Logan Equipment Corp.

National Labor Relations Board - Board Decisions

Sep 29, 1972

199 N.L.R.B. 384 (N.L.R.B. 1972)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Logan Equipment Corp . and Local 4 , International Un-
ion of Operating Engineers , AFL-CIO. Case 1-
CA-7767
September 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On April 5, 1972, Trial Examiner Ramey Dono-
van issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, the Charging Party filed exceptions and
a supporting brief, and the General Counsel filed a
brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and briefs and has decided to affirm the Trial
Examiner's rulings, findings,' and conclusions and to
adopt his recommended Order, as modified herein .2
i The Charging Party has filed an exception to the Trial Examiner's recom-
mended Remedy and Order insofar as it conditions the reinstatement of
Pisco, Murphy, and Gallivan and tolls the Respondent's backpay obligation.
We find merit in this exception and in accordance with our usual practice
we shall leave this matter to the compliance stage of this proceeding.
The Respondent Employer has excepted to certain credibility findings
made by the Trial Examiner . It is the Board's established policy not to
overrule a Trial Examiner 's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C A. 3). We have carefully examined the record and find
no basis for reversing his findings.
Contrary to our dissenting colleague, the Trial Examiner found and the
record supports his findings that : ( 1) no order or directive was made at the
June 21 meeting to lay off Pisco, Murphy, or Gallivan. Confirmation for this
finding is provided by Juszkiewicz , Respondent 's vice president in charge of
sales and purchasing , who was present throughout the June 21 meeting and
whose testimony was credited by the Trial Examiner ; and (2) when Pisco
approached Rich about the Union on June 21 , Rich, Baron, and Fulgmiti all
actively sought information from Pisco about who was involved in the union
activities with Pisco . Similarly, Murphy testified that Baron sought informa-
tion from him about "this union stuff," and Juszkiewicz approached employ-
ee Siraco about the matter, both inquiries coming on the day of, and after,
the Pisco-Rich conversation . Finally, while it is true these three employees
were not replaced by new hires , three part-time and student employees did
have their hours appreciably increased during the months immediately fol-
lowing the layoffs.
2 Delete from the section of the Trial Examiner's Decision entitled "The
Remedy" the following:
In the event that no former or substantially equivalent jobs currently
exist for the aforementioned employees, they shall be placed on a prefer-
ential hiring list for employment in the event such Jobs become available
within 12 months from the date of this Decision . If the employees are
placed on the preferential hiring list in the foregoing circumstances, the
backpay obligation shall be tolled from such date.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner, as modified below, and
hereby orders that the Respondent, Logan Equipment
Corp., Boston, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Trial Examiner's recommended Order, as herein
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer to Joseph A. Pisco, Jr., Paul Murphy,
and Paul Gallivan immediate and full reinstatement
to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges,
and make them whole for any loss of pay in the man-
ner described in The Remedy section of the Trial
Examiner's Decision, as modified herein.
2. Insert the following as paragraph 2(b) and re-
letter the succeeding paragraphs as 2(c), (d), and (e):
"(b) Notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
3. Substitute the attached notice for the Trial
Examiner's notice.
CHAIRMAN MILLER , dissenting in part:
The Trial Examiner found that Respondent vio-
lated Section 8(a)(3) through the layoffs of Pisco,
Murphy, and Gallivan. It is clear, however, that, on
the Trial Examiner's own findings, the possibility of
a layoff existed prior to any union activity and that
these employees were most vulnerable to termination
in the event of the layoff. Thus, the Trial Examiner
accepted Respondent's testimony that Pisco, Murphy,
and Gallivan had the lowest point standing under
Respondent's evaluation system and hence would be
the first to be terminated in the event of layoff. The
Trial Examiner also concluded that on June 21, 1971,
at an executive board meeting, some 4 days prior to
the advent of the Union, Respondent's officials dis-
cussed "a potential layoff and ... employees and their
point standing." Finally, it is noted that the Trial
Examiner found, and the record shows, that following
the layoff these three employees were not replaced by
new hires.
In the face of these findings, it is apparent that
the 8(a)(3) allegations in the complaint may only be
sustained on the theory that Respondent, in reprisal
for union activities, discriminatorily accelerated the
199 NLRB No. 33
LOGAN EQUIPMENT CORP.
date of the proposed layoff. I would agree with the
majority that, as to Pisco, the General Counsel has
met his burden of proof, through (1) the showing that
Respondent possessed direct knowledge of Pisco's un-
ion activities, (2) Respondent's specific threats direct-
ed at Pisco, and (3) Respondent's precipitate action in
terminating him on the very day that it acquired such
knowledge and unlawfully voiced its animus toward
his union activities. I therefore would agree with my
colleagues that Respondent violated Section, 8(a)(3) in
laying off Pisco.
On the other hand I would not find that the
General Counsel has established that the layoffs of
Murphy and Gallivan several days later were in re-
prisal for their known or suspected union activities.
As heretofore indicated, Respondent had discussed
the layoff prior to any organizational activity, and, on
the date of their layoffs, Murphy and Gallivan had the
lowest priority for retention under Respondent's "rat-
ing system." Unlike Pisco, there is no evidence that
Respondent was aware of their union activites nor
was there any expression of hostility directed to them.
Almost the only evidence from which the Trial Examin-
er inferred that Respondent had knowledge of their un-
ion activity was that they sometimes had lunch with
Pisco. This is far too slim and speculative a shred of
evidence to support a reasonably based inference. For
these reasons I would dismiss the 8(a)(3) allegations in
the complaint based on the layoffs of Murphy and Gal-
livan.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties participated and were
represented by attorneys, it has been found that we
have violated the National Labor Relations Act in
certain respects . To remedy these violations, we ad-
vise you that:
WE WILL NOT discriminate against Joseph A.
Pisco, Jr., Paul Murphy, and Paul Gallivan or
any other employee because of their union or
concerted activities protected by the National
Labor Relations Act.
WE WILL offer reinstatement to the three em-
ployees aforementioned to their former or sub-
stantially equivalent jobs and will pay them any
wages they may have lost by reason of our dis-
crimination against them.
WE WILL NOT unlawfully interrogate or
threaten employees contrary to the rights guaran-
teed to them in the National Labor Relations
Act.
LOGAN EQUIPMENT CORP
(Employer)
Dated By
385
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Trailing and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Bulfinch Building, Seventh Floor, 15
New Chardon Street, Boston, Massachusetts 02114,
Telephone 617-223-3330.
TRIAL EXAMINER'S DECISION
RAMEY DoNOVAN, Trial Examiner: The charge in this
case was filed on July 20, 1971, by Local 4, International
Union of Operating Engineers , herein the Union , against
Logan Equipment Corp. herein Respondent or the Compa-
ny. A complaint issued on November 24, 1971, alleging
unlawful interrogation and threats in violation of Section
8(a)(1) of the Act, and that on June 25, 1971, and June 28,
1971, Respondent discharged three named employees be-
cause of their union or concerted activity, all in violation of
Section 8(a)(3) and (1) of the Act. Respondent's answer denies
the commission of the alleged unfair labor practices. The case
was tried in Boston , Massachusetts , on January 12 and 14,
1972. Briefs were thereafter filed with the Trial Examiner by
the General Counsel and Respondent.
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent maintains its principal office and place of
business in Boston, Massachusetts , herein the Boston opera-
tion, as well as facilities or operations in Connecticut, and
in Londonderry, New Hampshire. At Boston, Respondent
is engaged in the retail sale, rental , and servicing of con-
struction machinery and equipment and related items.
