Miners Welfare, Pension and Vacation Funds

National Labor Relations Board - Board Decisions

Jul 8, 1981

256 N.L.R.B. 1145 (N.L.R.B. 1981)

MINERS' WELFARE. PENSION AND VACATION FUNDS 1145
Welfare, Pension and Vacation Funds, Blasters,
Drillrunners and Miners Union Local No. 29
and their Trustees Louis Sanzo, Amadio A.
Petito, Patricia Cahill and Theodore King and
Joyce Cole and Julieta Fernandez and Joyce
Cole and Julieta Fernandez. Cases 2-CA-
16528, 2-CA-16529, 2-CA-16797, and 2-CA-
16937
July 8, 1981
DECISION AND ORDER
On January 26, 1981, Administrative Law Judge
Howard Edelman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
I Respondent has excepted to certain credibility findings nmade by the
Administrative Law Judge It is the Board's established police not to
overrule an administrative lagw judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings
We agree with the Administrative aw Judge's finding that Respond-
ent is an employer engaged in commerce within the meaning of Sec 2(2),
(6), and (7) of the Act In so finding, we note the parties stipulated that
Respondent Funds annually receive contributions for services rendered in
excess of $50,000 from general contractor Schiavsone which has its main
offices in New Jersey but performs work in New York fior which it annu-
ally purchases goods valued in excess of $50.000 directly from suppliers
located outside New York We also note that the Board has presilusly
asserted jurisdiction over Respondent Funds in Welfare and Pension
Funds. Blasters. Drillrunners and Miners Union Local No. 29 and their
Trustees Louis Sanzol. .mado .4. Petito Paul Crowley. and Theodore King
251 NLRB 1241 (1980), enfd in an unpublished opinion, No 80-4213 (2d
Cir. April 7, 1981)
In adopting the Administrative Law Judge's Decision in this case,
however, we find it unnecessary to rely upon his finding that Respondent
Funds and the Union constitute a single employer. In this regard, we
note that the Union was never named as a party in this proceeding
The Administrative Law Judge has found that Respondent Officials
made numerous statements indicating animus toward the Charging Par-
ties' protected concerted activities. Inasmuch as there is such direct evi-
dence of animus, we find it unnecessary to rely upon the inferences
drawn by the Administrative Law Judge as to the "natural effect" on Re-
spondent of the Charging Parties' adverse testimony at the workmen's
compensation board hearings and of Cole's participation and estimony in
a previous Board proceeding or upon the fact that the Union hired Rose
Mitchell to perform some of the work prev iously done by Cole and Fer-
nandez.
2 We agree with the Administrative Lav Judge's conclusion that Re-
spondent failed to establish its defense that the discharges of Cole and
Fernandez were motivated by economic considerations. Rather, we con-
clude that Respondent's asserted economic defense was merely a pretext.
Thus, we note that the failure of Lloyds of London to renew Respond-
ent's fiduciary insurance coverage occurred in April 1978., almost 20
months before Respondent discharged Cole and Fernandez that Re-
spondent attributed the failure to renew at least in part to the supposed
conflict of interest caused by Cavalieri holding two positions (Adminis-
trator of Respondent Funds and Union Trustee for Respondent Funds
and Cavalieri immediately resigned from his position as Union Trustee on
April 26, 1978; that. while Respondent also attributed the failure o
renew to the high amount of its administrative expenses Respondent im-
256 NLRB No. 170
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Welfare, Pension and Vacation Funds, Blasters,
Drillrunners and Miners Union Local No. 29 and
their Trustees Louis Sanzo, Amadio A. Petito, Pa-
tricia Cahill, and Theodore King, New York, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Substitute the following for paragraph 1:
"1. Cease and desist from:
"(a) Reducing the job responsibilities of employ-
ees, because the employees have engaged in pro-
tected concerted activities, by:
"(i) Refusing to allow them to call employees
represented by the Union at home to inform them
of work opportunities.
"(ii) Refusing to allow them to deal directly with
Respondent's accountant or with the bank where
Respondent keeps its accounts.
nltdlately istructed its accounianl on April 2h. 178, It reduce hese ad-
ttllsi ratl expenses h chanlging the hlook to is ho. varliou, fees
charged hb outsitle professional firms (such as auditing fees ac tuarial
fees, claims reves costs. ivestmtnl Iadviser fees, legal fees. etc ) ls costs
falling under accounting categories other than adnitistrati e expenses;
that wilhout ainy other changes in ts expense, Respondent was able to
get similar fiduciary insurance co,erage from another insurance company
it aboull Mas 1978 that on July I. 1978. Respondent began charging the
Unilon 511XI a month for services performed by Cole and Fernande, for
the Union to further reduce Respondent's administrative expenses: that
no other changes in Respondent's administrative expenses were made or
proposed between about September 1978 and June 1979. that the changes
made in June 1979 were fiound by the Administratie I-aw Judge to be In
retaliation against the Charging Parties' protected concerted activities,
and that Respondent presented no evidence of ans further economic or
insurance problems warranting its sudden decision in June 1979 to study
the possibility of contracting out the work perfilrmed by Cole and ler-
nandez. In so concluding. however, we find it unnecessary to rely upon
the fact that during this period Respondent increased the benefits paid to
employees or that the Union hired Mitchell to perform some itf the work
previously done by Cole and Fernande7
3 We have modified the Administrative Law Judge's recommended
Order to fllowa more accurately the actual vllations fund. We have
also modified the Adminislrative I aw Judge's ntice to ctonforil Io olr
()rder
For the reasons set forth in lrickmott Foods. In-., 242 NlRB 1 357
(l979), we find that the brioad injunctive order recommended by the Ad-
ministrative Law Judge is uarranted We note that in this case Respond-
ent has been fiound to have engaged in numerous violations of Sec
8(a)( I) and (4) icluding the discharges of two employees. and that Re-
sporldenit has pre iousls been found to have violated Sec 8(a)(1) hb dis-
charging asn employee. See Welfare and Pension Iands. Blauirrs, Drillrun-
ners anld Miners Union Local .o. 29. supra.
In accordance with hi, dissent i Olvnipw Medical Corporailon, 250
NLRB 146 (1980)1. Member Jenkins w,ould as ard inerest on the backpay
due basetd l1 Ihe frmula sil fIrtlih ihereil
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(iii) Refusing to allow them to distribute pen-
sion checks to individuals entitled to receive such
checks.
"(iv) Ordering them not to answer the office
door or telephone at Respondent's office.
"(v) Refusing to allow them to obtain, from the
General Contractors' Association, signatures of its
officials on certain documents.
"(vi) Refusing to allow them to fill out pension
and welfare claim forms for employees represented
by the Union.
"(vii) Refusing to allow them to send letters over
their own signatures to employers who are defi-
cient in their welfare and pension contributions.
"(viii) Eliminating their duties with regard to
Respondent's petty cash fund.
"(b) Reducing employment benefits and making
working conditions more onerous for employees
because the employees have engaged in protected
concerted activities, by:
"(i) Refusing to furnish them with the key to Re-
spondent's office.
"(ii) Requiring that they take vacations only
during the months of July and August.
"(iii) Closing the kitchen facilities at Respond-
ent's office.
"(iv) Revoking and denying paid sick leave bene-
fits.
"(v) Eliminating paid coffeebreaks and paid
check-cashing time.
"(c) Denying pay raises promised to employees
because the employees have engaged in protected
concerted activities.
"(d) Discharging or otherwise discriminating
against employees because they have engaged in
protected concerted activities.
"(e) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Joyce Cole and Julieta Fernandez im-
mediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously
enjoyed, and make Cole and Fernandez whole for
any loss of earnings they may have suffered as a
result of the discrimination practiced against them
in the manner set forth in 'The Remedy' section of
this Decision. In addition, such backpay shall in-
clude an annual salary increase of $25 per week as
promised to Cole and Fernandez."
3. Substitute the following for paragraphs 2(d)
through (k) and reletter the subsequent paragraphs
accordingly:
"(d) Restore to Cole and Fernandez the job re-
sponsibilities which they previously performed."
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPI.OYEES
POSTEl) BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARI)
An Agency of the United States Government
WE WII.L NOT reduce the job responsibilities
of employees because they have engaged in
protected concerted activities by refusing to
allow them to call employees represented by
the Blasters, Drillrunners and Miners Union
Local No. 29, of the Laborers' International
Union of North America, AFL-CIO, herein
called the Union, at home to inform them of
work opportunities.
WE WILl. NOT reduce the job responsibilities
of employees because they have engaged in
protected concerted activities by refusing to
allow them to deal directly with our account-
ant or with the bank where we keep our ac-
counts.
WE WIll. NOT reduce the job responsibilities
of employees because they have engaged in
protected concerted activities by refusing to
allow them to distribute pension checks to in-
dividuals entitled to receive such checks.
WE WILI. NOi reduce the job responsibilities
of employees because they have engaged in
protected concerted activities by ordering
them not to answer the office door or tele-
phone at our office.
WE WIl.l. NOT reduce the job responsibilities
of employees because they have engaged in
protected concerted activities by refusing to
allow them to obtain from the General Con-
tractors' Association signatures of its officers
on certain documents.
WE WlI.l. NO reduce the job responsibilities
of employees because they have engaged in
protected concerted activities by refusing to
allow them to fill out pension and welfare
claim forms for employees represented by the
Union.
WE WIll. NOT reduce the job responsibilities
of employees because they have engaged in
protected concerted activities by refusing to
allow them to send letters over their own sig-
natures to employers who are deficient in their
welfare and pension contributions.
WE WILL. NOT reduce the job responsibilities
of employees because they have engaged in
MINERS' WELFARE. PENSIO)N AND VACA'I-ION FUNI)S 1 147
protected concerted activities by eliminating
their duties regarding our petty cash fund.
WE WI.LL NOT reduce employment benefits
and make working conditions more onerous
for employees because they have engaged in
protected concerted activities by refusing to
furnish them with the key to our office.
WE WILL NOT reduce employment benefits
and make working conditions more onerous
for employees because they have engaged in
protected concerted activities by requiring that
they take vacation only during the months of
July and August.
WE WILL NOT reduce employment benefits
and make working conditions more onerous
for employees because they have engaged in
protected concerted activities by closing the
kitchen facilities of our office.
WE WILL NOT reduce employment benefits
and make working conditions more onerous
for employees because they have engaged in
protected concerted activities by revoking and
denying paid sick leave benefits.
WE WILL NOT reduce employment benefits
and make working conditions more onerous
for employees because they have engaged in
protected concerted activities by eliminating
paid coffeebreaks and paid check-cashing time.
WE WILL NOT deny pay raises promised to
employees because the employees have en-
gaged in protected concerted activities.
WE WILL NOT discharge or otherwise dis-
criminate against employees for engaging in
protected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them in Section 7
of the Act.
WE WILL offer Joyce Cole and Julieta Fer-
nandez immediate and full reinstatment to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or any other rights or
privileges previously enjoyed, and make Cole
and Fernandez whole for any loss of earnings
they may have suffered as a result of our un-
lawful discrimination practiced against them,
in accordance with the Order of the National
Labor Relations Board. In addition, such back-
pay shall include an annual salary increase of
$25 per week as promised to Cole and Fernan-
dez.
WE WILL pay to Cole one hour sick pay in
accordance with the Order of the National
Labor Relations Board.
WE Wll . pay to Fernandez one day's sick
pay in accordance with the Order of the Na-
tional Labor Relations Board.
WVl WIl.L restore to Cole and Fernandez the
job responsibilities which they previously per-
formed.
WE WILL furnish to Cole and Fernandez
keys to our office.
WE WILL restore the vacation policy fol-
lowed with respect to Cole and Fernandez
prior to June 1979.
WE WILl. reopen our kitchen facilities and
permit Cole and Fernandez the use thereof.
WE WIl.L reinstate the paid sick leave policy
in effect prior to about June 20, 1979.
WEt WILL reinstate paid coffeebreaks and
paid check-cashing time procedures previously
enjoyed by Cole and Fernandez prior to June
20, 1979.
WELFARE, PENSION AND VACATION
FUNDS, BLASTERS, DRILLRUNNERS
AND MINERS UNION LOCAL No. 29
AND THEIR TRUSTEES LouIS SANZO,
AMADIO A. PETITO, PATRICIA
CAHILL AND THEODORE KING
DECISION
STATEIME.NT 01' IHE CASE
HOWARD EDEI MAN, Administrative Law Judge: This
case' was heard before me on February 6 and 7. March
3-7 and 17, 1980, in New York, New York. On August
2, 1979, complaint issued in Cases 2-CA-16528 and 2-
CA-16529 on charges filed by Joyce Cole and Julieta
Fernandez, individuals, herein called Cole and Fernan-
dez, respectively. On December 14, 1979, complaint
issued in Case 2-CA-16797 based on a charge filed by
Cole and Fernandez on October 4, 1979. On December
28, 1979, complaint issued in Case 2-CA-16937 based on
a charge filed by Cole and Fernandez on December 3,
1979. All of the above complaints were consolidated for
hearing herein.
