Maietta Contracting

MAIETTA CONRACTING 177 Dennis G. Maietta and Frank. M. Maietta t/a Maietta Contracting and International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Teamsters and Allied Workers, Local Union No. 992. Case 6- CA-12660 August 14, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On April 24, 1980, Administrative Law Judge Benjamin Schlesinger issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and the General Counsel filed limited cross-exceptions and a sup- porting brief. The Charging Party filed a brief in opposition to Respondent's exceptions. 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, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order.3 i Respondent had excepted to certain credibility findings made by the Administrative Law Judge By stipulation dated March 3, 1980, the par- ties agreed to waive a hearing and instead submitted the instant case to an adminstrative law judge for the issuance of a decision based on the record made by the parties in a related proceeding for an injunction under Sec. 10(j) of the National Labor Relations Act. as amended Ac- cordingly. the case was assigned to Administrative Law Judge Benjamin Schlesinger to prepare and issue a decision based on that record. It is the Board's established policy to attach great weight to an administrative law judge's credibility findings insofar as they are based on demeanor How- ever. Administrative Law Judge Schlesinger's credibility findings are based on factors other than demeanor. In accordance with the Board's policy set forth in Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951), we have independently examined the record in this case and we finu that there is no basis on the record in this proceeding for reversing his credibility determinations or his findings of fact based thereon General Motors Corporation. Delco ,4ir Conditioning Di- visron. 244 NLRB No 65 (1979). 2 We agree with the Administrative Law Judge that the sole reason for discharging the 10 employees (and/or failure to recall after layoff) was the employees' union activities. Theorre, we find it unnecessary to rely on the Administrative Law Judge's alternative finding made at fn 12 of his Decision that where the motive for an employee's discipline is in vio- lation of the Act, it is sufficient to find the discipline itself a violation notwithstanding the existence of valid reasons for the discipline. 3 We find no merit in the General Counsel's limited cross-exception to the Administrative Law Judge's failure to include in his recommended Order a requirement that Respondent rescind, upon the Union's request. any unilateral changes in working conditions (other than increases in wages or benefits) Respondent may have instituted subsequent to the commencement of its bargaining obligation Our rationale for granting the retroactive bargaining order is to "'re-establish the conditions as they existed before the employer's unlawful campaign" and not place a union in a disadvantaged position." Trading Port. Inc.. 219 NLRB 298, 301 (1975). quoting .VL.R.B. v Gissel Packing Co., Inc., 395 US 575, 612 (1969). However, implicit in the bargaining order herein is an obligation on Respondent to bargain over any such unilateral changes at the Union's request Moreover, the record herein is devoid of any facts or allegations 251 NLRB No. 27 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 the Respondent, Dennis G. Maietta and Frank M. Maietta t/a Maietta Con- tracting, State Line, Pennsylvania, their agents, successors, and assigns, shall take the action set forth in the said recommended Order. which would support a specific finding that Respondenl has instituted or refused to bargain er, unilateral changes i the terms and condit ioll of employ ment since the onset f its bargaining obligation Member Jenkins would compute the Iterest due on backpay n ac- cordance with his dissent in Olvmpc Medical Corporation. 250 NLRB No I ] (l9g)) DECISION STATEMENT OF THE CASE BENJAMIN SCHLESINGER, Administrative Law Judge: Upon charges filed by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Teamsters and Allied Workers, Local Union No. 992 (herein the Union), on August 14, 1979,L and amended by charges filed on August 17 and Septem- ber 26, the Acting Regional Director for Region 6 issued on October 2 and served on the parties the complaint and notice of hearing, thereafter amended on December 13, alleging that Respondent during the period of August 9 to August 31 committed various unfair labor practices, including interrogation of and threats to employees, cre- ating the impression of surveillance, polling employees concerning their union sympathies, and laying off or dis- charging all of the 10 union supporters in its employ. The General Counsel requests, among other things, a Gissel2 bargaining order as appropriate relief. Respond- ent's answers denied the factual allegations of the com- plaint and amendments and denied that it committed any unfair labor practice. By stipulation dated March 3, 1980, the parties agreed to waive a hearing, and instead requested that this pro- ceeding be submitted to an administrative law judge based on the record made by the parties in a related pro- ceeding for an injunction under Section 10(j) of the Na- tional Labor Relations Act, as amended, brought in the United States District Court for the Middle District of Pennsylvania and bearing Civil No. 79-1465. The parties' motion was granted on March 17, 1980. I have consid- ered the entire record and the briefs filed by the General Counsel, Respondent, and the Union. Accordingly, I make the following: I All dates herein refer to he ear 1979, unless oherwise stated 2 \.LR.B. v Giv'l Packing Co Ic., 395 U S 575 (1969) MAIETTA CONTRACTING 177 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION Dennis G. Maietta and Frank M. Maietta, trading as Maietta Contracting (herein Respondent), is a partnership with an office and place of business in State Line, Penn- sylvania, where it is engaged in the excavation and con- struction material hauling business. During the 12-month period ending August 1, Respondent in the course and conduct of its business operations performed services valued in excess of $50,000 outside the Commonwealth of Pennsylvania. I find, as Respondent admits, that it is and has been at all times material herein an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent further admits, and I find, that the Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR l.ABOR PRACTICES A. The Facts 1. The employees' organizing efforts On August 1, employee Melvin Miller, having ob- tained union cards, arranged for a luncheon meeting with other truckdriver employees at Hardee's, a local fast food restaurant. At that lunch the employees discussed the advantages of the Union and