Peter Carando, Inc.

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peter Carando , Inc. and Local 33, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 1-CA-6457 September 25, 1969 DECISION AND ORDER BY MEMBERS FANNING , BROWN, AND ZAGORIA On February 28, 1969, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that the Respondent 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 Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Peter Carando, Inc., Springfield, Massachusetts, its officers, agents, successors, and assigns, shall take the action set 'In adopting the Trial Examiner 's findings that the Respondent violated Sec 8( a)(1) when Peter Carando, Jr said that ( I) those who didn't like the family business arrangement could "get out ", (2) if the employees were represented by the Union their overtime would be reduced , (3) the employees would enjoy greater vacation benefits at the new plant , and (4) under the Union the employees might lose their profit-sharing plan, we note particularly the timing of such remarks , since they were made shortly after the Union's demand for recognition and constituted apparent promises of benefit and threats of retaliation to deter the Respondent's employees from joining the Union We reject, upon a careful examination of the record , the Respondent's contention that the Trial Examiner manifested prejudice and partisanship throughout the hearing and in his Decision The trial Examiner's findings are based , in part, upon credibility determinations to which the Respondent has excepted After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all relevant evidence Accordingly we find no basis for disturbing these findings Standard Drv Wall Products, 91 NLRB 544 enfd 188 F 2d 362 (C A 3) forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: Copy of the original charge herein was served upon Respondent on September 16, 1968,' The complaint issued on October 3, and the hearing was held on December 16 and 17. The issues litigated related to alleged violations of Section 8(a)(1) and (3). After the hearing briefs were filed by Respondent and the General Counsel. Upon the entire record,' including my observation of the witnesses, I adopt the following findings and conclusions, 1 RESPONDENT'S BUSINESS Peter Carando. Inc , a corporation, herein called Respondent, is engaged at its plant in Springfield, Massachusetts, in the manufacture, sale and distribution of sausages. During its latest fiscal year Respondent sold and shippped products valued at more than 550,000 to out-of-State points. Respondent is engaged in commerce under the Act. fl. THE UNION Local 33, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, hereinafter called the Union , is at labor organization under the Act. In. THE UNFAIR LABOR PRACTICES The pleadings raise the following issues: (1) Whether Respondent violated Section 8(a)(1) of the Act by various promises, and threats, and by soliciting employees to report on the Union activities of other employees,' and (2) whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging Gugliette? A. Sequence of Events Respondent employs about 100 in its plant, where it is engaged in the manufacture of sausages. The Union launched its campaign to organise the plant in July, visiting employees at their homes and, beginning in August, conducted meetings attended by a number of employees. On August 27. Gugliette, maintenance helper, signed a union card; and, several employees were invited to meet union agents at his home on September 10. When none of them appeared, it was arranged by the Union with Gugliette that a larger meeting would he held on September 18, and that he would pass word of that meeting to his fellow employees at the plant. fie did so the next day. During the same day he was discharged, allegedly for incompetence. The next day, September 12, the Union requested recognition by Respondent as the bargaining agent of the employees, which request was rejected. On September 17 and 30, Respondent's vice president, Carando, Jr., delivered speeches to the assembled employees. the general purport of which was that the employees had nothing to gain from a union As 'All dates are in 1968, unless otherwise stated 'For corrections of the transcript of testimony, see the order of February 14, 1969. 'Certain allegations of 8(a)( I) violations which were struck at the hearing will not here be considered 1,79 Ni RR Nn 100 PETER CARANDO, INC. 643 to specific items in these speeches, there was conflicting testimony which will be discussed below. B. Discussion 1. The 8(a)(1) issues Gugliette testified that late in August, while he was working on a conveyor in the "sausage cooler," Lalli, an admitted supervisor, entered the room, closed the door, and, addressing some 12 employees in the room, alluded to the start of the Union's campaign, and warned them that, it they adhered to the Union, they would lose their benefits and Respondent would reduce their work hours; and that discussion ensued between Gughette and Lalli as to whether the employees were already receiving a 2-week vacation, Gugliette taking the position that they were not, and Lalli insisting that they were. Gugliette added that Lalli concluded his remarks by advising the employees that it was "up to you people it you want the Union." Lalli denied that there was any such incident. Although, under cross-examination, Gugliette amplified his prior account of Lalli's remarks by citing a threat therein to eliminate Respondent's existing profit sharing plan, the amended complaint alleges only a threat by Lalli to reduce overtime.' Accordingly, that will be the only matter here considered. Respondent points to the fact that there were certain variations between Gugliette's versions under direct examination and under cross-examination, one of which has already been mentioned. However, these variations did not represent any direct conflict, but consisted in the furnishing of more details about Lalli's speech at one point than at another.' Respondent's brief also cites the failure of the General Counsel to call any of the dozen or so employees to whom Lalli allegedly spoke However, Gugliette testified that he did not know their names" and there was no evidence nor contention that the General Counsel knew their names In any event, Respondent was in a better position to ascertain what employees worked in that area of the plant during August, and, if their testimony would have been favorable to Respondent, it is difficult to understand why it failed to call them. Thus, if any inference is to be drawn from their nonappearance, it would seem adverse to Respondent rather than the General Counsel. Moreover, as related below, Lalli proved himself' an unreliable witness with regard to other matters. As for Gugliette, during his lengthy sojourn on the witness stand, he impressed me as rather naive, and, in any case, as not sufficiently astute' to invent the foregoing, circumstantial account of the cooler room incident. Accordingly, I credit Gugliette and find that on the foregoing occasion Lalli warned the employees that, if they adhered to the Union, Respondent would reduce their hours of work, and that by such threat of reprisal Respondent violated Section 8(a)(1). 