Bronx Metal Polishing Co., Inc.

National Labor Relations Board - Board Decisions

Sep 23, 1985

276 N.L.R.B. 299 (N.L.R.B. 1985)

BRONX METAL POLISHING CO 299
Bronx Metal Polishing Co., Inc. and Henry Mills.
Case 2-CA-19504
23 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On'4 April 1985 Administrative Law Judge Jesse
Kleiman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the decision of the judge and in opposition to Re-
spondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended -Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent; Bronx Metal
Polishing Co., Inc., Bronx,' New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
A hearing was held before me. in New York, New
York, on July 18 and August 29, 1983. All parties Were
afforded full opportunity to appear, to introduce evi-
dence, to examine and 'cross-examine witnesses , to argue
orally on the record, and to file briefs. Thereafter the
General Counsel filed a brief. i -
By letter dated March 1, .1984, the General Counsel
requested that the administrative law judge take "judicial"
notice"' of a prior adjudication in Bronx Metal Polishing
Co., 268 NLRB'887 (1984), in which the Board affirmed
the finding of Administrative Law Judge Howard Edel-
man that the Respondent had committed various unfair
labor practices.2.In response thereto, the Respondent's
counsel , by letter dated March 5, 1983, enumerated facts
which were' litigated in the instant case but were "not
available" in the proceeding before Judge Edelman, and
also discussed how these facts impacted upon the Charg-
ing -Party's credibility . In a letter dated March 18, 1984,
the General Counsel moved to strike the Respondent's
letter of March 5, 1984, for the reason that
[I]t is improper for Respondent at this time to argue
the merits of the case, including witness credibility
which should have been argued in a brief to the
Administrative Law Judge. By failing to present
these arguments in a brief timely submitted to the
Administrative Law Judge, Respondent is now fore-
closed from presenting such argument.3
The Board and courts have long held that it is entirely
appropriate for the Board to take official notice of its
own prior decisions which involve the same parties and
similar issues .4 Therefore, I grant the General Counsel's
I The Respondent has excepted to some of the judge 's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Ellen Dichner, Esq., David Leach, Esq., and Joel Cohen,
Esq., counsels for the General Counsel.
Maurice H. Kronowitz, Esq., of Brooklyn, New York, for
the Respondent.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN , Administrative Law Judge. On a
charge filed on March 15 , 1983, in Case 2-CA-19504, by
Henry Mills, an individual (Mills and /or the Charging
Party), the General Counsel of the National Labor Rela-
tions Board , by the Regional Director for Region 2,
New York, New York, duly issued a complaint and
notice of hearing on April 29 , 1983, against Bronx Metal
Polishing Co., Inc. (Respondent) alleging that the Re-
spondent had engaged in certain unfair labor practices
within the meaning of Section 8 (a)(1) and (3) of the Na-
tional Labor Relations Act (the Act). On May 9, 1983,
the Respondent, by counsel , duly filed an answer deny-
ing the material allegations of the complaint.
276 NLRB No. 31
I The Respondent 's counsel filed no brief but he did make a closing
statement at the conclusion of the hearing concerning the issues presented
in this case
2 Counse ; for the General Counsel states therein.
General Counsel requests that you take judicial notice of the deci-
sion inasmuch as it directly relates to the period and circumstances
surrounding the discharge of Henry Mills, the charging party in the
above-captioned case
Of particular relevance to the case before you is Judge Edelman's
finding, upheld by the Board , that Respondent "engaged in an in-
tense and extensive union campaign which included . threats to
discharge employees reduction of employee benefits, etc
[which] clearly established Respondent's intense anti-union animus "
Bronx Metal Polishing , 268 NLRB No 138 (1984) sl op at 10 More-
over, while the Board specifically upheld the Judge's finding of
8(a)(1) statements of Repondent to Mills, it declined to adopt the'
Judge's gratuitous findings as to the reason for Mills' layoff in Sep-
tember 1982 . Bronx Metal, supra, fn. 2 at 2 . In view of the Board's
order affirming Judge Edelman 's findings of numerous 8(a)(1) state-
ments made in the course of its anti -union campaign , including the
8(a)(1) statements to Mills regarding the discontinuance of his piece
work which resulted in Respondent 's implementation of its threat to
discharge Mills, which is precisely the issue before you , General
Counsel respectfully requests you to take judicial notice of the
Board's order.
