American Homes Systems

National Labor Relations Board - Board Decisions

Dec 29, 1972

200 N.L.R.B. 1151 (N.L.R.B. 1972)

AMERICAN HOMES SYSTEMS 1151
Michael Palumbo d/b/a American Homes Systems
and Steve L Zambory and James Barom Cases
8-CA-6860 and 8-CA-6950
December 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On August 14, 1972, Administrative Law Judge'
Josephine H Klein issued the attached Decision in
this proceeding Thereafter, Respondent filed excep-
tions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in fight of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt her recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Michael Palumbo
d/b/a American Homes Systems, Aurora Shores,
Ohio, his officers, agents, successors, and assigns,
shall take the action set forth in the said Order
i The title of Trial Examiner' was changed to Administrative Law
Judge effective August 19, 1972
2 In adopting the finding of the Administrative Law Judge that
Respondents business meets the Boards standards for assertion of
jurisdiction we rely additionally on H E Droese d/b/a R & H Cabinet &
Building Company 182 NLRB 518, fn 1
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H KLEIN, Trial Examiner Upon charges filed
on February 11, 1972, and April 3, by Steve L Zambory
and James Barone, respectively,' respectively, complaints
were filed against American Homes Systems, a sole
proprietorship, on March 23 and April 10, 1972 The first
charge and complaint related to the discharge of Zambory
and Jerome C DiCarro The second charge and complaint
covered Baron's discharge The complaints were consoli-
dated by order issued April 10
A hearing was held in Cleveland, Ohio, on May 9 and 10,
i Since the record establishes that Respondent s business is operated as
an unincorporated individual proprietorship the caption is hereby amended
to read as indicated
2 In a context unrelated to any jurisdictional question, there was
testimony indicating that Respondent is not the owner of houses but rather
1972 The parties waived oral argument, and thereafter
briefs were filed on behalf of the General Counsel and the
Respondent
Upon the entire record and consideration of the briefs,
the Trial Examiner makes the following
FINDINGS OF FACT
I JURISDICTION
The complaints allege and the answers admit that
Respondent "is engaged in the construction industry as a
general contractor for the purpose of constructing and
selling residential homes "2 The complaints also allege and
the answers, as amended at the hearing, admit that
Respondent has an annual indirect inflow of materials in
commerce valued in excess of $50,000
The admitted allegations thus establish that Respondent
meets the Board's standards for the assertion of jurisdic-
tion over nonretail operations However, there is no
allegation of facts satisfying the jurisdictional standards for
retail establishments
In Harry Tancredi, 137 NLRB 743, 745, the Board said
Although a portion of the buildings which he
constructs and sells are governmental or commercial,
and thus falls into the classification of "nonretail"
operations, Tancredi, by his stipulation and by his
evidence, admits that a portion of his business involves
the construction and sale of residential homes to users
This latter aspect of his operations comes within the
characterization of a retail enterprise The totality of
Tancredi's operations evidence to us that the business
is a single integrated enterprise, encompassing both
retail and nonretail operations
From this passage it is clear that (1) construction and sale
of governmental or commercial buildings are "nonretail",
and (2) sale of residential homes to users is retail Tancredt,
however, does not clearly state whether construction of
residential buildings is retail or nonretail
The question left open in Tancredi, as heretofore
formulated, appears to have been answered in a dictum in
United Slate Tile, Local 57 (Atlas Roofing Co), 131 NLRB
1267 Reversing the Trial Examiner, the Board, applying
the retail jurisdictional standards, assumed jurisdiction
over a company which constructed residential homes for
sale to the users In a footnote, however, the Board
expressed its agreement with the Trial Examiner's view that
"under Man Products, Inc, 128 NLRB 546, the Board
could have asserted jurisdiction if the indirect inflow of
[the employers] would have met nonretail standards " In
Man Products the Board held that either the retail or
nonretail standards for the assumption of jurisdiction
could be applied to a company "engaged in the manufac-
ture and retail sale of cellar doors and prefabricated
garden sheds," even though "99 percent of all sales were
made directly to homeowners and other ultimate consum-
ers " In reaching its conclusion, the Board said
erects them for an unidentified owner, who apparently does the selling
No specific finding is made in this connection , however in view of the
pleadings and the further fact that the decision on the jurisdictional issue
would be the same under either set of facts
200 NLRB No 158
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear, of course, that the Employer's business
has an aspect of a retail enterprise because it sells to the
ultimate nonbusiness consumer But it is also clear that
in all other respects its activity possesses elements of a
nonretail manufacturing enterprise, concerned with its
sources of supply of raw material, its recruitment of
employees with skills required in manufacturing or in
handling material other than at a purely retail level,
and its competition for such skills with other nonretail
enterprises in the labor market In such situations, the
Employer's activities also offer considerations for the
assertion of jurisdiction on the basis of the Board's
nonretail standards
Thus, under Atlas Roofing, construction and sale of
residential houses is a mixed retail and nonretail operation
