Welfare & Pension Funds

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1241 (N.L.R.B. 1980)

WELFARE AND PENSION FUNDS 1241 Welfare and Pension Funds, Blasters, Drillrunners and Miners Union Local No. 29 and their Trustees Louis Sanzo, Amadio A. Petito, Paul Crowley, and Theordore King and Matio Mon- turo. Case 2-CA-15905 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On December 31, 1979, Administrative Law Judge Harold Bernard, Jr., issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 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 and Pension Funds, Blasters, Drillrunners I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to 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 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 We agree with the Administrative Law Judge's finding that Mario Montuoro was discharged from his position as assistant administrator of the Funds in retaliation for various activities he undertook as secretary- treasurer of the Union. These activities consisted of his writing a letter to the President of the United States about the loss of union jobs resulting from construction employers' use of the hoe ram; referring members to jobs in a manner that accorded preference to those longest on layoff; seeking reelection as secretary-treasurer of the Union; assisting Charles Smith's effort to set aside the election because of irregularities; providing information about union finances; advocating that the Union actively press employers to abide by the terms of the agreement between the Union and the Association and to make the required payments into the Funds for covered employees; and supporting certain claimants' efforts to obtain benefits from the Funds. The Board has held that such intraunion activity falls within the protection of Sec. 7 of the Act and, accordingly. we also agree with the Administrative Law Judge's conclusion that Re- spondent violated Sec. 8(a)(1) by discharging Montuoro for engaging in such activity. See Jacobs Transfer. Inc., 201 NLRB 210 (1973); Carpeners Local Union No. 22, e al. (William Graziano, d/b/a Graziano Construction Company), 195 NLRB 1 (1972); and A d B Zinman, Inc., 152 NLRB 1512 (1965). We find it unnecessary to pass upon the issue of whether Re- spondent violated Sec. 8(a)(3) by discharging Montuoro inasmuch as the remedy for such a violation, reinstatement with backpay, would be iden- tical. The Order and notice have been modified accordingly. 251 NLRB No. 165 and Miners Union Local No. 29 and their Trustees Louis Sanzo, Amadio A. Petito, Paul Crowley, and Theodore King, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. I. Substitute the following for paragraph l(a): "(a) Discharging employees for exercising the right to engage in protected concerted activity under Section 7 of the Act." 2. Substitute the following for paragraph 2(a): "(a) Offer Mario Montuoro immediate and full reinstatement to his former position or, if that posi- tion no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Deci- sion entitled 'The Remedy."' 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an oppor- tunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice and to carry out its provisions. WE WILL NOT discharge or otherwise penal- ize employees for engaging in protected con- certed activity under Section 7 of the National Labor Relations Act, as amended. WE WILL NOT in any other manner, includ- ing by discharge, interfere with, restrain, or coerce any of our employees in the exercise of rights guaranteed them in the National Labor Relations Act. WE WILL offer Mario Montuoro immediate and full reinstatement to his position as assist- ant administrator or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other lights or privileges previously enjoyed, and WE WILL make him whole, with interest, for 1242 DECISIONS OF NATIONAL LABOR RELATIONS H()OAR any loss in pay he has suffered as a result of our discrimination against him. WELFARE AND PENSION FUNDS, BLASTERS, DRILI.RUNNERS AND MINERS LOCAL UNION NO. 29 AND THEIR TRUSTEES LOUIS SANZO, AMADIO A. PETITO, PAUL CROWEI.Y, AND THEODORE KING DECISION ST A II MENT OF THE CASE HAROLD BERNARD, JR., Administrative Law Judge: This case was heard before me at New York City, New York, on May 19, 1979, pursuant to a charge filed Sep- tember 29, 1978, and a complaint issued November 9, 1978. The complaint alleges that the Respondent, as identified in the complaint caption' and the pleadings, in- cluding admissions thereto, discharged Mario Montuoro because he engaged in protected concerted and union ac- tivities thereby violating Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. 