Lloyd A. Fry Roofing Co.

National Labor Relations Board - Board Decisions

Sep 14, 1954

109 N.L.R.B. 1314 (N.L.R.B. 1954)

1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LLOYD A. FRY ROOFING COMPANY and LOCAL 504, GENERAL WARE-
HOUSEMEN , SHIPPERS , PACKERS, RECEIVERS , STOCKMEN, CHAUFFEURS
AND HELPERS , INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL. ` Case No.
1-CA.-1585. September 14,1954
Decision and Order
On May 6,1954, Trial Examiner Arthur E. Reyman issued his Inter-
mediate Report 1 in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions and a
supporting brief.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.2 The Board has considered the Interme-
diate Report, the exceptions and supporting brief, and the entire rec-
ord in the case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified herein.
The Trial Examiner found that the following statements, consist-
ing of a threat and an interrogation (supported by two promises of
immunity) constituted restraint, interference, and coercion : MacKay's
statement to Castagno at the beginning of the union campaign, "If
you join the union you may be sorry, your families may be sorry";
and MacAleese's questioning of Castagno concerning the Union and
why he (Castagno) did not "go to him or other people in the plant."
We note that in making these findings, the Trial Examiner inadver-
1 The Intermediate Report contains a minor misstatement which does not affect the Trial
Examiner's ultimate conclusions. Accordingly, we note the following correction : The
second "Rutledge" in the last paragraph on page 1319 should read "MacKay."
2 Respondent urges that it was denied due process of law because of the Trial Exam-
iner 's denial of its request for a bill of particulars in regard to par. 8 of the complaint
alleging that Respondent "kept under observation the concerted activities of the employees,"
and because he denied a request to postpone the hearing because of Superintendent
MacKay's illness We find no merit in these contentions because the complaint sufficiently
specified the charge and Respondent was fully advised of the General Counsel's conten-
tions at the hearing. We also find that Respondent was not prejudiced by the denial to
postpone the hearing, as MacKay presented his testimony fully and completely after the
formal hearing by deposition
Respondent also moved the Board for a new hearing on the ground that the Trial
Examiner resolved all credibility findings in favor of the witnesses for the General Counsel
and thereby demonstrated bias and prejudice Upon careful consideration of the record
and the Intermediate Report, we are satisfied that the contention of the Respondent is
without merit. The Supreme Court has stated that even "total rejection of an opposed
view cannot of itself impugn the integrity or competence of a trier of facts " In any
event, we have independently reviewed the Trial Examiner's credibility findings and
perceive no basis for a finding that there was bias and prejudice on his part. As we find
none of the Trial Examiner's credibility findings clearly erroneous or unreasonable, we
shall, in accordance with our practice, adopt them.
109 N1RB No. 191.
LLOYD A. FRY ROOFING COMPANY 1315
tently failed to make the formal finding that these statements consti-
tuted violations of Section 8 (a) (1) of the Act. We hereby so find.
Accordingly, we shall modify the recommended order and notice to
t^,rovide adequate remedies for the aforesaid violations.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Lloyd A. Fry Roofing Com-
pany, Waltham, Massachusetts, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 504, General Warehouse-
men, Shippers, Packers, Receivers, Stockmen, Chauffeurs and Help-
ers, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, or any other labor organization,
by discharging any of its employees, or in any other manner discrimi-
nating against them in regard to hire or tenure of employment, or any
term or condition of employment.
(b) Interrogating its employees concerning their membership in,
or activities on behalf of Local 504, General Warehousemen, Shippers,
Packers, Receivers, Stockmen, Chauffeurs and Helpers, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, AFL, or any other labor organization, in a manner con-
stituting interference, restraint, or coercion in violation of Section (8)
(a) (1) of the Act, and threatening its employees with the deprivation
of benefits and privileges because of their concerted activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act and the amended Act :
(a) Offer to James Gullotti and Alphonso Castagno immediate and
full reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges in
the manner herein provided in "The Remedy."
(b) Make whole, in the manner herein provided in "The Remedy"
James Gullotti and Alphonso Castagno for any loss of earnings that
each of them may have suffered by reason of the Respondent's dis-
crimination against him.
