Consolidated Ventilation and Duct Co., Inc.

National Labor Relations Board - Board Decisions

Sep 3, 1963

144 N.L.R.B. 324 (N.L.R.B. 1963)

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1946 in raising the Christmas checks from $5 to $10. The evidence shows that Re-
spondent is perfectly willing to bargain with the Union with respect to the Christmas
check for the future . Thus it is clear that the Union in the instant case desires the
Board to make an award payable by Respondent to the employees of a sum of money
which the Union up until the present time has never been interested in bargaining
about. Thus it is unnecessary to decide that the Christmas checks are "gifts" as
distinguished from a "bonus." I do add, however , that the evidence here tends to
show these Christmas checks are "bona fide" gifts as the circuit discussed in the
Niles case, supra. The Respondent has always considered them to have been gifts.
Accordingly, I will recommend that the complaint be dismissed in its entirety.
Even if it were determined that the unilateral termination of the Christmas checks
were a refusal to bargain in good faith , I would not order Respondent to pay the
1961 and 1962 checks as urged by the General Counsel . A "make whole" remedy
is usually associated with a violation of Section 8(a)(3) of the Act wherein a Re-
spondent would discriminate against an employee with respect to his terms or con-
ditions of employment for purposes of discouraging or encouraging membership in a
labor organization. As this record is wholly devoid of any evidence or any motive
of such discrimination , such a "reimbursement" remedy would not be recommended.
The policies of the Act will be and are being effectuated by future bargaining. All
evidence points to a willingness to do this.
CONCLUSIONS OF LAW
1. Respondent General Telephone Company of Florida is an Employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. System Council T-2, International Brotherhood of Electrical Workers, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish by the preponderance of the evi-
dence that Respondent has refused to bargain in good faith and , accordingly, there
is no violation of Section 8(a) (5) and (1) of the Act.
4. There is no evidence of an independent violation of Section 8 (a) (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law , and upon
the entire record in the case, I recommend that the complaint be dismissed in its
entirety.
Consolidated Ventilation and Duct Co ., Inc. and Joseph A.
Cinanni
Local Union No. 28 , Sheet Metal Workers International Asso-
ciation , AFL-CIO and Joseph A. Cinanni . Cases Nos. 2-CA-
9068 and 2-CB-36937. September 3, 1963
DECISION AND ORDER
On May 28, 1963, Trial Examiner Jerry B. Stone issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
prac*;ces and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the General Counsel and the Respondent Union
filed exceptions to the Intermediate Report. The Respondent Em-
ployer also filed a brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Leedom, Fanning, and Brown].
144 NLRB No. 41.
CONSOLIDATED VENTILATION AND DUCT CO., INC. 325
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in these cases, including the Intermediate Report and the ex-
ceptions, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modifications noted herein.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
Subparagraph B, 1(b) of the Recommended Order is changed to
read as follows :
(b) In any other manner restraining or coercing employees of
Consolidated Ventilation and Duct Co., Inc., in the exercise of the
rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
Appendix B, paragraph 4 is amended by the insertion of the words
"of Consolidated Ventilation and Duct Co., Inc." after the word
"employees" and before the word "in."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon separate charges filed on January 16, 1963, by Joseph A. Cinanni , and after
a consolidation of said charges , the General Counsel of the National Labor Relations
Board , by the Regional Director for the Second Region (New York, New York),
issued his complaint dated February 14, 1963, against Consolidated Ventilation and
Duct Co., Inc. (herein called Respondent Company or Company ), and Local Union
No. 28, Sheet Metal Workers International Association , AFL-CIO (herein called
Respondent Union or Local 28). In substance the complaint (as amended at the
hearing ) alleges that the Respondent Union demanded that the Respondent Company
discharge employee Cinanni because he was not a member of the Union and that
the Respondent Company discharged Cinanni for said reasons ; that Respondent
Union therefore violated Section 8(b)(1)(A ) and (2 ) of the Act and that Respond-
ent Company violated Section 8 ( a)(1) and ( 3) of the Act; and that such conduct
affected and was affecting commerce within the meaning of Section 2(6) and (7) of
the Act. Respondents ' answers admit some of the facts pleaded in the complaint,
but deny the commission of any unfair labor practices.
Pursuant to appropriate notice , a hearing was held before Trial Examiner Jerry B.
Stone at New York, New York, on March 18 and 19 , 1963. All parties were repre-
sented at and participated in the hearing and were afforded the right to present evi-
dence, to examine and cross-examine witnesses , to offer oral arguments and to file
briefs. All parties filed briefs and they have been considered.
Upon the entire record in this case and from my observation of the witnesses, the
following findings of fact , conclusions of law , and recommendations are made.'