2 Respondent denies the commission of any unfair labor practices and alleges that Montuoro voluntarily resigned from employ- ment. Upon consideration of the entire record, the demeanor of the witnesses and briefs filed by the parties, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICION Respondent Funds are located at 238 East 75th Street, New York City, New York, the same location of Blast- ers and Drillrunners Local No. 29 which is party to a contract with General Contractors Association of New York, Inc., pursuant to which the Funds are established. The Funds are commonly administered by two union and two employer trustees as well as an administrator, Sam Cavalieri, who at relevant times herein was assisted by Montuoro. The Funds administer pension and health and welfare benefits for persons employed by employers covered by the Union-Association agreement. The par- ties stipulated that in 1978 the Funds provided services valued in excess of $50,000 to Schiavone, Lodigiani, and Crimmins, a joint venture, Schiavone being a general contractor doing business in the State of New York and, also in 1978, purchasing goods valued in excess of $50,000 directly from points outside New York. Based upon the parties' stipulation, and Respondent's admis- sions regarding the complaint allegations as to the Funds' operations and general nature, I find that Respondent Funds is an employer engaged in commerce within the ' Respondent's answer and G.C Exh 3(b) indicate that the complaint's caption identification of trustee Krowley is a misspelling hereby correct- ed to Crowley. 2 The General Counsel's amendment of the complaint to include as an additional alleged ground for Montuoro's discharge that he sought nomi- nation for reelection to union office was allowed with Respondent being granted an opportunity to support any objection thereto at the close in the General Counsel's case in chief Respondent made no such effort. meaning of Section 2(5) and (7) of the Act. Teamsters Health & Welfare Fund III, 233 NLRB 814 (1977): and Chain Service Restaurant, Luncheonette & Soda Fountain Employees, Local 11. AFL-CIO, 132 NLRB 960 (1961). Also admitted by Respondent is that Louis Sanzo. president and general manager of the Union, at all times material herein occupied the position of trustee of the Funds and was an agent acting on behalf of the Funds. II. t.ABOR ORGANIZATION Blasters, Drillrunners and Miners Union Local No. 29, affiliated with the Laborers International Union of North America, AFL-CIO, concededly is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR ABOR PRACTICE Montuoro served as assistant administrator to the Funds from his appointment by Sanzo in 1975 until May 12, 1978. Montuoro was also a member in Local 29 and in June 1975 was elected as secretary-treasurer. gaining him a seat on the Union's executive board presided over by Union President Sanzo, who also served as a trustee to the Funds. Montuoro's duties as a paid assistant ad- ministrator to the Funds included rendering assistance to claimants in the required paperwork, mailing out pension and welfare checks, posting eligibility time on employee welfare and pension cards, and the like. He acquired fa- miliarity with the governing rules and, in his position as a union officer, became a natural source to answer com- plaints by claimants denied benefits provided in the Funds as established by the Union-Association collective- bargaining agreement. Another employee at the Funds office, Joyce Cole, bookkeeper, was present on an occasion when Montuoro pressed the Funds administrator, Cavalieri, and then Sanzo for a claim's reconsideration on the grounds that the member contractor had failed to remit payments even though the claimant's pay stubs indicated the re- quired working hours had been spent in the employer's employment by the claimant. Cole corroborates Mon- tuoro's account that Sanzo told him there was nothing he could do about it. Montuoro recalls pressing this claim and others involving similar employer delinquen- cies on behalf of union members from around June through November and December 1977 only to be told by Cavalieri that nothing could be done about it because Sanzo refused to enforce the contract and go after the delinquent contractors. Cavalieri was not called to testify and this account remained uncontradicted. It is clear that Montuoro was reporting and pressing for the payment of claims arising, on the face of it, from the Union-Associ- ation contract and that no explanation, let alone proof of a closer analysis, of the claims' validity or invalidity was tendered to him by Sanzo or Cavalieri at the times he was seeking their payment. I therefore consider Re- spondent's efforts to address the question of these claims, specific nature and validity, later at this hearing as irrele- vant to the question whether or not Montuoro's efforts in this regard were protected union activities. The activi- ty was protected whether or not the specific claims were --- WELFARE AND PENSION FNDS 1243 meritorious. G & 14 Underground Contracting Co., 239 NLRB 78 (1978). As secretary-treasurer Montuoro's duties included col- lecting union dues, attending meetings and conventions of the General Contractors Association, union meetings, and executive-board meetings. Montuoro received com- plaints front union members in 1977 and early 1978 con- cerning other union