Rispo Realty and Development Co.

National Labor Relations Board - Board Decisions

Mar 19, 1979

241 N.L.R.B. 158 (N.L.R.B. 1979)

I) (SIl()NS I NAI toNAlI AI/PR Rl I)INS OAR!I)
Risipo Rcal andi Dcvelopmcnt (lompan and/ior
Rispo Building Company and Anllho) (aterinacci.
('ase (CA 10048
iarch 19, 197)
I[:,'ISION ANI) )RI)I:R
By' /Nini RSN l PNI [), 4i RI'Ii, AND) I RI ISI)AI I
On Novenmber 9. 197. Administrative Iasw .1 tdgce
Irving M. lierman issued the attacel d I)ccic!sion in
this proceeding. Iheractcr, R espoindent filed excep-
tions and a upporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as aiiiended, the Na-
tional Labor Relations Board has Idelegated its ail-
thority in this proceeding to a three-niember tpanl.
The Board has considered the record and the L-
tached [)Decision in light o te exceptions ad briet
and has decided to alirm te rlings tindings.t nd
conclusions of the Adminisr:atixe lxass Judge a to
adopt his recommended ()Order.
() Rl)il
Pursuant to Section 10(c) of the Ntional Iabor
Relations Act, s amenrded, the Nationial I hor Rcla-
tions Board adopts as its ()rder tlhe recommenrded ()r-
der of the Administrative l.aw .lJudge and heicby or-
ders that Respondent, Rispo Realtv and
Development ( orpan ailid/or Rispo Buildil (otI-
pany Pmi, ()Oht, its oieers, agents, succssors.
and assigns, shall take the actitn set orth in tIle said
reconmmended rd(tr', xcept tha te aIllached iioice
is substituted fknr that of the ,Adiniisiti\ C I. Ii
Judge.
ResponidenI has ex, pted f . .c ..t inn c clilitll
x
\ iillll!' d .iite I .tihe \d-
iiiniratixe It,a, Judge It L th n [iod's ',ii .]hi d poc> ItOl I 'iX ll
ait adilirstrat iv n a Sk dg's ceSOg t i nntqs I altI ne-pe'i rI) ClcdlibitrI it11'II '
Ihe cl hir pernl crl ancr c it t ti' Cl lin tC %i dl ltC CiTiMi e Ie, ill CI III i t tilet
resolutiT ; Me niti lvln t .NtninIrrd /t'i, .l / / l t t<. lir - I NL } 5iO 44
i1950). enid 188 t'.2d 3i2 3li ('i, it) ) We tunia , .aiehilt e nIlllr il the
vctioi nid imid Io bnsis l yr t'ln icrstn lsi cing
zResp nmdent's uqtIuetl itnr iorl witlnnlllCll I I icl'h ictc i A t II'inc r il
and Respn mrdent' exceptitun ad in l d dci t l c l linti' -iC iill
posiiwmn of the parties
APITFNI)I\
Ni)IIi 'I'i ltt mi it(1 i
POSItI) IBY ORDIR ¢11 I1lt1
NAII(NA Ixto, i/r RFI A IINS BI()AID
An Agency of the linited States (overnmcnt
'I: xx tti NI threaten to work n11onlni;,on.
WI: vlt I Nt warlln aw, eMplo] eis not o coll-
plain to their union about volking_. conditions.
TI \ I ,oI discharge or otherwise discrimi-
niate Li, 1 _\'sl an> eruploveic for seeking te assist-
aniicc i' 1 tninon hr otherwiC engaging i union
llr oer ;tl\it\ pltected 1\ Section 7 o' the
National I.:tor Rclltions A\t, as amended.
IVI \\ I I Not in i othcr itanner interfere
itil. i tstr;in. o (tWIe iiC Il\ enlploCee i the ex-
CICIsC o) te Fihis tiLltrantccd ulCdr tlhe Na-
tional Labo Relattons Act.
Wii \ktlI t lcr Athon; (aterinacci ull rein-
stttenient t his former j ob or, it' that job no
longer exists, to t sulstantiall, equivalent ob.
\\ithout prejudicc to hs seniority or ther rights
and [' ivilegcs preCiton eno ed. lanlld make himi
hlnltIc for an> lss of I;'_ sulet red bx reason of
his dis'a ruc.
RitnIN, Ri Ia tl' AN) )t.I xli.I'Mi NI ( )M-
in\NY AsNI iO Rt'si() B 'IA)lNi ('/MIPANY
I)tXISIN(i
S,II' () I iit i l i (',sl
IR\. INt tM. II I M ;\clrt\itit'.tr1ittsI'e las Judge: This
.,sc ',is heard t hcf'c imt A:pril 28 ind 2, 977, at ('le\e-
tLnid, ()11o.' t tI tC 'ge wids lied b A\nThons (er1ac'i,
in dei.duti. t )cc.nlict . 1976. irn] ietded Ianuirx 27,
19')77, I)c .nnd tliet Ld'.ix ice WISmade, ('orplaint ssued
t;1ilt 'r 77. 19 .2 lhic prinmar, issues ie whether ispo
Rcltj ; d l)cCslnpmCn ( oipa5t :itl or Rispo Buitding
('npiiiit, IcIt'iit callled RspInudciiI. th'reatened ('ateri-
nanct Icgardillg litl,, I11toi1 In[tilv \, It! viktion of Section
S(a)(l ol the National I lhnr Relations ct, as anended
(21) t." (S'. ~ i, (' w'y. i). nlcill iCticdl ihe \c, and laid him
il tin ()IIc c ol',ic 4 ev,ttlse lli ris union rIi sit,. ilnorning
ait th;kt s'il it> i ,r liahle i; 1 1 u a ztttle old r t s a e 'net-
J)ir cri [h i li[ ,tF '¢,as i~u ~t\'ia'[ 101 br ruilk i .ll indcpcn-r
ccil t':li'rl t Tl l li llt In i;1 t ir i a eCllplocIn e-nIienher of' the
[ !itll. I1 ', , ii"11 (1 Secttnin Stat( I tInd (3) (it the Aci.
