Clearview Concrete Products Corp.

CLEARVIEW CONCRETE PIPE Clearview Concrete Pipe Corp ., d/b/a Clearview Con- crete Products Corp., and Grand Pre-Stressed 'Corp. and Earl Nare. Case 29-CA-3560 November 7, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 14, 1974, Administrative Law Judge Ben- jamin B. Lipton issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief. 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 and brief and has decided to affirm the rulings, findings, 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 Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondents Clearview Concrete Pipe Corp., d/b/a Clearview Concrete Products Corp., and Grand Pre-Stressed Corp., Deer Park, Suffolk County, New York, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Administrative Law Judge: Upon a complaint by the General Counsel alleging that Respon- dents engaged in certain violations of Section 8(a)(1) and (3) of the Act, a trial was conducted in Brooklyn, New York, on February 19 and 20, and March 4, 1974.1 Briefs filed by General Counsel and Respondents have been duly considered. On the entire record, and upon my observation of the demeanor of the witnesses, I make the following: 1 All dates are in 1973, unless otherwise noted The complaint issued on November 30, based upon a charge filed on September 21 and amended on November 26 FINDINGS OF FACT 1. JURISDICTION 755 Clearview Concrete Pipe Corp., herein called Clearview, is engaged in the manufacture, sale, and distribution of concrete pipe and related products. Grand Pre-Stressed Corp., herein called Grand, is engaged in the manufacture, sale, and distribution of pre-stressed concrete and related products. Respondents, having their principal offices and place of business in Deer Park, Suffolk County, New York, constitute a single integrated enterprise operating in gener- al with common officers, ownership, and direction, and a common labor policy affecting their employees.2 During the year preceding issuance of the complaint, Respondents had a direct inflow in interstate commerce of purchased goods and materials valued in excess of $50,000. Respon- dents admit, and I find, that they are engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION District 15, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union or the Machinists, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Essential Issues 1. Whether Respondents coercively interrogated each of six maintenance employees and made threats to discharge these employees for their activities in seeking representa- tion by the Union, in violation of Section 8(a)(1). 2. Whether Respondents violated Section 8(a)(3) in ter- minating the six maintenance employees, successively, on July 26, August 2 and 8. Respondents deny all the alleged violations and assert as affirmative defenses that (a) the first two maintenance em- ployees were laid off for lack of work, and (b) thereafter the remaining employees were discharged for failing and refusing to perform their assigned work "in a proper and efficient manner" and for lack of work. B. Background and Organizational Activity About 70 employees are employed by Respondents working within the same plant facilities. As generally ap- pears, the bulk of these employees are represented in three contract bargaining units by the Teamsters, the Operating Engineers, and the Laborers. However, the maintenance employees here in question have been excluded from these units, were denied memberships in the recognized unions,3 and were unrepresented. In late June, after earlier discussions among certain of the maintenance employees, Earl Nare approached the 2 For the purposes of this case , at least, the distinction between the two companies is purely nominal so far as employees and employment condi- tions are concerned. 3 Testimony of Louis Leonardi 214 NLRB No. 98 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Machinists and a meeting between Union Agent Henry Rizzo and the employees was arranged. On July 6, at such a meeting held with four of the maintenance employees near Respondents' plant, Rizzo described organizing pro- cedures and distributed blank authorization cards. Subse- quently, these cards were signed by all six maintenance employees.' About July 16, the cards were mailed as a group to the Union. Dated July 20 (Friday), the Union sent Respondents a formal letter claiming, and offering to furnish proof, that it represented a majority of the employees, and requesting recognition and negotiation of a contract for a unit of "all mechanics, helpers, welders, maintenance and all service employees." 