Central Excavating Co.

National Labor Relations Board - Board Decisions

May 10, 1977

229 N.L.R.B. 547 (N.L.R.B. 1977)

CENTRAL EXCAVATING CO.
Pete Salemi d/b/a Central Excavating Co. and Robert
E. Camilletti. Case 8-CA-9448
May 10, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On October 27, 1976, Administrative Law Judge
Benjamin K. Blackburn issued the attached Supple-
mental Decision in this proceeding. Thereafter,
Respondent filed exceptions to the Administrative
Law Judge's Decision' and Supplemental Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
but only to the extent consistent with the following.
The Administrative Law Judge concluded that
Respondent had not engaged in unlawful interroga-
tion as alleged. No exception was filed with respect
to this conclusion, and it is hereby affirmed. The
Administrative Law Judge further held that the
discharge of Robert Camilletti on July 30, 1975,
violated Section 8(a)(3) and (1) of the Act. Respon-
dent excepts to this conclusion, which, we agree, is
erroneous.
Camilletti, a member of Local 18 of the Interna-
tional Union of Operating Engineers, was hired
through the union hiring hall in May 1975. On
Tuesday, July 22, he was transferred to a job at the
Cuyahoga Community College near Cleveland-the
Tri-C jobsite-where he worked under Foreman
Dominic Ottobre. He was put to work on a
bulldozer; the next day, he had a mishap which
caused some damage to the dozer and also hurt his
back. On Thursday, he worked for a couple of hours
but there were still problems with the bulldozer and
as his back still bothered him he went to the hospital.
At some point he called into Respondent's office
stating where he was and that he had left the job
without telling Ottobre because he could not find
him at the jobsite. Camilletti worked all of the
following day. However, in the morning he got into
an argument with Ottobre who accused Camilletti of
getting him in trouble by telling the office the
In his initial decision the Administrative Law Judge concluded that the
issues in this case should be deferred to arbitration and recommended that
the complaint be dismissed. The Board in its Decision and Order, 225
229 NLRB No. 86
previous day that he, Ottobre, was not at the jobsite.
Camilletti's reply was rather nonresponsive in that he
simply told Ottobre to get him his money if he did
not like the way he was doing his job. On Ottobre's
initiative the two reconciled their difficulties by the
end of the day.
Camilletti did not work on Saturday or Sunday.
However, "his" bulldozer was used on Saturday and
when he learned of this on Monday he complained to
Ottobre that under certain union practices he was
entitled to a day's pay for that Saturday. Ottobre
disagreed. Camilletti told him he was going to call
Local 18 about the claim, which he did. A union
representative then telephoned Respondent, who
agreed to pay Camilletti for Saturday.
Camilletti operated a grader on Monday, Tuesday,
and Wednesday. On Tuesday a complaint was made
to Ottobre about the grading of an area. The
following morning Ottobre relayed the complaint to
Camilletti, who again told Ottobre to get him his
money if Ottobre did not like his work. Somewhat
later, Ottobre complimented Camilletti on certain
grading he had done but still later criticized him for
messing up the graded area by going back over it.
Wednesday, July 30, was payday. Around noon
Camilletti received two checks. One was for his
regular pay; the other for the 8 hours he claimed for
the past Saturday. At that time, according to
Camilletti's testimony, he complained to Ottobre that
he had not been properly paid for the preceding
Thursday when he had to go to the hospital because
of his back and that he had not received certain
overtime pay earned prior to his being transferred to
the Tri-C jobsite. He added, still according to his
testimony, that he would again complain to the
Union if his demands were not met. Ottobre's
version of what occurred that Wednesday was
considerably different. According to him, he and all
the operators ate lunch together and Camilletti "was
in conversation with all boys" and stated several
times-and Ottobre is in effect credited on this
point-that if anyone was dissatisfied with his work
they should get him his money. But in Ottobre's
description of the events there is no confrontation
with Camilletti about paychecks, about claims for
additional pay, or about any other matter and in
consequence no threats by Camilletti about going to
the Union if his pay claims were not satisfied.