In the course of its business, Respondent receives mate-
rials annually of a value in excess of $50,000 at its Boston
operation and these materials are received annually from
points outside Massachusetts. Respondent sells, rents, and
services items in its business that have a gross value in excess
of $500,000.
Respondent is an employer engaged in commerce with-
in the meaning of the Act. The Union is a labor orgainzation
within the meaning of the Act.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE ALLEGED UNFAIR LABOR PRACTICES
Respondent has been in business 8 or 9 years. Rich is
the president and principal stockholder; Fulginiti is the
treasurer and the sole minority stockholder; Mucci is the
comptroller; Juszkiewicz is vice president in charge of
service and service manager; Baron is vice president in
charge of sales and purchasing. The board of directors con-
sists of Rich, Fulginitti and Mucci. An executive committee or
board is composed of the foregoing, plus Juszkiewicz and
Baron. All the aforementioned persons are located at the Bos-
ton facility. Around May 1971 there were also 17 truckdrivers,
helpers, and mechanics employed in Boston plus some sales-
men and office clericals.
In addition to evidence in the record as to what they
did and said at various times, all the members of the execu-
tive board except Mucci testified at the hearing. Rich testi-
fied twice and he impressed us as intelligent and articulate.
Aside from title, there is no doubt in our mind that he is the
chief officer and principal owner of the Company and that
he is the key decision and policy maker.
Since March 1971, or earlier, the Union has been pick-
eting Respondent's Boston facility. What the cause or the
objective of the Union was does not appear in this record
but there is no evidence that the Union had claimed to
represent Respondent's employees.
Among Respondent's employees in Boston were Pisco,
Murphy, and Gallivan. Pisco has been a high school class-
mate of Frank Rich, Jr., a son of Respondent's president.
Pisco and Rich, Jr., had been best friends in high school and
after graduation had continued their friendship and social
relationship. Rich, Jr., had been best man at Pisco's wed-
ding and Pisco had been an usher at his friend's wedding.
On a number of occasions Pisco had been at the Rich family
home for dinner and otherwise and had met Rich, Sr.,
Respondent 's president , on such occasions . Pisco, while em-
ployed elsewhere, had spoken to Rich, Jr., about employ-
ment with Respondent. In March 1971 Rich, Jr., told his
friend, Pisco, to contact his father about a job. Pisco did so
and was hired as a truckdriver and helper around the end
of March 1971. He delivered machinery and other equip-
ment to various jobsites as assigned. He received his assign-
ments to drive to a particular job and the necessary papers
from Murphy, the dispatcher. Pisco testified, however, that
he considered Baron, who was in charge of sales and pur-
chases, to be his supervisor. He cited an occasion when he
desired to leave work early in order to keep a medical ap-
pointment . He mentioned the matter to Murphy, who ad-
vised him to speak to Baron or Rich. Pisco received the
necessary permission from Baron. In addition to working on
weekdays Pisco also worked regularly on Saturday mom-
ings. He was scheduled to work Saturday, June 26, 1971,
but, beforehand, he had requested and secured from Baron
permission to be off that particular Saturday. No criticism,
discipline, or warning had been received by Pisco regarding
his work during his period of employment. He received a
25-cent-an-hour raise in the latter part of April 1971.
Murphy started working for Respondent in September
1970 as a dispatcher. He worked in the office where there
was a desk, counter, and related equipment. Murphy would
take orders from customers over the telephone or, on occa-
sion, in the office, if a customer came in. He would check
on the availability of the item ordered and then would write
up the necessary papers. He would give the order to a driver
for delivery to the customer. Murphy would assign a driver
according to the latter 's availability at the time and his
familiarity with the geographical area and the type of equip-
ment to be delivered. Upon his return the driver would give
the papers involved to Murphy. Sometimes Murphy would
wait on a customer at the sales counter in the office in the
event the customer had come in to pick up some item. As
far as appears there was no sales clerk as such in the office
other than Murphy. If some item was needed , e.g. Juskiew-
icz or Baron might say that spark plugs were needed for a
forklift and send someone over to Hauseman,I Murphy
would write up a purchase order for the spark plugs and
would send a driver to pick them up. If no driver was
available, Murphy would himself go for the item. Murphy
was a college graduate and Rich had spoken to him about
possible training for future or potential branch manager
jobs.
In January 1971 Murphy had received a job offer from
an insurance company. He mentioned this fact and the
salary to Respondent's treasurer, Fulginiti. The latter depre-
cated the outside opportunity, telling Murphy that he was
being trained for a possible branch managership that would
pay a substantial salary. Murphy had received no repri-
mands or warnings while working for Respondent. He, like
Pisco, customarily worked 53 or 54 hours a week. Around
March 1971 he received a wage increase from $2.75 to $3.00
per hour. This was pursuant to Baron's recommendation.
Baron was his immediate supervisor. Murphy, who, as dis-
patcher, was in a position to have some observation of the
business or slack in the trips of the drivers and the paper
work of purchases and rentals of Respondent's machinery
and equipment, testified that, in May and June 1971, the
business appeared to be average. He states that the drivers
were kept busy and that various items, such as forklifts and
compressors, were all rented out during that period. Mur-
phy did also state that in April or May 1971, comptroller
Mucci had remarked to him that he, Mucci, did not think
that the Company was "doing the business we should."
Although, at the hearing , some of Respondent's witnesses
testified that Murphy was a supervisor,2 this contention is
not referred to in Respondent's brief. In any event, we find
that Murphy is an employee and not a supervisor as defined
in the Act.
Gallivan was a truckdnver and helper who also did
some reconditioning work on equipment. He was first hired
by Respondent in September 1970. He worked until Decem-
ber of that year when he went back to school. Later, he
asked Rich for his job back and he was hired again in
February 1971. While in Respondent's employ no one had
told Gallivan that his work or conduct were deficient or
were not what they should be.
Pisco, Murphy, and Gallivan are all relatively young
men and appeared to be contemporaries who had a number
1 One of Respondent's regular suppliers
2 Rich stated that Murphy was assistant sales manager . Murphy testified
credibly that he had never been so informed . Baron testified that Murphy
was a supervisor because he told drivers to deliver items to various sites and
would take orders from customers over the telephone, write up the order,
check on the availability of the item, and then assign the delivery of the item
to a driver.
LOGAN EQUIPMENT CORP. 387
of things in common. Confirmatory of this observation is
the testimony of Pisco that, while he was friendly with all
the employees, he Murphy, and Gallivan usually had lunch
together. Murphy, whose work was in close contact with the
drivers, testified that whenever possible he arranged deliver-
ies so that some of the drivers would be back at the plant
around lunchtime so that he and the others could eat togeth-
er. He stated that normally, when at all possible, he had
lunch with Pisco and Gallivan.
Siraco is an employee who principally preformed me-
chanical-type work and related tasks at Respondent's fa-
cility in Boston . He was an older man than either of the
three men previously mentioned . He worked in a shop
where he evidently had tools and related equipment. This
shop or paint shop, as it was designated, was some distance
away from the office and was in an area at the side of
Respondent's yard.
Murphy stated that in the period prior to June 25, 1971,
he and other employees would frequently discuss the bene-
fits and drawbacks of getting into a union. They customarily
did this in Siraco's shop in order to minimize the chance of
being overheard. At the beginning, Pisco was not a part of
these discussions, because, although Murphy and the others
were good friends of Murphy, they realized that Pisco was
close to the Rich family and was on a "best friends" basis
with Rich, Jr. This situation, however, changed on Thurs-
day, June 24, 1971, when Pisco came into the office after a
delivery. Murphy was at the counter talking to employee
Francis. Apparently no one else was in the office at the time.
