John F. Cuneo Co.

JOHN F. CUNEO COMPANY 35 John F. Cuneo Company and International Brotherhood of Book- binders, AFL-CIO. Cases 13-CA-6002 and 6174. June 10, 1966 SUPPLEMENTAL DECISION AND ORDER On May 26, 1965, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,' finding that the Respondent, John F. Cuneo Company had violated Section 8(a) (3) and (1) of the National Labor Relations Act, as amended. In this Decision, the Board although finding that employee Lazaro de Lazaro was discriminatorily discharged, deferred action on the reinstatement and backpay aspects of the remedy relating to him and remanded the proceeding to the Regional Director for further hearing before a Trial Examiner to receive further evidence and to make findings as to his suitability for reinstatement. The Board otherwise issued a re- medial order appropriate to the violations found, reserving the right to modify the Order to add provisions for Lazaro's reinstatement and/or backpay should such provisions subsequently be deemed appropriate. On March 3, 1966, Trial Examiner Horace A. Ruckel issued his Supplemental Decision, attached hereto, in the above-entitled proceed- ing, finding that Lazaro was suitable for reinstatement and again recommending that he be reinstated with backpay. Thereafter, the Respondent filed exceptions to the Trial Examiner's Supplemental Decision and a brief in support thereof.' 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 [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the reopened hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has considered the entire record in this proceeding, including the Trial Examiner's 1152 NLRB 929. son May 12, 1966, the Union filed a motion to strike the Respondent's exceptions to the Trial Examiner's Supplemental Decision and the Respondent 's brief in support thereof ; and on May 31, 1966, the Respondent filed a memorandum opposing the Union's motion to strike. The Union contended that the exceptions contain matter concerning Lazaro's ability to perform certain work which are not properly the subject of the remand proceed- ing. The Union's motion to strike is hereby denied . However, in making our decision, we have not considered any factual allegations contained in the Respondent 's exceptions and brief which relate to issues not within the scope of the Board's remand. In this regard, we also note that the Trial Examiner in his Supplemental Decision correctly refused to consider those portions of the Respondent's brief to the Trial Examiner relating to Lazaro's ability to perform work. 159 NLRB No. 5. A 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Supplemental Decision and the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. In view of the foregoing, we shall modify 9 the Decision and Order previously issued herein to conform to this Supplemental Decision.' ORDER IT IS HEREBY ORDERED that the Board's Order of May 26, 1965, in this case be, and it hereby is, affirmed with the following modifications : 1. The following is substituted for paragraph 1(a) of the Order : "Discouraging membership in or activities on behalf of the Interna- tional Brotherhood of,Bookbinders, AFL-CIO, or any other labor organization of its employees, by discharging, transferring, or refus- ing to reinstate any employee, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment." 2. The following is substituted for paragraph 2 (a) of the Order : "Offer to Jafus Jackson and Lazaro de Lazaro immediate and full re- instatement to their former or substantially equivalent positions with- out prejudice to their seniority and other rights and privileges, and notify them if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application, in accord- ance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces." 3. The following is substituted for paragraph 2(b) of the Order : "Make whole Jafus Jackson and Lazaro de Lazaro for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the Remedy section of the Trial Examiner's Decision herein, dated December 23, 1964." IT IS FURTHER ORDERED that the Respondent, John F. Cuneo Com- pany, its officers, agents, successors, and assigns, shall take the follow- ing additional affirmative action designed to effectuate the purposes of the Act : 1. Post at its plant copies of the attached supplemental notice marked "Appendix." s Copies of said notice, in English and in $ See Marshall Maintenance Corp., 149 NLRB 735. a We have been administratively advised that the notice , which, we had ordered to be posted in this case, has been posted for the prescribed period of time, commencing on June 23, 1965. However, as we are modifying our Order in this case to add provisions for Lazaro's reinstatement and backpay , we believe that in these circumstances the posting of a supplemental notice, incorporating those provisions ' of our Order which had not been included in the earlier notice, is necessary-to effectuate the policies of the Act. See Mid- western Instruments, Inc., 133 NLRB 1132, 1143, footnote 31. 5 In the event that this Order is 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 Supplemental Decision and Order." 