Consolidated Ventilation and Duct Co., Inc.

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1946 in raising the Christmas checks from $5 to $10. The evidence shows that Re- spondent is perfectly willing to bargain with the Union with respect to the Christmas check for the future . Thus it is clear that the Union in the instant case desires the Board to make an award payable by Respondent to the employees of a sum of money which the Union up until the present time has never been interested in bargaining about. Thus it is unnecessary to decide that the Christmas checks are "gifts" as distinguished from a "bonus." I do add, however, that the evidence here tends to show these Christmas checks are "bona fide" gifts as the circuit discussed in the Niles case, supra. The Respondent has always considered them to have been gifts. Accordingly, I will recommend that the complaint be dismissed in its entirety. Even if it were determined that the unilateral termination of the Christmas checks were a refusal to bargain in good faith, I would not order Respondent to pay the 1961 and 1962 checks as urged by the General Counsel. A "make whole" remedy is usually associated with a violation of Section 8(a)(3) of the Act wherein a Re- spondent would discriminate against an employee with respect to his terms or con- ditions of employment for purposes of discouraging or encouraging membership in a labor organization. As this record is wholly devoid of any evidence or any motive of such discrimination , such a "reimbursement" remedy would not be recommended. The policies of the Act will be and are being effectuated by future bargaining. All evidence points to a willingness to do this. CONCLUSIONS OF LAW 1. Respondent General Telephone Company of Florida is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. System Council T-2, International Brotherhood of Electrical Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to establish by the preponderance of the evi- dence that Respondent has refused to bargain in good faith and , accordingly, there is no violation of Section 8(a) (5) and (1) of the Act. 4. There is no evidence of an independent violation of Section 8 (a) (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. Consolidated Ventilation and Duct Co., Inc. and Joseph A. Cinanni Local Union No. 28, Sheet Metal Workers International Asso- ciation, AFL-CIO and Joseph A. Cinanni. Cases Nos. 2-CA- 9068 and 2-CB-36937. September 3, 1963 DECISION AND ORDER On May 28, 1963, Trial Examiner Jerry B. Stone issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor prac*;ces and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the General Counsel and the Respondent Union filed exceptions to the Intermediate Report. The Respondent Em- ployer also filed a brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Members Leedom, Fanning, and Brown]. 144 NLRB No. 41. CONSOLIDATED VENTILATION AND DUCT CO., INC. 325 The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Intermediate Report and the ex- ceptions, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the modifications noted herein. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : Subparagraph B, 1(b) of the Recommended Order is changed to read as follows : (b) In any other manner restraining or coercing employees of Consolidated Ventilation and Duct Co., Inc., in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. Appendix B, paragraph 4 is amended by the insertion of the words "of Consolidated Ventilation and Duct Co., Inc." after the word "employees" and before the word "in." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon separate charges filed on January 16, 1963, by Joseph A. Cinanni , and after a consolidation of said charges , the General Counsel of the National Labor Relations Board, by the Regional Director for the Second Region (New York, New York), issued his complaint dated February 14, 1963, against Consolidated Ventilation and Duct Co., Inc. (herein called Respondent Company or Company ), and Local Union No. 28, Sheet Metal Workers International Association, AFL-CIO (herein called Respondent Union or Local 28). In substance the complaint (as amended at the hearing) alleges that the Respondent Union demanded that the Respondent Company discharge employee Cinanni because he was not a member of the Union and that the Respondent Company discharged Cinanni for said reasons; that Respondent Union therefore violated Section 8(b)(1)(A ) and (2 ) of the Act and that Respond- ent Company violated Section 8 (a)(1) and ( 3) of the Act; and that such conduct affected and was affecting commerce within the meaning of Section 2(6) and (7) of the Act. Respondents' answers admit some of the facts pleaded in the complaint, but deny the commission of any unfair labor practices. Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B. Stone at New York, New York, on March 18 and 19 , 1963. All parties were repre- sented at and participated in the hearing and were afforded the right to present evi- dence, to examine and cross-examine witnesses, to offer oral arguments and to file briefs. All parties filed briefs and they have been considered. Upon the entire record in this case and from my observation of the witnesses, the following findings of fact, conclusions of law, and recommendations are made.' 