Ferrara Brothers Building Materials Corp.

National Labor Relations Board - Board Decisions

May 9, 1974

210 N.L.R.B. 521 (N.L.R.B. 1974)

FERRARA BROTHERS BLDG. MATERIALS CORP. 521
Ferrara Brothers Building Materials Corp ., and State-
wide Systems, Inc. and Local 282, International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America. Case
29-CA-3436
May 9, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 9, 1974, Administrative Law Judge
Paul E. Weil issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel also filed exceptions and a brief in support
of the Administrative Law Judge's Decision.
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 1 and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Ferrara Brothers
Building Materials Corp ., and Stateside Systems,
Inc., Brooklyn, New York, its officers, agents,
successors , and assigns , shall take the action set forth
in the said recommended Order.
i We reject the contentions of the Respondent that Carmine Ragano
voluntarily quit his job and , therefore, was not discriminatorily discharged.
The evidence , based upon the credited testimony of Ragano, shows that he
was fired by the Respondent and that he did not voluntarily quit his job as a
laborer.
Y The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
PAUL E. WEIL, Administrative Law Judge : On June 18,
1973, Local 282, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
hereinafter called the Union, filed with the Regional
Director for Region 29 of the National Labor Relations
Board , hereinafter called the Board, a charge alleging that
Ferrara Brothers Building Materials Corp . and/or State-
wide Systems , Inc., hereinafter jointly called Respondent,
violated the National Labor Relations Act, as amended,
hereinafter called the Act, by the discharge of Carmine
Ragano because of his membership in the Union. On
August 20, 1973, the Regional Director on behalf of the
General Counsel of the Board issued a complaint and
notice of hearing alleging the same violation charged. In its
duly filed answer, Respondent denied the commission of
any unfair labor practices , denied that the Board has
jurisdiction over Statewide Systems, Inc., and denied that
Statewide Systems, Inc., discharged Ragano.
On the issues thus joined the matter came on for hearing
before me on October 23, 1973, in Brooklyn, New York.
All parties were present and represented by counsel and
had an opportunity to call and examine witnesses and to
adduce relevant and material evidence . At the close of the
hearing all parties argued orally on the record. After the
close of the hearing the General Counsel filed a brief.
On the entire record in the case and in consideration of
the arguments and brief, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Ferrara Brothers Building Materials Corp., hereinafter
called Ferrara Brothers , is engaged in the sale and
distribution of building materials including ready-mixed
concrete in and about the city of Brooklyn, New York. In
the year ending August 1973 it sold goods and materials to
Amuroso Utilities Incorporated, valued in excess of
$102,000. In the same year Amuroso Utilities Incorporated
purchased goods and materials from firms located outside
of the State of New York, which goods and materials were
delivered directly to it from out of the State of New York
and valued in excess of $50,000. Ferrara Brothers is
engaged in commerce within the meaning of the Act.
Statewide Systems, Inc., is a New York corporation
engaged in maintenance of buildings, lots, and equipment.
In its last fiscal year, Statewide Systems, Inc., received
income solely for work performed for Ferrara Brothers at
its various installations.
Ferrara Brothers is owned by five brothers of the Ferrara
family and their mother . Statewide Systems, Inc., is owned
by two of the Ferrara brothers and their mother . All of the
owners of each corporation comprised the board of
directors of each corporation . Joseph Ferrara is the
president of both corporations. Jerome Ferrara is the vice
president of both and Vincent Ferrara is the secretary of
both . It appears that Vincent and Joseph Ferrara are the
active members of management at Statewide which
employs up to five employees and has never had a
supervisor other than the two Ferraras. Vincent appears
also to be active in the management of Ferrara Brothers.
Although the matter was not gone into very deeply at the
hearing, it appears that there has been interchange both of
equipment and function between the two corporations.
The alleged discriminatee, Carmine Ragano, in 1970 while
he was driving a concrete truck was transferred from the
payroll of Ferrara Brothers to the payroll of Statewide.
Statewide owns no trucks or heavy equipment. The
210 NLRB No. 92
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equipment used by Statewide is owned by Ferrara Brothers
and bears its name . There is no indication by signs or
otherwise that Statewide exists other than the fact that
separate payroll checks are given to Statewide employees
and of course the tax accounts and corporation listings
with the State of New York are based on separate
identities.