Miller distributed cards. Employees Blaine J. Jordan, Jr., John H. Stine, Edward M. Johnston, Stephen Walker, William E. Stanley, Jr., and John Mills signed the cards and returned them to Miller. Curtis McKeithan returned his card to Miller on August 2, when Miller and employees Donald Carr and Simon Hobbs also signed. Thus, by August 2, 10 of Re- spondent's employees had designated the Union as their representative for the purposes of collective bargaining. On that day Miller and other employees spread the word that there would be a meeting at the Union hall after work on August 6. That meeting was attended by all the union card signa- tories, except Jordan. At the end of that meeting, about 6:30 or 7 p.m., when all of the employees and the union representatives were conversing on the street, Dennis Maietta, Frank Maietta's son, who was also a truckdriver for Respondent, drove by in his van. The van was easily recognized by a number of the employees,3 some of whom recognized Dennis as the driver who stared at them and waved. Dennis admitted seeing only Stanley and McKeithan and denied that he knew that they were standing in front of the union hall, in spite of its large sign. The events which followed, however, cause me to conclude that Dennis was aware, if not precisely on August 6, of what might be happening. With the return of the union cards to union representa- tives at the meeting of August 6, the Union demanded recognition by Respondent by letter dated August 8. 3 The van was silver, with a black top and stripes on the sides 2. Layoffs and discharges of union card signatories, interrogation, threats, and related 8(a)(1) conduct On August 9, when Miller, Jordan, Walker, and John- ston had returned to the office to turn in their timesheets for the day, each was informed by Frank Maietta4 that they were laid off from work, Maietta explaining that work had "slacked down" and, to some of them, that he hated to let them go because they had done a good job for him. Maietta told them that, if work picked up, he would call them back. Stanley was also laid off that day. Since he had a dental appointment that morning, he went to the office about lunchtime where Joanna Miller, Maietta's secretary, advised him: "I hate to tell you this, but you are laid off. Don't worry, there will be more to follow you." Miller stated that he probably would be called back in 2 weeks. 5 About 5 p.m., Maietta received the Union's demand for recognition. Shortly after, Jordan received a tele- phone call at home from Miller who asked if he could come in the following morning at 10 a.m. because Maietta wanted to talk to him. Later that evening a number of the employees-Miller, Walker, Mills, John- ston, Hobbs, McKeithan, and Stine-met at The Preg- nant Pig, a local bar, and discussed the layoffs earlier that day and possible retaliation. The following morning, August 10, about 6:50 a.m., Maietta approached Stine in the garage and asked how the meeting went at The Pregnant Pig. Stine lied about his attendance and said he was not there. A minute or so later Maietta told Stine that he would have a paper for the employees to sign that evening when they got off work. Maietta also approached Hobbs and asked how his meeting went last night. Hobbs asked what Maietta was talking about, to which Maietta replied that Hobbs was well aware of what he was referring to. Hobbs asked whether a person could not have a few beers on his own time to which Maietta answered: "You ought to now by now I got more connections than what you think I got." As Maietta began to walk out of the shop, he fur- ther stated, "I'll park all these trucks if I have to." Maietta called Carr to the office and asked him if he had "sided in" with Miller for the Union. Carr refused to answer him. That same morning, at 10 o'clock, pursuant to Miller's request, Jordan came to Maietta's office. Maietta told Jordan that the reason he had called him in was that he wanted to find out about "this union deal, who started it." Jordan insisted he did not know because he was the last one asked to join. Maietta pressed Jordan, asking him whether he had any idea who started it. Jordan said that he did not. Maietta asked whether Mills started it and Jordan replied that he did not know. Maietta then stated that he had a form which showed that Jordan was satisfied with his work and his working conditions and 4 Frank Maietta is hereafter referred to as Maietta." s Stanley aras given tIwo checks. Respondent's policy was to hold back the irst week of an employee's pay hen employees ssere terminated or laid off. the were gis:cin 5,o checks, one representing the first week's pay hich as held back, and the second representing the woirk per- formed i the most recent pay period MAIETTA CONTRACTING 179 asked him to sign it, which Jordan did. The form, on Re- spondent's letterhead, read as follows: To Whom It May Concern: Please be advised that I -am complete- ly satisfied with the excellent wages paid and the wonderful working conditions at Maietta Contract- ing, and do not want in any way to be connected with or be a member of any Union as long as I am employed by Maietta. I am in no way being pressured into signing this statement. I am signing this statement of my own free will. After Jordan had signed the form and just as Jordan was getting ready to leave, Maietta asked him whether he wanted his job back. Jordan said yes and, according to Jordan's testimony, Maietta told him to come back to work on Monday morning.6 Finally, Maietta stated to Jordan that "there are some other troublemakers that I'm going to be getting rid of." That same morning, Miller, Walker, and Johnston went to the jobsite from which they had been laid off the preceding day to see what business was being con- ducted there, to obtain cards from other of Respondent's employees, and to obtain sympathy from the employees of the prime contractor, Courson-Gruman Company, for which Respondent was performing subcontracted work. Thomas J. McKew, Jr., Courson-Gruman's job superin- tendent, telephoned Maietta that morning to complain that the three laid-off employees were "more or less holding up his operations"--that they were bothering an operating engineer, complaining about being laid off, and stopping other of Respondent's drivers still on the job. Maietta replied that the employees had been laid off but if they were there causing trouble they would be termi- nated. He added that they were "dead wood that he had to get rid of."7 Later in the afternoon, about quitting time, all of the employees reported to the office to get their pay. Each employee was called in to Maietta's office and asked by Maietta to sign the above-quoted form. Almost all did so that day. One exception was Carr who stated to Maietta that he was not going to sign it, to which Maietta replied