'All credibility resolutions are based in whole or in part on my observation of the wit-
nesses' demeanor.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
It is found that at all times material to this proceeding Consolidated Ventilation
and Duct Co., Inc., is a New York corporation , engaged in the manufacture, sale,
and distribution of sheet metal ducts, enclosures , and related products for air-
conditioning and heating systems, in providing and performing at its Jackson Heights
plant and at various other locations and places of business , the service of installation
of ducts and enclosures , and performing related services.
Respondent Company during a representative 12-month period manufactures , sells,
and distributes at its plant products , and performs services at said plant and else-
where of a combined value in excess of $500,000 , of which in excess of $50,000 are
derived from said products shipped from said plant in interstate commerce directly to
States of the United States other than New York State , and from services performed
in, and for various enterprises located in States other than New York State
I find that Respondent Company is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act, and that in connection with the activities described
in the following sections of this report , it will effectuate the policies of the Act to
assert jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 28 , Sheet Metal Workers International Association , AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Preliminary Issue
Supervisory status of Fritz 2
The complaint alleged and the answers denied that Harold Fritz was a supervisor
of the Company within the meaning of Section 2(11) of the Act. Harold Fritz'
job designation is that of shop foreman of the Company. Fritz has no authority to
hire and to fire employees . Fritz determines which employees are capable of doing
various jobs , allocates and assigns work to all of the shop employees , checks and
sees that the work is performed correctly, and sees that the finished work is shipped
on the trucks. He discusses the abilities of the shop employees with President Yutan.
Fritz does not customarily work as a journeyman although he is a fully qualified
journeyman sheet metal worker. Fritz receives approximately $ 60 more in wages
per week than the Company' s sheet metal workers. He receives 1 hour overtime
per day at double time rates for preparing work for the next day. Yutan testified
that he (Yutan) was the only supervisor for the Company. In answer to a question
whether he designated someone to take charge when he was gone , Yutan stated that
Fritz took care of the shop, that he (Fritz) knew what Yutan wanted, that Hanson
knew enough about the outside, that if there were a problem he had a son in the
business . Around January 1, 1963, there were 16 employees in the shop, and 19
outside employees . Based upon the foregoing I find that Fritz exercises independent
judgment in the responsible direction of the shop employees , and is a supervisor
within the meaning of Section 2 (11) of the Act.
Miscellaneous Background
The referral and employment of Cinanni
In early 1961 the Company had need for a welder possessing skill in heliarc
welding 3 Erwin Yutan, president of the Company, contacted Local 28 and requested
that a welder possessing skill in heliarc welding be referred for employment? Local
28 referred Joseph A. Cinanni, who was not a member of Local 28, to the Company
for employment.5
2 The facts of Fritz' supervisory status are based on a composite of the credited testi-
mony of Yutan , Fritz, and Cinanni.
3 Based on Yutan 's credited testimony.
4 Based on Yutan 's credited testimony.
5 Based on Cinanni's credited testimony . It is undisputed that Cinanni had in the past
worked for employers under contract with Local 28, and had been referred to other jobs by
Local 28 . The General Counsel does not contend that Local 28 or the Company's past con-
CONSOLIDATED VENTILATION AND DUCT CO., INC. 327
Joseph A. Cinanni was employed by the Company on or about March 9, 1961,
and continued in employment at the Company until January 4, 1963, when he was
laid off.6
Cinanni's skills and attempts to become a member of Local 28
Cinanni made various attempts to become a member of Local 28 commencing
in 1956 and to the date of the hearing on this matter, but Local 28 refused to accept
him into membership.?
Cinanni possessed skills as a general welder and with special' aptitude as a heliarc
welder.8 Cinanni, however, did not possess the skills and training of a general
journeyman sheet metal worker insofar as skills relating to other than welding work .9
Cinanni's continuous employment
Between Cinanni's employment in 1961 and his layoff on January 4, 1963, there
had been many layoffs by the Company because of economic reasons.1° Cinanni,
when employees with longer periods of employment service had been laid off, had
been retained through all layoffs from March 9, 1961, through January 3, 1963.11
During the last 6 months of 1962 the Company had employed more employees
than it economically needed. During this period the Company had had no need
for heliarc welding but had retained Cinanni for possible heliarc jobs. Cinanni
was the one welder that the Company had who possessed heliarc welding skills.12
The decision to lay off employees
About December 15, 1962, Erwin Yutan, president of the Company, decided that
because of admitted economic reasons he must lay off some employees after the
first of the new year.13 Respondent Company implemented its layoff plans by
laying off three employees on January 3, 1963. Two of the employees laid off on
January 3, 1963, were members of Local 28 and one employee was a permit man.