Inon Ilh t eIntl ccolIcdt . ilcludilng ilx ohservation of' the
v, Ittlesses Is" nIt tJl / l. i l'tc[ dulcOllp n ilter e onsiderat[ioni
nit te hiitcl's lilcd oi behll t (cnei' ('ounsel and Re-
sl'nTtmtenI. I iike Ihc tnlton,iing:
I NIrt-N(;s iNt[ ('rN I '"ttONs
I. RiSP()Ni)iNI S lI INI SS
Ii is inlStilated .t the [eariliig hat Respondeni ,, in
()hio CtIr'On'nrInlI Cr'lgNeimd in the ConIUtICin indlstr'v,
tiltrri?, dc' loptl[i antd sclin, rscidtcntial hsing i Ohion,
vnth its ain oilices In Pi tria. )hin that it annually re-
ccli s gI tsiese tiIes IOl i t% operal ins in ecess of
$5((00~t and rcCtiCs gnodrs Iued at over S5f.000 ITom
Ilrest ('it\-PnotcIsks Colp . it Ohit col-pratioll. with its
principtl place f busilness a Bedord I leights. Ohio, where
II,, l SC,
II] Lnle [tie H/li trite- th't ic sined
I iIii. A lI t ' 1 t lJ' i i cll 'Cp11Sjtt 1ITi . Irc itrehN ci'retc ' ]
241 NLRB No. 20
158
RISP() RAI T'Y ANI) 1)FVFI O)PMIN ( O
it engages in the sale of lumber products fr home buildinlg:
and that Forest C('it-Palevskv Corp. annui;lil receives illoss
revenue frontm its business of more than $5),.X) anlld re-
ceives goods valued in excess o .50.0t(0 directl tiotl
points outside Ohio. Respondent does not dispite urisdic-
tion here, and I find that it is and at all mterial times has
been an employer engaged in comnlerce and in operalioins
affecting commlerce withinl the menilng of Section 2(2). (h).
and (7) of the Act.
11. I AIOR OR(Gs.iZ7\tI()l 1N\(W \11il
International Uinion of ()peratinIg nginecrs, A'I (I(
CLC, I.ocal Inion No. IS (herein (c.tlcd the ll llon). is a
labor organiT7tion within the nmeainlg i f Seclil 2( ) iof the
Act.
ll. 1ill t NI StR i AsOR iR ( (IS
A. 7h l;a st
Respondent commenced ork on the P'rimrose Estates
project on May 3. promptl! signin the I:nion's ()hio State
Highway tHeavy Agreelent ' Until then Respondenl had
not worked with employees on its owin pa nroll hilt rather
through union subcontractors. I'he Primrose job involved
the construction of single-family residences.
Caterinacci. a member oft the IUnion. Nwas hired hb Re-
spondent on July 20 pursuant to his refirra.l from the
union-operated hiring hall. Ulpon his assignment to a ('alter-
pillar 235 backhoe loader, he noticed no oiler was present
and asked Rispo where the oiler was. Rispo said he did not
think he needed one. (aterinacci insisted thit that machine
required one "tinder the lahor agreement." and Rispo ac
cordinglI called the hall. A\n oiler named Russell arrived
about 11 o'clock that morning. 'I'he e idence shosS hil to
have been 54 ears old wihen he testified, but tie appeared
about 10 ears older. Respondeint complaiined abhout Ris-
sell's age and laid him off ater somei 17 dlays. (aterinacci
testified that throughout this period he had '"[tnlanl, discus-
sions" with Rispo, practicall "on] a dail ' basis. regarding
Rispo's demand that Russell, in addition to his duties as
oiler, perform certain duties as a laborer, Including "hboth
carrying materials and perhaps actuallI sworking with the
shovel," and that he insisted to Rispo, "in no ,av i ai I
gonna allow it." Russell's estimon\ nowhere mentions such
a demand by Rispo. On the contrar, lie testilied that his
only dispute with Respondent concerned his refusal to coin-
ply with Rispo's request "(one time." shortls after he stairled
working, that he commence the day an hour earlier and
quit an hour earlier than C'aterinacci so that e could get
the machine ready for operation. Russell pointed out that
the agreement required a halt-hour's overtinic pay perl dia'
for this purpose. and despite his rejection of Rispo's request
because Rispo declined to pal such premiumri Russell ad-
mitted "[t]here was no great argument "
"According to Albert Rispo. Respindnl's lner nhertciin ,.lled Ripol. he
invited the Union n the job hbecau.it he w.ianted quaiitied mle alind n l hr
problems.
Russell testified that he referred Rispo to (aterinacci concerning Ihis
request because "Ton3 is the boss on the rig when ou are he oiler. lhe
operator is your boss." Rispo apparently did discass this matter with ('aleri-
nacci, who endorsed Russell's position
('aterinacci further eslitiel tha;i he advised l)udle Snell.
business aent fr the I mnion of Rispo's demland that the
oiler also d laborers' xork: that Snell discussed this with
Rispo -sithin the first "week of nlv emplo ilent \ith
Rispo," taking the pition "that the oiler definitls cannot
do labOlers' sork": lhat Rispo "accepted it. hbut that nev-
ertheless Rispo renewed his demand after Russell's replace-
ment h Siml pson, a ounger man: and that Simpson re-
fused on his (Caterinacci's) ads ice Snell could not "recall"
aIn' concrs ation su ith ( aterinacci about Rispo's wanting
oiler t do laborers' wo rk r "remember" discussing the
subijecl sitlh Rispo. Ie testified furtlher that Simpson nev er
repoiuted such a deni;nd to hin;- and tha;t it couldn't have
hilppened s ith Russell. who "could hardls alk around"
And 'c lildit'l see t di laborers' Wol-k." But Snell dlid ad-
nit t;hat h "ntighl hve had" such a conversation wsith
('atel'inacci Sintpson. testil'\ inc on rebuttl fur the (General
('sn sel. did lis aidsert o this issue.
Around the enCd of ugust r earl, September. ('ateri-
iaIcci startced digging basements On Septenmber 10. at the
enld of the ssork eeCk Rispo told ('aterinacci a.nd Sitlpson
thal t lie h no furthel neced tr the ('aterpilla r tor r tIhe
and thl-at he as la)ing them ,ll. \ hein i ('aterinacci caime in
the tollow ring Mondax tor his pa'ircheck, Rispo said that
there was still work available for hint o a smaller mchiie,
ai John leere 410 ubber tire backhoe loader.' so Cateria-
taccl conltinued on the job, solking mostly on the 410 but
ailsi ding some work with the 235 Caterpillar, primaril in
excla. ting the basements. When he was thus reassigned to
the 235, he told Rispo that Simpson oiuld hase to he re-
called, hut Rispo refused because he did not want to have
to pay the contractually guaranteed 40 hours tor an oiler
whose serv!ces v rec required onls a few hours per week.?