(c) Post at its plant in Waltham, Massachusetts, copies of the notice
attached hereto marked "Appendix." I Copies of such notice to be,
furnished by the Regional Director for the First Region, after being
duly signed by the Respondent's representative, shall be posted by it
8 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
334811-55-vol. 109-84
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately upon receipt thereof and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that. said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply therewith.
MEMBERS MURDOCK and RODGERS took no part in the consideration of
the above Decision and Order.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a decision and order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in any labor organization
of our employees by discharging them or by in any manner dis-
criminating in regard to their hire or tenure of employment, or
any term or condition of their employment.
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activities on behalf of, Local 504, General Ware-
housemen, Shippers, Packers, Receivers, Stockmen, Chauffeurs
and Helpers, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, or any other labor
organization or threaten employees concerning their union affilia-
tion or sympathies in a manner constituting interference, re-
straint, or coercion, in violation of Section 8 (a) (1).
WE WILL offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights and priv-
ileges previously enjoyed, and make them whole for any loss of
pay suffered as a result of the discrimination.
James Gullotti
Alphonso Castagno
LLOYD A. FRY ROOFING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
LLOYD A. FRY ROOFING COMPANY 1317
Intermediate Report
STATEMENT OF THE CASE
The General Counsel of the National Labor Relations Board by the Regional
Director for the First Region issued a complaint against Lloyd A. Fry :Roofing
Company, herein called the Respondent, on January 15, 1954, alleging violations
of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended (61
Stat. 136), herein referred to as the Act. The issuance of the complaint followed
the filing of a charge on November 18, 1953, by Local 504, General Warehouse-
men, Shippers, Packers, Receivers, Stockmen, Chauffeurs and Helpers, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, herein called the Union, in which it was alleged:
On November 13 and 16, 1953 respectively, the Company through its officers
or agents, discriminatorily discharged James Gullotti, Waltham, Mass., and
Alphonse Castagno, Belmont, Mass., because of their activities on behalf of a
union . By the above acts and other acts the Company has interfered with the
rights guaranteed under Section 7, of the Act.
The complaint in substance asserts that the Respondent has engaged in and is
engaging in unfair labor practices proscribed by the Act, in that it discharged and
has refused and now refuses to reinstate the two employees named in the charge
for the reason that they joined or assisted the Union and engaged in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion . The complaint alleges further that from on or about September 20, 1953, to
the date of the issuance of the complaint the Respondent has interrogated its em-
ployees concerning their union affiliation; has warned its employees to refrain from
assisting or becoming members or remaining members of the Union; has threatened
its employees with discharge or other reprisals if they joined or assisted the Union
or engaged in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection; and has kept under observation the concerted
activities of its employees for the purpose of self-organization or improvement of
working conditions. On January 29, 1954, the Respondent filed its answer to the
complaint, denying the allegations therein which charged the Respondent with
having committeed unfair labor practices under Section 8 (a) (1) and (3) of the
Act, and, with respect to the alleged discriminatory discharges and discriminatory
refusal to reinstate James Gullotti and Alphonso Castagno, setting up affirmative
defenses to the effect that each of these discharges were for good cause. Follow-
ing the disposition of certain motions made on behalf of the Respondent, and
pursuant to notice, the matter came on for hearing before the undersigned Trial
Examiner at Boston, Massachusetts, on February 8, 1954. On February 10, 1954,
the hearing was adjourned sine die pending the taking of the deposition of David
D. MacKay, a witness whose testimony was requested by the Respondent; and
thereafter, upon receipt and examination of the deposition of the said MacKay,
the Trial Examiner, by appropriate order entered February 26, 1954, closed the
hearing.
At the hearing, the General Counsel and the Respondent were represented by
counsel, and the Union was represented by its secretary-treasurer. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues, to argue orally upon the record, and to file briefs, pro-
posed findings of fact, and proposed conclusions of law, were afforded all parties.
Briefs were filed on behalf of each party and have been fully considered.