(Permit men are either nonunion employees or nonmembers of Local 28. In the
instant case the permit man was a member of a sister local of Local 28.)14
The two employees laid off on January 3, 1963, who were members of Local 28
contacted Desmond Costello, business agent of Local 28, and informed him of
the layoff, and requested assistance in being placed at work.15
Events of January 4, 1963
The Costello-Fritz conversation 16
Desmond Costello, business agent of Local 28, went to the Company's shop around
9 a.m. on January 4, 1963. Costello, when near Fritz' office, motioned to Blumlein,
duct in regard to its labor practices reveals animus The Respondent's witnesses Yutan,
Costello, and Farrell testified in effect that Local 28 had not in the past attempted to ob-
tain discriminatory hiring or firings To the extent that this testimony is susceptible of
an inference that the use of permit men or of Cinanni had not been discussed prior to
January 4, 1963, I do not so credit in view of the credited facts of this case and a con-
sideration of all witnesses' demeanor while testifying.
0 Based on Cinanni's credited testimony.
7 Based on Cinanni's credited testimony.
Based on a composite of Cinanni and Yutan's credited testimony
e Based on a composite of Cinanni and Yutan's credited testimony. The contractual pro-
visions relating to the employment of journeymen sheet metal workers is not in issue The
Respondents contend that Local 28 did not demand that Cinanni be laid off, and that the
selection of employees for layoff were made by the Company on a nondiscriminatory basis
ii Based on Yutan's credited testimony and Respondent Company's Exhibit No. 2.
u Based on Yutan's credited testimony and Respondent Company's Exhibit No. 2.
iz Based on Yutan's credited testimony.
io Based on Yutan's credited testimony.
is Based on Yutan's credited testimony and Respondent Company's Exhibit No 2.
is Based on Costello's credited testimony.
ii Based on a composite of the credited testimony of Cinanni, Fritz, and Costello, I do not
credit Fritz' and Costello's testimony to the effect that Cinanni was not there, nor to the
effect that Costello only asked about the employing of the Local 28 men laid off on Janu-
ary 3, 1963. As to the conflict In testimony of Cinanni and Fritz, and Costello, I credit
Cinanni's testimony. Cinanni's demeanor as a witness appeared frank and honest. His
testimony was in detail and he appeared to be attempting to tell the whole story as he
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 28's shop steward, and the two met Fritz just outside the latter's office door.
Cinanni, who had been discussing work with Fritz, was in the immediate vicinity
of Costello, Fritz, and Blumlein.
Costello told Fritz that if the two Local 28 men who had been laid off were not
hired, the Company would have to get rid of every permit man by nighttime; that
if not, he (Costello) would pull all men working in the shop off the job by 7 o'clock
Monday morning. Just before leaving, Costello pointed at Cinanni and stated that
even the heliarc man has to go. After Costello left, Cinanni asked Foreman Fritz
what was going to happen.17 Fritz replied that they would have to wait for Mr. Yutan
(president of the Company) to return from Connecticut.
Around 2:30 p.m. Cinanni saw Erwin Yutan, president of the Company, talking
to Mell Farrell , president of Local 28 . 18 Later on, around 5 minutes to 3 p.m.,
Cinanni went back to Fritz and asked him what was going to happen. Foreman Fritz
told Cinanni 19 that he had to lay him off. Around 3 p.m., Fritz gave Cmanni his
pay and told him that he was sorry, that the Union had pulled him out. Cinanni
left to pack his tools.
On the way to pack his tools, Cinanni saw President Erwin Yutan. Cinanni
asked Yutan why he was being laid off. Yutan told him that he was being laid off
because the Union "wanted the permit men out." 20 Cinanni left to pack his tools.
After packing his tools, Cinanni again went to see President Yutan in the sketch-
ing room. Cinanni told Yutan that it was unfair to lay him off, that he was going
to complain to the National Labor Relations Board.21 Both Yutan and Cinanni
were in an excited condition. Yutan told Cinanni that the latter had seen him
argue with Farrell over the matter of Cinanni's layoff. Yutan stated that other
shops could lay off employees without having trouble, but when he did, trouble
started. Yutan told Cinanni that Local 28 had told him in the past that they
would not object to Cinanni's employment, that last year Local 28 had promised
knew it. Fritz' demeanor, on the other hand, did not appear to be frank. He appeared to
be attempting to convey in his testimony, at first, that only he and Costello were present.
