A. Rotondo & Sons, Inc.

28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Rotondo & Sons, Inc. and Gilbert Botelho and Teamsters, Chauffeurs, Warehousemen and Helpers Local #526 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 1-CA-9137 and 1-CA-9145 June 26, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 31, 1974, Administrative Law Judge Eugene E. Dixon issued the attached Decision in this ,proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, the Charging Party filed a brief in opposition to Respondent's exceptions and the General Councel filed a memorandum. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, briefs, and memorandum and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order as modified herein. located at Route 6, G.A.R. Highway, Rehoboth, Massachusetts, and Allen Avenue, Rehoboth, Massachusetts, excluding guards, professional employees, technical employees, office clerical employees and supervisors as defined in the Act.' i 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) We have carefully examined the record and find no basis for reversing his findings The Respondent has excepted to the Administrative Law Judge 's state- ment concerning the size of the community (fn 15) in which its plant is located. We find this fact immaterial to our decision herein and base no finding on it 2 We adopt the Administrative Law Judge's findings of Respondent's widespread 8(a)(l) violations and discharge of two employees in violation of Sec 8(a)(3) However, the complaint did not allege either initially or by amendment that Respondent violated Sec 8(a)(1) of the Act by its promulga- tion and enforcement of its rule prohibiting employees from discussing their wage rates among themselves at any time or place, and the subject was not fully litigated at the hearing Therefore, we do not base any unfair labor practice finding thereon Further, for the reasons stated by the majority in Steel-Fab, inc, 212 NLRB No 25, we do not adopt the Administrative Law Judge' s finding that Respondent violated Sec 8(a)(5) of the Act, but rather we enter a bargaining order as a remedy for the serious unfair labor practices committed by Re- spondent We shall modify the Administrative Law Judge's recommended Order accordingly Member Jenkins concurs in the result on this issue, for reasons expressed in his dissent in Steel-Fab DECISION ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, A. Roton- do & Sons, Inc., Avon, Connecticut, and Rehoboth, Massachusetts, its officers, agents, successors, and as- signs, shall take the action set forth in the Administra- tive Law Judge's recommended Order as so modified: 1(d. Delete paragraph 1(c) and reletter paragraph as I (c). 2. Substitute the following for paragraph 2(a): "(a) On request bargain with Teamsters, Chauf- feurs, Warehousemen and Helpers Local #526 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclu- sive bargaining representative of all the employees in the following unit: - `All production and maintenance employees, forklift operators, truckdrivers, cement handlers and finishers, welders, hoistlift operators and me- er e c ose o e earing espon ent su mi or receip on evi- e chanics employed by Respondent at the plants dence three copies of a Board publication entitled "Your Government Con- STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: This pro- ceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Providence, Rhode Island, on various dates from August 22 to August 31, 1973, pursuant to due notice. The consolidated complaint was issued on July 10, 1973, by the Acting Regional Director for Region 1 (Boston, Massachusetts), on behalf of the General Counsel of the National Labor Relations Board, herein the General Coun- sel and the Board. The complaint was based upon duly served charges filed by Gilbert Botelho on June 8, 1973, in Case I-CA-9137 and by Teamsters, Chauffeurs, Ware- housemen and Helpers Local #526 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union) on June 12, 1973, in Case 1-CA-9145. The complaint, as amended at the hearing, alleged that Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. In its duly filed answer Respondent denied the commis- sion of any unfair labor practices. Upon the entire record in the case,' including my obser- i Aft th l f th h R tt d f t d b 212 NLRB No. 30 A. ROTONDO & SONS, INC. vation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS At all times material Respondent has been a corporation duly organized under the laws of the State of Connecticut and is registered to do business within the Commonwealth of Massachusetts. Respondent has maintained its principal office and place of business in the city of Avon, State of Connecticut (not herein involved) and it has also main- tained places of business at Route 6, Rehoboth, Massachu- setts, and at Allen Avenue, Rehoboth, Massachusetts (herein individually called the Route 6 and Allen Avenue plants respectively, and collectively as the Rehoboth plants), and has been continuously engaged at said plants in the manufacture, sale, and distribution of precast con- crete products and related products. In the course and conduct of its business Respondent has caused at all times herein large quantities of raw materials used by it in the manufacture of precast concrete products to be purchased and transported in interstate commerce from and to various states of the United States other than the State of Connecticut and the Commonwealth of Massa- chusetts, and has caused substantial quantities of precast concrete products valued in excess of $50,000 to be sold and transported from said plants in interstate commerce to states of the United States other than the State of Connecti- cut and the Commonwealth of Massachusetts. In the 12 months preceding issuance of the complaint Respondent purchased and received goods valued in excess of $50,000 from points and places outside the State of Connecticut and the Commonwealth of Massachusetts and during that same period of time sold and shipped goods valued in excess of $50,000 to points and places outside the State of Connecti- cut and the Commonwealth of Massachusetts. At all times material Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION At all times material Teamsters, Chauffeurs, Warehouse- men and Helpers Local #526 a/w International Brother- hood of Teamsters,, Chauffeurs, Warehousemen and Helpers of America has been a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Issues and Setting On a Monday night, June 4, 1973,2 two of Respondent's tractor drivers, Gilbert Botelho and George Foster, met with Union Organizer Don Huff at the home of another employee, Manuel DaPonte, Jr. There the three employees signed authorization cards and discussed with Huff the ducts an Election." It is hereby received as Resp. Exh. 2. 