and the Board will assume jurisdiction if either of its
applicable standards is met Since Respondent admittedly
meets the Board's nonretail standards, the Trial Examiner
finds that it will effectuate the purposes of the Act to
assume jurisdiction in this case 3
Respondent is, and has been at all times material herein,
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act 4
II THE UNFAIR LABOR PRACTICES
A The Issues
On February 7, 1972,5 Steve L Zambory, James Barone,
Jerome C DiCarro, and George Sangrik, the four
carpenters employed by Respondent, all arrived at work
shortly before the usual 8 a in starting time Shortly
thereafter, having conferred together, the four men
announced to the foreman, Dwayne Liezert, that it was too
cold to work and they were leaving, which they then
proceeded to do They all reported at the usual time the
next day After a short discussion, Respondent informed
Zambory, Barom, and DiCarro that they were fired None
of them has been recalled or offered reemployment
Respondent concedes that the employees acted in
concert and that they were discharged He maintains,
however, that the walkout was not "protected activity"
because the men did not act in "good faith" and that they
were discharged for reasons other than the walkout
The issue, therefore, is whether Respondent violated
Section 8(a)(1) of the Act by discharging the three men for
engaging in protected concerted activities, i e, a 1-day
strike to protest working conditions
The complaints also alleged that on February 9 Respon-
dent threatened "employees with permanent loss of
employment and other reprisals because they had engaged
in protected concerted activities "
3 A fortiori it is appropriate to assert junsdiction if Respondent is
actually engaged in construction under contract with a third party owner
who sells the houses to the users See fn 2 supra
4 National Labor Relations Act as amended (6I Stat 136 73 Stat 519,
29 U S C Sec 151 et seq )
5 Unless otherwise stated, all dates herein are in 1972
6 The General Counsel initially objected to the receipt of this chart on
the ground that it reports as of the Cleveland Hopkins International
Airport which is around 30 miles away from the building site The General
Counsel however, subsequently withdrew his objection The precise figures
B The Discharges
Respondent constructs residential single-family dwell-
ings They are A-frame structures, erected by a semifabn-
cated method, at least in part unique to Respondent In the
early part of February 1972, Respondent had about 12
houses in various states of completion, and 5 or 6
additional ones immediately projected According to the
foreman, there were four houses with carpentry to be done
on February 7
The four men here involved were all rough carpenters (as
distinguished from finish carpenters, who do primarily
interior finish work) As rough carpenters , the men were
required to work a great deal of the time outside or in the
partial shelter of open, unfinished, and unheated buildings
All the witnesses, particularly those called by Respon-
dent, testified that in December 1971 and January 1972
Respondent had on occasions decided that the weather
was too inclement for the men to work and had permitted
them to go home Respondent' s witnesses , particularly
Sangnk, testified that the carpenters frequently, if not
continually, complained about the cold The most recent
episode before the date here involved was Thursday,
February 3 On that day, Zambory and Barone worked
together constructing a roof on a house They started
around 8 am, the customary starting time, and finished
the job at around 12 30 or I p in, having worked through
their customary lunch hour because Zambory, to the
pleasure of Palumbo, had decided that it was advisable to
get the job done as soon as possible Since there had been a
steady and relatively heavy rain during all that time,
Zambory announced that he was soaking wet and was
going home Palumbo said that since Zambory was already
wet, he might as well stay the rest of the day Zambory,
however, left Barom said he would dry out in his truck and
then remain the rest of the day, which he did
Friday, February 4, was very cold According to a
Department of Commerce Environmental Data Service
chart introduced into evidence by Respondent, the average
temperature that day was 15 degrees, or 13 degrees below
normal The average wind was 22 9 in p h and there was
generally steady, though light, precipitations The men
complained among themselves about having to work
outside in the cold They asked Liezert if they could work
inside, but he replied that there was no inside work
available They all worked throughout the day
On Saturday, February 5, the average temperature was
13 degrees, or 15 degrees below normal The average wind
speed was 15 7 in p h There was some precipitation until 9
a in and there was an inch of ice or snow on the ground
With the exception of DiCarro, who was absent for the
day, the men worked that day
On Monday, February 7, the minimum temperature was
as to temperature , precipitation, and wind speed are not determinative The
Trial Examiner takes official notice of the fact that , at least generally,
weather conditions are similar within such a radius In the absence of
contrary evidence, the Trial Examiner accepts the chart produced by
Respondent as accurately reporting the weather at the time and place here
involved Palumbo worked with the men that afternoon At one point, he
was climbing a ladder which was being held by one of the men He
complained of the cold and was quoted as having said that the men were
crazy or fools to work outside in such weather
AMERICAN HOMES SYSTEMS 1153
1 degree below zero, the maximum 18, with an average of 9
degrees, or 19 degrees normal. The average wind speed was
12.8 m.p.h.; there was precipitation until 7 a.m., and there
were 7 inches of ice and snow on the ground at 7 a.m.