The complaints alleged, inter alia, that Welfare. Pen-
sion and Vacation Funds, Blasters, Drill Runners and
Miners Union, Local No. 29, and their Trustees, Louis
Sanzo. Amadio A. Petito, Patricia Cahill and Theodore
King, herein called Respondent, violated Section 8(a)(1)
and (4) of the National Labor Relations Act, as amend-
ed, herein called the Act. The thrust of the complaint al-
leges that Respondent reduced the job responsibilities,
reduced employment benefits, and imposed more onerous
conditions of employment on Cole and Fernandez, and
thereafter discharged Cole and Fernandez, all of the
above in violation of Section 8(a)(1) and (4) of the Act.
The caption of the complaint was amended at the hearing to insert
the name Patricia Cahill as trustee for Paul Krowley, originally alleged
as trustee in the complaint
1148 I)ECISIONS OF NATIONA. L.AI3OR RELATIONS BOARD
Briefs were filed by counsel for the General Counsel
and counsel for Respondent. Upon consideration of the
entire record, the briefs, and my observation of the de-
meanor of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF: RESPONDIENT
Respondent herein is a trust fund which was created
pursuant to collective-bargaining agreements between the
Blasters, Drillrunners and Miners Union Local No. 29,
the Union herein, and employer-members of the General
Contractors Association of New York, Inc., and various
other independent employers herein collectively called
the Employers, and pursuant to an agreement of declara-
tion of trusts executed by and between the Union and the
Employers herein. Respondent receives monetary contri-
butions from the Employers above pursuant to the terms
of their collective-bargaining agreements with the Union,
and administers a vacation, pension, and welfare fund
which provides benefits to members of the Union em-
ployed by the contributing Employers. At all times mate-
rial herein, Respondent has operated and administered
such funds from an office located at 238 East 75th Street
in the city and State of New York.
Respondent annually in the course and conduct of its
operations provides services in the form of pension, wel-
fare, and vacation benefits to employees employed by the
Employers covered by collective-bargaining agreements
with the Union which services are valued in excess of
$50,000 and are rendered to enterprises within the State
of New York, which enterprises are engaged in the non-
retail sale of goods and materials, and either annually
purchase goods and materials valued in excess of $50,000
which are shipped to the enterprises within the State of
New York directly from points outside the State of New
York, or annually sell and ship goods and materials
valued in excess of $50,000 from the State of New York
directly to points outside New York. 2
A. Relationship Between Respondent and the Union
Both Respondent and the Union maintain a single
office located at 238 East 75th Street, New York, New
York. The Union is the lessor of said premises, subletting
space to each of the funds (pension, welfare, and vaca-
tion funds) comprising Respondent. At all times material
herein, the union trustees of Respondent have been Louis
Sanzo and Amadio A. Petito, the Employer trustees
have been Theodore King and Patricia Cahill. Sanzo, in
addition to being trustee for Respondent, is president of
the Union. Sam Cavalieri is employed by Respondent as
administrator and is an alternate official for the Union.
Additionally, Respondent employed Cole and Fernandez
as bookkeepers until November 30, 1979. In December
1978, the Union employed Rose Mitchell as a clerical. At
all times material there has been total interchange of per-
sonnel performing work for Respondent and the Union.
2 Respondent amended its answer during the hearing and admitted par.
2, subpars. a through d. Additionally Respondent admits that it is a self-
insured fund and provides annually the services described above which
are valued in excess of $50,000.
In other words, Sanzo, Petito, Cavalieri, Cole, Fernan-
dez, and Mitchell performed all office clerical and book-
keeping functions for Respondent and the Union. Al-
though Cole and Fernandez, throughout the course of
their employment, which began in December 1976 and
January 1974, respectively, performed work for Re-
spondent and the Union, Respondent was not reimbursed
by the Union for their work until May 30, 1979. From
that date and thereafter, the Union reimbursed Respond-
ent $50 per month for each employee. Although Rose
Mitchell performed work for Respondent since her
employ by the Union in December 1978, there is no evi-
dence that Respondent reimbursed the Union for such
work performed.
Sanzo and Petito are in overall charge of the union
office. Additionally, as Respondent's trustees they are in
overall charge of Respondent's office. Sanzo and Petito
supervise all office employees employed by Respondent
and the Union. Directly responsible to Sanzo and Petito
is Cavalieri, whose duties also include supervising Cole,
Fernandez, and Mitchell. Cavalieri also performs work
on behalf of the Union as well as the functions of admin-
istrator on behalf of Respondent.
B. Work of Cole and Fernandez
Fernandez commenced employment with Respondent
in January 1974 as a bookkeeper and general office
helper. Cole commenced employment with Respondent
in December 1976 in the same capacity. They were paid
two separate checks each pay period, one from the pen-
sion fund and one from the welfare fund for 50 percent
each of their total salary. Both employees performed es-
sentially all bookkeeping, recordkeeping, and office cleri-
cal functions for Respondent's funds (pension, welfare,
and vacation funds) and the Union.
Cole's duties for the Union included receiving dues
from union members when they came to the office to
remit such dues, receiving job orders from Employers,
and notifying employees of such jobs. She paid union
bills and made out bank deposits, prepared financial
statements and W-2 forms, and answered telephone calls.
Cole's work for the vacation fund included preparation
of accounts receivable and payable and all other book-
keeping functions. She issued vacation stamps when they
became redeemable each June and December, and pre-
pared and paid all vacation fund bills, and prepared W-2
forms. For the pension fund, Cole prepared pension
checks, performed all bookkeeping functions, paid bills,
and prepared W-2 forms. For the welfare fund she pre-
pared all claim checks, performed all bookkeeping func-
tions, prepared correspondence related to the welfare
fund, and prepared W-2 forms.
Fernandez' duties for the Union included receiving
and recording membership dues, answering telephone
calls, preparing union correspondence, handling petty
cash, and performing general bookkeeping services for
the Union. Her duties with respect to the vacation fund
included the issuance of vacation stamps in June and De-
cember of each year, performing general bookkeeping
functions, answering inquiries from members and from
contractors, and handling petty cash. Her duties with re-
MINERS' WELFARE, PENSION AND VACATION FUNDS 1149
spect to the pension fund included recording and com-
puting Employer contributions to the fund, making bank
deposits, performing general bookkeeping functions, han-
dling petty cash, and answering inquiries whether by
telephone or otherwise. Her duties for the welfare fund
included bookkeeping functions, bank deposits, typing
correspondence, and recording and computing Employer
contributions to the fund. In addition, she handled petty
cash.
Until December 7, 1978, Cole and Fernandez were the
only nonsupervisory employees working in the office. In
December 1978, Rose Mitchell was hired and placed on
the union payroll.3
C. The Concerted Activities of Cole and Fernandez
In May 1978, Mario Montouro, at that time secretary-
treasurer of the Union and assistant administrator of Re-
spondent, sustained an injury in Respondent's office. As
a result of such accidental injury he filed a claim with
the Workmen's Compensation Board. Subsequently, he
was discharged from his position with Respondent and
with the Union. Following his discharge Montouro filed
a complaint with the Workmen's Compensation Board
alleging that he was discharged because he filed a work-
men's compensation claim.
A hearing was scheduled to be held in connection
with Montouro's complaint before the Workmen's Com-
pensation Board on October 4, 1978. Both Cole and Fer-
nandez received subpenas to testify on behalf of Mon-
touro at the October 4 hearing. Sanzo and Petito were
aware that Cole and Fernandez had received subpenas to
testify at this hearing because Cole had given Sanzo a
copy of her subpena.
Cole and Fernandez testified that on October 3, 1 day
prior to the scheduled workmen's compensation hearing,
they were informed by Sanzo that the hearing had been
postponed. Sanzo informed them that they could confirm
such cancellation by telephoning Respondent's attorney.
Thereafter, Cole and Fernandez telephoned the Work-
men's Compensation Board and were informed that the
hearing had not been canceled. On the morning of Octo-
ber 4, Cole and Fernandez advised Sanzo, Petito, and
Cavalieri that they had contacted the Workmen's Com-
pensation Board and were informed that the hearing
would take place as scheduled, and that they intended to
attend the hearing and testify. According to both Cole
and Fernandez, a long and heated discussion followed in
which Petito and Sanzo urged Cole and Fernandez not
to attend the hearing. Both Petito and Sanzo expressed
displeasure at the two women for not taking Sanzo's
word about the cancellation notice they had received.
During this discussion Petito stated to Cole that when
the time came he would get rid of her. Fernandez then
asked Petito if he were saying he was going to fire them.
According to Fernandez, Petito stated, "Yes, I'm going
to get rid of you. I'm going to get rid of you when the
time comes." According to Cole and Fernandez, Sanzo
followed up Petito's statement by stating that Petito's
threat also applied to Fernandez.
3 Mithcell's job duties are discussed in detail below
Sanzo and Petito testified that, on October 4, they re-
ceived a telephone call from their attorney informing
them that the workmen's compensation hearing sched-
uled for October 4 was being adjourned. Following this
telephone call, Sanzo advised Cole and Fernandez that
there was no need for them to go to the October 4 hear-
ing because it had been canceled. According to Sanzo,
Cole informed him she had a subpena and would check
it out. Sanzo asked Cole whether she thought his attor-
ney would lie. Both Sanzo and Petito deny that a long
and heated discussion ensued, they deny that they tried
to talk them out of attending the hearing and deny the
threats of discharge attributed to them by Cole and Fer-
nandez. Cavalieri also denies the threats alleged by Cole
and Fernandez.
I credit the testimony of Cole and Fernandez.4
The workmen's compensation hearing concerning
Montouro's discharge took place on October 4 as sched-
uled. During the October 4 hearing Cole testified in sub-
stance that, during a conversation with Sanzo and Petito,
both Sanzo and Petito informed her that "[t]hey did not
want him (Montouro) back in the office because he had
filed a compensation case and that [sic] was going to
force him to resign his position as secretary-treasurer for
the Union and assistant administrator for the Pension and
Welfare Funds." Cole also testified that in a discussion
with Sanzo and Petito that morning, October 4, prior to
the workmen's compensation hearing, she had been in-
formed by Sanzo and Petito that the hearing had been
canceled and that Sanzo and Petito harassed her in an at-
tempt to prevent her testifying and had threatened her
with discharge. The hearing was adjourned to November
15.
On November 15, the workmen's compensation hear-
ing resumed, Cole testified that at the Workmen's Com-
pensation Board, prior to the hearing, Sanzo in the pres-
4 [ find both Cole and Fernandez to be generally credible witnesses
Throughout the course of their testimony, both Cole and Fernandez were
responsive to questions put to them on both direct and cross-examination
Moreover, each itness displayed excellent recall as to the eents to
which they gave testimony and were able to testify in great detail as to
these events. Further I was impressed by their demeanor on both cross-
and direct examination. Their answers whether on direct or cross-exami-
nation were responsive and forthright. In connection with their testinionr)
concerning the October 4 conversation with Sanzo and Petito, I find the
details and content of their testimony. which was mutually corroborative.
was not the type of testimony that is easily fabricated. The credibility of
Cole and Fernandez as to their conversation with Sanzo and Petito is fur-
ther enhanced by the nature of their eventual testimony at the workmen's
compensation hearing which testimony amounted to virtual admissions of
guilt on Respondent's part (described below) Knowing the extent of
what their testimony would be, it is understandable why Sanzo and
Petito would be reluctant to have Cole and Fernandez appear and testify
at the hearing and why they would be angry and threaten to discharge
them, when they refused to accept Sanzo's explanation that the hearing
had been canceled Further, the hearing did take place on October 4, as
scheduled, contrary to the assertions of Sanzo and Petito Neither Sanzo.
Petito. nor any other Respondent's witness furnished any explanation as
to why they had been erroneously informed by their attorney of the
hearing's cancellation Additionally, I find Sanzo. Petit,. and Casalierl
not to be credible sitnesst,. Both S ano ad Petito throughlout the
course of cross-examination s.ere eiasi e Iand aIrgcmientatle Additional-
ly. Sailzo. Petit,, and C(;lalicrl ge .arioul, coilr.,dictory testllnloll In11
key issues as well as unbelie,.able testimon on other key issue I[he
credibility of these individuals il this regard is discussed il filr more
detail helov.
- .-
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence of Petito and Fernandez criticized her testimony
during the hearing on October 4, and asked her to testify
at this hearing as to the real reason for Montouro's dis-
charge. Fernandez testified that during this conversation
Sanzo denied telling Cole that Montouro was fired be-
cause he filed a charge with the Workmen's Compensa-
tion Board. Fernandez informed Sanzo at this time that
she had indeed heard him make such statement to Cole.
Sanzo testified that he did not remember this specific
conversation, but denied making the statements attribut-
ed to him by Cole and Fernandez.
I credit the testimony of Cole and Fernandez.s5
During the course of the hearing on November 15,
Fernandez testified. The thrust of her testimony was that
she overheard Sanzo and Petito tell Cole that Montouro
would not be permitted to return to work because he
had filed a workmen's compensation claim. She also tes-
tified that on October 4, prior to the initial hearing,
Sanzo and Petito were very angry at her and Cole for
contacting the Workmen's Compensation Board on Oc-
tober 4 to ascertain whether the hearing had in fact been
canceled.