2 All dates are in 1973 unless otherwise indicated. 29 strategy to be used to organize the employees. It was agreed at that time that solicitation would began by mail. The following morning Huff mailed authorization cards with an enclosure, of union literature to some 46 employees includ- ing Supervisors John Garcia, Norbert LaVesque, Charles A. Sanford, and Dominic Colantuono. On June 6 Botelho and Foster were discharged. There- upon they embarked on a card solicitation campaign among Respondent's employees which resulted in some 28 authori- zations and a demand on June 11 for recognition by the Union. No action was taken on the Union's demand and on June 15 the employees went out on strike. The issues raised by the pleadings and the evidence in this case, besides involving a plethora of 8(a)(1) matters, include the legality of the discharges of Botelho and Foster and Respondent's liability for recognition of the Union. The latter issue involves two subissues: Whether the two-plant unit alleged by the General Counsel is appropriate and whether the cards reflect an uncoerced majority. B. Interference, Restrain, and Coercion The complaint alleged approximately 60 separate 8(a)(1) incidents. Of these the General Counsel established the fol- lowing-all undenied and in effect admitted: 3 On June 7 Foreman John Garcia asked Manuel Raposo if he had received a union card in the mail, and if he did "would he please bring it in" to him. 3 On the day before the hearing commenced, August 21, Respondent dis- tributed to all the employees the following communication signed by John Wheeler (in charge of the Allen Avenue plant) in the case of the Allen Avenue plant and by Aldo Rotondo (Respondent's vice president and man- ager of the Route 6 plant) in the case of the Route 6 plant: As many as you know the companys attorney, Mr. Chandler, visited the Route 6 Plant Friday, August 17 to speak to both management representative and employees in preparation for the National Labor Relation Board hearing scheduled for Wednesday August 22. There are indications as a result of Mr. Chandlers investigation that management representative including myself may have in our zeal said and done things that we should not have. It is alleged that on numerous dates, John Garcia, Domenic Colantuo- no, Norbert Levesque, Harold Messenger, Aldo Rotondo and myself interrogated employees concerning union matters, created the empres- sion amoung employees of surveillance of their union activities, engaged in surveillance of employees' union activities, threaten to cease opera- tions in Rehoboth if employees selected the union as their representative for collective bargaining, threatened employees with economical repri- sals if they selected the union as their representative, threatened to discharge employees to discourage activity on behalf of the union, prom- ised increased benefits to employees to induce employees to refrain from engaging in union activity, and subsequently granted a wage increase to employees in an effort to induce employees to refrain from engaging in union activity. The company completely disavows and repudiates any and all such acts that may have been committed by management representatives. More specifically if any of you have been threatened in any way by representatives of management these threats are absolutely groundless. No employee will in any way be disciplined for acting on behalf of the union or for selecting the union as his representative for collective bar- gaining. No benefits will be taken away should you select the union as your collective bargaining agent. Furthermore, the company intends to remain in Rehoboth regardless of whether or not you select a union to represent you. Under the law you have the right to join or not to join the union as you see fit free from reprisal by the company. The company will not interfere by interrogation, threats, or in any other way with your legal right to engage in organizational activity on behalf of Teamsters Local #526 or any other union. And on behalf of the company I personally guarantee that your legal rights will be fully protected. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 6 or 7 Garcia showed Leonardo Oliveira an envelope with a union card in it and asked if he received one like it. When Oliveira said that he had not received one yet Garcia said that he might the next day and asked him to bring the card to him. A few days later Oliveira gave Garcia two cards-one he had received in the mail and one in person from the union organizer. Manuel DaPonte, Jr., testified that on June 6 or 7 ° Aldo Rotondo asked him if he had received a union card in the mail. DaPonte said he did not know. Rotondo asked if he would mind calling his house to find out. DaPonte replied that his wife was not home. DaPonte also testified that on June 5, 6, or 7 (he was not sure) 5 he heard a conversation between Foreman Garcia and Dominic Colantuono in which the latter said he knew who one of the union instiga- tors was indicating an employee whose name was George but giving no last name. According to DaPonte he thought that Foster had already been discharged at this time. The day after Foster's discharge, Garcia told DaPonte that if the Union came in Respondent "would close down and move to Connecticut, because they could not run with a union." According to DaPonte's further testimony, Garcia made this threat repeatedly thereafter. On another occasion Rotondo told DaPonte that there would be no Christmas bonus if the Union came in. On June 6 or 7, Garcia told Jose Avila de Oliveira that the Union wanted to come into the plant and was going to send him a letter and asked Oliveira if he wanted to bring the letter to Garcia. Oliveira asked why. Garcia explained that if he did it would indicate he did not want the Union. Garcia also went on to say that Rotondo did not want a union and that if the Union came in Rotondo would close the plant and there would be no more gifts, Christmas bo- nuses, turkeys; "no more nothing." On June 12 Garcia asked Oliveira if he was going to the union meeting that night. Garcia also said that Rotondo did not want him to go and that he, Garcia, was going to find out what men were going. On June 12 John Wheeler, of the Allen Avenue plant, asked Robert Braun if he had received a union card in the mail. He further said that if Braun did receive one not to sign it but turn it in to him or one of the foremen. Wheeler went on to say that before the plant would work with the Union they would close the doors, that Respondent had been working without a union and did not think they need- ed one now. On the same occasion Wheeler asked Braun if he was going to the union meeting that night. On June 