Later he admitted that Blumlein, Local 28's steward, was also present. Costello's de-
meanor, while more impressive than Fritz', did not lend to his testimony the same ring of
sincerity or truth that I perceived in Cinanni's. Considering the interrelated aspect of
Cinanni's total testimony, and the total testimony of Fritz, Costello, Yutan, Farrell, and
Mulhearn, and the testimony of Chiarello, I am convinced of Cinanni's truthfulness
Cinanni's testimony as contrasted to Yutan, Farrell, and Mulhearn was much more de-
tailed, and I am impressed that he attempted to tell what actually happened. I was not
impressed that Yutan, Farrell, or Mulhearn were testifying to the events as they knew
them. Chiarello, a salesman who sold to Respondent Company, impressed me as a com-
pletely unbiased witness. Considering Chiarello's testimony to the effect that Fritz told
hun that Cinanni was not working because he did not have a union card, and the conflict-
ing versions as testified to by Cinanni on one hand, and Fritz, Costello, Yutan, Farrell,
and Mulhearn on the other hand, I am convinced completely of the reliability of Cinanni's
testimony in its entirety.
17 Based on Cinanni's credited testimony.
18 Based on Cinanni's credited testimony. Yutan and Farrell testified that they met at
this time, but that they discussed a matter pertaining to a testimonial dinner They testi-
fied that Farrell did ask about the employing of some Local 28 men, but denied that they
discussed the laying off of Cinanni or the permit men. Costello, although present, had
little, if any, recollection of what was actually said Considering the timing of Cinanm's
layoff and the other credited evidence I do not credit Farrell, Costello, or Yutan in their
testimony to the effect that they did not discuss the laying off of Cinanni or the permit
men But I am convinced that his layoff was discussed at this meeting.
1s Based an Cinanni's credited testimony Fritz denies that he told Cinanni that the
Union had pulled him out. I do not credit Fritz' denial. On January 4, 1963, the Com-
pany laid off three members of Local 28 and, including Cinanni, its four remaining permit
inen.
21 Based on Cinanni's credited testimony. I do not credit Yutan's denial that he told
Cinanni that the Union wanted the permit men out.
21 The facts of this conversation are based on the credited testimony of Cinanni I do
not credit Yutan's denial that he said that he would not deny that the Union asked him to
discharge Cinanni, to go ahead and file the charges; nor that he stated that Farrell had
promised a year ago to get Cinanni a union card; nor do I credit Yutan's denial that he
told,Cinanni that he was laying off other employees in spite, because the Union had promised
that they would not bother Cinanni. Yutan's testimony as to this conversation was not as
to what was said, but rather a specific denial of certain things that were said. I find
Cinanni's testimony more reliable and so credit.
CONSOLIDATED VENTILATION AND DUCT CO., INC. 329
to give Cinanni a union card, but now Local 28 wanted him laid off. Yutan told
Cinanni that the latter had seen that Local 28 was going to pull the men out, that
if he kept Cinanni, Local 28 would drive him out of business, that he had a business
to run and could not afford to lose it.
The Respondents contend that the layoffs of January 3 and 4 were economically
motivated and that Yutan's selection of employees for layoffs was based upon a
desire to retain employees with overall or multiple skills. Yutan testified that he
decided around December 15, 1962, that the January layoffs were necessary and that
he decided to retain those employees with multiple skills (overall ability). On direct
examination he did not set forth the time that he determined the individuals who
would be laid off. On cross-examination he ultimately testified that he determined
the persons who would be laid off on January 3 and 4, 1963, around January 1,
1963. He testified that he made a list of such employees. I do not find Yutan's
or Fritz' testimony to the effect that they did not discuss the names of the persons
to be laid off, and that Fritz did not know such persons until the time of the lay-
offs, to be credible.
The Respondents contend that there existed no need for a heliarc welder at the
time of Cinanni's layoff. Yutan credibly testified that there had not been a need
for heliarc welding during the last 6 months of 1962. Fritz credibly testified
that he had allowed Cinanni to heliarc weld on two major jobs (although
other types of welding could have been used) during the time preceding his lay-
off. These two jobs 22 were of such a nature that there was not an immediate
necessity requiring welding, but welding work could be performed more or less at
the Company's election. The situation gave the Company a certain flexibility in
the scheduling of its work.
I do not credit Yutan's testimony that Cinanni was selected for layoff because
of his lack of overall ability. I reject the Respondents' contention that the selec-
tion of employees for layoffs was based on a consideration of multiple skills or
overall abilities. It is clear that Cinanni has survived all previous layoffs, and
that the Company had retained him in the past because of the possibility of ob-
taining work requiring heliarc welding. Cinanni was qualified to do all types of
welding, in addition to his special heliarc welding skill. In connection with the
Respondents' defense that the selection of employees for layoff was based on the
consideration of retaining employees with multiple skills or overall ability it is
noted that Yutan testified that Steiner (who was laid off on January 4, 1963) was
transferred on January 3 to an outside job because Yutan hoped that something
would occur to enable him to retain Steiner because of his "shearing" ability. Con-
sidering Yutan's demeanor while testifying, the overall evidence in this case, and the
foregoing facts, I am convinced that Yutan's selection on January 1, 1963, of em-
ployees for layoff on January 4, 1963, did not include Steiner and Cinanni. The
possibility of acquiring work necessitating heliarc welding existed as it had in the
past. It is not convincing in view of its past actions that the Company would
have laid Cinanni off in view of the fact that he could have been used on general
welding jobs, and he was its only welder with heliarc welding skill. It also appears
illogical, considering all the evidence, that the Company would have transferred
Steiner to an outside job, hoping to find a way to keep him for his shearing ability,
if he were designated to be laid off on January 4, 1963. Considering the foregoing,
and all the reasons stated to and heard by Cinanni on January 4 and thereafter
as to why he was laid off, I conclude and find that the Company did not intend,
prior to Costello's visit on January 4, 1963, to lay Cinanni off.