On September 29, 1978, Montouro filed a charge with
the National Labor Relations Board in Region 2 alleging
his unlawful termination as Respondent's assistant admin-
istrator. In connection with the investigation of this
charge Cole provided the Board agent investigating the
charge with an affidavit dated October 24, 1978. On Oc-
tober 25, 1978, Cole informed Sanzo that she had sup-
plied the Board agent investigating Montouro's unfair
labor practice charge with an affidavit concerning the
events surrounding his discharge.
A complaint was ultimately issued on Montouro's
charge. The complaint alleged that Respondent dis-
charged Montouro for engaging in protected and con-
certed activities in violation of Section 8(a)(l) of the Act.
A hearing was held in connection with this complaint on
May 14, 1979. Cole was one of two witnesses called by
the General Counsel in support of Montouro's charge.
The thrust of Cole's testimony was to corroborate Mon-
touro's testimony that he had complained to Sanzo and
Cavalieri about various contractors in the trade violating
their collective-bargaining agreements with the Union
and that employee claims were not being properly proc-
essed. Cole additionally testified as to a May 1, 1978,
conversation with Sanzo concerning upcoming union
nominations scheduled for May 4, 1978, wherein Sanzo
described to her how he intended to rig the nominations
for union office. Cole further testified that, following the
nomination, Sanzo had informed her that he had success-
fully prevented Montouro and another union member as-
sociated with Montouro, Charles Smith, from being
nominated and that he had to get Montouro out of office
because he was a troublemaker and had filed for work-
men's compensation and that he could not let the "Nig-
gers (Charles Smith is black) take over the Union." Ad-
ditionally, Cole testified that she heard Sanzo request
Montouro's resignation and that Montouro refused to
sign a resignation letter submitted to him by Sanzo. This
5 My credibility resolution is based oln my favorable impression of Cole
and Fernandez as credible witnesses described above and on my unfasor.
able impression of Sanzo as a itness described above and below
latter testimony by Cole clearly controverted Sanzo's
testimony at the hearing that Montouro had voluntarily
resigned his employment.6
D. Change in Work Relationship-Respondent's
Animus
It is undisputed that prior to the workmen's compensa-
tion hearing on October 4, 1978, Cole and Fernandez en-
joyed a friendly, informal, and warm relationship with
Sanzo and Cavalieri (Petito at this time was not regularly
employed in the office). In this regard, Cole and Fernan-
dez would frequently take their coffeebreak and lunch
hour with Cavalieri and Sanzo, Sanzo frequently prepar-
ing and serving meals. Additionally, Sanzo arranged a
birthday party for Cole, attended by various members of
the Union's executive board. In addition, Cavalieri
would on occasion drive Cole and Fernandez to their
homes from work and occasionally escorted Cole on per-
sonal errands. Cole and Fernandez were given consider-
able leeway in connection with their starting time. They
were allowed to take time off without loss of pay to
handle personal errands and to cash their paychecks.
It is also undisputed that following Cole's and Fernan-
dez' testimony at the workmen's compensation hearing,
the excellent work relationship described above deterio-
rated. Cole testified that during the period following the
workmen's compensation and National Labor Relations
Board hearings, Cavalieri and Sanzo stopped talking to
her and generally communicated with her and Fernandez
through written notes and that they responded in kind.
Fernandez corroborates Cole's testimony in this regard.
Rose Mitchell testified that upon her hire in December
1978 she observed there was considerable tension in the
office among Sanzo, Petito, Cavalieri, Cole, and Fernan-
dez. Cavalieri concedes the relationship began to change
after the workmen's compensation case but testified that
it was Cole and Fernandez who stopped speaking to him
and began communicating with written notes. Petito
admits that, following the hearing, he did not want to
speak to Cole and kept conversations with her to a mini-
mum.
E. The Hiring of Rose Mitchell
Rose Mitchell was first employed by the Union as a
receptionist on December 4, 1978. Her salary was $200
per week. Mitchell's work in the office consisted essen-
tially of answering telephone calls and responding to the
door buzzer, accepting and recording dues from union
members, mailing out notices of union meetings, and at
times assisting with the redemption of vacation stamps.
Although her duties encompassed work for Respondent
and the Union, she was on the Union's payroll only. Re-
t; The Administrative Law Judge in his Decision in this case which
issued on December 31, 1979. concluded that Respondent had discharged
Montouro in violation of the Act as alleged. tie described Respondent's
defense that Montouro had oluntarily resigned as "strained, flimsy and
artificially contrived. In reaching his conclusioin, he gave considerable
scseight to Cole's testimonl IWelJure and P'cnwntl lundi. Blaerir, Drillrun-
nrtr, aun .Minrrs tlrn on, Louta! '. 29. and their Trucrle. I.ous, Sanzo,
.mnodwl IPio, Paril KArtol,s and Iheodorc King, J) 84 79 his Deci-
mion is prcscntly pendinlg efore the Hoard
MINERS' WELFARE, PENSION AND VACATION FUNDS 1151
spondent did not reimburse the Union for any of her
services.
Sanzo concedes that prior to the hiring of Mitchell,
Cole, Fernandez, and other Respondent and union offi-
cials in the office performed those functions presently
performed by Mitchell. When Sanzo was questioned as
to why it was necessary to hire Mitchell in view of the
fact that Cole and Fernandez were at the time of her
hire performing the work performed by Mitchell, he re-
plied nonresponsively, "She was hired by the Union not
by the Pension and Welfare."
Mitchell testified that answering the phones and her
other duties kept her busy throughout the day. Cole and
Fernandez testified that Mitchell's duties kept her busy
about I hour a day and that most of her workday she
spent reading.
Petito testified that Rose Mitchell was hired so that he
could spend more time in the field.
The entire membership of the Union at the time of the
hearing was less than 400 members.
F. Allegations and Innuendos
As of January 1979, Respondent was under investiga-
tion by several government agencies concerning various
alleged irregularities in connection with the funds admin-
istered by Respondent. Bernard Edelstein, an accountant
employed by Walter Hirsch, who served as Respondent's
accountant, testified that, in January 1979 when he first
commenced an audit of Respondent, Walter Hirsch in-
formed him of ongoing investigations by various govern-
ment agencies and instructed him, "When you are going
in to do the audit be careful of doing every required au-
diting step. Don't make any . . . don't leave any steps
undone because they are under investigation."
On April 20 and 21, the New York Daily News print-
ed two articles concerning the alleged criminal activities
of Sanzo and Cavalieri. The Daily News articles con-
cerned an investigation pending before the grand jury in
connection with alleged unlawful payoffs by building
contractors to the Union. Specifically mentioned as being
under investigation in the article were Sam Cavalieri, Jr.,
described as administrator of Respondent's funds, and
Louis Sanzo, described as president of the Union.
Cavalieri testified that in April 1979, and thereafter
following the publication of the Daily News articles de-
scribed above, Cole told him on a number of occasions
that "[t]he Department of Labor and the U.S. Justice
Department had told her that he, Cavalieri, was going to
jail for embezzlement." 7 Mitchell confirmed that she had
heard Cole tell Cavalieri that he was going to jail. Edel-
stein testified that sometime in July or August 1979
while conducting an audit of Respondent's office he
heard Cole yell at Cavalieri, "You're going to jail like
the rest of them."
Cole denied that she ever told Cavalieri that he would
go to jail.
' Cole had been subpenaed and had testified on several occasions
before the grand jury in connection xwith the investigation described hb
the Daily News above
I find that Cole did make the statements concerning
Cavalieri going to jail as described above. 8
There is no evidence, however, that Cole was repri-
manded by Respondent's officials for these statements.
Significantly, there is no evidence that Fernandez made
any similar statements.
Walter Hirsch testified that he extended the scope of
his audit at Respondent because of the allegations and in-
nuendos cast upon the trustees by Cole described above.
Hirsch further testified that he reported to the trustees
the need to extend his audit because of the allegations of
Cole at a special trustee meeting convened on June 1,
1979. However, Hirsch also testified that, prior to the al-
legations of Cole which did not take place until late
April 1979, he was aware of the ongoing investigations
of Respondent and that government agents had taken
physical possession of certain of Respondent's books.
Hirsch later admitted that these government investiga-
tions impelled him to extend his audit.
G. Discriminatory Changes in the Working Conditions
of Cole and Fernandez
1. Cole not allowed to call employees about job
opportunities
Cole testified that, in connection with her duties con-
cerning the Union, there were occasions when she was
required to telephone union members at their homes and
advise them of job openings. Cole further testified that,
sometime in December 1978, Sanzo and Petito informed
her that she was no longer to make such telephone calls
and that in the future such phone calls would be made
by Mitchell. She was not informed of the reason for this
change. Sanzo and Petito denied informing Cole that she
was no longer to telephone union members concerning
work opportunities. I credit Cole.9
I Although I found Cole to be generally a credible witness, there is no
question that during this particular period there was tremendous hostility
between Cole and Fernandez on one side and Respondent officials on the
other side I make my Finding in view of the testlmonN of Mitchell and
particularly Edelstein. a neutral witness Edelstein is neither an employee
of Respondent nor directly employed by Respondent Moreover. given
the hostility that existed at the time, and the state of the government in-
vestigations. I find Cle's remarks to be consistent with such hostility and
investigations.
! For the reasons set forth above, I found Cole to be a generally credi-
ble witness My impression of Sanzo and Petite is that neither individual
is a credible witness In connection with Sanzo. I found his tetimon to
be evasive. argumentative, and often contradictory An example of ea-
sise testimony occurred when I asked Santo whether Cole and Fernan-
de7 performed work for the Union Santo's initial response as. "They
helped out " When pressed frther, Sanzo ultimately contceded that in
fact Cole and Fernandez performed all bookkeeping functions for he
Union Additionally, when Santo was questioned s to whether Cle nd
Fernandetz rote lettler and performed typing flr the nlion, his iitial
response wa;S, "Some letters yes " After intense and prsistent question-
ing, Santo ultimately conceded that Cole and Fernandez Iyped most f
the letters for the Union In addition. Santo was at times argumenlatlve
on the witness stand An example of such conduct occurred in connec-
tion with introduction o G C Fxhs 19 and 2. The Daily News articles
collcerillg insestllgutihon by government agencies into the actlvitles of
Santo and Casalieri During a discussion by the eneral Counsel, coun-
sel ftlr Respondlent, and me, as to the relc'anc o the adochintnts. San to
engaged i repeatedl outburhst concering the accuracs of the newspaper
artilcle He was cautioned hb me to cease such outbursts a. they might
( ontinued
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Cole and Fernandez were not allowed to deal
directly with Respondent's accounts or banks
Cole and Fernandez testified that their normal work
functions for Respondent included contacting account-
ants from time to time to obtain various information con-
cerning bookkeeping matters and also contacting banks
with whom Respondent had accounts. Additionally, Fer-
nandez made actual deposits in such banks. According to
the testimony of Cole and Fernandez, Cavalieri instruct-
ed them sometime during the end of 1978 or beginning
of 1979 that they were no longer to contact the account-
ants, or to deal in any way with the banks. Cavalieri
gave no reason for this change. Cavalieri and Petito
denied reducing Cole's and Fernandez' responsibilities in
this connection.
I credit the testimony of Cole and Fernandez.
have a adverse affect on his credibility. Another example of argumenta-
tive conduct occurred in the General Counsel's cross-examination when
the General Counsel questioned Sanzo as to who would perform the
bookkeeping functions for the Union after Cole and Fernandez were re-
placed. Sanzo's response to this question was, "We are not talking about
the Union. They [Cole and Fernandez] were employed by Pension and
Welfare Funds." Sanzo was again cautioned by me to answer the ques-
tion put to him by the General Counsel. On yet another occasion when
the General Counsel questioned Sanzo as to who was performing book-
keeping operations for the Union following the discharge of Cole and
Fernandez, Sanzo testified that Petito was performing such bookkeeping
functions. When the General Counsel pressed Sanzo as to whether Petito
was actually performing such bookkeeping functions, Sanzo responded,
"He [Petito] is secretary treasurer. You should ask him that question."
Sanzo also gave contradictory testimony in connection with material
issues in this case. In this connection, Sanzo initially testified that, follow-
ing the discharge of Cole and Fernandez, Petito performed bookkeeping
functions for the Union. When pressed by the General Counsel on cross-
examination as to whether Tolley performed bookkeeping functions for
the Union, Sanzo initially testified that Tolley performed no work for the
Union. However, after pressing cross-examination by the General Coun-
sel, Sanzo conceded that Tolley did indeed perform all bookkeeping func-
tionsfor the Union.
I also found Petito's testimony to be generally vague and evasive, and
often contradictory. In this connection, Petito initially testified that the
decision to subcontract out to Tolley the work being performed by Cole
and Fernandez was motivated entirely by a decision to save money.
However, Sol Taber, vice president of Tolley, Theodore King, Employer
trustee of Respondent, conceded that one of the reasons for the subcon-
tract was the allegations and innuendos attributed by Respondent to Cole
and Fernandez. On another occasion, Petito testified that Fernandez was
relieved of her job function of contacting contractors for their signatures
because Employer trustee King wanted to deal with Cavalieri directly.