'All credibility resolutions are based in whole or in part on my observation of the wit- nesses' demeanor. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER It is found that at all times material to this proceeding Consolidated Ventilation and Duct Co., Inc., is a New York corporation, engaged in the manufacture, sale, and distribution of sheet metal ducts, enclosures , and related products for air- conditioning and heating systems, in providing and performing at its Jackson Heights plant and at various other locations and places of business , the service of installation of ducts and enclosures, and performing related services. Respondent Company during a representative 12-month period manufactures , sells, and distributes at its plant products , and performs services at said plant and else- where of a combined value in excess of $500,000, of which in excess of $50,000 are derived from said products shipped from said plant in interstate commerce directly to States of the United States other than New York State , and from services performed in, and for various enterprises located in States other than New York State I find that Respondent Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act, and that in connection with the activities described in the following sections of this report , it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED Local Union No. 28 , Sheet Metal Workers International Association, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Preliminary Issue Supervisory status of Fritz 2 The complaint alleged and the answers denied that Harold Fritz was a supervisor of the Company within the meaning of Section 2(11) of the Act. Harold Fritz' job designation is that of shop foreman of the Company. Fritz has no authority to hire and to fire employees . Fritz determines which employees are capable of doing various jobs, allocates and assigns work to all of the shop employees , checks and sees that the work is performed correctly, and sees that the finished work is shipped on the trucks. He discusses the abilities of the shop employees with President Yutan. Fritz does not customarily work as a journeyman although he is a fully qualified journeyman sheet metal worker. Fritz receives approximately $ 60 more in wages per week than the Company's sheet metal workers. He receives 1 hour overtime per day at double time rates for preparing work for the next day. Yutan testified that he (Yutan) was the only supervisor for the Company. In answer to a question whether he designated someone to take charge when he was gone , Yutan stated that Fritz took care of the shop, that he (Fritz) knew what Yutan wanted, that Hanson knew enough about the outside, that if there were a problem he had a son in the business. Around January 1, 1963, there were 16 employees in the shop, and 19 outside employees . Based upon the foregoing I find that Fritz exercises independent judgment in the responsible direction of the shop employees , and is a supervisor within the meaning of Section 2 (11) of the Act. Miscellaneous Background The referral and employment of Cinanni In early 1961 the Company had need for a welder possessing skill in heliarc welding 3 Erwin Yutan, president of the Company, contacted Local 28 and requested that a welder possessing skill in heliarc welding be referred for employment? Local 28 referred Joseph A. Cinanni, who was not a member of Local 28, to the Company for employment.5 2 The facts of Fritz' supervisory status are based on a composite of the credited testi- mony of Yutan , Fritz, and Cinanni. 3 Based on Yutan's credited testimony. 4 Based on Yutan's credited testimony. 5 Based on Cinanni's credited testimony . It is undisputed that Cinanni had in the past worked for employers under contract with Local 28, and had been referred to other jobs by Local 28 . The General Counsel does not contend that Local 28 or the Company's past con- CONSOLIDATED VENTILATION AND DUCT CO., INC. 327 Joseph A. Cinanni was employed by the Company on or about March 9, 1961, and continued in employment at the Company until January 4, 1963, when he was laid off.6 Cinanni's skills and attempts to become a member of Local 28 Cinanni made various attempts to become a member of Local 28 commencing in 1956 and to the date of the hearing on this matter, but Local 28 refused to accept him into membership.? Cinanni possessed skills as a general welder and with special' aptitude as a heliarc welder.8 Cinanni, however, did not possess the skills and training of a general journeyman sheet metal worker insofar as skills relating to other than welding work .9 Cinanni's continuous employment Between Cinanni's employment in 1961 and his layoff on January 4, 1963, there had been many layoffs by the Company because of economic reasons.1° Cinanni, when employees with longer periods of employment service had been laid off, had been retained through all layoffs from March 9, 1961, through January 3, 1963.11 During the last 6 months of 1962 the Company had employed more employees than it economically needed. During this period the Company had had no need for heliarc welding but had retained Cinanni for possible heliarc jobs. Cinanni was the one welder that the Company had who possessed heliarc welding skills.12 The decision to lay