General Iron Corp.

National Labor Relations Board - Board Decisions

Jun 23, 1975

218 N.L.R.B. 770 (N.L.R.B. 1975)

770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Iron Corp. and Shopmen's Local Union No.
455, International Association of Bridge , Structural
& Ornamental Iron Workers, AFL-CIO
Local 840, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Shopmen 's Local Union No. 455,
International Association of Bridge , Structural &
Ornamental Iron Workers , AFL-CIO. Cases 29-
CA-3956, 29-CA-3969, and 29-CB-1890
June 23, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 24, 1975, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Respondent Company filed exceptions and support-
ing briefs.
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, find-
ings, ' and conclusions 2 of the Administrative Law
Judge, as modified herein.
The Administrative Law Judge found that Respon-
dent Union violated Section 8(b)(1)(A) of the Act by
its secretary-treasurer's remarks to Leroy Howard,
the employee who contacted Local 455 about
representing Respondent Company's employees and
who, was also the shop steward for Respondent
Union, that Howard's activities on behalf of Local
455 could get a lot of people fired, could hurt the
families of the employees, and could get them in
trouble. He also found that Respondent Union
violated Section,8(b)(1)(A) by telling Howard that
Respondent Union would inflict bodily injury on
Respondent Company's employees by bringing down
100 men with baseball bats if the employees persisted
in seeking to supplant Respondent Union as the
bargaining representative of Respondent Company's
employees. However, the Administrative Law Judge
1 The Respondent Company 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
We hereby correct the following inadvertent error which in no way
affected the Administrative Law Judge's conclusions nor our adoption
thereof: In the first sentence of the eighth paragraph of sec. III,A, of the
218 NLRB No. 109
found that a remedial order was not warranted as the
only misconduct of which Respondent Union was
guilty was the implied threats to a single employee,
Howard; Respondent Union was not,alleged to have
caused any discharges; no acts of violence occurred;
and Respondent Union disclaimed interest in repre-
senting the Respondent Company's employees in the
representation proceeding, -did not appear on the
ballot, and is no longer in the Company's plant. We
disagree.
In our view these statements were sufficiently
flagrant and coercive to necessitate a remedy. We
find this to be particularly so as in this case there is
an interrelationship between these unlawful acts and
those of Respondent Company, since both Respon-
dents were seeking to block Local 455 and keep
Respondent Union in the shop as' the collective-
bargaining representative of Respondent Company's
employees. Moreover, although. the coercive state-
ments were uttered only to a, single employee, they
were likely to be disseminated to the small unit of 25
employees since they were made to the individual
who was Respondent Union's shop -steward and a
chief Local 455 activist 3 Accordingly, we shall order
appropriate remedial relief.
The Administrative Law Judge concluded that the
notices to return to work mailed to the unlawfully
laid-off employees were not bona fide because: the
mailed notices were written in English whereas
Respondent Company knew that the laid-off em-
ployees, except for possibly, one individual, were
Spanish-speaking; Respondent Company "took the
unusual precaution of obtaining proof of mailing of
the notices rather than the more customary mailing
by registered mail with return receipt requested";
and the notices provided the employees with insuffi-
cient notice of the date to return to work. The third
reason is clearly not supported by the, record, as all
the notices designated a specific return date. Thus,
we are left with only two alleged defects, the offer in
the English language and the proof of mailing. For
the reasons set forth below,, we disagree with the
Administrative Law Judge that offers of reinstate-
ment have to be made in Spanish and served by
registered mail.
We are not aware of any case which has' held that
the language of the land is an inappropriate means
for communicating with employees. Some individu-
Decision, the last word should be "455" rather than "840."
2 In finding knowledge on the part of Respondent Company concerning
the union activities of the alleged discriminatees , Member Kennedy relies
solely on the substantial circumstantial evidence to the effect that the
Employer knew that the laid-off employees had signed cards for Local 455
or were supporters of Local 455.
3 In these respects, Members Kennedy and Penello find this case
distinguishable from American Federation of Musicians Local 76, AFL-CIO
(Jimmy Wakely Show), 202 NLRB 620 (1973), to which they still adhere.
GENERAL IRON CORP.
als who cannot readily speak English often can read
that language. An offer to return to work does not
require any great knowledge of the English language
to be understood. When an illiterate person receives
a communication which he does not understand, he
customarily shows it to a member of the family, often
a child who is attending public school, a friend, or
neighbor who can read and explain the letter. People
do not just ignore or throw away letters written in
English, especially where, as here, they come from an
employer who has just laid them off.
Moreover, the Administrative Law Judge finds that
it is not certain that at least one of the laid off
employees, Charles Bailey, was Spanish-speaking.
Nevertheless, he had lumped Bailey with the Span-
ish-speaking individuals in finding the notice to him
defective.
As to the proof of service, no doubt it is desirable
for a . person who must serve another to send the
required notice by registered mail, return receipt
requested. The return receipt is then unmistakable
evidence of service. If the sender uses ordinary mail,
he runs the risk of not being able definitively to
prove service, and at least one affected individual
herein, Sanchez, testified that he had never received
the reinstatement offer. However, this is essentially a
matter of proof best determined in the compliance
stage.
Furthermore, the novel idea that offers of reinstate-
ment must be served by registered mail, return
receipt requested, is not supported by precedent. In
fact, the Board recently held that the service of
General Counsel's brief by ordinary mail was
sufficient even though the opposing party asserted
without contradiction that it had never received the
brief.4 All that was required by the Board in that case
was a certificate of service saying that the General
Counsel's brief was sent "first class United States
mail, postage prepaid." Ordinary mail was held to be
sufficient under the law of the State of Washington
and under the Board's Rules and Regulations. In the
instant case, however, the Administrative Law Judge
finds anything less than registered mail, return
receipt requested, to be inadequate, despite the fact
that there is no per se rule that the validity of an
employer's offer of reinstatement to an employee
depends on the employee personally receiving a letter
offer.5
Accordingly, we find that there is insufficient
evidence in the record upon which to base a
conclusion as to the validity of Respondent Compa-
ny's offers. Therefore, instead of finding the re-
instatement offers not to be bona fide, we would
leave any question of service of the notices to be
4 Pacific Grinding Wheel Co., Inc., 216 NLRB No. 91(1975).
5 Adams Book Company, Inc., 203 NLRB 761, fn. 39 at 769 (1973); Rental
771
determined at the compliance stage of the proceed-
ing.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Company, General Iron Corp.,
Brooklyn, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge because
of their activities in behalf of Shopmen's Local
Union No. 455, International Association of Bridge,
Structural & Ornamental Iron Workers, AFL-CIO.
(b) Directing employees not to support Shopmen's
Local Union No. 455.
(c) Threatening to shut the plant down and to
refuse to sign a collective-bargaining agreement with
Shopmen's Local Union No. 455, if the employees
select it as their bargaining representative.
(d) Threatening employees with discharge if they
request time off to give testimony under the Act.
(e) Creating the impression of surveillance of the
activities of employees on behalf of Shopmen's Local
Union No. 455.
(f) Discouraging membership in, or activities on
behalf of, Shopmen's Local Union No. 455, or any
other labor organization of its employees, by laying
off or discharging employees because of their
activities on behalf thereof, or otherwise discriminat-
ing in regard to the hire or tenure of employment or
any terms or conditions of employment of its
employees.
(g) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed by Section 7 of the Act, or to refrain from
any or all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Luis Escalera, Manuel Sanchez Agusto,
Carlos Gonzales, Enrique Pellot Reyes, Charles
Bailey, and Jose Pieretti immediate and full reinstate-
ment to their former jobs, or, if those jobs no longer
exist, to substantially equivalent positions without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay
they may have suffered by reason of the discrimina-
Umform Service, 167 NLRB 190,197-198 (employee Bridges) (1967).
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion against them by payment to them of a sum of
money equal to the amount they normally would
have earned as wages from the date of their discharge
to the date of their reinstatement in the manner set
forth in the section of the Administrative Law
Judge's Decision entitled "The Remedy."
(b) Make Jose Carrion whole for any loss of
earnings he may have suffered by reason of the
discrimination against him in the manner set forth in
the section entitled "The Remedy" for the period
from May 30, 1974, to August 13, 1974.
(c) Make Marcellus Vilcius whole for any loss of
earnings he may have suffered by reason of the
discrimination against him in the manner set forth in
the section entitled "The Remedy" for the period
from June 5, 1974, to September 27, 1974.