However, King's testimony directly contradicts that of Petito and Cava-
heri. King testified the decision to change the procedure was made by
Cavalieri entirely and that he played no role in it whatever. Additionally,
Petito testified that Respondent's sick leave policy, described below, was
changed because of a suggestion by King However, in prior testimony in
a Federal District Court matter (78 Civil 4619), Petito testified that the
sick leave policy was changed because of the allegations and innuendos
attributed to Cole and Fernandez.
'0 My credibility resolutions in connection with Cole, Fernandez, and
Petito are set forth and discussed in detail above. My impression of Cava-
lien's testimony was that it was often vague and evasive and at times
contradictory as to material issues. In this connection Cavalieri testified
that he could not recall whether raises for Cole and Fernandez were dis-
cussed at a particular trustee meeting. Respondent trustee King testified
that not only were raises for Cole and Fernandez discussed at this trustee
meeting, but that Cavalieri opposed such raises because of the allegations
and innuendos attributed to Cole and Fernandez. Additionally, Cavalieri
testified in great detail that pursuant to a suggestion by King it was de-
cided that Fernandez was no longer to contact the General Contractors
Association. However, King's testimony directly contradicts that of Ca-
valieri. In this respect, King testified that the decision was made entirely
by Cavalierin and that he (King) played no role in such decision.
3. Cole and Fernandez no longer allowed to
distribute pension checks
Both Cole and Fernandez testified that their duties for
Respondent included preparing and mailing or handing
to pensioners, who came to the office, pension checks.
Cole testified that, shortly after Mitchell was hired in
December of 1978, Cavalieri told her that from now on
she was no longer to mail or hand out such checks,
rather the checks were to be placed on his desk. Fernan-
dez testified that, sometime in May, Cavalieri instructed
her to place such checks on his desk. No explanation was
given to either Cole or Fernandez concerning this
change although Cole asked Cavalieri why such change
had taken place. Thereafter, such checks were distribut-
ed by either Cavalieri or Mitchell.
Cavalieri denied that he changed the procedure relat-
ing to the distribution of pension checks although he
concedes such change took place. Rather, Cavalieri testi-
fied that the change resulted one day in July 1979 when
Fernandez "handed me the checks and said here, from
now on you hand them to the pensioners."
I credit the testimony of Cole and Fernandez.
4. Cole and Fernandez not allowed to answer door
buzzer or office telephone
Both Cole and Fernandez testified that, shortly after
Rose Mitchell was hired in December 1978, they were
instructed by Petito, Sanzo, and Cavalieri that they were
no longer to answer the office telephone or handle the
door buzzer.
Sanzo, Petito, and Cavalieri denied issuing such
instructions to Cole and Fernandez. For the reasons set
forth above, I credit the testimony of Cole and Fernan-
dez. Moreover, Cole's and Fernandez' testimony would
be consistent with the hiring of Rose Mitchell whose pri-
mary job function appeared to be that of answering the
office telephone and handling the door buzzer.
5. Fernandez not allowed to obtain signatures from
the General Contractors Association
Fernandez testified that, two to three times a week,
she would make an appointment and visit the office of
the General Contractors Association in order to obtain
signatures from Employer trustees on Respondent's doc-
uments. Fernandez testified that, sometime in May 1979,
Cavalieri instructed her that she would no longer per-
form this function. He stated no reason for this change.
Thereafter, Cavalieri obtained the required signatures.
Sanzo, Petito, and Cavalieri testified that the change in
procedure was made at the direction of King, whose sig-
nature was required and whose office was located at the
General Contractors Association. King's testimony how-
ever flatly contradicts the testimony of Sanzo, Petito,
and Cavalieri. King testified that the decision to change
" In addition to my findings concerning Cavalier's credibility de-
scribed above I do nrot find Cavalieri's asserlion that it was Fernandez
who in effect told him that she would no longer distribute these checks
to be believable. After all, Cavalieri was Fernandez' supervisor I find it
highly unlikely that Cavalieri would permit Fernandez to dictate to him
what work she will perform. Such testimony further reflects my overall
evaluation that Cavalieri is not it credible witness
MINERS' WEL.FARE. PENSION AND VACATION FUNDS Il53
the procedure was made by Cavalieri and that he played
no role whatever in such decision. I credit the testimony
of Fernandez and King.' 12
6. Cole not allowed to assist claimants in
preparation of claim forms
Cole testified that part of her duties included assisting
claimants filling out required claim forms. According to
Cole, sometime in June 1979, Cavalieri instructed her
that she was no longer to perform this function and that
henceforth claimants would receive assistance only from
Cavalieri.
Cavalieri denied that he told Cole or Fernandez not to
give out or assist in the preparation of claim forms.
For the reasons described above, I credit the testimo-
ny of Cole.
7. Fernandez not allowed to send letters to
Employers over her signature
Fernandez testified that, in connection with her duties
relating to Respondent's pension and welfare funds, it
was at times necessary for her to write letters over her
signature advising Employers of discrepancies in their
fund contributions. Fernandez testified that, sometime in
August 1979, Cavalieri instructed her that in the future
all such letters were to go out over his signature only.
He gave no reason for this change. Thereafter, all such
letters were signed by Cavalieri.
8. Cole and Fernandez relieved of their duties in
handling petty cash
Both Fernandez and Cole distributed Respondent's
petty cash funds. Cole and Fernandez testified that,
sometime in June 1979, Cavalieri advised them that
henceforth he would take care of all petty cash disburse-
ments. Cavalieri explained to them that the trustees had
directed this change.
Cavalieri testified that he made the change as a result
of "innuendos that petty cash was being spent erroneous-
ly or it didn't appear to be what it was." Sanzo testified
that Fernandez and Cole were relieved of petty cash re-
sponsibility as part of the "tightening up" process. Sanzo
conceded that there had never been any discrepancy
with petty cash attributable to Cole or Fernandez.
Petito testified that the "tightening up" process took
place as a result of the "allegations and innuendos" by
Cole, as a result of Sanzo's indictment, and as a result of
the workmen's compensation charge and the National
Labor Relations Board charges.
King credibly admits the so-called "tightening up"
process came about as a result of the "charges, counter-
charges, the NLRB cases."
12 King impressed me generally as a credible witness. His testimony
was responsive, generally rather blunt and to the point Moreover, King
as Employer trustee of Respondent is an agent. Further, being an Em-
ployer trustee, his testimony tends to be more reliable than Sanzo, Petito.
or Cavalien. As King testified in his executive position with the General
Contractors Association, he is an employer trustee for over 30 independ-
ent funds similar to that of Respondent
9. Cole and Fernandez not given a key to the front
office door
Both Cole and Fernandez received keys to the front
door when hired. Sometime in June 1979, Respondent
changed the lock of the front door. New keys were
issued to all office personnel except for Cole and Fernan-
dez. Several days after the issuance of such keys, Cole
asked Petito if she and Fernandez would be given keys
and Petito responded they would not.
Petito testified that Cole and Fernandez were not
given office keys because of "charges and innuendos
were being slung around" by Cole and Fernandez. 3
10. Denial of pay raise to Cole and Fernandez
Fernandez was employed in 1974 at a salary of $175
per week. She received a pay raise each year except in
1975. Her last pay raise occurred in March 1978, at
which time her salary was increased from $250 to $275 a
week. Cole's starting salary in December of 1976 was
$225. She received a $25 increase to $250 a week in 1977
and another $25 raise in 1978.
Cole and Fernandez testified that sometime in early
1978 in a discussion with Sanzo, Cavalieri, and Mon-
touro, they agreed that if Cole and Fernandez were will-
ing to perform all bookkeeping and office work required
for running Respondent office and the Union, without
assistance from other clericals, they would receive yearly
wage increases of $25. Cole and Fernandez agreed to
this. Fernandez testified that, although Sanzo indicated
that such raises would have to be approved by the board
of trustees, this was no problem since he was the chair-
man of the board and whatever he wanted to do he
could do it.
Montouro's testimony fully corroborated the testimony
of Cole and Fernandez with respect to the promise of
yearly increases.
Sanzo testified that he told Cole and Fernandez that if
there were raises to be had he would do what he could
to see that they got them. Sanzo denied making any
commitments to future raises. Cavalieri although not spe-
cifically denying the testimony of Cole and Fernandez
testified that it was his recollection that Respondent
agreed that "they would look at the work performance
and to evaluate what people have been doing." For the
reasons set forth above, I credit the testimony of Cole
and Fernandez. Moreover, the testimony of Cole and
Fernandez was corroborated by that of Montouro.
Fernandez and Cole testified that, sometime in June
1979, Cole spoke to Petito about a pay raise. Petito said
that he would discuss the matter with the trustees. A
short time later Petito in the presence of Sanzo reported
to Cole that the trustees were not giving raises. Sanzo
laughed.
Sanzo testified that he recommended at a trustee meet-
ing, to the trustees, that raises be given to Cole and Fer-
nandez. However, his recommendation was turned down
by the trustees. Petito corroborated Sanzo's testimony.
King testified that the question of raises for Cole and
:' The failure to provide Cole and Fernandez with keys was not al-
leged by the General Counsel as an unfair labor practice
1154 DECISIONS ()F NAI()ONAI. LABOR RELA IONS BOARD
Fernandez was brought up at a trustee meeting and that
Cavalieri opposed such raises because of the allegations
and innuendos attributed to Cole and Fernandez. I credit
King. 4
During the year 1979, Cavalieri, the law firm of Cor-
coran and Brady, Respondent's attorneys, Walter Hirsch,
Respondent's accountant, and Tolley Associates, Re-
spondent's actuaries, all received substantial pay raises
for their services. Moreover, during 1979, pension and
welfare benefits were increased.
I 11. Respondent imposed a more restrictive vacation
policy on Cole and Fernandez
Prior to June 1979, no restrictions were imposed upon
Cole or Fernandez as to when they could take their
annual vacation. The usual procedure was that the em-
ployee would simply inform Cavalieri or Sanzo as to
when she wanted to take a vacation and they would rou-
tinely give their approval. In June 1979, Cavalieri in-
formed Cole and Fernandez that, as a result of a trustee
directive, vacations could only be taken in July or
August.
Sanzo testified that the change in vacation policy was
based on the trustees' desire to "keep personnel in the
office at all times and not have two people out at the
same time." Petito and Cavalieri testified that the change
in policy was part of the "tightening up process."
12. Respondent closes kitchen facilities
Respondent had a separate kitchen in its office which
contained a hotplate, refrigerator, sink, and miscellaneous
kitchen equipment. All office employees used this kitch-
en facility regularly to prepare breakfast, lunches, and
snacks. In June 1979, Cavalieri informed Cole and Fer-
nandez that the trustees had ordered the kitchen closed.
Thereafter, the refrigerator and hotplate were discon-
nected and the kitchen was closed. Sanzo testified that
the kitchen was closed for economic reasons and to
"tighten up" the operation following the "allegations"
made by Cole. Sanzo conceded that the closing of the
kitchen resulted in a savings of "peanuts." Cavalieri testi-
fied that the closing of the kitchen was the direct result
of innuendos by Cole. Petito testified that the kitchen
was closed as part of the "tightening up process."
13. Sick leave benefits, elimination of coffeebreaks,
and check cashing time
Prior to June 20, 1979, Cole and Fernandez did not
lose pay when they took sick leave. Moreover, they
were permitted to take coffeebreaks or time off to cash
paychecks during the workday without being docked for
the time taken off.
On June 19, Cole and Fernandez left work at 1:30
p.m., leaving a note for Sanzo and Petito explaining that
they were going to the National Labor Relations Board
to file charges. On June 19 Cole filed charges in Case 2-
CA-16528. On June 20, Sanzo in the presence of Petito
asked Cole and Fernandez if they had been to the Labor
Board. Cole answered that she had and that she had filed
'' As set forth above, I found King to be generally a credible itness.
a charge. Petito stated that henceforth Cole and Fernan-
dez would not be paid for any time they were out of the
office and this included sick time, lunchtime, and time to
cash paychecks as well as time to go to the National
Labor Relations Board to file charges.
On June 21, 1979, Cole had occasion to take an hour's
sick leave. Respondent deducted the hour's sick leave
taken by Cole from her paycheck that week. In Septem-
ber 1979, Fernandez had occasion to take I day's sick
leave. A full day's pay was deducted from Fernandez'
paycheck that week.
Sanzo and Petito testified that Respondent changed its
sick leave policy to provide that employees would no
longer be paid for the first sick day because of King's
position that such policy was more appropriate. Howev-
er, Petito's testimony in this connection is contradicted
by his testimony in Federal District Court (78 Civil
4619) where he testified that the reason for the change in
sick leave was the "allegations and innuendos" by Cole
and Fernandez.
Moreover, King again credibly testified that the only
reason for the change in sick leave policy was "the alle-
gations" by Cole and Fernandez. s
Following their June 20 conversation with Sanzo and
Petito, Cole and Fernandez took their coffeebreaks at
their desks while they worked. Also following the June
20 conversation, Cole and Fernandez generally cashed
their checks outside of normal working hours. On sever-
al occasions when they did cash their paychecks during
working hours, they were not docked for the worktime
they missed.