DiCarro and Baroni were the first of the carpenters to
arrive at work. They sat for awhile talking in DiCarro's
truck. Sangrik arrived a little later and joined them.
Zambory arrived shortly thereafter. The three men talked
some about the weather, when Zambory left in response to
a request by the foreman, Dwayne Liezert. Zambory and
Liezert went up on the roof of a house under construction
to investigate a leak. They discovered that the leak was
caused by accumulated snow which was melting around a
chimney. Apparently they made the necessary repairs.
Zambory then rejoined the other three carpenters, who
had meanwhile moved into a heated house, where they
conferred. They informed Zambory that they had decided
to leave and Zambory agreed to join them. DiCarro, as
spokesman for the four men, told Liezert that it was too
cold to work and the men were therefore leaving. Liezert
said that it was not too cold to work and that if the men
were unwilling to perform their work Respondent would
find other people who were willing to do so. The men left.
Palumbo arrived on the job at about 8:30 a.m. When he
asked where the carpenters were, Liezert replied that they
had left, saying it was too cold to work. Palumbo asked if
they were coming back, and Liezert said that he did not
know. Sometime that day, Palumbo took steps to have an
advertisement for carpenters placed in a newspaper to
appear the next morning.
On Tuesday, February 8, the four carpenters all arrived,
as usual , sometime before 8 a.m. Liezert arrived shortly
thereafter. He testified that, as he got out of his car, one of
the men asked him if they were fired. He replied that as far
as he knew they were not, but they were to take whatever
tools they had belonging to Respondent to the office,
which was located in a model house about a quarter of a
mile away from building site. When asked the purpose of
that request, Liezert testified:
We wanted to take a check on just what tools we
had, but the main purpose was so we would have our
tools there when we needed.
At another point in his testimony, he stated that after the
men left on Monday he had worked inside, being unable to
perform the work originally planned because the carpen-
ters had some of the necessary tools in their possession. He
did not at any point indicate when, if at all, Palumbo had
told him there was to be an "inventory" of tools and
equipment.
Palumbo arrived while Zambory, DiCarro, and Baroni
were standing near DiCarro's truck. Palumbo's testimony
at this point was:
I asked them what was happening. They said to me,
Are we going to work? I said to them, "No. We are not
going to work. It is too cold to work today. It was too
cold to work yesterday."
I then told them to take the tools and equipment
they had that belonged to us and put them up at the
model.
According to Palumbo, the men proceeded to the model
house, followed by Palumbo. While the men were
unloading the tools from the truck, Palumbo told Sangrik
to go back to the building site, where Palumbo would talk
to him later. Sangrik did so and the other three men
finished unloading the tools. Palumbo's testimony contin-
ued:
I started to leave, and, as I left, Steve Zambory
approached me, and he said, "Do you want us to work
tomorrow? I said to him, "No, I don't think so. It is
probably going to be as cold tomorrow as it is today."
He says to me, "How about the next day?" I don't
believe I answered.
Then he says to me, "Do you want us back at all?" I
thought for a second, and then I answered him, "No, I
don't want you back at all." 7
Palumbo returned to the building site, where he talked to
Sangrik. In this connection, Palumbo testified:
The conversation was that if he wanted to go with
these guys or-at the beginning, I asked him if it was
too cold to work Monday. He said to me, "No."
I says to him, "Why did you leave?" He says to me,
"I don't know. I just thought I should go along with the
rest of the guys. They suggested it."
At that point, I told him that I put a lot of faith in
him, and I think that is all I said except I asked him if
he wanted to stay at work, and he said he did, and that
was it.
Sangrik is still employed by Respondent and was called as
a witness by Respondent.