'At the hearing , the General Counsel orally amended the original complaint by adding an allegation of a threat by Lalh to revoke an existing profit-sharing plan Because of the multiplicity of such amendments offered at the hearing, the Examiner instructed the General Counsel to submit in writing an amended complaint containing all such amendments Such a document was subsequently submitted , and, with respect to the foregoing "sausage cooler" incident, alleges only a threat to reduce overtime. 'The only item as to while there appears to be any possible conflict was whether, as Gugliette testified on direct , Lalli said, " . there was a union starting around ," or, as Gugliette testified on cross, Lalli said that he "heard a rumor that the Union is starting in here " I do not regard such a variation on an immaterial point as significant , particularly when one All the other 8(a)(1) allegations relate to the speeches delivered by Carando, Jr, on September 177 and 30. The amended complaint alleges that these speeches contained the following promises and threats, calculated to influence the employees' union sentiments : (a) a threat of loss of overtime; (b) a threat to abolish profit sharing; (c) a threat to discharge Union adherents; (d) a promise of increased vacation benefits; and (e) a promise of higher wages. In addition, it is contended that in the foregoing speeches employees were solicited to report on the union activities of other employees. The General Counsel relied on the testimony of two employees as to the content of the speeches. Respondent, on the other hand, relied principally on the testimony of Carando. Sr., Respondent's president, and Carando, Jr , its vice president, that the speeches were read in their entirety by Carando, Jr , from a prepared text, and that, after such reading. the elder Carando paraphrased his son's remarks in Italian for the benefit of those employees who were not sufficiently versed in English; and, Respondent introduced in evidence the text of the speeches, as verified by the Carandos. There remains to be considered the various conflicts between the foregoing text and the testimony of the General Counsel's witnesses. Stellato, who was still in Respondent's employ, testified that in the first speech Carando, Jr., asserted that under a union the employees, would lose overtime, and promised that vacation benefits would be improved after Respondent moved to its new plant, which was then under construction; and that in the second speech Carando, Jr., warned that the employees might lose their profit-sharing plan under a union, urged the employees to notify him at once, if they were solicited in the plant to sign a Union card, and declared: We have always been like a family The ones who don't want to join the family get the hell out. Stellato testified that the first speech was read from a sheet of paper, but the second was not. Rigazio, a former employee, testified that in his "second" speech Carando, Jr., inter alia , promised that after the move to the new building, if the employees worked only 40 hours a week they would receive the same earnings as they were then receiving for 49 hours' work, and stated that Respondent's was a family business and that, "if you didn't like the family, to get the hell out." According to this witness. this speech was read by Carando, Jr., from a document in his hand. Although the witness described this as the "second" speech, it developed that he meant only that it was the second of two speeches delivered on the same day to different groups of employees, and, when asked specifically whether it was delivered on the 30th, answered only that he thought so.' However, since Rigazio's testimony as to the contents of the speech included references to matters (other than those cited above) which, for the most part, appear only in the prepared text of the September 17 speech, it is found that the speech concerning which he testified was the one delivered on that date. considers the notorious tendency of persons not trained in the law to equate hearsay reports with statements of fact 'As a maintenance man, he was not regularly employed in the sausage cooler but worked throughout the plant. 'Although some employee testimony gave September 23 as the date of the first speech, 1 accept the testimony of the Carandos that the correct date was September 17. 'Up to that point the questioning of Rigazio had proceeded on the 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Carandos insisted that both speeches were read by Carando, Jr., from a prepared text, to which he adhered faithfully, and he specifically denied that he made the various threats and promises ascribed to him by Stellato and Rigazio. Daponde, an employee witness for Respondent, corroborated that Carando, Jr., read both speeches. The text of the first speech introduced in evidence, recited, inter alia , that the Union had made a request for recognition, which was rejected by Respondent, reminded the employees of the various benefits conferred on them by Respondent, including pay raises and profit sharing, implied that the Union's only purpose was to extract dues and other monies from the employees, and extolled the "cooperative family spirit" prevailing in the plant. The second speech, inter alia, imputed to the Union various misrepresentations, referred to alleged threats by solicitors for the Union that those who refused to sign a union card would lose their jobs, urged that such threats be reported immediately to Respondent for appropriate action, asserted that Respondent would not "let anybody push our employees around," and concluded: We intend to do everything legally within our power to protect people from having a Union forced upon them against the will of the majority. Don't let yourselves be tricked or misled by people who are not your friends. Don't be afraid to stand up for your rights because we will protect you. While I am satisfied that the first speech, at least, was read from a prepared text, the question remains whether, in addition, although