H. The Decision To Subcontract out the Work of Cole
and Fernandez
As of March 1978, Respondent had fiduciary liability
insurance through Lloyds of London.' 6 Sometime on or
about March or April 1978, Respondent trustees applied
to Lloyds of London for a renewal of their fiduciary lia-
bility insurance which was due to expire at or about that
time. Such renewal was handled through the Profession-
al Indemnity Agency, a subsidary of Tolley, and the ex-
clusive agent for Lloyds of London. Sometime in the
March-April 1978 period, Professional Indemnity notified
Sol Taber of Tolley that Lloyds of London would not
renew the fiduciary liability insurance. Taber testified
that Professional Indemnity informed him that the reason
Lloyds would not renew the policy was that Respond-
ent's administrative expenses were too high in proportion
to the contributions to the funds, and that the administra-
tor of the funds, Cavalieri, was also a fund trustee. This
in the opinion of Lloyds raised a conflict of interest.
Taber testified that Professional Indemnity was not in-
formed by Lloyds by how much the administrative ex-
penses exceeded the rate required by Lloyds. At a Re-
spondent's trustee meeting in or about March or April
1978, Taber informed Respondent's trustee officials about
the report he had received from Professional Indemnity
concerning Lloyds' refusal to renew the fiduciary liabili-
As set forth above, I found King to be a generally credible witness.
'i Fiduciary liability insurance is insurance that covers the trustees for
liability resulting through their actions in connection with the trust.
MINERS' WELFARE, PENSION AND VACATION FUNDS 11 55
ty policy. As a result of Taber's report to Respondent's
trustees, Cavalieri voluntarily resigned his position as
trustee but retained his position as administrator.
Shortly thereafter, Respondent obtained similar fidu-
ciary liability insurance coverage through Aetna Insur-
ance Co. There is no evidence that Aetna questioned Re-
spondent's administrative expenses before issuing such in-
surance. There is also no evidence that administrative ex-
penses were reduced at this time.
Tolley Associates performs actuarial work for various
trust funds, hospital plans, etc., throughout the United
States. In addition, they perform, as an additional serv-
ice, administrative services which include bookkeeping,
financial recordkeeping, preparation of checks, etc.
Tolley has performed actuarial work for Respondent
for a period of over 15 years. Prior to December 1. 1979,
Tolley performed no administrative work for Respond-
ent.
The first time the subject of subcontracting out the
work being performed by Cole and Fernandez for Re-
spondent came up was at a trustee meeting on June 1,
1979. During this meeting Respondent's trustees asked
Taber to prepare a proposal for the cost of furnishing ad-
ministrative services (bookkeeping services, typing serv-
ices, etc., presently being performed by Cole and Fer-
nandez). Taber testified that the reason given at the
meeting by the trustees for consideration of such subcon-
tract was to reduce their administrative expenses and
"there were other problems the trustees were encounter-
ing." When pressed as to whether the trustees had de-
scribed what such "other problems" were, Taber testified
that the trustees had informed him that these "problems"
related to various allegations concerning Respondent by
Cole.
King, in his usual blunt manner, credibly testified that
the subject of subcontracting the work performed by
Cole and Fernandez to Tolley was first discussed at the
June I trustee meeting. King testified that, as a result of
the "allegations and innuendos" brought to his attention
by Hirsch and others (presumably Sanzo, Cavalieri, and
Petito who were present at the June 1 trustee meeting),
Respondent considered terminating Cole and Fernandez
and replacing them with Tolley. When King was asked
whether Respondent had considered other ways of han-
dling the "allegations and innuendos" like talking to Cole
and Fernandez, he responded, "That wasn't a considera-
tion at that point. The consideration at that point was
getting rid of them."
Both Petito and Sanzo testified that the only reason
for the subcontracting of the administrative work to
Tolley was as a means of reducing administrative ex-
penses which had been found by Lloyds of London to be
too high. In this connection Petito and Sanzo testified
that in addition to considering a subcontract arrangement
with Tolley, which would hopefully reduce the cost of
administration, the position of assistant administrator
which was a paid Respondent position was eliminated.
However, according to both Petito and Sanzo, the elimi-
nation of the position of assistant administrator and the
subcontract arrangement eventually consumated were
the only steps taken by Respondent to reduce administra-
tive expenses.
Sometime following the June I trustee meeting and
prior to November 30, 1979, Taber prepared a written
proposal for the performance of all administrative oper-
ations for Respondent's pension and welfare funds. The
proposed cost for performing such service was $28.500
per year. Such proposal included no proposed services
for the vacation fund or the Union.
The total cost of Cole and Fernandez to Respondent
including their salaries, social security, unemployment in-
surance, and fringe benefits totaled $38,500 per year.
Tolley's proposal as submitted by Taber was next dis-
cussed by Respondent at a trustee meeting on November
2, 1979, at which time Taber explained that his proposal
would in fact include all administrative work presently
being performed by Cole and Fernandez, including all
bookkeeping and secretarial work for the Union and the
vacation fund as well as all bookkeeping and secretarial
work for the pension and welfare fund.
It was decided by Respondent's trustees at this meet-
ing to accept Taber's proposal and to replace Cole and
Fernandez at the end of the month. Thereafter, all the
work performed by Cole and Fernandez would be per-
formed by Tolley.
Respondent does not contend that either Cole or Fer-
nandez was replaced because they lacked the compe-
tence to perform the work. On the contrary, Cavalieri
described Fernandez as "a very capable woman." Cole
was described as "a very competent bookkeeper who
was rather quick."
On November 30, 1979, both Cole and Fernandez re-
ported to work as usual. Around 4:30 p.m. that day.
Sanzo went to Cole's office and handed her an envelope.
He informed her at this time that Tolley was taking her
job and that she was terminated. Sanzo then went to
Fernandez' office and informed her that her services
were no longer required. Letters were given to both
Cole and Fernandez advising them that "[t]he services
heretofore performed by you have been contracted out
to an independent contracting corporation commencing
December 1, 1979." And that they were terminated as of
November 30, 1979.
Cole testified that, following her notification by Sanzo
of her termination and replacement by Tolley, she asked
Sanzo if he, Sanzo, had anything to do with their re-
placement and Sanzo replied, "No, that's not my style. It
was Mr. Petito and Mr. Cavalieri's doing. They wanted
you out of here."
During the year 1979, Respondent increased the fees
paid to Tolley for their actuarial services, Corcorcan &
Brady for their legal services, and Walter Hirsch for his
accounting services. Moreover, as of September 1979,
Cavalieri's salary was increased by $50 per week. Addi-
tionally, Respondent increased its pension benefits to
pensioners effective July 1, 1979, and welfare benefits
payable to members effective April 26 and July 1, 1979.
Aside from the reduction of expenses achieved by sub-
contracting out the work of Cole and Fernandez to
Tolley, the only other reduction of expenses was the
elimination of the position of assistant administrator on
September 29, 1979, held by Petito. When he was assist-
ant administrator, Petito earned $325 weekly from the
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
funds and $300 per month from the Union. At the time
of the instant hearing he was earning $554 weekly as sec-
retary-treasurer of the Union. When Petito was asked
whether Respondent considered other ways of saving ad-
ministrative expenses, Petito replied, "They didn't pres-
ent it to me. I can't remember any."
II. ANALYSIS
A. Jurisdiction
Respondent contends that the Board should not assert
jurisdiction because the dispute is essentially local in
nature and because the services rendered by Respondent
to the employer-members are really services rendered by
the Union.
The Board held in Chain Service Restaurant, Lucheon-
ette & Soda Fountain Employees, Local 11, AFL-CIO, 132
NLRB 960 (1961), that where a fund formed as in the
instant case, pursuant to collective-bargaining agreements
between employers and the union, and pursuant to a dec-
laration of trust, furnished services valued in excess of
$50,000 to employers who met the Board's jurisdictional
standards, such fund was engaged in commerce within
the meaning of the Act. In Chain Service Restaurant,
supra, the Board held that employer contributions to
such fund constitute payments for services rendered by
the fund to such employers; such services consisting of
furnishing pension and health benefits, etc., to employees
employed by such employers pursuant to their collec-
tive-bargaining agreement with the Union. The fund
argued that it did not directly furnish such benefits but
rather procured insurance policies for such benefits from
various independent insurance companies. The Board,
nevertheless, concluded that such subcontracting ar-
rangements did not affect the essential nature of the rela-
tionship between the fund and the employers.
In the instant case Respondent admits that it annually
provides services valued in excess of $50,000 in the form
of pension, welfare, and vacation benefits to employees
employed by employers engaged in commerce within the
meaning of the Act and with whom the Union has a col-
lective-bargaining agreement which provides for such
benefits. Moreover, in the instant case, unlike as in Chain
Service Restaurant, Respondent is a self-insurer.
Accordingly, I conclude that Respondent is an em-
ployer engaged in commerce within the meaning of the
Act and that the Board has jurisdiction over Respondent
Fund. See also Joint Industry Board of the Electrical In-
dustry and Pension Committee, et al., 238 NLRB 1398
(1978); Laborers Training, JD-(SF)-261-77.17
B. Single-Employer Relationship
The Supreme Court held in Radio & Television Broad-
cast Technicians Local Union 1264, IBEW v. Broadcast
Service of Mobile, Inc., 380 U.S. 255, 256 (1965), that in
determining whether enterprises constitute a single em-
ployer: "The controlling criteria, set out and elaborated
1 As set forth above, Respondent herein has conceded jurisdiction in
a matter now presently pending before the Board. See Welfare Pension
and Vacation Funds. Blasters. Drillrunners and Miners Union Local No. 29
and their Trustees, JD-864-79.
in Board decisions, are interrelation of operations,
common management, centralized control of labor rela-
tions and common ownership." The Board in Blumenfeld
Theatres Circuit, a Partnership, Blumenfeld Enterprises, a
Division of Cinerama, Inc., Roxie Oakland Theatre, a Part-
nership, 240 NLRB 206, 214, 215 (1979), held that "single
employer status for purposes of the National Labor Rela-
tions Act depends upon all the circumstances of the case,
that not all of the 'controlling criteria' specified by the
Supreme Court (in Radio and Television Broadcast Tech-
nicians) need be present . . ." In Eagle Material Handling
of New Jersey, 227 NLRB 174 (1976), the Board held that
the decisive inquiry in determining whether a single-em-
ployer relationship existed was whether the relationship
between Eagle and Somerset was such that they func-
tioned to a substantial degree as a single enterprise. The
two companies in that case had common directors and
officers, the principal place of business of both was the
same building, the employees of both companies received
some of the same employee benefits, and there was coop-
eration between the employees of the two companies.
The Board concluded in Eagle Material Handling that,
under these circumstances, a single-employer relationship
had been established. See also A & T Glass Company,
Inc., and A & T Auto Radiator, Inc., 231 NLRB 998, 1002
(1977); North Dade Hospital, Inc. and Arnold A. Oper,
d/b/a North Dade Medical Center, 210 NLRB 588 (1974).
In the instant case, there is common management.
Louis Sanzo is Respondent Union's trustee as well as the
president of the Union. There can be no doubt in this
case as in other similar funds that the union trustee is the
dominating official of the fund. Such fund in a sense is
an extension of the Union, providing the benefits the
Union has been successful in acquiring through collec-
tive bargaining on behalf of employees covered by col-
lective-bargaining agreements between the employers
and the Union. Moreover, the Employer trustee King is
a member of over 30 such funds. His interest in the day-
to-day operation of Respondent cannot nearly be that of
Sanzo. Sanzo is both the dominant officer in the Union
as well as in Respondent. Moreover, the evidence estab-
lishes that Sanzo and Cavalieri, Respondent's administra-
tor and alternate union official, are in overall charge of
Respondent's office and that all employees are directly
responsible to Sanzo. Cavalieri, the administrator, is
second in command. The evidence thus establishes
common management as between Respondent and the
Union. The evidence also establishes, as between Re-
spondent and the Union, a centralized control of labor
relations. Cole, Fernandez, and Mitchell were not repre-
sented by any labor organization. Control over their
wages, hours, and other working conditions is essentially
vested in Sanzo and Petito, the Union's trustees. While it
may be true that an employee on Respondent's payroll
would require approval by both the Union's and Em-
ployer's trustees for an increase in wages or other bene-
fits, I find in view of Sanzo's and Petito's daily presence
in Respondent's office and their dominance in running
the day-to-day operation of the office that the Employ-
er's trustees would rely almost exclusively on Sanzo's or
Petito's recommendation with respect to employee bene-
MINERS' WELFARE, PENSION AND VACATION FUNDS 11 57
fits requiring approval of the trustees. The same is un-
doubtedly true with respect to an employee on the
Union's payroll. With respect to routine benefits not re-
quiring the Union's or Respondent's fund approval, such
benefits, whether for employees technically on the
Union's payroll or on Respondent's payroll would be
granted routinely by Sanzo, Petito, or Cavalieri. Under
these circumstances, I find that there exists between the
Union and Respondent a centralized control of labor re-
lations.
I also conclude that the Union and Respondent are
closely interrelated operations. As set forth above, it can
be said that Respondent is merely an extension of the
Union. Its existence is to perpetuate and administer those
benefits achieved by the Union on behalf of employees
that it represents through collective-bargaining agree-
ments with employers. Respondent exists solely for the
purpose of administering such benefits. Moreover, the
operations of both the Union and Respondent are con-
ducted in the same building utilizing the same employees.