Respondent's newspaper advertisement for carpenters
had been published early on the morning of Tuesday,
February 8. Around 8:45 a.m. a clerk in his office informed
Palumbo of the 15 to 20 telephonic responses that had
been received to the advertisement. At about 10 or 10:30
a.m., before Palumbo had a chance to call any of the
applicants, one telephoned him and made an appointment
for an interview at 12:30 p.m. Along with two somewhat
inexperienced carpenters helpers, the applicant arrived at
the appointed time and all three men were hired.
According to Palumbo, two of the three men hired at that
time were still employed by Respondent at the time of the
present hearing, the third having left sometime in April.
Respondent's witness, Sangrik, however, indicated that
only two new carpenters were hired, reporting to work on
Wednesday or Thursday, February 9 or 10.
Baroni and DiCarro each testified that on Tuesday
evening he received a telephone call from Liezert stating
that the men had been terminated, but Palumbo and
Liezert were going to discuss the matter further. The next
morning Liezert telephoned them again to say that
Palumbo had concluded that Baroni and DiCarro valued
their jobs and therefore they would be rehired within a few
weeks. According to DiCarro, Liezert, in response to an
r The men quoted this interchange as having specifically included the discharged but not necessarily in the manner stated by General Counsel
word "fired ." Whether or not that precise language was used, the message -not an outright discharge ." Respondent 's brief also clearly concedes that
was the same and it was clear. At the beginning of the hearing , the men were discharged : "They were discharged for cause ... .
Respondent's counsel said : ". . . we would have to admit that they were
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquiry, said that Zambory would not be rehired because
he had instigated the walkout
Liezert testified that DiCarro had visited the jobsite
sometime on Tuesday asking Liezert 's help in being
reinstated According to Liezert , DiCarro said he "thought
he had blown a good fob " Liezert also testified that on
Tuesday Palumbo instructed him to call the two men,
DiCarro and Barom , to come in to see Palumbo to discuss
their jobs "Maybe they had put more value on their job
than he had thought " Liezert testified that he was opposed
to rehiring the men Although his testimony was somewhat
confused , Liezert appears to contend that he had made
only one telephone call on Wednesday morning
Palumbo's testimony conflicted somewhat with Liezert's
Palumbo testified that Mrs Barom telephoned him on
Tuesday and Wednesday evenings to explain that Barom
had left the job on Monday because he suffered from
bursitis , which was aggravated by the cold According to
Palumbo, it was then that he first considered recalling the
two men because "DiCarro returned for his job and
showed me that he was at least interested in coming back
to work " He did not specifically describe the circum-
stances under which he had talked to DiCarro Mrs
Barom 's intercession and explanation satisfied him as to
Barom
Palumbo testified that , after talking to DiCarro and
twice with Mrs Barom , he called Liezert and "told him to
get hold of these two guys and tell them [Palumbo] would
like to talk with them about their jobs " However, Palumbo
later testified that he did not inform Liezert of his intention
possibly to rehire the men until after they had come in and
spoken with him
On Thursday afternoon, pursuant to Liezert 's message,
Baroni and DiCarro visited Palumbo Palumbo's immedi-
ate reaction was to inquire if the two men felt they had to
come in together to talk to hum The men said that
anything Palumbo had to say to either of them he could
say in front of the other According to DiCarro, Palumbo
said to Barom "Because of organizing like you are now,
this is the reason you got fired " At first Palumbo entirely
denied having used the word "organize " However, his
pretrial affidavit given to a Board agent , produced by the
General Counsel , said , in pertinent part "I asked them if
there was any reason that they felt they had to organize to
talk with me " After seeing the affidavit, Palumbo testified
"I believe this one is true They may possibly have used the
word I will agree I do not actually remember " However,
Palumbo did not admit having made the statement that
Barom attributed to him , he maintained that the word
"organize" was used, at most, in connection with their
having come to see him together
Palumbo's testimony concerning this meeting was
We discussed the job, or the possibility of calling
them back I explained to them both that they put me
in an awkward position , that I had, in fact, hired
someone to take their place inasmuch as they led me to
believe that they didn't care for the job at all I told
them I would have to further consider it, I would have
to think more about whether I would hire them back or
not
I was inclined to think that I would at that particular
time and told them so However, they could not be
rehired at that particular time because there was no
work for them to do
DiCarro testified that Barom asked if Zambory would
also be rehired, and Palumbo replied, "No, because he
thinks he was the instigator of it and the one that pulled us
all together to leave " Barom gave similar testimony,
except that he ascribed the question to DiCarro
Respondent contends that this testimony must be
discredited as an "afterthought" because it is not recited in
the affidavit given to a Board agent on February IQ The
three men had gone to the Board office at about 4 40 p in