6 or 7 Foreman Norman LaPlante told Peter H. DuPont that he wanted to talk to him and walked him down the middle of the yard. LaPlante said he was told by John Wheeler that usually a person "involved in starting a union ... does not benefit by it, because usually the person ends up getting fired...." LaPlante then told DuPont that he had heard a rumor that DuPont had passed out some union cards. On June 12 Wheeler told DuPont that there was supposed to be a union meeting that night and that he did not think they had a majority to get a union in and that the meeting His affidavit says June 5 or 6 5 In his affidavit DaPonte says the date was June 6 would not be worthwhile. On June 8 Wheeler asked Robert Merrill what he thought about the Union. When Merrill shrugged his shoulders Wheeler pointed out that if he went for the Union he was just hurting himself. He went on to say that the Company was just making enough to get by and that if the Union got in it would probably have to close the plant down. On June 12 Wheeler asked Merrill if he knew anything about the union meeting that night. Wheeler added that he would like to see no one show up at the meeting. According to Mernll's further testimony, that night at the union meeting John Garcia was seen walking down the sidewalk watching everybody there. On June 6 Garcia asked Manuel F. Raposo if he had received a union card. Raposo said he did not know. The next day when Garcia asked again, Raposo said he had not received one. Garcia said if he did would he like to turn it back. Raposo said he would think about it. On June 12 Garcia asked Raposo if he knew about the union meeting to be held that evening. Raposo said he did. Garcia asked if he was going. Raposo said he was not sure. Garcia said that he was going; that he was going to find out who was going to be there. That night Raposo saw Garcia inside his parked car outside the union hall. On June 11 Foreman Colantuono asked William T. Whalen if he had received a union card. On June 7 or 8 Wheeler asked James D. Sylvia if he had received a union card. He also asked Sylvia to turn the card in if he was for the Company and against the Union. On June 12 Foreman Norbert LaVesque told Sylvia that the Company did not like the idea of a union and that it would "probably result in a lot of skirmishes" like the Com- pany "watching the workers a lot closer and little arguments of who's doing the work and who isn't." LaVesque also asked Sylvia if he was interested in the Union. On June 12 Garcia told Kenneth J. Reed that he had heard there was a union meeting that night and asked Reed if he had heard. He also asked Reed if he was going to the meeting. Garcia also told him that if anybody went he would find out who they were. On the same day, Rotondo asked Reed if he was going to the meeting that night. Reed said he did not know. Ro- tondo said that if the Union came in the employees would lose uniforms among other things and it was also possible they would cut the hours to 40 a week. On June 14 Garcia asked Lewis Mutty if he had received a card and whether he had signed it. Garcia also said that if a certain number of cards were signed Rotondo "would close down the doors, 'cause they didn't want a union On June 8 Garcia told John Labreche that it was a bad idea to have a union come in and that he thought it would "cause a lot of trouble" if he signed a card. Garcia advised Labreche not to sign a card but to turn it in to him. This Labreche did the next day. On June 12 John Wheeler told Labreche that he did not want to put him on the spot but advised him not to go to the union meeting, indicating that they would try to get him to sign a card. The foregoing clearly establishes that Respondent en- gaged in widespread illegal interrogation and threats of re- A. ROTONDO & SONS, INC. prisal in violation of Section 8(a)(1) of the Act. It also shows that Respondent further interfered with, restrained, and coerced its employees in violation of the Act by engaging in surveillance of their union activities and threatening them with and giving them the impression of such surveillance. In addition to the foregoing 8(a)(1) conduct Respondent also violated the Act by the promulgation and enforcement of a rule prohibiting employees from discussing among themselves their wages at any time or place. The General Counsel also contends that a 10-percent across-the-board wage increase to both plants (the first general wage increase covering both plants ever given by Respondent), on July 30, was made for the purpose of influencing the employees in their appraisal of a need for a union. While there is a strong suspicion that such was the case, I do not believe the evi- dence is sufficient to support such a finding. C. Discrimination 1. George Foster Foster had worked for Respondent approximately 2 years when he was discharged on June 6. Aldo Rotondo testified that along with John Wheeler he made the decision to dis- charge Foster as well as Gilbert Botelho. His reason for firing Foster was "insubordination, attitude and just, not doing the job properly . . ." not looking out for the company's interest as much as Respondent "wanted him to." Although generally lacking in specifics, he testified that "there were occasions . . . where . . . the foreman could not talk to Foster . . . there was an attitude there where .. . the foreman would try to tell him something and his attitude was bad and he'd walk away...: . The foreman named by Rotondo in this connection was Dominic Colantuono whom he claimed made frequent complaints about Foster.6 Rotondo cited as an example of insubordination by Fos- ter a complaint about a 15-cent raise granted in March. Rotondo testified that the foreman told him that Foster had "made fun of the raise and ridiculed (Rotondo) and the Company." 7 Such incidents with the foreman happened quite often and the foreman would report them to Rotondo. This all began about 6 months prior to Foster's discharge. According to Rotondo, starting at about the same time, he began getting adverse reports from two men who worked with Foster, Richard Marshall and Manny Moitozo. Mar- shall told Rotondo that Foster's attitude was bad. He did not perform his job properly. He did not have enough inter- est. Again no specifics from Rotondo 8 except that the last such complaints occurred about a month before Foster's discharge. According to Rotondo he would reprimand Foster telling him that Marshall and Moitozo could not work with him 6 Colantuono was not called by Respondent to testify nor was there any explanation for the failure to call him. A few months prior to this incident Foster had been warned by Rotondo about talking to the Avon employees regarding the wage rates being paid by Respondent. This warning was the result of Foster's having previously talked in this vein to one of the Avon employees According to Aldo Rotondo, his brother Sevenno Rotondo considered the matter so serious that he recom- mended that Foster be discharged for it. 8 Neither Marshall nor Moitozo testified. 