Based upon a consideration of the foregoing and all of the other credited evi-
dence 23 which reveals that (1) the Company had no plans to lay off Cinanni prior
to Costello's visit on January 4, 1963; (2) Costello (for the Union) demanded that
the permit men and even the heliarc man (Cinanni) be laid off if the two Local 28
men (laid off on January 3. 1963) were not rehired, and that if not, the Union
would pull the employees off of the iob,24 (3) Cinanni was laid off within hours
of Costello's first visit, shortly after Farrell's and Costello's visit with Yutan, and
^' Described at the hearing as the U.S. Court and Phoenix jobs
The credited evidence set forth later in this report concerning the events of January 7
and thereafter clearly reveals admissions by Yutan and Farrell to Cinanni that the reason
for his layoff was Local 28's insistence, and because be was a permit man-not a member
of Local 28 Fritz' conversation with Chiarello also reveals that the reason for Cinanni's
layoff was his lack of union membership
24 Local 28 made no demand that the permit men laid off on January 3, 1963, be rehired
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) Yutan and Fritz informed Cinanni that the reason he was being laid off 25
was that Local 28 wanted the permit men out, I conclude and find that Respond-
ent Company violated Section 8(a)(1) and (3) of the Act by laying off or dis-
charging Cinanni on January 4, 1963, and that Respondent Local 28 violated Sec-
tion 8(b)(1) (A) and (2) of the Act by its demand that Cinanni be laid off or
discharged 26
The Respondents' actions described above reveal to employees that Respondent
Local had and would force the Respondent Company to comply with a preferential
union membership policy in regard to its selection of employees for continued
employment. Such a policy encourages employees to obtain or continue member-
ship in the Union and as aforesaid the actions by Respondent Local 28 in connection
therewith violated Section 8(b)(1)(A) and (2) of the Act, and the actions of
Respondent Company in connection therewith violated Section 8(a)(1) and 3)
of the Act.
The Respondent Company contended that its selection of Cinanni for layoff was
on a nondiscriminatory basis, and that a finding of a violation in this case would
necessitate its discriminating in favor of the permit or nonunion men over union
members. The credited facts, on the contrary, reveal that Cinanni was selected for
layoff on a discriminatory basis. The remedy, set out in a later section, basically
requires the cessation of such discrimination against any employees (union or non-
union), and the remedy thereof of past discrimination.
Events of January 7, 1963
Cinanni speaks to Yutan and Fritz 27
On January 7, 1963, Cinanni went back to the Company's shop to see President
Yutan. Yutan told Cinanni that he hoped he was not "making trouble." Cinanni
stated that he was not "making trouble." Yutan then stated that everything was going
to be straightened out, that he had seen Local 28's President Farrell, and that the
latter had promised, today, that Cinanni would get a union card and could come
back to work. Yutan stated that Farrell had told him to write a letter to Local 28
specifying Cinanni's type of work so that he could present the matter to the union
board. Cinanni expressed disbelief. Yutan called Foreman Fritz and asked the
latter to tell Cinanni about the matter. Fritz told Cinanni that it was true, that if
he did not believe it to go and see Farrell (president of Local 28). Before Cinanni
left, Fritz asked Cinanni to show another employee (Andy Janowczyk) how to operate
the heliarc welding machine. Cinanni did so and then left and went to Local 28's
union office.
Cinanni sees Mulhearn and Farrell on January 7, 1963 28
Cinanni met John Mulhearn, recording secretary of Local 28, at the union office
and told him that he wished to speak to President Farrell, that the reason he was there
was that the Union caused his layoff and he wanted to know what was going to happen.
Mulhearn stated that Farrell was not in but that he could wait for him. Around
4:30 p.m. Mell Farrell, president of Local 28, approached Cinanni and told him
25 The witnesses in the various conversations described Local 28's demand and the termi-
nation of Cinanni in terms of "layoff " It is clear that during the time of termination and
immediately thereafter the Company considered Cinanni's employment relationship severed
unless the union objections were removed. The layoff thus was tantamount to a discharge.