Aroundi the satme time. (aterinacci got into a fight svith one
ot the lahiboers ario ( ianci), who threatened t shool
him. ('aterinacci telephoned Snell at home about both these
matters. Snell cautioned him t stay awax from the joh the
next da. it Iridas. Rispo telephoned Caterinacci as to the
reason lor his ahsence and, when informed, promised to tire
('ianci aind assured (aterinacci it would be safe to report
the tollowing Nlolida',- September 20, which he did. That
da. ('ateriraccl met ith Rispo Snell. and another husi-
ness agent. lacamnpo. to discuss the recall of Simpson who
was also present. ('ateriiacci and the business agents
agreed to waise the guarantee but required Rispo to pay
Simpson for the S hours the 235 machine had actualls been
worked ('aterinacci dissented. however, from the business
agents' further decision not to require the oiler when the
235 was used in excavitint basements because smaller ma-
chines not requiring an oiler could be used for that pur-
I tentlfied 1i1 the agreement as district representaiii
1 he ubstantialls targer 235 Calerpilltr had a ractor-tspe undercarriage
on a caterpillar tread
Appa.reitl the guaralntie .applic.hi it the 235 (cquipment over half-
'lard capicit) culd he avoided nls f the machine renmained idle for 7
days
Simpson's recall, however, was avoided at his on request. because his
emplosment beyond a 12-dav penod would have forced him to the bottom
of the referral lit undel the rules of the hinng hall.
159
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pose.'0 Nevertheless, Caterinacci accepted this decision at
the time on the theory that the 235 would only be used on a
part-time basis and that basements would be dug only once
in a while, and it was evidently in this connection that he
testified that the digging of the hole was not covered by
Respondent's contract.
Caterinacci testified that Rispo was angry over having to
pay Simpson for the 8 hours not worked and told Cateri-
nacci on September 21 to see him before going to the busi-
ness agent it another situation like this arose in the future.
A few days later, on September 24 (a Friday), according to
Caterinacci, Rispo told him that he was not going to abide
by the union rules, but would work with owner-operators or
subcontractors, and he asked Caterinacci if he would work
for him in such capacity. Caterinacci testified that he said
he would, and Rispo said he would get back to him. Rispo
denied telling Caterinacci not to complain to the Union or
that he would not comply with union rules. He also denied
inviting Caterinacci's services as an independent contractor,
testifying that while he told Caterinacci, as he did many
others, that if he could not get the work done properly he
would hire an independent contractor, it was Caterinacci's
idea to propose himself for that role.
Shortly after this conversation with Rispo, Caterinacci
testified, he telephoned Irwin, the Union's then president, at
home and reported Snell's decision that no oiler was re-
quired on the 235 when excavating basements, to which
Irwin angrily replied that Snell was wrong and that Cateri-
nacci should tell him so.
On the morning of October 4, the following Monday,
while Caterinacci was digging a basement just after reject-
ing Foreman Jim Ebsch's order to leave the 235 and per-
form another job with the 410, Snell walked up to them,
and Caterinacci "jumped on Dudley real hard about run-
ning this machine without an oiler" and about having to
switch machines in the midst of a job, which had appar-
ently become a regular occurrence. Snell objected to Cateri-
nacci's tone and suggested that Caterinacci appear at an
advisory board meeting of the Union scheduled for that
evening, where he could raise his problems. When Cateri-
nacci finished work that day, Ebsch gave him his check and
told him he was laid off. Ebsch testified that Caterinacci
was expecting the layoff "[blecause he was told before that
that the basements weren't right. We just couldn't afford to
do basements that way and have the other contractors leave
the job project and both the machine and him were gonna
leave." Caterinacci testified, however, that he went to Rispo
to ask what it was "all about," and Rispo said: "That's it,
the machine is all done. I'm gonna do the work with-I am
trying to run this turn the work over to sub-contractors and
the only way you are gonna be able to work for me is if you
give me a bid or a figure on these basements and you take
the work on a sub-contract basis. That's the only way
you're gonna work for me."
At the advisory board meeting that night, according to
Caterinacci's undenied testimony, Snell acknowledged that
he had erred in his position that an oiler was not required.
10 Snell testified that although the contract provided no such exception, it
had been the practice for 15 20 years not to require an oiler on the larger
machine in excavating basements for single-family homes. He admitted,
however, that Irwin, then president of the Union, and since elevated to
business manager, held a contrary view.
Snell did not testify concerning what happened at that
meeting. However, despite his admitted vagueness concern-
ing dates and the sequence of events, he did testify that on
one occasion-he thought it was the meeting of September
20-he instructed Rispo to call the hiring hall for an oiler
whenever Respondent used the 235 and that Rispo agreed
that if the oiler dispatched were young, he would keep him
even for digging the basements.
On October 5 or 6 Caterinacci returned to the site to
collect some money still due him. Again, according to him,
Rispo said he did not want to assign the work to union
people, but wanted it to be done by owner-operators or
subcontractors, and asked Caterinacci if he would bid on
the approximately 30 remaining basements;" and Cateri-
nacci said he would give him a bid in a couple of days,
which he did.
On October 23, according to Caterinacci's uncontra-
dicted testimony, Rispo and his attorney, his son, met at the
union hall with Snell and Steve Mayor. the head of the
Union's Cleveland district. Caterinacci, though present, did
not participate. Respondent sought an exception from the
wage and other conditions of the contract, claiming that it
was too small a company to be able to afford such condi-
tions. Particularly mentioned were its inability to pay an
oiler just to perform oilers' duties and its lack of freedom to
move an engineer from one machine to another as needed.
Mayor said he could do nothing about this but that Re-
spondent would have to go to a higher union authority.
Respondent asked whether it could still use union people if
it canceled the agreement, and Mayor responded nega-
tively. Rispo became angry and said it was impossible for
him to work this way, and the meeting ended with Mayor's
reiteration that he could not help Respondent.
Rispo testified that "[b]eginning the latter part of August
and the first of September," he had two operators, i.e.,
Caterinacci, who operated the 235 Caterpillar backhoe, and
Sylvester Rich, also a Union member, who had been on the
job since May and who ran the 555 front-end loader-
crawler: that by September 30, eight or nine basements had
been dug, all but one by Caterinacci; that every one had
"problems" in that they were dug too deep, too shallow or
too wide; that where too much had been dug out, they had
to backfill with sand, an expensive operation; and that the
masonry contractor complained that the poor workmanship
made his job harder and threatened to quit. The contractor,
Foley, confirmed that the basements had been dug improp-
erly and that he had complained to Rispo about the addi-
tional material and labor this entailed on his part. However,
while he testified that "the pitman t2 can only do so much"
to correct a digger not digging level, his testimony accords
with the general agreement that it is the pitman's responsi-
bility to maintain the grade. And he conceded his inability
to say whether any of the problems here involved were
Caterinacci's fault. Indeed, he testified that he had actually
been present while one basement was being dug by Cateri-
nacci and "observe[d] the workings between [Caterinacci]
" According to Rispo, eight or nine basements had been dug by the end of
September. almost all by Caterinacci.