However, there is no dispute that sometime during
the afternoon of July 30 Ottobre telephoned Respon-
dent's office to have Camilletti's final paycheck
NLRB 1106 (1976), reversed the Administrative Law Judge and remanded
the case to him for a full decision on the merits, which he had, however,
tentatively considered in his initial decision.
547
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prepared and shortly thereafter told Camilletti to go
to the office to pick up his money. 2 However, it was
not until the next morning that Camilletti reported to
the office. At that time he handed over the two
checks he had received the previous day and voiced
his complaints concerning short pay for the past
Thursday and the failure to include the assertedly
promised overtime in his checks. These claims were
not resolved, and the two checks Camilletti had
received on Wednesday were returned to him. In
addition, he received a third check for the time
worked during the then current pay period. Later in
the day Camilletti complained to the Union that he
had been improperly discharged.
The Administrative Law Judge found, as stated
above, that Camilletti's discharge was unlawful. In
reaching this result he credited Camilletti's testimony
that on July 30 he told Ottobre he would take his
claims for Thursday and overtime pay to the Union
if they were not satisfied. That threat to go to the
Union, the Administrative Law Judge reasoned, was
the only incident on July 30 that plausibly explained
Ottobre's decision on that date to discharge Camillet-
ti. From this he concluded that the threat played a
not inconsequential part in the decision. However,
the Administrative Law Judge elsewhere had found
Camilletti's testimony to be generally unreliable, but
made an exception with respect to the matter here
under consideration, on the ground that Camilletti's
testimony was corroborated and supported by (1)
certain testimony of Respondent's owner, Pete
Salemi, and by (2) Respondent's including in the
checks dated July 30, but received by Camilletti the
following day, compensation for the claimed Thurs-
day and overtime pay.3 But the Administrative Law
Judge is in error here, for there is nothing in Salemi's
testimony that corroborates Camilletti's version of
the July 30 events, 4 and, as we stated above,
2 The Administrative Law Judge concluded that, though Ottobre never
told Camilletti he was being discharged, Ottobre's directing him to go pick
up his money was a discharge and was so understood by Camilletti.
Respondent contends, however, that Camilletti was not discharged but quit.
In support of this position it refers to Camilletti's statement that if Ottobre
did not like his work Ottobre should get him his money. Several witnesses
testified that in the trade such a statement is equivalent to "I quit."
Nevertheless, we agree with the Administrative Law Judge that in the
circumstances here Camilletti's use of the statement was not a quit but
rather an invitation to discharge him.
:' In his initial decision the Administrative Law Judge stated: "As to the
numerous head-to-head conflicts between the testimony of Camilletti . . .
on the one hand and Respondent's witnesses on the other, I credit the
latter." Then in his Supplemental Decision he specifically states with respect
to the matter here under consideration: "If I have found Camilletti to be an
unreliable witness, why do I credit his version of what passed between him
and Ottobre between noon and 12:30 p.m. on July 30? Because it is
corroborated" by, he added, the two items we mention in the text.
4 The Administrative Law Judge cites Salemi's testimony to the effect
that he learned why Camilletti was no longer working for the Company
because Camilletti came in for his checks, and that Salemi learned from his
"office girl" that Camilletti "raised the devil" about his paychecks being
short. The relevance of this testimony to the conflict between Camilletti and
Ottobre concerning the July 30 events escapes us.
Respondent never did, insofar as the record shows,
settle Camilletti's wage claims.5 Thus, the reasons
advanced by the Administrative Law Judge for
accepting Camilletti's testimony as to what occurred
on July 30 are factually defective and we do not
credit that testimony. Consequently, as there is no
credible evidence that Camilletti made a threat on
July 30 to take his wage claims to the Union, there is
no basis for concluding that such a threat precipitat-
ed his discharge and the Administrative Law Judge's
rationale for finding that discharge unlawful collaps-
es.
