Ferrara Brothers Building Materials Corp.

FERRARA BROTHERS BLDG. MATERIALS CORP. 521 Ferrara Brothers Building Materials Corp ., and State- wide Systems, Inc. and Local 282, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 29-CA-3436 May 9, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 9, 1974, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel also filed exceptions and a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions 1 and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Ferrara Brothers Building Materials Corp., and Stateside Systems, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. i We reject the contentions of the Respondent that Carmine Ragano voluntarily quit his job and, therefore, was not discriminatorily discharged. The evidence, based upon the credited testimony of Ragano, shows that he was fired by the Respondent and that he did not voluntarily quit his job as a laborer. Y The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION PAUL E. WEIL, Administrative Law Judge : On June 18, 1973, Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the Union, filed with the Regional Director for Region 29 of the National Labor Relations Board, hereinafter called the Board, a charge alleging that Ferrara Brothers Building Materials Corp. and/or State- wide Systems, Inc., hereinafter jointly called Respondent, violated the National Labor Relations Act, as amended, hereinafter called the Act, by the discharge of Carmine Ragano because of his membership in the Union. On August 20, 1973, the Regional Director on behalf of the General Counsel of the Board issued a complaint and notice of hearing alleging the same violation charged. In its duly filed answer, Respondent denied the commission of any unfair labor practices, denied that the Board has jurisdiction over Statewide Systems, Inc., and denied that Statewide Systems, Inc., discharged Ragano. On the issues thus joined the matter came on for hearing before me on October 23, 1973, in Brooklyn, New York. All parties were present and represented by counsel and had an opportunity to call and examine witnesses and to adduce relevant and material evidence. At the close of the hearing all parties argued orally on the record. After the close of the hearing the General Counsel filed a brief. On the entire record in the case and in consideration of the arguments and brief, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Ferrara Brothers Building Materials Corp., hereinafter called Ferrara Brothers, is engaged in the sale and distribution of building materials including ready-mixed concrete in and about the city of Brooklyn, New York. In the year ending August 1973 it sold goods and materials to Amuroso Utilities Incorporated, valued in excess of $102,000. In the same year Amuroso Utilities Incorporated purchased goods and materials from firms located outside of the State of New York, which goods and materials were delivered directly to it from out of the State of New York and valued in excess of $50,000. Ferrara Brothers is engaged in commerce within the meaning of the Act. Statewide Systems, Inc., is a New York corporation engaged in maintenance of buildings, lots, and equipment. In its last fiscal year, Statewide Systems, Inc., received income solely for work performed for Ferrara Brothers at its various installations. Ferrara Brothers is owned by five brothers of the Ferrara family and their mother. Statewide Systems, Inc., is owned by two of the Ferrara brothers and their mother. All of the owners of each corporation comprised the board of directors of each corporation . Joseph Ferrara is the president of both corporations. Jerome Ferrara is the vice president of both and Vincent Ferrara is the secretary of both. It appears that Vincent and Joseph Ferrara are the active members of management at Statewide which employs up to five employees and has never had a supervisor other than the two Ferraras. Vincent appears also to be active in the management of Ferrara Brothers. Although the matter was not gone into very deeply at the hearing, it appears that there has been interchange both of equipment and function between the two corporations. The alleged discriminatee, Carmine Ragano, in 1970 while he was driving a concrete truck was transferred from the payroll of Ferrara Brothers to the payroll of Statewide. Statewide owns no trucks or heavy equipment. The 210 NLRB No. 92 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equipment used by Statewide is owned by Ferrara Brothers and bears its name. There is no indication by signs or otherwise that Statewide exists other than the fact that separate payroll checks are given to Statewide employees and of course the tax accounts and corporation listings with the State of New York are based on separate identities. I conclude that Statewide and Ferrara Brothers consti- tute a single integrated enterprise and are a common employer within the meaning of the Act. I find further that both are employers engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE A. Background Both corporations were incorporated in 1969. Carmine Ragano was first employed by Ferrara Brothers on May 28, 1969, and was injured in an accident on the job on October 10 that year. He returned to work for Ferrara Brothers on December 9, 1969, and left on his own accord on January 28, 1970, returning on April 22, 1970. In September 1970 he was transferred to Statewide where he worked until January 13, 1971.1 Ragano again returned to Respondent and was hired by Statewide on May 1, 1973, working until May 7, 1973. It is this termination that was litigated herein. B. Discussions and Conclusions On or shortly before May 12 Ragano asked Vincent Ferrara, with whom he was apparently on friendly terms, for a job, indicating that he was desperate for employment. Ferrara said that he was buying three new concrete trucks and when they were delivered he would put Ragano on one of them. Ragano answered that he needed a job immedi- ately whereupon, according to Ragano's testimony, Ferrar- a said that he would hire him as a laborer until he got the three new trucks. A couple of days later, Ragano went to work as a laborer on the payroll of Statewide. He started on May 1, which was the end of a pay period, and continued to work the 2d, 3d, and 4th. On May 3 Ragano was given a paycheck for his May 1 work. In accordance with his usual custom Ragano took his paycheck home and left it for his wife. Ragano testified that he is illiterate. The following day Mrs. Ragano discovered that the paycheck was computed on the basis of a wage of $5 an hour and she had understood that her husband was making $5.53 an hour. That evening she called the discrepancy to Ragano's attention when he came home. The following Monday morning, May 7, instead of going immediately to the job Ragano went to Vincent Ferrara's office. He walked in and said, "Vinnie you made a mistake over here." Ferrara asked him what he meant and Ragano pointed out that he only gave him $5 an hour, that he was getting more than that before, and further that Respondent did not take out for pension and welfare. Ferrara answered, "Why, you were in the Union?" Ragano answered in the affirmative. Then, according to Ragano, Ferrara said, "you better get out of here and do not make any trouble for yourself." Ragano answered, "you can do this to me?" Ferrara again said, "just get out of here and do not make any trouble for yourself." Ragano said he would go talk to the delegate, whereupon Ferrara said, "just get out of here" and he left. According to Ferrara's testimony, Ragano came into his office on May 7 and told Ferrara that he wanted to be a truckdriver, that Ferrara had to put him on