12 The laborer who works with the digger, supplying necessary information
from the pit to the digger in the cab of the machine, some 8-10 feet above
the ground, as to where and how much to dig.
160
RISPO REALTY AND DEVELOPMENI CO.
and the pitman," but saw nothing unusual. And while he
also corroborated Rispo's testimony that the basements
were dug properly after Caterinacci's departure," he admit-
ted not knowing whether there was a new pitman on the job
at that time. Foley was also displeased over what he
deemed Caterinacci's lack of cooperation generally, as by
not building a road for Foley's trucks. Caterinacci testified
that he once "turned [Foley's company] into the union hall"
for "running equipment without an operating engineer."
Foley, whose testimony came later, did not deny this.
Rispo also testified on direct examination that Cateri-
nacci "would constantly" break the sewerlines. on each oc-
casion costing $1,000-$2,000 to repair, and he once told
Caterinacci, "[TIhat's the third time you've done that." On
cross Rispo admitted that in his investigative affidavit he
had accused Caterinacci of breaking only two sewerlines.'4
Rispo testified further that he received several complaints
from the pitman and the foreman that Caterinacci would
not take directions or instructions.
According to Rispo, Caterinacci looked like a "good
man" when he started work, but his inefficiency began to
manifest itself within a week or 10 days, and the longer he
worked, the more inefficient he became. Rispo testified that,
among other things, he told Caterinacci in this connection
that "[o]n every occasion he dug a basement I would tell
Tony try and do a good job, won't you. You know, take a
little more time if it takes that and do a good job." Asked
on cross when he first spoke to Caterinacci about his ineffi-
ciency, Rispo testified that he spoke to Caterinacci about
the basements, but not about the sewerlines. He quickly
"correct[ed]" himself, repeating that he had berated Cateri-
nacci for "the third time," but a bit later stated that "the
first time" he talked to Caterinacci was when he broke the
sewerline for "the second time." As stated, Caterinacci
started digging basements the latter part of August or early
September and dug four or five with Cianci as his pitman.5
According to Rispo, the masonry contractor complained
right after each basement was dug, as did Caterinacci's pit-
men, first Cianci and then Mike Graham. However, after
Cianci testified that he complained to Ebsch "a couple
times," he admitted, "I tell you the truth, I didn't make a
complaint because I didn't want to get involved with his
ideas .... I wanta keep my job and I don't wanta get to
anybody about this guy bein' bad .... ",6 Ebsch, who con-
fessed to some memory difficulty, testified that he reported
to Rispo that all but one of the basements were unsatisfac-
tory, "they looked like a bomb hit, they was nowhere near
what they was supposed to be."" The lone exception, ac-
cording to him, was the last one, and Ebsch himself had
1t After Caterinacci's discharge his former duties were performed by Rich
and by Ebsch, who, although a laborer, had permission from the Union to
do such work in emergencies, using the Deere rubber tire backhoe.
1 The other operating engineer, Rich, while testifying that in his opinion
Caterinacci could not dig a basement, considered that Caterinacci "did good
work on the sewer lines."
1s Cianci testified he worked with Caterinacci all day every day for 5 or 6
weeks. He had never worked on basements before.
:' Cianci had been rehired in March 1977 and was still in Respondent's
employ at the time of the instant hearing.
1 He did not mention Cianci as the source of any information on this
subject, testifying that his attention was called to the matter by the bricklay-
er.
acted as pitman on it. Graham, besides testifying to the
poor quality of the basement pits, added that the work was
slow, and in this connection testified:
Q. Did ou ever receive any complaints about the
basements?
A. Did I receive any complaints?
Q. Yes'?
A. Only from the laborer tforeman.
Q. Who was that'
A. Jim Ehsch.
Q. What complaint did you receive from Jim
Ebsch?
A. Just that it was too slow and he wanted me to get
things goin' and get production movin'. Git produc-
tion. this is what I was gettin' paid for.'
Graham testified further that he asked Caterinacci wh, he
took so long, and Caterinacci said on more than one occa-
sion that Rispo had a lot of money "don't worr, about it.
take your time and dig and keep this job goin'.'* Rispo
gave no testimony concerning such statements to Graham.
'1 In a prehearing statement Graham had testified that Caterinacci was
qualified to run the machine, and "the only problem I had on the job was the
work was going too slowly."
to Under palpably leading questioning on direct examination. Graham tes-
tified that Catennacci called him about the instant case and told him "he'd
pay me for comin' down and estifying you know, f I'd come down and
testify. he'd make my day's wages or whatever. whatever I wanted to come
down and testify To see his attorney or to come here to court He would pay
me a day's wages or whatever, he never made ann mention of a specific
sum." After objection was then sustained to Respondent's question whether
Graham had ever been threatened. Graham testified as follows:
Q. (By Mr. Rispo): Did you talk with Mr Catennacci on more than
one occasion?
A. Yes sir. I spoke to him more than once.
Q. Did you offer to testify for him?
A. No. I didn't sir
Q. And, was there-what was Mr Caterinnacci's response?
A. His response was when he had talked to me about testifying or
seeing his attorney was he had to get to Mario [Cianci] who had worked
there but had been fired in the meantime and I didn't know and the
oiler I didn't know because I had not worked there at the time his oiler
had worked there. He had a problem with Mano which he explained
you know, he had a problem with this man on the job. And, he said he
knew how he could get to Manrio through his brother or, if not, he had
people he knew he could get to to get to Mario or anyone else for that
matter, that didn't want to go along with him.
JUDGE HERMAN: What did you take that to mean?
THE WITNESS: Exactly what I said, he left it to me to take it the best
way I knew how, you know.
Q. (By Mr. Rispo): Would you tell us exactly what Mr Tony Caten-
nacci said, what his exact words were?
A. As I can recall, to the best of my knowledge, his exact words
were: that he had to talk to these people, get them to see his attorney
and if he had trouble with Mario. he didn't know if he could git to him
or not and he said but if I couldn't I had people that could get to his
brother, through his brother to him the same as anybody else who I
need to testify more or less you know, to the best of mv recollection.