Pisco came over and said that he thought the men should
get themselves into the Union because there were too many
benefits to be gained and that they would be crazy to over-
look them. Neither Murphy nor Francis made any com-
ment, because, according to Murphy, he still was not sure
about Pisco's reliability in this area, owing to Pisco's friend-
liness with the Riches.
That same day, June 24, Murphy, Pisco and Gallivan
had lunch together at a place called Barney's in East Boston.
They discussed the Union and medical and insurance bene-
fits connected therewith. It was decided that they would
contact the union representative that Friday or Saturday
night. Pisco said, however, that they should talk to Rich and
tell him of their intention. The others were strongly against
this idea of informing Rich and said they would all be fired
if this was done.3 After lunch, Pisco and the others returned
to work for the balance of the day.
On Friday, June 25, 1971, Pisco came to work and
made deliveries by truck.4 He returned around 10 a.m. and,
seeing Rich in the area outside of the office, he approached
Rich, telling him that he, Pisco, had a problem and would
like to discuss it with Rich. Rich agreed to hear what Pisco
had to say. According to Pisco, the ensuing conversation
3 Pisco mentions another meeting about June 24 . He states that he, Mur-
phy, Gallivan , Francis, Siraco, and Diaz met in Siraco's shop Diaz, an
employee, was present only momentarily. The others talked about the Union.
Pisco said he wanted the Union but thought that they should talk to Rich
about it. The indication is that this meeting may have preceded the luncheon
meeting of Pisco, Murphy and Gallivan at noon on June 24. Thus, Pisco, in
describing the latter session states that "we again discussed the Unionl
I said we should tell Mr. Rich about it "
4 His hours were 7 a.m. to 5 p.m., and to 12 noon on Saturdays
began outside Siraco's paint shop and continued with the
participants walking and being then in the door area and
hall leading to the office and counter areas of the office
building. Pisco told Rich that he trusted Rich and that he
had a problem that he felt he should discuss with Rich. Pisco
continued and said that the general attitude of the men in
the plant is that they would like to join the Union. Rich
asked, why, who was involved, and what had been done
regarding joining the Umon. Pisco said, "I can't tell you
who is involved. I put myself in the middle of it and I can't
give you any names ." During the conversation Rich was
walking toward the door leading to the hallway and office
area. Pisco was with him. At the door area, on the room side,
Fulginiti joined Rich and Pisco, having been called by Rich.
Rich said to Pisco, "Tell him what you said." Pisco then
turned to Fulginiti and said, "The general attitude is that the
men would like to join the Union." Fulginiti asked if Pisco
had spoken to the union business agent and Pisco said, no.
Fulginiti then asked who started it and who was involved.
Pisco replied that he was in the middle, that he did not want
to get anyone else involved and that he himself was already
involved. During the foregoing conversations with Rich,
Pisco states that Rich became agitated and angry and said
in loud tones, "I don't care what you do. If you want to join
the Union, go ahead and join the Union. If you join the
Union, you'll be out that front door within a year." Baron
joined the group at some point after Fulginiti. He asked
Pisco, who started it, who is involved, who talked with the
business agent. According to Pisco, Rich, Fulginiti, and
Baron all asked about the same questions and all spoke in
more than a normal tone of voice. Pisco states that the
episode was one of considerable confusion since all three
members of management began asking him questions and
speaking at the same time. Several names of employees were
mentioned during the episode by the management people
including Francis, Murphy, and Gallivan but Pisco replied,
"I don't know, I can't tell you.... "Pisco states that he
mentioned no names of employees as being involved. He
states that the incident occupied 15 or 20 minutes. Pisco
testified that the reason he had told Rich about the union
movement among the men and his own involvement was
because he trusted Rich and because Rich's son was his best
friend. Pisco states that he felt close to the Rich family and
he was "obliged" to Rich and did not want to do anything
behind his back or, on the other hand, to hurt the chances
of getting a union in the shop.
Thereafter, Baron gave Pisco a delivery assignment
and the necessary papers. Pisco left and made the delivery.
After lunch on the same day, June 25, Pisco saw Baron
talking to Frank Siraco in the latter's paint shop. Pisco was
about 10 feet away and he testified that he heard Baron
"plainly" say to Siraco, "Do you know who started it,
Frankie, who's involved?" Siraco replied, "I know who's
involved, I don't know anything about it." Baron then went
toward the office.
Murphy testified that on the morning of June 25 he saw
Pisco and Rich enter the doorway of the building where
Murphy worked. They were about 25 feet away from Mur-
phy. The latter states that he heard Pisco tell Rich that the
men wanted to join the Umon and he felt that it was only
fair that he should tell Rich because he did not want to do
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anything secretly or behind his back and wished to play
square with Rich. Murphy heard Rich call Fulginiti and
Rich told the latter that Pisco had just told him that the men
were serious about the Union and wanted to join it. Fulgini-
ti then, according to Murphy, asked Pisco who wanted the
Union and why did they want it. He heard Rich ask why
did he want the Union. At some point Murphy saw Baron
join the group. Murphy states that he did not hear ev-
erything that was said because at some points the conversa-
tion was in loud tones but at times the voices receded.
Shortly afterwards, around 11 a.m., Baron came to where
Murphy was and asked, "What do you know about this
union stuff?" Murphy said, "Well, yeah, I know they have
been walking outside for 2 or 3 months [a reference to the
pickets]" Baron said , "no, no, no, this union thing who
started it? Have you been approached by anybody?" Mur-
phy replied that nobody had approached him, "it's just
general talk." Baron again asked, "who approached you."
Murphy once more said , "It was just general talk among the
guys. They were just curious about the union." Baron quer-
ied, "what's to be curious about?" Murphy said "well, you
know, the difference in wages that the union people get, sick
leave, benefits, etc." Baron paused for a minute, said noth-
ing, and stood there. He then said, "I think I know who's
at the bottom of this." Later, around 11 a.m., when Baron
and Murphy were in the office,5 Baron said, "It's not that
busy that we couldn't just lay Joe Pisco off." Prior to this,
Murphy had not heard Baron mention anything about a
possible layoff of employees.
About 15 minutes after the above conversation, Mur-
phy heard Baron speak to comptroller Mucci on the tele-
phone. Baron told Mucci that he wanted to draw a check.
Mucci came to the office shortly thereafter and spoke with
Baron . Then they went to the timecard rack, took out
Pisco's card, and put it back. That same afternoon, Friday,
June 25, Murphy heard Baron tell Pisco that the latter was
being laid off. Pisco was laid off that day at the end of his
shift. Baron told him that it was because of "lack of work."6
Murphy and Gallivan both came to work at their usual
time on Monday, June 28, 1971, and went to work. Around
noon, Baron told Murphy that he was being laid off because
things were slow and there was a lack of work. When Galli-
van, who had been out on a delivery trip, returned around
2:30 p.m., Baron told him that he was going to be laid off
for lack of work. Gallivan and Murphy were both terminat-
ed on June 28.7-
Rich testified that it was not until January 12, 1972, the
date of the instant hearing, when Pisco and the others testi-
fied, that he became aware that they had been interested in
the Union. Rich admits that on the morning of June 25,
1972, he had a conversation with Pisco but he denies that
either Pisco or he mentioned the Union. According to Rich,
Pisco had told him in the office on June 25 that he, Pisco,
had a problem that he wished to discuss with Rich. Rich
agreed to hear him and they stopped out in the yard near
s The office was the customary place where both of these men worked
6 Respondent's workweek ends on Wednesday evening and begins on
Thursday morning. Thursday is the normal payday.