off employees About December 15, 1962, Erwin Yutan, president of the Company, decided that because of admitted economic reasons he must lay off some employees after the first of the new year.13 Respondent Company implemented its layoff plans by laying off three employees on January 3, 1963. Two of the employees laid off on January 3, 1963, were members of Local 28 and one employee was a permit man. (Permit men are either nonunion employees or nonmembers of Local 28. In the instant case the permit man was a member of a sister local of Local 28.)14 The two employees laid off on January 3, 1963, who were members of Local 28 contacted Desmond Costello, business agent of Local 28, and informed him of the layoff, and requested assistance in being placed at work.15 Events of January 4, 1963 The Costello-Fritz conversation 16 Desmond Costello, business agent of Local 28, went to the Company's shop around 9 a.m. on January 4, 1963. Costello, when near Fritz' office, motioned to Blumlein, duct in regard to its labor practices reveals animus The Respondent's witnesses Yutan, Costello, and Farrell testified in effect that Local 28 had not in the past attempted to ob- tain discriminatory hiring or firings To the extent that this testimony is susceptible of an inference that the use of permit men or of Cinanni had not been discussed prior to January 4, 1963, I do not so credit in view of the credited facts of this case and a con- sideration of all witnesses' demeanor while testifying. 0 Based on Cinanni's credited testimony. 7 Based on Cinanni's credited testimony. Based on a composite of Cinanni and Yutan's credited testimony e Based on a composite of Cinanni and Yutan's credited testimony. The contractual pro- visions relating to the employment of journeymen sheet metal workers is not in issue The Respondents contend that Local 28 did not demand that Cinanni be laid off, and that the selection of employees for layoff were made by the Company on a nondiscriminatory basis ii Based on Yutan's credited testimony and Respondent Company's Exhibit No. 2. u Based on Yutan's credited testimony and Respondent Company's Exhibit No. 2. iz Based on Yutan's credited testimony. io Based on Yutan's credited testimony. is Based on Yutan's credited testimony and Respondent Company's Exhibit No 2. is Based on Costello's credited testimony. ii Based on a composite of the credited testimony of Cinanni, Fritz, and Costello, I do not credit Fritz' and Costello's testimony to the effect that Cinanni was not there, nor to the effect that Costello only asked about the employing of the Local 28 men laid off on Janu- ary 3, 1963. As to the conflict In testimony of Cinanni and Fritz, and Costello, I credit Cinanni's testimony. Cinanni's demeanor as a witness appeared frank and honest. His testimony was in detail and he appeared to be attempting to tell the whole story as he 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 28's shop steward, and the two met Fritz just outside the latter's office door. Cinanni, who had been discussing work with Fritz, was in the immediate vicinity of Costello, Fritz, and Blumlein. Costello told Fritz that if the two Local 28 men who had been laid off were not hired, the Company would have to get rid of every permit man by nighttime; that if not, he (Costello) would pull all men working in the shop off the job by 7 o'clock Monday morning. Just before leaving, Costello pointed at Cinanni and stated that even the heliarc man has to go. After Costello left, Cinanni asked Foreman Fritz what was going to happen.17 Fritz replied that they would have to wait for Mr. Yutan (president of the Company) to return from Connecticut. Around 2:30 p.m. Cinanni saw Erwin Yutan, president of the Company, talking to Mell Farrell, president of Local 28 . 18 Later on, around 5 minutes to 3 p.m., Cinanni went back to Fritz and asked him what was going to happen. Foreman Fritz told Cinanni 19 that he had to lay him off. Around 3 p.m., Fritz gave Cmanni his pay and told him that he was sorry, that the Union had pulled him out. Cinanni left to pack his tools. On the way to pack his tools, Cinanni saw President Erwin Yutan. Cinanni asked Yutan why he was being laid off. Yutan told him that he was being laid off because the Union "wanted the permit men out." 20 Cinanni left to pack his tools. After packing his tools, Cinanni again went to see President Yutan in the sketch- ing room. Cinanni told Yutan that it was unfair to lay him off, that he was going to complain to the National Labor Relations Board.21 Both Yutan and Cinanni were in an excited condition. Yutan told Cinanni that the latter had seen him argue with Farrell over the matter of Cinanni's layoff. Yutan stated that other shops could lay off employees without having trouble, but when he did, trouble started. Yutan told Cinanni that Local 28 had told him in the past that they would not object to Cinanni's employment, that last year Local 28 had promised knew it. Fritz' demeanor, on the other hand, did not appear to be frank. He appeared to be attempting to convey in his testimony, at first, that only he and Costello were present. Later he admitted that Blumlein, Local 28's steward, was also present. Costello's de- meanor, while more impressive than Fritz', did not lend to his testimony the same