That he has people that can get to people. But. you could take that I
mean I could take that any way I wanted to
Catennacci firmly denied on cross-examination offering Graham money to
testify or threatening him or anyone else in this connection. On the contrary.
he testified that Graham had agreed. at his request. to testify if Caterinacci
needed him as a witness, but that he did not call him as a witness, because
Graham had thereafter informed him about possible work opportunities of-
fered him by Rispo, and he "could see that Mike Graham was going to be
not too anxious to testifv in my behalf" Caterinnacci admitted. however, that
he did not see Graham on the Primrose job after that conversation.
Caternnaccl also had denied on cross-examination offering money to one
Frank Capote for testifying. Capote was never called as a witness.
161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although he did testify that Cianci reported to him after
Caterinacci's discharge, that Caterinacci had told Cianci to
slow down on the job and that Caterinacci had said to
Cianci that he would try to sue Rispo "to make some
money off him" because he was a millionaire.
On cross-examination Caterinacci had earlier testified as
fobllows in this connection:
Q. Did you not in fact on numerous occasions, di-
rect the laborer who was working with you to slow
down?
A. No.
Q. You never did?
A. I never did.
Q. Didn't you in fact Mr. Caterinacci, say Mr.
Rispo is a millionaire and I should get some of that
money?
A. I never said that.
Q. Never did?
A. I never did.
Q. Didn't you in fact Mr. Caterinacci say to those
laborers that you would find a way to get Mr. Rispo
one way or the other? Did you say that?
A. No, sir.
Q. Didn't you in fact say that if you had to you
would fall down and get hurt and pretend you were
hurt to file suit?
A. I never said anything like that.
Caterinacci had also testified that he had received no
complaints from Ebsch, and the sole complaint from Rispo
was that the masonry contractor had been complaining
about the fill's costing too much money and that if he did
not cease such complaints Rispo would get another con-
tractor, that he had no trouble with the grades prior to
Graham's becoming pitman, and that the only complaint
from a pitman was from Graham, whose grading problems
stemmed from a faulty transit. According to Caterinacci, he
examined the transit when Graham was experiencing diffi-
culty and was unable to detect the crosshairs, so he showed
it to Rispo, who likewise could not locate the crosshairs,
and they determined to get it fixed.
The transit" had been purchased from United Survey,
Inc., apparently about mid-August. Despite the testimony
of United's official, Easa, that the instrument was "new"
when sold to Respondent, it had been used as a demonstra-
tor by United's salesmen and was sold without a guarantee.
Other United representatives, testifying for Respondent by
deposition," described its condition as of the time of sale as
"good" or "workable," respectively. Its return to United for
repair occurred September 27. Although Brown found the
crosshairs easily by focusing the transit, United decided to
send it to Anderson Instrument Company in Canton, Ohio,
to check it out. It was brought to Anderson by Brown
sometime in October and there received by Anderson's re-
pairman, Mallalieu, who also found the crosshairs but, on
visual inspection, according to his own testimony and that
of Brown, noticed the absence of a level vial adjustment nut
and washer that belonged on the transit. Thereafter, on Oc-
20 Variously spelled Lietz or Leitz.
21 President Tartabini and salesman Brown.
tober 21. Mallalieu replaced the missing parts, adjusted the
crosshairs and the level vial, and cleaned the lens. Brown
picked up the transit on October 26 and received an in-
voice 22 covering the work done on it. United billed Rispo in
turn on November 8 in the amount of $34.58, specifying the
cleaning of the lens and "misc[ellaneous] work," including
replacement of the missing parts. Brown returned the tran-
sit to Ebsch, who gave the following testimony:
Q. Could the basements be dug improperly because
of a defective transit?
A. There wasn't nothin' wrong with the transit, we
sent the transit to the shop to see if there was somethin'
wrong with it and the transit was perfect.
Q. How do you know that?
A. They checked it at the shop and there was noth-
in' wrong with it.
Q. They didn't make any repairs on it?
A. No.
Q. How do you know that?
A. The man told me when he brought it back there
was nothin' wrong with it.
Q. Which man told you that?
A. The man from United returned it, I don't know
his name.
Q. Did he do the repair work?
A. Did he do the repair work?
Q. Yes?
A. I don't know if he done the repair work or not.
Brown testified in this connection as follows, first on direct
examination by Respondent:
Q. And on your arrival at the job, did you have
occasion to discuss the service done with Mr. Rispo or
his foreman?
A. I mentioned-I talked with the foreman. I be-
lieve I mentioned something to the effect that there
was nothing wrong, you know, with the transit, other
than a part missing.
Q. Did you say there was a part missing?
A. If I recall right, being that the transit came in for
the repair of the crosshairs, you know, the crosshairs
being missing, I mentioned that the crosshairs were
okay.
Q. You don't remember saying anything about a
part missing?
A. Well, if I did say anything about the transit, I
probably would have mentioned that.
Brown testified on redirect examination:
Q. (By Mr. Rispo) Mr. Brown, if you can, as care-
fully as possible remember what it was that you told
Mr. Ebsch when you turned the transit to him from
Anderson Instruments?
A. I believe I stated that there was nothing wrong
with the transit.
Rlso:Thank you. No further questions.
BAASTEN:One more.
2 His testimony inadvertently terms it "a receipt."
162
RISPO RFALTY AND DEVELOPMENt CO.
On recross-examnination, Brown testified:
Q. (By Mr. Baasten) Mr. Brown did you make any
further statements other than that there was nothing
wrong with the transit?
A. Once again, if I said anything, I said there was
nothing wrong
Rispo:Objection.
A. -with the transit. I might have mentioned some-
thing about that nut, but I doubt it. I doubt very much
whether I mentioned that.
Brown also testified that he mentioned the missing nut to
Respondent's counsel "quite a few times."
Mallalieu testified that the absence of the nut and washer
would "more than likely" cause the user of the transit to err
in thinking the telescope was level, and this would [djefi-
nitely" account for the basement level being too high or too
low. He also indicated that Caterinacci's inability to bring
the crosshairs into focus "possibly" demonstrated an unfa-
miliarity with the instrument.23 He testified, however, that
this particular type of transit is not normally used for the
kind of work here involved because of its complicated na-
ture and that the two instruments commonly used in this
work are a straight level or a level transit. which are simpler
to operate. Respondent pressed Mallalieu as to how the nut
could have come off, and Mallalieu stated that it could have
been jarred loose by vibration, or it could have loosened
itself or been removed.