7 Baron told Murphy that if he needed a recommendation or a reference
that he should not hesitate to use Respondent as a reference . Murphy subse-
quently did so
the paint shop. What ensued, as described by Rich, was that
Pisco said, "I wanna-I'd like to get back to the RW-10
situation."8 Rich told him to go ahead and explain the mat-
ter. Pisco then described how the RW-10 had slipped off the
truck. Rich expressed doubt that the equipment could have
slipped off. He states that he, Rich, "got pretty hot" about
the matter and called to Fulginiti to come and listen to
Pisco's account of the RW-10. Fulginiti came over and then
Baron, as Pisco repeated what he had told Rich about the
RW- 10. Rich then left for an appointment, and that was the
extent of the incident.
Fulginiti testified that he had heard Rich's testimony
regarding the conversation with Pisco on June 25 and Ful-
giniti asserted that Rich's testimony was accurate. Fulginiti
states that after Rich left, Fulginiti said to Pisco that "I
[Fulginiti] didn't like the sound of the goings on and I was
going to talk to him later about it." On cross-examination,
when Fulgmiti was asked about his last quoted remark, he
said, "what I meant by it is that I didn't like the idea of
ruining equipment ... or damaging equipment." Baron, a
witness for Respondent, testified generally that he had nev-
er questioned employees about their union sentiments or
about the union sentiments of other employees. Baron did
not refer to the June 25 incident involving Pisco, Rich,
Fulginiti, and himself or what took place when Baron was
present.
Based on our observation of the witnesses and for other
reasons in the record, the Trial Examiner credits Pisco's
account of the June 25 incident with Rich as previously set
forth above. Additionally, Pisco expressly stated that he did
not discuss the RW-10 matter with Rich on that date. We
credit this testimony.
It is uncontroverted that the RW-10 incident occurred
3 weeks before June 25. Thr RW-10 weighed over a ton. It
had metal wheels. The base of the hydraulic lift on the
tailgate of the truck in which Pisco delivered the RW- 10 was
metal. At the delivery site the RW-10 slipped and was dam-
aged. According to Pisco, a small pipeline on the RW-10
was damaged and he fixed it. Following the accident, Re-
spondent altered the lift area of the truck by having holes
drilled thereon and bolting a large timber to the surface and
this, according to Pisco, would prevent any future slipping
off of equipment. Respondent does not controvert the fore-
going description of the incident and its aftermath. Follow-
ing the accident, Rich had asked Pisco how it had
happened. Pisco told him, as described above, and appar-
ently this had led to the installation of the bolted timber on
the lift to prevent future slippage. Rich states that after the
accident he did not discipline Pisco or "confront" him
about the accident. Rich said that he does recall having
talked to Pisco about the matter some time prior to June 25
but that Pisco told him he did not know how the incident
occurred. Rich testified that the RW-10 had been damaged
but he did not controvert Pisco's testimony that the damage
was slight nor did Respondent offer evidence on this point
in the form of repair bills, parts, or labor regarding repair
of the machine. Rich was also asked:
8 The RW-10 is a piece of equipment like a small or baby steamroller.
Three weeks previously Pisco had delivered an RW-10 by truck to a custom-
er. At the delivery site the RW-10 had fallen or had slipped off the truck and
sustained some damage.
LOGAN EQUIPMENT CORP. 389
Q. Did you hear Mr. Pisco say the machine was able
to be used on a rental basis that day?
A. Mr. Pisco said that.
Q. That is untrue?
A. I don't know if it was used or not, sir.
In our opinion, it is unlikely that an employee like
Pisco, 3 weeks after a minor accident, for which he was
neither disciplined nor warned, and after his employer had
installed a safety device on the truck to prevent future sim-
ilar occurrences (thus indicating to some degree that the
equipment rather than the employee had been the critical
factor in the accident), would suddenly, for no apparent
reason, on June 25, tell President Rich that he had a prob-
lem, the accident of 3 weeks before, and proceed to discuss
it with Rich. Moreover, if this unlikely event occurred, why
would either party "get pretty hot" about it and speak loud-
ly? From Pisco's standpoint no one had disciplined or
warned him or made any threat to him. No one had said that
the Company was considering docking his pay for the dam-
age or taking other action. Why would Pisco exhume this
matter, already about a month old, with Rich on June 25,
and get into a back and forth hassle with President Rich?
Why would Rich "get pretty hot" about the matter on June
25 when neither he nor anyone else had even mildly rebuked
Pisco immediately after the accident or for 3 weeks thereaf t-
er? Why would it be necessary for Rich to summon Fulginiti
and Baron to hear Pisco tell how the RW-10 had slipped off
the truck when Pisco had told the same story after the
accident? 9
In crediting Pisco regarding the June 25 conversation
with Rich, we have also considered Siraco's testimony. Un-
like Pisco, Murphy, and Gallivan, who had been discharged
by Respondent, employee Siraco was still employed at the
time of the hearing . As a witness , he impressed us as a man
who would have preferred to have been almost any other
place or in any other role than a witness in this hearing. His
attitude was of a man in the middle and he did his best to
stay that way in his testimony. Although subpoenaed and
called by the GC as a witness, Siraco did not impress us as
a witness who testified with any embellishment or bias and
he was not , in our opinion , hostile toward Respondent or
overly eager to help the GC. His testimony impressed us as
truthful as far as it went.
Siraco testified that three or four employees had asked
his opinion about the Union. The witness said he could not
remember who the people were or exactly when this oc-
cuned.10 Siraco states that he told the men they were crazy
to get involved in a union because no private business want-
ed to have a union . His comment may have been particular-
ly directed to Pisco's idea that Rich should be told of the
employees' desire for a union.
On June 25, Siraco stated that he did not hear what
Rich and Pisco were saying to each other but he states: "I
heard yelling; and when I hear trouble, I go the other way."
As we have previously indicated, if, as there surely was,
9If we prescmd from Plsco's testimony that he had told Rich how the
accident occurred well before June 25, the alleged great interest in the story
on the part of Rich , Fulgmrti, and Baron on June 25 can be explained only
if no supervisor , for 3 weeks, had asked Pisco how the accident happened or
if Pisco had never before given any explanation about the accident . Both of
these possibilities seem highly unlikely.
10 In our opinion , the occurrence was probably on June 24 and the group
included Pisco , Murphy, Gallivan and one or two others.
there was "yelling" and "trouble" between Rich and Pisco
on June 25, these facts are much more consistent with
Pisco's version of his conversation with Rich than the
latter's version. In our opinion, although it is not essential
to so find, Siraco knew and sensed what the yelling and
trouble was all about and that is why he regarded it as real
"trouble" and went the other way. He knew on June 24 that
Pisco was in the union group and since Siraco had been
present at that June 24 employee gathering he had heard
Pisco advocating that Rich should be told that the men
had decided to join the Union. The "fireworks" on
June 25, between Rich and Pisco, therefore, were not
hard to diagnose, particularly for someone like Siraco,
who had previously told his fellow employees that
no private employer wanted to have his employees union-
ized. This is so, even assuming, that Siraco had heard none
of the words being "yelled" about on June 25 between Rich
and Pisco. A minor accident, 3 weeks before, for which
Pisco, the employee involved had not even been criticized
or reprimanded, would surely not give rise to such "yelling"
and "trouble" on June 25 that an employee like Siraco
would seek to avoid it and go the way.
The Pisco-Rich conversation on June 25 had begun at
about 10 a.m. and lasted about 20 minutes. In the afternoon
of that same day, June 25, Juszkiewicz, who was
Respondent's service manager and vice president in charge
of service, called Siraco over to the side of the yard. He said
to Siraco:
"What's going on over there?
[Siraco] I don't know.
[Juszkiewicz] Are you sure you don't know?
[Siraco] Yes, what do I know. Nobody talks to me, only
once in a while.