However, even if Camilletti had indeed threatened
on July 30 to go to the Union, we nonetheless would
conclude that the evidence is insufficient to support
the conclusion reached by the Administrative Law
Judge that that threat and his taking his Saturday
pay claim to the Union played any role in the
decision to discharge him. Respondent has always
been a union operation and there is no evidence
whatsoever of any present or past antiunion feelings
or activities by any of Respondent's top or other
management personnel. As for Ottobre-and it is his
reasons for discharging Camilletti which are of
crucial importance s -there is not a suggestion in the
record that he harbored any feelings against the
Union or was in any way opposed to employees
takingjob-related complaints to the Union. Actually,
the record shows that Camilletti's pressing wage
claims through the Union was really of no practical
concern to Ottobre, for he had nothing to do with the
claims or dealing with the Union concerning the
claims. Such matters were handled by Respondent's
office.
Furthermore, various plausible and lawful reasons
for Ottobre's discharging Camilletti appear in the
record. Thus Ottobre had been annoyed at Camillet-
ti's having reported to the office on July 24 that he,
5 The Administrative Law Judge's position is that (I) the July 30 checks
Camilletti received on July 31 at the office included payment for overtime
Camilletti had earned prior to coming to the Tri-C job under Ottobre's
supervision; (2) Ottobre, in telling the office to prepare Camilletti's final
checks, must have informed the office concerning the overtime pay claim;
(3) only if Camilletti had told Ottobre of the overtime claim on July 30
would Ottobre be aware of it, as the overtime was worked on a job Ottobre
did not supervise; and (4) therefore, Camilletti's testimony of what occurred
on July 30 between him and Ottobre is corroborated; This line of reasoning
involves several errors. First, the two checks dated July 30 which were
handed to him on July 31 were, as explained in the text above, the same
checks given to Camilletti around noon on July 30. Thus they were made
out before Ottobre called the office in the middle of the afternoon of July 30
to prepare Camilletti's final check and so quite obviously what those checks
covered could not, as the Administrative Law Judge's reasoning requires,
have been based on anything Ottobre said in the telephone call to the office.
Second, neither of those checks made provision for the overtime wage claim,
as we point out above, and consequently the Administrative Law Judge's
reasoning is based on an initial mistake of fact.
i As the Administrative Law Judge properly held, the decision to
discharge Camilletti was made by Ottobre alone. Other supervisors and
management personnel were in no way involved.
548
CENTRAL EXCAVATING CO.
Ottobre, was not to be found on the jobsite when he
should have been there. Also, Ottobre had received
complaints concerning, and he himself had expressed
dissatisfaction with, some of Camilletti's work. And
finally-and of no little significance-was Camillet-
ti's several comments to Ottobre to discharge him if
he did not like his work, comments made apparently
to cut off any criticism directed towards him and the
last made shortly before Ottobre in effect discharged
Camilletti by directing him to pick up his pay. Thus
from one vantage point, the initiative for the
discharge would seem to have come from Camilletti
himself, and Ottobre did little more than accept the
invitation to discharge him.
However, we need not pursue further the actual
causes for the discharge. It is enough that legitimate
reasons for the discharge did exist. That being so, we
can perceive no good reasons, in view of the
circumstances outlined above, for insinuating Camil-
letti's alleged union-related threats and activities as a
cause, even a partial one, of his discharge. Accord-
ingly, we find that the General Counsel has failed to
show that Camilletti's discharge was unlawful.
Therefore, as the other alleged violation has been
held to be without merit, we shall dismiss the
complaint in its entirety.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The charge was filed on September 11, 1975.1 The
complaint was issued on October 24. The hearing was held
on February 5 and 18, 1976, in Cleveland, Ohio. I issued a
Decision on April 8, 1976, in which I recommended the
Board defer to arbitration under the Collyer doctrine
(Collyer Insulated Wire, A Gulf and Western Systems Co.,
192 NLRB 837 (1971)). The Board remanded on August
31, 1976, for issuance of a full decision on the merits. The
principal issue litigated, other than Collyer, was Respon-
dent's motive for discharging Robert Camilletti on July 30,
1975. For the reasons originally stated in my Decision of
April 8, 1976, and repeated below, I find it was a
discriminatory motive within the meaning of Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended.