members being used by contractors to man jobs falling within the contract jurisdiction of Local 29. He discussed these complaints with member Charles Smith, who later filed a complaint regarding this and other matters with the International, as well as other members of the Local Union. He went to several jobsites to investigate these matters, including Desimone Con- tractors, where he spoke to the job steward and learned that Local 731 Laborers members were doing work within the Local 29 jurisdiction as helpers on air tracks. Earlier, in November 1977, Montuoro's efforts resulted in a helper and watchmen being employed at the Irving Foundation in the CBS building at 56th Street. Mon- tuoro had reported these contractors to Sanzo at least weekly in 1977 and early 1978 in the presence of Cole, another office clerical, and Cavalieri, who was not called to testify. He informed Sanzo the contractors were not living up to the collective-bargaining agreement because they were either putting other union members on Local 29 work, or not using Local 29 men at all. Cole corroborates Montuoro's testimony concerning these discussions over specific contractors, and recalls many times when Montuoro and Sanzo talked in the office about the problems involved. She testified that Sanzo often mentioned he felt sorry for the contractors and that there was nothing he could do about it, and that Montuoro suggested that the job be shut down in order to force compliance with the contract. Montuoro testified that Sanzo, in response to the former's repeated efforts to get something done about the matter, told Montuoro to mind his own business and stay off the jobsites. In an effort to protect work oppor- tunities for union members Montuoro wrote a letter to the President of the United States describing the large number of union members suspended due to lack of work caused by building contractors using the hoe ram, a device used to break up concrete, resulting in displace- ment of the manual workers formerly used for such tasks. Sanzo berated Montuoro as being stupid and crazy for writing it. When a reply letter from the Assistant Secretary of the Department of Labor was received ad- dressing Montuoro's appeal, Sanzo, in a discussion with Montuoro concerning it, told Montuoro he was trying to destroy the Union and to cause trouble with the Labor Department. As a further responsibility in his office as secretary- treasurer, Montuoro referred applicants to work, choos- ing to do so on a system according preference to those longest on layoff in the predominantly black Local. He testified that Sanzo told him he was putting too many blacks to work and wanted to put whomever he. Sanzo, wanted to work. In January and again in February 1978 during another discussion with Charles Smith, who later attempted to run for president in opposition to Sanzo, Montuoro dis- cussed the payment of dues and union expenses, in par- ticular a recently purchased Cadillac for Sanzo. Mon- tuoro, responding to Smith's inquiry as to who had ap- proved the purchase, and its cost, replied that he was not aware that anyone had approved the acquisition and that the car cost $16,000. Montuoro supplied Smith with a copy of the Union's financial statement to respond fur- ther to Smith's additional request to know what the Union's cash balance was after the car purchase. Smith corroborates Montuoro's testimony in this regard, as well as with respect to later matters. This action also caused Sanzo's resentment. Around February or March 1978 Sanzo told Mon- tuoro that some stool pigeon in the office was giving out information, an apparent reference to Smith's having raised the question of why a new car had been pur- chased at recent union meetings. Montuoro told Sanzo not to blame the office clericals because he had given the information to Smith in the belief that the membership had a right to know about union expenses. Sanzo told Montuoro that he had no business giving out any infor- mation regarding union books. Under normal circum- stances it is hard to imagine why the secretary-treasurer in a local union would be prohibited from such a disclo- sure, and therefore a strong implication arises that what troubled Sanzo, and gave rise to his restraining admoni- tion against Montuoro, was the latter's support to a critic and rival aspiring candidate for Sanzo's office in the shortly forthcoming elections, a prelude to which was the meeting on May 9, 1978, for union office nomina- tions. About 9 weeks before this meeting Montuoro in- formed Sanzo that he was running for the office of secre- tary-treasurer, since his and other officers' then current terms of office were due to expire July 1, 1978. Prior to the nominations for election meeting Joyce Cole talked to Sanzo about the forthcoming meeting. Sanzo, according to Cole, said he knew that Smith was going to run for president but that by control over nomi- nations he would "stop Smith."This conversation oc- curred on May I or 2 and during the discussion Cole al- leges