31 and that he should improve his attitude if he wanted to work for the Company in the future. On these occasions Foster would say he would try to do better or accuse the other fellow of being wrong. On cross-examination Rotondo testi- fied that on occasions when he would reprimand Foster about his conduct it would improve for a short while and then go bad again and kept repeating this pattern. Later, on examination by his counsel, Rotondo testified inconsis- tently that Foster's attitude was always bad, that he (Roton- do) "figured that it would get better and it never did." Based on all this past experience plus a final incident that occurred on Saturday, June 2, Rotondo decided to discharge Foster. The final incident involved a large manhole being deliv- ered to a contractor on a telephone company job in Brigh- ton, Massachusetts, on June 2. The delivery was made by Foster and Dick Marshall both driving separate rigs, Foster a regular truck and Marshall an unloader. Rotondo testified that Foster, because he was in a hurry to get back to Reho- both, talked Marshall into unloading the manhole two blocks from the site of the excavation intended for it .9 In some manner, unexplained by Rotondo, this caused a cave- in at the excavation site. This delayed the job, made the contractor "very upset" and resulted in a "charge-back" to Respondent of $848.40. According to Rotondo this infor- mation was conveyed to him by the contractor, the tele- phone inspector, and Marshall." This crowning dereliction on the part of Foster was not mentioned to him when he was discharged, Rotondo testify- ing in effect that he was inexperienced in the etiquette of discharging employees since he had only discharged one employee in the Company's 5-year history. About the June 2 Brighton delivery Foster testified as follows: ... It was a Saturday morning Dick and I loaded up with a 9 by 16 manhole and went to Brighton. I got there an hour, approximately, before Dick did. 'l looked for the job. I found it. It was on a small intersection. So the nearest place was, I would say, a block away because the telephone building was there. I parked my truck at the corner. There was a cop there on duty directmg traffic and I asked him if it was all right to leave the truck there and he said sure. So, finally when Dick came to the job-well, before Dick came to the job I went down and looked at the excavation. The hole was very small and the telephone man did not think that the hole was prepared properly and we wouldn't be able to put the manhole in. There was a piece of curbing sticking out through the hole. I measured it and it wasn't large enough for the manhole to go through the hole, the opening. So I asked the foreman on the job if he would remove the piece of curbing sticking into the hole. So, he didn't want to disturb it. So, on the opposite side he cut a piece of shoring off so we could 9 When an unloader operator and truckdriver go out on a job to set a manhole, they go out as a team and the unloader operator is in charge of the job. Thus the unloading was Marshall's responsibility 10 Respondent introduced in evidence a copy of the backcharge dated June 4, 1973. This is the only corroborating evidence offered by Respondent. As indicated, Marshall was not called as a witness nor were the other two and no explanation for the failure to call them was made. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD get it through and push it more through the opposite side of the hole. So, when Dick finally did get to the Job he tried to set the manhole. He backed up to the hole with his truck and as he was setting the manhole the shoring was too tight and the manhole had riders which holds the side of the shoring out, so it caused it to cave in. So, we took out the manhole again. And they went down and they shoveled it all out and drained it out. So, we tried again. And the hole caved in again. It caved in worse each time, which they could do nothing with the shoring, and everything caved in. So, by then it must have been close to noontime. So, Dick says, "well, I'm going to call up before someone leaves the office." He called the office and he spoke to, I think it was, Tommy Colantuono was there. When Dick came back from making the phone call, I said, "what are we going to do?" He says Tommy told him to unload the manhole and come in, that he had called Aldo and Aldo was kind of disturbed at that customer already Completing his dissertation Foster testified that Mar- shall, on whose truck the misfit manhole was still loaded, asked the telephone inspector if he could drop it off in the yard. The telephone inspector said he would have to check with his superior which he did and permission was granted to drop off the item. Foster also had three pieces on his truck that he left off at the same time. Thereupon both drivers returned to the Rehoboth plant. No one was there when they got back. Foster further testified that nothing was ever said to him about the matter and the first that he learned about it was at the hearing the day before. 2. Gilbert Botelho Botelho was employed by Respondent for approximately 3 years. Like Foster, he was discharged June 6. Also like Foster he was warned some 6 months before the discharge against talking to Avon employees about Respondent's wage rates. Other than this, according to Botelho, he was never reprimanded except on an occasion that occurred about a month or two prior to his discharge; this had some- thing to do with his taking too long on a trip to Avon. At no time was he ever threatened with discharge or discipline. Botelho's meeting with the union representative, Foster, and DaPonte at the latter's home on June 4 has been noted On June 5 Botelho and Hall were sent out as a team to deliver a manhole. As a tractor driver Botelho, of course, was under the authority of the unloader operator, Hall When they got to the Avon plant to pick up the manhole they found that the crane used to load the trucks had broken down. This caused a 4-1/2 hour delay in getting out with this delivery. While he was waiting at the Avon plant Botel- ho had occasion to speak to Severino Rotondo (general manager of the Avon plant and an officer of Respondent) but made no effort to contact the Rehoboth plant to inform them of the delay they were encountering. The following day Botelho and Dick Marshall were away from the plant all day making a routine delivery. When he got back to the Rehoboth plant that evening he saw Roton- do, Foreman Colantuono and