that that was his prerogative. When Hobbs reported to turn in his time ticket, Maietta told him to go outside and wait, that he wanted to talk to him. Shortly after- wards, Maietta came out with Hobbs' check and said "You've done made up your mind anyway, here's your check." Maietta never asked Hobbs to sign the form. When Mills reported for his pay, Maietta asked him what the meeting was about the previous night. Mills asked what meeting he meant and Maietta said the "one e Jordan did not report for work on Monday because he had to lake his child to a hospital. He telephoned Maietta on Monday and so reporl- ed. Jordan's wife testified that, on Monday afternoon, she received two phone calls from Maielta The first was that Jordan was to come to work the following day and the second, approximately 5-10 minutes later, was Maietta's instruction for Jordan not to come because the machine had broken down Jordan was never again recalled to work. I None of the employees were advised that be had been terminatcd from employment, but the record makes clear that Miller, Johnston. and Walker were discharged that day. you all had down there last night." Mills said that there was no meeting, that they went down to have a few drinks and so he went. Maietta said that "before any union come in, he would close the gates [that the] State Police had all the guys' names land that] he had got rid of three troublemakers." McKeithan was called into the office that same afternoon and Maietta asked: "What's this bullshit I hear about the union." McKeithan denied any knowledge. Maietta stated that "he had gotten rid of these three troublemakers" (specifically mentioning Walker, Miller, and Johnston), and asked McKeithan to sign the form which he described as a paper which Is "helping me to keep the union out." Maietta handed the form to Stine to sign but Stine said he wished to think it over until the following Monday. Maietta said "you are not going to go outside and let the drivers get you all worked up again, either you sign now or else." Stine signed the form. On Saturday, August 11, Stine had attempted to reach Maietta at home and he was not in. Maietta called Stine back and during the conversation asked Stine about the Union and why he did not come to Maietta to let him know all about the organization attempts when they started. Maietta asked Stine who signed the cards at Har- dee's. Stine named the drivers whom he knew by name (but he lied to Maietta by stating to him that he did not sign a card when, in truth, he did.) Then Maietta started naming off employees whom he said he knew signed cards. As he named the people, Stine remembered them as being at Hardee's. The only one that he denied was Hobbs. Maietta stated that "no union was going to get in his place of business, he would let the damn trucks sit until they rot." Stine said that he thought that Maietta should have let the union matter come to a vote, to which Maietta stated "there ain't gonna be no vote." On Monday, August 13, Carr reported for work and was waiting to get his work orders. Someone told him that Maietta wanted to see him in the office and, when Carr went there, Maietta said that work was "slack" and that he was not going to need Carr for a while. He handed Carr two checks. Later that day, Mills was also discharged by Maietta, who said that their friendship had ended and that they were good friends at times. Three days later, on August 16, Hobbs was fired, Maietta com- menting that it was time for him and the company to part and, as Hobbs was leaving, "you know why this is taking place." On the day after, Frid.ay, August 17, or perhaps Monday, August 20, Maietta held a meeting of some of his employees at which he announced, according to McKeithan, that, as far as he was concerned, "the union bullshit was over with" and he did not want the employ- ees to talk about the Union on the jobsite or anywhere else. He looked to Stine and said, "Stine, do you hear me?" He looked at McKeithan and said, "You hear me, don't you, McKeithan?" According to Stine, Maietta said that he did not want any more talk about the Union and that the "union is dead." Directing his comments directly to Stine, he said that he did not want him "crawling on the dozer operator either anymore and discussing the union activities any more"; that if he did, the dozer oper- asked him to sign it, which Jordan did. The form, on Re- MAJEIA CONTRACTING 7q 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ator was supposed to call Maietta and let him know. Later on August 20, Maietta stated to Stine that he un- derstood that he was "getting on the dozer and saying that the union was going to get in" and further stated that he thought that Stine was "kind of working the middle." Stine and McKeithan, the only two employees who had signed union cards by that date and who were still employed, were terminated on August 23 and 31, respec- tively. No other employee had been fired during the month of August except for union card signers. Indeed, no employee had been fired for any reason during 1979 up until August. No employee who was fired or laid off was ever recalled to work. Five new employees were hired as truckdrivers during the month of August and after the initial "lay off' on August 9. 3. Conclusions regarding 8(a)(1) conduct, motivation, and union animus Although Maietta testified at length in defense of the unfair labor practice complaint, his testimony was devot- ed principally to an explication of his own alleged rea- sons for the layoffs and discharges of the 10 union adher- ents. With barely any exceptions, there was not one denial of the unlawful conduct testified to by the discri- minatees regarding Maietta's threats of closure and dis- charge,8 interrogation, polling,9 and giving the impres- sion of surveillance of union meetings; o and the cumula- tive effect of all that activity, which I find to be in viola- tion of Section 8(a)(1) of the Act, gives rise to a further finding that Maietta was not only opposed to the union- ization of his business but was also determined to go to extreme means-such as letting his trucks rot and closing a substantial portion of his business-so that the union organization drive would be thwarted. Respondent contends in its brief that it had no knowl- edge of its employees' union activities. The General Counsel's proof, however, is more than sufficient-from Maietta's questioning of employees about the meeting at Hardee's and The Pregnant Pig, to his polling of em- ployees, to his interrogation of whether Carr was siding with Miller, to his naming to Stine of card signers, to his knowledge of where Hobbs stood, and to his singling out of Stine and McKeithan to ensure that they understood his instructions. Finally, I conclude that Maietta's dis- charge during August of the only 10 union adherents is more than fortuitous. Camco, Incorporated, 140 NLRB 361, 365 (1962), enfd. in material respects 340 F.2d 803 (5th Cir. 1965). 4. The discharges Typically, in 8(a)(3) discharge cases, an employer pre- sents all manner of reasons, other than union activity, which the employer alleges were the true cause for the " Maietta's reference to Miller, Walker, and Johnston as "three trouble- makers" whom he had ridded himself of was a threat to discharge other employees who supported the Union. 9 General Battery Corporation. 220 NLRB 1078 (1975). 'O I find that the impression of surveillance arises from Maietta's state- ment to Hobbs on August 10 about his knowledge, through his "connec- tions," of the meeting at The Pregnant Pig. I find no proof, as the Union alone contends, that Maietta's son, Dennis, was engaged in surveillance. discharge. II This case is no exception, and it is accurate that, with the respect to some employees, it might well be said that their conduct was less than exemplary. On the other hand, a review of Respondent's reasons for the particular discharges in this proceeding must be tempered by the fact that until August 9 no one was fired during the entire year of 1979. Indeed, Maietta ad- mitted on cross-examination that he was constantly unable to get drivers and that was "why I put up with all that garbage from all these drivers." When he also added he "put up with the garbage until [he] couldn't take it anymore," the question arises whether he could not take it anymore because of the continuing conduct of the employees or because of their union activities. I am persuaded, because of the 8(a)(I) conduct found above, that Maietta was purposefully depleting the Union's ranks in order to rid his company of the Union and that the sole reason for the termination of all the em- ployees, with the exception of Stanley, and as to him the failure of Respondent to recall him after his layoff on August 9, was the employees' union activities. 2 Furthermore, and preliminary to discussion of Maiet- ta's alleged reasons for discharges of the 10 employees, my reading of the testimony of Maietta leads me to con- clude that he was not a credible witness. ' In particular, his testimony conflicted with another of Respondent's witnesses, McKew, whose testimony I found to be reli- able and credible, and with Miller, whose testimony was less reliable. Maietta completely recanted his testimony with respect to that given earlier in 1979. His blanket statement that he was relatively unconcerned about the union activities is wholly belied by his threat to permit his trucks to "rot," his boasts that the Union is "dead" and "over," his polling and interrogation of employees, and his warning not to engage in union activities. Maietta first received the Union's demand for recogni- tion on August 9 about 5 p.m. Immediately thereafter, he embarked upon destroying the union organization drive. His first move was to telephone Jordan to report to his office on August 10 at 10 a.m. He interrogated and threatened employees before his appointment with Jordan. The General Counsel does not argue in his brief, and I do not find (contrary to the Union's contentions), that the layoffs on August 9 of Miller, Jordan, Walker, Johnston, and Stanley (whom Maietta testified he fired) were illegal. I find it most unlikely that Maietta was more than subliminally aware of the union activities before he received the Union's demand letter. If his son's sighting of the employees outside the Union's office on ' Bureau of National Affairs, "'he Developing Labor Law," 1971, p 116. '2 Even if this finding were inaccurate. it is settled Board lass that, if a motie for the discipline of an employee is in violation of the Act, that is sufficient for the finding of a violation, despite the fact that there may be other valid reasons for the same discipline. Construction. Production & Maintenance Laborers' Union. Local No. 383. affiliated with Labhorers' In- ternational Union of North America. AFL-CIO (Willarn Pulice Concrete Construction), 236 NLRB 125 (1978) "' The General Counsel's brief thoroughly documents the inconsisten- cies and contradictions contained in Maietta's testimony, as ssell as in- stances (of evasiveness and inherent improbabilities. Although I do not rely on his brief in oo, there is enough there, and not repeated herein in the interest of bres it, to support these credibility findings. MAIETTA CONTRACTING 181 August 6 was meaningful to Maietta, it is most probable, in light of his intense distaste for organization, Maietta would have moved much more quickly in his antiunion drive, that is, before late afternoon on August 9; but the record is silent of any action by Maietta to retaliate for union activities from August 6 until then. Maietta's explanation of the layoff of Miller, Jordan, Walker, and Johnston on May 9 is most plausible, sup- ported as it is by McKew, who initiated the layoff that morning when he informed Maietta that, because of the completion of one job, which required four trucks to remove dirt and to bring back gravel fill, and the com- mencement of a new job where the soil removed from the sewer ditch would be placed back in the ditch after the sewer line had been laid, four trucks (and drivers) would no longer be needed. The four drivers were told of their layoffs that afternoon. I find nothing improper in Respondent's action. However, Maietta's actions the following day convert- ed the proper layoffs into illegal 8(a)(3) discrimination. When McKew called Maietta to complain about Miller, Walker, and Johnston, Maietta seized upon that com- plaint to fire them, referring to them as "dead wood he had to get rid of." Why, suddenly, they were "dead wood [that] he had to get rid of" can be explained only by Maietta's having obtained knowledge of the employ- ee's union activities, as well as knowledge that they were complaining about Maietta and talking to his employees. After his receipt of the union demand, Maietta must have then understood the significance of the gathering of the drivers outside the union hall a few days before. 14 That also explains his reference to the employees as "three troublemakers" when he interrogated McKeithan later on August 10, a term which, from Maietta's conversation with Jordan earlier, even before McKew's telephone call that morning, I conclude to be a reference to union ac- tivists. Finally, in finding that Maietta terminated the three employees in violation of Section 8(a)(3), I discred- it Maietta's testimony that McKew told him to get rid of them and that McKew did not want them on the job anymore. McKew, who was the only disinterested wit- ness in this proceeding, testified to the contrary. Jordan and Stanley, the other two employees who were "laid off" on August 9, present different problems. Jordan was asked to confer with Maietta on August 10, then was interrogated and asked to sign Maietta's self- serving form, which he did, apparently satisfying Maietta (who must have known that Jordan was not at either the union hall or The Pregnant Pig) that Jordan was not a union adherent. Indeed, that prompted him to invite Jordan to return to work on Monday, an invitation which was later peremptorily canceled. Maietta's reason for his telephone call to Jordan's wife that day was that he had just then learned that Jordan previously quit his job, and that his brother (and copartner) had told him to 14 Dennis Maietta testified that he never told his father what he had seen outside the union hall on August 6. In light of Maietta's questioning of Carr., Stine, and Hobbs on Friday morning (Carr was not at The Preg- nant Pig the preceding night but was at the union hall) and the August request only to Jordanl to come to the office (Jordan was not at the union hall), it is most probable that Maietla knew generally, if not to a man. who was outside the union hall on August 6. "get rid of him." The sudden appearance of his business partner on Monday, after an absence of a year because of bad ,health, is most improbable. 15 In light of Maietta's admission that just 10 days before, when Jordan was re- hired, Maietta was short of drivers-and that only 10 days later, he was ready to terminate Jordan-I conclude that Maietta must have rethought his position that Jordan was not a union adherent, with knowledge gained through his conversation with Stine on August 11, and discharged him only for that reason. Stanley was told by Miller on August 9 that he was laid off, but that he would probably be called back in 2 weeks. Miller did not deny this, but Maietta testified he was terminated. Clearly, there was ample justification for a discharge, because of Stanley's record of absences. The Friday before his "layoff," he was warned that he was missing too many days; but I cannot disregard the facts that no employee had been fired the entire year for ab- senteeism (or any other reason) and that Stanley was told by Miller that he was laid off Although the question is a close one, I find that Stanley was included in the group of layoffs prompted by McKew's telephone call,'6 that Jordan's recall to work was prompted by Maietta's need for additional driver (thus leaving four off the payroll), 17 and that Stanley was not later rehired because he was naied as a card signer by Stine and was identified by Dennis Maietta as having been outside the union hall on August 6. 8 Carr and Mills, both fired on August 13, were the next to go. Carr displeased Maietta because of his failure to sign Maietta's letter. Maietta's justification-that Carr had signed an accident statement about 2 months before which was damaging to Maietta-cannot be credited. If that were the real reason, Maietta had ample opportunity to terminate him, but did so only after he learned of the union activity and had been told of Carr's card signing by Stine. Mills, who was also identified by Stine, was (according to Maietta) discharged because, on August 1, he brought to Miller a "fake" doctor's excuse, the last straw of a series of absences. Again, it cannot be said that there might not have been any justification for Maietta's actions; but the totality of his conduct and the fact that no one had earlier been discharged for absentee- ism indicate that his reason was merely a pretext. In par- ticular, I rely upon the excessively over-reactional dis- cussion, testified to by Maietta, with secretary Miller. In that conversation, held on August 13, Maietta pointedly made known his intense displeasure with Mills, to which Miller added after reading the note, "My God, no wonder you are mad," and Maietta stating that the one thing he did not need was a liar, or the one thing he I5 Maietta's brother did not testify. L6 Stanley was first hired in early June. and his seniority was about as low as that of the others who were laid off. 17 Hobbs. a mechanic, was assigned to drive a truck on August 10. iR Because I have found the initial layoff on August 9 to be proper. the illegal discharges took place on August 10, and backpay shall run from that date It is probable that, had there been no illegal conduct, at least four employees would not have had work for two or more weeks However Respondent's conduct -particularly his threat to let the trucks rot-indicates that he had determined to ithhold work permanentl from the "laid off' employees Thus. backpay from August 10 is apprio- priate In these circumstances MAIEITA CONTRACTING 181 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hated more than a thief was a liar. Miller did not relate that Maietta said this, and specifically denied the quota- tion attributed to her. Of greater importance, after Maietta was cross-examined at length, and after he had detailed the exact words of his conversation with Miller on August 13, documents were exhibited to him demon- strating that Miller was on vacation on that day, and any conversation with Miller had to have taken place a week after Mills' discharge. Maietta's testimony was thus pa- tently concocted and, I conclude, was an attempt to con- ceal his real motivation for Mills' discharge, which I find was Mills' union activities. Maietta's justification for firing Hobbs on August 16 was that Hobbs, an employee of 7 years, was not per- forming his mechanic's functions that week. The record reveals that, during that entire week, Hobbs was assigned to drive a truck (no doubt because of the prior dis- charges of Respondent's truckdrivers) and was not to perform, or at least did not know that he was supposed to perform, mechanic's duties. Hobbs had not been in- formed, until his termination, that any work was required to be done. Rather, the purported reason was a mere pretext for Hobbs' union adherence, 9 a conclusion bol- stered by Maietta's announcement the day after this eighth discharge that "the Union bullshit is over." At that meeting, McKeithan and Stine were warned by Maietta not to engage in any more Union activities, but it seems likely that Maietta did not trust his judgment of August 17 to permit them to remain on the payroll. Maietta's reason for firing Stine on August 23 was that Stine's absence on August 22 had caused him to lose a contract in Chambersburg. Stine had indeed been absent from work before, but his absenteeism was not much more serious than others who had not been disciplined. Indeed, Stine had never previously been fired, suspend- ed, or warned; and Maietta in his testimony attempted to inflate his attendance problem out of proportion to its actual seriousness. Further, at first insisting that Stine's last day of work was August 17 and that he terminated him after 3 days of absences, Maietta, confronted with Respondent's payroll records, conceded that Stine worked on both August 20 and 21, the latter being a rain day on which Stine had promised to come to Respond- ent's shop to fix some tires.20 Other than Maietta's state- ment to Stine on August 23, there is nothing to indicate why it was Stine who caused Maietta to lose this partic- ular job, or even that there was such a job. 21 Because Stine was a few days earlier pinpointed by Maietta for his union activities, warned about not engaging in them, and accused him of "working the middle," and because of the totality of Maietta's conduct, I find that the dis- 19 Hobbs had not been requested to sign Maietta's poll. because Maietta knew how he stood Maietta testified, however, that he did not bother asking Hobbs to sign the statement because of his "confidence and faith" that Hobbs would not get mixed up with the Union-a confidence and faith which was singularly lacking when Maietta successfully re- quested his daughter and two working sons to sign. 20 This concession deflated Maietta's earlier inflated testimony about Stine's missing 3 or 4 or 5 days' work and then "he strolled in there one morning just as big as you please and . . had the audacity to get on the truck and go to work .... 2 Maietta testified that, in August. Respondent had three jobs: I) the Courson-Gruman sewer job: (2) a job for Mack Truck: and (31) a sewer job in Hagerstown. charge of Stine was in violation of Section 8(a)(3), and his absence on August 22 was not the true cause of the discharge. McKeithan, the last union card signatory, was termi- nated by Maietta, allegedly for missing work on August 31. McKeithan had originally requested that day off, in order to take his son to college. He testified that Maietta granted his request; but Maietta denied it. In any event, according to Maietta, he decided on August 30 that he could not grant the day off and so notified McKeithan on the jobsite. At first, he testified that, when he told McKeithan that he needed him, and he should not let Maietta down, McKeithan merely turned around and got back in his truck. Later, Maietta called his secretary, then suffering from a broken right arm (so that she could not write), and asked her to leave a note on McKeithan's private truck's window about how desperately Maietta needed him and not to let him down. The crumpled note, which Maietta testifed he found later that day out- side the office, was introduced in evidence. It was the failure of McKeithan to comply with that note that con- stituted Respondent's justification for the discharge. Respondent's defense was supported by the testimony of Miller, who stated that she received Maietta's phone call and had employee Border write the note and place it on McKeithan's truck's windshield, which she personally saw Border do. Border, however, rather indifferently identified the note, guessing it was the one he wrote that day, and testified that he did not place the note on the windshield but that he gave it to McKeithan, who crum- pled the note and threw it on the ground. McKeithan, to the contrary, testified that he never saw the note at any time and that he did not report for work on August 31 because he had been granted the day off. I credit McKeithan, discrediting Border and Miller be- cause of the inconsistency in their testimony of what happened to the note, Maietta and Miller because of the inconsistency of their testimony whether Miller had asked Maietta whether Border could write the note for her, and discrediting Maietta who on cross-examination stated that, when he told McKeithan he could not have the day off, McKeithan "threw his head and stomped around," vastly different from the rather placid reaction which Maietta related on direct examination. 22 Indeed, the finding of the note by Maietta was most fortuitous, although not wholly improbable; but in light of Maietta's history of union animus, the firing of the last union ad- herent completed Maietta's prophecy of a week or so before that the "Union b-s-" was clearly "over." 5. The request for a bargaining order By August 2, the 10 discriminatees had signed authori- zation cards designating the Union as their collective- bargaining representative. It was stipulated that the ap- propriate unit is as follows: All construction employees employed by Maietta Contracting, including truck drivers, mechanics, utility employees, and equipment operators, and ex- '2 McKeithan's reaction to Maietta's oral request for him to come to work allegedly prompted Maletta to follow up with the written note MAIETTA CONTRACTING 1 83 cluding all other employees, office clerical employ- ees, guards, and supervisors as defined by the Act. Only 10 other employees were employed by Respond- ent on that date. 23 Of those, three were sons of Maietta and are expressly excluded as employees under Section 2(3) of the Act. James A. Mead and Roger Mead, co-part- ners d/b/a Mead's Market, 148 NLRB 383, 389 (1964); Robert W. Johnson and Clifford W. Johnson, co-partners d/b/a Johnson Metal Products Co., 161 NLRB 844, 846- 847 (1966). 24 A fourth, Steven Keasey, was no more than a casual employee, who did not work regularly, either full or part time, and who was employed only when Maietta needed him. 25 Under established Board law, Keasey would not have been permitted to partici- pate with regular employees in an election of representa- tives. Mead Nursing Home, Inc., 229 NLRB 620, 627 (1977). Accordingly, I find that on August 2 the Union repre- sented 10 of 16 eligible employees. I further find that the choice of the Union, as expressed by the authorization cards, 2 s represents a far better method of determining employee preference, than can an election conducted sometime in the future. The unfair labor practices com- mitted by Respondent constituted a show of brute force, resulting in the termination of every employee, and only those employees, who had shown support for the Union. "[I]n a small unit, the impact of such discharges has a far greater effect than in a larger one and practically makes a fair election impossible." Pay 'N Save Corporation, 247 NLRB No. 184 (1980). Those employees, and the ones they left behind, are unlikely to forget Maietta's actions, his interrogation, his polling, his threat of closure, and his threat to let his trucks rot.2 7 In those circumstances, a fair election may not be held within the immediate '' The employees were Paul L. Beaver. t.eRoy E. Harshman. Jr . An- thony J Maietta. Dennis Maietta (Maielta's sonl) Gary Mussolino. Da'id Harris, Francis NM. Dupert. William Edgar Schmidl. Sr . Steel; Keasey, and Frank Maietta. Jr (who was in military service) 24 Sec. 2(3) provides that "employee" shall not include "any individual employed by his parent." Respondent contends that the sons were em- ployed not by their father, hbat by the partnership entity, and that the cited decisions do not accord with more recent Board Decisions such as lops Club. Inc., 238 NLRB 928 (1978). which. it argues, requires the General Counsel to provide the sons' "special status" by irtue of their familial relationship. I find none of Responden's citations apposite. First, no decisions relate to the issue at bar; rather, the) relate primarily to em- ployees of corporations. Second. Congress has definitively excluded a child of an owner from the status of "employee Third, Maieta was the sole operator of Resxondent. because his brother had been ill for a year and only Maietta was directly responsible for the day-to-day operation of Respondent's business That the partnership may be a suable entity does not relieve Maietta of his own individual responsibility as a partner nor may it remove from Sec 2(3) its clear meaning and intent. 