5 C. Interrogations and Threats of Discharge Louis Leonardi testified that, about July 20, he and his brother Peter were in the office of Plant Superintendent David Frances reporting for night-shift duty at 4 p.m. Frances asked him what kind of a union he was in at his previous job with a bus company and, when answered, fur- ther inquired if that had anything to do with the Machin- ists. Thereafter, at least once each day until he and his brother were terminated on August 2, Frances questioned him and remarked concerning the Union, e.g.; "I know you guys signed cards, who started it?" "The companies are not going to put up with it. You guys are all going to get laid off. You went about it the wrong way." On five or six occasions beginning about July 23, Foreman Thomas Monahan interrogated and threatened Louis Leonardi, as follows: "Who started the Union?" "You guys are crazy, you are not going to get away with it." Louis Leonardi refused to reveal the requested information. Peter Leonardi corroborated his brother Louis concerning the questions and remarks of Frances which commenced "around July 20" and were repeated daily until they were discharged. Nare testified to interrogations and threats by Frances occurring almost each day from about July 20 until his termination on August 8, to wit: He asked me who was responsible for associating the union and if I belonged to this union before or how we found this union and the company wouldn't stand for the union. . . . We'll find ways to cut down on either-send the trucks out for repair or discharge men or something. About July 23, Monahan asked Nare if he were responsible for the Union, and then remarked, "now probably-ev- erybody will get laid off because [Nare] started waving the flag around." Bartoli testified: Upon his return on August 2 from I week's vacation, Frances questioned him "practically dai- Earl Nare, Louis and Peter Leonardi, George Bartoli, John Winfield, and Salvatore DiSomma 5 General Counsel represented that a (refusal-to-bargain) charge filed by the Union was subsequently withdrawn apparently because of a jurisdic- tional conflict with one of the recognized unions at Respondents' plant The Union did not enter an appearance in the present proceeding ly" five or six times before his own discharge on August 8 as to "who brought the Union in." At a later point, Bartoli requested that he be not asked any more, and stated he did not know, and would not tell even if he did know. During this period, after August 2, Monahan passed the remark, "I'm surprised at you, George, you know you are not going to get nowhere, you are going to get laid off, they are going to lay off two at a time until yourself all go, whoever signed up." 6 Winfield testified that Frances questioned him each day from July 23 until his termination on July 26-as to who started the Union.' One response was that it was a unani- mous decision of these employees DiSomma testified that, on July 26, Frances asked him "who started this business?" He replied that he did not know, and would not tell if he did know. Later that day, after he was terminated by Frances, he heard Monahan say to a group of (unidentified) people at the cooler "Well, there's two this week, there will be two next week." Di- Somma then informed Louis Leonardi of Monahan's re- mark.' The foregoing testimony of the six maintenance employ- ees carves a conviction and plausibility which, in my opin- ion, clearly warrants full credibility. Superintendent Fran- ces admitted that he separately interrogated Nare, Louis Leonard[, and Bartolf as to why they wanted the Union,9 and initially denied that he discussed the Union with Di- Somma, Winfield, and Peter Leonardi. Concerning the Union, he indicated at a later point that he "asked ev- eryone more than once." It is well apparent, in my view, that Respondents' case is replete with machinations, anomalies, and dissimulations. Respondents' counsel eventually "stipulated" that Respon- dents did receive, on July 23 or 24, the Union's letter dated July 20 containing the bargaining request for the mainte- nance employees, supra. However, Vice President Vincent DeLillo testified he did not disclose or discuss the letter with Superintendent Frances until July 29 or 30.10 Admit- tedly, a copy of the letter was promptly sent to Attorney Donelan. Frances disclaimed knowledge of the Union prior to July 30 or 31, when DeLillo purportedly showed him the Union's letter, and he insisted that his interroga- tions did not commence before such time. It suffices gener- ally to assign knowledge of the Union to Respondents that the Union's letter was in Respondents' hands, as I find, at least by Monday, July 23. From the testimony of the six maintenance employees, it is evident that Frances and Monahan had an awareness of the union organizational effort on or before July 23, whether or not either of them were actually shown or apprised of the Union's bargaining 6 Shortly after DiSomma was laid off on July 26, he told Bartoli Monahan had made the same remark-that the maintenance men will be laid off two at a time each week Bartoli then approached Frances concerning this "ru- mor," and Frances merely replied that he did not know 7 Winfield identified several laborers , as well as Monahan , who were pre- sent on one such occasion 8 Bartoli, Peter