Pat Izzi Trucking Co.

PAT IZZI TRUCKING COMPANY 1097 dente that but for the desire of some of the employees for union representation, the Respondents would have continued this operation . In the circumstances of this case, I am not persuaded that this burden has been sustained The operation was clearly unprofitable to Redmond . Her hope that Sir James would provide her with a greater proportion of dresses rather than blouses to work on seems not to have been realized .4 At the time of closing, it is true , Redmond had a greater number of employees than at any time in the preceding months, and from this it is argued that the business was at least on the road to a profitable showing . But Redmond 's testimony is to the contrary and, I think, is to be believed. The loss of capital during the first 3 months of operation was clearly of serious importance to her She characterized it as a loss of her life savings and I think that if the continued operation offered any promise of profitability, she would have seized this opportunity to recoup I find that the business operation of the Respondents was terminated on or about January 28 because Redmond was losing money Even though it was probably the fact that this losing enterprise was threatened with even greater losses should the Respondents be forced to deal with the Union, it does not follow that "but for" the Union the business would have been continued The probability on this record is that it would have ceased in any event I find therefore, that by teiminating the business arrangement on January 28, the Respondents did not engage in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act. It is therefore recommended that the complaint be dismissed. 4 Redmond testified that her operators preferred to work on dresses and that some of them quit when such work was not supplied Patrick F. Izzi d/b/a Pat Izzi Trucking Company and Local 64, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case No. 1-CA-4476. No- vennber 07, 1964 ORDER On July 17, 1964, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action to remedy such unfair labor practices. On the same date, the case was transferred to the Board.' The General Counsel filed a brief in support of the Trial Examiner's Decision. Thereafter, the Respondent filed a carbon copy of the so-called exceptions to the Trial Examiner's Decision, stating only that said Decision is against the evidence, the law, and the weight thereof. The General Counsel and the Changing Party filed motions to strike the so-called exceptions. The Board's Executive Secretary rejected them in a letter which informed the Respondent that it had not com- plied with the requirements of the Rules and Regulations respecting exceptions and briefs. The Respondent's attention was particularly directed to the requirements that exceptions must designate the pre- i The text of pertinent parts of the Board 's Rules and Regulations , Series 8 , as amended, including Sections 102 46 and 102 48, was attached as a matter of course to the Order transferring the case to the Board, served upon the parties 149 NLRB No. 108. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cise parts of the Trial Examiner's Decision excepted to, and cite the precise parts of the record relied on to support the exceptions. The Executive Secretary granted a further extension for the filing of proper exceptions. Thereafter, the Respondent filed another set of so-called exceptions and a request for oral argument. The General Counsel and the Charging Party filed motions to strike the second set of so-called exceptions. The Charging Party also objected to the Respondent's request for oral argument. The Respondent's second so-called exceptions are also in summary form. Without a supporting brief, Respondent has excepted, sepa- rately, to each major subdivision of the Trial Examiner's Decision, and to all the Trial Examiner's rulings at the hearing, but only on the same three general grounds stated in the first set. Section 102.46(b) of our current Rules and Regulations sets forth, with particularity, the requirements that must be met in the filing of exceptions. It further provides that exceptions not specifically urged shall be deemed waived, and exceptions that do not comply may be disregarded. The so-called exceptions do not state the questions of procedure, fact, law, or policy to which exception is taken; they do not cite the precise parts, or any part, of the record relied upon; and they do not state grounds or cite authorities. Neither is there a brief that would either aid in construing them, or explain the basis of Respondent's request for oral argument. Accordingly, we grant the motions to strike the so-called exceptions 2 As no proper statement of exceptions has been filed with the Board, we shall abide by Section 102.48 (a) of the Rules and Regulations which provides that : "In the event no timely or proper exceptions are filed as herein provided, the findings, conclusions, and recommendations of the trial examiner as contained in his decision shall, pursuant to section 10(c) of the act, automatically become the decision and order of the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes." 3 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, and Section 102.48 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Board hereby adopts the findings and conclusions of the Trial Examiner as contained in his Decision, and orders that Patrick F. Izzi d/b/a Pat Izzi Trucking Company, his officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 2 The Respondent's request for oral argument is denied for reasons set forth in this Order 3 Cf Kings Electronics Co, Inc., 109 NLRB 1324 PAT IZZI TRUCKING COMPANY 1099 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed by the above-named labor organization on February 7 and 11, 1964, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on March 23, 1964. Amendments to the complaint were there- after issued and served on April 1 and 6, 1964. Answers were received from the Respondent.' The amended complaint alleges and the answers deny that the Respond- ent has