Foster engaged in a conversa- tion. In a few minutes Foster came by and told him that he had been discharged because he could not get along with his fellow workers and because of his attitude. Shortly thereaf- ter Botelho entered the office. There Rotondo approached him and told him that he was being discharged. Botelho asked why and was told that it was because of his "attitude" mostly and the amount of time he took to go to Avon. Respondent also told him that he had to discharge him and Foster "for the good of the Company" but did not explain what he meant by "the good of the Company." Nothing was said to him about the delivery on the previous day. According to Rotondo's testimony as a 43(b) witness the main reason he discharged Botelho was "attitude." Later, on examination by his counsel, he testified that the primary reason for the discharge was a "final incident" that occurred on the day before the discharge Rotondo equated Botelho's attitude with that of Foster testifying that Botelho "gave . . . the impression that he didn't have the Company's inter- est at heart...." Rotondo supplied even less specifics re- garding Botelho's conduct than he did with Foster's stating only that Botelho's unsatisfactory attitude was demonstrat- ed in incidents occurring approximately every 2 weeks dur- ing Botelho's last 6 to 8 months of employment. Rotondo also testified that he "figured Botelho was a follower .. . most of the problems stemmed from him working close with Foster." This was Rotondo's "assumption" for which he did cite one specific example: At the time of the March increase (the one Foster had complained to Colantuono about and apparently had discussed at the Avon plant) Botelho came to Rotondo to register a similar complaint. Rotondo testi- fied that he knew that Botelho had come in to complain "at the urging of Foster... . Like Foster, Botelho's discharge, as indicated, was trig- gered by a final incident. That incident, according to Roton- do, was Botelho's failure to call in from the Avon plant on June 5 about the delay he encountered there.' i Like Foster, nothing was said to Botelho about this "final incident" when he was discharged. According to Rotondo, he told Botelho that he was being discharged "because of his atti- tude and being a follower." He denied that the "final inci- dent" was an afterthought in regard to the discharge and would not agree that it was important either. Nonetheless it was important enough for him to have made a written statement about the matter, which, as in the case of Foster, he referred to while testifymg.12 "Respondent has a rule that requires a driver to report back on any delays he encounters on a delivery so that the customer can be informed Rotondo admitted that other drivers had been guilty of a breach of this rule without being discharged but explained that they were "not so serious " 12 In connection with his testimony about Foster, he at first claimed the statement had been drafted for use in connection with Foster's claim for unemployment compensation and denied any other purpose. Later on he admitted that the paper had been written for use in defense of the unfair labor practice charges A. ROTONDO & SONS, INC. 33 D. Discrimination Conclusion The foregoing evidence in the light of the record as a whole convinces me that both Foster and Botelho were discharged because of their union activity.At no point is there really any convincing evidence to support Respondent's position.13 Assuming that the "attitude" of the two employees was seriously unsatisfactory (an assump- tion that is weakened by the lack of any documentation or corroboration 14 of Rotondo's abstract testimony) the fact that after tolerating it for some 6 or 8 months in the case of Botelho and for the entire 2 years of Foster's employment it became intolerable contemporaneously with the advent of the Union is significant-particularly when the two dis- charged employees were largely responsible for that advent. Respondent, apparently aware of the above logic, would bolster its position by relying on the two "final incidents" as being the straws that broke the camel's back. But analysis of these incidents further weakens Respondent's defense. On its face, the Foster incident makes no sense as a cause for reprimand. Foster's conduct, as described by Rotondo, certainly could not have caused any cave-in and the result- ing chargeback to Respondent. In any event, I credit Foster undenied version of the matter which clearly absolves him of any responsibility in it. Moreover, assuming that what they did on that job had some connection with the cave-in and the chargeback, the man who was responsible was Mar- shall, not Foster. And Marshall received no discipline what- soever. As for the Botelho incident, the first question that comes to mind is what was Severino Rotondo's and the Avon plant's responsibility regarding notification to Rehoboth of the delay? Apart from any question in this respect, however, the fact is that since Botelho and Hall were operating as a team with Hall in charge, it was Hall's responsibility to report back to Rehoboth not Botelho's. Respondent further claims as a defense that it has not been shown that Respondent had knowledge of Foster's and Botelho's union activity prior to their discharges. Con- ceding that the Board and the courts have long recognized that in a small plant 15 knowledge of an employee's union activities can be inferred from the circumstances, Respon- dent contends that such is not the case here. I disagree. Considering the June 5 a.m. date of the mailing of the authorization cards to the employees and their supervisors and the wide spread interrogation about their receipt in- cluding several requests for employees to call home to see if one had arrived, it seems fair to infer that on June 6 befoie the discharges Respondent was aware of the union cam- paign. Respondent concedes this possibility but claims that this still does not implicate Foster and Botelho. Perhaps not. But there are other factors that may. We can start with Rotondo's preoccupation with the idea that Botelho was the "follower" or disciple of Foster in demonstrating an unsatisfactory attitude and in showing that he did not have the Company' s interests at heart. In one of the few specific examples given by Rotondo to illustrate his sweeping charges, Rotondo cited Botelho's adding his complaints to Foster's regarding the amount of a raise granted by Respondent-a typical example of protected concerted activity.16 And it is clear from other of Rotondo's sparse documentations that a large measure of his appraisal of Foster's unsatisfactory attitude was grounded in the latter's other complaints regarding the employees' wages, hours, and working conditions. For instance there