on February 10, immediately after DiCarro's and Barom's
visit with Palumbo At this time, Zambory filed a charge
He gave the affidavit in the first person singular, and it was
then signed by the other two Under the circumstances, the
Trial Examiner finds it not at all suspect that Palumbo's
statements to the other two men were not mentioned at
that time but were adduced only later by counsel for the
General Counsel, when he interviewed each of the men
separately at length in preparation for trial At the time the
original statement was given, DiCarro and Barom had
reason to anticipate recall within the near future Indeed,
the charge then filed did not mention Barom, who waited
almost 2 months before filing a charge There are no
substantial conflicts in the testimony of the three discharg-
ees On the other hand, there are significant conflicts in
the testimony of Respondent's witnesses Based on these
considerations, together with careful observation of the
witnesses' demeanor, the Trial Examiner credits DiCarro
and Barom
The foregoing facts manifestly establish, at least prima
facie, that the three men were discharged for having walked
out to protest working conditions, i e, having to work in
extremely cold weather Discharge for such reason mani-
festly violates Section 8(a)(1) of the Act NLRB v
Washington Aluminum Co, 370 U S 9 It is thus in order to
consider Respondent's defenses
Respondent's first defense is that the walkout was not
protected because it was not a good-faith protest against
working conditions According to Respondent, the "real"
reason for the walkout was an irresponsible act of "goofing
off," with the cold weather simply seized upon as a
"pretext" for taking the day off To support this conten-
tion, Respondent relies on testimony by Sangnk Sangnk
testified that when he arrived at work on February 7,
DiCarro and Barom were sitting in DiCarro's truck talking,
when Sangrik walked over His testimony continued
Jerry [DiCarro] was saying he didn't want to work,
and I remember something about his saying he was
tired or something he had done on Sunday and didn't
want to work, and so, we used the general excuse
Jerry said he was tired from Sunday and he didn't
feel like working, that it was too cold, and we all agreed
it was too cold
Sangnk further testified that in his opinion it was not too
cold to work and he had agreed with the other men simply
because "if you work with a bunch of guys you just
agree with them just to get along "
In supporting his expressed opinion that it was not too
cold to work, Sangnk said that they had worked during the
AMERICAN HOMES SYSTEMS 1155
previous week, when it was colder However, as shown
above, the official weather record shows clearly that
February 7 was the coldest day so far in the month, with
the average temperature 9 degrees, which was 19 degrees
below normal, and average wind speed of 12 8 in p h 8
Sangrik himself established that the men were continu-
ously concerned about the weather, which was a frequent
topic of discussion and complaint Indeed, he accusingly
said that the men "said it was too cold every day it was 20
degrees or below
At the hearing, Respondent was at great pains to
establish, successfully, that the employees often took time
off without being reprimanded or disciplined Employees
frequently telephoned in the morning to say they would
not be in that day, and there were no repercussions That
being so, it is difficult to understand why DiCarro went to
the great effort of dressing for work and arriving at the site
before 8 am on a bitterly cold day if, as Respondent
maintains, he was simply tired and wanted to "goof off"
for the day Further, it seems somewhat strange that
Palumbo considered rehiring DiCarro, the alleged instiga-
tor of the "lark," while refusing to consider reinstatement
of Zambory, a mere follower 9
In any event, the record is clear that the employees'
alleged ignoble irresponsibility played no part in the
discharge Sangnk testified that he did not inform anybody
of what he claimed was the "real" reason for the walkout
until a month after the event This was corroborated by
Palumbo, who also testified that on February 7 he "didn't
at that particular time know why they had left other than
they had left because they said it was too cold to work "
Respondent apparently contends that the employees'
returning to work on Tuesday demonstrates their recogni-
tion of misconduct on Monday and thus, in effect,
constitutes an admission that they had simply embarked
on an unprotected "lark " There is no merit to this
contention Employees may reasonably engage in a strike
of limited jurisdiction as means of demonstrating the
genuineness of their demands They probably hoped to
convince Respondent not to require them in the future to
work outdoors in extremely inclement weather Also,
employees often cut a strike off for fear of losing their jobs
to permanent replacements Not every strike is carried on
to complete victory for the workers That they returned to
work on Tuesday has no tendency to support Respondent's
view that the walkout was either unreasonable or improp-
erly motivated See First National Bank of Omaha v
N L R B, 413 F 2d 921, 924 (C A 8), quoting with
approval Trial Examiner Janus' statement that "a work
stoppage does not lose its presumptive protection merely
because it is limited in duration" 171 NLRB 1145, 1151
B This contradicts Palumbo s testimony that there was no wind on that
day
9 Respondent s brief says The excuse that it was too cold to work was
a pretext made up by DiCarro as an excuse because he wanted to take a day
off The other men went along as a lark because it seemed to be a
good idea for a Monday morning