Leonardf, and DiSomma were not cross -examined con- cerning the interrogations and threats gin the testimony of Frances, he also asked Nare what local they were trying to get in Although he knew the answer, he "wanted to see if [Nare] knew " He described Leonardi's response to the interrogations he just said, well, you know, and he took off " 10 DeLillo was not directly asked when he received the Union's letter CLEARVIEW CONCRETE PIPE 757 request at such time. In substantial respects, I find and regard the testimony of Frances as self-contradictory, changing, contrived, and unworthy of credit. The single sweeping denial by Monahan that he had ever discussed the Union with any of the six maintenance employees is rejected. Accordingly, I conclude that, in the separate in- stances described above, Respondents engaged in coercive interrogations and threats of discharge , constituting serious violations of Section 8(a)(1) of the Act, as alleged. D. The Terminations 1. Winfield and DiSomma-July 26 In the late afternoon on July 26, Winfield and DiSomma were "laid off" by Frances. The reason he gave each of them was "things are getting slow." Preceding this action, Frances told the Leonardi Brothers he wanted to show them something, and took them to the back of the shop where they witnessed the termination of Winfield. Then he called out to the personnel within earshot "There, you all heard me tell him we are slowing down. We don't need him anymore." Shortly thereafter in the maintenance shop, Frances openly challenged Nare, "Now see what your union can do for you. There's a telephone." Nare attempt- ed to place a call but was unable to get an outside line. 11 On occasion during the following days, Frances would ask Nare in a joking vein, "Where are you going to work next week?" The above testimony is not specifically refuted by Fran- ces and stands in contrast with his broad denials, supra, that he was even aware of the Union on July 26. Two further sidelights are noted relating to Frances' knowledge of the Union on this date. When Winfield was preparing to leave the plant following his layoff, Frances remarked to him, "You are not going to take this lying down, I am sure." And, according to Frances, when he informed Di- Somma of his layoff, DiSomma inquired whether it had anything to do with the Union; he merely replied, "What union?" and walked away." Added to the interrogations and threats already found, the telephone incident with Nare on July 26 further reveals a distinct antagonism of Frances toward union organiza- tion of the maintenance employees. And his manner of effecting the layoffs on July 26 strongly suggests a planned purpose of warning the remaining maintenance employees that further terminations would follow on the same grounds that "things were getting slow " 2. The Leonardis-August 2 Louis and Peter Leonardi regularly worked on the night shift, from 4 p.m. until midnight. They were scheduled to begin their vacation on Monday, August 6. On August 1, 11 The foregoing evidence was given by Nare, the Leonardis, and Win- field Monahan , who was present, was not questioned concerning these events 12 On cross-examination , Frances attempted to explain that DiSomma merely alerted him to something going on, but he had no knowledge of "which local or union " was involved Louis Leonardi asked Superintendent Frances, "If you are not going to fire me this week . . . is it all right if I go on vacation next week? I would like to get my check tomor- row." Frances said he would let him know. A few minutes later, Frances came back and instructed both Leonardis to report for work the next morning, on the day shift. On August 2, about 2 p.m., Frances handed each of the Leo- nardis their final checks, which included vacation pay, signed by Vice President DeLillo. He indicated they were laid off, and gave no reason. Later, Frances and Monahan approached Peter Leonardi as he was packing his tools. Frances stated he was sorry, there was nothing he could do, it was out of his hands. He made the same remarks to Louis Leonardi. 3. Nare and Bartoli-August 8 When Frances notified these employees on August 8 that they were "laid off," he conveyed no reason for such ac- tion. He told Nare that his paycheck was sent over "from the office," that his "hands were tied, he had nothing to do with it, orders came from upstairs." And he asked, "You are not going to take this lying down, are you? What is this union going to do for you?" Similarly, Frances told Bartoli "this is coming from the office, it is beyond my control," and he was "sorry it happened this way." This uncontra- dicted testimony, as with the Leonardis on August 2, plain- ly belies Respondents' contention that Frances acted en- tirely alone in the decisions to terminate each of the six men in the maintenance department E. Respondents' Defenses; Further Evidence; Conclusions Respondents' reason for laying off the first two employ- ees, on July 26, is grounded on "lack