Upon the entire record in the case, from his observation of the witnesses who
appeared before him, and after careful consideration of the deposition of David
D. MacKay, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , Lloyd A. Fry Roofing Company, is and has been at all the
times mentioned herein a corporation duly organized under and existing by virtue
of the laws of the State of Delaware , maintaining an office and place of business
at 33 Coker Street , in the city of Waltham , Commonwealth of Massachusetts,
where it is now and continuously has been engaged at said plant , in the manufac-
ture, sale, and distribution of roofing materials and related products . The Respond-
ent operates some 18 plants in 16 different States of the United States , and in the
course and conduct of its business causes and continuously has caused at all times
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein mentioned, large quantities of commodities used by it in the manufacture
of roofing materials to be purchased and transported in interstate commerce from
and through various States of the United States other than the Commonwealth of
Massachusetts, and causes and continuously has caused substantial quantities of
roofing materials to be sold and transported from its Waltham, Massachusetts,
plant in interstate commerce to States of the United States other than the Common-
wealth of Massachusetts. During the past fiscal year the Respondent has shipped
materials from its Waltham, Massachusetts, plant of value in an amount in excess
of $100,000 to points directly outside the Commonwealth of Massachusetts.'
The Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 504, General Warehousemen , Shippers , Packers, Receivers , Stockmen,
Chauffeurs and Helpers , International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL, is a labor organization within the meaning
of Section 2 (5) of the Act, admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Union organizing activities
In September 1953 the Union began a campaign to organize the employees at the
Respondent's Waltham plant. On September 25, 1953, a petition was filed by the
Union for certification as representative of the employees employed in the produc-
tion and maintenance departments of that plant and a hearing on the appropriate-
ness of the unit claimed by the Union was held before a hearing officer of the Board
on October 16, 1953 (Case No. 1-RC-3412). Leaflets were distributed by the Union
at or near the gate of the plant and authorization cards, authorizing the Union to
represent the employees in the claimed unit, were distributed among the employees
in the plant.
B. The discharges of Gullotti and Castagno
During the times with which we are here concerned, Lloyce Woodward was gen-
eral manager of the Waltham plant, John P. O'Shea was assistant superintendent
under Woodward, William C. MacAleese was assistant general superintendent for
the Respondent on the East Coast, with supervision over seven of the plants of the
Respondent, and David D MacKay was general superintendent, responsible for pro-
duction, operating efficiency, labor relations, inventory control, and the resupplying
of raw materials to inventory in all of the plants of the Respondent. Parker A. Bailey
was employed as a foreman at the Waltham plant. Each of these members of man-
agement testified at the hearing. Wayne Rutledge, who did not testify, was plant
superintendent under Woodward, and O'Shea's superior.
James J. Gullotti was discharged on November 13, 1953, allegedly by reason of
certain statements made by him relating to Woodward and Rutledge. Alphonso
Castagno was discharged on November 16, 1953, by the Respondent because of cer-
tain alleged statements made by him relating to Woodward and Rutledge and because
of certain claimed acts of misconduct. The General Counsel asserts the discharges of
Gullotti and Castagno were discriminatory; the Respondent asserts that each dis-
charge was for cause.
In late August or early September 1953, when the Union had first started its or-
ganizing drive at the Waltham plant, Castagno signed an authorization card for the
Union to represent him for collective-bargaining purposes, having received that card
at "the gate." After that he talked to other employees at the plant, during rest periods
and at other times while at work, and expressed the opinion to them that the Union
would help them more than anything else in adjusting certain grievances which
he described among other things as improper distribution of overtime work, holiday
work, and the failure of Woodward as general manager and Rutledge as plant super-
intendent to properly adjust these and other grievances. He told other employees
that the Union would help them more than "anything would help us out." He said
that MacKay, in early September, stopped by his station while he was at work and
questioned him as to "what was going on," and that he told MacKay that a number
of the employees were dissatisfied about some of their conditions of employment, such
as overtime and holiday practices, and that MacKay said he "was going to take care
of it." He said that during the course of this conversation, MacKay said "If you join
'The Board has heretofore asserted jurisdiction over the Respondent at its Waltham
plant In Case No . 1-RC-3412.
LLOYD A. FRY ROOFING COMPANY 1319
the Union you may be sorry, your families may be sorry ." He testified further that
in October 1953, while he was smoking in the superintendent 's office adjacent to his
station on the coating machine, MacAleese asked him what he knew about the Union;
that he told MacAleese that he thought the Union would be of help to the employees;
that MacAleese asked him why he did not "go to him or other people in the plant"
and that he replied that "it wouldn't go any good, . that the boys had to go to
the Union because they were getting no help from the other people." He related
that on the morning that Gullotti was discharged he was smoking at the door of the
superintendent's office, talking to Bailey, when Gullotti 's name came up; that Bailey
remarked that "it is too bad about Gullotti , he was a good man"; that he then re-
marked that "the boys are out to get . . ." and that Bailey then walked away. Bailey
testified , regarding this conversation , that Castagno said, "They have got Gullotti in
Woody's office . . I suppose it is about the Union . . . . Well, we are out to
get Woody and Wayne."