(d) 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.
(e) Post at its Brooklyn plant copies of the attached
notice marked "Appendix A." 6 Copies of said notice,
on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent
Company's representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places , including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent Company to insure
that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps the Respondent Company has taken to
comply herewith.
B. Respondent Union, Local 840, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, New York, New York,
its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening employees with discharge because
of their activities in behalf of Shopmen's Local
Union No. 455, International Association of Bridge,
Structural & Ornamental Iron Workers, AFL-CIO.
(b) Threatening employees with bodily harm
because of their activities on behalf of Shopmen's
Local Union No. 455, International Association of
Bridge, Structural & Ornamental Iron Workers,
AFL-CIO.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its office and all meeting halls, and at
the General Iron Corp. plant, if General Iron Corp. is
willing, copies of the attached notice marked
"Appendix B." 7 Copies of said notice, on forms
provided by the Regional Director for Region 29,
after being duly signed by Respondent Union's
-representative, shall be posted by it 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
by Respondent Union to insure that said notices are
not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps Respondent Union has taken to comply
herewith.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board " -
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice.
WE WILL NOT direct employees not to give
assistance or support to Shopmen's Local Union
No. 455, International Association of Bridge,
Structural & Ornamental Iron Workers, AFL-
CIO.
WE WILL NOT threaten to shut down the plant if
the employees select Shopmen's Local Union No.
455 to represent them.
WE WILL NOT tell employees that we will not
sign a contract with Shopmen's Local Union No.
455 if they select it to represent them
WE WILL NOT threaten employees with dis-
charge for giving assistance or support to Shop-
men's Local Union No. 455.
WE WILL NOT threaten employees with dis-
charge if they request time off for the purpose of
giving statements to the National Labor Relations
Board.
WE WILL NOT create the impression that we are
surveying the activities of employees on behalf of
Shopmen's Local Union No. 455.
GENERAL IRON CORP.
WE WILL NOT discharge or lay off employees
because they join, assist , or give support to
Shopmen's Local Union No. 455, or any other
labor organization.
WE WILL NOT, in any other manner , interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the National Labor Relations Act.
WE WILL offer Luis Escalera , Manuel Sanchez
Agusto, Carlos Gonzalez, Enrique Pellot Reyes,
Charles Bailey, and Jose Pieretti immediate and
full reinstatement to their former jobs , or, if those
jobs no longer exist , to substantially equivalent
positions without prejudice to their seniority or
other rights and privileges , and WE WILL make
them whole for any loss of pay they have suffered,
with interest at 6 percent per annum.
WE wIL .L make Jose Carrion whole for any loss
of earnings he may have suffered for the period
from May 30, 1974, to August 13, 1974, with
interest at 6 percent per annum.
WE WILL make Marcellus Vilcius whole for any
loss of earnings he may have suffered for the
period from June 5 , 1974, to September 27, 1974,
with interest at 6 percent per annum.
You are free to become and remain members of
Shopmen's Local Union No. 455, or any other labor
organization.
GENERAL IRON CORP.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with dis-
charge for giving assistance or support to Shop-
men's Local Union No. 455.
WE WILL NOT threaten employees with bodily
harm for giving assistance or support to Shop-
men's Local Union No. 455.
LOCAL 840,
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
DECISION
773
STATEMENT OF THE CASE
HENRY L. JALE'rrE, Administrative Law Judge: This is a
consolidated proceeding involving allegations that General
Iron Corp. violated Section 8(a)(1), (3), and (4) of the Act
and that Local 840, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(hereinafter referred to as Local 840) violated Section
8(b)(l)(A) of the Act. The allegations against the Employer
arose out of charges filed by Shopmen's Local Union No.
455, International Association of Bridge, Structural &
Ornamental Iron Workers, AFL-CIO (hereinafter referred
to as Local 455), in Cases 29-CA-3956 and 29-CA-3969
on August 5, 1974, and August 16, 1974, respectively.' The
allegations against Local 840 arose out of a charge filed by
Local 455 on August 16. On September 30, the cases were
consolidated and complaint issued. On November 20 and
21, and December 2, 3, and 4, hearing was held in
Brooklyn, New York.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the Employer Local 840, and General Counsel, I make the
following: 2
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The complaint alleges that the Employer is a New York
corporation with its principal office and place of business
in Brooklyn, New York, where it is engaged in the
manufacture, sale, and distribution of metal beds, food
trays, and baskets and related metal products; that the
Employer, in the year preceding issuance of the complaint,
a representative period, purchased goods valued in excess
of $50,000 which were shipped to it directly from outside
the State of New York; and, during the same period, that
the Employer shipped directly outside the State of New
York goods valued in excess of $50,000. These allegations
were admitted by the Employer and I find that it meets the
Board's direct outflow and inflow standards for the
assertion of jurisdiction and that it is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
The foregoing establishes the jurisdictional basis for
processing the complaint against the Employer; however,
Local 840 denied the jurisdictional allegations of the
complaint and there is some authority for the proposition
that the Employer's admissions were not binding on it.
N.L.RB. v. Haddock-Engineers, Ltd, and Associates IV,
Joint Ventures, 215 F.2d 734 (C.A. 9, 1954). However, I
1 Unless otherwise indicated all dates hereinafter are 1974.
2 Counsel for Local 840's motion to stake portions of General Counsel's
bnef, or, in the alternative,to reopen the heanng , is denied for lack of merit;
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that jurisdiction for purposes of proceeding against
Local 840 was established by the testimony of Mario
Accarino, secretary-treasurer of the Employer, that the
Employer annually sells and ships directly outside the State
of New York goods valued in excess of $50,000.3
II. FACTUAL SETTING
At the times relevant herein, Respondent employed
approximately 25 employees at its Brooklyn plant. In 1971,
it had recognized Local 840 as exclusive representative of
its employees in a production and maintenance unit and
had entered into a 3-year collective-bargaining agreement
with an expiration date of August 22, 1974.
In the spring of 1974, some of its employees became
interested in representation by another union. The genesis
of this interest was not established with any degree of
precision, but it appears that Leroy Howard was the one to
contact Local 455. In early May, he procured Local 455
authorization cards and proceeded to distribute them
among the employees. He gave several cards to employee
Jose Pieretti who distributed them to other employees.
On May 23, Local 455 sent a telegram to the Employer
asserting that it represented a majority of the employees in
a production and maintenance unit and requesting a
meeting. The record does not indicate whether the
Employer replied.
On May 28, the Employer laid off Luis Escalera and
Carlos Gonzales; on May 29, Manuel Sanchez Agusto,
Jose Carrion, and Enrique Pellot Reyes; and on May 30,
Charles Bailey.4
On June 3, Local 455 filed a petition in Case 29-RC-
2669.
On June 5, the Employer discharged Marcellus Vilcius.
On July 8 and 15, hearing was held on Local 455's
petition. At the July 15 hearing, employees Leroy Howard
and Jose Pieretti appeared and testified on behalf of Local
455.
On July 29, Jose Pieretti was discharged.
In the last week of November, an election was held in
Case 29-RC-2669. Local 840 had disclaimed interest in
representing the Employer's employees and Local 455 was
the only union on the ballot. A majority of the votes cast
were against representation by Local 455, but at the time of
the hearing, the time for filing objections had not expired
and it was represented that Local 455 would file objections
to Employer conduct affecting the results of the election.
3 The testimonial assertions of Accarino constituted competent evidence
of the Employer's volume of business. NLRB. v. International Union of
Operating Engineers Local 12 [Crook Co. & Shepherd Machinery Co.], 243
F.2d 134 (CA. 9, 1957).
4 The parties stipulated that Luis Escalera was laid off on May 27;
Charles Bailey on May 28; Manuel Sanchez Agusto on May 29; and Jose
Carrion, Carlos Gonzales, and Enrique Pellot Reyes on or about May 29.
For some unexplained reason, although the payroll records were available,
there appeared to be some uncertainty about the precise date Carrion,
Gonzales, and Pellot were laid off. Because of this uncertainty , and on the
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Restraint and Coercion by Local
840
The complaint alleges that Local 840 threatened to inflict
bodily injury and other harm upon employees of the
Employer and threatened to cause their discharge with an
object of inducing them to support Local 840 and to
withdraw support of Local 455. The allegations are based
on the testimony of employee Howard.