In his deposition, Ebsch testified to other defects in the
basements not previously mentioned by any witness, in-
cluding himself, and which could not be attributed to the
transit.
Respondent also inquired, on redirect examination in
Tartabini's deposition, into his family relationship with
Caterinacci and the latter's reputation in the community for
veracity. Tartabini's testimony was that he is married to
Caterinacci's sister, he has known Caterinacci since 1950 or
1951, they see each other about once a month when they
happen simultaneously to be visiting Caterinacci's mother.
and Caterinacci enjoys a reputation as "a good operator"
and "is a truthful individual, outspoken but truthful."
Concluding Findings2 '
This case turns on credibility, and I find Caterinacci's
account of the essential facts more believable on the record
as a whole than the version urged by Respondent. Indeed.
Caterinacci's testimony as to some salient facts stands un-
contradicted and in other instances is supported by that of
Respondent's witnesses. Respondent even elicited from
Tartabini, whom it called for examination by deposition
admissions that Caterinacci has a reputation as "a good
operator" and "a truthful individual.""
12 President Tartabini of United Surve, affirmatively answered Respon-
dent's question on direct examination (in his post-hearing deposition)
whether "a person possessing ordinary skill in the use ,f the Lietz transit
[wouldl he able to locate the crosshairs"
14 The defense of an alleged failure to exhaust the contractual grievance-
arbitration machinery was stricken at the hearing on the authority of General
American Transportation Corporation. 228 NLtRB 808 (1977), and has appar-
ently been abandoned in Respondent's brief which confines its argument to
the substantive merits.
12 I infer from Tartabinl's testinon> of the limited nature of his social
contacts with Caterinacci that their relationship was less frlindls than that
generally obtaining between brothers-ln-llw.
Whatever Respondent's general feelings may have been
in respect to the Union and hateer its motive initiall in
signing a union contract, there is no doubt of its objection
and resistance to some of the things (Caterinaccl insisted it
was obliged to do under its contract. Respondent urges in
its brief that beginning with Caterinacci's demand for an
oiler on his first day of work, Rispo "complied with hat-
ever he was told concerning the union rules and he did so
promptly, indeed immediately." 'Ihis statemnent hardly its
the instant record in respect to Caterinacci'dsdenands gen-
erally, for Caterinacci liund it necessar to lodge repeated
complaints with Snell which caused Snell's intercession on
these occasions. Indeed, Respondent's brief itself acknowl-
edges these disputes. It asserts, however that "[c]' er issue
.was either immediately conceded h\ the employer or
upon appeal to the business agents, the employer \was up-
held in his interpretation of the union agreement." But this
too misstates the record. True, Snell asserted his belief that
Respondent's contract at least b custom - did not re-
quire an oiler on the Caterpillar 235 for digging basements
for single-family homes, but he conceded that Union Pres-
ident Irwin held a contrary view. Besides, the 235 was obi-
ously used by Caterinacci for work other than basement
digging because that was the machine he started on at the
jobsite about a month before he commenced digging base-
ments. The dispute over the basement work simplb involved
application of the contractual 40-hour guarantee. And Snell
did not deny Caterinacci's testimony that at the advisor'
board meeting on October 4, he agreed that his earlier posi-
tion that the oiler had not been needed was mistaken. Snell
himself testified that Respondent was ultimately instructed
to call for an oiler when using the 235. even for the base-
ment work. Also, while Caterinacci did not succeed on Sep-
tember 20 in getting Simpson paid or the full 40 hours
under the contractual guarantee, the business agents de-
cided that he was to he paid for the 8 hours that the 235
had actually been used without him. Ihe evidence as a
whole even supports (aterinacci's testimony conceriing
Rispo's insistence that the oiler perform additional duties.
including those of a laborer. Notwithstanding the absence
of supporting testimony on this point from Russell anid
Simpson and Snell's inability to recall (Caterinacci's raising
the matter, Snell did testify that Rispo had coimpl;ained
about Russell's age and that his agreement to use an oiler
on the 235 was conditioned on the referral of younger man.
It is a fair inference that a desire for versatility and partic-
ularly the capacity for heavy work underlay Rispo's request
lbr a younger man.
It is clear, therefore, that ('aterinacci's continued pres-
ence on the job as a union man posed a potential source of
what Respondent was convinced were unnecessary costs ot
operation which it had earlier sought to avoid by the "lav-
off' of September 10. 2 More than that. Respondent's con-
cern in this respect derived from a growing awareness of the
restrictions imposed by its contractual commitments. The
October 23 meeting, ('aterinacci's account of v hich s.as
entirely undisputed, demonstrates Rispo's fear that strict
conformity to the contract exceeded Respondent's capacitl
"2On that occasion Respondent had prematurel annoulnced ii .s. geling
nd of the Caterpillar 235
163
L)E((ISIONS OF NATIONAL, LABOR REL-ATIONS BOARD
and that particular aspects of Rispo's request for relief were
precisely among those points ('aterinacci had raised. These
circumstances at once belie Respondent's contention in its
brief that Caterinacci's testimony of Rispo's complaints
about the union rules at the October 23 meeting2 ' was illogi-
cal" and provide potent support for the General Counsel's
allegation that Caterinacci's discharge was motivated by his
protected activity. Bolstering this conclusion is Rispo's ad-
mission that he had said many times that if he could not get
the work done properly, he would hire an independent con-
tractor. Since an independent contractor, working with the
same engineers available to Respondent. was not likely to
improve the situation, Rispo's admitted statements
amrounted to threats to operate nonunion.
Respondent relies on two indicators of an absence of un-
lawful motivalion: first, that it had no further need for the
('aterpillar 235 and hence for Caterinacci and, second,
Caterinacci's incompetency. he former involves a n,on .se-
quitur since the uncontested evidence establishes that
C('aterinacci's work on the job had not been confined to the
235.1' Apart from the discontinuance of the use of the 235
on October 4, there is no evidence of any decline in the
need for two operating engineers. the situation that had
prevailed for the previous 2 months. On the contrary, it
appears front ('aterinacci's uncontradicted testimony that
after his discharge some 30 basements remained to be dug.
approximately three times the number dug up to that point.