I conclude that Statewide and Ferrara Brothers consti-
tute a single integrated enterprise and are a common
employer within the meaning of the Act. I find further that
both are employers engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. Background
Both corporations were incorporated in 1969. Carmine
Ragano was first employed by Ferrara Brothers on May
28, 1969, and was injured in an accident on the job on
October 10 that year. He returned to work for Ferrara
Brothers on December 9, 1969, and left on his own accord
on January 28, 1970, returning on April 22, 1970. In
September 1970 he was transferred to Statewide where he
worked until January 13, 1971.1
Ragano again returned to Respondent and was hired by
Statewide on May 1, 1973, working until May 7, 1973. It is
this termination that was litigated herein.
B. Discussions and Conclusions
On or shortly before May 12 Ragano asked Vincent
Ferrara, with whom he was apparently on friendly terms,
for a job, indicating that he was desperate for employment.
Ferrara said that he was buying three new concrete trucks
and when they were delivered he would put Ragano on one
of them. Ragano answered that he needed a job immedi-
ately whereupon, according to Ragano's testimony, Ferrar-
a said that he would hire him as a laborer until he got the
three new trucks. A couple of days later, Ragano went to
work as a laborer on the payroll of Statewide.
He started on May 1, which was the end of a pay period,
and continued to work the 2d, 3d, and 4th. On May 3
Ragano was given a paycheck for his May 1 work. In
accordance with his usual custom Ragano took his
paycheck home and left it for his wife. Ragano testified
that he is illiterate. The following day Mrs. Ragano
discovered that the paycheck was computed on the basis of
a wage of $5 an hour and she had understood that her
husband was making $5.53 an hour. That evening she
called the discrepancy to Ragano 's attention when he came
home . The following Monday morning, May 7, instead of
going immediately to the job Ragano went to Vincent
Ferrara's office . He walked in and said, "Vinnie you made
a mistake over here." Ferrara asked him what he meant
and Ragano pointed out that he only gave him $5 an hour,
that he was getting more than that before , and further that
Respondent did not take out for pension and welfare.
Ferrara answered , "Why, you were in the Union?" Ragano
answered in the affirmative . Then, according to Ragano,
Ferrara said, "you better get out of here and do not make
any trouble for yourself." Ragano answered , "you can do
this to me?" Ferrara again said , "just get out of here and do
not make any trouble for yourself ." Ragano said he would
go talk to the delegate , whereupon Ferrara said , "just get
out of here" and he left.
According to Ferrara 's testimony , Ragano came into his
office on May 7 and told Ferrara that he wanted to be a
truckdriver , that Ferrara had to put him on the truck.
Ferrara answered, "I have no knowledge of you being a
truckdriver" and Ragano answered , "well, we'll see, my
delegate will talk to you ." Ferrara testified that he did not
know what union Ragano was referring to, and that
Ragano did not say . Ferrara stated that during this
interview he told Ragano that if he wanted to continue as a
laborer the job was open to him but that Ragano left the
premises and he has not seen him since . Ferrara also
testified that he never at any time told Ragano that he
would hire him as a cement truckdriver.
I credit Ragano with regard to both conversations. His
demeanor impressed me as that of a very truthful person
reporting his best recollection with maximum candor.
Ferrara testified that on May 7 when Ragano came in to
his office he had in his hand his check stub , but nothing in
his testimony indicated any conversation that revolved
around the check stub or any reason for Ragano to have
flourished it in Ferrara's office.
I conclude that Ferrara had no idea that Ragano had
joined the Union . Ragano was under the mistaken
impression that , having joined the Union, the deductions
for the union funds would be made from his paycheck. He
actually had two different complaints , one that he was paid
$5 rather than $5.53, the amount that he had been paid as a
laborer during his last term of employment with Respon-
dent and further that deductions should have been made
from his check . He was incorrect in both regards
apparently. It appears that there is no contract covering
employment of laborers by Statewide and in any event if
Ragano's employment were covered by a contract no
deductions would have been made from his paycheck for
the Union 's funds . On the other hand , there is no
established wage for laborers , according to the testimony
of Ferrara, and in the absence of a prior agreement
Ragano had no basis for his complaint that he was paid at
$5 an hour. I believe and find that Ferrara was taken aback
by the two complaints voiced by Ragano and more so
when he found that Ragano had joined the Union. He
probably misunderstood Ragano's complaint to be that
Ragano expected to be paid the truckdrivers' wage, which I
would assume was considerably more than $5 or even
1 It appears that at the same time Ragano was transferred to Statewide, a Union would have me draw an inference therefrom that he was transferred
transfer that was made without his knowledge and with no apparent change in order to avoid having him join the Union The point is immaterial and I
in his working conditions, Ferrara Brothers signed a contract with the draw no such inference.