that Sanzo said he intended to prevent blacks from taking over the Union. At the meeting both Smith's efforts and those of other members on Montuoro's behalf to place them in nomina- tion for the office of president and secretary-treasurer were alleged to have been crudely thwarted by, in Smith's case, the precipitous closing of further nomina- tions for president once Sanzo had been nominated and, in Montuoro's case, the chair's allegedly ignoring a nomination and seconding of Montuoro for the office of secretary-treasurer. There were also other alleged irregu- larities in the conduct of this meeting. Suffice it to say that Montuoro informed Smith at the meeting that he would be a witness when Smith an- nounced his intention to protest to the Department of Labor over the procedures followed at the meeting and that the United States Department of Labor issued and filed in the United States District Court a formal com- plaint pursuant to Smith's charges which seeks to over- WELFARE AND P NSION FU DS 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD turn tbe election on the grounds that "it is in violation of Landrum Griffin." (Parties' stipulation.) Shortly after the meeting closed Smith complained to Sanzo and the Union's executive board about the irregu- larities in the meeting and also about what Smith charac- terized as general injustices to the membership. He wrote a letter dated May 12 to the International concerning these complaints, which included, inter alia, reference to jurisdictional manning problems, the Union's not enforc- ing the contract, disregard for the contract, and the car purchase-matters whose resolution Montuoro had ac- tively sought, as noted above, and as known by Sanzo. (G.C. Exh. 11.) Montuoro worked at the office on the following day, May 5, and testified that he made no protest to Sanzo concerning the events on May 9, and that Sanzo de- scribed how the "whole nomination" took 5 minutes and everything was okay. When questioned why he made no objection, either at the meeting or on May 5, Montuoro responded that he knew what kind of people he was dealing with, and considered it senseless to protest and, further, that Smith was filing a protest over the matter. On Monday, May 8, Montuoro had an accident, twist- ing his ankle and causing his absence from work until May 12. Before May 12, Cole testifies she had a conversation with Sanzo at the office, placed on either May 9, 10, or 11, during which Sanzo told her that he had stopped Charles Smith from running in the election, and that Montuoro had been nominated for an office but the nomination had not been allowed to go through. Ac- cording to Cole, Sanzo said that Montuoro was helping Smith, giving him information, and that he had to get Montuoro out of the office because he was a troublemak- er. On May 12, Cole testifies, Sanzo told her that he had to get rid of Montuoro, this time citing as reasons that he was a troublemaker and had filed for compensation and that he had been told by the "old man," an apparent ref- erence to Sam Cavalieri's father, Cavalieri Sr., that he had to get rid of Montuoro. Cavalieri Sr. was not called to testify. Cole also testified that on that same day Sanzo dictated letters of resignation from tbe office of assistant administrator and secretary-treasurer for Montuoro to sign, one dated May 12, resigning from both positions, and one undated resignation from the office of secretary- treasurer. Cole testifies that Sanzo dictated the letters and told her to have them ready because Montuoro was coming in and he was going to sign them. Respondent offered no testimony tending to show how Sanzo knew that Montuoro was going to resign before he arrived at the office, either from the position of assistant adminis- trator or secretary-treasurer, which gives rise to a rea- sonable inference that the action taken by Sanzo repre- sented a unilateral determination by him, and through him the Funds, to bring about Montuoro's separation from employment and union office by way of Mon- tuoro's resignation. In any event, Montuoro, limping and with a cane, did arrive at the office on May 12 intending to start work- ing. Montuoro, had he intended to resign from employ- ment, would hardly have arrived at the union office without calling in advance, or while still under the handicap of a sprained ankle-there was simply no reason, no emergency-to prompt such a substantially se- rious, sudden step at that time. Montuoro testifies that Sanzo offered him the letters of resignation but he re- fused to sign them, indicating he would protest Sanzo's conduct. Sanzo then told Montuoro to clean out his desk and give up the car keys-that he was not wanted in the office any more. Cole recalls only that Sanzo gave the letters to Montuoro, who refused to sign them. It does not appear whether or not Cole was within earshot of the entire conversation. Obviously, if Montuoro resigned from his employment voluntarily there is no reason why he would not have signed some document as specifically