28 See Brunswick Corporation, 135 NLRB 574; Walsh and Kelly, 137 NLRB 1559; Ani-
mated Displays Company, 137 NLRB 999. The instant case is different factually from
Plaza Builders, Incorporated, 134 NLRB 751, and other cases cited by the minority in the
Animated Displays Company case.
2'I Based on Cinanni's credited testimony. Yutan, in his testimony, stated that he did
not remember such a conversation as set forth above. To the extent that this might be con-
strued as a denial that the conversation took place, Yutan is not credited
28 Based on Cinanni's credied testimony Mulhearn testified that he only saw Cinanni at
one time on some date after January 4, 1963, that on the occasion that Farrell was not
there, that Cinanni waited. Farrell testified similarly that he only saw Cinanni on one
occasion Both Farrell and Mulhearn testified that Cinanni asked about his application
for membership in the Union, and that Farrell told Cinanni that it was being regularly
processed and that he would take it up with the executive board. Cinanni's demeanor as
a witness coupled with his detailed testimony was much more convincing than the testi-
mony and demeanor of Farrell and Mulhearn. I credit Cinanni's testimony to this event
CONSOLIDATED VENTILATION AND DUCT CO., INC. 331
that he knew everything about his layoff, to leave everything to him, that every-
thing would be straightened out at the board meeting the next Friday.
The Chiarello -Fritz conversation 29
Vincent J. Chiarello , a sales representative for Presto Sales and Service , went to
Respondent Company's shop during the week January 7 through 11 , 1963, to see
Foreman Harold Fritz to return a cutting torch . 30 Chiarello saw Cinanni in the
Company's lobby in nonworking attire, and asked Cinanni what he was doing.
Cinanni replied that he was on "vacation ." Chiarello went into the shop and handed
Fritz the cutting torch , and asked why Cinanni was taking a vacation so early in
the year. Fritz told Chiarello that Cinanni could not work, that he did not have a
union card.
Events of January 14, 1963 31
Cinanni returned to Respondent Local 28's office on January 14, 1963, and saw
John Mulhearn , recording secretary of Respondent Local 28. Cinanni told Mul-
hearn that he was there to see Farrell about the results of Yutan 's letter of recom-
mendation and the union board meeting . Cinanni and Mulhearn discussed Cinanni's
job at Respondent Company. Mulhearn told Cinanni that there was a lot of "red
tape," that a lot of men were out of work, and that it would be 2 weeks before
the board meeting could take care of the matter . Cinanni told Mulhearn that he
had better send him back to his job. Mulhearn told Cinanni that he had better talk
to Farrell , that Farrell was the only man who could send him back to his job.
Cinanni left without getting to see Farrell.
Events of January 15 , 1963 32
On January 15, 1963, Cinanni returned to Respondent Local 28's office and saw
Mulhearn . They again discussed Cinanni's job , and Mulhearn again told Cinanni
that Farrell was the only man who could send him back to work. Mulhearn told
Cinanni to wait for Farrell . Cinanni went into Farrell 's office where they spoke in
Mulhearn's presence . Farrell told Cinanni that even if he wanted to, he would not
give him a card, that he was not going to send him back to his job because he had a
lot of men out of work, a lot of welders out of work . Farrell stated that when all the
welders were back to work he might get him his job back. Mulhearn told Cinanni
that he had better go around and collect $50 33 until he found another job, that
he would be better off that way. Farrell stood up from where he had been sitting
at his desk and told Cinanni not to dare to make trouble or report to the National
Labor Relations Board, that if he did he would "louse " Cinanni "up all over the
industry ." By this statement Farrell threatened Cinanni with reprisals if he sought
the services of the National Labor Relations Board concerning employee rights
guaranteed by the Act. I thus conclude and find that Respondent Local 28 thus
violated Section 8 (b) (1) (A) of the Act.
"Based on Chiarello ' s credited testimony. Chiarello impressed me as a completely un-
biased, frank , and honest witness . The evidence reveals that he was a salesman who sold
items to Respondent Company I do not credit Fritz' denial to the effect that he had not
told Chiarello that Cinanni was not working because his employment had been terminated
because of demands by Local 28 . Fritz, a member of Respondent Local 28, was also a
supervisor of Respondent Company. I discredit his testimony based upon my observation
of his demeanor when testifying.
30 Chiarello 's testimony reveals that he went to the shop during the first or second week
in January 1963. Cinanni was laid off on January 4, 1963 The conversation that en-
sued concerned Cinanni while in layoff status I fix the time as indicated above.
31 Based on the credited testimony of Cinanni . As indicated previously Mulhearn testi-
fied that Cinanni made only one visit to the union office to see Mulhearn and Farrell.