[Juszkiewicz] Well, you don't know and no one talks to
you, but I may have the right one.
Juszkiewicz admits asking Siraco what was going on and
that when Siraco said "nothing," Juszkiewicz said "there's
got to be something going on." According to Juszkiewicz,
Siraco then told him that "the bosses" and Pisco had been
yelling at each other. Juszkiewicz was asked:
Q. What prompted you to go to Siraco in the first place
and ask him what was going on?
A. I don't know. I got a feeling there was something
going on and the place is close enough that you can get a
feeling. Juszkiewicz testified that he himself had heard no
yelling.
The Examiner credits Siraco's testimony of the inci-
dent. We are satisfied that it was sometime in the afternoon
of June 25, after the morning incident between Pisco and
Rich, that Juszkiewicz approached Siraco. Although Jusz-
kiewicz had not been a participant in the morning's incident
between Pisco and Rich, we find it difficult to believe that
he had not been advised thereafter by either Rich, Fulginiti,
or Baron, or by all of them, of what Pisco had told Rich
about the employees' interest in having a union. Pisco had
plainly revealed to Rich that he, Pisco, was involved in the
Union but he had refused to give the names of the other
employees involved. That afternoon, then, Juszkiewicz
came to Siraco and asked him what was going on.
Juszkiewicz testified that he went in the yard, called
Siraco over to the side, because Juszkiewicz had "a feeling
there was something going on...." About what kind of
"something" did Juszkiewicz have a feeling? If it was some-
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thing concerning management policy or about the operation
of the business or the sale, servicing, or rental of equipment,
Juszkiewicz, vice president and service manager, surely did
not have to go out in the plant yard and ask a service
mechanic like Siraco, "what's going on." He could secure
such information from his fellow officers, Rich, Fulginiti,
and Baron. It is rather striking that it was after Pisco, on
June 25, had told Rich of Pisco's involvement in the Union
and that other unnamed employees were also involved, that
Juszkiewicz sought out Siraco to ask him what was going on.
This was a rather transparent effort to elicit from Siraco
information regarding the union movement. Siraco's an-
swers and their evasive nature confirm that both he and
Juszkiewicz knew what the latter meant when he asked what
is going on. Juszkiewicz did not preface his question to
Siraco by targeting the subject area. He did not say what is
going on about getting new compressor parts; or what is
going on about the delay in repairing the truck engine; or
similar specifications. Juszkiewicz simply asked what's
going on and pressed Siraco for an answer. Siraco never
asked what do you mean, or, what's going on where, or
about what. Both parties knew that Juszkiewicz was talking
about the Pisco-Rich occurrence that morning when it was
revealed to management that some employees were in-
volved in a union movement. Siraco pleaded ignorance to
Juszkiewicz, being convinced that the whole subject spelled
trouble and having warned his fellow employees previously
that no employer wanted a union and that they were "cra-
zy" to become involved in a union."
Rich testified that the decision to terminate Pisco, Mur-
phy and Gallivan on June 25 has been made at a meeting
of Respondent's executive board on Monday, June 21, 1971.
The background of the meeting, as described by Rich, is
that Respondent, at the beginning of 1971, had projected a
65-percent increase in business for 1971 over 1970. On the
basis of this projection, Rich stated that in January 1971
Respondent, at an industry convention, made commitments
to manufacturers for various items of equipment and, usual-
ly, the commitments were for "tentative quantities" of such
equipment.
During 1971, however, Respondent's business, while
above that of 1970, was substantially below the 65-percent
increase that had been projected.12 As a result of this failure
to achieve as great an increase in business as had been
projected and because commitments had been made for
equipment in January 1971 based on the projected increase
ii As we have previously seen, Pisco, on the morning of June 25, had told
Rich that he and the other employees wanted to join the Union. However,
despite efforts by Rich , Fulginiti, and Baron , Pisco had refused to give the
names of employees, other than himself, who were involved. Quite evidently
in an effort to get more information on the union activity, and those involved,
Baron , later that morning , asked Murphy, "what do you know about this
union stuff ; and, "who started it," and "who approached you." Baron also
spoke to Siraco and asked him, who started "it" and who is involved. That
afternoon Juszkiewicz queued Siraco as to what was going on, as above
described.
12 At Boston , the month -by-month increase in total business in 1971 as
compared with the same months in 1970 was as follows Jan + 79 6 percent,
i e January 1971 was 79 6 percent above January 1970 and more than 14
percent above the 65-percent projection for 1971 Feb + 13 percent, i e
January 1971 was 13 percent above January 1970 but 42 percent below the
65-percent projection for 1971 March + 22 percent; April + 22 7 percent,
May + 14 9 percent; June + 14 2 percent, July + 26 6 percent, Aug + 4 7
percent, Sept + 5 2 percent, Oct + 9 5 percent, Nov + 4 9 percent, and
Dec. + 8 4 percent
in business , Rich stated that early in the year, and thereaft-
er, Respondent's cash flow was squeezed and was adversely
affected. Although comptroller Mucci did not testify, Rich
stated that for several months prior to June 1971 and in the
following months Mucci had spoken to him and to other
directors about the Company's poor cash flow and that
something should be done about it. Finally, as a result of all
this, a meeting of the Company's executive board was con-
vened on Monday, June 21, Present were Rich, Mucci,
Fulginiti, Juszkiewicz, and Baron.
In preparation for this meeting, Rich stated that he
came to the office the morning of June 21 around 6 or 7 a.m.
and worked on reports. He apparently worked on these
reports for some time since he stated that he had the com-
pleted reports at the executive board meeting that was held
late that same afternoon in the same office. The meeting
lasted about 30 minutes or more.
The reports referred to were multitudinous personnel
report forms on each employee that Rich had devised and
maintained . No employee had been aware of such reports
or the ratings or comments made thereon by Rich. Some of
the officers were aware that Rich did maintain these reports
on employees but the reports were filled in and maintained
exclusively by Rich. The reports included numerical ratings
of each employee based on various listed factors. Mucci
customarily made the necessary mathematical computa-
tions based on the various ratings that Rich had placed in
the respective reports.
At the meeting of the executive board on June 21, 1971,
after consideration of the point ratings of the employees and
the personnel reports prepared by Rich, and after some
discussion, Rich stated that it was decided to lay off four
employees for lack of work and to transfer one employee.
Rich testified that he thereupon ordered Baron to lay off the
four men and transfer the one "by the end of the week" and
when asked, at the hearing, if "by the end of the week" he
meant "Friday," he said, "yes, sir." Baron also testified that
this was what he understood. According to Rich, the four
men named for layoff at the June 21 meeting were Pisco,
Murphy,, Gallivan, and Pascucci, with Francis to be trans-
ferred.13
Some observations are in order regarding
Respondent's evidence with respect to its business position
in 1971. The evidence that Respondent, in December-Janu-
13 We know little about Pascucci except that Rich states that Pascucci had
not shown up for work In an affidavit by Rich which is in evidence there
are a few more facts about Pascucci Since these facts are not in dispute, we
note them. Rich states in the affidavit that Pascucci was a helper and appren-
tice welder. He worked for Respondent in August and September 1970; he
returned on April 20, 1971; he worked 2 full weeks in May 1971 and was out
2 weeks in May 1971, he worked in June 1971 but "had been out on June
21, 22, 23, 24, 25, 1971 . Pascucci was sent a letter on June 25 , 1971, notifying
him of his lay off." In the Examiner's opmon , Pascucci's attendance record
alone would appear to have made him a fit subject for a layoff and regardless
of whether there was or was not a lack of work. Pascucci 's layoff appears to
.ie limited to its own facts and to be in a different category from the other
layoffs.