requested by Sanzo for the benefit of the board of trustees and the union re- cords. Instead, Cole heard Montuoro refuse to sign any letter of resignation and Montuoro informed Sanzo he would resist Sanzo's efforts. Montuoro, who testified that Sanzo had forced him to resign the previous January from a position of Funds Trustee clearly was unwilling to repeat that procedure with respect to the assistant ad- ministrator position on May 12. Moreover, Sanzo's testi- mony that Montuoro had expressed disinterest in his em- ployment with the Funds provides no plausible predicate for Sanzo's preparation of a letter of resignation from the office of secretary-treasurer as well. Rather, this step proposed by Sanzo reflects the hostility Sanzo engen- dered for Montuoro, which started when the latter ac- tively sought contract enforcement and reached a high water mark when Montuoro consorted with Smith in the election procedures and the immediate aftermath, the protest to the Department of Labor. Reinforcing the conclusion that Montuoro was dis- charged, if there were any doubt on May 12, is the fact that 3 days later Amadio Petito was put on the payroll, having replaced Montuoro, in Cole's words, on the same day Sanzo gave Montuoro the proposed letters of resig- nation. General Counsel's exhibit number 13 shows the Funds payroll payment entries for Petito on May 19 cov- ering a full week's salary, thereby confirming Cole's tes- timony and severely damaging Sanzo's account, which was that he gave the letters of resignation to Montuoro to use or discard as Montuoro chose to do. Even by his own account Sanzo did not tell Montuoro that, as of May 12, he would be considered as having quit and would be replaced that day whether or not Montuoro chose to sign the letters of resignation. If this were in fact a voluntary act on Montuoro's part it is extremely doubtful at best that Sanzo would have a replacement in the wings on call that very day for placement on the payroll. Rather, both the pretyped letters of resignation, the failure of any indication by Sanzo to Montuoro-in the face of an acquaintanceship going back 20 years- that Montuoro would be considered then and there as having quit even if he did not sign the resignation letters, the absence of any explanation for preparing a resigna- tion from the office of secretary-treasurer, and the instan- taneous replacement establish but one interpretation of events, and that is that Sanzo planned the day's occur- rences so as to result in Montuoro's departure. WELFARE AND PENSION FUNDS 1245 Failing in achieving a voluntary resignation, Sanzo dis- charged Montuoro. Lest there be any doubt concerning Montuoro's status on May 12, that doubt is dispelled by the fact that Montuoro on May 25 or 26 received a letter from Sanzo laying him off for lack of work.:' Sanzo denies having that letter prepared or sending it to Mon- tuoro, but Cole specifically recalls Sanzo dictating and signing the letter, and the signature on the letter bears a close resemblance to Sanzo's signature on General Coun- sel's Exhibit 9, the Union-Association contract, and was identified by Montuoro as being Sanzo's signature, an as- sertion worthy of some persuasive weight given Mon- tuoro's substantial, longtime association with Sanzo both in the Union and the Funds during which time Montuoro would have seen Sanzo's signature on numerous docu- ments and thus have been able to identify it. Analysis and Conclusions Montuoro's activities, which so clearly were known to Sanzo and, as demonstrated in the record, led to Sanzo's animus towards him, were fundamentally connected to the employment conditions of Local 29 members work- ing for employers' parties to the Local 29-association collective-bargaining agreement or covered thereby. Speaking on their behalf and acting for them regarding contract violations regarding alleged pension, welfare, manning, and jurisdictional provisions constituted obvi- ous protected concerted activity. Discharging an em- ployee for such conduct, furthermore, is a violation of both Section 8(a)(1) and (3) of the Act. D.H.I. Enter- prises, Inc., 239 NLRB 1037 (1978), Don Brentner Truck- ing Co., Inc. and Jon's Leasing Co., Inc., 232 NLRB 428 (1977); and Schiavone Construction Company, 229 NLRB 515 (1977). Montuoro's conduct in responding to alleged suspensions of members who no longer could pay dues because of layoffs engendered by loss of work caused by use of the hoe ram in the form of an appeal to the Presi- dent, a matter also underlying Smith's complaint to Sanzo, the Union's executive board, and the Internation- al, addressed the concerns of many Local 29 members and prima facie constituted protected concerted activity. His disclosure to Smith of union financial reports, his other assistance or support to Smith in filing a complaint over election irregularities with the Department of Labor, his assistance to Smith as a rival candidate for Sanzo's office, his own announced intention to seek, and allegedly aborted efforts to