Union covering the drivers of their concrete mixer trucks. Although Ragano 2 All dates hereinafter are in the year 1973 unless otherwise specified.
drove a concrete mixing truck he was not required tojoin the Union The
FERRARA BROTHERS BLDG . MATERIALS CORP. 523
$5.53 an hour, and was further taken aback by the fact that
Ragano had proposed to call in the union delegate to
straighten Respondent out. Accordingly, he lost his temper
and ordered Ragano to leave.
I conclude that inasmuch as Ragano's statement that he
had joined the Union and proposed to call on the delegate
for help formed part of the reason for his discharge, this
discharge violates Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE ON
COMMERCE
The activities of Respondent set forth in section III,
above , occurring in connection with Respondent's business
operations described 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 disputes burdening and obstructing commerce and
the free flow thereof.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
I shall further recommend that Ragano be made whole
for any loss of earnings suffered by reason of his discharge
by paying him a sum of money equal to that which he
would have earned as wages from the date he was
terminated to the date of reinstatement or proper offer of
reinstatement, as the case may be, less his net earnings
during such period. Backpay is to be computed on a
quarterly basis in the manner established in F. W.
Woolworth Company, 90 NLRB 289, with interest thereon
at 6 percent calculated according to the formula set forth
in his Plumbing & Heating Co., 138 NLRB 716. The make-
whole remedy, of course, should be based on a wage of $5
an hour. There is no showing in this case that Ragano was
at any time offered or promised any greater wage.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER4
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Carmine Ragano in part because of
his membership in and threat to invoke the offices of the
Union, Respondent has discriminated against employees
with regard to the hire and tenure and terms and
conditions of employment thereby discouraging member-
ship in the Union , and has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct Respondent has interfered
with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, and have
thereby engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices within the meaning of the Act, I shall
recommend that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act. In view of my finding that Respondent
unlawfully discharged Carmine Ragano, I shall recom-
mend that Respondent be ordered to offer him immediate
and full reinstatement to his former job or, if that job is not
available, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges .3
3 I reject the General Counsel 's suggestion that Respondent be ordered
to reinstate Ragano to the position of truckdriver. The evidence does not
reveal that he was assigned any truck or definitely promised that he would
be assigned to any truck upon the delivery of trucks to Respondent and
further in view of Ragano 's work history with Respondent, I find that
inasmuch as the trucks were not delivered until August, the possibility of his
having become a truckdnver is too remote to require Respondent to make
Respondent , Ferrara Brothers Building Materials Corp.,
and Statewide Systems, Inc., Brooklyn, New York, their
officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging employees or otherwise discriminating in
any manner with respect to their tenure of employment or
any term or condition thereof, because they engaged in
activity on behalf of Local 282, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America or any other labor organization.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights to self-organization, to form labor organiza-
tions, to join or assist the above-named Union or any other
labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to refrain therefrom.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Carmine Ragano immediate and full
reinstatement to his former job or, if this job no longer
exists, to a substantially equivalent job, without prejudice
to his seniority and other rights and privileges previously
enjoyed by him, and make him whole for any loss of pay
he may have suffered by reason of Respondent's discrimi-
nation against him with interest at the rate of 6 percent as
provided in the section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports , and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
him whole on this basis
4 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and order, and all objections thereto shall be
deemed waived for all purposes
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its facility in Brooklyn, New York, copies of
the attached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by its representative,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
5 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the- National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, an Administrative Law Judge of the
National Labor Relations Board has found that we
violated the National Labor Relations Act, and has
ordered us to post this notice and to keep our word about
what we say in this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with these
rights. More specifically,
WE WILL NOT discourage membership in Local 282,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, by discrimi-
natorily discharging any employees because of their
membership in the Union or because they call upoif'fhe
Union for support.
WE WILL offer Carmine Ragano reinstatemelit'to the
same job he held before we discharged him or, if this
job no longer exists , to a substantially equivalent job
and we will pay him for any earnings he lost by reason
of our discrimination against him.
FERRARA BROTHERS
BUILDING MATERIALS
CORP., AND STATEWIDE
SYSTEMS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 16
Court Street, Fourth Floor, Brooklyn, New York 11201,
Telephone 212-596-3535.