of work." The affirm- ative defense, which appears in counsel's answer to the complaint, asserts that, on August 2 and 8, the remaining four maintenance employees were "discharged" as a result of "said individuals failing and refusing to perform work tasks assigned to them in a proper and efficient manner and in accordance with the custom established in the per- formance of work by said individuals, which failure and refusal, on information and belief, came about as a result of the discharge of John Winfield and Salvatore DiSomma on or about July 26, 1973, and as a result of a lack of work to keep said individuals employed. ..." There is no "in- formation" and no indicated basis for "belief" of any indi- vidual or concerted decision or action by the Leonardis, Bartoli, or Nare to engage in a slow down or reduction in their normal efficiency following the "discharge" of Win- field and DiSomma. The additional ground, that of lack of work, advanced for the later four discharges appears to claim there was suddenly no work to sustain the entire preexisting maintenance department as of August 8. Such a claim is unsupported and patently fallacious Respondents' general position of lack of work embraces a limited period of 3 or 4 months preceding the termina- tions during which the maintenance employees, and others, were assigned for a portion of their time to perform certain work on "bogies." A "bogie" consists of a large metal frame from 80 to 100 feet long, with eight wheels, which is 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD used by Respondent as a trailer for hauling beams or other heavy pre-stressed concrete products. In April or May, Re- spondents purchased 12 "dollies" as army surplus which it undertook to convert to the bogies. The process required the welding, or "fabricating," of heavy metal plates and a variety of mechanical and electrical work. The main task of constructing the bogies was completed in the last week of July, when Respondents began to use them for deliveries. However, there was a continuing need of repair and main- tenance of the bogies. Prior to such purchase of army sur- plus, Respondents employed in its operations other bogies on which various maintenance work was routinely per- formed. Frances gave as reason for the overtime work that there was a "deadline" for the completion of the bogies, originally set for July 15, but postponed. As purported just- ification for the termination based on "lack of work," this testimony does not reconcile with the overwhelming evi- dence. If such a deadline existed, it is exceedingly strange that the employees were given no advance notice of such deadline and the possibility of layoff due to a slackening of work. Indeed, the employees were consistently and sub- stantially occupied in jobs, including overtime, unrelated to the bogies in the long period preceding as well as during the few months of the army surplus conversions. Nare had been employed by Respondents 13 for 6-1/2 years as a trained mechanic, working on trucks, forklifts, payloaders (concrete mixers), pipe machines, and general plant maintenance. He testified there were always projects and tasks to be performed; he was never lacking in work. Nare spent about 2 hours a day on the army surplus bogies until his discharge on August 8. Bartoli had been employed with Respondents for about 2 years and 8 months. As a mechanic, he performed the same work as Nare, as well as certain welding functions. Apparently for the major part of his employment until his discharge, on August 8, his regular workweek averaged 53 hours, or 13 hours at overtime pay. It appears that the competence of Bartoh, in particular, was highly regarded by Frances and Monahan. In June, and each year when the vacation list was prepared, the maintenance employees were invited by Respondent to work during all or part of their 2-week paid vacations and receive double pay for such work. Bartoli agreed to work for 1 week of his vaca- tion, at the end of July. He testified that about 50 percent of his time was spent during a 2-month period working on the army surplus bogies. He was given charge of this pro- ject and distributed the work to the rest of the men. Louis Leonarde had been employed, mainly on the night shift, for about 2-1/2 years as a mechanic. He was respon- sible for repairing pipe machinery on which 20-30 laborers depended for their work the next morning, and had regular repairs on forklifts, cement mixers, trucks, and other equip- ment. On the army surplus bogies, he devoted about I or 2 hours a night, only when he had time left over from his other, priority, duties. Winfield worked for about 2 years, performing general duties as a mechanic and also did some shop welding. In addition, for about 5 months until his termination, on July 13 Nominally he was on the payroll of Respondent Grand He worked and was supervised together with employees of Respondent Clearview 26, he operated a "payloader" from 4 to 6 