The General Counsel additionally noted that the Respondent had
only served her with a copy of page one of its letter dated March 5,
1984, and "thus is unaware of the contents of any subsequent pages. At
this time, it is therefore impossible for the General Counsel to respond to
any additional issues which may be presented by Respondent 's March 5,
1984 letter "
* Le Roy Fantasies, Inc, 256 NLRB 211 (1981 ); Ford Motor Co, 246
NLRB 671 ( 1979), Moulton -Mfg. Co., 152 NLRB 196 ( 1965) Accord
Tama Meat Packing Corp , 575 F.2d 661 (8th Cir. 1978), cert . demed'439
U.S 1069 (1979)
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
request to take official notice of the above cited deci
sion 5 Moreover as regards the motion to strike the Re
spondent s letter of March 5 1984 I note that the Re
spondent certainly had a right to respond to the General
Counsels motion for official notice of a prior Board de
cision and to argue its merits But when the Respondent
used such response to also argue the question of credibil
ity and in a sense the merits of its position herein the
Respondent in effect transferred its response essentially
and in nature into a brief which it had failed to timely
file beforehand 6 Since the Respondent has failed to
comply with the Board s Rules and Regulations concern
ing the filing of briefs 7 I accordingly shall grant the
General Counsels motion to strike the Respondent s
letter of March 5 1984 8
On the entire record the General Counsels brief and
on my observation of the witnesses I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
The Respondent a New York corporation with an
office and plant facility in the Bronx New York has at
all times material herein been engaged in the business of
electroplating and polishing metal parts on a nonretail
5 However it should be noted that I have not given such proof of the
Respondents prior misconduct dispositive weight regarding any of the
issues before me in this proceeding See Bill Fox Chevrolet 270 NLRB
568 at 570 (1984)
8 See National Electrical Contractors Assn 215 NLRB 894 896 fn 2
(1974) modified without opinion 95 LRRM 2274 (D C Ctr 1977) In this
case the respondent union s letter to the administrative law judge was
held to be essentially a reply brief Cf Downtown Motor Inn 262 NLRB
1058 (1982) wherein a document calling attention to a recently issued
Board decision and which did not contain any argument as to the issues
in the case was not excluded as a late filed and untimely submitted brief
° Sec 102 42 of the Board s Rules and Regulations provides
Any party shall be entitled upon request made before the close of
the hearing to file a brief or proposed findings and conclusions or
both with the administrative law judge who may fix a reasonable
time for such filing but not in excess of 35 days from the close of
the hearing Requests for further extensions of time shall be made to
the chief administrative law judge in Washington D C to the
associate chief Judge in New York New York No request will
be considered unless received at least 3 days prior to the expiration
of the time fixed for the filing of briefs or proposed findings and con
clusions
e The Board requires compliance with its rules and regulations as to
the timely filing of briefs in order to aid in the orderly course of business
and to avoid breeding laxity by litigants Westinghouse Electric Corp 204
NLRB 78 (1973) Farah Mfg Co 202 NLRB 666 (1973 ) In excluding
the March 5 1984 letter I note that the Respondent did not file a brief in
compliance with the September 30 1983 deadline set at the hearing
Moreover the General Counsel had made it clear at the hearing that she
intended to request that official notice be taken of Judge Edelman s deci
sion even before the Board had considered and ruled thereon Thus the
Respondent has only itself to blame for failing to take timely advantage
of the opportunity afforded to discuss the facts and the law and apply
them to the issues in the case including those enumerated in its March 5
1984 letter in a brief Had the Respondent merely set forth the facts
that were available to [me) but were not available to Judge Edelman
without arguing the effect thereof on Charging Party s credibility I
would not have granted the motion to strike Downtown Motor Inn supra
I also note that in view of the fact that the letter was written months
after the deadline for filing briefs herein had passed albeit it was written