There is no dispute that employees Mitchell, Cole, and
Fernandez performed all bookkeeping and clerical oper-
ations for both the Union and Respondent and were su-
pervised in these operations by Sanzo, Petito, and Cava-
lieri. The evidence also establishes that, whether a partic-
ular employee was on Respondent's or the Union's pay-
roll, the amount of their salary was purely arbitrary. In
this connection, neither Cole nor Fernandez was on the
Union's payroll until May 30, 1979, although throughout
their employment they performed work for the Union.
I therefore conclude that, in view of the common
management, the centralized control of labor relations,
the interrelation of operations including the fact that the
place of business of both Respondent and the Union is in
the same building and that the employees on both pay-
rolls work in the same building performing interchange-
ably the work for both Respondent and the Union, Re-
spondent and the Union constitute a single employer.
C. Protected Concerted Activities
The Board held in Painter Tool, Inc., 235 NLRB 1468,
1472 (1978), that an employee's participation as a witness
in an unemployment compensation hearing is protected
activity and that discharge by an employer for such par-
ticipation is a violation of Section 8(a)(l) of the Act.
The Board held in Hunt Tool Company, 192 NLRB
145 (1971), that Respondent did not violate Section
8(a)(1) by discharging an employee because the employ-
ee filed a lawsuit seeking damages under the Longshore-
mens' and Harbor Workers' Compensation Act for al-
leged on-the-job injury. Thus, under Hunt Tool Company,
it was questionable whether participation as a witness in
a workmen's compensation hearing was a protected ac-
tivity. However, the Board overruled Hunt Tool Compa-
ny in Krispy Kreme Doughnut Corp., 245 NLRB 1053
(1979), where it concluded that workmen's compensation
benefits arise out of the employment relationship and are
of common interest to other employees, and therefore an
employee pursuing a claim under a workmen's compen-
sation law is engaged in protected activity. 8
Combining the rationale set forth in Painter with the
rationale set forth in Krispy Kreme, supra, I conclude that
an employee's participation as a witness in connection
with a workmen's compensation case filed by another in-
dividual constitutes protected concerted activity within
the meaning of the Act, and that the discharge, or dis-
crimination of an employee for appearing as a witness on
behalf of an individual filing a workmen's compensation
claim, violates Section 8(a)(l) of the Act.
The Board has consistently held that the discharge of,
or discrimination against, an employee for his participa-
tion in National Labor Relations Board proceedings, in-
cluding filing unfair labor practice charges, testifying in
connection with representation, or unfair labor practice,
proceedings, constitutes a violation of Section 8(a)(l) and
(4) of the Act. Seligman & Associates Inc., 240 NLRB 110
(1979); Fry Foods Inc., 241 NLRB 76 (1979); Pinter Bros.,
Inc., 227 NLRB 921 (1977); Maspeth Trucking Service,
Inc., 240 NLRB 1225 (1979); Pierce Governor Company,
Division of Avis Industrial Corporation, 243 NLRB 1009
(1979).
I therefore conclude that Cole and Fernandez were
engaged in protected concerted activities when they tes-
tified on behalf of Montouro in the workmen's compen-
sation hearing, and that Cole was engaged in protected
activity when she participated in connection with the
National Labor Relations Board investigation concerning
the unfair labor practice charge filed by Montouro and
subsequently testified to in connection with the hearing
resulting from the complaint which issued on such
charge, and that both Cole and Fernandez were engaged
in protected activity on June 19, 1979, and thereafter
when they filed unfair labor practice charges with the
National Labor Relations Board in connection with the
instant case.
D. Alleged Discriminatory Actions of Respondent
Directed Against Cole and Fernandez Excluding Their
Discharge
The Board held recently in Wright Line, a Division of
Wright Line, Inc., 251 NLRB 1083 (1980), that hence-
forth in all cases alleging unlawful discrimination it shall
be required "that the General Counsel make a prima
facie showing sufficient to support the inference that pro-
tected conduct was a 'motivating factor' in the employ-
er's decision. Once this is established, the burden will
shift to the employer to demonstrate that the same action
would have taken place even in the absence of the pro-
tected conduct." Pursuant to the rationale set forth in
Wright Line, supra, I shall first consider whether the
General Counsel has made a prima facie showing suffi-
cient to support the inference that the protected activi-
ties of Cole and Fernandez described above were a moti-
vating factor in the alleged discrimination described
below.
'" The Fourth Circuit denied enforcement concluding that pursuing a
workmen's compensation claim as not a "concerted" activity. Krispy
Kreme Doujghnut Corp. r N.L. R B.. 635 F 2d 304 (4th Cir 1980).
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel has clearly established Respond-
ent's animus in connection with all of the protected con-
certed activities engaged in by Cole and Fernandez de-
scribed above. Respondent's animus is demonstrated by
Sanzo's and Petito's threats of discharge to Cole and
Fernandez on October 4, prior to Cole's testimony at the
workmen's compensation hearing. Respondent's animus
is further demonstrated by Sanzo's criticism directed to
Cole on November 15, at the workmen's compensation
hearing, that she had not testified truthfully at the work-
men's compensation hearing on October 4.
Respondent's animus is further evidenced by the testi-
mony of both Cole and Fernandez at the workmen's
compensation hearing held on October 4 and November
15. Their testimony amounted to virtual admissions by
Sanzo and Petito that Montouro had been discharged
from his position with Respondent because he had filed a
workmen's compensation claim. Such testimony in my
opinion could not help but result in animus by Sanzo and
Petito toward Cole and Fernandez, employees with
whom they had enjoyed a particularly close relationship
and with whom they had confided as to the reason for
Montouro's discharge. The natural effect of such testimo-
ny on Sanzo and Petito would be that they would feel
betrayed by trusted employees, and such feelings of be-
trayal would naturally result in intense animus toward
Cole and Fernandez.
Respondent's animus directed toward Cole is further
evidenced by her participation in the investigation and
testimony in connection with the National Labor Rela-
tions Board charge against Respondent filed by Mon-
touro. In this connection, Cole informed Sanzo on Octo-
ber 25, 1978, that she had supplied the Board agent in-
vestigating Montouro's charge with an affidavit concern-
ing the events surrounding his discharge. In view of
Cole's testimony before the Workmen's Compensation
Board on October 4, Sanzo must have had a good idea
as to the content of Cole's National Labor Relations
Board affidavit. Moreover, during the National Labor
Relations Board hearing in connection with Montouro's
charge held on May 4, 1979, Cole testified as to the
animus by Sanzo and Petito toward Montouro and as to
the facts surrounding his discharge. Such testimony con-
tradicted that of Sanzo. For the same reasons set forth in
connection with my discussion concerning the animus of
Respondent resulting from Cole's and Fernandez' testi-
mony before the Workmen's Compensation Board, addi-
tional animus toward Cole as a result of her participation
and testimony in connection with the National Labor
Relations Board proceeding filed by Montouro would be
expected. 19
Respondent's animus toward Cole and Fernandez re-
sulting from their participation in the workmen's com-
pensation case and unfair labor practice case described
above is admitted by both King and Petito. In this
regard, both Petito and King testified that a number of
the alleged discriminatory changes in the employment re-
lationship between Respondent and Cole and Fernandez
was the result of a "tightening up" process resulting
19 As noted in the facts above, the Administrative Law Judge in his
Decision gave considerable weight to Cole's testimony i reaching his
conclusion that Montouro was discharged in siolation of the Act.
from the "allegations and innuendos" attributed to Cole
and Fernandez. Both King and Petito admitted that
among the "allegations and innuendos" which led to
such "tightening up" was the participation by Cole and
Fernandez in the Workmen's Compensation Board and
National Labor Relations Board proceedings which were
then pending. Moreover, King admitted that the ultimate
decision to subcontract out the work of Cole and Fer-
nandez to Tolley resulted at least in part from such "alle-
gations and innuendos."
Respondent's animus is still further evidenced by Peti-
to's statements to Cole and Fernandez on June 20, upon
being informed by Cole and Fernandez that they had left
work on June 19 to file the instant charges herein in
Case 2-CA-16528 when he stated that henceforth Cole
and Fernandez would not be paid for any time they were
out of the office and this included sick time, lunchtime,
and time to cash paychecks as well as time to go to the
National Labor Relations Board to file charges. Such
statements, aside from constituting evidence that such
changes were discriminatorily motivated, constitute inde-
pendent evidence of Respondent's animus.
Respondent's animus is still further evidenced by the
sudden change in the work relationship between Re-
spondent's officials Petito, Sanzo, and Cavalieri and em-
ployees Cole and Fernandez immediately following their
participation in the workmen's compensation hearing on
October 4. In this connection, Cavalieri testified that the
work relationship began to change "more or less with
the workmen's compensation case." Further, Mitchell
testified that she observed that tension existed in the
office when she first became employed in the beginning
of December 1978.
E. he Hiring of Rose Mitchell
I conclude that the hiring of Rose Mitchell by Re-
spondent is circumstantial evidence in connection with
the General Counsel's prima facie case that Respondent
engaged in the discriminatory conduct directed to Cole
and Fernandez alleged in the complaint. In this connec-
tion, Rose Mitchell was first employed by Respondent
shortly after Cole's and Fernandez' participation in the
workmen's compensation hearing. In view of my finding
that Respondent and the Union constitute a single em-
ployer, that Mitchell was placed on the Union's payroll
is irrelevent. There is no conceivable reason, economic
or otherwise, which necessitated Mitchell's employ. Her
work in the office consisted essentially of answering tele-
phone calls, responding to the door buzzer, recording
union dues, and at times mailing out notices of union
meetings and occasionally assisting in the redemption of
vacation stamps. All of these duties were formerly per-
formed without undue hardship by Cole and Fernandez.
There is no evidence whatever that Cole or Fernandez
was negligent or incapable of performing their job duties
nor is there any evidence that the performance of their
required job duties necessitated additional help. To the
contrary, the evidence suggests that Cole and Fernandez
had been performing all job functions required to main-
tain the office in a most acceptable manner. Respondent
had no complaints about their work nor did Cole and
MINERS' WELFARE PENSION AND VACATION FUNDS I 1 59
Fernandez request additional help. Under these circum-
stances, I conclude that the hiring of Rose Mitchell was
for the purpose of enabling Respondent to reduce the job
responsibilities of Cole and Fernandez as a prelude to
their eventual discharge and subsequent replacement by
Tolley.
Based on the intense hostility by Respondent toward
Cole and Fernandez as described above and based on the
hiring of Rose Mitchell which I conclude was for no
other purpose other than to enable Respondent to dimin-
ish the work responsibilities of Cole and Fernandez as a
prelude for their eventual replacement by Tolley and
based on the admissions of King and Petito that changes
in the working conditions of Cole and Fernandez result-
ed from their participation in the workmen's compensa-
tion hearing, the National Labor Relations Board hear-
ing, and the filing of the unfair labor practice charges
herein, I conclude that the General Counsel has estab-
lished a prima facie showing that their protected activi-
ties were a motivating factor in the alleged discriminato-
ry changes in working conditions.
I note that prior to June 20, 1979, Fernandez was not
a participant in any National Labor Relations Board pro-
ceeding. Therefore any discrimination involving her and
taking place prior to June 20, I will attribute entirely to
her participation in the workmen's compensation hearing.
I will attribute alleged discriminatory conduct occurring
on or after June 20 involving Fernandez to her participa-
tion in the workmen's compensation hearing and to the
unfair labor practice charges filed by Fernandez. With
respect to alleged discriminatory conduct, which the evi-
dence indicates took place at an unspecified date in June
1979, 1 find that the General Counsel has not sustained
its burden of establishing that such discriminatory con-
duct was motivated in part by Fernandez' participation
in connection with the National Labor Relations Board
charges filed herein.
On the basis of my reasoning described above, I con-
clude that the General Counsel has established a prima
facie showing sufficient to support the inference that the
protected activities of Cole and Fernandez were a moti-
vating factor in the following discriminatory conduct:
1. Beginning in December 1978, Respondent reduced
the job responsibilities of Cole by refusing to allow her
to call union members at their homes to inform them of
work opportunities.
2. Since on or about December 1978, Respondent re-
duced the job responsibilities of Cole and Fernandez by
refusing to allow them to deal directly with Respond-
ent's accountant or with the bank where Respondent
keeps its account.
3. Since December 1978, Respondent reduced the job
responsibilities of Cole and Fernandez by refusing to
allow them to distribute pension checks to individuals
entitled to receive such checks.
4. Since on or about December 1978 or January 1979,
Respondent reduced the job responsibilities of Cole and
Fernandez by ordering them not to answer the office
door or telephone at Respondent's office. 20
20 That Cole or Fernandez may have on occasion answered he tele-
phone or door buzzer does not diminish in my opinion that Respondent
nevertheless discriminatorily reduced their job responsibilities
5. Since on or about May 1979. Respondent reduced
the job responsibilities of Fernandez by refusing to allow
her to obtain from the General Contractors Association
its signature on certain documents.
6. Since on or about June 1979, Respondent reduced
the job responsibilities of Cole by refusing to allow her
to fill out pension and welfare claim forms for members.