Rich 's affidavit also furnishes some details about Francis who was trans-
ferred No one disputed anything about Francis so we note Rich 's statements
on this score. Thus,
During the week ending July 15, 1971 Peter Francis was transferred to
our branch in Londonderry , N H. He was made an assistant branch
manager there . In East Boston he worked as part time driver and helper.
Our manager at our Berlin, Conn. branch left and we shifted our Lon-
donderry manager to Berlin and Francis to Londonderry as assistant
manager there.
LOGAN EQUIPMENT CORP.
ary (1970-1971) had projected a 65-percent increase in busi-
ness for the year 1971, consists of Rich's testimony that that
was the projection. This might be sufficient if we had found
Rich to be a reliable witness as, for instance , regarding
events of June 25, 1971, in which he, Pisco, and others were
involved.
It is apparent that a 65-percent projected increase in
business is substantial, and, relative to such a projection,
even a 50-percent increase in business over the prior year
can be claimed to equate with a decrease in business justify-
mg a layoff, since a 50-percent increase is 15 percent below
the claimed projection. If the projection had been asserted
to be an 80-percent increase then, of course, even a 65-
percent increase in actual business could be equated with a
decrease.
Respondent will no doubt assert that the authenticity
of the 65-percent projection is demonstrated by the fact
that, in January 1971, Respondent made "commitments" to
purchase equipment based on its 65-percent projection.
Again, the evidence regarding commitments is Rich's testi-
mony. It is not clear how firm or definitive these commit-
ments made in January were. Rich testified that the com-
mitments he was describing were usually commitments for
"tentative quantities" of the equipment for which commit-
ment was made. It would be our opinion, that a commit-
ment, for a tentative quantity of an item, would be quite
different insofar as imposing an ironclad contractual pur-
chase obligation on the purchaser than would be a commit-
ment for a fixed and definite quantity of an item. A firm
contract in January to purchase 5 compressors is different
from a commitment to purchase 2 or 20 compressors during
the year; and different from a commitment or firm contract
to purchase 2 compressors with an option to purchase up to
18 more compressors within the next 6 months. Presumably,
since Respondent asserts that in January it made commit-
ments for equipment on the basis of its projection of a
65-percent increase of business, there would be some kind
of a ratio between certain items of equipment to be pur-
chased and a 65-percent increase of business. If, for in-
stance , a 65-percent business increase equated to 20 new
compressors, concrete evidence that a firm purchase con-
tract had been signed in January for 20 compressors would
fully support Respondent's position. The position would
also find support if the compressors committed for were in
an amount geared to only, for instance, a 40-percent in-
crease in business , since the actual increase in 1971 was less
than 40 percent. In either instance, there would be concrete
evidence supporting the contention that Respondent had
overcomnutted itself and had thus impaired its cash flow.
And, of course, actual figures of cash flow in 1971 as com-
pared with 1970, would be direct evidence of Respondent's
contention that its cash flow position in 1971 was critical.
The record, however, does not contain evidence of the fore-
going types.14
14 In our opinion, the matter of the 65-percent projection , the commitments
for equipment, and the cash flow position were part of Respondent's princi-
pal affirmative defense to the General Counsel's position that three men were
discharged because of what happened on June 25 when Pisco told Rich that
Pisco and other employees wanted a union. While the General Counsel has
not proved that Respondent did not have a projection of a 65-percent in-
crease or did not have commitments or did not have a poor cash flow, these
matters were particularly within Respondent 's control Respondent's intro-
duction of evidence to support these economic contentions which constituted
391
Another aspect of the economic picture that merits
some attention is that this is not the case of an employer
who had hired additional employees in 1971 on the basis of
its projection of a 65-percent increase in business for that
year and then laid them off when the increase in business
was less than 65 percent. Murphy was hired in September
1970. This apparently had nothing to do with 1971 projec-
tions since the latter had not been made when Murphy was
hired. He was discharged on June 28, 1971. Respondent's
total business for May 1971 was 17.3 percent greater than
May 1970 and since May 1970 had been 56 percent higher
than May 1969, business in May 1971 was 73.3 percent
higher than May 1969. June 1971 was 17.2 percent higher
in business volume than June 1970.15
While it is true that Pisco, unlike Murphy, had been
hired in 1971, Pisco's hiring near the end of March 1971 was
at a time when Respondent was already aware that it was
operating well below its projection of a 65-percent increase
in business. Thus, business in Boston in February 1971 was
52 percent below the projection and in March and April it
was approximately 43 percent below. Respondent, there-
fore, apparently did not hire Pisco at a time when it knew
that it was doing 65 percent greater business than in 1970
or that it was operating at the level it had projected for 1971.
Gallivan had origninally been hired in September 1970. He
later returned to school and was hired once more by Re-
spondent in February 1971, a month when the Boston busi-
ness was 52 percent below the projected increase.
Despite the questions in our mind about Respondent's
explanation of its economic position in 1971, as discussed
above, we accept the testimony of Rich that by June 21,
1971, Respondent was concerned with its failure to increase
its business in 1971 to a degree at least approximating its
65-percent projection. We also accept the testimony that by
that time Respondent was concerned with its cash flow. We
do not credit the testimony of Rich, Fulginiti , and Baron
that on June 21, 1971, the executive board decided that
Pisco, Murphy, and Gallivan should be laid off. Nor do we
credit the additional testimony of Rich and Baron that at
the June 21 meeting , implementing the board decision, Rich
told Baron to lay off the three men aforementioned at the
end of the week, i.e. Friday, June 25.16
an affirmative defense was principally limited to the testimony of Rich. As
we have pointed out above, Rich's testimony leaves many questions unan-
swered in the economic areas in which he testified and places the major
burden upon Rich's credibility as a witness
15 We do not have the percentage increase of June 1970 over June 1969.
Percentages on increases in business in 1971 at the Boston facility alone have
been previously set forth
16 The transfer of Francis to New Hampshire and Pascucci 's termination
are not in issue. What was or was not done concerning them relates to their
particular facts Rich testified that there was a vacancy in one. of
Respondent's other offices The other office had requested Francis a month
previously and as Rich said, "we just had not let him go and finally, we let
him go up there." Evidently the decision was made on June 21. Since the
transfer involved a promotion for Francis and an increase in wages, and since
the office to which he was transferred had been operating with a vacancy for
some time , we do not know how this move improved Respondent's cash flow
position But we make no issue of Francis and his transfer since it is not an
issue before us Pascucci's termination , in our opinion, is also confined to its
own particular facts He had a very poor attendance record which we have
described previously. He did not report for work at all on June 21 , 1971, or
for the balance of the week and had not communicated with Respondent on
this absence Rich's comments on Pascucci in a personnel report refer to a
"Problem" that Pascucci had and his recovery therefrom. Rich , in the same
Continued
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is our opinion that on June 21, Rich and the others
did discuss the Pascucci and Francis matters and did dis-
pose of each of these cases on its own facts as afordescribed.
We believe that there was discussion of a potential layoff
and of employees and their point standing. Under Rich's
report and point system, Pisco, Murphy, and Gallivan had
the lowest standings . In the reports on Pisco, Murphy, and
Gallivan which Rich wrote on June 21, 1971, he made com-
ments and recommendations . This was part of the material
he read and presented at the meeting. None of his com-
ments or recommendations , although they were not particu-
larly laudatory, say anything about laying off the particular
employee or terminating him despite the fact that Rich, the
dominant officer in the Company, not only wrote and main-
tained the personnel reports but was, in our opinion, the
man who made the basic decisions.