was Foster's comments to the Avon employees about wages. Another example cited by Rotondo was Foster's complain- ing to others about the age and condition of the trucks the employees had to drive. With these predilections it is con- ceivable that whether or not Rotondo had any specific knowledge as to Foster's and Botelho's union activity he acted on the strong suspicion that they were involved in the current anticompany conduct. But there is more evidence from which to infer knowl- edge. Foster and Botelho were not the only employees who were in position to disclose their union activity. Manuel DaPonte was also in that position. A detailed analysis of his testimony 17 shows the following: On June 3 Union Organizer Huff called DaPonte and asked if he wanted to join the Union. He replied that he did and the arrangement was made for the meeting at his home the next night. On June 6 or 7 (he was not sure) as already noted, Rotondo interrogated him about receiving a card and calling his home to find out. On June 6 he called Huff and "asked him if he would come down because (he) thought a couple of men were getting fired." When asked by counsel what made him think so he answered, "I don't know. I just had a funny feeling that someone was going to get fired that day." Notwithstanding his statement to Huff that he wanted to "join" the Union and the key part he played in instigating the organizational campaign, he readily testified on cross that he was told that the only purpose of the card was to obtain an election. He testified that he made no effort to solicit any cards. He also testified that when he heard Fore- man Garcia ask a group of employees if they would turn in their cards, he volunteered his saying, "mind is in my trunk. If you want it, you can take." And he gave it to Garcia. I believe that the foregoing when added to the circum- stances of the discharges, as already described, and the widespread concurrent interrogation, threats, and surveil- lance engaged in by Respondent, fully warrants a finding that Respondent had knowledge of union activity by Foster and Botelho prior to their discharge. I so find. 13 Not only is the evidence itself not convincing, but the manner in which it was given was not unconvincing . Rotondo was equivocal, inconsistent, and evasive as a witness. 14 Even where promised, Respondent failed to produce corroborating evi- dence as in a matter of promised logs of the various drivers' trips to Avon which were never produced. 15 Involved here are some 45 employees located in a community of about 5,000 people 16 That Foster and Botelho may have complained individually to Respon- dent does not militate against the protected nature of the conduct. See Hugh H. Wilson Corporation, 171 NLRB 1040, affil. 414 F.2d 1345 (CA. 3, 1969), cert. denied 397 U.S. 935 (1970) 17 DaPonte testified under subpoena from the General Counsel and dis- played a lack of memory on crucial matters. Because of this, his affidavit, taken 6 days after the discharges, was received as past recollection recorded. I find it unnecessary to rely on anything in the affidavit 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Refusal to Bargain 1. The appropriate unit The General Counsel alleges an appropriate unit com- posed of all production and maintenance employees, fork- lift operators, truckdrivers, cement handlers and finishers, welders, hoistlift operators and mechanics employed by Re- spondent at the plants located at Route 6, G.A.R Highway, Rehoboth , Massachusetts, and Allen Avenue, Rehoboth, Massachusetts , excluding guards, professional employees, technical employees, office clerical employees, and supervi- sors as defined in the Act. Respondent contends that this is not an appropriate unit. The Route 6 plant has been in operation some 5 - 1/2 years and the Allen Avenue plant less than a year. They are located approximately 9/10 of a mile apart . Both plants produce concrete products-household septic tanks and utility manholes at the Route 6 plant ; commercial and in- dustrial size septic tanks, large manholes and prestressed concrete at the Allen Avenue plant. While the production processes are somewhat different between the two plants, both have employees performing welding, cement finishing, cement handling , and hoistlift functions Both are operated under one corporate charter and under the managerial con- trol of Aldo Rotondo with centralized administrative of- fices, clerical employees , and common personnel policies. Rotondo testified at one point that the Route 6 employees can perform the functions of the Allen Avenue employees but "not vice versa." At another point he testified that the Allen Avenue employees can perform the functions of the Route 6 employees . The employees are trained to perform more than one function in the Company, the objective being to have employees able to perform all functions . About 50 percent are so able All employees are hourly paid including truckdrivers , who work out of the Route 6 plant (except for one assigned to the Allen Avenue plant) but haul for both plants. Both plants have the same holidays , vacation plans, hos- pital and pension plans for all employees including truckdri- vers. Two current foremen at the Allen Avenue plant, John Garcia and Charles Sanford, were previously employed at the Route 6 plant. Route 6 Foreman LaVesque formerly worked at the Allen Avenue plant. There is some inter- change between the two plants. A handyman has been used interchangeably and there have been some full -time tempo- rary college employees transferred back and forth between the two plants. In view of the centralized control of both plants, uniform conditions of employment, the proximity of the plants, the common labor relations policy for all employees , the cen- tralized payroll, administrative, and clerical functions, the fact the employees all receive the same fringe benefits, and that no other labor organization now represents or seeks to represent the employees, I find that the unit as alleged is an appropriate unit for the purposes of collective bargaining within the meaning of the Act. 2. The demand for recognition On June 11 the Union wired Respondent with a demand for recognition claiming to represent a majority in a unit composed of all production and maintenance employees, forklift operators, truckdrivers, cement handlers and finish- ers, welders, hoistlift operators and mechanics employed by Respondent at the plants located at Route 6 , G.A.R. High- way, Rehoboth , Massachusetts, and Allen Avenue, Reho- both, Massachusetts, excluding guards, professional employees, technical employees, office clerical employees, and supervisors as defined in the Act. As of June i I there were 45 employees in the foregoing unit including Foster and Botelho. Received in evidence were some 27 cards including those of Foster and Botelho to support the majority claim . As indicated, in addition to the unit contention Respondent contends that the Union did not represent an uncoerced majority claiming that sev- eral of the cards were improperly solicited. F The Cards Of the 27 cards received in evidence Respondent ques- tions 10 as follows: 1. Manuel DaPonte, Jr. DaPonte, it will be recalled , was one of three employees responsible for starting the organizing campaign . Notwith- standing the part he played in that role Respondent would have his card rejected because he testified that although he knew better he was told that the only purpose of the card was to get an election. Respondent's contention is preemp- tonly rejected. 