the truck. Ferrara answered, "I have no knowledge of you being a truckdriver" and Ragano answered, "well, we'll see, my delegate will talk to you." Ferrara testified that he did not know what union Ragano was referring to, and that Ragano did not say. Ferrara stated that during this interview he told Ragano that if he wanted to continue as a laborer the job was open to him but that Ragano left the premises and he has not seen him since. Ferrara also testified that he never at any time told Ragano that he would hire him as a cement truckdriver. I credit Ragano with regard to both conversations. His demeanor impressed me as that of a very truthful person reporting his best recollection with maximum candor. Ferrara testified that on May 7 when Ragano came in to his office he had in his hand his check stub , but nothing in his testimony indicated any conversation that revolved around the check stub or any reason for Ragano to have flourished it in Ferrara's office. I conclude that Ferrara had no idea that Ragano had joined the Union. Ragano was under the mistaken impression that, having joined the Union, the deductions for the union funds would be made from his paycheck. He actually had two different complaints, one that he was paid $5 rather than $5.53, the amount that he had been paid as a laborer during his last term of employment with Respon- dent and further that deductions should have been made from his check. He was incorrect in both regards apparently. It appears that there is no contract covering employment of laborers by Statewide and in any event if Ragano's employment were covered by a contract no deductions would have been made from his paycheck for the Union's funds. On the other hand, there is no established wage for laborers, according to the testimony of Ferrara, and in the absence of a prior agreement Ragano had no basis for his complaint that he was paid at $5 an hour. I believe and find that Ferrara was taken aback by the two complaints voiced by Ragano and more so when he found that Ragano had joined the Union. He probably misunderstood Ragano's complaint to be that Ragano expected to be paid the truckdrivers' wage, which I would assume was considerably more than $5 or even 1 It appears that at the same time Ragano was transferred to Statewide, a Union would have me draw an inference therefrom that he was transferred transfer that was made without his knowledge and with no apparent change in order to avoid having him join the Union The point is immaterial and I in his working conditions, Ferrara Brothers signed a contract with the draw no such inference. Union covering the drivers of their concrete mixer trucks. Although Ragano 2 All dates hereinafter are in the year 1973 unless otherwise specified. drove a concrete mixing truck he was not required tojoin the Union The FERRARA BROTHERS BLDG. MATERIALS CORP. 523 $5.53 an hour, and was further taken aback by the fact that Ragano had proposed to call in the union delegate to straighten Respondent out. Accordingly, he lost his temper and ordered Ragano to leave. I conclude that inasmuch as Ragano's statement that he had joined the Union and proposed to call on the delegate for help formed part of the reason for his discharge, this discharge violates Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's business operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: I shall further recommend that Ragano be made whole for any loss of earnings suffered by reason of his discharge by paying him a sum of money equal to that which he would have earned as wages from the date he was terminated to the date of reinstatement or proper offer of reinstatement, as the case may be, less his net earnings during such period. Backpay is to be computed on a quarterly basis in the manner established in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated according to the formula set forth in his Plumbing & Heating Co., 138 NLRB 716. The make- whole remedy, of course, should be based on a wage of $5 an hour. There is no showing in this case that Ragano was at any time offered or promised any greater wage. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER4 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Carmine Ragano in part because of his membership in and threat to invoke the offices of the Union, Respondent has discriminated against employees with regard to the hire and tenure and terms and conditions of employment thereby discouraging member- ship in the Union, and has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and have thereby engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in unfair labor practices within the meaning of the Act, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. In view of my finding that Respondent unlawfully discharged Carmine Ragano, I shall recom- mend that Respondent be ordered to offer him immediate and full reinstatement to his former job or, if that job is not available, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges .3 3 I reject the General Counsel's suggestion that Respondent be ordered to reinstate Ragano to the position of truckdriver. The evidence does not reveal that he was assigned any truck or definitely promised that he would be assigned to any truck upon the delivery of trucks to Respondent and further in view of Ragano's work history with Respondent, I find that inasmuch as the trucks were not delivered until August, the possibility of his having become a truckdnver is too remote to require Respondent to make Respondent, Ferrara Brothers Building Materials Corp., and Statewide Systems, Inc., Brooklyn, New York, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or otherwise discriminating in any manner with respect to their tenure of employment or any term or condition thereof, because they engaged in activity on behalf of Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist the above-named Union or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to refrain therefrom. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer to Carmine Ragano immediate and full reinstatement to his former job or, if this job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges previously enjoyed by him, and make him whole for any loss of pay he may have suffered by reason of Respondent's discrimi- nation against him with interest at the rate of 6 percent as provided in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports , and all other records necessary to analyze the amount of backpay due under the terms of this Order. him whole on this basis 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its facility in Brooklyn, New York, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by its representative, shall 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. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the- National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the opportunity to present their evidence, an Administrative Law Judge of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and to keep our word about what we say in this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT discourage membership in Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by discrimi- natorily discharging any employees because of their membership in the Union or because they call upoif'fhe Union for support. WE WILL offer Carmine Ragano reinstatemelit'to the same job he held before we discharged him or, if this job no longer exists, to a substantially equivalent job and we will pay him for any earnings he lost by reason of our discrimination against him. FERRARA BROTHERS BUILDING MATERIALS CORP., AND STATEWIDE SYSTEMS, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535.