Our basic finding regarding the June 25 meeting is, of
course, that no decision was made at that time to discharge
Pisco, Murphy, or Gallivan either on June 21 or at any
definite future date. We do not credit the testimony that it
was decided on June 21 to lay off the three men and that
Rich told Baron at that time to make the layoffs at the end
of the week, Fnday, June 25.
Among the reasons for our finding are these: As previ-
ously indicated, we are convinced that Rich was not only
president and majority stockholder (he was), but that he was
the chief executive officer and dominant person in Respon-
dent. Our observations of Rich and Baron, their personali-
ties , and how they acted and responded as witnesses, also
convinces us that, on any company matter, if Rich told
Baron to do something, the latter would do it and that he
would not take it upon himself to ignore a directive from
Rich.
Rich and Baron both state that on June 21 Rich told
Baron to lay off Murphy, Pisco, and Gallivan at the end of
the week, Friday, June 25.'7 The only one of the three who
was laid off on June 25 either by Baron or by anyone else
was Pisco . Both Murphy and Gallivan worked on June 25
and on June 28. Murphy worked in the office with Baron;
Murphy was present when Baron told Pisco he was being
laid off. Not a word was said to Murphy or Gallivan on June
25 about their layoff. When asked at the hearing why he had
not laid off Murphy and Gallivan on June 25, Baron stated
that "they had things to do." He was then asked what each
of them had to do that necessitated their remaining on the
payroll until June 28. Baron replied, " I can't recall."
It is the Examiner 's opinion that if it had been decided
on June 21 to lay off Pisco, Murphy, and Gallivan, and if,
on June 21, Rich had instructed Baron to lay off the three
men by the end of the week, Friday, June 25, Baron would
have made the three layoffs, as ordered, on June 25. With-
out even discussing the matter with Rich, Baron ignored the
alleged order and did not lay off Murphy and Gallivan until
June 28. In view of the subordinate relationship of Baron
to Rich, which we have previously discussed, we are con-
vinced that the fact that Baron made no layoff of Murphy
and Gallivan on June 25 and took no steps in that direction
report on Pascucci wrote "handle with kid gloves ." What all this means we
do not know but Pascucci and his termination , in our view , is sui generis and
has no relevancy to the issue of Pisco , Murphy, and Gallivan.
17 Baron stated that when Rich gave him this order at the meeting , he said,
"Yes, sir... .
is persuasive evidence that on June 21 Respondent had
made no decision to lay off Pisco, Murphy, or Gallivan on
June 25 or at any other definite date and that on June 21
no order had been given to Baron to lay off the three men
on June 25. We find confirmation for this conclusion in the
testimony of Vice President Juszkiewicz, one of
Respondent's witnesses , who testified that he was present
during the entire executive board meeting on June 21. He
said that he remembered no orders or directives being given
at the meeting and as far as he was aware Rich had not
ordered "anyone to do anything."18
The question then arises, if no decision or order was
arrived at or issued on June 21 to lay off Pisco, Murphy, or
Gallivan on June 25, how is the layoff of Pisco on the
afternoon of June 25 explained? In our opinion, Pisco was
laid off on June 25 because on the morning of that day, as
previously described, he told Rich, Fulginiti, and Baron that
he and other employees, whom he refused to name, had
decided that they wanted to have a union. A heated discus-
sion with raised voices ensued. After this incident, Baron
came back to the office and asked Murphy what he knew
about "the union stuff, and who had started it." Murphy
gave evasive answers but said nothing to show that he was
opposed to the idea of a union. He did in fact admit that
"the guys," a phrase which obviously included himself, were
curious about the Union because of the difference in wages
and sick benefits that union people received. Following a
pause, Baron said, "I think I knew who's at the bottom of
this." 19 Somewhat later that morning, Baron remarked, "It's
not that busy that we couldn't just lay Joe Pisco off." Later,
around 11:15 a.m., uncontroverted testimony by Murphy
shows that Baron called Mucci, the comptroller, on the
telephone and said that he wanted to draw a check. Quite
evidently in response to this call, Mucci came to the office
a few minutes later. He and Baron then took Pisco's time-
card out of the rack, looked at it, replaced it, and left. In our
opinion it is a reasonable inference that thereafter Mucci
prepared Pisco's final check which the latter received at the
end of that day when he was laid off.20
18 Consistent with our view that a potential future layoff was discussed on
June 21 but that no decision or directive occurred that Pisco, Murphy, or
Gallivan were to be laid off at that time or any other definite time , Juszkiew-
icz stated that as a result of the meeting he expected that there would be a
layoff but he did not know how many . He was asked.
Q. You had no idea who was going to be laid off?
A. No, sir.
19 We submit that the obvious candidate for being at the bottom of this
union move among the employees was Pisco , who had Just told Rich , Baron,
and Fulginiti that he and the other employees wanted a union . A spokesman
is a likely suspect as being the instigator or leader in the activity for which
he speaks.
20 Since Respondent's workweek ended on Wednesday night and its pay-
day was Thursday, Pisco's layoff on Fnday and the preparation of his check
obviously required Mucci 's attention on that day. Mucci was a member of
Respondent's executive board and had not only been present at the June 21
meeting, but had played a prominent role therein, explaining the critical cash
flow situation and so forth . If a decision had been made and an order issued
on June 21 to lay off Pisco , Murphy, and Gallivan on June 25 , Mucci would
have known it. As comptroller, he probably would have had the three pay-
checks ready on June 25. Instead of this, however, we find that on June 25,
Mucci apparently acted only after Baron called him on the telephone, told
him he wanted to draw a check, and then Mucci came to the office , inspected
Pisco's timecard , and presumably later that day prepared Pisco 's terminal
check . This is consistent with our opinion that the decision to lay off Pisco
on June 25 was made on June 25 after the Pisco-Rich session that morning.
Also, since neither Baron, Mucci, nor anyone else said or did anything about
LOGAN EQUIPMENT CORP.
The next aspect to consider is the layoff of Murphy and
Gallivan in the early afternoon of June 28. Baron testified
that on June 28 Rich asked him why he had not laid off
Murphy and Gallivan; Rich replied, "I told him I had some-
thing to do." Baron also stated that he told Rich he would
lay the men off that day.
Q. Was he [Rich] upset?
A. I don't recall.
We do not find this asserted casual and almost cavalier
ignoring of an alleged executive board decision and of
Rich's alleged order of June 21 to lay off all three men on
June 25 to be credible. It is, after all, Respondent's conten-
tion that the cash flow was critical and that the June 21
meeting met the problem by deciding on a prompt layoff
and, specifically, the layoff of Pisco, Murphy, and Gallivan
on June 25. Baron assertedly ignored this order as to Mur-
phy and Gallivan. We are not convinced.
As we have previously stated, we believe that there was
no decision or order on June 21 to lay off Pisco, Murphy,
or Gallivan on June 25 or at any other specific date. Pisco
was laid off on June 25 because on that day he revealed that
he and other unnamed employees wanted a union. On June
25, in our opinion, Respondent was still uncertain as to what
employees besides Pisco were actively associated with him
in the decision to have a union. There is, however, no doubt
of Respondent's interest and effort to obtain such informa-
tion. When, on June 25, he had made his union revelation
to Rich, Fulginiti, and Baron, they repeatedly asked him
who else was involved. Thereafter, in pursuit of this infor-
mation, Baron asked Murphy what he knew about "this
union stuff." On the same day, Baron asked Siraco who
started it and who is involved. Juszkiewicz endeavored to
draw Siraco out by asking him, "What's going on." As far
as any specific evidence is concerned, we do not know if
anyone told Respondent that Murphy and Gallivan were
involved in the Union with Pisco. But, in our opinion, the
normal and likely suspects, to people of normal intelligence
such as Rich, Baron , Fulginiti, and the other officers, would
be the fellow workers and employees who were friends of
Pisco and who regularly associated with him. Murphy and
Gallivan fitted this description. Pisco, Murphy and Gallivan
were three young men whose work brought them in daily
contact. They customarily went out to lunch together. They
quite evidently had a good deal in common . In the absence
of more definitive information as to who were the employ-
ees involved with Pisco in the union idea (and, as we have
seen , Respondent had certainly been trying to secure such
information) Respondent, in our opinion, had concluded,
by June 28, that Pisco's two- friends, Murphy and Gallivan,
were the most likely candidates." As a result of this belief,
Respondent, in our opinion, laid off Murphy and Gallivan
on June 28, 1971.
laying off Murphy and Gallivan on June 25, we are satisfied that the decision
to lay these two men off had not been made on June 21 or June 25.