On the day before Armistice Day (November 10), Castagno observed a notice
posted near the time clock signed by Woodward which read: "The plant will not op-
^erate Wednesday , November 14. We will resume operations Thursday morning, No-
vember 12, at 7 a. m." He wrote in longhand on this typewritten notice "with pay."
On November 17, the day of his discharge, after working until about 10 o'clock
that morning , he was advised by Rutledge that Woodward wanted to see him in his
office; he went to Woodward's office where he found Woodward, MacAleese, Bailey,
and Scott Wellington , an assistant manager. He testified that they inquired as to
whether he had made the statement that "he was out to get Wayne and Woody,"
that he denied making such a statement ; and that Woodward then informed him of
his discharge and handed him his paycheck . Castagno denied saying, as witnesses for
the Respondent assert, that "he was out to get Woodward and Rutledge "; he main-
tained that what he had said was something to the effect that they were "out to get
better working conditions ." Castagno was not a particularly articulate witness;
nevertheless , from the whole of his testimony , the Trial Examiner is inclined to believe
that he did make some intemperate remarks regarding the dissatisfaction of himself
and fellow employees concerning the way Woodward and Rutledge treated their com-
plaints, but that he was sincere in his assertion that what he really intended was to
get better conditions for himself and others if possible.
Gullotti first was employed by the Respondent at the Waltham plant in 1946 and
remained in its employ until his discharge on November 13, 1953. His employment
record , like that of Castagno , was a good one.
He testified that in early September 1953, he became actively engaged in union
activities in that he signed a union authorization card and distributed more cards
within the plant among his fellow employees ; that he attended union meetings and
took an active part therein ; and acted generally as a "go-between " between the Union
and the employees in the plant with respect to telling them of the time and place of
meetings and otherwise assisting in union organizing efforts. His testimony, with
respect to a conversation he had with MacKay in early September, is as follows:
I told him that the fellows were dissatisfied with the treatment that they were
getting, that most of the fellows were peeved at the treatment that they were get-
ting from Mr. Woodward and Mr. Wayne Rutledge, and I also told him that they
had nothing against Mr. O'Shea, just these two men, the treatment they were
getting from these two men, and I outlined some of the things that the boys,
wanted, like holidays with pay, which meant, you know, they had given us
five extra days as a vacation , and what the boys wanted was to take these five
days that they were giving us as a vacation and split it up and give us five
holidays instead of that extra week vacation. . . . I told him about the condi-
tions in the plant, and I also told him that they wanted the holidays with pay.
All we wanted was that five days off and switched to holiday pay. And I told
him that the fellows were dissatisfied when they were working a split shift, as
they called it, that they were working, you know, they would split the shift down
the middle . Half of the shift would come in from 7 to 3 in the afternoon and
the other half would come in from 3 to 11, and they would work, sometimes
more than one day per week, and then they would be told to stay home Satur-
day. The fellows were dissatisfied.... I told him about a pet peeve that I had,
that I wanted a shed built for me because I was out in weather and I used to
freeze there in the morning.
He went on to relate that he complained about the treatment he received from
Rutledge and that Rutledge told him "to keep quiet and he would see what he could
do."
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gullotti further testified to a conversation he had with Woodward in late Septem-
ber or early October while he (Gullotti) was standing outside of the door from the
scale at which he worked. He said that Woodward came by and asked him what
the discontent was and Gullotti replied:
Well, I told him mainly the same thing I had told Mr. McKay, that the fellows
were organizing, that they wanted a little protection, and that they wanted
holidays with pay, that the five days week vacation they had, they didn't want
it, they wanted five holidays, and I told him that the fellows didn't like the
split shift, or if they did work it, if they did something for the Company the
Company should give them Saturday work if they could, . . . and he was
taking it all down on a piece of paper, and he said he would see what he could
do. . . . Well, all he said was he didn't know if they could get us holidays
because the other plants weren't getting it, so he didn't see how we could, but
he said anytime you want to talk things over, he said the office is open. Well,
I said, how about calling a group of fellows from the shop together and we
talk this over, and he said, "Oh, no, I can't call them together, but if you fellows
want to come in, it is all right."