seeming to read therefrom, the speaker interpolated remarks not appearing therein, such as those described in the testimony of Stellato and Rigazio. Unlike the. Carandos, neither of them appeared to have anything to gain by their testimony,' and Stellato must have been aware that he was risking his employer's displeasure by so testifying. While the recollection of Stellato and Rigazio was fragmentary and coincided on only one point-the injunction to "get out," addressed to those who did not share in the "family spirit"-they, at least, displayed a better recollection of the matter than Respondent's own employee witnesses. Of all such that were called, only Daponde was questioned by Respondent's counsel about the speeches, and, apart from testifying that they were read, he exhibited a total ignorance of the matter, as did another such witness (Garvey) in response to questions asked by the Examiner.10 Accordingly, I credit the mutually corroborative testimony of Stellato and Rigazio that Respondent indicated, in effect, that those who preferred the Union to the "family" were persona non grata and their departure would be welcomed. Presumably, it is this remark that is alleged by the General Counsel to constitute a threat of discharge. While it falls short of spelling out such a threat, it clearly bespoke Respondent's displeasure with such nonconforming employees, and was calculated to render them apprehensive, if not about their job security, at least about their prospects of favorable consideration for promotion, merit raises , or other preferments . It is found that, by thus stigmatizing union adherents as undesirable assumption that his testimony related to the September 30 speech (No questions were asked him at the hearing about a speech on any other date 'There was no evidence that they were union adherents . Rigazio, in any event, no longer had any stake in the Union 's campaign, since he was not in Respondent's employ at the time of the hearing. and adjuring them to leave the plant, Respondent violated Section 8(a)(1). As already related, Stellato testified, also, that in the first speech there was a threat of loss of overtime under the Union and a promise that vacation benefits would be improved at the new plant. Rigazio failed to corroborate this. However, in view of the fact that the foregoing threat of loss of overtime repeats the note sounded by Lalli in his August speech, and, in view of the other, aforementioned circumstances favorable to Stellato's credibility, I find that Carando, Jr., did threaten that, if the employees came to be represented by the Union, Respondent would reduce overtime and at the same time promised greater vacation benefits after the move to the new plant. Even if it be assumed that the foregoing promise was not impliedly conditioned on rejection of the Union, I find from its timing and context that the purpose thereof was to discourage union activity. It is, accordingly, found that Respondent thereby additionally violated Section 8(a)(1)." Stellato's testimony that in the September 30 speech the employees were warned that under a union they might lose their profit-sharing plan was neither corroborated nor contradicted by Rigazio, who, as found above, testified only concerning the September 17 speech. For reasons already stated, Stellato is credited, despite the denials of the Carandos, and it is found that Respondent thereby violated Section 8(a)(1) of the Act. Stellato testified that in his second speech Carando, Jr., told the employees to inform him at once if "anybody goes running to the shop and try to make anybody sign a Union card ... " The General Counsel contends that this constituted unlawful solicitation of employees to inform on the union activities of other employees. However, it is inferred that Stellato's testimony here has reference to the following statement in the prepared text, which was prefaced by a charge that certain employees were threatening others with loss of their jobs, if they refused to sign a union card: We wish to make it clear that these are lies UNDER NO CIRCUMSTANCES will anyone lose his job at CARANDO'S because he refuses to belong to a Union. If any employee threatens or pesters you during working hours with these lies or threats, I want you immediately to report this incident . . . to the office, and I assure you that appropriate action will be taken. Since it is apparent from the foregoing that Respondent was seeking information only about coercive solicitation, "For a more detailed discussion of such testimony , see the text , below. "Stellato testified that in the second speech Respondent announced an increase in health insurance benefits in the form of an enlargement of hospital room coverage to $42 a day Since such an announcement does appear in the text of the first speech, it is inferred that Stellato was mistaken when he related this to the second speech . As to the legality of this, although the matter is treated in the General Counsel 's brief, it is not alleged in the amended complaint Moreover, I credit the uncontradicted testimony of Carando, Jr, that at this point he was merely reminding the employees of a past benefit, the increase in hospital room coverage having been effected, and publicized to the employees , on July 20, and there is no evidence that Respondent on that date had any knowledge of the Union campaign Accordingly, I find no violation in this regard As found above, Rigazio ascribed to Carando, Jr., a statement in his first speech to the effect that, if, after the move to the new building, weekly work hours declined to 40, the employees would still receive the same pay as they were then getting for 49 hours Stellato failed to corroborate this. At any rate, since, even if Rigazio is credited, this promise involved a double contingency -the removal to the new plant and a decline in work hours-1 deem it too insubstantial to warrant a violation finding PETER CARANDO, INC. 645 which would not be protected by the Act, I find no violation here. 2. The discharge of Gugliette According to Respondent's records, Gugliette was hired in March 1963,12 at a rate of $1.50 an hour as an unskilled laborer. About a year later, he began to work as a maintenance helper under the direction of Fields on a full-time basis, except for occasional, temporary assignments to other work. The maintenance supervisor was Lalli, who, in addition, supervised a production operation and had some purchasing duties. In December 1967, when Fields quit, Lalli took over the direction of Gugliette's work, which arrangement continued until his discharge on September 11. By that time Gugliette's hourly rate had