in response to the General Counsel s then request for judicial notice to
be taken of the aforesaid Board decision this was more than a mere tech
nical violation Cf Magnolia Manor Nursing Home 260 NLRB 377 379
fn 2 (1982)
basis for industrial customers In the course and conduct
of its business operations during the preceding 12
months these operations being representative of its oper
ations at all the times material herein the Respondent
provided goods and services valued in excess of $50 000
directly to enterprises outside the State of New York
The complaint alleges the Respondent admits and I find
that the Respondent is now 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
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges and I find that Local One Joint
Board Leather and Machine Workers Union United
Food and Commercial Workers International Union
AFL-CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act 9
III THE UNFAIR LABOR PRACTICES
The complaint alleges that the Respondent acting
through Joseph DiAngelo an officer and shareholder of
the Respondent violated Section 8(a)(1) and (3) of the
Act by unilaterally reducing the piece rate of and there
by reducing the earnings of its employee Henry Mills
and without affording the Union an opportunity to nego
tlate and bargain as the exclusive representative of the
Respondents employees with respect to such acts and
conduct and because of its actions causing the termma
tion of Mills and failing and refusing to reinstate him all
because he joined supported and assisted the Union and
in order to discourage employees from engaging in union
or other protected concerted activities for the purpose of
collective bargaining or other mutual aid or protection
The Respondent denies these allegations 10
A Background
The Respondent is owned by three partners Joseph
DiAngelo Richard Marcano and John Marcano Jr and
has been in operation since 1953 In July 1982 "1 the Re
spondent employed between 16 and 20 workers in its
shop 12 As previously indicated the Respondent electro
9 The Respondent denied on lack of knowledge sufficient to form a
belief the Union s status as a labor organization Having already taken
official notice of the Board s previous decision in Bronx Metal Polishing
Co supra I note that the Board determined therein that the Union is in
fact a labor organization In the absence of evidence that events have
since occurred to change the Union s status the conclusion that it quali
fees as a labor organisation within the meaning of the Act persists Graph
is Communications Local 51 (Format Printing Go) 266 NLRB 7 In 3
(1983) Howard Johnson Distribution Center 250 NLRB 492 493 (1980)
enfd 637 F 2d 373 (5th Cir 1981)
'a The complaint alleges that DiAngelo has been an owner of Re
spondent a supervisor within the meaning of Sec 2 ( 11) of the Act and
an agent of the Respondent acting on its behalf within the meaning of
Sec 2(13) of the Act While the Respondent denied this allegation in its
answer the record shows clearly that DiAngelo is president of the Re
spondent and a supervisor and agent thereof within the meaning of the
Act and I so find
ii Henceforth all dates refer to 1982 unless otherwise specified
12 At the time of these proceedings the Respondent employed nine em
ployees in the shop
BRONX METAL POLISHING CO. 301
plates and polishes metal parts which its customers
supply for the. required electroplating and/or polishing.
Mills worked full time for the Respondent as a metal
polisher from August 28, 1972, until September 15,
1982.13 His job involved using machinery to grind and
polish metal pieces, usually not larger than 5 inches in
length and 3 inches in width, and preparing them for
electroplating. Mills, himself, was not involved in the
plating process at all. Two other employees, Emanual
Rodriguez i 4 and Willy Bradshaw, t 5 also performed
grinding and polishing functions, as did Richard Mar-
cano. Unlike most of Respondent's employees, who were
paid on an hourly work basis (timework), Mills did
piecework-.16 Under this system Mills was paid by the
piece at a prearranged rate, which varied with the nature
(type, size , etc.) of the part he was working on. Accord-
ing to Mills, when he worked a 40-hour week, he earned
in the neighborhood of $375 Mills testified that he -usual-
ly worked 40 hours, although sometimes he worked
more, sometimes less, and occasionally he was laid off.