According to Gullotti, after this conversation he attempted to get a number of his
fellow employees together to talk to Woodward, but they refused to go with him on
the ground that they thought they might lose their jobs if they did. Subsequently
he informed Woodward that he was unable to persuade other employees to call upon
Woodward at the latter's office.
On the Monday before the Friday on which he was discharged, Gullotti testified
to a conversation he had with MacAleese in which he said he told MacAleese that
the only complaint he had at the time was the shed and general working conditions;
and he also testified concerning a conversation he had with O'Shea a day or two
before Armistice Day. On this occasion, a day or two after he had talked to Mac-
Aleese, he said he went in to see O'Shea, told him that the men were out to get better
working conditions, and that "they figured that Wayne and Woody were back stabbing
them, and they were getting pretty mad at the treatment they were getting." At this
time, he rather heatedly told O'Shea
that the fellows had nothing against him, and I told him that I had nothing
against him personally or Mr. Woodward either. I mentioned that the only
peeve I had was against Mr. Wayne and that was it. He said, do you realize
what you are saying? I said, well, I'm only saying what the fellows think, I
am their spokesman.
O'Shea reported this conversation to Woodward and Rutledge.2
At about 10 o'clock on the morning of Gullotti's discharge, Bailey informed him
that Woodward wanted to see him in his office. He went there. O'Shea and Mac-
Aleese were present and, according to him, Woodward told him that
he had word that I made statements that we were out to get management, and
I told him no, I said no, Mr. Woodward, that is not a personal opinion of mine.
I said, I have nothing against you, Mr. Woodward, and I have nothing against
Mr. O'Shea, and I told him the only peeve I had was against Mr. Rutledge, and
I said, in fact, I pleaded for my job. I said I didn't think this was coming to me.
I played honest all the way along the board with you. I tried to keep you
straight on both sides of the picture.
He said that Woodward then told him that he had always been a good worker, but
that the feeling in the shop as expressed by him could not be tolerated and at that
point gave him his check, saying that he was sorry to see him go but that any place
he did go he (Woodward) would give him a good recommendation.
At the time of the discharge of Gullotti and at the time of the subsequent discharge
of Castagno, company officials knew about union organizing activities and the par-
ticipation of Gullotti and Castagno therein in the plant. The Company was aware
through O'Shea, among others, of the distribution of leaflets and authorization cards
by Devlin, a union representative, at the gate of the plant and the distribution of
leaflets within the plant.
2 Respondent offered testimony to show that Gullotti, in a proceeding before the Massa-
chusetts Division of Employment Security, after his discharge, testified under oath and
then admitted that in a conversation with O'Shea on November 9, had told O'Shea that
"we are out to get Woodward and Rutledge," and that if it would hurt O'Shea they were
sorry but it could not be helped
LLOYD A. FRY ROOFING COMPANY 1321
C. Activities of management
In January 1953, MacKay visited the Waltham plant at the request of Woodward,
who had suggested that an investigation be made regarding the lack of production
efficiency. At that time he investigated the machine operations at that plant in an
effort to determine where the lack of efficiency, whether in the machine itself or
elsewhere, was responsible for loss of production, and as a result of his study sug-
gested various machine changes to Woodward. He visited the plant briefly in May
of that year and again in the latter part of September. On his last visit he checked on
the machine installations and changes he previously had suggested to Woodward and
conferred with MacAleese, who had been there in February and May in connection
with the installation of new machine parts and experimentation in efficiency of the
complicated roofing assembly machine in the plant. (In February MacAleese was
there about 2 days, having just assumed the duties of his office, and in May he spent
about 3 weeks at the plant.) MacKay stayed at the plant until about October 20,
checking on machine installation changes that he had suggested to Woodward and
other proposed method changes, suggested by MacAleese during the latter's visit in
May. MacAleese visited the plant again in early November 1953, to continue the
overall supervision of the installation of machine parts. During these times, MacKay
acted to correct the system governing the distribution of overtime work, one of the
grievances presented to him by Gullotti, and he and MacAleese promised to and did
give attention to other complaints. It was during these times too, lust prior to the
discharge of Gullotti and Castagno, that MacAleese is alleged to have engaged in
the unfair labor activities attributed to him The Respondent has shown without
contradiction that in January 1953 the Waltham plant, productionwise, rated about
17 out of 18 plants, and that it rated 15th in productivity at the end of the fiscal year
on October 31, 1953. The Respondent argues from these facts that the presence of