0 JOHN F., CUNEO COMPANY 37 Spanish, to be furnished by the Regional Director for Region 13, shall, after being signed by the Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 2. Notify the Regional Director for Region 13, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX SUPPLEMENTAL NOTICE TO ALL EMPLOYEES Pursuant to a Supplemental Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL offer Lazaro.de Lazaro immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges. WE WILL make whole Lazaro de Lazaro by paying to him a sum of money equal to his loss of pay suffered as a result of the dis- crimination against him. WE WILL NOT discourage membership in or activities on behalf of International Brotherhood of Bookbinders, AFL-CIO, or any other labor organization of our employees, by discharging or re- fusing to reinstate any employee, or otherwise discriminating in regard to the hire and tenure of any employee's employment or any term or condition of employment. JOHN F. CUNEO COMPANY, Employer. Dated---------------- By--------='-------------------------- (Representative) (Title) NoTE.-We will notify the above-named employee if -presently serv- ing in the Armed Forces of the United States of his right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, 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. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 881 United States Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, 60604, Telephone 828-7597, if they have any questions concerning this notice or compliance with its provisions. - TRIAL EXAMINER'S SUPPLEMENTAL DECISION Background On Decision 23, 1964, Trial Examiner Horace A. Ruckel issued his Decision in this matter finding that Respondent had engaged in certain unfair labor practices alleged in the complaint including the discharge of Lazaro de Lazaro. The Board, on May 30, 1965, issued its Decision and Order upholding my finding that Lazaro's dis- charge was violative of the Act but remanding the proceeding to me to receive evidence, which I had rejected, as to his suitability for reinstatement. Respondent's contention, the Board stated, is "that it discovered the evidence of Lazaro's unsuitabil- ity while investigating the possibility of reinstating him prior to the issuance of the complaint." The complaint was dated January 22, 1964. Accordingly, on August 5 and 6, 1965, I conducted a further hearing at Chicago, Illinois, at which I heard the testimony of four witnesses as to Lazaro's suitability for reinstatement whose testimony I had excluded, as well as the testimony of other witnesses on the same point. At the conclusion of the hearing the parties were advised that they might file briefs. Both the Union and Respondent have done so., Upon the record and from my observation of the witnesses, I make the following: FINDINGS OF FACT .V , A.' The knife 1. The testimony of Rosario Luna Luna testified that one day prior to the Board election on September 13; 1963, Lazaro asked her to vote for the Union, saying that if she did not "something would happen" to her, and that the day before the election he told her that if she did not vote for the Union it would cause Respondent to lay her off. She told Lazaro that she did not believe him. On.the first occasion Lazaro was cleaning his fingernails with a knife. On the second, he'had a black book in his hand in which he' stated he listed those who did-not want the Union. She feared for her life because of these conversations. Accordingly, she told Frank Thomas,2 her supervisor, who is, assist- ant to Art Bjornson, general foreman of the sheet metal department, about the first conversation, but not the second, omitting however to tell,him that she was afraid for her life. Thomas told her not to pay any attention to Lazaro. She also told fellow employees Diaz and Correa about the first conversation but not the second. A few days after the election she reported both conversations to Bjornson himself, and he told her not to worry. This was almost 2 months before Lazaro's discharge on November 7, 1963. Prior to the first hearing in April 1964, she reported the conversations to Ingram, Respondent's labor relations consultant. They were not a part of his offer of proof at the first hearing. - 2. The testimony of Graciella Jackson Jackson testified she spoke with Lazaro about 2 weeks before the election of Sep- tember 13, 1963 in the presence of her sister, Theresa Diaz, and Lazaro told her 'On September 10, 1965, the Union filed a motion to strike Respondent's brief on the ground that it presents a matter, namely Lazaro's efficiency as an employee , which was not in issue at the first hearing and which is outside the scope of the Board' s remand. The motion is disposed of by the recommendation hereinafter made. I give no consideration to this part of Respondent's brief, which now advances the argument that Lazaro should not be reinstated because he "insinuated" himself into Respondent's employ when he was hired in August 1962 , by representing that he was a skilled flat cutter, whereas he was not as skilled at this work as he represented himself to be, other than to point out that Respondent kept him in its employ for over a year at this work, that his work perform- ance was not given as a reason for his discharge , and that Respondent cannot be heard at this late date to advance it as a reason for not