Mulhearn denied that he told Cinanni that Farrell was the only man who could get Cinanni's
job back. I find Cinanni the more credible witness and so credit his testimony over that
of Mulhearn.
"Based on Cinanni 's credited testimony. As previously indicated Farrell and Mulhearn
in their testimony stated that they only saw Cinanni once Mulhearn denied stating that
he told Cinanni that Farrell was the only man who could send Cinanni back to his job,
and denied that he told Cinanni that he had better collect the $50 until he found another
job. Farrell and Mulliearn denied that Farrell told Cinanni not to make trouble or report
to the National Labor Relations Board, and that he would "louse Cinanni up all over the
industry " I find Cinanni the more credible witness and credit his testimony.
93 Apparently reference to unemployment payments
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cinanni left and went to see President Yutan at Respondent Company's shop.
He told President Yutan that he was going to press charges, that if the Company
and the Union settled the matter, he would drop the charges if they gave him his
job back, that he did not mind losing 2 or 3 weeks' work. Yutan told Cinanni
that it was Local 28 which wanted him laid off, that he was forced to do so, and
that he could not hire him back without permission of Local 28.
Cinanni filed charges in the instant cases on January 16, 1963, Cinanni returned
to work on February 7, 1963, and was working at the time of the hearing in this
matter.
IV. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, it will
be recommended that Respondents cease and desist therefrom and take affirmative
action to effectuate the policies of the Act.
Having found that Respondent Company violated Section 8(a)(3) and ( 1), and
that Respondent Union violated Section 8(b) (2) and (b) (1) (A) of the Act with
relation to the discharge of Joseph A. Cinanni, it is recommended that the Respondent
Union notify the Company in writing and furnish a copy thereof to Joseph A. Cinanni
that it withdraws its objection (in violation of Section 8(b) (2)) to his employment.
I also recommend that the Company and the Union jointly and severally make
Joseph A. Cinanni whole for any loss of pay suffered by reason of his discriminatory
discharge , by payment to him of a sum of money equal to the amount he would
have normally earned as wages from the date of his discharge to his reemployment
on February 7, 1963, less his net earnings during this period, with backpay computed
on a quarterly basis in the manner established by the Board in F. W. Woolworth Co.,
90 NLRB 289, 291-294, and with interest thereon as prescribed by the Board in
Isis Plumbing & Heating Co., 138 NLRB 716. As the unfair labor practices com-
mitted by the Respondents were of a character which go to the very heart of the
Act, it will be recommended that the Respondents cease and desist therefrom and
cease and desist from infringing in any other manner upon the rights of employees
guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Local Union No. 28, Sheet Metal Workers International Association, AFL-
CIO, is a labor organization within the meaning of the Act.
2. Consolidated Ventilation and Duct Co., Inc., is engaged in commerce within
the meaning of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act, the Respondent Company has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of Joseph A. Cinanni, there-
by encouraging membership in or activites on behalf of a labor organization, Re-
spondent Company has engaged in unfair labor practices within the meaning of
Section 8(a) (3) of the Act.
5. By restraining and coercing employees in the exercise of rights guaranteed
by Section 7 of the Act, Respondent Union has engaged in unfair labor practices
within the meaning of Section 8 (b) (1) (A) of the Act.
6. By attempting to cause, and causing, the discharge of Joseph A. Cinanni, Re-
spondent Union violated Section 8 (b) (2) and (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6)and (7) of the Act.
RECOMMENDED ORDER 34
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this case, it is recommended 35 that:
A. Respondent Company, Consolidated Ventilation and Duct Co., Inc., its offi-
cers, agents, successors, and assigns, shall:
In the event that this Recommended Order be adopted by the Board, the word
"Order" shall be substituted for the words "Recommended Order "
as In the event that this Recommended Order he adopted by the Board, the word
"ordered" shall be substituted for the word "recommended "
CONSOLIDATED VENTILATION AND DUCT CO., INC. 333
1. Cease and desist from:
(a) Encouraging membership in Local Union No. 28, Sheet Metal Workers In-
ternational Association , AFL-CIO, or in any other labor organization of its em-
ployees by laying off, discharging , or in any other manner discriminating against
any employee in regard to hire or tenure of employment or any term or condition
of employment, except as authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
(b) In any other manner interfering with, restraining, or coercing its employees,
in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section 8(a)(3) of
the Act, as modified by the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Jointly and severally with the Respondent Union make Joseph A. Cinanni
whole for any loss of pay suffered as a result of the discrimination against him,
in the manner set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
an analysis of the amount of backpay due under the terms of this Recommended
Order.
(c) Post at its place of business in Jackson Heights, New York, copies of the
attached notice marked "Appendix A." 36 Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being duly signed by
the Respondent 's representative , be posted immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such notices are not altered , defaced, or covered
by any other material.