risen from $1.50 to $3.04, and $.70 of this increase was granted during the last 12 months of his employment, of which amount only $ 20 represented plantwide raises," the balance of $.50 being presumably individual increases. Of this amount, 24 cents was granted late in August, which it is inferred represents the S10 a week increase which, it is agreed. was granted to Gugliette at that time in consideration of his relinquishing certain outside work. However, even if one does not count this, the fact remains that during the last 12 months of his employment, during most of which period he worked under Lalli, Gugliette received raises totaling 26 cents an hour, which must be considered as merit increases. Insisting that he was, nevertheless, dissatisfied with Gugliette's performance, Lalli cited three examples of his incompetence during 1968. beginning with a steam pipe incident in April, which was followed by a canning machine episode in August and a steam valve problem on September 11, which last event allegedly triggered Gugliette's discharge.1° According to Lalli, the first of these incidents- in April -prompted him to complain to Carando, Sr.. that he could no longer work with Gugliette, and Carando, Sr., promised to try to find someone to fill the vacancy created by Field's departure. Lalli added that, after the canning machine incident in August, his initial reaction was, again, to complain to Carando, Sr , who counselled patience, adding, "We are going to try to get a person. and when we do, this problem will be resolved." While Lalli's foregoing testimony as to his complaint in April was substantially corroborated by Carando. Sr., he explained that at the time his intention was not to replace Gugliette but to find someone to take over Lalli's function of directing Gugliette's work.15 Carando, Sr., continued that even before April he had been looking for a replacement for Fields, and that in May he approached Brisbois, who had been servicing certain of Respondent's equipment, and offered him Fields' fob, that Brisbois demurred at first, but, finally. early in August, promised to come to work for Respondent that fall, and it was arranged that he would meet with Carando, Sr., 3 weeks before entering on duty "Gugliette thought his hiring date was March 1962. 1 deem Respondent's records more reliable. "See Resp Exh. 2 "Although denying any culpability with regard to the other two incidents, Gugliette admitted that he was responsible for the damage to the canning machine. In view of this admission , no useful purpose would be served by attempting to resolve conflicting testimony as to the precise nature of his mistake on that occasion "As to the canning machine incident, according to Carando, Sr., he gave only a noncommittal response to Lalli's complaint. to discuss terms. As to the contemplated effect of the hiring of Brisbois on the retention of Gugliette, the witness gave two somewhat different accounts. Under direct examination, he seemed to say that when, at their May meeting, Brisbois asked what would become of Gugliette, the witness rejoined that it would be necessary to discharge him, and the witness added that, in reporting these discussions to Lalli, the witness repeated that, when Brisbois came, Gugliette would have to go. Although this was corroborated by Lalli," Carando, Sr., under cross-examination, stated that he told Brisbois that he was not sure whether he would discharge Gugliette, and the witness acknowledged that he did not actually decide to discharge Gugliette until the events of September 11, discussed below, and that, had Gugliette's work improved after his $10 raise, he would have been retained even after Brisbois reported. The latter did not in fact report until early November and Lalli averred that during the interval of about 7 weeks between Gugliette's discharge and Brisbois ' arrival Lalli had to do all the maintenance work himself, as best he could." Both Carando. Sr., and Lalli agreed at the hearing that the decision to give Gugliette the $10-a-week raise in August (only a few days after the canning machine incident, referred to above) was prompted by the hope that his efficiency would improve if he curtailed his outside work and that Gugliette was warned separately by each of them at that time of discharge, if he did not show any improvement. However, Gugliette' s version was that he was notified of the raise by Carando, Sr., who stated only that it was conditioned on his giving up his outside work, and that he did give up the bulk of such work, and Gugliette denied that he had ever been warned of discharge. Thus, even if one credits Carando. Sr., who assumed responsibility for the ultimate decision to discharge Gugliette, the fact that he had been seeking since early in the year to find a fully qualified maintenance man did not mean that he had decided to discharge Gugliette, and it was in fact his intention before September 11, to have Brisbois relieve Lalli of the maintenance duties he had inherited from Fields, and to have Gugliette continue as Brisbois' helper. In any event, Lalli admitted that it was Respondent's normal practice not to discharge an employee until a replacement was available. Lalli, also, admitted that late in August, when Gugliette received his $10 raise, Respondent had no definite assurance that Brisbois would report, and that it was deemed wise to hold on to Gugliette in the meantime and attempt to upgrade his performance, and thereby salvage Respondent's "investment" in him . However, according to Lalli after the incident on the IIth he feared to retain Gugliette on maintenance work because of the damage he might cause by his ineptness, and, in fact, because so disenchanted with Gugliette that Lalli would not even "In connection with the Brisbois matter , an incident occurred at the hearing that appeared to reflect on Lalli's candor During the General Counsel's case, he testified at some length (under rule 43(b)) about his efforts to secure Brisbois as a replacement for both Fields and Gugliette and about other details of his search for a maintenance man. It was only after Respondent's counsel interposed a suggestion (presumably intended as an objection to the pending question) that it should first be established that it was Lalli who approached Brisbois that the witness acknowledged that he was not "the first one" to approach Bnsbois, and later testimony of Lalli and Carando, Sr., disclosed that Lalli did not approach Brisbois at all, the matter being handled entirely by Carando, Sr. "In addition, Lalli supervised a production department , consisting of about 14 employees, and had some purchasing duties. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consider transferring him to an unskilled labor job.18 As to the events of September 11, his last workday, Gugliette gave the following account, during his initial appearance on the stand: During the morning he notified 20 to 30 employees of the Union meeting scheduled for the 18th. At the 3 p.m., coffeebreak he sat at the same table with Lalli and Carando, Sr., who, were not more than 10 feet distant from him . He told five or six employees at the table of the union meeting, including Parerra Cardinal, Newbury, and Lengilenjies. and, while this was going on , Lalli put his coffee cup down and stared at Gugliette. At 4:30 p.m. Lalli asked him who had left the toolcrib open , and, when he answered that he had, Lalli discharged him, citing the fact that Carando, Sr., had "dumped on" Lalli because of a pipe in another building that had been left hanging, and declaring that he (Lalh) was getting too many headaches. When Gugliette then asked Lalli for a layoff slip, he went to the office and returned with the report that Respondent did not give out such slips. Gugltette then put his tools in the car, and turned his keys over to Carando, Sr., punching out about 4:45 p.m. that day.l° Gugliette added, without any contradiction. that he had always left the toolcrih unlocked during the day, and that the pipe in question had been hanging for 3 or 4 years. and he had never before been told to secure it. Respondent's witnesses gave an entirely different version . Lalli testified that in the morning of the 11th he recommended Gugliette's discharge to Carando, Sr., who approved it, and that such recommendation was prompted by an incident relating to a valve on the return pipe leading to a boiler, which supplied steam heat to the pepperoni room and controlled the humidity in the room. According to Lalli, the matter had its inception on Saturday, September 7, when Gugltette performed certain repairs on the pipes attached to that boiler, during which repairs it was necessary to close the foregoing valve. The witness continued that the next day, Sunday, Carando, Sr., advised him that there was no heat at all in the pepperoni room, that on Monday Gugliette was assigned to find the reason for this; that finally, early in the morning of Wednesday, September 11, Gugltette reported to him that he had found that the valve in question had not been turned on after the foregoing repairs were completed, thereby presenting the spent steam from returning to the boiler; that, when Gugliette failed to explain why the valve was still closed, Lallt decided that Gugliette would have to be discharged that day, that, when, after the 9 a.m. coffeebreak, he gave Carando. Sr., the alternative of retaining Gugltette or Lalh, Carando, Sr., authorized the discharge; and that about 10 a m. Lalli notified Gugltette that he was being discharged because of the steam valve matter. Carando, Sr , confirmed that he reported to Lalli on Sunday that there was no steam in the pepperoni room; that about 10 a.m. on the 11th I.alli reported the aforedescribed valve incident to him, threatening to resign, unless Gugltette was discharged. and that his discharge was thereupon authorized by the witness. He added that about 11:30 a.m. Gugliette tendered him the keys.Y° When asked whether he had seen Gugliette again that day, the "Lalli admitted that after September 11, he hired some unskilled labor "Gugliette and Carando , Sr., gave apparently conflicting account, of a conversation between them at the time the keys were handed over As it does not seem that resolution of this conflict would shed any material light on the reason for Gugliette's discharge, the matter will not be further considered witness gave a rather obscure answer, which was construable as a statement either that he had seen Gugliette return about 1 or 1 :30 p.m. to pick up his tools or that he assumed that Gugliette had done so. However, when the witness was again asked whether he saw Gugliette return at 1:30 p.m., he answered only, "He had to come back to the plant because he had to pick up his tools." It is evident therefore that the witness did not claim to have seen Gugliette in the plant after the transfer of the keys at 11:30 a.m. Lalli confirmed that about 11 a.m. he saw Gugliette talking to Carando, Sr., and holding a bunch of keys. Lalli added that at noon Gugliette asked him for a "pink slip" or discharge notice, which request was rejected by the witness, after consulting Carando, Jr. The latter testified that it was about 11:30 a.m. when Lalli reported that Gugliette wanted a "pink slip" setting forth the reason for his discharge; that the witness called his "corporation attorney," who advised him that he was not required to furnish such explanation;21 and that he so informed Lalli shortly before noon. The witness added that it was about this time that he learned from Lalli that he was discharging Gugliette because of his inadequacies, citing a 3-day search and the discovery of the closed valve that morning Thus, Lalli and the Carandos were in substantial agreement that their last contact with Gugliette was about noon on the l Ith, and the Carandos agreed that in the morning of the 11th Lalli cited the closed valve to them as the immediate reason for the discharge. However, while insisting that that matter was, in fact, the last straw, Lalli did not dispute Gugliette's testimony that, in discharging him. Lalli mentioned the unlocked tool crib. Lalli conceded, in fact. that he did make such a remark, but explained that this was a mere conversational gambit.22 Finally, both Lalli and the Carandos denied that before Gugliette's discharge they had any knowledge of employee Union activity, and Lalli and Carando, Sr , specifically denied that they had ever overheard any discussion of the Union by Gugltette. A number of employee witnesses were called by Respondent to corroborate the foregoing version of the circumstances of the discharge. Stnisecalchi testified for Respondent about an occasion when the witness, Lalli. and Gugliette discovered that there was no steam in a room on the third floor of the plant, that all three checked "all over." and that Gugliette found that a valve was closed, but denied that he was responsible therefor. While at one point, on direct, he estimated that the steam was off for I or 2 days, the witness, under cross-examination, said that Lalh reported the lack of steam at 7 a.m , and the closed valve was found only about half an hour later As to the date of this incident, the witness testified at one point that it was a Wednesday, but elsewhere indicated that it was anywhere from