Upon the entire record, including especially my observa-
tion of the demeanor of the witnesses, and after due
consideration of briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a sole proprietorship headquartered in
Cleveland, Ohio, is an excavating contractor. He annually
grosses more than $1 million and performs services valued
in excess of $50,000 for Ohio business enterprises, each of
which annually receives directly from suppliers located
outside the State of Ohio goods valued in excess of $50,000.
II. THE UNFAIR LABOR PRACTICES
A. Facts
Respondent is a union contractor. He hired Camilletti, a
member of Local 18 of the International Union of
Operating Engineers, through Local 18's hiring hall in mid-
May 1975. On Tuesday, July 22, he transferred Camilletti
and the bulldozer to which he had been assigned to a
project at Cuyahoga Community College near Cleveland.
Camilletti worked for Respondent at this so-called Tri-C
jobsite until Respondent's foreman, Dominic Ottobre,
discharged him on the afternoon of Wednesday, July 30.
Camilletti operated his bulldozer on Tuesday, Wednes-
day, Thursday, and Friday. On Wednesday Camilletti
suffered a mishap which damaged the bulldozer and
injured his back. He spent most of the balance of the day
repairing the bulldozer. That evening he went to a hospital
emergency room for treatment of his back. On Thursday,
he operated the bulldozer from 7 a.m. to approximately
9:45 a.m. The dozer was still leaking oil in a crucial spot.
Camilletti's back was still hurting. Consequently, Camilletti
parked the bulldozer, left the jobsite without telling
Ottobre, and went back to the hospital. Sometime during
the day he called Respondent's office and reported where
he was. He said he had left without informing Ottobre
because he had not been able to locate Ottobre at the
jobsite. Camilletti worked a full day on Friday. Sometime
that day he had an argument with Ottobre. Ottobre
accused Camilletti of getting him in trouble with the office
by saying he was not on the job. Camilletti told Ottobre he
could get Camilletti his money if he did not like the way
Camilletti was doing his job. Ottobre did not get Camillet-
ti's money. Before the day was over, Camilletti and Ottobre
made up.
Camilletti was off on Saturday and Sunday. On Saturday
morning, another employee operated Camilletti's bulldozer
for approximately an hour while his own machine was
being repaired. When Camilletti came to work on Monday
morning, he was told that his bulldozer had been used on
Saturday. He complained to Ottobre. He told Ottobre he
was entitled to a day's pay for Saturday under a union
practice which gives the operator who is assigned to a
machine first crack at any overtime growing out of use of
that machine. Ottobre told Camilletti the rule did not apply
in emergency situations. Camilletti insisted he was going to
make out a time ticket for Saturday. (Ottobre reported
Camilletti's claim in a telephone call to Respondent's office
later that day.) Camilletti also told Ottobre he was going to
I Dates are 1975 unless otherwise indicated.
549
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complain to Local 18. Later that day he did so. A business
agent called Respondent's office. Respondent agreed to
give Camilletti 8 hours' pay for Saturday.
Camilletti operated a grader on Monday, Tuesday, and
Wednesday of his second week at the Tri-C jobsite. On
Monday and Tuesday, he graded the ground inside a
running track. Sometime on Tuesday, the contractor for
whom Respondent was working complained to Ottobre
about the grading of the area. Ottobre told Camilletti about
the complaint on Wednesday morning. Again, Camilletti
told Ottobre to get his money if Ottobre did not like his
work. Ottobre did not get Camilletti's money. He did not
take Camilletti off the grader. Camilletti graded an area
near a baseball diamond that day. Ottobre complimented
Camilletti for the quality of this work. Later, Ottobre told
Camilletti that Camilletti had messed up the area by going
back over it. Ottobre permitted Camilletti to continue to
operate the grader.