ring of sincerity or truth that I perceived in Cinanni's. Considering the interrelated aspect of Cinanni's total testimony, and the total testimony of Fritz, Costello, Yutan, Farrell, and Mulhearn, and the testimony of Chiarello, I am convinced of Cinanni's truthfulness Cinanni's testimony as contrasted to Yutan, Farrell, and Mulhearn was much more de- tailed, and I am impressed that he attempted to tell what actually happened. I was not impressed that Yutan, Farrell, or Mulhearn were testifying to the events as they knew them. Chiarello, a salesman who sold to Respondent Company, impressed me as a com- pletely unbiased witness. Considering Chiarello's testimony to the effect that Fritz told hun that Cinanni was not working because he did not have a union card, and the conflict- ing versions as testified to by Cinanni on one hand, and Fritz, Costello, Yutan, Farrell, and Mulhearn on the other hand, I am convinced completely of the reliability of Cinanni's testimony in its entirety. 17 Based on Cinanni's credited testimony. 18 Based on Cinanni's credited testimony. Yutan and Farrell testified that they met at this time, but that they discussed a matter pertaining to a testimonial dinner They testi- fied that Farrell did ask about the employing of some Local 28 men, but denied that they discussed the laying off of Cinanni or the permit men. Costello, although present, had little, if any, recollection of what was actually said Considering the timing of Cinanm's layoff and the other credited evidence I do not credit Farrell, Costello, or Yutan in their testimony to the effect that they did not discuss the laying off of Cinanni or the permit men But I am convinced that his layoff was discussed at this meeting. 1s Based an Cinanni's credited testimony Fritz denies that he told Cinanni that the Union had pulled him out. I do not credit Fritz' denial. On January 4, 1963, the Com- pany laid off three members of Local 28 and, including Cinanni, its four remaining permit inen. 21 Based on Cinanni's credited testimony. I do not credit Yutan's denial that he told Cinanni that the Union wanted the permit men out. 21 The facts of this conversation are based on the credited testimony of Cinanni I do not credit Yutan's denial that he said that he would not deny that the Union asked him to discharge Cinanni, to go ahead and file the charges; nor that he stated that Farrell had promised a year ago to get Cinanni a union card; nor do I credit Yutan's denial that he told,Cinanni that he was laying off other employees in spite, because the Union had promised that they would not bother Cinanni. Yutan's testimony as to this conversation was not as to what was said, but rather a specific denial of certain things that were said. I find Cinanni's testimony more reliable and so credit. CONSOLIDATED VENTILATION AND DUCT CO., INC. 329 to give Cinanni a union card, but now Local 28 wanted him laid off. Yutan told Cinanni that the latter had seen that Local 28 was going to pull the men out, that if he kept Cinanni, Local 28 would drive him out of business, that he had a business to run and could not afford to lose it. The Respondents contend that the layoffs of January 3 and 4 were economically motivated and that Yutan's selection of employees for layoffs was based upon a desire to retain employees with overall or multiple skills. Yutan testified that he decided around December 15, 1962, that the January layoffs were necessary and that he decided to retain those employees with multiple skills (overall ability). On direct examination he did not set forth the time that he determined the individuals who would be laid off. On cross-examination he ultimately testified that he determined the persons who would be laid off on January 3 and 4, 1963, around January 1, 1963. He testified that he made a list of such employees. I do not find Yutan's or Fritz' testimony to the effect that they did not discuss the names of the persons to be laid off, and that Fritz did not know such persons until the time of the lay- offs, to be credible. The Respondents contend that there existed no need for a heliarc welder at the time of Cinanni's layoff. Yutan credibly testified that there had not been a need for heliarc welding during the last 6 months of 1962. Fritz credibly testified that he had allowed Cinanni to heliarc weld on two major jobs (although other types of welding could have been used) during the time preceding his lay- off. These two jobs 22 were of such a nature that there was not an immediate necessity requiring welding, but welding work could be performed more or less at the Company's election. The situation gave the Company a certain flexibility in the scheduling of its work. I do not credit Yutan's testimony that Cinanni was selected for layoff because of his lack of overall ability. I reject the Respondents' contention that the selec- tion of employees for layoffs was based on a consideration of multiple skills or overall abilities. It is clear that Cinanni has survived all previous layoffs, and that the Company had retained him in the past because of the possibility of ob- taining work requiring heliarc welding. Cinanni was qualified to do all types of welding, in addition to his special heliarc welding skill. In connection with the Respondents' defense that the selection of employees for layoff was based on the consideration of retaining employees with multiple skills or overall ability it is noted that Yutan testified that Steiner (who was laid off on January 4, 1963) was transferred on January 3 to an outside job because Yutan hoped that something would occur to enable him to retain Steiner because of his "shearing" ability. Con- sidering Yutan's demeanor while testifying, the overall evidence in this case, and the foregoing facts, I am convinced that Yutan's selection on January 1, 1963, of em- ployees for layoff on January 4, 1963, did not include Steiner and Cinanni. The possibility of acquiring work necessitating heliarc welding existed as it had in the past. It is not convincing in view of its past actions that the Company would have laid Cinanni off in view of the fact that he could have been used on general welding jobs, and he was its only welder with heliarc welding skill. It also appears illogical, considering all the evidence, that the Company would have transferred Steiner to an outside job, hoping to find a way to keep him for his shearing ability, if he were designated to be laid off on January 4, 1963. Considering the foregoing, and all the reasons stated to and heard by Cinanni on January 4 and thereafter as to why he was laid off, I conclude and find that the Company did not intend, prior to Costello's visit on January 4, 1963, to lay Cinanni off. Based upon a consideration of the foregoing and all of the other credited evi- dence 23 which reveals that (1) the Company had no plans to lay off Cinanni prior to Costello's visit on January 4, 1963; (2) Costello (for the Union) demanded that the permit men and even the heliarc man (Cinanni) be laid off if the two Local 28 men (laid off on January 3. 1963) were not rehired, and that if not, the Union would pull the employees off of the iob,24 (3) Cinanni was laid off within hours of Costello's first visit, shortly after Farrell's and Costello's visit with Yutan, and ^' Described at the hearing as the U.S. Court and Phoenix jobs The credited evidence set forth later in this report concerning the events of January 7 and thereafter clearly reveals admissions by Yutan and Farrell to Cinanni that the reason for his layoff was Local 28's insistence, and because be was a permit man-not a member of Local 28 Fritz' conversation with Chiarello also reveals that the reason for Cinanni's layoff was his lack of union membership 24 Local 28 made no demand that the permit men laid off on January 3, 1963, be rehired 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) Yutan and Fritz informed Cinanni that the reason he was being laid off 25 was that Local 28 wanted the permit men out, I conclude and find that Respond- ent Company violated Section 8(a)(1) and (3) of the Act by laying off or dis- charging Cinanni on January 4, 1963, and that Respondent Local 28 violated Sec- tion 8(b)(1) (A) and (2) of the Act by its demand that Cinanni be laid off or discharged 26 The Respondents' actions described above reveal to employees that Respondent Local had and would force the Respondent Company to comply with a preferential union membership policy in regard to its selection of employees for continued employment. Such a policy encourages employees to obtain or continue member- ship in the Union and as aforesaid the actions by Respondent Local 28 in connection therewith violated Section 8(b)(1)(A) and (2) of the Act, and the actions of Respondent Company in connection therewith violated Section 8(a)(1) and 3) of the Act. The Respondent Company contended that its selection of Cinanni for layoff was on a nondiscriminatory basis, and that a finding of a violation in this case would necessitate its discriminating in favor of the permit or nonunion men over union members. The credited facts, on the contrary, reveal that Cinanni was selected for layoff on a discriminatory basis. The remedy, set out in a later section, basically requires the cessation of such discrimination against any employees (union or non- union), and the remedy thereof of past discrimination. Events of January 7, 1963 Cinanni speaks to Yutan and Fritz 27 On January 7, 1963, Cinanni went back to the Company's shop to see President Yutan. Yutan told Cinanni that he hoped he was not "making trouble." Cinanni stated that he was not "making trouble." Yutan then stated that everything was going to be straightened out, that he had seen Local 28's President Farrell, and that the latter had promised, today, that Cinanni would get a union card and could come back to work. Yutan stated that Farrell had told him to write a letter to Local 28 specifying Cinanni's type of work so that he could present the matter to the union board. Cinanni expressed disbelief. Yutan called Foreman Fritz and asked the latter to tell Cinanni about the matter. Fritz told Cinanni that it was true, that if he did not believe it to go and see Farrell (president of Local 28). Before Cinanni left, Fritz asked Cinanni to show another employee (Andy Janowczyk) how to operate the heliarc welding machine. Cinanni did so and then left and went to Local 28's union office. Cinanni sees Mulhearn and Farrell on January 7, 1963 28 Cinanni met John Mulhearn, recording secretary of Local 28, at the union office and told him that he wished to speak to President Farrell, that the reason he was there was that the Union caused his layoff and he wanted to know what was going to happen. Mulhearn stated that Farrell was not in but that he could wait for him. Around 4:30 p.m. Mell Farrell, president of Local 28, approached Cinanni and told him 25 The witnesses in the various conversations described Local 28's demand and the termi- nation of Cinanni in terms of "layoff " It is clear that during the time of termination and immediately thereafter the Company considered Cinanni's employment relationship severed unless the union objections were removed. The layoff thus was tantamount to a discharge. 28 See Brunswick Corporation, 135 NLRB 574; Walsh and Kelly, 137 NLRB 1559; Ani- mated Displays Company, 137 NLRB 999. The instant case is different factually from Plaza Builders, Incorporated, 134 NLRB 751, and other cases cited by the minority in the Animated Displays Company case. 2'I Based on Cinanni's credited testimony. Yutan, in his testimony, stated that he did not remember such a conversation as set forth above. To the extent that this might be con- strued as a denial that the conversation took place, Yutan is not credited 28 Based on Cinanni's credied testimony Mulhearn testified that he only saw Cinanni at one time on some date after January 4, 1963, that on the occasion that Farrell was not there, that Cinanni waited. Farrell testified similarly that he only saw Cinanni on one occasion Both Farrell and Mulhearn testified that Cinanni asked about his application for membership in the Union, and that Farrell told Cinanni that it was being regularly processed and that he would take it up with the executive board. Cinanni's demeanor as a witness coupled with his detailed testimony was much more convincing than the testi- mony and demeanor of Farrell and Mulhearn. I credit Cinanni's testimony to this event CONSOLIDATED VENTILATION AND DUCT CO., INC. 331 that he knew everything about his layoff, to leave everything to him, that every- thing would be straightened out at the board meeting the next Friday. The Chiarello-Fritz conversation 29 Vincent J. Chiarello , a sales representative for Presto Sales and Service , went to Respondent Company's shop during the week January 7 through 11 , 1963, to see Foreman Harold Fritz to return a cutting torch .30 Chiarello saw Cinanni in the Company's lobby in nonworking attire, and asked Cinanni what he was doing. Cinanni replied that he was on "vacation ." Chiarello went into the shop and handed Fritz the cutting torch , and asked why Cinanni was taking a vacation so early in the year. Fritz told Chiarello that Cinanni could not work, that he did not have a union card. Events of January 14, 1963 31 Cinanni returned to Respondent Local 28's office on January 14, 1963, and saw John Mulhearn , recording secretary of Respondent Local 28. Cinanni told Mul- hearn that he was there to see Farrell about the results of Yutan 's letter of recom- mendation and the union board meeting . Cinanni and Mulhearn discussed Cinanni's job at Respondent Company. Mulhearn told Cinanni that there was a lot of "red tape," that a lot of men were out of work, and that it would be 2 weeks before the board meeting could take care of the matter . Cinanni told Mulhearn that he had better send him back to his job. Mulhearn told Cinanni that he had better talk to Farrell, that Farrell was the only man who could send him back to his job. Cinanni left without getting to see Farrell. Events of January 15, 1963 32 On January 15, 1963, Cinanni returned to Respondent Local 28's office and saw Mulhearn. They again discussed Cinanni's job, and Mulhearn again told Cinanni that Farrell was the only man who could send him back to work. Mulhearn told Cinanni to wait for Farrell . Cinanni went into Farrell's office where they spoke in Mulhearn's presence . Farrell told Cinanni that even if he wanted to, he would not give him a card, that he was not going to send him back to his job because he had a lot of men out of work, a lot of welders out of work . Farrell stated that when all the welders were back to work he might get him his job back. Mulhearn told Cinanni that he had better go around and collect $50 33 until he found another job, that he would be better off that way. Farrell stood up from where he had been sitting at his desk and told Cinanni not to dare to make trouble or report to the National Labor Relations Board, that if he did he would "louse " Cinanni "up all over the industry." By this statement Farrell threatened Cinanni with reprisals if he sought the services of the National Labor Relations Board concerning employee rights guaranteed by the Act. I thus conclude and find that Respondent Local 28 thus violated Section 8 (b) (1) (A) of the Act. "Based on Chiarello 's credited testimony. Chiarello impressed me as a completely un- biased, frank, and honest witness. The evidence reveals that he was a salesman who sold items to Respondent Company I do not credit Fritz' denial to the effect that he had not told Chiarello that Cinanni was not working because his employment had been terminated because of demands by Local 28. Fritz, a member of Respondent Local 28, was also a supervisor of Respondent Company. I discredit his testimony based upon my observation of his demeanor when testifying. 