reinstating him to his former job. 2 Thomas did not testify. JOHN F. CUNEO COMPANY 39 that if she did not vote for the Union it would be because they were enemies. When she said that he was the enemy he said that she should keep her mouth shut or he would shut it, forever. About 2 days before the election, again in the presence of her sister Theresa, Lazaro told them that they should be careful what they did at the election because the Union would "take us out of work." In December, after his discharge, Lazaro called her at home and told her that he would get his job back with Respondent because "Cuba never loses." It was not until after the December telephone call, but sometime shortly before December 16, that she reported the above instances to Bjornson, because she was "really frightened." Asked why she did not mention them to Ingram while con- ferring with him before she testified in the first hearing (May 20, 1964) she stated that it was because she "did not want to attribute any importance" to it. In the next breath she stated that she felt-her life had been threatened. She had had con- versations with other employees about the Union but she could not recall them. She recalled those with Lazaro because he spoke to her in a "naughty" way, and she liked to be "addressed correctly and in the proper and correct way, not roughly." No mention was made by counsel for Respondent, in his offer of proof at the first hearing, of the above incidents. .,, - 3. The testimony of Elisa Correa Correa testified that in July 1963, in a conversation with Lazaro in the presence of her,'sister Caroline, Lazaro brought out a knife and said that he was "going to open that on my head." In August 1963, in a conversation where she, Rosario Luna, and either Theresa or Maria Diaz were present, Lazaro threatened that things would happen to them if they did not join the Union. He had a knife which he threatened her with, though she gave no detail. Asked how many times she had seen Lazaro with a knife, and if it was more than once, she replied that this was the only occasion, when Luna and Diaz were present. There was no resolution of the contradiction between this and her testimony given a few minutes before, that in July Lazaro had threatened her and her sister Caroline with a knife and threatened to open up her head. Nor is,there any resolution of the contradiction between Correa's testimony and that of Rosario Luna that the only time Lazaro produced a knife in her presence was,when she was alone with Lazaro and he was cleaning his nails with a knife. Correa testified that she reported these incidents to Bjornson 2 or 3 days after they occurred, or 3 or 4 months prior to Lazaro's discharge, but that Bjornson said nothing. Prior to the first hearing she told President Gervase about them. She was not called as a witness at the first hearing. Employees Paul Rodriguez and Miguel Rodriguez testified that 2 days before this hearing Correa told them in the presence of -Maria Diaz and Rosario Luna that she was going to testify against Lazaro because she did not like "the Cuban." When the Rodriguez brothers protested that he had never done anything to her, Correa answered that that was her business. Neither Diaz nor Luna was recalled to the stand to rebut this testimony. 4. The testimony of Maria Diaz The testimony of Diaz is that Lazaro showed her a black book which he said was black magic, that he had her name written therein and that if she did not sign up in the Union she would4lose her job. She said she was not frightened because she had been employed for 16%years. She testified that any conversations with Laza'ro were before the election, and that she told Bjornson about them a day or 'so after they took place, and Gervase in August 1963, 3 'months prior to Lazaro's- discharge. Diaz further testified that she never saw Lazaro with a knife, thus contradicting Correa. - Ingram stated at this hearing,that Respondent did not rely on this in deciding to discharge Lazaro.3 It should be remembered that the reasons Respondent advanced in its answer for Lazaro's discharge were that he had been absent the previous week without notice, and, on the other hand , that be was not discharged but laid off in an economic layoff on November 7, 1963, "along with other persons whose services were not needed then or in the foreseeable future." It was stipulated at the hearing , however, that the only persons separated for lack of work , in addition to Lazaro , was a group of approximately 20 employees who were laid off in January 1964 , approximately 2 months after Lazaro. No reasons other than these two were alleged for Lazaro 's separation. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Conclusions Bjornson and Gervase testified that none of the above-named female employees reported to him that Lazaro had threatened her with a knife,4 and that when any of them complained about Lazaro it was only to the -effect that he had told them that if they did not join the Union they might lose their jobs if the Union came into the plant. Bjornson and Gervase both testified that they told them not to worry about their jobs, that only the Company did the hiring and firing. Lazaro, called as a witness, denied the testimony of the above witnesses in toto, and stated that he at no time did more than urge them, without threats of any kind, to join the Union. Luna, Jackson, Correa, and Diaz I found to be evasive, suggestible, imaginative, and eager. It is difficult to say where their imagination leaves off and their inven- tion begins. In certain instances their testimony contradicts itself and in other in- stances conflicts with the accounts of others of their group on important points. I do not find it necessary to resolve these contradictions since I believe none of these individuals to be telling the truth. Were I to credit the testimony of these female employees that some or all of their alleged conversations with Lazaro were reported to management, it would be to discredit the testimony of management's representatives. I would also have to credit the evidence that they were reported before Lazaro's discharge, thus barring Respond- ent from now urging them as a reason for not reinstating Lazaro (since they were not urged at the first hearing as a reason for his discharge), and bringing them outside the scope of the Board's remand, limited to the discovery by Respondent, after the discharge, of "evidence of Lazaro's unsuitability while investigating the possibility of reinstating him prior to the issuance of the complaint." 5. The testimony of Edmond Peterson Peterson worked with Lazaro on a gluing machine on a day which he testified variously was 6 months or 6 weeks before the election on September 13, 1963. As they were beginning work on certain material, Peterson suggested that they do as they usually did and start from the center of the bench and work each toward his own end, instead of each starting at an end. Lazaro made no reply. When they started a second layer of material Peterson renewed the suggestion but Lazaro demurred to it, saying that they "couldn't get, along together," and they continued the same work pattern. Peterson's testimony on direct examination continues: Q. Then what happened? A. Then he went over to his lunch box and got a paring knife and put it on the table. s s - s n • - s s Q. Did he say anything then? A. No. Q. Then what happened? A. Then I shut up. I didn't say anymore. Q. Why did you shut up? A. Because I was afraid. Peterson's direct testimony does not differ from his testimony, at the first hearing which, when he had concluded, I rejected. It is now offered as a reason for not reinstating Lazaro. Gervase, however, as in the case of the testimony of female employees, testified that the alleged incident of the knife was not a cause either of discharge or failure to reinstate. On cross-examination Peterson testified that he did not report this conversation to any supervisor until around Christmas 1963, when President Gervase asked him if he had ever seen Lazaro with a gun and he told Gervase that he had not, but said that Lazaro had threatened him with a knife, and gave him the account set forth above. Peterson's testimony on cross-examination was that although he and Peter- son frequently worked together they had never had any trouble, or even arguments, before or after the related incident, and that on the occasion in question Lazaro, had not used any threatening words. 4Although Gervase stated as to Correa that he could not "recall" any such conversation. JOHN F. CUNEO COMPANY 41 B. The -gun 1. The testimony of Gino Penzo Penzo testified that in April 1963, 5 months before Lazaro's discharge, he and Lazaro were eating lunch together when Lazaro, without saying anything, showed him a gun which he pulled from his pocket and Penzo told him he had better put it away. Lazaro put it back in his pocket and walked away. On direct examination Penzo described the gun as "a pistol, a slender pistol, small-on the side of the handle was a piece of wood with two screws. It was a dark gun, a black gun." Later, still on direct examination, he stated: "I am pretty sure it was a gun." Penzo did not report this to anyone. But during the following December, after Lazaro's discharge, Bjornson approached him and told him that he had "heard about the gun" and asked him if he had seen Lazaro with a "revolver," and he told Bjornson that he had. Bjornson testified that Gervase had requested him to inquire about Lazaro's hav- ing a gun, so he inquired of Penzo, and no one else, and Penzo answered in the affirmative. This was the entire conversation. Penzo did not tell him, and Bjornson did not ask, when or where he had seen the gun, or in what circumstances, or what the gun looked like, or what, if anything, Lazaro said. 2. The testimony of Marcel Jacquot This witness testified that one day Lazaro stopped him on the plant floor and called out "Hey, Frenchie," and pulled a gun out of his pants pocket. When Jacquot asked to look at it he put it back in his pocket. Jacquot described the gun as a revolver, not a pistol, as Penzo described it, and as being .22 or .25 caliber, chrome plated, both barrel -and cylinder, and not black. Lazaro did not threaten him with it. He told Penzo about it the same day, or later, and he and Penzo had lunch with Lazaro and told him to leave the gun at home. Penzo denied this. Jacquot testified that Penzo had told him about the gun previously. Penzo denies it. 3. The testimony of Steve Bluis Bluis, who