21 If A, an employee , tells an airline official that he and other employees
are going to destroy an ai rport within the next few days and the police and
others then sought to ascertain the identity of others besides A who were
involved, they would , in our opinion , first focus their attention on A's fellow
employees and particularly those who worked in daily contact with A. If it
was known in the shop that B and C as employees were close friends of A
and regularly had lunch with him, B and C would certainly be sub ject to
suspicion and investigation.
393
We find that the terminations of Pisco on June 25,
1971, and the termination of Murphy and Gallivan on June
28, 1971, to have been due to Pisco's admitted union activity
and to the suspected union activity of Murphy and Gallivan
as being employees involved with Pisco in the espousal of
a union. Such terminations constitute violations of Section
8(a)(3) and (1) of the Act.
We also find as alleged in the complaint that on June
25, 1971, Respondent through its agents, Rich, Fulginiti,
Baron, and Juszkiewicz, interrogated employees concerning
union activity and that on the same date Respondent threat-
ened that employees would be out the door for their union
activity. All the foregoing conduct is found to be in viola-
tion of Section 8(a)(1) of the Act.
We do not find, as alleged, that Respondent threatened
to close its Boston plant if the employees joined or assisted
the Union.
CONCLUSIONS OF LAw
Respondent has violated Section 8(a)(3) and (1) of the
Act by terminating employee Pisco on June 25, 1971, and
by terminating employees Murphy and Gallivan on June
28, 1971.
Respondent has violated Section 8(a)(1) of the Act by
illegally interrogating and threatening employees on June
25, 1971.
Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affiramtive action.
Prior to the layoffs of Pisco, Murphy, and Gallivan in
June 1971 Respondent had 17 truckdrivers, helpers, and
mechanics in Boston. In June 1971 it terminated the three
men aforementioned and Pascucci. About the same time it
transferred employee Francis to New Hampshire. This left
a complement of 12 in Boston. Rich testified that at the time
of this hearing Respondent had seven employees in Boston.
He stated that one employee had been hired since Pisco,
Murphy, and Gallivan had been terminated and that man
was a specialist in electric pumps, work for which Pisco,
Murphy, and Gallivan had no qualifications. It would
therefore appear that, between the termination of Pisco,
Murphy and Gallivan Respondent's employment comple-
ment had been reduced by approximately five employees.
In the area of what might have happened, if Pisco,
Murphy, and Gallivan had not been illegally terminated on
June 25 and 28, 1971, the Trial Examiner would tend to
believe that they would have been laid off thereafter, at
some unknown date during the period when Respondent's
complement was reduced from 12 to 7, the latter being the
complement at the time of the hearing. Our belief would be
based on the low personnel point standing of these three
men on June 21, 1971, under Respondent's rating system,
which took into account length of service, versatility, and so
forth. We admit, however, that our foregoing opinion as to
what would have occurred and that these three men would
have been laid off is necessarily speculative and is not a
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sound basis on which to frame a remedy for the unfair labor
practices.22
Accordingly, it is recommended that Respondent be
ordered to offer reinstatement to their former or substan-
tially equivalent jobs to Pisco, Murphy, and Gallivan, with-
out prejudice to their seniority and other rights and privil-
eges, and make them whole for any loss of pay suffered from
the date of termination, June 25 and 28, 1971, respectively,
to the date of the offer of reinstatement, less net interme-
diate earnings. Any backpay is to be computed in accord-
ance with the formula in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. In the event that no former or substantially equivalent
jobs currently exist for the aforementioned employees, they
shall be placed on a preferential hiring list for employment
in the event such jobs become available within 12 months
from the date of this Decision. If the employees are placed
on the preferential hiring list in the foregoing circumstances,
the backpay obligation shall be tolled from such date.
RECOMMENDED ORDER 23
Logan Equipment Corp., its officers , agents, succes-
sors, and assigns, shall:
22 In the Lima Lumber Company case, 176 NLRB No. 90, aff 437 F.2d 455
(C.A. 6, 1971), a truckdriver loaded lumber on his truck carelessly , the load
subsequently shifted and the truck became stuck in the mud at the delivery
site ; the driver's employer was obliged to send another truck to haul out the
mired truck. The Employer warned the driver that if anything like that
happened again , he would be discharged. It also appears that this employee's
past record with this same employer was a poor one. The Employer then
questioned the driver about his prominent role in starting the Union and
discharged him A few hours later the customer to whom the lumber had been
delivered that morning came to the Employer and complained strongly that
the driver had dumped the lumber at the customer's site in a very scattered
and careless manner and that much of the lumber had been broken and
otherwise damaged . The Employer told the customer that he had already
discharged the driver a few hours before . The Trial Examiner found that the
driver had been discharged for his union activities and not because of the
customer's complaint to the Employer, as claimed by the Employer, since the
complaint was a few hours subsequent to the discharge The Trial Examiner
awarded backpay, however, only for the 2 or 3 hours from the time of
discharge to the time when the Employer received the customer 's complaint
and learned the extent of the driver's carelessness . The reasoning was that
in view of the Employer's prior warning to the driver of discharge for careless
work, the driver would have been discharged when the Employer learned
from the customer of this latest and serious dereliction The Board, however,
rejected this approach as conjectural and said that the question whether the
driver would have been discharged for lawful reasons was "conjectural and
there is no way to establish that this would clearly have occurred " The Board
stated that on the conjectural aspect, "the Respondent , rather than the em-
ployee, must assume the risk of uncertainty" since the lawful motivation and
discharge had been established and it was a matter of conjecture what would
have been lawfully done regarding the employee . Reinstatement was ordered
with backpay from the date of discharge to the date of the offer of rein-
statement.
1. Cease and desist from:
(a) Illegally interrogating or threatening employees
with regard to union or concerted activities.
(b) Discouraging union or concerted activities of its
employees by discriminatorily terminating employees be-
cause of their union or concerted activities or because Re-
spondent believed that they were engaged in such activities.
(c) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to Joseph A. Pisco, Jr., Paul Murphy, and
Paul Gallivan immediate and full reinstatement to their
former or substantially equivalent jobs, without prejudice to
their seniority and other rights and privileges, and make
them whole for any loss of pay, all of the foregoing in the
manner described more fully in the Remedy section of this
Decision.
(b) Post at its office at its Boston facility copies of the
attached notice marked "Appendix." 24 Copies of said no-
tice, on forms provided by the Regional Director for Region
1, after being signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places. Reasonable steps shall be taken to
ensure that such notices are not altered , defaced or covered
by other material.
(c)Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all rec-
ords necessary to analyze the amount of backpay that may
be due Pisco, Murphy and Gallivan, including payroll rec-
ords, timecards, social security records, and other personnel
records.
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from receipt of this Decision, what steps
have been taken to comply herewith 25
23 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
24 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
25 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read . "Notify
the Regional Director for Region 1, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith."