Del Bonis Sand & Gravel Co.

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Del Bonis Sand & Gravel Co. and Peter J. Ricci. Case 1-CA-10934 July 12, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On April 20, 1976, Administrative Law Judge Lo- well Goerlich issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed a brief in support of the Decision. 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 briefs 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 Respondent, Del Bonis Sand & Gravel Co., Cranston, Rhode Island, its officers, agents, suc- cessors, and assigns, shall take the action set forth in said recommended Order. i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule 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 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE 1976, charging that the Respondent by its sales manager, Albert G. Panllo, threatened an employee with discharge unless that employee gave up his claim against Respondent for backpay and refused to accept his appointment as shop steward. The Respondent filed a timely answer denying that it had engaged in the unfair labor practices alleged. The case came on for hearing at Providence, Rhode Is- land, on February 24, 1976. Each party was afforded a full opportunity to be heard, to call, examine, and cross-exam- ine witnesses, to argue orally on the record, to submit pro- posed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. FINDINGS OF FACT,' CONCLUSIONS AND REASONS THEREFOR I THE BUSINESS OF THE RESPONDENT Respondent is and has been at all times material a cor- poration duly organized under and existing by virtue of the laws of the State of Rhode Island. At all times herein mentioned, Respondent has main- tained its principal office and place of business at 950 Phoenix Avenue in the City of Cranston, and State of Rhode Island (herein called the Cranston plant), and is now and continuously has been engaged at said plant in the manufacture, sale, and distribution of concrete. Respondent in the course and conduct of its business causes, and continuously has caused at all times herein mentioned, large quantities of raw materials used by it in the manufacture of concrete to be purchased and trans- ported in interstate commerce from and through various States of the United States other than the State of Rhode Island. During calendar year 1975, Respondent, in the course and conduct of its business, received materials valued in excess of $50,000 directly from points located outside the State of Rhode Island. The aforesaid Respondent is and has been engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 251, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 121 Brightridge Avenue, East Providence, Rhode Island (here- in referred to as Local 251), is a labor organization within the meaning of Section 2(5) of the Act. LOWELL GOERLICH, Administrative Law Judge: The charge filed by Peter J. Ricci on August 4, 1975, was served on the Respondent herein, Del Bonis Sand & Gravel Co., on the same date. The complaint was issued on October 17, 1975, in which it was charged that the Respondent on July 25, 1975, discharged its employee, Peter J. Ricci, in viola- tion of Section 8(a)(3) and (1) of the National Labor Rela- tions Act, as amended, herein referred to as the Act. An amendment to the complaint was filed on February 5, i The facts found herein are based on the record as a whole and the observation of the witnesses The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N L R B v Walton Manufacturing Company & Loganville Pants Co, 369 U S 404, 408 (1962) As to those witnesses testifying in contradic- tion to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief All testimony has been reviewed and weighed in the light of the entire record No testimony has been pretermitted 225 NLRB No. 85 DEL BONIS SAND & GRAVEL CO. 653 III. THE UNFAIR LABOR PRACTICES A. The Facts Frank Del Bonis is and at all material times herein was Respondent's president and the person who " see[s] that ev- erything runs in order." James Boyajian is and was the business agent for Local 251. Peter John Ricci was em- ployed by the Respondent in May 1969 and worked as a driver of ready-mix and dump trucks until his discharge on July 25, 1975. Ricci was a member of Local 251. At all times mentioned herein the Respondent was a par- ty to a collective-bargaining agreement between Local 251 and Rhode Island Road Builders Association, called the Rhode Island Construction & Ready Mix Agreement, which, among other things, required union membership as a condition of employment. Citing the contract, Local 251, by letter dated July 7, 1975, advised the Respondent that it was demanding that the Respondent comply with the contract's vacation article and the time-and-one-half rate of pay for work performed on Sunday provision of the contract. It also requested that the Respondent inform em- ployee Michael Lipizzera of the union-security require- ments of the contract. Thereafter on July 18, 1975, the Respondent worked em- ployees Lipizzera and Earl Cooke on ready-mix trucks 2 although it had refused to give Ricci, whose seniority was senior to that of either Lipizzera or Cooke, an assignment when he had phoned dispatcher Fisher on the morning of July 18, 1975. Neither Lipizzera nor Cooke was a member of Local 251.3 On July 19, 1975, Ricci lodged a grievance with Local 251 at the union hall in which he requested 1 day's pay because Cooke, an employee with less seniority, worked a full day on July 18, 1975 At the same time Ricci was ap- pointed shop steward for the Respondent's plant by Boya- jian. Prior to that date there had been no steward. On July 21, 1975, Boyajian mailed two letters to the Respondent, one informing the Respondent that Ricci had been ap- pointed steward and the other detailing Ricci's grievance. On July 22, 1975, President Del Bonis replied by letter alleging that Ricci's claim was "in error." On July 21, 1975, Ricci again phoned Fisher in regard to whether he should appear for work. Fisher's response was negative. Ricci observed the Respondent's premises and saw Lipizzera and Cooke driving ready-mix trucks; Ricci lodged another grievance with Local 251. On the same date Ricci informed Fisher that he had been appointed steward. On July 22, 1975, Ricci again phoned Fisher and was assigned work. According to Ricci at about 4 o'clock Del Bonis "ran out of the office with two letters in his hand" and said, among other things, "What are you f-ing guys trying to run my company. . . . You take these two letters and tell Mr Boyajian to jam them in his mother f-ing a-." Del Bonis denied that such incident occurred. Ricci worked again on July 23, 1975, at which time Paril- lo told him "if you don't rip up your claim for your eight hours, if you don't turn down your appointment as shop steward, you would be fired. And on top of that you might even catch an f'ing beating." Parillo bore the title of sales manager. He described his duties as follows, "I was supposed to help Frank [Del Bon- is] sell ready mix concrete and wash the yard and go on the job, check the job and stuff like that." Parillo also acted as dispatcher when Fisher was absent which occurred during Fisher's vacations and regularly Saturdays. Ricci referred to Parillo as "the boss." Ricci described Parillo's duties in these terms, "He would make the route out, and tell us where to go for the deliveries, and general things like that." Respondent does not contest the supervisory status of Par- illo and he is found to be a supervisor within the meaning of the Act. On the same date, July 23, 1975, Boyalian, after receiv- ing the letter from Del Bonis referred to above, phoned Del Bonis. Boyajian advised Del Bonis that he "would have to file for arbitration." Del Bonis' response was "drop dead." Del Bonis added that he would not "go to arbitration." The next day, July 24, 1975, Boyalian addressed a letter to Chandler Beals, the attorney representing the Rhode Island Road Builders Association, in which he request- ed, inter aha, arbitration of Ricci's grievances and the Respondent's violation of the contract's union-security clauses by its use of nonunion employees. A copy of the letter was mailed to the Respondent which was received by it on July 25, 1975. Boyajian requested arbitration because Del Bonis told him that he would not settle the grievance by paying Ricci, that "he was not going to instruct his employees to get in the union and he was going to go non- union." ' On July 24, 1975, in response to his phone call, Ricci was again told by Fisher that there was no work. Ricci "went by the plant" 45 minutes later and observed Lipizzera and Cooke driving ready-mix trucks and Richie DiMucci driv- ing a dump truck. These employees' seniority was not only junior to Ricci's seniority but they also were not members of Local 251. Ricci filed another grievance. On July 25, 1975, in response to a phone call around 7 a.m., Fisher again informed Ricci that there was no work. At 10 a.m on the same day Ricci appeared at an arbitra- tion hearing involving the discharge of Frank Lewis, a re- spondent employee. Ricci was called as a witness by Boya- jian. Ricci testified that Lewis was discharged because the Respondent was "usingjunior men." Ricci also related the number of employees who had driven "because Frank Lewis got fired" which he had recorded at the request of Boyajian. At the hearing it was disclosed that the Respon- dent did not recognize Ricci as the union steward. Among those appearing at the hearing were Del Bonis and Fisher. At 1 p.m. on the same day Ricci appeared at the plant for the purpose of picking up his paycheck. Panllo told him that he could not give him his check but that he should return at 3 o'clock because Del Bonis wanted to speak to him. Parillo observed, "I think I got bad news for you." Ricci met with Del Bonis at 3 p.m. Present also were Fisher and Parillo. According to Ricci, Del Bonis said, 2 Ready-mix truckdriver jobs were included under the coverage of the contract 3 Del Bonis had indicated to Boyajian his intent to operate nonunion ure to conform to the terms of the contract The Respondent had been subjected to three strikes in 1975 for its fail- 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ". . for being a wise guy this morning you're fired for testifying against the Company this morning. No f-ing union is running my place; if you want your pay, you go down to the 251 building and get your pay per week. Mr. Boyalian will pay you every week." Del Bonis testified that he told Ricci that he was being fired "[f]or abusing Mr. White." Del Bonis said, "I told him this particular person came in the office screaming. I got it through Mr. Fisher that he abused this person and he cursed him, and he used bad language. And this was the story I got. And when I got the story that was the last chance he had with me." Del Bonis said that he had been informed of the White incident the "week that he [Ricci] got fired." 5 Fisher's version of what occurred at Ricci's discharge is more expansive than that of either Ricci or Del Bonis. He testified that Del Bonis, in firing Ricci, said: "because you stole, because you abused my trucks, because you abused my customers." On cross-examination Fisher said, "Mis- conduct, breaking of the machinery, abusive language to the customers-I guess there was one other. I don't really recall that. But f know he listed them and he held his finger and he said `this is why you are being fired, for this reason, for this reason, for this reason, for this reason.' " "There was no hemming and hawing. He told him exact- ly why and the instances why." 6 B. Conclusions and Reasons Therefor While in some respects the testimony of Ricci, Del Bon- is, and Fisher are suspect, the credited evidence in the rec- ord establishes without a doubt that the Respondent dis- charged Ricci because of his participation in protected union activities and that the "real motive" I of the Respon- dent was to discourage membership in a labor organization in violation of Section 8(a)(3) of the Act. It is clear that the Respondent's reasons for Ricci's dis- charge advanced in this proceeding were afterthoughts and were pretextual. Del Bonis' attitude toward Local 251 was antagonistic He expressed his intent to "go non-union"; he worked nonunion employees with less seniority on Ricci's job; he refused to accept Ricci as a steward; he opposed arbitration; and he rejected out of hand what ap- peared to be legitimate grievances. 5 According to Fisher the White incident occurred at the end of June or the beginning of July He said that about 10 days later he reported it to Del Bonis in these words "I told him that this Mr White had come in and complained vehemently about his conduct on the street, and that the guy was a police officer, and that he knew Mr Del Bonis and I wanted to tell him before this Mr White happened to see him and tell him himself The guy came in and was very upset with Peter's language to the neighbors in that neighborhood When Peter came back, he came in sort of like he was a little crazy-that's the only way I can put it, with his hands up in the air begging the guy not to shoot him " Fisher is not credited as to what occurred at the time Ricci was dis- charged His testimony differing from that of Del Bonis presents no more than afterthoughts for the purpose of diverting attention from the real rea- son for Ricci's discharge Moreover, it is significant that Parillo who was present at Ricci's discharge , although called as a witness by the Respondent, was not asked to give his version of what occurred 7 "[T]he 'real motive' of the employer in an alleged 8(a)(3) violation is decisive " N L R B v John Brown, et a!, d/b/a Brown Food Store, et a!, 380 U S 278, 287 (1965) His antagonism against the Union and his timing 8 of Ricci's discharge after his exercise of protected rights re- buts any conclusion that Ricci's discharge could be other than unlawfully motivated. Indeed, according to Del Bon- is, he fired Ricci based upon a stale report from his dis- patcher, Fisher, without a personal investigation. Nor did he afford Ricci an opportunity to state his position. "Per- haps most damning is the fact that both [employees] were summarily discharged after reports of their misconduct ... without being given any opportunity to explain or give their versions... ." United States Rubber Company v. N. L. R. B., 384 F.2d 660, 662-663 (C.A. 5, 1967). Moreover, Del Bonis was an unbelievable witness. Ricci's discharge was a consequence of Del Bonis' deep antagonism against Local 251. Hence it is found that the Respondent unlawfully dis- charged Ricci because he engaged in protected union activ- ities which included his giving testimony adverse to the Respondent at the arbitration proceedings, his pressing grievances under the contract, and his acceptance of the office of union steward. "It is now well settled that dis- charging or otherwise discriminating against an employee, because of his processing employee complaints or griev- ances as a union steward, or his . . . assertion of a claim or right pursuant to the terms of a collective-bargaining agreement, is in violation of both Section 8(a)(1) and (3) of the Act." State Mechanical Constructors, Inc, 191 NLRB 393, 396 (1971). Accordingly, it is found that by Ricci's discharge the Respondent violated Section 8(a)(3) and (1) of the Act. It is also found that Parillo's threat of discharge related to Ricci on July 23, 1975, interfered with, restrained, and coerced Ricci in the exercise of rights guaranteed by Sec- tion 7 of the Act and was in violation of Section 8(a)(1) of the Act CONCLUSIONS OF LAW I Local 251 is a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effec- tuate the purposes of the Act for jurisdiction to be exer- cised herein. 