As noted earlier, Howard was the employee who
contacted Local 455 about representing the employees at
the Employer's plant. At the time Howard became
involved in this activity, he was shop steward for Local
840. He testified that on some date he could not recall he
was approached at his work bench by Bill Nuchow,
secretary-treasurer of Local 840. Nuchow remarked that he
had heard Howard was trying to get another union into the
shop. Howard admitted this was so and told Nuchow the
employees were not satisfied with him and wanted him out
of the shop. Nuchow said he wanted to do a good job and
get a contract and he wanted the employees to give him a
chance to represent them. Nuchow then held a meeting of
the employees in the plant at which he asked them to give
him a chance to get a contract. Apparently the employees
agreed to do so, but thereafter Howard passed out cards
for Local 455 and Nuchow heard of it because he
telephoned Howard at the plant to tell him so and to ask
him how come. Howard told him the employees had
changed their minds, they didn't want Local 840.
The next day Nuchow came to the plant again and spoke
to Howard at his workbench. Nuchow accused him of
turning his back on him. He called a meeting of the
employees again and reminded them of their promise to
give him a chance and that he had heard that they had
reneged on it. The record does not indicate whether any
remarks were made by the employees. After the meeting,
Nuchow was seen talking to some of the employees and
later the employees were assembled again. This time,
Nuchow had the employees indicate by a show of hands
whether they wanted Local 840 or Local 455 to represent
them. The results were 11 to 10 in favor of Local 455.
After the meeting, Nuchow spoke to Howard again and
told him the things he was doing could get a lot of people
fired. He told Howard he was no longer shop steward for
Local 840 and to stop influencing employees in favor of
Local 455. He said the things Howard had been doing
could hurt the families of the employees, could get them in
trouble.
Nuchow spoke to Howard on yet another occasion in the
shop sometime thereafter. On this occasion, he told
Howard, "unions had tried to come down, you know, and
basis of a companion stipulation about the number of hours each employee
worked during the week of the layoffs, I have concluded the layoffs
occurred as follows. Monday, May 27, was a paid holiday and the
employees did not work . It was stipulated that Escalera and Gonzales
worked only 8 hours that week. Accordingly, they must have been laid off
on May 28. It was stipulated that Sanchez, Pellot, and Carrion worked 16
hours. Accordingly, they must have been lard off on May 29. It was
stipulated Bailey worked 24 hours. Accordingly, he must have been laid off
on May 30.
GENERAL IRON CORP.
when they had picket signs or something set up - I am not
sure how he said it - and they tried to come down on him
like this and he had brought a hundred men to -chase them
away," He said "he bring down a hundred mens, what
could I do about it, n o t h i n g I could d o about it .... " He
said the 100 men would come down with baseball bats. He
also said a lot of people would get fired because of trying to
get a new union . In one of his conversations, Nuchow said
that before losing an election he would have his own men
placed in the shop.
In the course of his conversations with Howard, Nuchow
acknowledged that Local 455 was a good Union, but he
asserted that it wasn't the type of Union for the Employer's
type of operation. He said they'd put the shop out of
business with their wage rates.
The foregoing is Howard's version of his conversations
with Nuchow. Nuchow admitted having had several
conversations with Howard and discussing Local 455. He
did not indicate whether he had made any remarks to
Howard about possible loss of jobs because employees
were supporting Local 455, so that Howard's testimony on
that subject is thus uncontradicted.
I conclude that Nuchow's remarks that Howard's
activities on behalf of Local 455 could get a lot of people
fired, could hurt the families of the employees, and could
get them in trouble constituted implied threats that Local
840 would cause the Employer to discharge supporters of
Local 840. I recognize the fact that Nuchow did not state
Local 840 would cause the discharges; rather, he purported
to place responsibility on the Employer for any such
action. It might be argued therefore that his remarks were
but a prediction of how the Employer would act in a
matter beyond the control of Local 840. However, Local
840 had a contract with the Employer which contained a
provision against discrimination for union activities, which,
while probably intended to protect activities on behalf of
Local 840, on its face protected employees from discharge
because of activities on behalf of Local 455. Moreover,
article X of the contract prohibited discharge except for
just cause. By his remarks, then, Nuchow was doing more
than predicting what the Employer might do. He was
implying that Local 840 would not invoke the contract to
protect supporters of Local 455. His remark that before
losing an election he would place his own men in the shop
lent further meaning to the threat implied by his other
remarks . For these reasons, I conclude that Nuchow's
remarks were implied threats of discharge of supporters of
Local 455.
On the subject of threats of bodily harm, Nuchow denied
making any threats, specifically denying he made any
mention of baseball bats. He testified to a conversation
with Howard wherein he discussed Colavito, an agent of
Local 455, wherein -he adverted to an occasion when
Nuchow had ben associated with another Union when a
strike had occurred and Local 455 had brought down some
tough guys . According to Nuchow, he had responded by
calling rank-and-file workers out of the shop to support
him.
775
Upon analysis, there is a strong similarity between the
incident described by Howard and that described by
Nuchow, with two significant differences; in Nuchow's
example the men did not have baseball bats and the action
was defensive. I credit Howard who impressed me as a
straightforward witness with no motive to lie; moreover, I
do not believe he misunderstood Nuchow. His version of
Nuchow's remarks supports a fording that Nuchow
impliedly threatened Howard with bodily harm if employ-
ees persisted in seeking to supplant Local 840 as the
bargaining representative of the Employer's employees.
Despite the foregoing conclusions , I am persuaded a
remedial order is not warranted. The only misconduct of
which Local 840 was guilty were the implied threats to
Howard. Apart from the fact that they were addressed to a
single employee (who was also the union steward), it is
noteworthy that Local 840 was not alleged to have caused
any discharges, and no acts of violence occurred, even
though Local 455 filed a petition and an election was held.5
As a matter of fact, far from engaging in violence to keep
out Local 455, Local 840 disclaimed interest in represent-
ing the Employer's employees in the representation case,
did not appear on the ballot, and is no longer in the
Employer's plant. For all these reasons, I shall recommend
dismissal of the complaint against Local 840.6
B. The Alleged Interference, Restraint, and
Coercion by the Employer
1. The conduct of Henry Accarino
Paragraph 4 of the complaint alleges that on or about
May 28, 1974, and on various unknown dates during the
months of May, June, and July 1974, the Employer, by
Henry Accarino, its president and agent, warned and
directed its employees to refrain from becoming members
of Local 455 and from giving assistance to it.
Paragraph 5 of the complaint alleges that on or about
July 15, 1974, and on various unknown dates during the
months of July and August 1974, the Employer, by Henry
Accarino, warned its employees that it would never
bargain collectively, or sign a contract, with Local 455.
The only evidence adduced by General Counsel in
support of these allegations was the testimony of employee
Leroy Howard, and he was unable to fix the date of any of
his conversations with Accarino with any greater degree of
specificity than the months of May or June. Except as
Howard's conversations with Accarino have bearing on the
issue of company knowledge of the union activities of the
alleged discriminatees as discussed hereinafter, the dates of
the conversations are not particularly significant.
According to Howard, during the period of May or June
and thereafter he had several conversations with Accarino
about Local 455. On one occasion, Accarino came to his
workbench and told him that he should leave Local 455
alone and get out of it, and that he should stop influencing
other employees to vote for Local 455. Accarino said he
did not want Local 455 in his shop. On more than one
occasion, Accarino told Howard that Local 455 would not
S Lccal 840 has no record of prior violations for similar conduct . Show), 202 NLRB 620 (1973); International Ladies Garment workers Union,
6 American Federation of Musician, Local 76, AFL-CIO (Jimmy Wakely AFL-CIO (Twin-Kee Manufacturing Co, Inc.), 130 NLRB 614 (1961).
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get a contract and that he would close the place down
before he would give them a contract.
Accarino denied making the remarks attributed, to him
by Howard, but I do not credit him. As I indicated earlier,
Howard impressed me as a very straightforward and
honest witness with no motive to he. He is currently
employed by the Employer and since the events here in
question has received a promotion to a position which may
be supervisory.7 On -the other hand, Henry Accarino was a
witness whose testimony is not deserving of credence. I
base this judgment on the testimony which he gave with
regard to the layoff and termination of employees more
fully discussed hereinafter. Given the untrustworthy nature
of his testimony on such subjects,, I can see no reason to
give credence to his denial of the remarks attributed to him
by Howard.
