee Eddie Snyder, who had 5 years' experience running the same routes, and that Snyder indicated to Billy that running the routes should not have taken quite as long as it did for George Britton. When he was questioned about it, Snyder said that his estimate was based on his 5 years of experience on a normal day with normal traffic patterns. He did not consider Britton's lesser experience or unfamiliarity with the routes or any acci- dents, truck breakdowns, or traffic jams and said such events could alter the time schedules. Although Billy Mattiace indicated that he sought this comparison several weeks prior to discharging Britton, it is clear from the dates of the route sheets that the comparison was made of trips close to the discharge date; but there is nothing to indicate whether this comparison was made be- fore or after Britton was discharged. Britton had never been told that he was taking too much time in making his runs or that he was piling up too much overtime. In tallc.ing about the discharge of Britton, Lou Mattiace said that he reviewed Britton's file which contained infor- mation on prior accidents and that, after reviewing that file, he decided to discharge Britton. The file, which was produced later, consists of a half sheet of notebook paper.2 This file mentions "back and side of trailer" hit, and it was explained that this happened in the yard when a yard em- ployee moved the trailer. The hit-and-run accident was done by a different truck, and Billy acknowledged that to Britton. Britton admitted the 3/14 accident (supra). 2 The file is reproduced below as written: (3/11177}--Battery! George destroyed Fl6 Battery. Did not remove box properly. Battery shorted out on clip on tailgate plug. (3110/77}--Gave customer hard t1me. (3/15177)-8-36 hit back and side of tra1ler. (3/14/77}--Had accent (SicJ With tra1ler hll from f•nder of car (3/29)-Had accent (sic] 3109/77 (HI! Run) between Sm1th & Court St. In summary, this file shows one chargeable accident in March for this May 17 discharge. Other notations from this book reveal more accidents with other drivers during the same period. but the accuracy of the entries is questionable in the light of those made for Britton. After first not remembering a conversation with Billotti concerning Britton wherein they discussed the Union, Lou Mattiace recalled that Billotti said that Britton recom- mended he sign a union card and that Britton had union cards signed by sev~ral drivers. Despite this, Lou Mattiace said he decided to terminate Britton 3 or 4 days after re- viewing the "file" and before he learned of Britton's union activity. This appears very unlikely, since Billotti told him of Britton's union activity the day before he discharged Britton. Lou Mattiace's te~timony on the reasons for discharging Britton cannot be nedited in the light of the facts sur- rounding the termination. The animus. the Vandenberg discharges, the 8(a)( I) activities, the timing of the knowl- edge that Britton was trying to bring in Local 707 after Local 821 had apparently faded, and the absence of any warnings. as well as the transparency of the discharge rea- sons. make it clear that Respondents violated Section 8(a)(3) and (I) by the discharge of George Britton, and I so find and conclude. Ill THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in seciton II and therein found to constitute unfair labor practices in viola- tion of Section 8(a)( I), (2), and (3) of the Act, occurring in connection with Respondents business operations, as set forth in section I. have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondents engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents discharged Ronald Vandenberg and Richard Vandenberg on November 17 and 18, 1976, respectively. and George Britton on May 17, 1977, and did not thereafter offer them reinstatement, I recommend that Respondents offer them immediate and full reinstatement to their former positions or, if such posi- tions have been abolished, to any substantially similar po- sition, without prejudice to their seniority or other rights and privileges, and that Respondents make them whole for any loss of pay they may have suffered by reason of Re- spondents discriminatory actions by payment to them of a sum equal to that which each would have normally re- ceived as wages from the dates of their terminations until Respondents offer them reinstatement, less any net earn- ings for the interim. Backpay is to be computed on a quar- terly basis in t:!e manner prescribed in F W. Woo/l'.'orth Company, 90 NLRB 289 ( 1950). with interest as set forth in 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Florida Steel Corporation, 231 NLRB 651 (1977).3 I further recommend that Respondents make available to the Board, upon request, payroll and other records in order to facili- tate checking the amounts of backpay due them and other rights they might be entitled to receive. CoNCLUSIONs oF LAw I. Respondents constitute an integrated business enter- prise and an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondents violated Section 8(a)(3) and (I) of the Act by the discriminatory terminations of Richard and Ronald Vandenberg and George Britton because they en- gaged in union and concerted activities among themselves and with other employees for the purposes of mutual aid and protection. 3. Respondents violated Section 8(a)(2) and (I) of the Act by forming, dominating, assisting, interfering with, and supporting the Subcommittee. 