had been employed 29 years, testified that in May or June 1963, Lazaro stopped him as he was passing his machine,; saying,'-'Hey, you," and opened his jacket showing a gun in his belt,5 not in a holster, which Bluis says was a .45 caliber auto- matic pistol, black in color: His testimony continues as follows: Q. Then what happened? A. I walked' away and forgot about the' incident. And it never occurred to me- Q. Just a moment. After you saw this pistol, did Lazaro de Lazaro say anything to you? - A. No, he did not. Q. Did you say anything to Lazaro de Lazaro? A. I just said okay, Castro, and I walked away. Q. Was there anything said about the use of this gun? A. He said some day I am going to shoot these bosses around'here. According to Bluis this was the first and last conversation he ever had with Lazaro. In December, Gervase asked him if it was true that he had seen Lazaro with a gun and he said that it was. Asked why he had not reported the incident to any super- visor he said that it "just slipped my mind." I consider Bluis' testimony to be un- reliable and the witness himself highly suggestible.' On January 1O, 1964, in a statement given an investigator for the Board, Gervase made no mention of any threat to "kill the bosses," although, at the hearing, he seemed to consider this the crux of the matter, since he testified that he did not think he would have refused reinstatement if the gun was only to be delivered to someone. The testimony of Gervase is that he heard from an employee, Joseph Poddy,6 that Lazaro was carrying a gun and that several employees, including Peterson,7 had seen the gun, whereupon Gervase investigated. As has been related, he discounted all reports that Lazaro had threatened employees with a knife and testified that neither 5 On cross-examination he testified that a statement he had given the Board's investigator that he "pulled out a gun" was not true, and that Lazaro did not remove it from his belt. 9 Not called as a witness 7 It is noted that Peterson, whose testimony is summarized above, made no mention of a gun while testifying. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the evidence of the female employees nor of Peterson was cause for discharge or reinstatement8 In deciding whether to reinstate Lazaro, Gervase and Bjornson confined their investigation to Penzo (the only employee interrogated by Bjornson), Peterson, Bluis, and possibly one other, most of them employees of long standing and all of them known to be antiunion . None of them was closely associated with Lazaro in the performance of his work or otherwise . I am convinced that their testimony, like the testimony of the female employee, was tailored to fit what they believed to be the wishes of Respondent's representatives. In addition to Paul and Miguel Rodriguez , whose testimony has been related above, the Union called Santos Diaz, who worked in the same area as Lazaro and ate lunch with him and had a locker next to him , James Owens, and Jafus Jackson, whose locker was near Lazaro's. They testified that they had never seen Lazaro with a knife or gun, or heard from any employee that he had been seen with either. Paul Rodriquez and Jackson testified that Lazaro did carry a black bible. Jackson on one occasion discussed the text which Lazaro had preached one Sunday. Lazaro denied while testifying all of the testimony of Respondent 's witnesses on the relevant matters. He never possessed a gun or knife, other than a scraper or knife he used in his work, furnished by Respondent . He made no threats of any kind to anyone. He did not threaten to shoot the bosses. He possessed no book of black magic or any book of names of those opposed to the Union , or say to any- one that he did. He testified that he never talked with Bluis, Penzo, or Jacquot about the Union because it was well known that they were in the confidence of Respondent. Lazaro is an ordained minister. He left Cuba because he believed the govern- ment to be hostile to his religion. He now preaches in this country. A letter from James Lambert Kidd, pastor of the Wellington Avenue Congregational Church in Chicago, received in evidence without objection, states that Lazaro is an active mem- ber of his congregation whose employment by Respondent was secured by his church, that the charge that he threatened anyone with a gun is incredible as being utterly foreign to his nature. I credit Lazaro's denials in their entirety. There is no credible evidence in the record that he threatened anyone with either a knife or gun , or made threats of any other kind to any employee. RECOMMENDED ORDER I renew my recommendation that Lazaro de Lazaro be reinstated with backpay. 8 It is difficult to understand why this testimony should have been adduced, in view of President Gervase's view of the matter. Cornwell Company, Inc. and Maynard N. Whitney and United Furniture Workers of America , AFL-CIO. Cases 25-CA-1912, 1952, 2106, and 2185. June 10, 1966 DECISION AND ORDER On March 15, 1966, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices,,and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examin- er's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. There- after, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 159 NLRB No. 21.