(d) Post at the same places and under the same conditions as set forth in (c),
above, as soon as they are forwarded by the Regional Director , copies of the Re-
spondent Union's notice marked "Appendix B."
(e) Furnish to the said Regional Director signed copies of the notice marked
"Appendix A" for posting by the Respondent Union, as hereinafter directed.
(f) Notify the Regional Director for the Second Region , in writing , within 20
days from the date of this Recommended Order, what steps have been taken to
comply herewith 37
B. Respondent Union, Local No. 28, Sheet Metal Workers International Associa-
tion , AFL-CIO, and its officers, representatives , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Consolidated Ventilation and Duct Co., Inc.,
to discriminate against any of its employees in violation of Section 8(a) (3) of the Act.
(b) In any other manner restraining or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a condition
of employment , as authorized in Section 8(a)(3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which will effectuate the policies of the Act:
(a) Jointly and severally with Respondent Company make whole Joseph A.
Cinanni for any loss of pay suffered as a result of the discrimination against him in
the manner set forth in the section entitled "The Remedy."
(b) Notify Joseph A. Cinanni and Consolidated Ventilation and Duct Co ., Inc.,
in writing , that it withdraws its objections (in violation of Section 8(b) (2) of the Act)
to Cinanni's employment.
"In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order"
aI In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read- "Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of this Order, what steps have been taken to comply herewith "
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its business office copies of the attached notice marked "Appendix B." 38
Copies of said notice, to be furnished by the Regional Director for the Second Region,
shall, after being duly signed by the Respondent Union's representatives, be posted
immediately upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other material.
(d) Post at the same places and under the same conditions as set forth in (c),
above, as soon as they are forwarded by the Regional Director, copies of the Respond-
ent Company's notices marked "Appendix A."
(e) Forward signed copies of "Appendix B" to the Regional Director for posting
by Consolidated Ventilation and Duct Co., Inc.
(f) Notify the Regional Director for the Second Region, in writing, within 20
days from the date of this Recommended Order, what steps have been taken to
comply herewith.39
38 See footnote 36.
3D See footnote 37.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT encourage membership in Local Union No. 28, Sheet Metal
Workers International Association, AFL-CIO, or any other labor organization,
by laying off, discharging, or in any other manner discriminating against any
employee in regard to hire or tenure of employment or any term or condition of
employment, except as authorized by Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment , as authorized
in Section 8(a)(3) of the Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
WE WILL jointly and severally with Local Union No. 28, Sheet Metal Workers
International Association, AFL-CIO, make Joseph A. Cinanni whole for any
loss of pay suffered as a result of our discrimination against him.
All our employees are free to become or remain or to refrain from becoming or
remaining members of the above -named union , or any other labor organization, ex-
cept to the extent that this right may be affected by an agreement in conformity
with Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
CONSOLIDATED VENTILATION AND DUCT Co., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No.
Plaza 1-5500 , if they have any question concerning this notice or compliance with
its provisions.
APPENDIX B
NOTICE TO ALL MEMBERS
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our members that:
WE WILL NOT cause or attempt to cause Consolidated Ventilation and Duct
Co., Inc., to discriminate against Joseph A. Cinanni or any other employee in
NACHMAN CORPORATION 335
violation of Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL notify Consolidated Ventilation and Duct Co., Inc., in writing,
that we withdraw our objections ( in violation of Section 8(b) (2) of the Act)
to Joseph A. Cinanni's employment.
WE WILL jointly and severally with Consolidated Ventilation and Duct Co.,
Inc., make whole Joseph A. Cinanni for any loss of pay suffered because of our
causing Consolidated Ventilation and Duct Co., Inc., to discriminate against him.
WE WILL NOT in any other manner restrain or coerce employees in the
exercise of the rights guaranteed in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
LOCAL UNION No. 28 , SHEET METAL WORKERS
INTERNATIONAL ASSOCIATION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor, Squibb Building , 745 Fifth Avenue, New York, New York, Telephone No.
Plaza 1-5500, if they have any question concerning this notice or compliance with
its provisions.
Nachman Corporation and Charles D. Strawser , Betty Strawser,
Charles D. Strawser , Helen Allen . Cases Nos. 13-CA-5211,
13-CA-5211-93, 13-CA-5211-3, and 13-CA-59211-4. September 3,
1963
DECISION AND ORDER
On April 18, 1963, Trial Examiner Henry S. Sahm issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. He also found that the Respondent had not engaged in
certain other alleged unfair labor practices and recommended the
dismissal of these allegations of the complaint. Thereafter, the Gen-
eral Counsel and the Respondent filed exceptions to the Intermediate
Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
144 NLRB No. 34.