For most of the 10 years that Mills worked for the Re-
spondent, he alternated between timework and piece-
work, but in the last 2 or 3 years of his tenure he did
piecework exclusively, because, as Mills testified, DiAn-
gelo thought that he was an unproductive timeworker.
DiAngelo confirmed this in his testimony, stating that
Mills stopped doing timework in the last 2 or 3 years of
his employment and that Mills was extremely unproduc-
.tive when he worked "on the clock." 17
In late June or early July, the Union began its organiz-
ing_campaign among the Respondent's employees. Mills
testified that about July 1 he signed'a union authorization
card and also actively engaged in-the union campaign by
talking to employees about the Union, attending union
meetings , and transporting other workers to and from
these meetings . Subsequent to its victory in a secret-
ballot election conducted by the Board's Region 2 office
on December 1, the Board certified the Union as the ex-
clusive collective-bargaining representative of the Re-
spondent's production and maintenance employees.
B. The Evidence
Mills related that commencing in July and during
almost every working day, Marcano and DiAngelo held
discussions with him in which they, inter alia, threatened
to cut his piece rate. The first conversation Mills testified
to took place between DiAngelo and him, in the shop by
a machine next to Mills, about 2 weeks prior to the elec-
tion. Mills stated that DiAngelo said, "[T]he Union is not
coming in here, and if it do [sic] come in , I'll buy -them
off. I would' like to have you with us, and if the Union
does come in, I'll put you on the clock for $4.00 an
hour." Mills did not reply to this. According to Mills, a
few days later he had a similar confrontation with DiAn-
gelo in the same place and, again , Mills tried to say as
little as possible to him. Mills added that Bradshaw was
about 8 feet away when this incident occurred, and after-
ward commented in a joking manner to Mills, "You
won't be making money anymore. You'll be making four
dollars an hour from now on." 18 Mills continued that in
another conversation which took place between them a
few days before the election DiAngelo told him, "You
makes [sic] too much money. Nobody makes that much
money in one day. I am going to cut your rate." Mills
recounted that at the time he did not take DiAngelo seri-
ously.
Mills testified that DiAngelo also confronted him
about taking employees to union meetings and that he
told DiAngelo that it was his car and he could take
whom he wanted. Mills related that DiAngelo then
asked if Mills could take him to union meetings also.
Mills stated that no one else was around during this inci-
dent which took place in the plating department. Mills
recounted that after Rodriguez left the Respondent's
employ, DiAngelo complained to him that Rodriguez
had "screwed [him] up with the Union." Mills testified
that "he [DiAngelo] said that he did what I told him to
do. And I said `What do you mean ' what I told him to
do? And he said `You have been telling me all along that
I should let [Rodriguez] go.' I said 'I never told you
that."
Mills testified about another incident, which occurred
after the election, in early September when he had
earned $145 in one day. He stated that DiAngelo told
him, "That's too much money. Anybody make that
much money , I am cutting the price on it." Mills related
that while there were other workers nearby when DiAn-
gelo said this, none ever commented about it to Mills.19
Mills testified that there were many incidents similar
to the ones' described above, which had occurred, but he
could not recall them with precision. However, Mills
stated that in these episodes DiAngleo threatened him
with reprisals against himself or other employees and
threatened to cut his pay.20
Mills also testified to two or three confrontations with
Richard Marcano. During one incident, which took
place at a machine near Mills, Marcano asked him why
he wanted a union in the shop, and commented that, if
the Union came in , employees would lose a lot of bene-
fits. When Mills asked what benefits he was speaking of
Marcano answered, "Christmas bonuses would be cut
out and no more turkey for Thanksgiving." Mills re-
13 It is undisputed that Mills worked part time for Respondent in 1970
and 1971
14 Rodriguez had left the Respondent 's employ at the time of these
proceedings
15 Bradshaw was still employed by the Respondent at the time of the
hearing and testified for the Respondent herein
18 In addition to Mills, only Rodriguez was paid on a piecework basis
17 DiAngelo testified that , although Mills was a very productive piece-
worker, he did very little when he was paid by the hour DiAngelo main-