10 If the reasonableness of the employees conduct were of crucial
significance it would be interesting to compare their position with
Respondents The weather chart introduced by Respondent shows that day
as the extreme for the month with temperatures ranging from 6 degrees
below zero to 14 degrees above for an average of 4 degrees , or 24 degrees
below normal The average wind speed was 8 6 in p h and there was 7
Respondent's contention that the men acted unreason-
ably, and thus lost their legal protection, because they did
not speak to Palumbo personally and gave no prior notice
of their walkout is also without merit First, the evidence
establishes that Palumbo's presence on the job, though
frequent, was irregular and unpredictable Further, Palum-
bo himself testified that "normally" in Palumbo's absence
Liezert "would determine for himself when he thought the
men should be sent home because of inclement weather "
On the morning of February 7, Palumbo was not present
when the men spoke to Liezert They left only when he
insisted it was not too cold to work Liezert did not suggest
that they wait to talk to Palumbo No further notice was
required of the employees See N L RB v Washington
Aluminum Co, supra, 370 US at 15, Polytech, Inc, 195
NLRB No 126
Respondent's brief contains the following two state-
ments "The employees did not want to, or have to,
organize for protection There were no objections on
the part of management or the employees to discussing or
adjusting working conditions and whether or not they
would work under certain weather conditions " But the
fact that the carpenters walked out together demonstrates
that they did "want to" organize, and Liezert's refusal to
accede to their position demonstrates that they did "have
to" take concerted action for protection In any event,
Respondent's past willingness to discuss the matter at most
"might tend to indicate that the conduct of the men in
leaving was unnecessary and unwise , and it has long been
settled that the reasonableness of workers' decisions to
engage in concerted activity is irrelevant to the determina-
tion of whether a labor dispute exists or not " Washington
Aluminum Co, supra 370 U S at 1610
A brief word may be said of Respondent' s reference to
Section 502 of the Act,11 as construed in N L RB v Fruin-
Colnon Construction Co, 330 F 2d 885 (CA 8), holding
unprotected a concerted work stoppage in violation of a
contractual no-strike clause, where the condition protested
was not in fact abnormally dangerous 12 The statutory
provision there involved is totally mapphcable to the
present case, where the employees have not contracted
away, in whole or in part, their basic and fundamental
right to strike That right is not limited to abnormally
dangerous situations but rather concerns any and all
conditions of employment
Palumbo conceded that the men were discharged
because they had made the mistake of walking out on
Monday It should further be noted that in a pretrial
affidavit given to a Board agent, he said
In summary, there were three employees who refused
inches of snow and ice on the ground It would be interesting to learn the
facts about the previous occasions on which Respondent maintains it
decided the weather was too inclement to work
ii nor shall the quitting of labor by an employee or employees in
good faith because of abnormally dangerous conditions for work at the
place of employment of such employee or employees be deemed a strike
under this Act
i2 The Sixth Circuit has held that a work stoppage in violation of a no
strike clause is validated by the employees good faith belief that there are
abnormally dangerous conditions N L KB v Knight Morley Corp 251
F 2d 753 cert denied 357 U S 858
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work because it was too cold I fired them because I
did not think it was too cold
Respondent now maintains that the primary reason for
the discharges was that the three men were incompetent or
otherwise undesirable employees According to Respon-
dent, for a considerable time Liezert had been complaining
about these carpenters and had frequently requested that
they be discharged and replaced by more competent
workers Palumbo, however, had rejected Liezert's re-
quests Palumbo maintained that he then found the
walkout a providential occasion for adopting Liezert's
recommendations without causing "hard feelings," Palum-
bo being sensitive about offending the employees by
criticizing their ability
Having testified that he decided to fire the men on
Tuesday morning, Palumbo was allowed to state his
reasons for the discharge He said
When Steve Zambory asked me if I wanted them
any more, I thought about it and, no, I didn't want
them any more I just decided at that particular time
that they were more trouble than they were worth
I am a die-hard when it comes to getting rid of
employees, but, at that particular point, it was my
opportunity to get rid of them I decided it
Thus, on Palumbo's own testimony, the walkout was the
immediate occasion and cause of the discharge Even if
Respondent had established that other considerations
contributed to the discharge, a violation of the Act would
be shown, since it is not necessary that improper
motivation be the sole factor in establishing a wrongful
discharge
In any event, there is no evidentiary support for a claim
that the men were fired for incompetence Their employ-
ment histories belie any such reason
DiCarro had been hired around April 1971 In Novem-
ber or December 1971, he was made a "group leader," 13
with an increase in pay Zambory was hired on December
4, 1971 Within about a month, Palumbo approached