p.m. almost every day.14 He testified, as of July 26, there were several major repair jobs in process and other jobs waiting to be done. On one job (rebuilding the transmission of a pay- loader), the mechanics needed about 3 more weeks to com- plete the repair. He did "some work" on the army surplus bogies, but not every day. DiSomma was employed for over 1 year doing mostly repair and heavy welding. Prior to his termination, he worked overtime 2 or 3 Saturdays each month and I or 2 hours during the week because "there was so much work to catch up on." At Respondents' request, he consented to forego 1 week of his vacation because he was told there "was plenty of work" for him. A "considerable amount" of his time was spent on the army surplus bogies. Actually, the work on these bogies was never finished; they would break down or crack, and there was always something to do on them. At the time of his termination, he was working on a job, which consumed most of his time, welding large pallets, unrelated to the bogies. Foreman Monahan then told him there were 3 or 4 months of full-time work to be done on these pallets. Only DiSomma was permitted to perform this type of work, which required "special weld- ing," Peter Leonardi was employed for about 13 months as a helper in maintenance and mechanical work Inter aka, he was responsible for greasing and cleaning all the vehicles and machines. He testified he told Frances, who was aware, that it was impossible to keep up with the greasing and cleaning because he had to do so much other work on the night shift. On most, but not all, nights in the week he was able to work about 4 hours on the army surplus bogies since the project was begun about May 1. Arty Carbone and Rodriquez Gomez were purportedly hired as "laborers" in about the spring of 1973 and directly assigned to perform welding work on the bogies in con- junction with the maintenance crew" Gomez, particularly, was not an experienced welder and had to be trained by DiSomma. Frances was never critical of DiSomma's work, but did complain about Gomez. After the termination of the six regular maintenance employees, Carbone and Go- mez were continued in their same employment.16 In Fran- ces' testimony, he told all six maintenance employees in virtually identical language that "things are getting slow, I have to let you go." He indicated that he made the deci- sions to terminate these employees on the successive dates in accordance with the Company's seniority policy. And he stated that, since the terminations, all maintenance welding has been performed by laborers. During Nare's entire tenure of 6-1/2 years, there were no prior layoffs of maintenance employees, as he credibly tes- tified.17 14 During the regular day shift ending at 4 p in , an operating engineer ran the payloader '5 Frances stated Gomez worked 4 to 5 months, until he quit in Novem- ber 16 Frances testified that Gomez received the same pay, $5 20 an hour, as did Nare. Bartoh, Louis Leonardi, and Winfield DiSomma's rate was $4 70 17 In testifying that there were instances of such layoffs, Frances specified the names of Carpenter and Salanie On cross-examination , he admitted that these two individuals were in fact members of the Operating Engineers His vague mention of an employee called "Ron" is unacceptable Respon- CLEARVIEW CONCRETE PIPE Respondents' witnesses generally disclosed that new maintenance employees were hired beginning in "late Au- gust." After a turnover of four such employees , who could not handle that work , two mechanics were found suitable and have since been employed . is These new maintenance employees have been working overtime , and the night shift has been eliminated. It appears that Nare was the only maintenance mechanic during his first 3 years of employment , since early 1967. However, commencing about December 1970, additional maintenance employees were hired "when they were form- ing Grand Pre-Stressed across the street." The manifest ev- idence, sought to be ignored by Respondents, is that the maintenance department of six employees was formed and intact substantially before the short term bogie project was begun in the spring of 1973. Thus, preceding their termina- tions, four of the maintenance crew had been continuously employed for 2 or more years, and two had been so em- ployed in excess of 1 year. Respondents' testimony and insistent arguments that, following the six terminations as of August 8, the "normal" complement of two mainte- nance employees in the department was resumed is dis- missed as sheer fabrication . And the broad contention that, suddenly, at the conclusion of the bogie conversions, there was no work to sustain the entire maintenance crew is like- wise wholly unsupportable. The specific and uncontradict- ed evidence of the employees amply establishes that there was full-time work for the regular six-man department af- ter July 26 to the same extent as existed for the long term preceding the interval