MacKay and MacAleese during September, October, and November, is shown to
have been primarily in connection with plant improvement and improvement in plant
production, and that the conversations MacAleese and MacKay had with Castagno,
Gullotti, or other employees in connection with their "gripes" were normal or casual
and not out of the ordinary, and not intentional on their part except that MacKay and
MacAleese in usual course, not permanently stationed at this plant but knowing
most of the employees there, made it a point to discuss their problems with them if
the occasion was initiated by any particular employee.3
Testimony given on behalf of the Respondent by Woodward, MacKay, and
MacAleese shows the several conversations reported by Gullotti and Castagno, and
the conversations between MacKay and the two discharged employees. The inter-
pretation of the substantial parts of these conversations, asserted on the one side and
denied on the other, afford problems of credibility. The Respondent argues that the
testimony shows that Gullotti was cautioned by MacKay not to disparage Rutledge
because Rutledge was superintendent of the Waltham plant and as such was entitled
to the respect of the employees; that Gullotti in one of his conversations with
MacAleese complained about numerous grievances which he had, and complained
that Rutledge had not disposed of his grievances fairly and stated in effect that "what
they need around here is to get Woodward and Rutledge out of here, get rid of
them," and MacAleese then warned Gullotti that "you should not talk about managing
officials in that manner," and warned him further to discontinue such improper talk;
and that, in effect, Castagno and Gullotti both were insubordinate and subject to dis-
charge because of their asserted and outspoken opinion that Woodward and Rutledge
were responsible for their grievances. The Respondent assumes, and probably
rightly, that their opinion was communicated to other employees, although, as the
General Counsel points out, there is no evidence in the record to show that the
remarks of Gullotti and Castagno concerning the supervision of Woodward and
Rutledge were made to any employees other than supervisors.
Another reason given for the discharge of Castagno was that he had written "with
pay" on a company notice announcing the Armistice Day holiday. He confirmed that
he did so, pointing out that holiday pay was involved in the grievances then held by
him and other employees. He wrote on the notice (which had not been posted in
the usual posting place) on November 10; the writing was erased by a management
representative about 2 hours later; and Castagno was not in any way warned of his
claimed infraction of management authority before the time of his discharge on
November 16. The Trial Examiner does not believe that this alleged breach of
3 Guy 'Santagate, a nonsupervisory employee, testified that he had discussed working
conditions and the desire of the men for a union with MacKay during the visit of the
latter in October.
1322 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline had anything to do with the discharge of Castagno . The General Counsel
contends that the act of writing in such case would be a "protected activity." The
Trial Examiner does not find it necessary to decide the question , since he is convinced
that this act of Castagno was not one of the real reasons for his discharge. Circum-
stantially , the case made at the hearing against the Respondent is a strong one: The
responsible management officials knew that there was union activity at the plant;
MacKay, in overall charge of labor relations for the Company, appeared upon the
scene almost immediately after union organizing activities began, and talked to
Castagno , Santagate, and others regarding their grievances and the Union; MacAleese
followed him into the plant where he, like MacKay, questioned the men concerning
their grievances and their reasons for interest in the Union and promised to correct
certain working conditions the employees did not like, management knew that Gul-
lotti and Castagno had taken the lead in trying to gain better working conditions for
themselves and others ; the disloyal statements laid to Gullotti and Castagno were
made only to supervisors of the Company, were made in September , October, and
early November , but the men were not discharged until the middle of November;
each man had received assurances that he would not suffer reprisals because he
revealed the underlying reasons for the discontent of the employees and their interest
in the Union , and the men discharged were qualified workers with good employment
records and the most active in asserting employee grievances and engaging in union
activities.
The Respondent vigorously attacks the credibility of Gullotti and Castagno, as
well as each of the other witnesses called by the General Counsel. At the hearing,
MacKay, MacAleese, and Woodward all denied the statements attributed to them
regarding the Union; although each remembered and testified to the several con-
versations reported by Gullotti and Castagno and the nature of the grievances men-
tioned at these several times. The Trial Examiner is not impressed by the attacks
upon the credibility of the witnesses presented by the General Counsel. Each of
them is a working man, not too well educated , and not too adept at self-expression.