7. Since on or about August 1979, Respondent reduced
the job responsibilities of Fernandez by refusing to allow
her to send letters under her signature to employers who
were deficient in their welfare and pension contributions.
8. Since on or about June 1979, Respondent reduced
the job responsibilities of Cole and Fernandez by elimi-
nating their duties regarding Respondent's petty cash
fund.
With respect to paragraphs I through 8, the Board has
held that the reduction of job responsibilities without any
reduction in pay is unlawful if discriminatorily motivat-
ed. Teleprompter of Tuscaloosa, Inc., 233 NLRB 481, 486
(1977).
9. Since on or about June 1979, Respondent harassed
and discriminated against Cole and Fernandez by its fail-
ure to issue new door keys to Cole and Fernandez. 2 '
10. In June 1979, Respondent denied pay raises of $25
per week to Cole and Fernandez.
11. In June 1979, Respondent imposed a restriction
upon Cole and Fernandez with respect to their vacations
by requiring that vacations be taken only during the
months of July and August.
12. Since June 1979, Respondent closed its kitchen
facilities located at Respondent's office and denied Cole
and Fernandez the use thereof.
13. Since June 20, 1979, Respondent revoked and
denied paid sick leave benefits previously enjoyed by
Cole and Fernandez and eliminated paid coffeebreaks
and paid check cashing time previously enjoyed by Cole
and Fernandez.
With respect to paragraphs 9 through 13, the Board
has consistently held that such conduct is unlawful if dis-
criminatorily motivated. Laredo Coca Cola Bottling Co.,
241 NLRB 167 (1979); East Towne Chrysler Motors, Inc.,
238 NLRB 1379 (1978); Winco Petroleum Company, 241
NLRB 1118 (1979); Chemtronics Inc., 236 NLRB 978; In-
terstate Transport Security, 240 NLRB 274 (1979); Down-
town Ford Sales, JD-(SF)-190-79.
Counsel for Respondent contends that, assuming that
the conduct set forth in paragraphs I through 8 took
place, such conduct would not violate the Act since the
reduction of job responsibilities took place without a re-
duction in pay and had the effect of making the jobs of
Cole and Fernandez easier. Respondent's counsel argues
that, rather than being discriminatory, the reduction in
job responsibilities would actually amount to a benefit. I
do not find merit in Respondent counsel's contention. It
is well established that any change by an employer in the
working conditions of an employee, including job re-
" Although this allegation "was nt specifically alleged in the com-
plaint. such allegation was generally encompassed by the complaint.
Miortei-er, the allegation was fully litigated Sec l'ictor .iceli and Sam
Micei d h' Riverside Produce Company, 242 NL.RH 615 (1979); Gerald
G (Joigin d/h;ua G(;gin ruckng. 229 NLRB 529 ( 19771
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sponsibilities, is unlawful if discriminatorily motivated. In
this connection, the Board held in Teleprompter, supra,
that a reduction in job responsibilities, although without
a loss in pay, constitutes an unlawful demotion where
discriminatorily motivated. In such case, the message is
clear, that message being that the employee's services are
no longer wanted.
Respondent offers no other defense as to the allega-
tions set forth in paragraphs I through 8 except the de-
nials by Respondent. In view of my credibility resolu-
tions discussed in detail above, I have credited the testi-
mony of Cole and Fernandez with respect to all of these
allegations. Therefore, I conclude that, with respect to
the allegations set forth in paragraphs I through 8, Re-
spondent has not met its burden under Wright Line,
supra, to establish that the alleged discriminatory acts
would have taken place in the absence of the protected
activities by Cole and Fernandez. I therefore conclude
that:
By engaging in the conduct set forth in paragraph 1,
Respondent violated Section 8(a)(1) and (4) of the Act as
to Cole.
By engaging in the conduct set forth in paragraph 2,
Respondent violated Section 8(a)(1) and (4) as to Cole,
8(a)(l) as to Fernandez from December 1978 until June
20, 1979, and thereafter 8(a)(1) and (4) as to Fernandez.
By engaging in the conduct set forth in paragraph 3,
Respondent violated Section 8(a)(l) and (4) as to Cole,
8(a)(1) as to Fernandez from December 1978 until June
20, 1979, and thereafter 8(a)(1) and (4) as to Fernandez.
By engaging in the conduct set forth in paragraph 4,
Respondent violated Section 8(a)(l) and (4) as to Cole,
8(a)(1) as to Fernandez from December 1978 until June
20, 1979, and thereafter 8(a)(1) and (4) as to Fernandez.
By engaging in the conduct set forth in paragraph 5,
Respondent violated Section 8(a)(l) as to Fernandez
from May 1979 until June 20, 1979, and thereafter 8(a)(1)
and (4) as to Fernandez.
By engaging in the conduct set forth in paragraph 6,
Respondent violated Section 8(a)(1) and (4) as to Cole.
By engaging in the conduct set forth in paragraph 7,
Respondent violated Section 8(a)(l) and (4) as to Fernan-
dez.
By engaging in the conduct set forth in paragraph 8,
Respondent violated Section 8(a)(l) and (4) as to Cole,
8(a)(1) as to Fernandez from June 1979 until June 20,
1979, and thereafter 8(a)(l) and (4) as to Fernandez.
With respect to the conduct set forth in paragraphs 9
through 13, Respondent contends that such conduct took
place as a result of the "tightening up" which resulted
from the "allegations and innuendos" of Cole and Fer-
nandez. I shall now consider whether Respondent meets
the burden of demonstrating that the actions set forth in
paragraphs 9 through 13 would have taken place in the
absence of the protected activities of Cole and Fernan-
dez.
As set forth above, Respondent's representatives,
Petito and King, admit that Respondent took the actions
described in paragraphs 9 through 13 as part of a "tight-
ening up process" which resulted from the "allegations
and innuendos" by Cole and Fernandez. King and Petito
further admit that such allegations and innuendos include
the participation of Cole and Fernandez in the work-
men's compensation proceeding and the participation of
Cole in connection with the unfair labor practice pro-
ceeding involving Montouro as well as the filing of the
unfair labor practice charges herein by Cole and Fernan-
dez. Respondent, however, contends that despite these
admissions the motivating factor behind the action taken
was not the participation by Cole and Fernandez in the
protected activities described above, but rather the alle-
gations by Cole concerning Sanzo and Petito in connec-
tion with the government investigations into Respond-
ent's funds.
At the outset, I find it significant that there is no evi-
dence of any "allegations or innuendos" attributable by
Respondent to Fernandez. All of the "allegations and in-
nuendos" were attributed to Cole. Further, the allega-
tions attributed to Cole were essentially directed to Ca-
valieri and Edelstein, an accountant employed by Walter
Hirsch, who served as Respondent's accountant. Re-
spondent contends that the result of the allegations by
Cole was to require Hirsch to extend his audit and it was
such conduct that motivated the so-called "tightening
up." In support of this contention, Walter Hirsch initially
testified that he did extend his audit because of the "alle-
gations and innuendos" cast upon the trustees by Cole.
Hirsch further testified that he reported to the trustees
the need to extend his audit because of such allegations
at a special trustees meeting convened on June 1, 1979.
However, as set forth above, Hirsch also testified that,
prior to the allegations by Cole which did not take place
until sometime in April 1979, and at times thereafter, he
was aware of the ongoing investigations of Respondent
by various government agencies. In this connection, he
was aware prior to April 1979 that government agents
had taken physical possession of certain of Respondent's
books. Hirsch ultimately admitted that it was these gov-
ernment investigations that actually impelled him to
extend his audit, rather than any "allegations and innuen-
dos" by Cole. Further, Edelstein testified that he was in-
structed by Hirsch in January 1979, several months prior
to any so-called allegations by Cole, to be very careful in
doing every required auditing step and not to leave any
steps undone because Respondent was under investiga-
tion. On the basis of the testimony of Hirsch and Edel-
stein, I conclude that any necessity to extend the audit
was the result of the knowledge by Hirsch in January
1979 of the ongoing government investigations rather
than any "allegations or innuendos" made by Cole in
April 1979 or thereafter. Further, simple prudence would
dictate to any accountant with knowledge of such gov-
ernment investigations the necessity of a special audit.
Moreover, the newspaper stories set forth in the New
York Daily News, described above and presumably read
by all parties to this proceeding, were far more detailed
and inflammatory than any statements attributed by Re-
spondent to Cole.
Respondent also contends that the "allegations and in-
nuendos" by Cole and Fernandez and the sullen attitudes
of these employees so offended Respondent that it was
justified in taking the actions described in paragraphs 9
through 13. As argued by the General Counsel in his
MINERS' WELFARE, PENSION AND VACATION FUNDS 1161
brief, "it would be ludicrous to conclude that Respond-
ent developed its animus toward Cole and Fernandez not
because they gave testimony at state and federal agencies
depicting Respondent's agents as liars, scoundrels, and
violators of state and federal law but rather because they
sullied the reputations of these agents in conversations
inside Respondent's office with individuals already famil-
iar with the ongoing government investigations .... "
I find it highly significant in connection with Respond-
ent's defense that the pattern of discriminatory conduct
engaged in by Respondent which began by diminishing
the job responsibilities of both Cole and Fernandez com-
menced in December 1978 and January 1979 immediately
following Cole's and Fernandez' participation in the
workmen's compensation hearing. Such discriminatory
conduct preceded any "allegations and innuendos" by
Cole or any actions by either Cole or Fernandez which
could be characterized as insubordinate, sullen, uncoo-
perative, or improper.
I therefore conclude that pursuant to Wright Line,
supra, Respondent has not met its burden, in that it has
failed to demonstrate that the alleged discriminatory
action set forth in paragraphs 9 through 13 would have
taken place in the absence of the protected conduct. Ac-
cordingly, I find that it was the participation by Cole
and Fernandez in the workmen's compensation proceed-
ing involving Montouro, the National Labor Relations
Board proceeding involving Montouro, and the subse-
quent filing of the instant unfair labor practice charges
by Cole and Fernandez that motivated the discriminato-
ry conduct set forth in paragraphs 9 through 13. 1 also
conclude that, when Respondent's officials referred to
the so-called "tightening up process" which resulted
from the "allegations and innuendos" by Cole and Fer-
nandez, such phrases were merely code words to express
retaliation by Respondent for the protected activities of
Cole and Fernandez.
On the basis of the above, I conclude that, by engag-
ing in the conduct set forth in paragraphs 9 through 12,
Respondent violated Section 8(a)(1) and (4) as to Cole,
8(a)(1) as to Fernandez from June 1979 until June 20,
1979, and thereafter 8(a)(l) and (4) as to Fernandez. I
also conclude that by engaging in the conduct set forth
in paragraph 13 Respondent violated Section 8(a)(1) and
(4) as to Cole and Fernandez.
F. The Discharge of Cole and Fernandez
Applying the Wright Line rationale, supra, to the in-
stant case I conclude that the General Counsel has estab-
lished a prima facie showing sufficient to support the in-
ference that the protected activity of Cole and Fernan-
dez was a motivating factor in their discharge. In this
connection, the General Counsel has established as set
forth and discussed above that Respondent harbored in-
tense animus toward Cole and Fernandez because of
their protected activities set forth above. This is evi-
denced by the threat of discharge followed by the pat-
tern of discriminatory conduct engaged in by Respond-
ent which commenced in December 1978 and continued
thereafter until the employees' discharge on November
30, 1979. The General Counsel argues convincingly that
such unlawful conduct which stripped them of their job
responsibilities, made their working conditions more
onerous, and eliminated various employee benefits was
designed to harass, demean, and force the employees to
resign. When such resignation was not forthcoming, Re-
spondent discharged them. Further evidence in support
of the General Counsel's prima facie case is the admission
by King that the discharge of Cole and Fernandez was
in part motivated by the "allegations and innuendos." As
set forth and discussed above, I have concluded that the
phrases constantly used by Respondent's representatives,
"tightening up" as a result of the "allegations and innu-
endos," were merely code words to indicate actions
taken in retaliation against Cole and Fernandez because
of their protected activities. In this connection, when
King was questioned, whether during the June I trustees
meeting, at which time the possibility of subcontracting
out the work of Cole and Fernandez to Tolley was first
discussed, Respondent had considered other alternative
measures in order to relieve the office problems that ex-
isted as a result of the "allegations and innuendos," his
response to this question was, "That wasn't a considera-
tion at that point. The consideration at that point was
getting rid of them [Cole and Fernandez]." This testimo-
ny tends to strongly establish that the motivating factor
in replacing Cole and Fernandez with Tolley was the
"allegations and innuendos" by Cole and Fernandez
which I have concluded to be discriminatory consider-
ations, rather than any economic considerations discussed
below. King's admission indicates that as of June 1 the
decision had already been made to replace Cole and Fer-
nandez and that the decision was motivated by Respond-
ent's animus resulting from their protected activities.
Additionally, on November 30, when Cole and Fer-
nandez were notified of their discharge and replacement
by Tolley, Cole asked Sanzo if he had anything to do
with their replacement. Sanzo replied, "No, that's not
my style. It was Mr. Petito and Mr. Cavalieri's doing.
They wanted you out of here." Such statement, taken to-
gether with the admissions of King, further establishes
the discriminatory motivation.