30 Chiarello's testimony reveals that he went to the shop during the first or second week in January 1963. Cinanni was laid off on January 4, 1963 The conversation that en- sued concerned Cinanni while in layoff status I fix the time as indicated above. 31 Based on the credited testimony of Cinanni . As indicated previously Mulhearn testi- fied that Cinanni made only one visit to the union office to see Mulhearn and Farrell. Mulhearn denied that he told Cinanni that Farrell was the only man who could get Cinanni's job back. I find Cinanni the more credible witness and so credit his testimony over that of Mulhearn. "Based on Cinanni 's credited testimony. As previously indicated Farrell and Mulhearn in their testimony stated that they only saw Cinanni once Mulhearn denied stating that he told Cinanni that Farrell was the only man who could send Cinanni back to his job, and denied that he told Cinanni that he had better collect the $50 until he found another job. Farrell and Mulliearn denied that Farrell told Cinanni not to make trouble or report to the National Labor Relations Board, and that he would "louse Cinanni up all over the industry " I find Cinanni the more credible witness and credit his testimony. 93 Apparently reference to unemployment payments 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cinanni left and went to see President Yutan at Respondent Company's shop. He told President Yutan that he was going to press charges, that if the Company and the Union settled the matter, he would drop the charges if they gave him his job back, that he did not mind losing 2 or 3 weeks' work. Yutan told Cinanni that it was Local 28 which wanted him laid off, that he was forced to do so, and that he could not hire him back without permission of Local 28. Cinanni filed charges in the instant cases on January 16, 1963, Cinanni returned to work on February 7, 1963, and was working at the time of the hearing in this matter. IV. THE REMEDY Having found that the Respondents have engaged in unfair labor practices, it will be recommended that Respondents cease and desist therefrom and take affirmative action to effectuate the policies of the Act. Having found that Respondent Company violated Section 8(a)(3) and ( 1), and that Respondent Union violated Section 8(b) (2) and (b) (1) (A) of the Act with relation to the discharge of Joseph A. Cinanni, it is recommended that the Respondent Union notify the Company in writing and furnish a copy thereof to Joseph A. Cinanni that it withdraws its objection (in violation of Section 8(b) (2)) to his employment. I also recommend that the Company and the Union jointly and severally make Joseph A. Cinanni whole for any loss of pay suffered by reason of his discriminatory discharge, by payment to him of a sum of money equal to the amount he would have normally earned as wages from the date of his discharge to his reemployment on February 7, 1963, less his net earnings during this period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289, 291-294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. As the unfair labor practices com- mitted by the Respondents were of a character which go to the very heart of the Act, it will be recommended that the Respondents cease and desist therefrom and cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local Union No. 28, Sheet Metal Workers International Association, AFL- CIO, is a labor organization within the meaning of the Act. 2. Consolidated Ventilation and Duct Co., Inc., is engaged in commerce within the meaning of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, the Respondent Company has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of Joseph A. Cinanni, there- by encouraging membership in or activites on behalf of a labor organization, Re- spondent Company has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 5. By restraining and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent Union has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. By attempting to cause, and causing, the discharge of Joseph A. Cinanni, Re- spondent Union violated Section 8 (b) (2) and (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6)and (7) of the Act. RECOMMENDED ORDER 34 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended 35 that: A. Respondent Company, Consolidated Ventilation and Duct Co., Inc., its offi- cers, agents, successors, and assigns, shall: In the event that this Recommended Order be adopted by the Board, the word "Order" shall be substituted for the words "Recommended Order " as In the event that this Recommended Order he adopted by the Board, the word "ordered" shall be substituted for the word "recommended " CONSOLIDATED VENTILATION AND DUCT CO., INC. 333 1. Cease and desist from: (a) Encouraging membership in Local Union No. 28, Sheet Metal Workers In- ternational Association , AFL-CIO, or in any other labor organization of its em- ployees by laying off, discharging, or in any other manner discriminating against any employee in regard to hire or tenure of employment or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any other manner interfering with, restraining, or coercing its employees, in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which will effectuate the