And there can he little doubt that Respondent would have
preferred to continue with the larger machine if it could
have avoided the restrictions ('Caterinacci had successfully
insisted upon.2 Apparently, Ebsch and Rich together filled
the void left by Caterinacci's discharge. However. Respon-
dent tendered no evidence of the extent of the extra work
required of them to accomplish this. Moreover. Ebsch's tes-
timony mentioned only the poor work on the basements as
the reason Rispo had told him for the discharge. In these
circumstances, I find that unless the discharge was actually
caused by ('aterinacci's incompetence, it would not have
occurred at that time hut for his protected activity. Thus,
Respondent's defense reduces to the alleged incompetence,
and I find this position also lacking merit.
It is idle to question Respondent's contention that the
r2 Fssentiallt in keeping with Rispo's earlier threat to Caterinacci not to
abide by the union rules and his warning against complaining to the business
agent in the futures
' Ithe allegation in Respondent's answer that Caterinacci had been hired
"fuir the sole purpose" of operating the 235 is without evidentiary support.
Rather. as (aterinacci testified. notwithstanding the announced layoff on
September 10. he conlinued n the job, spending most of his time operating
the 410.
iV Respondent argues in its bnef that "lilt is totally illogical and it makes
no sense at all that the emploer would be complaining to the union [on
October 231 about an iler on the Cat 235, when the oiler was never used on
the job after the 4th of October and when the business agent had ruled in
favor f the employer saying that it did not require an oiler on the machine."
Itowever, as already observed, Respondent offered no evidence whatever to
contradict Caterinacci's account of the October 23 meeting. As for the logic
of the testimon, it must be remembered that Rispo had first announced the
discolntinuance of Ihe 235 on Septernber 10 and then reinstituted its use. It
may well have done so again. particularls if the Union had acceded to its
request for a lifting o the contractual restinctions The argument miscon-
ceives the record in respect to the requirement for an oiler As found above,
Snell had infirmed Respondent that an oiler would be required it the ma-
chine were used and that Respondent ,ould have to call the hiring hall
theretor
digging of the basements was not all it should have been.
However, the extent of the defects in the digging process is
less easy to ascertain from this record. To Ebsch, who was
given to hyperbole despite his admittedly weak memory,
the basements (save the last one, on which he had person-
ally served as pitman) "looked like a bomb hit, they was
nowhere near what they was supposed to be." Yet Graham,
who also testified to their sorry condition, contrary to his
investigative affidavit, testified further, in conformity with
his investigative affidavit, that Ebsch's only complaint to
him was that the digging was too slow. But Ebsch's testi-
mony did not mention slowness at all, and indeed Rispo
testified that he urged Caterinacci to "take a little more
time" if necessary. And after testifying that Caterinacci
"constantly" broke the sewerlines, Rispo conceded, in testi-
mony filled with confusion, that such mischief was far less
than "constant." Moreover, while Rispo testified that com-
plaints about Caterinacci's work had emanated from
Cianci, among others, Cianci reluctantly admitted that he
had made no such complaints, thereby contradicting his
prior testimony in this respect. And Rich testified that
Caterinacci "did good work on the sewer lines."
Respondent's difficulty in reconciling these conflicts is
compounded by analysis of the evidence concerning re-
sponsibility for whatever problems existed in the digging. It
is clear that the pitman has the duty to show the operator
where and how much to dig. But obviously, disregard of the
pitman's instructions, if they are correct, will justify blam-
ing the operator. The question is whether Respondent here
thought the fault was Caterinacci's rather than his pitmen's
and, if so, whether this really motivated his discharge. Not
alone from his unconvincing demeanor, Rispo's testimony
on this point seems plainly incredible. According to him,
Caterinacci's ineptitude started to emerge within a week or
10 days after his hire and progressively worsened as he con-
tinued on the job; and he took Caterinacci to task for it
"[o]n every occasion he dug a basement." Yet on September
10, after Caterinacci had been on the job for 6 weeks, when
Respondent had the opportunity to rid itself of him, sup-
posedly on the same bases now asserted, it chose instead to
continue his employment. And even as late as September
20, only 2 weeks before his discharge, Respondent still kept
him on, albeit at the price of firing Cianci, who had been on
the job longer than Caterinacci, had been Caterinacci's pit-
man for some four or five basements, and who, according to
Rispo, had complained about Caterinacci after each base-
ment was dug.35 Despite Caterinacci's retention thus far, his
discharge came 2 weeks later, just after digging the lone
basement that Respondent concedes was done right. More-
over, since this was the one on which Ebsch acted as pit-
man, it is a fair inference that the pitmen, at least one of
whom had had no prior experience on basements, were
more to blame than Caterinacci for the poor condition of
the other basements.
"I find incredible Rispo's testimony that Cianci waited until after his
discharge indeed until after Caterinacci's discharge-to tell Rispo that
Caterinacci had urged him to slow down and had said he would sue Rispo. It
defies reason that Cianci, who had a family to support, would have withheld
infbrmation of this kind, which might well have saved his job. Alternatively.
and by the same token, assuming Cianci did come up with this information,
as Rispo testified, I would find it incredible that Rispo would have believed
it at that late date
164
RISPO REAI.TY AND DEVELOPMENT CO
The evidence establishes, in addition, that at least some
of the trouble stemmed from the faulty transit. Respon-
dent's brief stresses the presence of the crosshairs in attack-
ing Caterinacci's testimony in this connection. Regardless
of that, however, the transit was in fact defective. and the
defect, according to Mallalieu, probably the most plainly
disinterested witness in the case. "[d]efinitely" underlay the
digging errors."' But Respondent's brief argues that it did
not know of any defect at the time of the discharge and that
"[tJhe Labor Board cannot use hindsight to penalize an em-
plover where he, in good faith, evaluates a man as incompe-
tent to perform his assigned duties." The difficulty with this
contention is that the claimed "good faith" does not quite
square with the facts. True. Respondent did not learn of the
nature of the defect in the transit until after Caterinacci's
discharge. However, it certainly entertained some doubt of
the transit's reliability or it would not have sent it to United
Survey to be checked out. Yet it effected the discharge
while that question was still pending resolution. Respon-
dent urges, moreover, relying on the testimony of Brown
and Ebsch, that it was unaware of any functional defect
"even later when the unit was returned to the jobsite."