Wednesday was payday. Checks were distributed at
noon. Camilletti received two dated July 27, one his regular
check for the pay period for which that Wednesday was the
payday and the other a check for 8 hours' pay in settlement
of his claim for Saturday, July 26. Camilletti complained to
Ottobre about his pay. They got into another argument.
Camilletti claimed he should have been paid for a full day
on Thursday, July 24, since the injury which had sent him
to the hospital had occurred in the line of duty. As an
alternate position, he argued that he was at least entitled to
3 hours' pay for the period he actually worked on July 24
instead of the 2 hours which were included in his regular
check. He also expressed anger over the fact that old claims
for an hour's pay on each of two separate occasions prior
to his transfer to the Tri-C jobsite were not included in his
regular check. Camilletti said he was going to stay at the
jobsite even beyond the end of the workday until he
received all the money which was due him, including
overtime pay for any period he might have to wait if his
claims were not made good by quitting time. He said he
would complain to Local 18 again if his demands were not
met. For the last time, Camilletti told Ottobre to get him
his money (i.e., the money he had earned in the current pay
period) if Ottobre did not like his work. Camilletti returned
to his grader when the lunch break ended at 12:30 p.m.
Sometime that afternoon Ottobre telephoned Respon-
dent's office and ordered Camilletti's final checks pre-
pared. He then went to Camilletti and told him to go to the
office for his money. He did not tell Camilletti he was fired.
Camilletti left the Tri-C jobsite around 3 p.m. on Wednes-
day, July 30. He did not arrive at the office before it closed
at 4:30 p.m. He first called and then went to the office on
Thursday morning. He was given two checks which had
been prepared on Wednesday afternoon. One was in
settlement of his various claims. The other was for wages
earned during the current pay period and marked the
termination of his employment. Later that day Camilletti
complained to Local 18 that he had been improperly
discharged.
B. Analysis and Conclusions
Camilletti was the only witness called by the General
Counsel to testify about the merits of this case. Respon-
dent's principal witnesses were Peter Salemi and Dominic
Ottobre. As already indicated in my original Decision, I
am convinced none of them told the whole truth. However,
Respondent also called Jorge Pla, a credible witness, to
corroborate Salemi's version of what happened at Respon-
dent's office on the morning of Thursday, July 31.
Consequently, I have relied on Pla's testimony in refusing
to find, as Camilletti testified, that Salemi responded, "My
men don't go to the union hall" when Camilletti asked why
he had been discharged. I find, therefore, the General
Counsel has failed to prove Respondent, in the person of
Salemi, "did unlawfully interrogate the Charging Party,
while in Salemi's office, regarding why the Charging Party
had, on July 28, 1975, gone to the Union hall to voice a
complaint against Respondent."
I also touched on Respondent's primary defense-that
Camilletti quit-in my original Decision. In rejecting it, I
wrote:
Dominic Ottobre, Respondent's foreman, admitted
Camilletti said at least twice and possibly thrice before
the afternoon of July 30 that Ottobre could get him his
money if Ottobre was not satisfied with his work.
Ottobre ignored Camilletti each time. There was
nothing different about the exchange on the afternoon
of July 30 which sent Ottobre into action. Camilletti did
not intend at that moment to terminate his employment
relationship with Respondent any more than he had in
the two or three preceding conversations. A quit occurs
when an employee manifests by some overt act his
intention to end his employment. Camilletti's intent
was to invite Ottobre to discharge him. Ottobre
accepted the invitation.
As stated in my original Decision, Respondent's conten-
tion is nonsense.
Respondent's alternate contention-that Camilletti was
discharged for poor work-deserves equally short shrift.
Ottobre did not discharge Camilletti early Wednesday
morning for poor work in the track area on Monday and
Tuesday. Camilletti demonstrated to Ottobre that he could
do competent work on the grader by the manner in which
he first graded the ballfield area on Wednesday morning.
When Ottobre decided Camilletti had undone his good
work, he did not discharge Camilletti for incompetence at
that point either. Rather, he testified, he left Camilletti on
the grader while he went to the telephone to call
Respondent's office, thus:
Q. Did you have any occasion to talk with Mr.
Camilletti in the afternoon?