tained that he lost money when Mills did timework and had complained
to Mills about his lack of productivity as a timeworker
18 Although Bradshaw appeared at the hearing, he did not testify
about this episode as a witness nor was he asked about it
19 Mills related that previously in July, while picking up his paycheck
one Friday , in a similar conversation between them , DiAngelo com-
plained to him that Mills was making too much money
20 According to Mills, DiAngelo had said things like, "you would go
out. and you do against me like you are, and you, you is fucking me"
When Mills explained,' "If I make X amount of dollars per day; that
means you is got to be making more [sic]," DiAngelo responded, "Never
mind that, you are not supposed to make that kind of money I am going
to cut the fucking price on you "
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sponded In that regard you couldn t penalize me for a
bonus because I doesn t [sic] get one 21
Mills related that in another conversation he had with
Marcano concerning the Union 22 a couple of weeks
before the election Marcano commented for a second
time that he did not understand why the employees
wanted a union and added that the Thanksgiving turkey
and other benefits would be cut Additionally Marcano
said that he thought that Rodriguez was turning the em
ployees against him According to Mills [H]e thought
they [Marcano and Rodriguez] had been buddies for so
long they had worked together and he [Marcano] never
thought that [Rodriguez] would fuck him like that with
the Union Mills also testified about a conversation he
had with Marcano on the morning of his discharge re
garding his piece rate and concerning payment for some
corrected pieces Mills noted that he and Marcano had
never discussed this topic before but he did not elabo
rate on the substance of the conversation
Mills testified that on September 15 he arrived at the
Respondents premises as usual and began working
When DiAngelo came into the shop at 9 am he sum
moned Mills into his office 23 Mills stated that DiAngelo
informed him that he was cutting the rate on a particular
metal part called a leg which was to be processed in
the shop at the time Mills related that DiAngelo told
him From now on you will get a penny and a half for
each leg [I]f you don t want to do [the legs] for
that you leave them When Mills who for 10 years had
always worked on this particular part for 2 cents a piece
asked DiAngelo why he was cutting the rate the latter
replied [I]f anyone makes as much money as you do
and you fuck me with the union now I ll get you Mills
continued that he now asked DiAngelo [W]hy do it to
me [H]ow do you know it was me? to which
DiAngelo replied [L]isten I got eight fucking guys
down there against me All of them said the same thing
They didn t do it Mills added that he then left the
office changed his clothes and then went home thus in
effect terminating his employment with the Respondent
The testimony of the Respondents key witness Joseph
DiAngelo differed substantially from that given by
Mills According to DiAngelo he first learned about the
Union s organizational campaign early in July24 when
81 According to Mills pieceworkers did not get bonuses and DlAngelo
frequently said that pieceworkers made enough money and therefore did
not deserve to get a bonus Mills could not explain on cross-examination
why Marcano threatened him with the loss of a bonus he was not getting
anyway
22 Mills did not recall the exact order of his discussions about the
Union with Marcano
89 No one else was present in the office
24 It is unclear precisely when DlAngelo learned of the Union s cam
paign He stated at least twice in his testimony that the date was July 9
He also testified that he was on vacation during the last 2 weeks in June
and that he learned about the Union on the day he returned to work
which was a Tuesday he believed it was July 3 He then related that he
was away from the shop over the Fourth of July holiday and only
learned about the Union on his return the following Tuesday Pursuant to
Fed R Evid 201 (c) I sua sponte take official notice that July 3 1982
fell on Saturday July 9 fell on a Friday and the first Tuesday after the
Fourth of July was July 6
the Respondent received a letter from the Union 25
DlAngelo testified that he handed this letter over to
Marcano who said 111 handle it 26 DiAngelo stated
that he did not know what action if any Marcano took
with respect to the Union as he and Marcano never dis
cussed the subject during July or August DiAngelo
added that he also never speculated about which em
ployees were union members
DiAngelo related that he became aware that Mills was
taking people to union meetings sometime in August He