I to 3 days before Gugliette's discharged2' Moreover, while it was difficult to ascertain from the witness' confused testimony where the valve in question was "See preceding lootnote "That attorney was not called to verity the time of such consultation, and no explanation was offered for that omission "The foregoing admission was made in the course of Lalli's testimony for Respondent He had not mentioned the toolcnb remark in his initial account of the discharge , (while testifying under rule 43(b)), but he explained that his memory had been revived by Gugliettc 's testimony and by a view Lalli had taken of the tool, rib that morning, before taking the stand At the same time , he denied that he had made any reference to the unsecured pipe, in discharging Gugliette "In this respect, at least, the incident here described more closely PETER CARANDO, INC. 647 located, the more likely interpretation thereof seems to be that the valve was not on the return pipe but on a steam supply line. Garvey corroborated certain testimony of Lalli that on the 11th at the 9 a.m. coffeebreak he complained to Garvey of Gugliette's shortcomings, citing his failure to turn on a steam valve, and declaring that Lalli was about to give Carando, Sr., a choice between retaining Gugliette or Lalli. Garvey added that he attended the afternoon coffeebreak, and was "pretty sure" that Lalli, who usually sat next to him at coffee, was there, but did not know whether he saw Gugliette there He admitted that at the coffee breaks Gugliette usually sat about 10 feet from Lalli, but he denied that at the afternoon coffeebreak he heard any discussion of the Union by Gugliette, and could not recall having seen Gugliette at all that afternoon. Garvey, however, demonstrated either the fallibility of his memory or his partisanship" by his answers to questions by Respondent's counsel about Carando, Jr.'s speeches He related that he thought he had heard one such speech, was vague as to the date, and insisted that Carando, Jr , "never said anything for or against the Union" nor about insurance or wages. both of which items were admittedly mentioned in the speeches. He, Finally, indicated that the speech he had in mind was one Carando, Jr., made on a different occasion (when the Union picketed the plant) Daponde testified that about 10 or 1 1 a.m., on the 11th, he saw Gugliette picking up some tools, and was told by him that he had dust been discharged because of Lalli's dissatisfaction with his work; and that he did not see Gugliette again that day However, Daponde. also, gave a highly partisan account of the content of Carando's Jr.'s speeches. As already noted, he corroborated the testimony of the Carandos that the speeches were read, but he insisted, contrary to the fact, that Carando. Jr., expressed no opinion therein about the Union, pro or con, and denied, also contrary to the fact, that anything was said therein about Union cards or dues.2' Cardinal, whom Gugliette claimed to have notified of the Union meeting at the 3 p.m. coffeebreak, was called by Respondent, and, while acknowledging that he usually had coffee with Gugliette, denied that he did so in the afternoon of the 11th, and, claimed to have last seen Gugliette in the plant on the 10th. When asked whether Gugliette had ever notified him of the Union meeting to be held on the 18th, he answered, "I don't recall." Another of Gugliette's alleged partners at the afternoon break, Newbury. denied that he was even in the plant at that time in the afternoon of Gugliette's discharge.t6 While avowing that he might have heard Gugliette talk about unions in the plant to others, he pleaded inability to recall what was said. He claimed not to have learned of Gugliette's discharge until the next day, but had difficulty in recalling the calendar date of the incident, finally nlacina it in October. parallels the ' cooking room" incident described by Gugliette in the text, below, than the one described by Lalli "He had worked for Respondent for 17 years, and was still so employed at the time of the hearing "fie professed to have no other recollection of any remarks about the Union by Carando, Jr . except that, when an employee complained about the Union's visits to his home, he was told that, if such visits persisted, he should "send them away " While such advice appears in the text of the second speech , it is not clear from Dapondc's testimony whether he was relating the foregoing remark to that speech or to another less formal occasion Lengilenjies, who was also named by Gugliette as a participant in the coffeebreak incident, insisted that Gugliette told him about the Union meeting in the morning, not the afternoon , of the 11th, and, although attesting that Gugliette always sat next to him at coffee, he professed to be unable to recall whether Gugliette attended the afternoon break or was anywhere else in the plant that afternoon.27 Gugliette testified, in rebuttal, that there was no incident on the 11th involving a steam valve; that, while he had neglected to shut off such a valve 3 days earlier, that was one which affected the steam in the cooking room , and not the pepperoni room ; that he corrected his mistake the next day, when it was called to his attention by another employee; and that, when, the same day, he reported the matter to Lalli, he offered no comment. As to his work activities on the 11th, he related that he went about his usual duties, punched out for lunch at noon, punched in after lunch , and punched out soon after his discharge at 4:30 p.m. This was partially corroborated by Rigazio, who gave a circumstantial account of a conversation with Gugliette about 2 p.m., on the 11th, in Respondent's plant, testifying that the conversation related to the repair of a part on Rigazio's machine, and that in the course thereof he was notified by Gugliette of the union meeting on the 18th. Unlike Respondent's employee witness and Lengilenjies , Rigazio was no longer working for Respondent at the time of the hearing. Gugliette reiterated, also, that he took coffee with Newbury in the afternoon of the 11th. adding a previously undisclosed detail of the incident as it affected Newbury, and insisted that the incident related by Daponde took place in Respondent's garage shortly after 4:30 p.m. on the 11th To recapitulate the evidence up to this point, if one is to credit Respondent's witnesses, it would be necessary to find that Gugliette had worked as a maintenance helper for some 4 years, receiving, during the last year, substantial merit raises, but, because of two derelictions occurring over a 4-month period. was warned of discharge in August, unless his