secure, candidacy for reelec- tion, all lie within the realm of protected conduct. Car- penters Local Union No. 22, United Brotherhood of Car- penters and Joiners of America, AFL-CIO (William Gra- ziano, d/b/a Graziano Construction Co., 195 NLRB 1 (1972); Jacobs Transfer, Inc., 201 NLRB 210, 218-220 (1973); A & B Zinman, Inc., 152 NLRB 1512 (1965); and National Maritime Union of America, AFL-CIO (Gaston Firmin-Guyon), 177 NLRB 615 (1969). In the present case there is no requirement to deter- mine whether or not Montuoro's discharge arose solely from activities protected by Section 8(a)(1) as being pro- G.C. Exh. 9. Cole mistakenly referred to this exhibit as one of the unsigned letters given to Montuoro when she intended to refer to G.C. Exh 10. as G C Exh 9 had been signed by Sanzo tected concerted activities, or stemmed from union activ- ities alone and thus violated Section 8(a)(3) involving a derivative violation of Section 8(a)(1). I find that the General Counsel has established by a preponderance of the credible evidence that Respondent. through Sanzo, its trustee, discharged Montuoro substan- tially for an amalgam of reasons constituting both pro- tected concerted and union activities as individually de- scribed above. I reach this conclusion as the credible evi- dence points to these activities as the only reason for Montuoro being labeled a troublemaker, because the cir- cumstances described above establish those reasons as the only ones leading to Sanzo's animus towards Montuoro, because the defense that Montuoro voluntarily resigned was so strained, so flimsily and artificially contrived, as if to conceal a discharge which would have been readily and highly suspicious given its timing so close to the high tide of Montuoro's activities found distasteful or un- settling to Sanzo; given the absence of any readily availa- ble cause for such discharge in Montuoro's work per- formance, which remained uncriticized at the hearing; given the immediate replacement of Montuoro by Petito indicating there was still a need for his former duties to be performed, and the precipitate nature of Sanzo's action against a longstanding associate for 20 years. These kinds of criteria have long been relied upon to de- termine motive for discharge. Penn Industries. Inc., 233 NLRB 928, 941 (1977). They are relied upon herein, as well as the more direct evidence of illegal motivation supplied by the testimony of Montuoro, Cole, and Smith, whose testimony on the core issues in this case was for the most part clearly and forthrightly given, as contrast- ed with the cryptic, guarded, evasive, and unconvincing testimony by Respondent's witnesses, much of which merely skirted the issues and left much unsaid that ought to have been addressed. This testimony lacked convic- tion and spontaneity usually associated with candor. To be sure, some of Montuoro's testimony concerning what was told him on May 12 to be the reason for his discharge seemed inconsistent with what he testified to during a compensation hearing some months later, but it was the totality in the circumstances surrounding the May 12 termination that was relied upon in concluding that a termination occurred then, and not Montuoro's testimony on the point alone. To show "inconsistency," Respondent also gave much attention to a letter by Montuoro in July to the Funds in which it is stated that he did not believe he had been dis- charged and he inquired about reemployment. Given the events preceding to July, including three letters on his status, one referring to layoff due to lack of work, as well as Montuoro's other job-loss-connected efforts, it is not unnatural for him to have sent such an inquiry. Moreover, whatever his tactic may have been in the seri- ous circumstances confronting him at the time, and what- ever he may have subjectively considered his status, 1 find these totally irrelevant to the issues in the case due to the objective proof relied upon for the finding that he was, in fact, discharged on May 12. As for his credibility due to the alleged inconsistency in this area of testimony, the same might be said con- WELFARE AND PENSION FUNDS 245 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARI cerning Cole in a different, and limited, sense. Cole said she did not believe that Sanzo distrusted her, when it is clear that it would have been far more logical to con- clude that he did not, given her testimony that Sanzo had once considered her a spy for black organizations. 