Brown's testimony on this point is equivocal. While he
did testify. as Respondent observes, that he "believe[d]" he
told Ebsch there was nothing wrong with the transit and
that he doubted very much whether he mentioned the miss-
ing nut, he conceded that he "might have mentioned" it:
and, according to his testimony recited supra. he "probably
would have mentioned it." Even Ebsch's testimony, despite
his obvious effort to pin down the case, is less than categori-
cal, for after testifying flatly that no repairs had been made
on the instrument, he was asked whether Brown had done
the repair work, and he replied, "I don't know if he done
the repair work or not." 32 It is difficult to believe that
Brown, who had witnessed Mallalieu's discovery that the
nut was missing and who had received Anderson Instru-
ment's invoice when he picked up the repaired transit,
would have told Ebsch that nothing had been wrong with
it; and I find that if Brown did not specifically mention the
repair, what he said was that there was nothing wrong with
the transit at the time he was returning it to Ebsch, meaning
that whatever had been wrong had since been corrected.
Assuming, however, that Ebsch understood Brown to say
that nothing had ever been wrong with the transit, Respon-
dent certainly knew by November 8, at the latest, when it
was billed by United Survey, that the transit had in fact
been repaired at least to the extent of replacing the nut and
washer. Hence Foreman Ebsch had to be misrepresenting
the facts when he testified that the transit was "perfect"
when Respondent sent it out to United, that nothing was
found wrong with it, and that no repairs had been made on
it. And Respondent's present reliance on such testimony
must undermine its claim of good faith. Rather than simply
a matter of "us[ing] hindsight," the case is not different in
principle from the common situation in which a false expla-
nation for a discharge is held to indicate an unlawful mo-
tive. This inference is only strengthened here by the various
I' Ebsch's restored memory in his post-hearing deposition, encompassing
other errors no one, including himself. had theretofore been able to recall. is
not credited.
32 Both this question and the answer were conspicuously absent from
Ebsch's testimony on this matter quoted at length in Respondent's brief.
diversionary attempts in the record, such as the inquirD into
the family relationship between Caterinacci and Tarta-
bini;' the thinly veiled suggestion that the missing nut had
been deliberately removed;" or the cross-examination of
Caterinacci suggesting misconduct by him well beyond any
positive evidence offered and some of which was adduced
only through leading questions on direct examination of
Respondent's witnesses, some of whom contradicted them-
selves and each other. I specifically discredit all evidence
that Caterinacci made promises or threats for the giving of
testimony, or that he sought to slow down the work or ad-
vocated obtaining money from Respondent other than his
due as an employee.
I find. on the contrary. based on the entire record. that
these baseless complaints and Caterinacci's alleged poor
work were advanced pretextually in order to cover up a
discharge for Caterinacci's protected activity in calling the
Union's attention to alleged violations of the agreement,
especially after Caterinacci had ignored warnings to abstain
therefrom.
CON(I.EUSIONS OF LA\V
I. 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 meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)( 1) of the Act by
threatening to work nonunion and by warning Caterinacci
not to complain to the Union about working conditions.
4. Respondent has violated Section 8(a)(3) and (1) of the
Act by discharging Caterinacci over his protected activity.
5. he aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist therefrom, and, because discrimination in
employment for union activitN goes to the heart of the Act,
to cease and desist from infringing upon the Section 7 rights
of its employees in any other manner, and to post the usual
notices. Moreover, in order to effectuate the policies of the
Act, my recommended Order will require Respondent to
offer Caterinacci full reinstatement with backpay. In ac-
cordance with customary requirements. reinstatement shall
be to his former job or. if that job no longer exists, to a
substantially equivalent position. without prejudice to his
seniority or other rights and privileges. He shall be made
whole for any loss of earnings he may have suffered by
reason of the discrimination against him hb payment to him
of a sum of monex equal to that which he would have
earned from the date of discharge to the date of a valid
11 There is not the slightest suggestion in the record (even if Tartabini were
friendly with Caterinacci. contrary to m) finding. supra, fn. 25) that either
the purchase of the transit or its return fol sers icing awas in an) way attribut-
able to the famil? relationship or. indeed. that Tartabini or United had
knowledge of ans connection between the transit and Caterinacci
" If it had been so removed hb (aterinacci or ansone in league with him,
one would have to wonder Ah, (Caterinacci complained about the crosshairs
rather than the nut
165
I)1(ISIONS ()OF NAII()NAIL LABOR Rl.I.ATIONS BOARD
offer of reillstatemlient, less nlet ca11iitiigs dituriig such period,
and interest thereon. to be contllputed in the mantllner pc-
scribed in -'F. . oolwtorlh ( 'ompwt'l. 90 N IR B 289 ( 950(),
and Floridal Stel ( orplorelion, 231 N LR 3, i51 (1977).
Upon the ftoregoing findings of fact aid conclusions Iof
law, and the entire record hercein, and pursuait to Section
10(c) of the Act, I herbch recolmcnded the following:
()ORl) R"
The Respondent, Rispo Realty anid )evelopment ('om-
parIy ad/or Rispo Building Company, Parmia, ()hio. its
officers, agents successors, aid assigns, shall:
1. ('ease and desist fromn:
(a) Threatening to work nonunion.
(b) Warning its emploiyees not to complain to their union
about working conditions.
(c) Discharging or otherwise discriminating against any
employee for seeking the assistance of' a union or otherwise
engaging in union or other activity protected by Section 7
of the National I.ahor Relations Act, as amended.
(d) In alny other manner interfering with, restrailing, or
coercing any of its employees il the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following aftirnmativc action necessary to ef
fectuaate the policies of the Act:
"See, gencralbl), so Plunlhin & tlrang ( , 138 N RB 716 (1962)
'u In the event no exceptilns, are filed as povided h Sec. 1112.46 of he
Rules and Regulations of the National l.ahr Relalilons Board, the findings.
cotnclusions, and recommended Order herein shall, as pros ided in Sec. 102.48
of the Rules and Regulations, be adopted bs the Board and become its
findings. conclusions, and Ol-der anand all ohiections thereto) shall he deemed
waived fir all purposes.
(a) Offer Anthony ('aterinacci full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent job, without prejudice to seniority or other rights
and privileges, and make him whole for any loss of pay
suffered by reason of his discharge in the manner set forth
in the section of this Decision entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security records, timecards, personnel
records and reports, as well as all other records necessary to
analyze and compute the amount of backpay due under the
terms of this recommended Order.
(c) Post at its jobsites within the territorial jurisdiction of
International Union of Operating Engineers. AFL-CIO
('C(', Local Union No. 18, copies of the attached notice
marked "Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director of Region 8, after being
duly signed by an authorized representative of Respondent,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places at each of said jobsites,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall he taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days of this Order, what steps Respondent has taken to
comply herewith.
13 In the event that this Order is enforced by ajudgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the tIited States Court of Appeals Enforcing an Order of the National
l abor Relations Board"
It6