engaged in unfair labor practices in violation of Section 8(a) (1), (3), and (5) of the National Labor Relations Act, as amended. Pursuant to notice, a hearing was held in Providence, Rhode Island, on April 20 to 24, 1964, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented by counsel, and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs A brief has been received from General Counsel. Disposition of the Respondent's motion to dismiss the 8(a) (5) portion of the complaint, upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Patrick F. Izzi is an individual proprietor doing business under the trade name and style of Pat Izzi Trucking Company, with principal office and place of business in Providence, Rhode Island. At this terminal, it is engaged in the business of provid- ing and performing interstate transportation of goods and property of all kinds and related services. The Respondent is licensed by the Interstate Commerce Commission Annually the Respondent received gross revenue of more than $50,000 from that part of its operations which are performed as an essential link in interstate com- merce and,/or for various enterprises which themselves are directly engaged in com- merce and over which the Board would exercise jurisdiction Annually the Respondent purchases, transfers, and delivers to its Providence ter- minal, materials valued at more than $50,000 directly from States other than the State of Rhode Island. The complaint alleges, the answer admits, and it is here found, that the Respond- ent is engaged in commerce within the meaning of the Act. II. THE CHARGING UNION Local 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and major issues The chief issues raised by the complaint include- (1) the discharge of two of the Respondent's truckdrivers, Dessler and Couitt; (2) the alleged refusal to bargain with the Union as the exclusive representative of employees in an appropriate unit; (3) whether or not a strike of the Respondent's employees was caused and prolonged by its unfair labor practices; (4) whether or not the Respondent unlawfully refused to reinstate all strikers upon an unconditional offer to return to work; and (5) whether or not by other conduct the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. All events in issue occurred shortly after the Respondent's truckdrivers signed cards authorizing the Charging Union to represent them in collective bargaining. I On June 3, 1964, after the hearing, notification was received from Attorney Lisker that he had "withdrawn as counsel for the employer," and on June 8, 1964, similar notification was received from Attorney Novogroski Both letters are hereby made a part of the record in the case. 1100 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD B. Events before the Union's demand to bargain 1. Interference , restraint. and coercion Credible testimony indicates that in December and January, the Respondent's driv- ers were working 80 or 90 hours a week, sometimes as much as 17 hours a day. They were denied a Christmas bonus at the end of 1963. The ground appears to have been fertile for self-organization. Dessler and Couitt actively sought assistance from the Charging Union, and them- selves distributed authorization cards among their fellow drivers Between them they obtained signatures to most, if not all, cards submitted during the hearing. Patrick Izzi, head of the Respondent, as a witness admitted that he was informed by a telephone call from someone in Boston late in the afternoon of February 5, to the effect that union cards were being signed by his drivers. His own testimony also shows that he promptly took measures to find out who, among his drivers, were responsible. The first driver he approached on the point, it appears, was Pasco Macri, away from the terminal and at a shopping center, where he asked the employee to meet him. Izzi queried him as to his knowledge of union activities and specifically asked if he had signed a card. Macri denied knowledge of the matter, pointing out that he had just returned from an extended vacation, but he suggested that Izzi might well question Frank Couitt. Izzi telephoned to Couitt and instructed him to come to the teiminal as soon as possible. Couitt did so, and was discharged under circumstances described below.2 A few minutes after his interrogation of Macri, the timing of incidents indicates, Izzi also queried driver Robert Natale. The latter was about to leave the Providence terminal on a trip when he was called to the telephone. Pat Izzi demanded to know if he was up to his "old game" or organizing a union and asked if he was "tired of eating." Natale stoutly denied the accusation. Izzi then asked the driver if, in his travels, he would try to get "some information" for him. At or about the same time employee Anthony Scaramuzzi was asked, also by Izzi over the telephone, what he knew about the Union. It is concluded and found that by Izzi's above-noted interrogations and threats the Respondent engaged in 8 (a) (1) conduct. 2. The discharge of Murray Dessler As noted above, as soon as Macri had suggested that Couitt might yield the infor- mation he wanted, Pat Izzi called that driver and directed him to come to the office. Couitt was busy at home with domestic matters, but agreed to come to the terminal as soon as possible. In the meantime , Izzi summoned Dessler to the office The latter had driven that day from 2 a.m. to 5 p.m., and at the end of this long day had checked in with Don- ald Izzi, the terminal dispatcher, who had merely told him to report for work the next morning at 5 o'clock. When Dessler got back to the office , in response to Pat Izzi's call, the latter promptly accused him of trying to organize the drivers in a Boston local of the Teamsters . Dessler denied the accusation . Izzi insisted that he had found out that he and another driver were trying to organize the "place," told him to take his pay and get out. Dessler repeated his denial. Izzi then asked who was so engaged, if not he, and promised him a job for life if he would tell him. Dessler declared he was no "rat," and was given his pay. Just