recounted that Mills was going around gathering his col
leagues and telling them that he was going to take them
to someone s house for a meeting DiAngelo stated that
he did not know the purpose of this gathering but he
surmised that it had to do with the Union because the
employees were showing each other their cards 27 Al
though DiAngelo did not mention this incident to his
partners he as he testified, may have joked about it with
Mills by saying I hear you ve taken the boys to the
union man and Mills laughed in response DiAngelo
added that this was the last time he spoke to Mills about
the Union although he may have heard others in the
shop discuss it but did not recall who 28
DiAngelo denied ever threatening Mills with a pay cut
or taking any action against Mills because of his union
activities According to DiAngelo the following facts
led to Mills departure In September Standard Kiel
Hardware Company the Respondents largest account
stopped sending its polishing work to the Respondent 29
About a week or two before Mills left the Respondent s
employ DiAngelo learned from a Standard Kiel truck
driver that this company had acquired its own polishing
machine This information simply confirmed DiAngelo s
prior observation that he had lost a significant portion of
his Standard Kiel business DiAngelo then telephoned
Kevin Matthews Standard Kiel s purchasing agent who
confirmed that Standard Kiel had bought a machine and
was doing most of its own polishing work
According to DiAngelo as a result of this decline in
its polishing business the Respondent had very little
piecework and so he offered to let Mills do some work
on the clock 30 DiAngelo testified [I] said Henry we
48 The record does not clearly disclose what the contents of this coin
mumcation from the Union were At one point however DlAngelo mdi
cared that the letter said that there was going to be an election
26 This conversation took place in the Respondent s office and only
Marcano and DiAngelo were present
87 When DlAngelo was asked on cross-examination So the employ
ees were showmg each other their union cards after the union election
he responded Letters or cards I don t know I didn t read it
28 On cross-examination DiAngelo testified that all three of Respond
ent s partners knew the employees fairly well and spoke to them often
DiAngelo himself worked directly with the employees from 3 to 6 hours
per day and his partners spent even more time with the workers He
stated that although the employees were generally reluctant to bring
their problems to the boss DiAngelo knew everything that (was) going
on
29 In particular Standard Kiel stopped sending the Respondent a car
tam part called a 2850 which provided the Respondent with the bulk of
its polishing work The Respondent continued to do grinding work for
Standard Kiel and also did chrome plating
J0 DiAngelo was not certain precisely when this conversation oc
curred but placed it sometime in late August or early September
BRONX METAL POLISHING CO.
are very, very slow, we are getting a little work here. I
got to lay everybody off. You have seniority.' I said,
'When the grind work comes, you do piecework. When
there is timework, I want you to work timework. It's up
to you.' [Mills] said 'I don't want to work no more."'31
DiAngelo stated that when Mills resigned DiAngelo in-
formed him that Bradshaw would continue to do polish-
ing and grinding work, to which Mills responded, "I
don't care what you do."
DiAngelo testified that the sole reason he offered Mills
timework was his desire to keep Mills employed in the
face of a scarcity of piecework .32 He stated that he also
-sought to create work for Mills,-by telling Marcano to
stop doing polishing, 33 and denied that he had ever re-
fused to accept work that could have been done by
Mills.34 DiAngelo added that since Mills' resignation,
Bradshaw and Marcano have performed all the polishing
and grinding work that was available. DiAngelo insisted
throughout his testimony that.he was ready and willing
to hire Mills back. In fact, between the first and second
days of these proceedings the.Respondent sent Mills a
telegram offering him the opportunity to return to work.
C. Credibility
Any attempt to resolve the issues presented herein re-
quires the resolution of the sharp differences in the testi-
mony given by DiAngelo and Mills, respectively.
Having considered the various factors which the Board
applies in determining credibility,35 I have decided to
credit Mills, wherever their accounts conflict. In credit-
ing Mills I first note that in every way he was a straight-
forward, thoughtful, and generally cooperative witness.
His account of what occurrred was consistent and as de-
tailed as one could reasonably expect.