4 This testimony was totally irrelevant to any issue in the case aside from credibility, and Cole in her substantial testimony on the case issues struck me as totally forth- right and believable in her demeanor as well as because she faced the serious possible consequences inherent in testifying adversely to one's own employer. Montuoro's activities were on behalf of members and other employees employed by employers covered by the Union-Association contract, but it is well established that Respondent Funds could not discriminate against Mon- tuoro due to such activity merely because it involved protected concerted and union activity among employees of employers other than Respondent. R & R Theatre Company, Inc., 238 NLRB 352 (1978); Dr. George Szele, Anesthesiologist, 238 NLRB 1414 (1978); and Redwing Carriers, Inc.. and Rockana Carriers, Inc., 137 NLRB 1545 (1962). Further, I consider the Respondent's reli- ance on Retail Clerkss misplaced since here it was the employer Funds which employed Montuoro and dis- charged him for his protected concerted and union activ- ities rather than the union. Thus, the Funds operated as a separate entity from the Union carrying out a completely separate function and consisting of both union and em- ployer representatives. When Sanzo acted he did so not in his capacity as a Union president in a Retail Clerks setting, but as an agent of the employer Funds. Montuoro's activities were clearly protected concerted and union activities so far as the Funds employer was concerned and his discharge by the Funds therefore vio- lated Section 8(a)(l) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. ' In this connection, and as further comments on the substantial credi- bility analysis required and undertaken due to the testimony offered b, the parties to this proceeding, I note with respect to Montuoro's and Cole's testimony that, "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." L R.B v Universal Camera Corporation, 179 F 2d 749. 754 (2d Cir. 1950), reversed on other grounds 340 U.S. 474 (1951). It should also be noted that neither of the Cavalieris was called by Respondent to tes- tify by way of denial or otherwise upon the conclusion in the General Counsel's case factors significant in a case involving "credibility" as so importantly treated in Respondent's brief and one commonly noted Sioux City Foundry, 241 NLRB 562 (1979); and District 1199C. National Union of Hospital and Health Cart, Employees, R WDSW/AFL-CIO (Episcopal Hospital), 241 NLRB No 35 (1979). b Retail Clerks Union, Local 770 Retail Clerks International A4sociation, AFL-CIO, 208 NLRB 356 (1974) CONCLUSIONS F01 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. By discharging Mario Montuoro because of his pro- tected concerted and union activities, Respondent has en- gaged in unfair labor practices affecting commerce within the meaning of Section 8(a)( I) and (3) and Section 2(5) and (3) of the Act. V. TH- RFMII)Y Having found that Respondent violated Section 8(a)(1) and (3) of the Act, Respondent shall be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Mario Montuoro, Respondent shall offer him immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his se- niority or other rights and privileges, and shall make him whole for any loss of pay he may have suffered by reason of the discrimination against him. Any backpay found to be due shall be computed, with interest, in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).f In view of the nature of the violation herein, it will be further recommended that Respondent be required to cease and desist from infringing in any other manner upon the rights guaranteed employees by Section 7 of the Act. On the basis of the foregoing findings of fact, conclu- sions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 7 The Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in a labor organization by discharging any employee because of his or her union and protected concerted activities. (b) In any other manner, including discharge, interfer- ing with, restraining, or coercing employees in the exer- cise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Mario Montuoro immediate and full reinstate- ment to his former position or, if that is not possible, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him 6 See, generally, Isis Plumbing & Heating Co, 138 NLRB 716t) 192) ' In the event no exceptions are filed as pros ided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board. the find- ings, conclusions, and recommended Order herein shall. as provided in Sec. 10248 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. WEI.FARE AND PENSION FUNDS 1247 whole for any loss of earnings he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other docu- ments necessary and relevant to analyze and compute the amount of backpay due under this Order. (c) Post at its New York, New York, office copies of the attached notice marked "Appendix." 8 Copies of said " In the event that this Order is enforced b a Judgmenet of a United States Courl of Appea, the sords i the notice reading "Pos,ted h5 notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's au- thorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or co,- ered by any other material. (d) Notify the Regional Director for Region 2, in A rit- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. Order of the National Labor Relations Board" shall read "Posted I'ursu- ant to a Judgment of the United Statle Court of Appeals Enforcing an Order of the National Labor Relations Board "