before leaving the office, having been discharged, Pat Izzi - remarked that truck T-61, which was then in New York, had had an accident and at least intimated that Dessler had been responsible for it. Dessler had driven this truck on a trip a day earlier , but it had been driven to New York by another driver. Dessler pointed out to Izzi that the truck had been checked when he brought it in , and the matter was apparently dropped. The foregoing findings as to the discharge interview are based upon the employee's credible testimony. - 21zzi's interrogation of llfacri is, in the main , admitted At the outset, and to obviate the necessity of repetitive footnotes , the Trial Examiner states that he can iely upon no part of Izzi's testimony where it is in conflict with more credible evidence Izzi, whom the Trial Examiner observed during the 5 days of hearing sessions, was far from an impressive witness Much of his testimony, as the record shows, was inconsistent and self-contradictory As noted, both of his able counsel withdrew after the hearing closed Whatever their reason for such action, the Trial Examiner has no brief or argument from them suggesting why their former client's testimony should be believed PAT IZZI TRUCKING COMPANY - 1101 Having found, in a footnote above, the complete unreliability of Pat Izzi's testi- mony in general, the Trial Examiner believes it unnecessary to review in detail Izzi's shifting and inconsistent but extensive testimony as to the discharge of Dessler and his reason for the action. Insofar as it is possible to determine precisely what Izzi would have believed, it appears that he contends that Dessler was discharged because of his "attitude" when accused of causing damage to the T-61 truck. The maze of inconsistent and contradictory testimony given by Pat and Donald Izzi concerning claimed damage to this T-61 truck defies all efforts of unraveling, and leads to the conclusion that most of it was fabricated after the event of the dis- charge for the purpose of curtaining the real reason for the action-Pat Izzi's admit- ted concern about the organizing of his drivers. Donald Izzi claimed, and this point is corroborated in part by the drivers con- cerned, that sometime during the day of February 5, he talked over the telephone with drivers DiMillio and Winer in New York, and that they spoke of some apparent damage at the rear of the T-61 truck, which Winer was then driving. Both drivers flatly denied, however, that they told Donald it was "new" damage, as the latter claimed they did. The drivers' denials are more credible and are accepted. If he had been informed, as he claims, that the damage was new and the doors would not open or close properly and that Winer disclaimed responsibility, then it is reasonable to believe that Donald Izzi, who had full authority as a management official, would at least have questioned Dessler about the matter when he checked in later that day- since Dessler had used the truck before Winer took it over. Yet, as found above, Dessler was merely told to report at a certain hour the next morning. Furthermore, Pat Izzi's testimony early in the hearing shows clearly that, even if his version is to be accorded some weight, that neither he nor Donald were convinced that Dessler was responsible for damage, if any, to the truck before discharging him. For Pat lzzi claimed that he discharged Dessler because of his "attitude" when the question of responsibility was raised, and that it was this "attitude" which convinced him Dessler had, in fact, been responsible. Donald Izzi so contradicted himself in his testimony about the truck damage that no reliance can be placed upon his version. On direct examination he claimed that he had a telephone call from some customer on February 4, while the truck was being driven by Dessler, reporting damage to a pole and wires, and he added: "They blamed Murray Dessler for it." On cross-examination, however, he has flatly denied that the caller had accused Dessler of "doing it." Since it would appear that the Respondent would have it believed that the damage to the truck was inflicted on this February 4 occasion, then there is no explanation as to why some inspection was not made immediately upon the truck's return to the terminal, and before Winer took it over. ' In short, there is no credible or convincing evidence in the record establishing that Dessler was responsible for any unreported damage to the T-61 truck on February 4, or that the damage itself, of whatever nature, had anything to do with the discharge except as an afterthought, and as an attempt to erect a pretext. Finally, the Trial Examiner concludes and finds that Dessler was discharged to discourage union membership and activity, and that such discrimination constituted interference, restraint, and coercion. 3. The discharge of Frank Couitt Not long after Dessler was discharged, Couitt arrived at the office, as instructed by Pat lzzi According to the latter's own testimony, he immediately told this driver that Macri had "referred me to you" about the union organizing, and demanded to be told what he knew about it. Couitt, he further testified, so resented the apparent accusation that he promptly turned over his key, asked for his money, and quit. The latter claim is absurd on its face. Absent some explanation not revealed here, it is wholly implausible that a truckdriver for some 5 years, who has led an organi- zation drive to better his own and other drivers' working conditions, would collapse and quit as Izzi said he did. More reasonable is the discharge interview as described by the credible testimony of Couitt. According to the driver, Pat Izzi opened the conversation by declaring that he had heard he was organizing the Union-he and another "fellow." He declared that Couitt and another driver had been seen in Boston the day before sign- ing men up. Couitt denied it. Izzi insisted that he knew he and another were trying to get a union in, told him to turn in his key and pick up his pay, and vowed that he would never have a union "in here," but would close the doors first. As Couitt left, Izzi remarked, "Don't worry, your buddy got it too." 