25 Keasey allegedly was laid off. subject to recall. on Friday. August 3. That week, he worked 16 hours on 3 days He did not work the eek before. During the week ending July 21, he worked 4 hours on I day He did not work the 2 weeks before that During his entire employment from June 18 to August 3, he worked 45 hours on 8 days 12 I disregard the results of Respondent's polling of employees, he- cause the form letters were coerced and must. as a result, not indicate the employees' free and untrammeled choice of representative zt The threat of closure may be sufficient to sustain a bargaining order herein. eriio-Lu'v. In.. 232 NRB 753, fi II11 (1977). modified 585 F2d 62 (3d Cir 1978) future,28 and the unfair labor practices may not be reme- died merely by use of the traditional remedies usually granted by the Board. In such circumstances, a bargain- ing order is fully warranted, Jacques Syl Neckwear. Inc.: Biquette, Inc., 247 NLRB No. 191 (1980), effective from August 9, 1980, when Respondent received the Union's demand for bargaining and refused to bargain in viola- tion of Section 8(a)(5) of the Act. Frito-Lay. Inc.. supru. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. Upon the basis of the foregoing findings of fact and the entire record, I hereby make the following: CONCL.USIONS OF LAW I. Dennis G. Maietta and Frank M. Maietta, trading as Maietta Contracting, Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, General Team- sters and Allied Workers, Local Union No. 992, is a labor organization within the meaning of Section 2(5) of the Act. 3. The unit appropriate for collective bargaining is: All construction employees employed by Maietta Contracting, including truck drivers, mechanics, utility employees, and equipment operators, and ex- cluding all other employees, office clerical employ- ees, guards, and supervisors as defined in the Act. 4. By interrogating employees concerning their union sympathies and activities and concerning the union synl- pathies and activities of other employees, by threatening employees with closure and with the cessation of truck- ing operations because of their union activities, by creat- ing the impression of surveillance of employees' union activities, by telling employees not to engage in any dis- cussions about the Union and the Union was "dead" and "over," by threatening employees with discharge in order to discourage them from supporting the Union, and by coercively polling employees concerning their union sympathies and activities and threatening them if they did not sign documents which favored Respondent, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them by i2 Respondent's anssecr admits that: "A PelitiOln tior Ccrtlfiicitto iof Representaties was filed by the Union on August 10. 7N ((.Cas h RC 85X8). bhut hy letter dated August 14. 1979 Henry Shore. Regional )lre.r tor, adslsed Respondrl llt Irn ritilng that Ihc prolccssiltg of Ih s (Pcll1il would hc hoeld iT aheance peding inestlgallon oft ih c bag. i 1ls case MAETTA CONTRACTING 153 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 5. By discharging Melvin Miller, Blaine J. Jordan, Jr., Stephen Walker, Edward M. Johnston, William E. Stan- ley, Jr., Donald Carr, John Mills, Simon Hobbs, John H. Stine, and Curtis McKeithan and failing and refusing at all times to reinstate them to their former positions, Re- spondent has discriminated, and is discriminating, against them in regard to hire or tenure of employment or a term or condition of employment to encourage or dis- courage membership in a labor organization and has thereby engaged in, and is thereby engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. By failing and refusing to recognize and bargain col- lectively with the Union as the duly authorized bargain- ing unit, at all times on and since August 9, 1979, with the purpose, intent, and effect of coercing and discourag- ing its employees from continued lawful adherence to, membership in, support of, and activities on behalf of the Union, as well as to prevent the Union from becoming and acting as their certified collective-bargaining repre- sentative, and so as to undermine the Union's representa- tive status and dissipate and destroy its majority stand- ing, and to render impossible or impracticable a free and uncoerced electoral choice on their part pursuant to the statutory election procedures provided under the Act, Respondent has refused, and is continuing to refuse, to recognize and bargain with the Union and has thereby engaged in, and is thereby engaging in, unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices, and each of them, have affected, affect, and unless permanently re- strained and enjoined will continue to affect, commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In addition to the bargaining order, I shall recommend tihe usual cease-and-desist provisions to remedy Respond- ent's 8(a)(l) unfair labor practices. To remedying Re- spondent's violations of Section 8(a)(3) and (1) of the Act, I shall order that Respondent offer employees Melvin Miller, Blaine J. Jordan, Jr., Stephen Walker, Edward M. Johnston, William E. Stanley, Jr., Donald Carr, John Mills, Simon Hobbs, John H. Stine, and Curtis McKeithan immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings or benefits they may have suffered by payment to them of a sum of money equal to the amount they normally would have earned from the dates of their termination to the date of Respondent's offer of reinstatement, less net interim earn- ings. All moneys to be paid to the above employees shall be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corporation, 231 NLRB 651 (1977). 29 2 See, generally, in P/unmbng & lieuling Co.. 138 NLRB 716 (1962\ Finally, in view of the egregious nature of Respond- ent's violations herein, I shall further order that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Hickmott Foods, Inc., 242 NLRB 1357 (1979). Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 0 The Respondent, Dennis G. Maietta and Frank M. Maietta, trading as Maietta Contracting, State Line, Pennsylvania, their agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union sympathies and activities and concerning union sympa- thies and activities of other employees. (b) Threatening employees with closure and with the cessation of trucking operations because of their union activities. (c) Creating the impression of surveillance of employ- ees' union activities. (d) Telling employees not to engage in any discussions about the Union and that the Union was "dead" and "over." (e) Threatening employees with discharge in order to discourage them from supporting the Union. (f) Coercively polling employees concerning their union sympathies and activities and threatening them if they did not sign documents which favored Respondent. (g) Discharging employees, and refusing to reinstate them, in order to discourage their membership in a labor organization. (h) Directly or indirectly engaging in any of the fore- going actions or activities or any like or related acts in order to dissipate the collective-bargaining representa- tional status of its employees' lawfully designated collec- tive-bargaining representative, or for the purpose of causing its employees to discontinue or refrain from ex- ercising their right to bargain collectively with Respond- ent, or otherwise so as to interfere with, restrain, or coerce its employees in the exercise of the rights guaran- teed under the Act. (i) Failing or refusing to recognize and bargain collec- tively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, General Teamsters and Allied Workers, Local Union No. 992, as the exclusive bargaining representative of the employees in the following appropriate bargaining unit: All construction employees employed by Maietta Contracting, including truck drivers, mechanics, utility employees, and equipment operators, and ex- "' In the event no exceptions are filed as provided bhy 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 10248 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall he deenled Aaived fior all purposes. MAIETTA CONTRACTING 185 cluding all other employees, office clerical employ- ees, guards, and supervisors as defined in the Act. (j) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guar- anteed under Section 7 of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all the em- ployees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment. and other terms and conditions of employment. (b) Offer immediate and full reinstatement to employ- ees Melvin Miller, Blaine J. Jordan, Jr., Stephen Walker. Edward M. Johnston, William E. Stanley, Jr., Donald Carr, John Mills, Simon Hobbs, John H. Stine. and Curtis McKeithan to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of their unlawful discharge, in the manner set forth in the section herein entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its State Line, Pennsylvania, place of busi- ness copies of the attached notice marked "Appendix." 3 ' Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Re- spondent's representative, shall be posted by Respondent immediately after receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily 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 6, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. : In the event Ihal this Order is enforced by a Judgment of ai United States Court of Appeals. the words in the notice reading "Posted by Order of he National Labor Relations Board" shall read "Poiled P'ursu- ant to a Judgment of the United States Court of Appeals IFnforcing an Order of the National L.abor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAl. LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities except to the extent that the employees' hargain- ing representative and employer have a collec- tive-bargaining agreement which imposes a lawful requirement that employees become uniot members. Wli Ill I NOI iterrgalte our employees COI1- cerning their union sympathies arnd acti ities and concerning union sympathies and activilies of other employees. WuI' Wll N ti threaten our employees \Eith clo- sure and ith the cessation of trucking operations because of their union activities. WE W11 I NOI create the impression of surecil- lance of our employees' union activities. W wA t i NO I tell our employees not to engage in any discussions about the International Brother- hood of Teamsters, Chauffeurs. Warehousemlen and Helpers of America, General Teamsters and Allied Workers, Local Union No. 92 aid that the Unioni was "dead" and "over." WtE wV I NO] threaten our employees swith dis- charge in order to discourage them front supporting the Union WE ill I NOT coercively poll our employecs concerning their union sympathies and activities and WE WII.I Not threaten them if they do not sign documents which favor us. WEL Will NOT discharge our employees, and refuse to reinstate them, in order to discourage their membership in the Union or any labor organization. Wl Wll I NOT directly or indirectly engage in any of the foregoing actions or activities or any like or related act in order to dissipate the collective- bargaining representational status of our employees' lawfully designated collective-bargaining repre- sentative, or for the purpose of causing our employ- ees to discontinue or refrain from exercising their right to bargain collectively with us or otherwise so as to interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed under the Act. WE Wll.l. NOT fail cr refuse to recognize and bar- gain collectively with the Union as the exlcusive bargaining representative of the employees in the following appropriate bargaining unit: All construction employees employed by Maietta Contracting, including truck drivers. me- chanics, utility employees, and equipment opera- tors, and excluding all other employees, office clerical employees, guard<, and supervisors as de- fined in the Act. WE Wi.L NOT in any other manner interfere with, restrain, or coerce our employees in the exer- MAETTA CONTRACtING 185 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cise of the rights guaranteed under Section 7 of the Act. WE WILL., upon request, bargain with the Union as the exclusive representative of all our employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Wi~ wit.i. offer immediate and full reinstatement to employees Melvin Miller, Blaine J. Jordan, Jr., Stephen Walker, Edward M. Johnston, William E. Stanley, Jr., Donald Carr, John Mills, Simon Hobbs, John H. Stine, and Curtis McKeithan to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of their unlawful discharges, with interest. DENNIS G. MAIITITA SNI) FRANK M. MAIlII A /A MAILtT A CONI RACI IN(,