Section 7 guarantees to employees the right to be
represented by labor organizations of their own choosing.
An employer who tells his employees to quit supporting a
union in which they have become interested and to quit
influencing other people in support of such union and to
get out of such union interferes with the Section 7 rights of
his employees even though his remarks may not contain
express threats of reprisals if the employees fail to heed his
request. Employees will naturally and reasonably infer that
unless they heed their employer's instructions he will take
reprisals against them. In the instant case, Accarino did
not make any express threat to take action against Howard
individually, but he did make the express threat to shut the
plant down and impressed upon Howard the futility of
selecting Local 455 to represent him and other employees
by saying he would never sign a contract with it. Such
remarks are clearly coercive and violative of Section 8(axl)
of the Act.
The record indicates that, in the course of his conversa-
tions with Howard, Accarino did make mention that he
couldn't afford to pay what Local 455 is asking for and
that Local 455 would rob him. It is settled law that an
employer may make a prediction as to the effects he
believes unionization will have on his company; however,
such prediction must be carefully phrased on the basis of
objective, fact to convey an employer's belief as to
demonstrably probable consequences beyond his control.8
There is no indication , that Accarino's remarks were based
on any objective facts. His remarks may have been based
on a sincere belief that selection of Local 455 to represent
his employees would result in the closing of the plant, but
such belief, no matter how sincere, does not render his
statement one of fact nor remove the coercive effects of his
remarks. For the foregoing reasons, I fmd that in telling
Howard to leave Local 455 alone and to stop influencing
other employees in its favor and in threatening to close the
plant down and not to sign a contract with Local 455 if the
employees selected it as their bargaining representative the
Employer interfered with, restrained, and coerced employ-
T Whether or not Howard's promotion was to a position of supervisor
within the meaning of the Act is not relevant to the issues in this proceeding,
because the promotion came after the events in question herein. Record
facts were not developed to permit a determination of his status after
promotion.
8 N.L.RB. v. Gissel Packing Company, inc., 395 U.S. 575, 618 (1969).
ees in the exercise of rights guaranteed by Section 7 of the
Act and violated Section 8(axl) of the Act.
Paragraph 5 of the complaint alleges that on or about,
May 28, -1974, July 15, 1974, and. on various unknown
dates during the months of May, June, July, and August
1974, the Employer, by Henry Accarino, threatened its
employees with discharge, threatened to close its plant and
threatened its employees , with other reprisals if they
became or remained members of Local 455 or if they gave
any assistance to it.
The only evidence adduced by General Counsel in
support of -these allegations was the testimony of Jose
Pieretti who testified that on May 28 or - 29, `Accarino
approached him and asked him if-everyone in the place
wanted a new union to represent them. Pieretti told him
yes. Accanno remarked he didn't want any problems with
unions, that they gave him a lot of problems, and he said
he could fire everyone. In the course of his remarks,
Accarino stated that the Union they had would have to
stay there.
Accanno denied ever threatening any employee, but he
was not asked specifically about the remarks attributed to
him by Pieretti. In any event, I find Pieretti to be a credible
witness and I fmd that Accarino's remarks to Pieretti that
he could fire everyone was coercive and violative of
Section 8(a)(1) of the Act. Admittedly, Accarino did not
say he would fire anyone, but his remark was made in the
course of the interrogation of an employee about union
activities in the plant, and was accompanied by a
condemnation of unions generally: Understandably, this
expression of a power to fire everyone would lead
employees to believe that he would exercise the power if
they acted-contrary to his wishes, and Accarino indicated
that his wish was that Local 840 remain. In the circum-
stances, the remarks contained an'' implied threat of
discharge .9 -
In addition to the foregoing, Pieretti testified about a
conversation with Accarino in his office on or about May
30 wherein Accarino complained about his work perfor-
mance and invited Pieretti to request to be laid off,
explaining that he couldn't lay Pieretti off unless Pieretti
asked because he would then have a problem with the
Union. According to General Counsel, Accarino's invita-
tion to Pieretti to request a layoff constituted an implied
threat of discharge, motivated by ,a desire to get rid of a
supporter of Local 455' and therefore violative of Section
8(a)(l) of the Act.
For reasons which will appear below in a discussion of
the discharge of Pieretti, I conclude that the incident
described by Pieretti was deliberately contrived by the
Employer to coetce Pieretti. because of his activities on
behalf of Local 455 and that Accarino's remarks contained
an implied threat of discharge violative of Section 8(a)(1)
of the Act.
9 In his brief, General Counsel refers to the interrogation of Pieretti11
described above and appears to be contending the interrogation was
unlawful. However, the complaint contains no allegation of unlawful
interrogation and I am not persuaded an issue of interrogation was fully
litigated tojustify a finding of a violation.
GENERAL IRON CORP.
2. The conduct of Mario Accarino
The complaint alleges that on orabout June 12, Mario
Accarino, secretary-treasurer .of the Employer, gave the
impression of keeping under surveillance the meeting
places, meetings , and activities of Local 455 and the
concerted activities of its employees and threatened to
discharge employees if they requested time off to give
testimony under the Act.
The only testimony adduced by General Counsel in
support of these allegations was that of Jose Pieretti that on
a workday in June he asked Henry Accarino for permis-
sion to be off work. He received permission and went to
the Board's Regional Office where he gave a statement to a
Board agent . The next day, Mario Accarino, whom Pieretti
had also advised about his being off, told Pieretti "the next
time you are going to ask me for day off I going to fire
[you J because I know where you was .... "
Mario Accarino denied having such a conversation and
making any threats. I do not credit him; rather, I credit
Pieretti. In not crediting Mario Accarino, I am influenced
in part by what I consider to be a palpably untrue defense
to the allegations of unlawful discharge, and in part by the
sometimes vague and very general nature of his testimony.
On the basis of Pieretti's testimony, I ford that the
Employer ,violated Section 8(a)(1) of the Act. Employees
do not have a statutory right to be excused from work in
order to provide statements to the Board concerning
matters under investigation. However, where an employer
has no business justification for, denying a request for time
off, his denial of the request because it is for the purpose of
assisting the Board in an investigation interferes with the
Section 7 rights of employees.
It may be argued that General Counsel has not sustained
his burden of proof because Mario said nothing about
Pieretti's going to the Board, nor state that he would refuse
to give Pieretti time off for such purpose if requested to do
so. However, based on the sequence of events described by
Pieretti, and Accarino's remark that he knew where Pieretti
was, the inference is compelling that Mario's threat related
to Pieretti's requesting time off the day before to go to the
Board, and the threat to discharge Pieretti for such a
reason was violative of Section 8(a)(1) of the Act.
As to Mario Accarino's remark to Pieretti that "I know
where you was," I find' the remark, violative of Section
8(a)( 1) of the Act. Pieretti had not told the Accarinos why
he wanted time off and by his remark Mario Accarino
conveyed the impression to Pieretti that his activities in
support of Local 455 were being kept under surveillance.
Such conduct tends to restrain and coerce employees from
exercising their Section 7 rights and is violative of Section
8(a)( [) of the Act.
C. The Alleged Discriminatory Discharges
1. The Spielberg defense
As noted earlier, in the last week of May, the Employer
laid off six employees, and discharged Marcellus Vilcius on
June 5 and Jose Pieretti on July 29. The contract between
Local 840 and the Employer which was then in effect
contained grievance and arbitration provisions, and on
777
September 5 and 27 a hearing was.held before an arbitrator
regarding all the discharges except for that of Jose Carrion.
The arbitration process was initiated by the Union. There
is no showing that any of the employees involved filed
grievances. On October 26, the arbitrator issued an award
in which he concluded that except in the case of Vilcius,
the employees were either discharged for cause or in
conformity with the contract. In the case of Vilcius, the
arbitrator made no fording but issued an award of
reinstatement without backpay, because the Employer
offered him reinstatement at the hearing and Vilcius
accepted. The Employer asserts that the Board should
defer to such award and dismiss the complaint allegations
relating to the individuals whose cases were disposed of
therein.
In Spielberg Manufacturing Company, 112 NLRB 1080
(1955), the Board held that where an issue presented in an
unfair labor practice proceeding had previously been
decided in an arbitration proceeding, it would defer to the
arbitration award if the proceeding appeared to have been
fair and regular, all parties had agreed to be bound, and
the decision of the arbitration panel was not clearly
repugnant to the purposes and policies of the Act. In this
case, the proceeding cannot be deemed to have been fair
and regular, and it would be repugnant to the purposes of
the Act to defer to the award.
There are several reasons why I reach this conclusion. As
noted above, the arbitration process was initiated by Local
840. When hearing was first convened, none of the alleged
discriminatees appeared and hearing was rescheduled from
September 5 to September 27. During the interval, Local
840 assertedly notified, all the, alleged discriminatees; but
except for Pieretti and Vilcius, the record does not support
a fording that they in: fact received notice. According to
Nuchow, he instructed his secretary to send out notices. He
did not know, whether any of the alleged discriminatees
received notice and it is clear four did not (Gonzales,
Pellot, Escalera, and Bailey) because the - letters were
returned undelivered. Pieretti knew of the hearing, but-he
refused to' attend. Only Vilcius appeared at the hearing.
The only "evidence" presented at the hearing consisted of
the Employer's assertion of its reasons for the terminations.
Nuchow had' no evidence to present to rebut such
assertions. Even in the case of Vilcius who was present, no
evidence was presented. Presumably, the need to do so was
obviated by the Employer's offer of reinstatement, but
there was no consideration of his loss of wages . Apart from
that, Vilcius cannot speak English, and there was no
interpreter at the arbitration hearing. As a matter of fact,
Nuchow was so ill-acquainted with Vilcius and the facts of
his discharge 'that in notifying Vilcius of the arbitration
hearing he offered to procure a Spanish interpreter.
On the basis of the foregoing, it is evident that deferral to
the arbitration award would be repugnant to the policies of
the Act. The only basis for holding otherwise wouldbe that
the employees were negligent in not pursuing their
contractual rights and must bear the onus for the failure of
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their representative to represent them properly before the
arbitrator.10 Such a holding would be unjustified in this
case and would run counter to the policy of the Board not
to, defer to arbitration where the facts and circumstances
establish an apparent antagonism between the interests of
the alleged discriminatees on the one hand and both
parties to the contract on the other. Kansas Meat Packers, a
Division ofAristo Foods, Inc., 198 NLRB 543 (1972); Sabine
Towing & Transportation Co., Inc., 205 NLRB 423 (1973).
That such an antagonism existed here is too evident to
require exposition. Accordingly, I conclude that the Board
should not honor the arbitrator's award.
2. Company knowledge
I have already described how the activity on behalf of
Local 455 began with employee Leroy Howard procuring
cards which he and Jose Pieretti distributed to other
employees. Pieretti's initial distribution of cards was on
May 10.11 The cards were distributed in the plant, signed,
and returned to Pieretti in the plant. Several employees
signed cards on May 10, including Luis Escalera, Carlos
Gonzales, Manuel Sanchez Agusto, Jose Carrion,12 and
Enrique Pellot Reyes, who were laid off during the week of
May 27. Charles Bailey who was laid off on May 30 also
signed a card, but the date he did so is unknown. The card
was stolen from his locker at the plant during the Memorial
Day weekend. The precise date of execution is unimpor-
tant ; it was before Bailey's layoff. Marcellus Vilcius, who
was terminated on June 5, signed a card on May 10 as did
Pieretti who was discharged on July 25.
The eight named employees are alleged to have been
discharged because of their activities on behalf of Local
455. The Employer denies any knowledge that any of them
were supporters of, or had signed cards for, Local 455.
It is, of course, true that before an employer may be
found to have discriminated against employees because of
union activities . there must be a showing that he had
knowledge that his employees were engaged in union
activities. However, in appropriate circumstances, a find-
ing of discrimination may be found even in the absence of
proof of company knowledge of the union activities of the
particular employees who were laid off or discharged. Such
circumstances are proof of knowledge of general union
activity, the timing of the layoffs or discharges, the animus
of the employer against the Union, and the pretextuous
nature of the reason assigned for the layoffs or discharges.
In such circumstances, the inference may be drawn that the
employer's action was "intended to discourage respon-
dent's employees from adhering to the union at a period
critical to its future at respondent's plant and also to affect
the union's majority." N.L.R.B. v. Piezo Manufacturing
Corporation, 290 F.2d 455, 456 (C.A. 2, 1961). Such an
inference ,is warranted here. First, there is no question that
the Employer was aware that its employees were engaged
in activities on behalf of Local 455 before the layoffs,
because Local 455 had requested recognition by telegram
on May 23. Second, the threats to Pieretti by Henry
Accarino evidence its animus against Local 455. Third, the
layoffs occurred almost immediately after the demand for
recognition. Fourth, the reason assigned for the layoffs, as
discussed below, was clearly false. Accordingly, even
without proof of knowledge that the laid-off employees had
signed cards for Local 455 or were supporters of Local 455,
the conclusion is warranted that the layoffs were motivated
by a desire to discourage employees from giving support or
adhering to Local 455.
In fact, there is substantial circumstantial evidence to
warrant an inference that the Employer knew that the laid-
off employees had signed cards for Local 455 or, were
supporters of Local 455. There is the fact that the
distribution and signing of cards occurred inside a plant of
about 25 employees. There is the fact that the activity in
the plant was not limited to the distribution and signing of
cards.13 Thus, on at least two occasions Nuchow, repre-
sentative of Local 840, was in the plant talking to
employees, and on one occasion he assembled the
employees and conducted a poll to determine whether they
wanted to be represented by Local 840 or Local 455. Both
Howard and Pieretti testified about this poll, and while
Howard was uncertain about the date the poll was taken,
Pieretti testified without contradiction that the incident
occurred on May 28. Apart from the fact that it is hard to
believe that Nuchow would not discuss what was happen-
ing with the Accarinos, there is the circumstance that
Henry Accarino is personally involved in production and
on the plant floor most of the time "basically watch[ ing]."
According to Howard, at the time of the vote he saw Mario
Accarino in the shipping department talking to two
employees. It is inconceivable that both Henry and Mario
Accarino would not be aware of what was happening.
These circumstances, considered with the circumstances
already described above of the timing of the layoffs and the
pretextuous nature of asserted reason for the layoffs,
support a fording that the Employer either knew of the
sympathies of the laid-off employees for Local 455, or
suspected them of supporting Local 455.
The circumstances which pertain to company knowledge
in the case of the laid-off employees generally pertain in
the case of Vilcius. Like them,'he signed a card on May 10.
In addition, he met with the representative of Local 455
and other employees on a nearby street comer before his
discharge. The timing of his discharge is different, yet it did
follow by 2 days the filing of the RC petition by Local 455.
Moreover, the reason assigned for' his discharge is so
patently false that one can only conclude that the assigned
reason is a pretext to hide an unlawful motive. An
inference of company knowledge is consequently fully
warranted.
In the case of Pieretti, the circumstantial evidence is
corroborated by the direct evidence of company knowl-
edge established by his interrogation by Henry Accarino
and the impression of surveillance conveyed by Mario
Accarino.
10, See Electronic Reproduction Service Corporation, et at, 213 NLRB No . 13 There is evidence that some of the employees met with a representa-
110 (1974)., tive of Local 455 on a street corner near the plant . However, I do not rely on
11 Pieretti testified it was May 11, but he was obviously mistaken . such meetings to draw an inference of company knowledge because the
17 Carrion's card was undated, but Plerettl fixed its execution as of the record does not indicate that any of the laid-off employees were present or
same time as the others . that such meetings occurred before the layoffs.
GENERAL IRON CORP.
For all the foregoing, I conclude that the record as a
whole supports a finding of company knowledge in the
cases of all the discriminatees.
3. The discriminatory layoffs
As indicated earlier, six employees were laid off in the
week of May 27. The Employer asserts that they were laid
off because of lack of work. According to Mario Accarino,
at some unspecified time in 1974 prior to June, the
Employer developed a new line which necessitated an
increase in the work force in March, April, or early May.
However, by letter dated May 20, the Employer was
advised by its sales representative to hold up all shipments
of the new line until further notice. As a result, the
Accarinos decided to lay off the employees in question.
Henry Accarino corroborated Mario Accarino's very
general testimony.
I reject the Employer's defense and do not credit Mario
Accaiino and Henry Accarino for several reasons. As
noted, the letter from the sales representative was dated
May 20. This was a Monday. If the letter precipitated the
decision to lay off employees, the Employer presumably
had part of that workweek to reach a decision. Significant-
ly, no layoffs were made until May 28, after the demand
for recognition and after the polling of employees in the
plant by Nuchow on May 28. Actually, the Employer had
even more notice of a need to hold up shipments than is
indicated by the May 20 letter, because Mario Accarino
had allegedly discussed the matter with the sales represent-
ative before receiving the letter. Yet, there were no layoffs
until May 28. Coupled with this are the facts that neither
Mario nor Henry Accarino could indicate when the
decision was made to lay off employees, why the six
employees were not all laid off on the same date, and how
they arrived at the number six.
There may be some explanation for the foregoing
circumstances , but there is none for what followed the
layoffs. As noted earlier, the layoffs were made on May 28,
29,' and 30. On May 30, the Employer mailed letters to
three of the laid-off employees (Escalera, Gonzalez, and
Sanchez) notifying them to return to work on June 3; on
June 4, the three remaining laid-off employees were
notified to return to work on June 6. Thus, immediately
after the layoffs, the Employer recalled the employees to
work, and if the employees had responded to the notices
(assuming , arguendo, they received them timely) they
would have been out of work for about 2 days.
Such a sudden turn of events suggests either that there
was no necessity for the layoffs in the first place, or that
there was an unexpected development immediately after
the layoffs which dictated a need to recall the employees.
There is no evidence of this latter possibility. Henry
Accarino's only explanation for recalling the employees to
work was "Things happen in business, like I might have
been waiting for steel at the time, there might have been a
steel strike. Steel might have come in and I had steel for the
people to work with. That's not peculiar." That may not
have been peculiar, but it is clearly irrelevant because the
14 Henry Accarino implied that Vilcius' work performance was less than
satisfacto ry, but he did not expressly testify that Vilciuis was ever criticized
about his work performance. As a matter of fact, he admitted on cross-
779
Employer has not asserted that the layoffs were attributa-
ble to a shortage of steel.
The foregoing demonstrates conclusively that there was
no economic necessity for the layoffs of the week of May
27, and it seems to me to be a work of supererogation to
point out that the letter of May 20 on which the Employer
relies was not a notice of cancellation of orders, but only of
a short delay in shipments. This is significant because the
record indicates a substantial rate of attrition in the
Employer's work force; consequently, there was no need to
reduce the work force because of a temporary stop on the
shipment of goods produced.
General Counsel asserts as an additional indicium of
discriminatory motive the fact that all the laid-off
employees had signed cards for Local 455. I am not
persuaded that that fact is entitled to any weight. I do find,
however, that the fact that Frank Jesus, who had not
signed a card and had less seniority than the laid-off
employees (except Bailey), was not selected for layoff is
further proof of the Employer's discriminatory motive.
In sum, in view of the fact that the asserted reason for
the layoffs is demonstrably false, the Employer 's animus
against Local 455, including the unlawful threats, and the
timing of the layoffs, the conclusion is warranted, and I
find, that the layoffs were motivated by the activities of
employees on behalf of Local 455 and were for the purpose
of chilling any such activities. In reaching this conclusion, I
have considered the fact that other employees signed cards
for Local 455 and were not discharged. In my judgment,
this fact is entitled to little weight when measured against
the factors described above; ". . . the mere fact that all
union members or supporters are not discharged does not
disprove the fact that any employee's discharge is based
upon an unlawful discriminatory motive." N.L.R.B. v.
Challenge-Cook Brothers of Ohio, Inc., 374 F.2d 147, 152
(C.A. 6, 1967). Based on the foregoing analysis, I find that
Respondent violated Section 8(a)(1) and (3) of the Act by
the layoffs described above.
4. The discharge of Marcellus Vilcius
Marcellus Vilcius is a Haitian who speaks little or no
English (he speaks French) and has a very limited ability to
understand English. He was employed by the Employer on
September 22, 1973, pursuant to a referral by an employ-
ment agency. None of the Employer's officers or supervi-
sors can speak French, but Henry Accarino hired him and
assigned him to operate a spot welding machine. The work
is so little skilled that through demonstration Vilcius was
able to perform his work satisfactorily. He testified
credibly that he received no complaints or reprimands over
his work performance.14 He was hired at $1.85 per hour,
received a 12-cents-per-hour increase after I month, and
sometime thereafter received another increase to $2.10 per
hour.
On June 5, Vilcius was terminated. According to Henry
Accarino, Vilcius' inability to speak and understand
English caused him to make mistakes and this was the
reason for his discharge. At the time of the discharge,
examination that Vilcius may have made minor mistakes that he overlooked
because "that happens all day long. I mean every body is not perfect."
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vilcius' job was to shape the ends of U-shaped handles.
After each one was done, he would throw it into a 20-
gallon barrel. On the day of his discharge, he had
completed five barrels of handles and Henry Accarino, by
hand signs and gestures, instructed Vilcius to bring the
barrels to the shipping department, and he showed him
exactly where he was to place the barrels. Alongside the
place where Vilcius was instructed to deposit the barrels,
there were boxes containing other finished handles which
had been counted. When Vilcius brought the barrels to the
spot to which he had been directed by Accarino, he did not
merely place the barrels where he had been instructed to,
he emptied them into the nearby boxes, thus ruining the
count in those boxes. Accarino discovered this later on and
testified 10,000 handles had to be recounted. Accarino
estimated it took a good part of a day or more to do this.
Accarino testified he fired Vilcius because of his action and
because it made him fear Vilcius would make a mistake
one day that would probably hurt someone.
Vilcius' testimony about this particular incident was not
as detailed as Accarino's, perhaps because of the language
barrier. In any event, he denied doing anything wrong.
According to him, he placed the handles where he was told
to by some unidentified individuals in the shipping
department. In my judgment, his testimony is too sketchy
to accept it over the more detailed testimony of Henry
Accarino, however, any difference between his and
Accarino's versions of what happened is not dispositive of
the case.
Section 8(a)(3) of the Act makes it unlawful to discharge
or otherwise discriminate against an employee because of
his union activities. Under that Section of the Act, an
employer has the right to discharge an employee for any
reason, good or bad, or no reason. The critical question is
what motivated the Employer in deciding to discharge the
employee. While the existence of a valid ground for
discharge is a factor in an analysis of the Employer's
motive, it is not sufficient as a defense if the record
establishes that it was a pretext to discharge for union
activities.15
I have already described Vilcius' union activities and
stated my reasons for inferring company knowledge of
such activities, and the record supports a finding that the
mistake of Vilcius on June 5 was seized upon by the
Employer as a pretext to discharge him because of his
support of Local 455. The dispositive consideration in the
case of Vilcius is the fact that the assigned reason for
discharge relates to a deficiency in Vilcius which Respon-
dent had not only tolerated prior to employee activity on
behalf of Local 455, but even more to a deficiency which
existed and was known to exist at the time Vilcius was
hired. In light of this circumstance, one is warranted in
rejecting the assertion that Vilcius was discharged because
of the language problem unless it appears that the language
problem had grown more severe or had caused significant
problems in his performance of his duties. The record does
not support such a finding. The record shows one mistake
born not so much out of a lack of understanding but, in
Henry Accarino's words, because Vilcius "done me a
favor." Accarino amended that testimony to explain he
was joking, yet that testimony reflects his recognition of the
fact that in commingling the work product Vilcius was
trying to help. Henry Accarino described himself as an
employer with great forbearance for employee mistakes,
but he showed no such forbearance in the case of Vilcius,
an employee of 9 months who had received 2 raises and
against whom no specific examples of unsatisfactory work
performance could be cited. Rather, he discharged him
abruptly. Given the minor nature of the mistake (that is,
the loss of part of a day's work), Vilcius' past satisfactory
performance, and the Employer's knowledge of the
language problem from the time it hired Vilcius, and
evaluating these factors with the Employer's demonstrated
animus against Local 455 and its unlawful layoff of
employees in the week of May 27, I am persuaded that the
motivating factor in his discharge was Vilcius' support of
Local 455, and I find that his discharge was violative of
Section 8(axl) and (3) of the Act.
5. The discharge of Jose Pieretti
Jose Pieretti began working for the Employer in 1971. He
worked on a variety of jobs, but was principally a spot
welder. According to Pieretti, until May 28 or 29, he had
no complaints about his work.' On May 28 or 29, Henry
Accarino assigned him to work on a spot welding machine
on which Pieretti had never worked before. Pieretti
testified he did not know how to do the particular work
involved on, this machine and Accarino did not explain
how to do it. One-half hour after assigning him to the
machine, Accarino returned and criticized Pieretti for not
doing the job properly. Pieretti explained that Accarino
had to show him how and Accarino told him he knew how.
Pieretti protested that he didn't, but Accarino still didn't
show him how. Instead, he walked away, but stayed nearby
and when 1 ieretti turned to a fellow employee working
nearby for help Accarino returned and told him not to ask
anyone for help. Pieretti performed the job thereafter until
noon the following day when Accarino reassigned him to
his old job stating that Pieretti was not doing the new job
properly.
That day or the next, Henry Accarino called Pieretti to
the office and asked him what was wrong with him. Pieretti
said there was nothing wrong. Accarino asked him if he
liked his job and whether he liked to work there. Pieretti
said he was working, wasn't he, so he must like working
there. Then, Accarino asked him if he wanted to be laid
off. He explained that he couldn't lay Pieretti off, unless
Pieretti asked, because he would then have a problem with
the Union. Pieretti said he did not want to be laid off. The
record does not indicate how the conversation ended.
On July 22, Pieretti asked Henry Accarino for 2 days off
to attend a religious convention. Accarino said okay and
Pieretti was absent from work on Thursday and Friday,
July 25 and 26. On Monday, July 29, he reported to work
and Henry Accarino discharged him for the stated reason
that Pieretti had been absent from work 2 days when he
had asked permission to be absent only I day. Pieretti
protested he had asked for 2 days as had been his practice
in prior years.
15 N.L.R.B. v. Advanced Business Forms Corp., 474 F.2d 457 (C.A. 2,
1973), and cases cited therein.
GENERAL IRON CORP. 781
Accarino gave Pieretti his check and he left. Outside the
plant, he ran into Nuchow and told him of his discharge.
Nuchow suggested they return to the office to discuss it
with Accarino. In the office, Nuchow asked Accarino why
he had discharged Pieretti and Accarino told him it was
because Pieretti made too many mistakes. Pieretti protest-
ed this was not the reason Accarino had given him.
Accarino adhered to his decision.
As indicated earlier, the question to be decided in a
discharge case is not whether there existed cause for
discharge, but rather, what was the employer's motive in
discharging the employee. I have set forth earlier Pieretti's
activities on behalf of Local 455 and my reasons for
finding company knowledge of such activities. The only
question remaining is whether the Employer was motivated
by such activities in deciding to' discharge him.
According to Henry Accarino, Pieretti was discharged
because he made too many mistakes and he took time off
without notifying him.
On the subject of mistakes, Accarino focused on a job
assigned to Pieretti about 6 weeks before he was dis-
charged. Accarino testified that the job involved the
operation of a spot welding machine to make several welds
to form a slack hanger. After a day, or two, an operator
would make 60 to 70 hangers per hour. Pieretti made 10 or
12 the first day, 5 or 6 of which were bad. Accarino spoke
to Pieretti about his production and defective work and
Pieretti blamed the machine. Accarino offered to let
Pieretti choose another machine, but he refused. Pieretti
worked 3 days on the fabrication of the hanger, did not
improve, and was assigned another job. According to
Accarino, this next job formed part of a larger assembly
and Pieretti did his part so poorly that the employee who
had to complete the assembly complained about Pieretti's
work.
Because of this poor work, Accarino called Pieretti to his
office to fmd out what was wrong. He testified Pieretti told
him he was afraid of the machine. Accarino could not
understand why and explained that there was no danger.
He asked Pieretti whether he was looking to be laid off and
Pieretti said no.
The foregoing description of events by Accarino is in
many respects similar to Pieretti's. Thus , it is clear that the
assignment to weld a slack hanger described by Accarino is
the assignment described by Pieretti, and it is clear from
both Pieretti's and Accarino's testimony that Pieretti's
work performance on this assignment was less than
satisfactory. According to Pieretti, however, any mistakes
he made were attributable to Accarino's refusal to instruct
him on how to do the work assigned. Significantly,
Accarino did not contradict Pieretti's testimony on this
score, including his refusal to permit Pieretti to be
instructed by other employees. Presumably, this was
because Pieretti was an experienced spot welder, even more
so than the other employees engaged in making the slack
hanger. However, the problem was not in operating the
spot welder as much as familiarity with the jig used to hold
the parts in place . Apart from that, it is difficult to
understand the logic of refusing to instruct an employee in
a new operation when he indicates he needs instruction.
In my judgment, the explanation for Accarino's behavior
towards Pieretti is evident from the chronology of events.
Thus, the assignment was made the day after he had
interrogated Pieretti and threatened him with discharge-16
Accarino testified that the assignment was necessary
because Pieretti's old job ran out, but, as was true of other
testimony he gave, his assertion was unsupported by any
details. As a matter of fact, he equivocated about that fact
by explaining, `Because his job was finished, terminated,
probably was no more to do...: 117
Next, there is the discussion in Accarino's office. There is
not too much difference in the versions of the two
witnesses except that Pieretti testified that Accarino
referred to the presence of the Union as a bar to his laying
off Pieretti unless he asked to be laid off. Presumably this
was a reference to Local 840 and the fact that the contract
provided for layoffs in accordance with seniority. Howev-
er, the contract did'not preclude discharge for cause so that
there was no need for Accarino to invite Pieretti to quit. If
his work was unsatisfactory, all Accarino had to do was
discharge him for cause. Not only did he not do so, he did
not even warn him that he would be discharged if he did
not improve his work performance. Under the circum-
stances, it is difficult to understand the purpose of the
discussion except, as General Counsel contends, to harass
Pieretti to cause him to quit or to create a pretext for his
unlawful discharge. Given the chronology of events and
the nature of the discussion, I so find.
Further proof that the Employer used Accarino's
mistakes as a pretext to discharge him for his activities on
behalf of Local 455 is the fact that he was one of the most
senior employees. He testified that before May 28 (that is,
before the assignment referred to by Accarino) there were
no, complaints about his work. There is no evidence to the
contrary. Moreover, after the mistakes complained of by
Accarino, Pieretti is not shown to have been guilty of poor
work performance. According to Accarino, Pieretti was
making mistakes even up to the last week he worked. I do
not credit him. Accarino gave no details of such mistakes,
no supervisors were called to corroborate him (although
Foreman Perez was in the hearing room for part of the
hearing), and there is no evidence that he spoke to Pieretti
about his work performance after the conversation in his
office. It is noteworthy that poor work performance was
not the reason first given Pieretti for his discharge. Rather,
Accarino first told him he was being discharged for being
absent from work on July 25 and 26.
According to Accarino, this was the straw that broke the
camel's back - a familiar phrase in labor cases. According
to Accarino, Pieretti was absent 2 days without notifying
him. Pieretti stated he did notify Henry Accarino and that
Accarino said okay. I credit Pieretti. In this connection, I
note that his testimony about his termination conversation
was undenied by Henry Accarino, and according to that
testimony, Accarino's accusation was that Pieretti took 2
days off when he had asked for only one. This was an
acknowledgment by Henry Accarino that Pieretti had
18 Accanno could not fix the date of the assigpnment , but Pieretti did and 17 Compare this "probably" with Accarino's explanation described
I credit him . earlier for recalling laid-off employees that "steel might have come in."
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notified him of his proposed,absence even if only for 1 day.
Moreover, when Pieretti returned to Accarino's office with
Nuchow, Accarino shifted his reason for discharge to
Pieretti's mistakes , thereby implicitly acknowledging that
Pieretti had not been absent without permission.
But even if Pieretti had been absent without permission,
I would find that Accarino used such absences as a pretext
to discharge him for his union activity, in view of the facts
that Pieretti was a senior employee with no past record of
absenteeism, that his discharge was effected without
warning or opportunity to explain the reason for his
absence, and Henry Accarino's admission that other
employees who had been absent often had not been fired.
For all the foregoing reasons, I find that Pieretti was
discharged because of his activities on behalf of Local 455
and that the Employer thereby violated Section 8(a)(1) and
(3) of the Act.
The complaint alleges that the discharge of Pieretti was
violative not only of Section 8(a)(1) and (3), but also of
Section 8(a)(4). The predicate for this allegation is that
Pieretti testified on behalf of Local 455 at a hearing on the
petition in Case 29-RC-2669. In light of the foregoing
findings that the Employer seized on mistakes of Pieretti
and his absence from work on July 25 and 26 as pretexts to
discharge him for his activities on behalf of Local 455, and
in light of the timing of the discharge with reference to the
July 15 hearing and Pieretti's appearance as a witness, it
would appear to be a routine conclusion that in discharg-
ing Pieretti the Employer was also motivated in part by the
fact that Pieretti appeared at the hearing as a witness for
Local 455. The difficulty with reaching such a conclusion is
that there is no evidence the Employer knew that Pieretti
appeared at the hearing as a witness on July 15. The
hearing was ex parte. Pieretti testified that July 15 was not
a workday (he didn't explain why) and consequently he did
not have to ask permission to be off from work. In view of
these circumstances, I do not know on what facts I am to
find that the Employer had knowledge of his appearance at
the hearing as a witness.
As described. earlier, when Pieretti obtained permission
to be absent from work to give a statement to a Board
agent in June, he was thereafter threatened with discharge
by Mario Accarino under circumstances which indicated
that Accarino had learned of Pieretti's activities during his
time off. Arguably, Mario or Henry Accarino also learned
of Pieretti's second visit to the Board's Regional Office.
However, on the first visit Pieretti took a day off from
work. On the day he appeared for the R case hearing, he
was not ' scheduled to work. Under the circumstances, it
would be pure speculation to hold that the Employer
learned of his appearance.18 In the absence of evidence of
company knowledge, or of facts from which to infer
knowledge, I am constrained to conclude that General
Counsel has failed to establish by a preponderance of
evidence that the discharge of Pieretti was violative of
Section 8(a)(4) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Employer set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate and
substantial relation 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.
V. THE REMEDY
Having found that the Employer violated Section 8(a)(l)
and (3) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
As I have found that the Employer laid off Luis Escalera,
Carlos Gonzales, Manuel Sanchez Agusto, Jose Carrion,
Enrique Pellot Reyes, and Charles Bailey, and discharged
Marcellus Vilcius and Jose Pieretti, because of their
activities on behalf of Local 455, I shall recommend that it
be ordered to offer all of them, except Carrion and Vilcius,
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and to make them whole for any loss
of earnings they may have suffered by reason of their
unlawful termination by payment to them of a sum of
money equal to that which they normally would have
earned as wages , from the date of their discharge to the
date of the offer of reinstatement, less net earnings, to
which shall be added interest at the rate of 6 percent per
annum in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
In the case of Carrion, the record indicates that he
returned to work on August 13 and was fired on September
20. There is no contention his discharge on that occasion
was unlawful. Accordingly, I shall recommend that he be
made whole for any loss of earnings in the manner
described above for the period from the date he was laid
off to August 13.
In the case of Marcellus Vilcius, I find that he received a
valid offer of reinstatement at the arbitration hearing on
September 27. This finding is supported by the finding of
the arbitrator and the testimony of William Nuchow and
Henry Accarino at the hearing before me. In my judgment,
despite the fact that the arbitration proceeding did not
conform , to the Spielberg criteria, there is no reason to
impugn the finding of the arbitrator that Vilcius was
offered reinstatement at the arbitration hearing, nor is
there any basis for rejecting the very explicit testimony of
Nuchow on this point. His testimony, corroborated by
Henry Accarino, indicates that at the arbitration hearing a
telephone call was placed to Henry Accarino at the plant
to suggest to him that Vilcius be offered reinstatement.
Accarino agreed and Nuchow so advised Vilcius and
18 Another speculation is that Pieretti only came to the Board's Regional no indication Local 455 had any pending unfair labor practice charges at
Office on one occasion , namely, July 15, and that it was for this reason he that time, and there is no reason that July 15 would not have been a work
was threatened by Mario. This speculation is suggested by the fact there is day. Pieretti's testimony precludes pursuit of this speculation , although I
no showing Pieretti gave a statement to a Board agent in June and there is question that the record shows the true facts on this point.
GENERAL IRON CORP. 783
instructed him to report to work at the plant on Monday
and that he would meet him at the plant . Vilcius never
appeared . The testimony of Vilcius on this point is not
entirely clear. He confirmed the fact that a call was placed
to Accarino , but he testified that Henry said no to the
suggestion that Vilcius be reinstated . However , he added to
his answer , "and when I arrived in my house I thought
about it and I didn't go back ." This part of his answer is in
my judgment indicative of the fact that he was given an
offer of reinstatement but upon reflection when he arrived
home he decided not to accept the offer . In reaching this
conclusion, I have considered his reply to a question by the
General Counsel as to whether he had ever been offered his
job back, that "After a while I got a letter and I went and a
girl gave me $3 to get a cab and go to work . And then I
went and I was supposed to go back , I was supposed to go
to work and then Henry said he did not need me ." On first
reading this , I thought perhaps Vilcius had accepted the
offer, but when he went to the plant he was denied
reinstatement . But such a construction of his testimony
would have been inconsistent with the statement recited
above that "I thought about it and I didn 't go back." I am
not sure I understand what Vilcius intended when he
testified "Henry said he did not need me," but I am
persuaded from all the evidence that he received a valid
offer of reinstatement. Despite the fact the offer was
tendered in English, I am persuaded that Vilcius under-
stood the offer when it was made, but he later decided not
to accept it. Accordingly , I shall not recommend that the
Employer offer him reinstatement, but only that he be
made whole for any loss of earnings he may have suffered
from the date of his discharge to September 27, the date of
'the offer of reinstatement , such loss of earnings to be
computed in the manner set forth above.
In recommending that the unlawfully laid-off employees
be offered reinstatement , I have considered the evidence
that Respondent mailed notices to the employees to return
to work. In my judgment, such notices did not constitute
bona fide offers of reinstatement to warrant the withholding
of the Board's usual remedy, including the tolling of the
backpay due the laid-off employees . My conclusion is
predicated upon the facts that knowing the laid-off
employees were Spanish-speaking individuals (except
perhaps for Charles Bailey), the Employer sent notices to
them in English ; that the Employer took the unusual
precaution of obtaining proof of mailing of the notices
rather than the more customary mailing by registered mail
with return receipt requested which would have shown
whether the notices were actually delivered ; and that the
notices provided the employees with insufficient notice of
the date to return to work. In my judgment , in view of the
foregoing circumstances, plus the fact that the notices to
return to work were mailed almost immediately after the
employees had been laid off for a clearly pretextuous
reason, the conclusion is warranted that the notices to
return to work were part of a contrived plan by the
Employer to avoid the possibility of any backpay liability.
I am not finding that the Employer would not have
reinstated the employees had they reported for work (the
reinstatement of Carrion argues against such a finding); I
am persuaded, rather, that in using the method he did the
Employer gambled the employees would not appear. His
gamble was successful. True , Carrion returned to work, but
he did so on August 13, long after the notice to return, and
this suggests he was rehired not as a result of the notice,
but because he reapplied for employment . The record is
silent on this point as none of the laid-off employees
testified, except Manul Sanchez Agusto . He testified he
never received the notice . The record suggests that neither
did Gonzales, Escalera, Pellot, and Bailey, because, as
noted earlier, when they were sent letters by Local 840 of
the impending arbitration hearing the letters were returned
to Local 840 undelivered.
CONCLUSIONS OF LAW
1. General Iron Corp. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Shopmen's Local Union No. 455, International
Association of Bridge, Structural and Ornamental Iron
Workers , AFL-CIO, and Local 840, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America, and each of them, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By directing employees not to support Shopmen's
Local Union No. 455, threatening employees with dis-
charge because they have engaged in activities on behalf of
Shopmen's Local Union No. 455, threatening to shut the
plant down and to refuse to sign a collective-bargaining
agreement with Shopmen 's Local No. 455, if employees
select it as their bargaining representative , and by creating
the impression that it was surveying the activities of its
employees on behalf of Shopmen's Local No. 455, and
threatening employees with discharge if they request time
off to ,give testimony under the Act, the Employer has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
4. By laying off Luis Escalera , Carlos Gonzales,
Manuel Sanchez Agusto, Enrique Pellot Reyes, Jose
Carrion, and Charles Bailey, and by discharging Marcellus
Vilcius and Jose Pieretti, because of their union activities,
Respondent had engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8 (a)(1) and
(3) and Section 2(6) and (7) of the Act.
5. General Counsel has failed to establish by a
preponderance of the evidence that the discharge of Jose
Pieretti was violative of Section 8(aX4) of the Act.
6. The conduct of Local 840, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, described herein, does not warrant the
issuance of a remedial order.
[Recommended Order omitted from publication.]