policies of the Act:(a) Jointly and severally with the Respondent Union make Joseph A. Cinanni whole for any loss of pay suffered as a result of the discrimination against him, in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or useful to an analysis of the amount of backpay due under the terms of this Recommended Order. (c) Post at its place of business in Jackson Heights, New York, copies of the attached notice marked "Appendix A." 36 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered , defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c), above, as soon as they are forwarded by the Regional Director , copies of the Re- spondent Union's notice marked "Appendix B." (e) Furnish to the said Regional Director signed copies of the notice marked "Appendix A" for posting by the Respondent Union, as hereinafter directed. (f) Notify the Regional Director for the Second Region , in writing, within 20 days from the date of this Recommended Order, what steps have been taken to comply herewith 37 B. Respondent Union, Local No. 28, Sheet Metal Workers International Associa- tion, AFL-CIO, and its officers, representatives , agents, successors , and assigns, shall: 1. Cease and desist from: (a) Causing or attempting to cause Consolidated Ventilation and Duct Co., Inc., to discriminate against any of its employees in violation of Section 8(a) (3) of the Act. (b) In any other manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Jointly and severally with Respondent Company make whole Joseph A. Cinanni for any loss of pay suffered as a result of the discrimination against him in the manner set forth in the section entitled "The Remedy." (b) Notify Joseph A. Cinanni and Consolidated Ventilation and Duct Co ., Inc., in writing, that it withdraws its objections (in violation of Section 8(b) (2) of the Act) to Cinanni's employment. "In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "A Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order" aI In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read- "Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith " 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its business office copies of the attached notice marked "Appendix B." 38 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent Union's representatives, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Post at the same places and under the same conditions as set forth in (c), above, as soon as they are forwarded by the Regional Director, copies of the Respond- ent Company's notices marked "Appendix A." (e) Forward signed copies of "Appendix B" to the Regional Director for posting by Consolidated Ventilation and Duct Co., Inc. (f) Notify the Regional Director for the Second Region, in writing, within 20 days from the date of this Recommended Order, what steps have been taken to comply herewith.39 38 See footnote 36. 3D See footnote 37. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT encourage membership in Local Union No. 28, Sheet Metal Workers International Association, AFL-CIO, or any other labor organization, by laying off, discharging, or in any other manner discriminating against any employee in regard to hire or tenure of employment or any term or condition of employment, except as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959. WE WILL jointly and severally with Local Union No. 28, Sheet Metal Workers International Association, AFL-CIO, make Joseph A. Cinanni whole for any loss of pay suffered as a result of our discrimination against him. All our employees are free to become or remain or to refrain from becoming or remaining members of the above -named union, or any other labor organization, ex- cept to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. CONSOLIDATED VENTILATION AND DUCT Co., INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL MEMBERS Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our members that: WE WILL NOT cause or attempt to cause Consolidated Ventilation and Duct Co., Inc., to discriminate against Joseph A. Cinanni or any other employee in NACHMAN CORPORATION 335 violation of Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify Consolidated Ventilation and Duct Co., Inc., in writing, that we withdraw our objections (in violation of Section 8(b) (2) of the Act) to Joseph A. Cinanni's employment. WE WILL jointly and severally with Consolidated Ventilation and Duct Co., Inc., make whole Joseph A. Cinanni for any loss of pay suffered because of our causing Consolidated Ventilation and Duct Co., Inc., to discriminate against him. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. LOCAL UNION No. 28, SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any question concerning this notice or compliance with its provisions. Nachman Corporation and Charles D. Strawser, Betty Strawser, Charles D. Strawser, Helen Allen. Cases Nos. 13-CA-5211, 13-CA-5211-93, 13-CA-5211-3, and 13-CA-59211-4. September 3, 1963 DECISION AND ORDER On April 18, 1963, Trial Examiner Henry S. Sahm issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermedi- ate Report. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended the dismissal of these allegations of the complaint. Thereafter, the Gen- eral Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- 144 NLRB No. 34.