Zambory about the possibility of his becoming a supervisor
or group leader, which position would have resulted in a
raise Zambory, however, refused to make any definite
commitment at that time Accordingly, he remained at his
existing job and pay rate At the hearing, Palumbo
acknowledged that Zambory "had ability to supervise He
had quite a bit of ability " Barone had been hired in May
1971 as a carpenter His work proved less than satisfactory
and, about a month or 6 weeks later, Liezert recommended
that he be discharged Palumbo, however, took the
alternative course of allowing Barone to remain on at a
reduced rate of pay until he had acquired sufficient
proficiency to perform the full duties of an experienced
carpenter Palumbo acknowledged that Baron's perform-
ance improved thereafter and in the later fall or early
winter of 1971 his pay was increased 14
C The Threat
As stated above, the complaints also allege that on or
about February 9 Palumbo "threatened [Respondent's]
employees with permanent loss of employment and other
reprisals because they engaged in protected concerted
activities" The General Counsel does not specifically
address himself to this allegation in his brief Since, as
heretofore found, the men were discharged early on
February 7, superficially it appears somewhat difficult to
find a threat of discharge or other reprisals thereafter
However, the distinction made between Zambory and the
other two dischargees does, in the Trial Examiner's
opinion, constitute a prohibited threat for the exercise of
statutorily protected rights
As previously stated, at Palumbo's request, relayed by
Liezert, DiCarro and Barom visited Palumbo and dis-
cussed the possibility of their reinstatement Palumbo
indicated that they would probably be recalled within a
month Respondent made it clear from the beginning,
however, that Zambory would not be recalled According
to Respondent, the reason for this distinction was the fact
that Zambory was not interested in a permanent job with
Respondent Had Respondent been insistent on having just
permanent employees in order to achieve its announced
purpose of building an organization, presumably Zambory
would have been replaced as soon as possible after he
refused to commit himself to remaining in December when
Palumbo spoke about a group leader or supervisory
position So far as appears, no steps had been taken to find
a potential replacement
The record suggests more plausible reasons for Respon-
dent's total refusal to consider the possibility of recalling
Zambory, namely, his proclivity to organizational activity
On cross-examination, Palumbo testified as follows
Q Did you at any time tell [DiCarro and Barom ]
you suspected that Mr Zambory had instigated the
walkout9
A Only after Mr DiCarro indicated that to me
Q Did you tell them that, because Mr Zambory
instigated the walkout, you would not rehire him again
A No
At that point, Palumbo was confronted with his pretrial
affidavit, which reads in part
When Jerry and Jim came to my office on Wednes-
day, I told them that, in my opinion, Steve Zambory
was responsible for them walking off the job I came to
that conclusion because on Tuesday morning Steve
acted as spokesman and that Jerry told me that he
had listened to Steve I cannot recall telling them that I
would not hire Steve again, but, if they said that I told
them, I probably did I did not hire him again because I
believe he caused the trouble 15 Moreover, he was a
13 At one point Palumbo indicated that the greatest cause of his
annoyance was Barone s goofing off when he was supposed to be one of
our supervisors However there is no contention that Barone was
supervisor within the statutory definition
14 Palumbo denied any great improvement in DiCarro s performance
and maintained that he gave Barone a raise in anticipation of the fact that
he would get better This is hardly consistent with DiCarro s prior pay
reduction
The evidence is clear that the three men reported to work by 8 a in on
Tuesday February 8 At that point the stake was ended Their discharge
thereafter was thus clearly illegal No replacements had been hired, or
indeed even interviewed, before the strikers reported back to work Thus,
they are entitled to reinstatement
is This is inconsistent with Respondent 's present position, based on
Sangnk s testimony that DiCarro initiated the walkout because he was tired
from his weekend activities In the conclusion of its brief Respondent says
AMERICAN HOMES SYSTEMS 1157
Union carpenter He was working with me only until he
found other employment
On cross-examination of Zambory, Respondent' s counsel
had adduced the information that Zambory is "a union
carpenter" and Respondent is "a non-Union builder " In
cross-examining Zambory, Respondent's counsel attempt-
ed to show that Zambory informed Palumbo that he
wanted only temporary employment and "didn't want to
get tied down because [he was] `moving' " Nonetheless,
Zambory was hired and was retained after he refused to
commit himself to staying on for a supervisory position In
view of this, it is a reasonable assumption that Palumbo's
refusal to consider reinstating Zambory was motivated by
something other than his impermanence The evidence as a
whole indicates that Palumbo's special displeasure with
Zambory's stemmed from his aggressiveness as an employ-
ee, as evidenced by his union membership and ability to
organize the employees
Accordingly, on February 10, when Palumbo told Barone
and DiCarro that they would be rehired, but that Zambory
would not be because he was the instigator of the walkout,
Respondent clearly, if only impliedly, threatened drastic
reprisals for past or future concerted activities In so doing,