A. After lunch when we went back to work, I
talked to him again.
Q. What did you talk to him about at this time?
A. Well, he had done a piece of grading earlier that
wasn't too bad, it was in pretty good shape.
Q. Did you compliment him?
A. I complimented him. It was pretty good. I told
him to leave it alone.
Later when I went back it wasn't too good. I don't
know whether he went back.
Q. What did you say to him?
550
CENTRAL EXCAVATING CO.
A. I told him we had to straighten it up, we
couldn't have none of that.
Q. What did he say?
A. That is when he gave me the remark again, if I
didn't like his work, to get his money. That is when I
decided to get his money. I had heard the remark too
many times.
Q. What did you tell him then?
A. I didn't tell him anything. I told him that I
would get him his money.
It was only after the events growing out of Camilletti's
receipt of his paychecks at lunchtime that Ottobre decided
to telephone the office to set Camilletti's termination in
motion. Since all of Ottobre's testimony adds up to an
assertion that he was thinking in terms of accommodating
Camilletti's desire to quit, there is no explicit statement by
him as to which of Camilletti's shortcomings sent him to
the telephone. If the quality of Camilletti's work crosses
Ottobre's mind at all at that point (I doubt that it did), it
was, at most, an insignificant part of the thought process
that motivated him.
The most significant thing about Ottobre's testimony is
that it contains not one word about an argument with
Camilletti over Camilletti's paychecks. His version of what
did happen at lunchtime comes just before that part of his
testimony on direct examination set forth above, thus:
Q. Did you talk with [Camilletti] at lunchtime at
all?
A. No, I didn't.
Q. Did you see him at lunchtime at all?
A. Yes, we were eating together, all the other
operators.
Q. Did you hear Mr. Camilletti say anything at
lunchtime?
A. Yes, he was in a conversation with all the boys,
kept telling them the same way, they had a conversa-
tion on work, made the same remark again to the rest.
Q. What was the remark?
A. That if anybody wasn't satisfied with his work,
they should get his money any time.
When the subject came up again on cross-examination,
Ottobre testified thus:
Q. Do you recall when you passed out the pay
checks on July 30th what time of day it was?
A. I don't recall even if I passed them out.
Q. Was Wednesday a pay day?
A. Wednesday is a pay day.
Q. Do employees normally get their pay checks on
pay day?
A. They always get them on pay day.
Q. Who passes them out?
A. It all depends who brings them out. Sometimes
they ask the Carry-all man to bring them out.
Sometimes they ask the fuel man to bring them out.
Sometimes they ask the mechanics, sometimes they give
them to me and sometimes they pass them out to each
operator.
Q. But you don't recall what happened on that
Wednesday?
A. No, I don't.
Q. Do you recall the men were sitting around in a
conversation that day at luncheon time?
A. Right.
Q. Do you recall what the nature was of that
conversation?
A. Yes, it was always about work-about work and
the Union.
Q. What did Mr. Camilletti say about work and the
Union?
A. Well, he was always knocking the Union.
Q. Every day?
A. Every time he talked about it.
If I found Camilletti to be an unreliable witness, why do
I credit his version of what passed between him and
Ottobre between noon and 12:30 p.m. on July 30? Because
it is corroborated. It is corroborated by Salemi's admission
that Camilletti was claiming pay for work that predated his
transfer to the Tri-Cjobsite, thus:
Q. Now, when you submitted your answer to the
Board in this case and where you were attempting to
answer each of the allegations in the complaint, where
did you get your information as to why Mr. Camilletti
was no longer working for you?
A. Well, I knew about that because he came in for
his checks.
Q. And you knew-
A. He raised a lot of devil about him not getting, he
was short one hour from a couple weeks previous. This
is what I heard.
Q. When did he raise these problems?
A. Well, he got on the phone one day and just
raised the devil with my office girl. My office girl told
me.
coupled with the fact that one of the two checks prepared
on the afternoon of July 30 as a result of Ottobre's
telephone call to the office was in settlement of that claim.
Ottobre had no independent knowledge of this part of
Camilletti's claims for more pay since he had not been
Camilletti's foreman when, according to Camilletti, the
work was performed. There is no indication in the record
Camilletti mentioned the subject to Ottobre before noon
on July 30. Therefore, the person who made out Camillet-
ti's last two checks and dated them July 30, the ones he
picked up on the morning of July 31, could only have been
alerted to Camilletti's old claim by what Ottobre said when
he called in to order Camilletti paid off, information
Ottobre could only have gained in the paycheck argument.
Ottobre discharged Camilletti. Therefore, Ottobre's
motive is Respondent's motive. On cross-examination
Ottobre testified about his state of mind on July 30, thus:
Q. Now, directing your attention to your log book
and to the date of Wednesday, July 30, 1975, that entry
states Camilletti was sent to the yard for his time, is that
correct?
A. Right.
551
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Okay, and are you the person that sent him to
the yard for his time?
A. Right.
Q. And following that it says "Not satisfactory"?
A. Right.
Q. True, all right. Was this your evaluation of him,
"Not satisfactory"?
A. Right.
Q. All right, and based upon what did you make
that conclusion that he was not satisfactory?
A. Well, to start off was I overlooked him being on
a move off the dozer all the time-
Q. When did the trouble start?
JUDGE BLACKBURN: You interrupted. I'd like to hear
the answer to the last question.
Ms. DUNBAR: I'm sorry.
JUDGE BLACKBURN: He was upset. Why was he not
satisfactory, Mr. Ottobre?
THE WITNESS: Well, I overlooked having to keep him
on the dozer, when he was on the dozer, and then I
overlooked some of the grading at the track area, but
when we graded in front of the ball field and did a piece
over there, that was pretty nice, and I told him it was
pretty nice. Then he went back later and for some
reason or other he went back and cut that up and the
rest wasn't too good. That was the last straw.
Q. (By Ms. Dunbar) Okay.
A. Now let me tell you something now, all these
questions coming up might clear up-
Q. I am asking a question.
JUDGE BLACKBURN: I want to hear the rest of the
answer.
THE WITNESS: I rather tolerated him, and you will see
this, and kept him.
At this time of the year, July, it's hard to get operators
and that is why I didn't get a replacement.
At that time of the year you have to tolerate these
shenanigansfrom the operators.
I have to keep them, otherwise you don't get nothing at
the hall. [Emphasis supplied.]
Because of the time of the year, Ottobre had to "tolerate
these shenanigans" from Camilletti. Something happened
on July 30 to drive Ottobre beyond the point of toleration.
That something was an argument over Camilletti's claims
for money in the course of which he threatened to go to
Local 18 again for help. That argument came only 2 days
after another argument over a claim by Camilletti for
money which he had won by enlisting the aid of Local 18
despite the fact Ottobre disputed the claim. It follows that
Ottobre was motivated, at least in legally significant part if
not solely, by Camilletti's propensity to turn to his Union
for help in dealings with Respondent over wages. That
motive is discriminatory within the meaning of the Act. I
find, therefore, Respondent violated Section 8(a)(3) and (I)
of the Act by discharging Robert Camilletti on July 30,
1975.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
I. Pete Salemi d/b/a Central Excavating Co. is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 18 of the International Union of Operating
Engineers is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discharging Robert Camilletti on July 30, 1975,
for engaging in union activities by enlisting the help of a
labor organization in a dispute over wages, Respondent has
violated Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. The allegation of the complaint that Respondent
violated Section 8(a)(l) of the Act by interrogating an
employee has not been sustained.
THE REMEDY
In addition to the usual cease-and-desist order and
notice, an order requiring Respondent to remedy the unfair
labor practice found by reinstating Camilletti and making
him whole is required to effectuate the policies of the Act.
Backpay will be computed on a quarterly basis, plus
interest at 6 percent per annum, as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]
552