2. John Marshall Marshall testified on direct that he voluntarily signed a card . On cross he first testified that he asked Botelho what the card was for and was told "that it was to authorize the Union to come down to hold a secret ballot election ." Later, counsel asked him if he was told "that the only purpose of the card was to have a secret ballot election ." He answered, "That's right." On this basis, under the Cumberland Shoe doctrine I reject Marshall 's card. 3. Thomas J. Hall Although Hall's card is dated June 4 his testimony is that he signed it on June 15, the day the strike started . Respon- dent would reject the card as not being effective to support a June II demand and cites my previous rejection of the card of one John Kennibrugh signed on June 14 as prece- dent. At the time I rejected Kinnebrugh 's card the General Counsel did not indicate that he was claiming a continuing demand for recognition and the matter rested there. The evidence shows that the strike was for the purpose , in part at least, of gaining recognition and thus indicates a continu- ing demand for recognition . Accordingly , Hall's card (as Kinnebrugh's card should have been) should be counted towards a majority as of June 15. A. ROTONDO & SONS, INC. 4. Ronald Mack Mack testified that he signed a card on June 7 after being told that a majority of the employees had already signed. The evidence shows that some 22 cards bear the dates of June 7 or before. I do not believe that this involves such a misstatement as would warrant rejecting Mack's card. 5. Lorenzo Merrill Merrill signed a card on June 7. A week later he gave a 2-week notice that he was resigning. Respondent would not count Merrill's card claiming that Merrill's case is not ana- logous to any election situation in which the only require- ment for an employee to be eligible to vote (aside from being employed on a given payroll date preceding the date on which the election date is set) is that the employee be employed both at the time he signs the card and at the time the Union demands recognition . I disagree with Respon- dent and will count Merrill's card as an effective card. 6. Frank Almeida Almeida testified that when his signature was solicited by Botelho and Foster the latter told him that he had been discharged because the men did not want to work with him. Foster also said, "We just want to have so many names so we can go ahead with it, so we can try to get their jobs back." Signing, Almeida told them, "I'll try to help and I don't want to have nothing to do with the Union ." Almeida also testified that he did not read the card, that he was not interested. I believe that Almeida's overt act of signing the card renders inoperative his comment about not wanting anything to do with the Union. I shall count his card. 7. Lewis Mutty Mutty testified that Botelho gave him a card and told him there would be an election. At the time Mutty had a card at home which he had already signed . Mutty further testi- fied that his only purpose in signing the card was to get an election. There is no indication that he was told that the only purpose of the card was to get an election . According- ly, the Cumberland Shoe doctrine is inapplicable. Mutty's card will be counted. 8. Lewis Ramos Ramos' card was introduced through Foster, who testi- fied that he told Ramos that he had been fired and that the card was for the Union. Ramos looked at the card and signed it. Foster testified he did not know if Ramos, a Portu- guese, could read English. I will count Ramos' card. 9. Jose Correria Correia, another Portuguese , testified through an inter- preter that he was told by Botelho and Foster that they had been fired and asked for his signature so they could get their jobs back. That is all that they told him and he did not know he was authorizing the Union to represent him. I shall reject Correia's card. 10. William DuPont 35 Foster and Botelho told him they had been fired that night. He was also told that they were going to get the Union in to help get their jobs back and "also for the Union to represent the . . . employees ." DuPont did not read the whole card, just that portion he had to sign. DuPont's card will be counted. On the basis of the foregoing it appears that there were 25 valid cards in an appropriate unit of 45 employees-a clear majority. I so find. Having failed to honor the Union's bargaining request the question arises whether under the principles enunciated in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), a bargaining order is warranted here. Con- sidering the caliber and extent of Respondent's unfair labor practices I do not believe that the imposition of the remedial processes of the Act and its resulting notice to the employ- ees is sufficient to eliminate the effect of Respondent's un- fair labor practices so as to permit a free choice election of the employees in the foreseeable future. Accordingly, I find that a bargaining order is warranted. Nor, in my opinion, is such a requirement obviated by the publication to the employees on August 21 (as quoted in fn. 3) of Respondent's disavowal of its illegal conduct. Such notice, coming as late as it did, does no more in my opinion than the typical remedial notice referred to above. In any event no mention or disavowal was made in the August 21 coin; mumcation of the discrimination committed against Foster and Botelho. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2 (2) and (6) of the Act. 2. Teamsters, Chauffeurs, Warehousemen and Helpers Local #526 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2 (5) of the Act. 3. All production and maintenance employees , forklift operators, truckdrivers, cement handlers and finishers, welders, hoistlift operators and mechanics employed by Re- spondent at the plants located at Route 6, G.A.R. Highway, Rehoboth, Massachusetts, and Allen Avenue, Rehoboth, Massachusetts, excluding guards, professional employees, technical employees, office clerical employees, and supervi- sors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since June 11, 1973, the Union has been and now is the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By refusing on June 11 , 1973, and at all times since, to recognize and bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. By discharging Gilbert Botelho and George Foster on June 6, 1973, for engaging in union activity, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. By the interrogation, threats, and surveillance de- scribed in the section entitled "Interference, restraint, and coercion" above, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. The Remedy Having found that Respondent has engaged in and is engaging in certain unfair labor practices it will be recom- mended that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Having found that Respondent discharged Gilbert Botel- ho and George Foster in violation of Section 8(a)(3) of the Act, it will be recommended that Respondent offer Foster full and immediate reinstatement to his former or substan- tially equivalent position without prejudice to his seniority or other rights and privileges (at the time of the hearing Botelho had already been reinstated) and make him and Botelho whole for any loss of earnings or any other mone- tary loss they may have suffered as a result of such discrimi- nation. Any backpay due is to be determined in accordance with the formulas set forth in F W. Woolworth Company, 98 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that the Union represented the majority of the employees in an appropriate unit and that, for reasons stated in the section entitled "Refusal to bargain" above, a bargaining order is required, it will be recommended that Respondent recognize and bargain with the Union upon request. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 18 Respondent, A. Rotondo & Sons, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Illegally interrogating employees about their union activity, threatening, implying or engaging in surveillance of employees union activities, threatening employees with loss of employment by plant closure, moving or otherwise be- cause of their union activities or similarly threatening em- ployees with loss of overtime or economic benefits. 18 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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 (b) Discouraging membership in Teamsters, Chauffeurs, Warehousemen and Helpers Local #526 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization, by discharging or in any other manner discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment. (c) Refusing to bargain with Teamsters, Chauffeurs, Warehousemen and Helpers Local # 526 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive bargaining representa- tive of employees in the following unit: All production and maintenance employees, forklift operators, truckdrivers, cement handlers and finishers, welders, hoistlift operators and mechanics employed by Respondent at the plants located at Route 6, G.A.R. Highway, Rehoboth, Massachusetts, and Allen Ave- nue, Rehoboth, Massachusetts, excluding guards, pro- fessional employees, technical employees, office clerical employees and supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) On request bargain with the Union named above as the exclusive representative of the employees in the appro- priate unit, described above, with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to George Foster immediate and full reinstate- ment to his former or substantially equivalent position with- out prejudice to his seniority or other rights and privileges and make him and Gilbert Botelho whole for any loss of earnings or other economic loss suffered by them in the manner set forth in the section hereof entitled "The Reme- dy-" (c) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records, social security payment records, timecards, person- nel records and all other records necessary for determina- tion of the amount of backpay due and the rights of reinstatement under the terms of this order. (d) Post at its places of business in Rehoboth, Massachu- setts, copies of the attached notice marked "Appendix." 19 Copies of such notice, on forms provided by the Regional Director for Region 1, after being signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained 19 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " A. ROTONDO & SONS, INC. 37 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 Re- spondent to ensure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Re- spondent has taken to comply herewith. 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 chance to give evi- dence, it has been decided that we, A. Rotondo & Sons, Inc., have violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives you, as employ- ees, certain rights, including the right to support and join a labor union and to bargain through your representative, without fear of discharge or other interference, restraint, coercion, or discrimination. Accordingly, we give you these assurances: WE WILL NOT discourage membership in Teamsters, Chauffeurs, Warehousemen and Helpers Local #526 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other union, by discharging or otherwise discriminat- ing against any of our employees because of their union or concerted activity. WE WILL NOT interrogate employees about their union activities. WE WILL NOT threaten, imply or engage in surveillance of employees' union activities. WE WILL NOT threaten loss of employment by plant closure or moving, or otherwise because of our employ- ees' union activities. WE WILL NOT threaten employees with loss of overtime or economic benefits because of their union activities. WE WILL bargain, upon request, with Teamsters, Chauffeurs, Warehousemen and Helpers Local #526 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all employees in the unit consisting of: All production and maintenance employees, forklift operators, truckdrivers, cement handlers and finish- ers, welders, hoistlift operators and mechanics em- ployed at our plants located at Route 6, G.A.R. Highway, and Allen Avenue, Rehoboth, Massachu- setts, excluding guards, professional employees, technical employees, office clerical employees, and supervisors as defined in the Act. WE WILL offer to George Foster immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed, and make him and Gilbert Botelho whole for any loss of earnings or other economic loss suffered by reason of our illegal discharges of them. Dated By A. ROTONDO & SONS, INC. (Employer) (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 direct- ed to the Board's Office. 7th Floor-Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Tele- phone 617-223-3300.