work improved, and that, when, in the morning of September 11, the steam valve incident occurred. Respondent lost patience and discharged him the same morning because of that incident, but without even waiting, in accordance with its usual practice, to assure itself of an immediate replacement," and without considering transferring him to another, less responsible job. On the other hand, if one is to credit Gugliette, it would be necessary to find that, although he was at fault in connection with the canning machine mishap," he was never warned of discharge, and that, when, after that incident, he was given the S10-a-week raise, he was told "When asked whether he had seen Gugliette in the plant any time that afternoon, he pleaded lack of recollection 'This witness had originally been subpoenaed by the General Counsel However, toward the close of the hearing the General Counsel announced that he did not intend to place him on the stand . The Examiner then called him to the stand in the hope that he would shed some light on the matter Parerra, also named by Gugliette as a participant in the coffeebreak incident, was subpoenaed by the General Counsel, who reported, however, that he had not appeared, pleading illness "As already related, Brisbois was admittedly not being considered as a replacement for Gugliette but as, in effect , a maintenance leadman Moreover, Lalli admitted that late in August there was no certainty that Brisbois would report, and it was not until some time in October that Brisbois and Respondent linally agreed on terms and he did not report until 3 weeks later "See fn 14, above 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only that it was conditioned upon his giving up his outside work: that there was no steam valve incident on the 11th, but a somewhat similar incident on the 9th, which elicited no comment from Lalli. that Gugliette was told on the 11th that his discharge was due, not to a closed valve, but to other omissions: and that he was not terminated in the morning of the 11th, but late that afternoon, and only after he had invited other employees to a union meeting within the hearing of Lalli and Carando, Sr. The strength of Respondent's case lies in the circumstantiality of Lalli's testimony concerning the steam valve matter, the interlocking detailed corroboration thereof by the Carandos, and the absence of any confirmation of Gugliette's version of the critical coffeebreak incident in the afternoon of the 11th. However, Respondent's witnesses were at a loss to explain away plausibly one crucial piece of evidence-the entries on Gugliette's timecard for the l Ith.'° That card, which was produced at the hearing by Respondent, shows that on the 11th it was punched at Gugliette's reporting time, at noon , at 12:45," and at 4:54.'= Thus, the entries on the card jibe with Gugliette's account of his departure from the plant for lunch at noon, his return after lunch, and his final departure late in the afternoon, which account was at least partially corroborated by Rigazio. At the hearing, Respondent's witnesses were unable to suggest any tenable basis for reconciling the foregoing entries with their contention that Gugliette was discharged about 10 a.m., and was last seen in the plant about noon. Carando. Sr.'s aforenoted surmise that Gugliette might have returned early in the afternoon for his tools, not only has no evidentiary support, but would, in any case, not explain why he stayed in the plant until nearly 5 o'clock, and (if Respondent's witnesses are to be credited) without attracting any attention. Respondent's brief attempts to minimize the significance of the timecard entries by pointing to certain testimony of Carando, Jr., that it was his practice to pay a discharged employee for a full day's work on his last day, whether or not he actually worked a full day. However, the issue is not whether Gugliette was paid for a full day but whether he worked a full day, and, upon the present record, I must consider the timecard entries more reliable on that issue than testimony which was subject to the vagaries of memory or the taint of interest. It is therefore found that Gugliette returned to the plant at 12:45 and remained there until close to 5. Since that circumstance is more readily reconciled with his account that he was not discharged until 4:30 p.m., than with Respondent's version of a discharge at 10 ' a.m., I credit Gugliette on that score. The fact that Respondent's witnesses were not candid, or were mistaken, with respect to such a material aspect of the discharge incident militates against treating as any more reliable their testimony with regard to (1) the reason assigned to Gugliette for his discharge or (2) the circumstances which prompted his discharge; and, it is found that, as Gugliette testified, the only reasons so assigned were the unlocked tool crib and the unsecured pipe As both were matters of long standing and of so little significance that Respondent did not see fit to rely thereon at the hearing, it is found that the reasons given Gugliette were pretexts, which, 3°TX Exh. I "Converting the "12.75" entry on the card to the conventional system of timekeeping. "Converting the "16 90" entry on the card to the conventional system because of their patent insubstantiality, were abandoned at the hearing in favor of a more plausible explanation -the steam valve incident. It follows, also, from. my crediting of Gugliette's version, that there was no steam valve incident on the 11th, such as Respondent's witness described. and that this, too, was a pretext and not the true reason for the discharge. There remains to be considered what basis there is in the record for finding that Gugliette was in fact discharged for Union activity. The fact that Lalli gave Gugliette a pretextual reason for his discharge and at the hearing offered a different reason, which also had no validity. compels the inference that the true reason was one which Respondent was anxious to conceal. There is in addition the testimony of Gugliette that he passed word of the Union meeting to employees at the afternoon coffee break within the hearing of Lalli and Carando, Sr., and that this activity produced a visible effect on Lalli. Under all the circumstances, I have resolved to credit such testimony, despite the denials of Lalli and Carando, Sr.. and despite the absence of any corroboration by the employees whom Gugliette claimed to have solicited." In view of all these considerations, as well as the hostility to the Union displayed in the cooler room incident by Lalli, and in the remarks of Carando, Jr., on September 17 and 30, including those admittedly