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner concludes and finds that Couitt was discharged to discourage membership in, and activity on behalf of, the Union, and that such discrimination constitutes interference, restraint, and coercion. 4. The threat of layoff to Scaramuzzi As noted above, Izzi questioned Scaramuzzi, by telephone, early in the evening of February 5, as to his knowledge of the organizing efforts. Later that same evening, between the discharge of Dessler and Couitt, Scaramuzzi was at the terminal. Izzi again asked what he knew about the Union, and again Scaramuzzi disclaimed knowl- edge. Izzi declared he had fired Dessler for trying to organize, and he had Couitt coming down He asked Scaramuzzi who had signed cards. The driver again denied having such knowledge. Izzi then said, according to the driver's credible testimony, "If you don't tell me what's going on, you're going to have two weeks off." Scara- muzzi repeated his denial of knowledge, and left. Izzi's interrogation and threat of reprisal on this occasion constituted unlawful inter- ference, restraint, and coercion. 5. The strike Immediately after his discharge, Couitt telephoned Dessler and told him of his dismissal. Dessler replied that he also had been fired, and Scaramuzzi had been laid off for 2 weeks, and said they would be down at once at the diner, where Couitt was calling from The three drivers then drove to the home of another driver, Phipps, where they picked up the latter and another drivel, Herman. The five returned to the diner. Driver Macri, previously identified, came in The drivers discussed the situation confronting them. While they were talking, Donald Izzi came in for coffee and as he left remarked that if they wanted to talk to him he would be in the office nearby. Of the employees there, three of them, Phipps, Macri, and Herman, were scheduled to take trucks out at 2 o'clock the approaching morning. They decided that, because of the discharges, they would not go to work, and that all would meet at the union hall the next morning. Scaramuzzi decided to go home for needed sleep. Omitting a number of details of lesser importance, such as Scaramuzzi's taking out a load early the morning of February 6 after being misinformed as to other drivers by Donald Izzi, it is established that the striking drivers met with a union representative about 10 o'clock the next morning, and said they were on strike because of the dis- charge of Dessler and Couitt. The latter turned over to the union representative some 14 cards signed by drivers, as will be described more fully in another section of this Decision. The driveis then went to the office of the Union's attorney, Sheehan, where they reported the occurrences of the preceding night and voiced the belief that drivers then out on the road would join the strike if they knew about the happenings They said there were trucks in New York and that they wanted to meet them as they returned that night and inform the driveis of their action. Sheehan advised them to be sure, if the drivers wanted to join the strike, that the trucks be left in a safe place with someone to guard them. That night a number of the strikers drove into Connecticut, met five Izzi trucks coming from New York, informed the drivers of the strike as they stopped to pay toll, and the five drivers joined them, leaving the trucks at a large A & P parking lot with driver Phipps to watch out for them Couitt called Patt Izzi, told him the drivers of the trucks were on strike, and he had better come and get the equipment. Police were there at the parking lot, who approved the procedure. By February 9, when a picket line was set up, 19 of the 22 drivers and helpers on the payroll, as of February 6, according to a list provided the Regional Office by counsel for the Respondent, were on strike. The Trial Examiner concludes and finds that the Respondent caused the strike, which began on February 6, by its unlawful discharge of drivers Couitt and Dessler. C. The refusal to bargain By letter of February 6 to the Respondent, counsel for the Union advised it of its claim of majority-representative status and asked for an early date to begin negotia- tions for a contract. On February 7 counsel had a call from Counsel Lisker of the Respondent, asking for a copy of the demand letter and saying he was to meet with his client the next day and would communicate with him later On February 8 Lisker telephoned Sheehan, told him he could not meet with him on February 10, as the latter had suggested in his letter, but might meet sometime later. PAT IZZI TRUCKING COMPANY 1103 According to Sheehan's credible testimony, nothing was said in either telephone con- versation concerning any possible question either as to majority or unit. It is clear that no reason for such a question existed-most of the drivers were then on strike. No meeting was arranged or held. The Respondent never voiced any doubt con- cerning the majority until, in its undated answer to the complaint but received by the Regional Office on March 31, 1964, it said it denied the allegation of an appropriate unit, and neither admitted nor denied the allegation of majority-representative status. The complaint alleges that an appropriate unit consists of: All truckdrivers and helpers of Respondent employed at its Providence, Rhode Island, terminal, exclusive' of all other employees, office clerical employees, dis- patchers, guards, and all other supervisors as defined in Section 2 (11) of the Act. This is the unit for which the Union, in its letter, claimed majority status as representative. Further ground for the finding that not until its answer was filed, was doubt as to unit or-majority expressed by the Respondent-and even then not to the Union involved, since no copy of its answer was served upon it, appears in a list of employees entitled "Employees of Izzi Trucking Company as of Feb. 6, 1964," forwarded by Counsel Lisker to the Regional Office by letter of March 4, 1964. As previously noted, that list contains the names of 22 employees, some 19 of whom were then, or had been, on strike. At the hearing the Respondent, through valiant but unconvincing efforts of its two counsel, endeavored to have it appear that: (1) three employees who operate only out of a New York terminal should be also included in the unit, and (2) the list sent to the Board on March 4 should have contained the additional names of a few "part time" employees. The Trial Examiner considers it unnecessary here to review and dispose of the contentions made as to the various individuals who, the Respondent belatedly claimed, should be counted in the unit. It is clear that some were hired after the start of the unfair labor practice strike beginning on February 6, or had been discharged or had left employment before that date. Credible evidence shows that the duties and area covered by the few New York employees are not such as to make mandatory their inclusion in an appropriate unit. In short, no credible evidence was brought forward by the Respondent to show that the unit alleged in the complaint was clearly inappropriate, or that the actual identity of all employees in that unit on February 6 was substantially different from that submitted to the Board, by the Respondent itself, on March 4. At the hearing, 16 union authorization cards were received in evidence upon com- petent identification by the individuals who signed them on or before February 6, all of whom are listed as being on the payroll that date. Two other drivers, Frank Natale and W. B. Phillips, also identified cards they had signed. Neither is listed, however, on the document referred to, and there appears to be some question as to whether either or both should be considered as being on the critical payroll. Since the majority status of the Union does not turn on resolution of this point, it is deferred until a later section dealing with the refusal to reinstate strikers. Sixteen is obviously a majority of 22. It is therefore concluded and found that the Charging Union was, on February 6,• 1964, and at all times since then has been, the exclusive bargaining representative of all employees in the above-described appro- priate unit. By failing and refusing to meet and negotiate with the Union, as requested by the Union on February 6, 1964, the Respondent, since February 8, 1964, has refused to bargain in good faith as required by the Act, and thereby has interfered with, restrained, and coerced employees in the exercise of their Section 7 rights.3 D. Interference, restraint, and coercion during the strike Upon the credible testimony of the employees involved are based the following findings: (1) As noted above, Pat Izzi queried driver Robert Natale regarding the Union just before the latter left the terminal on a trip the evening of February 5. Early the next morning, February 6, Natale called Pat Izzi from Philadelphia to report some delay in unloading his truck. Izzi told Natale he had "just fired Murray (Desslei) and Couitt"-and that they were the union instigators. Izzi added, "Why don't you tell me the truth? You must be in on it." Natale again denied knowledge on the point, whereupon Izzi told him to get the load off, get back to New York, pick up a a The complaint, as amended, alleges certain other conduct of a positive nature as also being violative of Section 8(a) (5). Such matters will be recited in a later section of this Decision. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD load and go directly to Boston, promising him a "big, fat bonus." Upon reaching New York, Natale called the Providence terminal and was told by Donald Izzi that the "fellows were out on strike." He gave the driver instructions regarding the delivery in Boston, and promised him a bonus after making it. Natale, however, joined the others on strike when reaching the Connecticut toll point, as previously noted. After the five trucks were parked early the morning of February 7, Natale called Pat Izzi to tell him where the trucks were being left and that he had joined the strike. Izzi offered him $25 at first, and then $50 to bring the truck into Providence. The driver declined. (2) Drivers DiMillio and Falco took out loads early the morning of February 6, before the union meeting. After they returned, and in the evening of that day, they were called to the terminal. Pat Izzi told them that the "boys" on strike were at a nearby restaurant, and instructed them to go over and try to get them back Izzi told Falco to inform the strikers that they would all get a raise in pay if they would, in effect, drop the Union. (3) DiMillio and Falco talked to the others on strike, as directed and although some of the latter started for the terminal, they turned away before e:'tering. When back in the office Falco finally told Izzi that all of his drivers had signed union cards, including himself. Pat Izzi broke down, and declared that the Union would not get in, and he would "fight them right to the end " (4) Both Falco and DiMillio continued to work for another day or two. On February 8 Pat Izzi gave DiMillio $50 for "sticking by" him (5) After the picket line was put up on February 9, DiMillio demurred at crossing it. Izzi finally persuaded him, promising to "take care of" him later. And his pay was immediately raised by $10 a week. (6) On March 27 Pat Izzi met DiMillio at a gas station and threatened- "When I get through with you, you will wish the hell you never knew me." He told the driver he would be "walking the street a long time" and clearly implied that he would see to it that he did not obtain work elsewhere. (7) Early in the morning of February 6, after the meeting of the drivers at the diner following the discharge of Dessler and Couitt, driver Napolitano came to the terminal office and remarked to Donald Izzi that he had learned the men were on strike. Izzi told him not to worry, that organizing had been tried before and failed, that Dessler and Couitt had been fired for trying to organize, and that these two would never again work for the Company. The above-described threats, promises of benefit, and the granting of benefits, for the clear purpose of discouraging the employees in their exercise of the rights to engage in union and concerted activities constituted inteiference, restraint, and coercion. E The unconditional offer to return to work On March 20, 1964, counsel for the Union sent a letter to the Respondent offering unconditionally and on behalf of each of the 19 listed drivers who had gone on strike on February 6 or within a few days thereafter, to return to work. The letter also asked that the Union be informed of the "time, date and place each employee is to return to work." The list contained the following names- Frank Couitt Edward Mitchell Wilfred Pierce Rocco DiMillio Patrick Macri Wesley Phipps Murray Dessler Carmino DiStefano Anthony Scaramuzzi James Dias Joseph Mazzatto Samuel Wirer Joseph Ferle Robert Natale Walter Phillips Pasquale Falco Frank Natale Edward Herman _ Silvio Napolitano As in the case of the Union's earlier letter requesting to bargain, the Respondent failed to reply to this offer, on behalf of all strikers, to return to work. On March 25 counsel for the Union telephoned Attorney Novogroski regarding the lack of response to his letter of March 20 Novogroski said he would discuss the matter with his client that afternoon and then let him know. Novogroski did not call union counsel as promised. Not until April 3 did the Respondent, through its counsel, communicate with the Union. On that date, by regular mail which was not received by the Union until April 6, counsel for the Respondent sent counsel for the Union a letter stating that it had, on the same date, sent letters to each of eight listed individuals offering to permit them to return to work at 7 a m. on April 6. Since the individual letters to employees had been sent by registered mail, counsel for the Union had been informed by some of the recipients of such offer before April 6. PAT IZZI TRUCKING COMPANY 1105 Neither the letter to the Union nor to the individuals even suggests any reason for the Respondent's selection of individuals to recall or why all 19 who had offered to return were not recalled. Only one of the eight who received the Respondent's letter of recall, dated April 3, accepted the offer and returned to work-Carmino DiStefano. The others, appar- ently learning that all who had gone on strike were not being permitted to return, failed to report on April 6 as instructed. On April 9 the Respondent sent individual letteis to two more strikers, neither of whom returned. None of the remaining nine strikers, whose unconditional offer to return to work was received by the Respondent, have been offered reinstatement A few days after the individual letters were received, all who had been on strike, with the probable exception of DiStefano who did go back to work, met with the union officials It was decided that such a partial reinstatement offer was not valid, since it obviously was designed to have the effect of arraying one-half of the strikers against the other half, thereby destroying the union majority, which throughout these events the Respondent had refused to recognize. As noted, the Respondent has chosen to ignore its obligations under the Act to deal with the Union as the exclusive representative of its drivers. It has never informed this lawful representative of any reason why it has refused to reinstate all of the strikers. Nor at the hearing did the Respondent offer any clear claim as to why it refused to answer the Union's letter of March 20 or to take back all of the strikers-with the exception of Murray Dessler. As to him, the amended answer does allege that "he had disqualified himself for reinstatement" by "acts of misconduct during a strike." This claim of "misconduct" rests chiefly upon the testimony of Pat Izzi, whom the Trial Examiner has found unreliable as a witness Even if full credit is given to Izzi's testimony on the three or four incidents involving Dessler, all of them are of a minor nature-when considered in the light of the fact, generally acknowledged, that truckdrivers on strike seldom display the demeanor of pallbearers on parade. One incident concerned a minor tussle with a replacement on the picket line. According to a police report on the item, however, it appears that the replacement himself admit- ted that he might have been responsible for the incident, having spit upon Dessler as he went through the picket line and no complaint was filed. Izzi also claimed that Dessler was arrested for throwing eggs at a vehicle. Only on cross-examination and after being confronted by a threat of possible perjury proceedings, did Izzi finally admit that he was well aware that Dessler had been tried and acquitted of the alleged offense. Izzi also contended that Dessler called him obscene names. Called in rebuttal, Dessler candidly admitted the fact, explaining that such action followed and was precipitated by Izzi's having almost daily called him or his wife, calling them "kikes" and threatening to "blackball him" in the industry. Izzi was not recalled to deny this accusation. In short, the Trial Examiner finds no merit in the claim by the Respondent that Dessler has been refused reinstatement because of misconduct during the strike. Their names being included among the list of strikers who unconditionally offered to return to work, as noted above, the status of Frank Natale and W. B. Phillips is now considered. It appears to be the Respondent's somewhat confused contention that both drivers had been removed from the payroll before February 6, and were not employees on that date. Natale, as a witness, admitted that he had been discharged on January 24 by Donald Izzi, as he had been two or three times in the past. (Donald Izzi is Natale's godfather.) But he testified credibly, and it is found, that he was recalled to work on Friday, February 7, but thereafter went on strike with the others. As to Phillips, credible testimony is to the effect that upon return from a trip on February 1, he was questioned by Donald Izzi concerning some trouble he had reported with the truck clutch, and told that a mechanic would check it and he would talk to him about it later. The next day he reported for work, but Donald told him to see Pat Izzi first, and to call in the next morning. Izzi was out of town the next day and Phillips could not reach him On Tuesday the driver went to the tei minal where he received his weekly pay from Donald, who merely said to see Pat the next day. On Wednesday he called in but, as Pat Izzi's own testimony shows, he was away from the Providence terminal until late in the day, when he fired Dessler and Couitt. Phillips called in Thursday morning, after the strike had been called, and for the first time was able to talk to Pat Izzi. On this occasion Izzi told him, "You are finished." 