of the bogies.19 Moreover, there is scarce justification for the retention of Gomez and Car- bone in maintenance work while laying off the regular maintenance employees , particularly DiSomma, Winfield, and Bartoli who were doing skilled welding work. There is likewise a complete lack of merit in the vague defense that, since the first termination on July 26, the four remaining maintenance employees did not perform their work "in a proper and efficient manner" in the period until their respective terminations on August 2 and 8. These four employees of substantial tenure were not warned or re- proached for inefficient work, and were told only that they were laid off for lack of work . Their immediate supervisor, Monahan, testified he did not speak to any of these em- ployees directly concerning alleged deficiencies , but merely informed Superintendent Frances that certain work had not been done, indicating a need rather than a criticism. Even as embellished by Frances , his alleged complaints against these employees consisted of no more than the usu- al requests to "hustle it up " or to get a needed repair job done . He admitted there are "always complaints with ev- eryone." 20 I find that , in this short period, the employees dents had records which could readily have been produceo is Monahan 's testimony 19 Louis Leonardi testified that there was more work , and he worked even harder, after the first two men were laid off on July 26 20 1 do not credit Frances' testimony , for example , that Nare was slowing up on all jobs, and that when he told Nare "you better shape up," Nare just smiled and "went along his merry way " I similarly view the apparently innocuous instances regarding the "400 " machine and Nare's sweeping the floors The night-shift assignments for the Leonardis were listed on a black- board It was a usual occurrence, preceding the bogie project , that some of these tasks could not be completed on the particular nights and that Frances mentioned the unfinished work to the Leonardis from time to time 759 were performing with their normal competence , and that there was no reasonable basis for terminating them on the alleged grounds of inefficiency. Based on dubious testimony, without records, the point is stressed by Respondents that "normal" operations have continued since August 8 with only the two new mainte- nance employees . In all the circumstances , I do not consid- er the evidence shown as any proof refuting the alleged discriminations . It is recalled that Frances had threatened Nare that Respondents "wouldn't stand for the union" and "will find ways to cut down .. . send the trucks out for repairs or discharge men or something ." Having the pecu- liar knowledge, Respondents have not probatively dis- closed what was actually done after the terminations con- cerning performance of all the maintenance work which the record shows existed in full measure . Significantly, all maintenance welding is now being performed by laborers, admittedly a shift to a different method of operation since the terminations . Since August 8, the extent to which newly hired laborers or others in the represented units have been utilized in the general maintenance functions , or whether trucks and other equipment previously serviced in the maintenance department were being sent out for such work, as threatened by Frances , are not elements within the General Counsel's burden to establish . The various de- fenses are manifestly pretextous ; Respondents' animus is clear; and the timing of the terminations significantly fol- lows closely upon the Union 's request for recognition. Cer- tainly, there was unlawful discrimination in terminating each of the six maintenance employees while continuing Gomez and Carbone in the maintenance shop and prompt- ly thereafter undertaking to hire new maintenance employ- ees. In the entire record, the evidence is sufficient in support of the General Counsel's complaint that Respondents dis- charged the entire contingent of the existing maintenance department, fulfilling the express threats of Frances and Monahan, because of a compelling motivation to bar their quest for representation by the Machinists and to prevent such attempts in the future . Accordingly, I conclude that Nare, Bartoli, Louis Leonardi, Peter Leonardi, Winfield, and DiSomma were discharged in violation of Section 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with Respondents' opera- tions described in section I, above, have a close, intimate, and substantial relation with trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the discriminatory discharges and other seri- ous violations, the cease-and-desist order in broad form is clearly warranted.21 It has been found that Respondents unlawfully dis- charged John Winfield and Salvatore DiSomma on July 26, Louis and Peter Leonardi on August 2, and George Bartoli and Earl Nare on Augut 8, 1973. It will therefore be recommended that Respondents offer these employees im- mediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to the seniority or other rights and privileges they previously enjoyed, and make them whole for any loss of pay suffered as a result of the dis- crimination against them, by payment to them of a sum of money equal to that which they normally would have earned, absent the discrimination, with backpay and inter- est computed under the established criteria of the Board 22 It will be further recommended that Respondents preserve and make available to the Board, upon request, all payroll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary and useful to determine the amounts of backpay and the rights of reinstatement under the terms of these recommen- dations. Upon the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondents are employers 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 Earl Nare, George Bartoli, Louis Leo- nardi, John Winfield, Salvatore DiSomma, and Peter Leo- nardi, thereby discouraging membership in the Union, Re- spondents have engaged in and are engaging in unfair la- bor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing, and by other specific acts and con- duct interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondents have 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 Sec- tion 2(6) and (7) of the Act. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER23 Respondents, Clearview Concrete Pipe Corp., d/b/a Clearview Concrete Products Corp., and Grand Pre- Stressed Corp., Deer Park, Suffolk County, New York, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union activities or those of their fellow employees. (b) Threatening employees with discharge or other re- prisals for seeking union representation or otherwise en- gaging in union or concerted activities. (c) Discouraging membership in District 15, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, by discharging employees, or in any other man- ner discriminating in regard to hire or tenure of employ- ment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Earl Nare, George Bartoli, Louis Leonardi, John Winfield, Salvatore DiSomma, and Peter Leonardi immediate and full reinstatement to their former positions, or if such positions no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights or privileges, and make them whole for any loss of earnings, in the manner set forth in "The Remedy" section of the Decision of the Administrative Law Judge. (b) Preserve and make available to the Board or its agents all payroll or other records, as set forth in in "The Remedy" section of the Decision of the Administrative Law Judge. (c) Post at their Deer Park, New York, plant and facili- ties, copies of the attached notice marked "Appendix." 24 Copies of said notice, on forms provided by the Regional Director for Region 29, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof in conspicuous places, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps Respondents have taken to comply herewith. 21 N L R B v Express Publishing Company, 312 U S 426 (1941), N L R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4, 1941) 22 F W Woolworth Company, 90 NLRB 298 (1950), Isis Plumbing & Heating Co, 138 NLRB 716 (1963) 23 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 24 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" CLEARVIEW CONCRETE PIPE 761 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice; and we intend to carry out the Order of the Board, and abide by the following. WE WILL NOT question you regarding your union activities, or the union activities of your fellow em- ployees, in a manner which would coerce you regard- ing your rights under the Act. WE WILL NOT threaten you with discharge, or pun- ishment of any kind, because you seek union represen- tation or engage in any manner in union or concerted activities for your mutual aid and protection. WE WILL NOT discharge or layoff employees, or otherwise discriminate against them, in order to dis- courage membership or support for District 15, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed employees in the National Labor Rela- tions Act, which are as follows: To organize themselves To form, join, or help unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. Since it has been found that we unlawfully termi- nated the employees named below, WE WILL offer to give them back their regular jobs or, if those jobs no longer exist, WE WILL give them substantially equiva- lent jobs, and WE WILL pay them for the earnings they lost because of the discrimination against them, with 6-percent interest. Earl Nare John Winfield George Bartoli Salvatore DiSomma Louis Leonardi Peter Leonardi All our employees are free to become or remain, or re- frain from becoming or remaining, members of any labor organization of their choice, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as amended CLEARVIEW CONCRETE PIPE CORP., d/b/a CLEARVIEW CONCRETE PRODUCTS CORP. AND GRAND PRE-STRESSED CORP