made, it is concluded that Gugliette was discharged for his solicitation of employees in the afternoon of September 11 to attend a Union meeting, which solicitation was overheard by Lalli or Carando, Sr., or both, and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. IV. THE REMEDY It having been found that Respondent violated Section 8(a)(1) and (3) of the Act, it will be recommended that it be required to cease and desist therefrom and take appropriate, affirmative action. Such action shall include an offer of reinstatement to Gugliette, and reimbursing him for any loss of earnings suffered since September 11, by reason of the discrimination against him. Backpay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289: interest shall be added to backpay at the rate of 6 percent per annum. (Isis Plumbing & Heating Co.. 138 NLRB 716.) In view of the obvious language barrier, it will be recommended that the usual posted notices be accompanied by an Italian translation. In view of the nature of the violations found herein, particularly the discrimination against Gugliette, a potential threat of future violations exists. which warrants a broad cease-and-desist provision. CONCLUSIONS OF LAW 1. By threatening loss of overtime and profit sharing in reprisal for Union activities, and by promising increased vacations, and inviting employees who favored the Union "Having found Gugliette a more credible witness than Lalli or the Carandos , and having found that the three latter went to such great lengths to fabricate a defense, and, considering that the three employees who refused to corroborate Gugliette were at the time of the hearing still in Respondent's employ, I cannot assume that, in testifying , they were free from tear of reprisal, if their testimony did not conform to that of their supervisors Moreover, the inexactness of their recollection as to other matters pertaining to Gugliette's union activity and his discharge has already been noted PETER CARANDO, INC. to resign their employment, in order to discourage union activity, Respondent violated Section 8(a)(l) of the Act. 2. By discharging Richard Gugliette on September 11, in reprisal for his union activity, Respondent violated Section 8(a)(3) and (I) of the Act. RECOMMENDED ORDER Upon the entire record in this case and the foregoing findings of fact and conclusions of law, it is recommended that Peter Carando, Inc., Springfield, Massachusetts, its officers. agents. successors. and assigns, shall be required to l Cease and desist from- (a) Discouraging membership in, and concerted activities on behalf of, Local 33, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, by discriminating against employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees that it will reduce their hours of work, abolish Respondent's profit-sharing plan or visit other reprisals upon them because of their concerted or union activities. (c) Promising employees increased vacation benefits to induce them to abandon their union activities. (d) Inviting employees who favor a union to resign their employment. (e) In any other manner, interfering with, restraining, or coercing, its employees in the exercise of their right to sell'-organization, to form, loin, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid of protection, or to refrain from any or all such activities, except to the extent permitted by the provisos in Section 8(a)(3) of the Act. 2 Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act. (a) Make whole Richard Gugliette in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy," for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, and offer him reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Notify Richard Gugliette if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Selective Service Act, as amended. after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Recommended Order. (d) Post at Respondent's plant in Springfield, Massachusetts. copies of the attached notice marked "Appendix," together with a companion notice containing an Italian translation thereof. 34 Copies of said notices, on forms to be provided by the Regional Director for Region 1, shall, after being duly signed by Respondent's representatives, be posted by Respondent immediately upon receipt thereof, and maintained by it for 60 649 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent 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 receipt of this Decision, what steps Respondent has taken to comply herewith." IT IS FLRTHER ORDERED that all allegations of the complaint relating to violations other than those found above be. and they hereby are. dismissed "In the event that this Recommended Order is 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 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 Decision and Order " "In the event that this Recommended Order is adopted by the Board, this provision shall be modilied 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 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 Relations Act, as amended, we hereby notify our employees that- Alter a trial at which all sides had the chance to give evidence, the Trial Examiner decided that we violated the National Labor Relations Act, and ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, loin, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other aid or protection; and To refrain from any an all of these things. WE WiLLNOT do anything that interferes with these rights. WE WILL NOT lire you, threaten to cut down your overtime or put an end to profit sharing, or cause you any other harm, because of your membership in or support of Local 33, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. or any other union. WE WIT L NOT promise to give you longer vacations to keep you from wantine a union. WE WILL NOT tell employees to get out, if they want a union. WE WILL offer to take back Richard Gugliette at his old job and pay him for all the wages he lost because we fired him on September 11, 1968. All our employees are free to belong, or not to belong, to Local 33, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other union Dated By PETER CARANDO, INC. (Employer) (Representative ) (Title) 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive days directly with the Boards Regional Office, 20th Floor John from the date of posting and must not be altered, defaced, F. Kennedy Federal Building, Cambridge & New Sudbury or covered b} any other material. Streets, Boston. Massachusetts 02203, Telephone If employees have any question concerning this notice 617-223-3353 or compliance with its provisions, they may communicate