3. By interfering with, restraining, and coercing employ- ees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging Peter John Ricci on July 25, 1975, the Respondent engaged in unfair labor practices in violation of Section 8(a)(3) and (1) 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. 6 Ricci was fired on the afternoon of the day on which he gave testimony adverse to the Respondent The White incident, which was cited by Del Bonis as the incident which triggered Ricci's discharge , occurred in the latter part of June or the beginning of July, almost a month before Ricci's discharge (Fisher's testimony) Although Fisher did not report the incident to Del Bonis until around July 15, Del Boms did not discharge Ricci until about 10 days later This delay, which casts doubts upon whether the White incident was the real cause of Ricci's discharge, is not credibly explained in the record DEL BONIS SAND & GRAVEL CO. 655 THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged Pe- ter John Ricci and thereby violated Section 8(a)(3) and (1) of the Act, it is recommended that the Respondent remedy such unlawful conduct. It is recommended in accordance with Board policy 9 that the Respondent offer Peter John Ricci immediate and full reinstatement to his former posi- tion or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to the amount he would have earned from the date of his discriminatory discharge to the date of an offer of reinstatement, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER10 Respondent, Del Bonis Sand & Gravel Co. of Cranston, Rhode Island, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully discharging or threatening to discharge employees for filing or processing grievances under any lawful labor agreement between the Respondent and a bar- gaining representative within the meaning of Section 9(a) of the Act or for accepting an appointment as a union steward. (b) In any other manner interfering with, restraining, or coercing any employees in the exercise of the rights guar- anteed them by Section 7 of the National Labor Relations Act to engage in self-organization, to bargain collectively through a representative of their own choosing, to act to- gether for collective bargaining or other mutual aid or pro- tection, or to refrain from any and all these things. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer Peter John Ricci immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, discharg- ing if necessary any employees hired to replace him, and make him whole for any loss of pay that he may have suffered by reason of the Respondent's discrimination against him in accordance with the recommendations set forth in the section of this Decision entitled "The Reme- dy„ (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Cranston, Rhode Island, plant copies of the attached notice marked "Appendix." II Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 9 See The Rushton Company, 158 NLRB 1730, 1731 (1966) 10 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 11 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties participated and of- fered evidence, the National Labor Relations Board has found that we unlawfully discharged Peter John Ricci be- cause he engaged in lawful protected union activities and has ordered us to post this notice. WE WILL NOT discharge any of our employees for the same reason we discharged Peter John Ricci. WE WILL offer Peter John Ricci his job or, if his job no longer exists, a substantially equivalent job, dis- charging, if necessary, any employee hired to replace him. WE WILL restore his seniority and other rights and privileges and pay him the backpay he lost because we discharged him. WE WILL NOT unlawfully threaten to discharge our employees for filing or processing grievances under our agreement with a union or for accepting an ap- pointment as a union steward. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce any employees in the exercise of the rights guaranteed them by the Act. The Act gives all our employees these rights: To organize themselves To form, join, or help unions To bargain as a group through representatives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things WE WILL NOT do anything which interferes with these rights. All our employees are free to remain, or refrain from becoming or remaining , members of a labor organization. DEL BONIS SAND & GRAVEL CO.