4. Respondents violated Section 8(a)(l) of the Act by: (a) Unlawfully interrogating employees about their union activities, sentiments, and knowledge of the union sentiments and activities of other employees. (b) Threatening employees that unless employees ceased their union activities they could lose their jobs. (c) Promising wage increases and other benefits and granting benefits to induce employees to withdraw their support for the Union. (d) Surveilling employee activities and the meetings of union agents and employees and confiscating union litera- ture and authorization cards. (e) Conducting an unlawful poll of employees' union sentiments to dissuade further union organization. (f) Exercising markedly closer supervision over employ- ees during periods of union activity to dissuade employees from supporting the Union. ORDER 4 Upon the basis of the foregoing findings of fact and con- clusions of law and the entire record in this case considered as a whole, I hereby issue the following recommenried: Mattiace Petrochemical Company, a Division of Matti- ace Industries, Inc., M & M Drum Company, Inc.; and Petro Chemical Haulers Co., successors, and assigns, shall: I. Cease and desist from: (a) Discriminatorily terminating employees because they engage in union and concerted activities among them- selves and with other employees for their mutual aid and protection. (b) Forming, dominating, assisting, interfering with, and supporting the Subcommittee. Nothing in this Order will require Respondents to vary or abandon any benefits granted to the employees through the medium of the Sub- committee. (c) Unlawfully interrogating employees about their union activities, sentiments, and knowledge of the union sentiments and activities of other employees. (d) Threatening employees that unless employees cease their union activities they could lose their jobs. (e) Promising wage increases and other benefits and granting benefits to induce employees to withdraw their support for the Union. (f) Surveilling employee activities and the meetings of union agents and employees and confiscating union litera- ture and authorization cards. (g) Conducting an unalwful poll of employel!s' union sentiments to dissuade further union organization. (h) Exercising markedly closer supervision over employ- ees during periods of union activity to dissuade employees from supporting the Union. (i) In the same cr any other manner interfering with, restraining, or coerc~ng employees in the exercise of rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action. which is neces- sary to effectuate the policies of the Act: (a) Reinstate and make whole Richard and Ronald Vandenberg and George Britton for the loss of pay they suffered by reason of Respondents discrimination against them in accordance with the recommendation set forth in the section of this Decision entitled "The Remedy." (b) Withdraw and withhold recognition from and com- pletely disestablish the Subcommittee or any successor thereto as the representative of the employees for the pur- pose of collective bargaining, including grievance settle- ments. (c) Post at their offices, including but not limited to the office and mechanic shop, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms pro- vided by the Regional Director for Region 29, shall, after being duly signed by an authori7ed representative of Re- spondents, be posted by Respondents immediately upon receipt thereof, and maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. 1 See. generally. Isis Plumbing & Hearing Co. 138 NLRB 716 (1962) • In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall. as prov1ded m Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become 1ts findings. conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. 'In the event that this Order is enforced b)' a judgment of a United States Court of Appeals. the words m the notice reading "Posted by Order of the National Labor RelatiOns Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the Natwnal Labor Relations Board." MATIIACE PETROCHEMICAL COMPANY 27 APPENDIX NoncE To EMPLOYEEs PosTED BY ORDER OF THE NATIONAL LABOR RELATIONs BoARD An Agency of the United States Government Following a hearing in which all parties participated and offered evidence, it has been found that we violated the act. We have been ordered to post this notice and to abide by what we say in this notice. WE WILL NOT fire employees for engaging in union and concerted activities among themselves and with other employees for their mutual aid and protection. WE WILL NOT unlawfully interrogate our employees about their union activities or sentiments or their knowledge of the union activities or sentiments of other employees. WE WILL NOT threaten our employees with loss of work or closure of the plant to inhibit their union ac- tivities. WE WILL NOT promise wage increases or other bene- fits nor grant benefits for the purpose of inducing em- ployees to withdraw their support for a union. WE WILL NOT surveil the meetings of union agents and employees or employees' union activities nor con- fiscate union literature or authorization cards. WE WILL NOT unlawfully poll our employees as to their union sentiments. WE WILL NOT exercise markedly closer supervision over employees to dissuade them from supporting a unwn. WE Will ~oT in the same or any other manner inter- fere with. restrain, or coerce employees in the exercise of rights guaranteed under Section 7 of the Act. WE WILL offer Richard Vandenberg. Ronald Van- denberg. and George Britton immediate and full rein- statement to their former jobs and reimburse them for the pay they lost as a result of our action. WE WILL withdraw and withhold recognition from and completely disestablish the Subcommittee, or any successor thereto, as a representative of the employ- ees. In doing so, wE WILL NOT vary or abandon benefits granted to our ~mployees through the medium of the Subcommittee. Our employees are free to become or remain members of Local 821. Manufacturing. Retail, Service. Clerical & Mis- cellaneous Employees. or Highway and Local Motor Freight Drivers. Local 707 of the Teamsters, or any other union they desire. MATIIAcE PETROCHEMICAL CoMPANY. A DIVISION OF MATIIACE INDUSTRIES M & M DRL"M CoMPANY. INc PETRO CHEMICAL HAULERS Co. INc