Respondent violated Section 8(a)(1) of the Act
CONCLUSIONS OF LAW
1 Michael Palumbo d/b/a American Homes Systems
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
2 By discharging Steve L Zambory, Jerome C
DiCarro, and James Barom because they had engaged in
protected activities, Respondent has interfered with,
restrained, or coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, and is thereby engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act
3 By threatening employees with permanent discharge
or other reprisals for engaging in protected activities,
Respondent has interfered with, restrained, or coerced
employees in the exercise of rights guaranteed in Section 7
of the Act, and is thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act
4 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
THE REMEDY
Having found that Steve L Zambory, Jerome C
DiCarro, and James Baroni were improperly discharged
and thereafter denied reinstatement, the Trial Examiner
will recommend that Respondent be required to offer them
immediate and unconditional reinstatement with backpay
for the period commencing on February 8, 1972, and
continuing until Respondent offers them full and uncondi-
that the real reason they left was that DiCarro was tired from the
weekend and talked the three others into taking a day off with him
16 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings
conclusions and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings conclusions and Order, and all objections thereto shall be
tional reinstatement to their former jobs Backpay is to be
computed in accordance with F W Woolworth Co, 90
NLRB 289, and shall carry 6 percent per annum interest in
accordance with Isis Plumbing & Heating Co, 138 NLRB
716
In addition, the Trial Examiner will recommend the
cease-and-desist and notice-posting requirements custom-
ary in cases such as the present
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, the Trial Examiner hereby issues the following
recommended
ORDER 16
Respondent, Michael Palumbo d/b/a American Homes
Systems, his agents, successors, and assigns, shall
1 Cease and desist from
(a) Interfering with , restraining , or coercing employees
by discharging or in any other manner discriminating
against employees for striking or engaging otherwise in
concerted protected activity, or by threatening to take any
such action
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer to reinstate Steve L Zambory, Jerome C
DiCarro, and James Barom to their former positions, or, if
those positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges
(b) Notify any of the above-named employees who are
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after
discharge from the Armed Forces
(c) Make whole Steve L Zambory, Jerome C DiCarro,
and James Barone for any loss of earnings each of them
may have suffered by reason of the unlawful action against
him in the manner set forth in the section of this Decision
entitled "The Remedy "
(d) Preserve and make available to the Board or its
agents, upon request, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms hereof
(e) Post at its office and at each of the houses under
construction by Respondent copies of the notice attached
hereto and marked "Appendix 1117 Copies of such notice,
on forms to be provided by the Regional Director for
Region 8, shall, after being duly signed by Respondent, be
deemed waived for all purposes
17 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posted immediately upon receipt thereof and be main-
tained for a period of 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(f) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondent has taken to comply herewith i8
18 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read
"Notify the Regional Director for Region 8, in writing within 20 days from
the date of this Order what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present their evidence, it has been found that we violated
the law and we have been ordered to post this notice about
what we are committed to do
The National Labor Relations Act gives all employees
these rights
To organize themselves
To form, join, or help unions
To bargain as a group through a representative
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things
WE WILL NOT do anything that interferes with these
rights
WE WILL NOT discharge or threaten to discharge any
employees, or otherwise discriminate against them, for
engaging in concerted activities protected under Sec-
tion 7 of the Act
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed to them by Section 7 of the Act
WE WILL offer to Steve L Zambory, Jerome C
DiCarro, and James Barom immediate and full
unconditional reinstatement to their former positions,
or, if such jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniori-
ty or other rights and privileges previously enjoyed by
them, and wE WILL pay them for any loss of pay they
may have suffered as a result of their discharge on
February 8, 1972, together with interest
WE WILL notify Steve L Zambory, Jerome C
DiCarro, and James Barom if they are serving in the
Armed Forces of the United States , of their right to
employment, upon application, after discharge from
the Armed Forces, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act
MICHAEL PALUMBO D/B/A
AMERICAN HOMES SYSTEMS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posrting and must not be altered, defaced,
or covered by any other material Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 1695 Federal Office
Building , 1240 E Ninth Street, Cleveland, Ohio 44199,
Telephone 216-522-3715