The Respondent attempted to attack Mills' credibility
with evidence that in 1970 and 1971 Mills worked under
an assumed name. Mills denied this on cross-examination.
DiAngelo testified as to Mills' use of an alias and the Re-
spondent offered into evidence and I received numerous
documents to support this contention. The General
Counsel also produced a number of documents presum-
ably for rebuttal purposes. In a posthearing brief the
General Counsel moved to strike from the record all of
this evidence. For the reasons set forth hereinafter I
grant-her motion to strike.
Under Federal Rules of Evidence 60836 Mills' denial
on cross-examination that he ever used an alias ended the
31 Elsewhere DiAngelo described the conversation in a substantially
similar way, "I asked him , he got seniority 'Henry ,' I said, 'you have se-
nionty, you got to do piecework and you got to do tlmework ' He says,
'I quit ' I said, 'Well, that's up to you "'-
a2 The evidence shows that DiAngelo laid off Rodriguez in response
to the decline in polishing work.
sa Mills, by contrast , testified that after the commencement of union
activity Marcano did more polishing work than he had ever done before
24-Tlus was corroborated by_ Standard Kiel's purchasing agent Kevin
Matthews
as These factors include, "The weight of evidence , established or ad-
mitted facts , inherent probabilities , reasonable inferences drawn from the
record , and in sum , all the other variant factors which the trier of fact
must consider in resolving credibility." Northridge Knitting Mills, 233
NLRB 230 (1976). .
36 Sec . 10(b) of the Act provides that any proceeding before the Board
shall be conducted in conformity with the Federal Rules of Evidence in-
303
Respondent's inquiry into this collateral issue, and pre-
cluded counsel from producing extrinsic evidence to
contradict him.37 Ponderosa Granite Co., 267 NLRB 212
(1983).38 Accordingly, I will not consider this evidence
for impeachment or-for any other purposes,39 and strike
it from the record.40
The Respondent launched a second attack on Mills'
credibility by reading into the record prior testimony
which he had given at the hearing before Judge Edel-
man.41 Having compared Mills' prior testimony with the
account he gave in the instant-proceedings, I find few in-
consistencies. Indeed, rather than damaging Mills' credi-
bility, his prior testimony actually supports it.42
In' sharp contrast to Mills' forthright and informative
demeanor was DiAngelo's belligerent attitude, his unco-
operative posture,43 and indeed, his almost contemptu-
ous behavior on the stand.44 DiAngelo was defensive45
and evasive.46 Often he appeared inattentive or simply
to cut the General Counsel off before she had an oppor-
tunity to pose her question.
Even more damaging to DiAngelo's credibility than
his demeanor was the inherent implausibility of this
solar as this is practicable . See also National Labor Relations Board
Rules and Regulations _
3P Fed R Evid 608(b) provides in pertinent part that
Specific instances of the conduct of a witness , for the purpose of at-
tacking or supporting his credibility, other than conviction of crime
as provided in rule 609 , may not be proved by extrinsic evidence
They may, however, in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on cross-examination
of the witness (1) concerning his character for truthfulness or un-
truthfulness, or (2) concerning the character for truthfulness or un-
truthfulness of another witness as to which character the witness
being cross -examined has testified
as Accord United States v. Bosley, 615 F 2d 1274, 1276-77 (9th Cir.
1980), United States v. Ling, 581 F 2d 1118, 1121 (4th Cir. 1978); United
States v. Cluck, 544 F 2d 195 (5th Cir 1976) (Reversible error to attack a
witness' credibility by using extrinsic evidence of conduct that has not
resulted in a criminal conviction )
ae Specifically, I will strike DiAngelo's testimony on this issue, R.
Exhs. 9-14, and G C. Exhs 9 a-n, 11, and 12.
40 Since the'Respondent 's counsel did not attempt to introduce evi-
dence of prior convictions, Fed R Evid 609 does not apply Cf NLRB Y.