Further evidence that the decision to replace Cole and
Fernandez was motivated by their protected activities
rather than economic considerations is established
through the shifting reasons as testified to by Respond-
ent's officials. In this connection, King's testimony that
the decision to replace Cole and Fernandez was in part
motivated by the "allegations and innuendos" is contra-
dicted by Sanzo and Petito who testified that the only
reason for replacing Cole and Fernandez with Tolley
was to "save money." The Board has consistently held
that, where a respondent has offered shifting or contra-
dictory reasons for discharge, this is evidence of a dis-
criminatory motive. Taft Broadcasting Company, 238
NLRB 588 (1978); PRS Limited, d/b/a F & M. Import-
ing Co., 237 NLRB 620 (1978); Grede Foundries. Inc., 211
NLRB 710, 711 (1974).
Respondent's counsel contends that the replacement of
Cole and Fernandez was economically motivated. In
support of this defense, the testimony of Taber and other
Respondent officials establishes that, in March 1978, Re-
spondent was informed by Taber that Lloyds of London
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not renew the fiduciary insurance coverage be-
cause Respondent's administrative expenses were too
high and Cavalieri's position with Respondent and the
Union represented a conflict of interest. The evidence
also establishes, however, that, prior to effecting any re-
duction in administrative expenses, Respondent was able
to procure similar insurance from Aetna. There is no evi-
dence whatsoever that Aetna suggested that Respond-
ent's administrative expenses were too high before it
issued its policy. Accordingly as of June 1979, when the
trustees met and considered the replacement of Cole and
Fernandez with Tolley, there was no pressing need to
reduce Respondent's administrative expenses.
Respondent contends that, by replacing Cole and Fer-
nandez with Tolley, a savings of $10,000 was achieved.
The annual fee charged by Tolley to Respondent for
performance of the same services performed by Cole and
Fernandez is $28,500 per year. The total cost of the same
service provided by Cole and Fernandez, including their
salaries, social security, unemployment insurance, and
fringe benefits totaled $38,500 per year. All other things
being equal, this would amount to a saving of approxi-
mately $10,000 per year. However, during this period,
Respondent hired Rose Mitchell at an annual expense of
approximately $10,500 per year. While it is true that
Rose Mitchell was placed on the union payroll rather
than Respondent's fund payroll, I have concluded, as set
forth and discussed above, that Respondent and the
Union constitute a single employer. I have also conclud-
ed that there was no necessity in the hiring of Rose
Mitchell, other than to have her available to perform job
duties that were discriminatorily taken away from Cole
and Fernandez. The evidence establishes that Cole and
Fernandez performed that work presently being per-
formed by Tolley and Mitchell. Therefore, the net sav-
ings Respondent achieved by replacing Cole and Fernan-
dez with Tolley and Mitchell is zero. I therefore con-
clude that the replacement of Cole and Fernandez by
Tolley did not result in any economic savings by Re-
spondent.
Even if it were ultimately concluded that Respondent
and the Union were not a single employer, the savings
achieved by replacing Cole and Fernandez with Tolley
would only be approximately 5 percent. 22
Moreover, it would appear that had Respondent
wanted to reduce administrative expenses of its funds it
could have done so without replacing Cole and Fernan-
dez. This could have been accomplished by arbitrarily
charging the Union more than the $100 per week pres-
ently being charged. That Respondent could do this is
evidenced by the fact that from the beginning of their
employ until June 1979 the Union was never charged at
all for their services. Another possible solution would
have been to place either Cole or Fernandez on the
Union's payroll as Mitchell was placed on the Union's
payroll. This would have resulted in a savings of over
$19,000, a far greater savings than achieved by replacing
Cole and Fernandez with Tolley.
22 Respondent's fund administrative expenses for the year 1978 totaled
approximately $195,000. Accordingly. a savings of $10,000 would amount
to approximately a 5-percent total savings in administrative expenses
Further, although Respondent contends the replace-
ment of Cole and Fernandez by Tolley was for econom-
ic reasons, it is significant that other than the replace-
ment of Cole and Fernandez by Tolley, and the elimina-
tion of the position of assistant administrator, which re-
sulted in a minimal savings, no other economic measures
were taken by Respondent to reduce administrative ex-
penses. On the contrary, at a time when Respondent re-
placed Cole and Fernandez, they increased the annual
fee paid for the services of Tolley, their attorneys, and
their accountant, Hirsch. In addition, benefits to employ-
ees were also increased.
The validity of Respondent's economic defense is fur-
ther diminished sharply if not entirely by the admissions
of King that as of June I Respondent had decided to
"get rid of" Cole and Fernandez because of the "allega-
tions and innuendos" and the admission by Sanzo that
Cavalieri and Petito wanted them out. Respondent's eco-
nomic defense is still further diminished by the shifting
reasons for the replacement of Cole and Fernandez de-
scribed above.
Applying the principles of Wright Line, supra, to Re-
spondent's defense, I conclude that Respondent has failed
to meet its burden in that it has failed to establish that
the replacement of Cole and Fernandez by Tolley was
motivated by economic considerations. Accordingly, it is
my conclusion that Cole and Fernandez were discharged
by Respondent for engaging in the protected activities
described above and that such discharge violates Section
8(a)(l) and (4) of the Act.
CONCLUSIONS oiF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent and the Union constitute a single em-
ployer within the meaning of the Act.
4. Cole and Fernandez engaged in protected concerted
activities within the meaning of the Act when they ap-
peared and testified as witnesses in a workmen's compen-
sation proceeding involving Montouro, when Cole ap-
peared and testified in a National Labor Relations Board
proceeding in connection with an unfair labor practice
charge filed by Montouro, and when Cole and Fernan-
dez filed unfair labor practice charges against Respond-
ent in the instant case.
5. Respondent, by reducing the job responsibilities of
Cole and Fernandez, denying pay raises to Cole and Fer-
nandez, reducing benefits and imposing more onerous
working conditions upon Cole and Fernandez as de-
scribed in the "Analysis" section herein, because said em-
ployees engaged in the protected concerted activities de-
scribed in paragraph 4 above, violated Section 8(a)(1)
and (4) of the Act.
6. Respondent by discharging Cole and Fernandez be-
cause they engaged in the protected concerted activities
described above in paragraph 4 violated Section 8(a)(1)
and (4) of the Act.
MINERS' WELFARE, IPENSI()ON AND VACATION FUNDS 1163
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE RENID)Y
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) and (4) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act. My recom-
mended Order will require Respondent to offer Joyce
Cole and Julieta Fernandez reinstatement to their former
positions of employment, or, if those positions no longer
exist, to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges. In
addition, Respondent shall make Cole and Fernandez
whole for any loss of earnings they have suffered or may
suffer by reason of the unlawful discrimination or refusal
to reinstate them, by paying to them a sum of money
equal to the amount they normally would have earned
from the date of their unlawful discharge until the date
Respondent offers them reinstatement, computed in the
manner set forth by the Board in F W. Woolworth Com-
pany, 90 NLRB 289 (1950), together with interest there-
on as computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977); see, generally Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). Payroll
and other records in possession of Respondent are to be
made available to the Board or its agents to assist in such
computation. Additionally, Respondent will be required
to restore to Cole and Fernandez, (a) those job responsi-
bilities previously part of their normal employment and
discriminatorily eliminated as set forth above in the anal-
ysis section herein, and as set forth below in the recom-
mended Order, (b) to restore those job benefits eliminat-
ed or reduced by Respondent and to eliminate those
working conditions which were more onerous as a result
of the discrimination herein, described above in the
"Analysis" section, and set forth below in the recom-
mended Order, and (c) to grant Cole and Fernandez a
$25-per-week raise that Respondent discriminatorily
denied each employee. Additionally, Respondent will re-
imburse Cole 1 hour's sick leave discriminatorily deduct-
ed from her pay on June 21, and will reimburse Fernan-
dez I day's pay for sick leave discriminatorily deducted
from her pay in September 1979, with interest computed
as set forth above.
Upon the foregoing findings of fact, analysis, and con-
clusions of law, and upon the entire record, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 2 3
The Respondent, Welfare, Pension and Vacation
Funds, Blasters, Drillrunners and Miners Union Local
2a In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order, herein shall. as prosided
in Sec. 102.48 of the Rules and Regulations, be adopted h the Board and
become its findings, conclusions, and Order, aid all objections shall he
deemed waived for all purposes
No. 29 and their trustees, Louis Sanzo. Amadio A.
Petito., Patricia Cahill, and Theodore King, New York,
New York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Reducing the job responsibilities of employees by
refusing to allow them to call employees represented by
the Blasters, Drillrunners and Miners Union Local No.
29, of the Laborers' International Union of North Amer-
ica, AFL CIO, herein called the Union, at their homes
to inform them of work opportunities.
(b) Reducing the job responsibilities of employees by
refusing to allow them to deal directly with Respond-
ent's accountant or with the bank where Respondent's
fund keeps its accounts.
(c) Reducing the job responsibilities of employees by
refusing to allow them to distribute pension checks to in-
dividuals entitled to receive such checks.
(d) Reducing the job responsibilities of employees by
ordering them not to answer the office door or telephone
at Respondent's office.
(e) Reducing the job responsibilities of employees by
refusing to allow them to obtain from the General Con-
tractors' Association its signature on certain documents.
(f) Reducing the job responsibilities of employees by
refusing to allow them to fill out pension and welfare
claim forms for employees represented by the Union.
(g) Reducing the job responsibilities of employees by
refusing to allow them to send letters to employers under
their signatures, who are deficient in their welfare and
pension contributions.
(h) Reducing the job responsibilities of employees by
eliminating their duties regarding Respondent's petty
cash fund.
(i) Reducing employment benefits and making working
conditions more onerous by refusing to furnish employ-
ees with the key to Respondent's office.
0) Reducing employment benefits and making working
conditions more onerous by imposing a restriction upon
employees with respect to their vacations, by requiring
that they take vacation only during the months of July
and August.
(k) Reducing employment benefits and making work-
ing conditions more onerous by closing the kitchen facili-
ties of Respondent's office and denying employees the
use thereof.
(1) Reducing employment benefits and making working
conditions more onerous by revoking and denying paid
sick leave benefits previously enjoyed by employees.
(m) Reducing employment benefits and making work-
ing conditions more onerous by eliminating paid coffee-
breaks and paid check-cashing time previously enjoyed
by employees.
(n) Denying pay raises promised to employees.
(o) Discharging or otherwise discriminating against
employees for engaging in protected concerted activities.
(p) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
1164 DECISIONS OF NATI()NAL LI.ABOR RELATIONS BOARD
(a) Offer to Joyce Cole and Julieta Fernandez immedi-
ate and full reinstatement to their former jobs, and, if
they no longer exist, to substantially equivalent employ-
ment and make Cole and Fernandez whole for any loss
of pay they may have suffered as a result of the unlawful
discrimination practiced against them in the manner set
forth in the section of this Decision entitled "The
Remedy." In addition, such backpay shall include an
annual salary increase of $25 per week promised to Cole
and Fernandez.
(b) Pay to Cole I hour's sick pay in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) Pay to Fernandez 1 day's sick pay in the manner
set forth in the section of this Decision entitled "The
Remedy."
(d) Restore to the job responsibilities of Cole the duty
of calling union members at their homes to inform them
of work opportunities.
(e) Restore to the job responsibilities of Cole and Fer-
nandez the duty to allow them to deal directly with Re-
spondent's accountant or with the bank where Respond-
ent Funds keeps its accounts.
(f) Restore to the job responsibilities of Cole and Fer-
nandez the duty of allowing them to distribute pension
checks to individuals entitled to receive such checks.
(g) Restore to the job responsibilities of Cole and Fer-
nandez the duty of answering the office door and the
telephone at Respondent's office.
(h) Restore to the job responsibilities of Fernandez the
duty of allowing her to obtain from the General Con-
tractors Association its signature on certain documents.
(i) Restore to the job responsibilities of Cole the duty
of allowing her to fill out pension and welfare claim
forms for members.
(j) Restore to the job responsibilities of Fernandez the
duty of allowing her to send letters to employers under
her signature, who are deficient in their welfare and pen-
sion contributions.
(k) Restore to the job responsibilities of Cole and Fer-
nandez their duties regarding Respondent's petty cash
fund.
(I) Furnish to Cole and Fernandez keys to Respond-
ent's office.
(m) Restore the vacation policy followed with respect
to Cole and Fernandez prior to June 1979.
(n) Reopen Respondent's kitchen facilities and permit
Cole and Fernandez the use thereof.
(o) Reinstate the paid sick leave policy in effect prior
to on or about June 20, 1979.
(p) Reinstate paid coffeebreaks and paid check-cashing
time procedures previously enjoyed by Cole and Fernan-
dez prior to June 20, 1979.
(q) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(r) Post at its office, located at 283 East 75th Street,
New York, New York, copies of the attached notice
marked "Appendix." 2 4 Copies of said notice, on forms
privided by the Regional Director for Region 2, after
being signed by Respondent authorized representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by it to insure that said notices are
not altered, defaced, or covered by any other material.
(s) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
24 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National L.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court (of Appeals Enforcing an
Order of the National Labor Relations Board"'