Their testimony did not change in essential respects during cross -examination by
able counsel . The interpretation of the substantial parts of the several conversations
between representatives of management and employees afford problems of credibility
more apparent than real , except as to those parts where it is asserted on the one side
and denied on the other that management representatives made direct threats to
employees regarding the union activities of the latter . After observing the witnesses
who testified before him and after examining the deposition of MacKay, and bearing
in mind the time and the circumstances when these statements were alleged to have
been made, the Trial Examiner credits the testimony of Castagno and Gullotti, and
finds that MacKay and MacAleese did make the statements attributed to them.
The Respondent does not assert dissatisfaction with the work of either man. The
sole reason for the discharge of Gullotti is his asserted disloyalty; Castagno is alleged
to have been disloyal and to have defaced a company notice. Other than the re-
ported verbal admonitions to them, no responsible member of management under-
took to formally warn or reprimand them for the offenses warranted serious enough
for discharge. The Trial Examiner believes and finds that the asserted reasons for
these discharges were not real reasons, but that the two men were discharged for
their aggressive activities on behalf of themselves and other employees , and in the
belief that their discharges would tend to discourage further union activity among the
employees in the plant.
Concluding Findings
The activities of Gullotti and Castagno constituted concerted activities for mutual
aid or protection and therefore are protected activities under Sections 7 and 8 of
the Act. The opinion of Gullotti and Castagno, shared by other employees, that
alleged faults of management in regard to certain working conditions lay with
Woodward and Rutledge even if expressed as forcibly as the Respondent contends,
is no valid reason for discharge.
In Joanna Cotton Mills v. N. L. R. B., 176 F. 2d 749 (C. A. 4), the court in deny-
ing enforcement of an order of the Board (81 NLRB 1398), wrote in part:
We agree that the "concerted activities protected by the Act are not limited
to cases where the employees are acting through unions or are otherwise for-
mally organized. It is sufficient that they are acting together for mutual aid
or protection. . . .
and distinguished that case from other cases cited by finding , that the employee
there involved had been discharged because of activities growing out of personal
LLOYD A. FRY ROOFING COMPANY 1323
resentment. The Board, in its decision (81 NLRB 1398 at 1401) laid down the
following view, which appears to remain undisturbed by the decision of the court:
We grant, of course, that the selection of supervisory personnel is within the
usual scope of management prerogative, without regard to the preferences of
the employees to be supervised. We are convinced however, that employees
may nevertheless express in concert their views regarding the selection of their
supervisor to the extent that it directly affects their wages, hours, or working
conditions, without thereby imperilling their employment status.
Here, the activities of Gullotti and Castagno were not affected by their personal
feelings against Woodward and Rutledge, so far as the record shows, but grew out
of their opinion that these members of management were responsible for the work-
ing conditions they hoped to improve. They were protected activities under the
Act. N. L. R. B. v. Hymie Schwartz, 146 F. 2d 773 (C. A. 5). See also Container
Mfg. Co., 75 NLRB 1082; N. L. R. B. v. Phoenix Mutual Life Ins. Co., 167 F. 2d
983, cert. denied, 335 U. S. 845 (affg. 73 NLRB 1463).
Neither Gullotti nor Castagno was discharged for cause within the meaning of
Section 10 (c) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the 'operations of the Respondent described 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 of commerce.
V. THE REMEDY
Having found that the Respondent discriminatorily discharged James Gullotti
and Alphonso Castagno because of their concerted activities with other employees,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act and the amended Act. The
undersigned will therefore recommend that the Respondent offer each of them full
and immediate reinstatement to his former or substantially equivalent position 4
without prejudice to his seniority or other rights and privileges and make him
whole for any loss of pay he may have suffered by reason of such discrimination
by payment to him of a sum of money equal to that which he normally would have
earned as wages from the date of his discriminatory discharge to the date of the
offer of reinstatement, less his net earnings 5 during such period.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Local 504, General Warehousemen, Shippers, Packers, Receivers, Stockmen,
Chauffeurs and Helpers, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of James
Gullotti and Alphonso Castagno, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (3) of the Act.
3. By such unfair labor practices the Respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act and the same section of the amended Act, thereby engaging in unfair labor
practices within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
'In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico
Branch, 65 NLRB 827.
5 Crossett Lumber Company, 8 NLRB 440, 497-498.