770-076-65-vol. 149-71 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is undisputed that Phillips was never required to turn in his key, as clearly was the custom when a driver was fired. He was not told he was "finished" until after the strike began on February 6. While it may well be that the driver's employment was in a somewhat uncertain or suspended status from February 1 until 6, the preponderance of credible evidence establishes that whatever may have been Pat Izzi's intention earlier in the week,-he took no affirmative action until after he had fired Dessler and Couitt, precipitating a strike of the other employees. Upon consideration of the entire record and Pat Izzi's impulsive antiunion conduct, the Trial Examiner is convinced and finds that Phillips was not discharged on February 6 because of any past dereliction, but because Izzi believed him to be a union adherent-a belief fully confirmed 2 or 3 days later when, as found above, Falco told him all drivers had signed union cards. In summary as to these two drivers, the Trial Examiner believes and finds that both Natale and Phillips must properly be considered as strikers who have been refused reinstatement. The Trial Examiner is in agreement with General Counsel's persuasive argument, well supported by citations, to the effect that under circumstances existing here the Respondent, having caused the strike and having tried by various unlawful means to break it, was obligated to reinstate all strikers upon receipt of the unconditional offer to return to work, and that it failed in such obligation by selecting a few from the total number to be recalled. Consistent with this conclusion, it is further found that the individuals who did receive personal offers to return were under no obligation to accept. To have done so would have permitted the employer to benefit by its own unfair labor practices and have yielded to its clear purpose and intent-destruction of the Union as their majority representative. F. Final conclusions It has been concluded above that the Respondent failed and refused to bargain with the Union by ignoring its demand for negotiations. It is now concluded that it also refused to bargain as required by the Act by other conduct; including: (1) failing and refusing to communicate with the Union directly concerning its unconditional offer to return all strikers, whom it lawfully represented, to work on March 20; (2) bypass- ing the Union and offering jobs only to some of the strikers; (3) changing wage rates for employees who did not immediately go on strike; and (4) promising and granting rewards and benefits to nonstrikers in order to undermine the Union's majority status. It is also concluded, in the context of this case, that by refusing to reinstate all strikers ,and selecting only some to be reinstated, the Respondent discriminated as to hire and tenure of employment to discourage union membership and activity, and that such discrimination further interfered with, restrained, and coerced employees in the ex- ercise of rights guaranteed by the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection' with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce -and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom, and take certain affirma- tive action to effectuate the policies of the Act. It has been found, herein that the Respondent unlawfully discharged certain employees, and unlawfully refused reinstatement to all strikers who unconditionally offered to return to work after a strike caused by the Respondent's unfair labor prac- tices. It will be recommended that the Respondent offer to employees Dessler and Couitt and to all employees listed on the attached Appendix A, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice, to their seniority or other rights and privileges, and make them.whole for any, loss of earnings suffered as a result of the discrimination against them , by payment to each of a sum of money he would normally have earned as wages from the, date of the dis- crimination (in the case of the employees listed on Appendix A, March 20, 1964) to the date of full offer of reinstatement , less net earnings during said period , and in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest on the backpay due in accordance with Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716. PAT IZZI TRUCKING COMPANY 1107 It will also be recommended that the Respondent, upon request, bargain collectively in good faith with the Charging Union, and if an understanding is reached, embody such understanding in a signed agreement. In view pf the serious and extended nature of the Respondent's unfair labor prac- tices it will be recommended that it cease and desist from infringing in any 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, the Trial Examiner makes the following. CONCLUSIONS OF LAW 1 Local 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act 2 All truckdrivers and helpers of the Respondent employed at its Providence, Rhode Island, terminal, exclusive of all other employees, office clerical employees, dispatchers, guards, and all supervisors as defined by the Act, constitute a unit appro- priate for the purposes of bargaining within the meaning of Section 9(b) of the Act. 3. By virtue of Section 9(a) of the Act, the said labor organization has been, since February 6, 1964, and now is, the exclusive representative of all employees in the said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 4. By refusing, since February 8, 1964, to bargain collectively in good faith with the said labor organization as the exclusive representative of all employees in the said appropriate unit, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a) (5) of the Act 5. By discriminating as to tenure of employment and reinstatement, to discourage membership in, and activity on behalf of, the above-named labor organization, the Respondent has engaged in and is engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act 6. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the Trial Examiner recommends that the Respondent, Patrick F. Izzi d/b/a Pat Izzi Trucking Company, its officers, agents, successors, and assigns, shall: 1 Cease and desist from: (a) Refusing to bargain collectively in good faith with Local 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all employees in the following appropriate unit: All truckdrivers and helpers employed at its Providence, Rhode Island, terminal, exclusive of all other employees, office clerical employees, dispatchers, guards, and all supervisors as defined by the Act. (b) Interrogating employees concerning their union membership and sympathies in a manner violative of Section 8(a) (1) of the Act. (c) Promising or granting benefits to discourage union membership and activity. (d) Threatening economic reprisals to discourage union membership and activity. (e) Discouraging membership in the above-named, or any other labor organization, by discharging, laying off, suspending, or refusing to reinstate any of its employees because of their union membership or activity, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described appropriate unit, and embody any understanding reached in a signed agreement. (b) Offer immediate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, to employees Frank Couitt and Murray Dessler and to employees listed on Appendix A, and make them whole for any loss of pay they may have suffered by reason of the unlawful discrimination against them, in the manner prescribed in the section above entitled "The Remedy." 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary for the determina- tion of the amounts of backpay due and right of reinstatement under the terms described herein. (d) Post at its Providence, Rhode Island, terminal, copies of the attached notice marked "Appendix B." 4 Copies of the said notice, to be furnished by the Regional Director for Region 1, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply therewith.5 'In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the 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 Circuit 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." 'In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A Rocco DiMillio Edward Mitchell Wilfred Pierce James Dias Patrick Macri Wesley Phipps Joseph Ferle Joseph Mazzatto Anthony Scaramuzzi Pasquale Falco Robert Natale Samuel Winer Edward Herman Frank Natale Walter Phillips Silvio Napolitano APPENDIX B 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 discourage membership in, or activities on behalf of, Local 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or any other labor organization, by discriminatorily discharging our employees, by refusing reinstatement to unfair labor practice strikers upon their unconditional request, or by discriminating against employees in any other manner in regard to their hire or tenure of employment, or any terms or con- ditions of their employment. WE WILL NOT unlawfully interrogate our employees concerning their union membership, desires, and activities. WE WILL NOT promise or grant benefits in an effort to discourage joining or remaining members of the Union, or engaging in concerted activities. WE WILL NOT threaten economic reprisals in an effort to discourage union activities. WE WILL offer to Frank Couitt and Murray Dessler and to the following ,named strikers, immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them:, , Rocco DiMillio Edward Mitchell Wilfred Pierce James Dias Patrick Macri Wesley Phipps' Joseph Ferle Joseph Mazzatto Anthony Scaramuzzi Pasquale Falco Robert Natale Samuel-Winer Edward Herman Frank Natale Walter Phillips' - - Silvio Napolitano CONTINENTAL CAN COMPANY, INC. 1109 WE WILL bargain collectively in good faith with Local 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed contract. The bargaining unit is: All truckdrivers and helpers employed at our Providence, Rhode Island terminal, excluding all other employees, office clerical employees, dispatch- ers, guards, and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. PATRICK F. IZZI D/B/A PAT Izzi TRUCKING COMPANY, Employer. Dated------------------- By------------------------------------------ (Representative) (Title) NoTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele- phone No. 523-8100, if they have any questions concerning this notice or compliance with its provisions. Continental Can Company, Inc. and Mickey Greco United Papermakers and Paper Workers, AFL-CIO and Mickey Greco. Cases Nos. 02-CA-728 and 22-CB-301. November 07, 1964 SUPPLEMENTAL DECISION AND ORDER On April 17, 1962, the Board, by a duly designated panel (Chair- man McCulloch, and Members Rodgers and Leedom), issued a De- cision and Order in this case (136 NLRB 1135), attaching the Trial Examiner's Intermediate Report and adopting his evidentiary find- ings, but (with Chairman McCulloch dissenting) not his conclusions that the Respondents thereby violated Section 8 (a) (1) and (3) and Section 8(b) (1) (A) and (2) of the Act. The Board therefore dismissed the complaints. On April 22, 1964, the United States Court of Appeals for the Third Circuit filed its Opinion (331 F. 2d. 165), holding that the evidentiary findings compelled the conclusion that the discharges were discriminatorily motivated, and remanding the case to the Board for further proceedings in conformity with the Opinion. Thereafter, the Charging Party and the Respondents filed state- ments of position and briefs. Pursuant to the remand, the Board has reconsidered the case, and hereby vacates its original Order and now adopts not only the find- 149 NLRB No. 92.