Jacob E. Decker & Sons, 569 F 2d 357, 362-363 (5th Cir 1978)
41 Each time Mills was asked about his prior testimony , he admitted to
making the statement and stood by its veracity
42 At the prior hearing Mills testified that DiAngelo threatened to put
him on timework about 2 weeks before the election, but he did not carry
through on the threat In addition, Mills testified that until he left the Re-
spondent's employ, he did piecework whenever he could get it, and
when there was no piecework he did not work Mills had also stated that
he performed all the piecework the Respondent had. However , in the in-
stant case Mills testified that Marcano increasingly did the work Mills
would otherwise have performed Finally, Mills had testified at the prior
hearing that Standard Kiel was doing some of its own polishing work.
43 On more than one occasion , DiAngelo threatened to leave the stand
while the General Counsel cross-examined him.
44 A witness ' attempt to obstruct the proceedings by engaging in unco-
operative conduct on the stand clearly has a bearing on his credibility.
See Weather Tec Corp, 238 NLRB 1535, 1555 (1978), enfd . mem. 626
F 2d 868 (9th Cir 1980)
4s At one point , on receiving a question from the General Counsel,
DiAngelo refused to answer and complained , "This woman's a little
tricky. . . She thinks I'm a dummy . I'm not a dummy, you know... .
She's trying to trick me and I don't want tricks "
46 When the General Counsel asked DiAngelo about his reaction to
receiving a letter from the Union he refused to answer , saying, "You and
Jesus Christ ain't gonna know what I think ." When directed to answer
the question DiAngelo said , "I don 't know what I thought."
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
story 47 For example DiAngelo s testimony that he and
his partners never discussed the Union is simply not be
lievable It is inconceivable that an employer would be
so completely apathetic to organizational activity that
he would not even discuss the matter with the other
principals of the business
Equally difficult to believe is DiAngelo s account of
Mills abrupt resignation and the Respondents apparent
willingness to rehire him The paradox is all the more
difficult to believe in light of DiAngelo s additional testi
mony that Mills had always been an unreliable employee
who would leave his job without explanation for several
months at a time 48 Similarly inexplicable in the face of
his testimony that he lost money when Mills worked on
time was DiAngelo s asserted willingness to offer Mills
timework
Moreover the Respondents assertion that the summer
and fall of 1982 were marked by a dramatic decline in its
polishing business is simply not supported in the
record 49 Kevin Matthews Standard Kiel s purchasing
agent did testify that Standard Kiel bought a polishing
machine and began to perform this work in house Ac
cording to Matthews however this machine was pur
chased in mid 1980 and was functional by approximately
January 1981 50 a full year and a half before Mills
abrupt departure In addition Matthews testified that
Standard Kiel began to route work away from the Re
spondent to GIM 51 a die casting firm which also did
polishing and chrome plating 52 However this change
was implemented around December 1982 53 a full 4
months after Mills left 54
Furthermore in evidence are invoices issued by the
Respondent to Standard Kie155 which indicate that cori
47 Inherent probability and reasonable inferences drawn from the
record are important considerations in resolving credibility Northxwy
Nursing Home 243 NLRB 544 (1979)
46 DtAngelo s feelings about rehiring Mills were apparently quite am
bivalent and related to the latter s union activity When asked on cross
examination why the Respondent had between hearing dates offered
Mills his job DiAngelo replied Because we got union activities I don t
know what I in supposed to do The right thing to do is to call him back
and once he refuses the job then 111 hire someone else In response to
the General Counsels inquiry about how he knew he had to offer Mills
his job back DiAngelo responded Because everything you do is union
activities I don t know what to do so I tried to do the right thing by
calling the man back so I don t get no more charges on union activities
49 The Respondents position paper to the Board which is in evidence
concisely sets forth its position that this decline in business virtually
eliminated piecework This in turn caused DiAngelo to offer Mills time
work which the latter refused when he resigned
66 Matthews precise testimony was that the machine was purchased 3
years prior to the hearing and was functional within 6 months He also
noted that the machine frequently malfunctioned causing Standard Kiel
to send its polishing work out
Si In evidence are four invoices dated June 16 20 22 and 26 1983
respectively issued by the Respondent to GIM
62 Standard Kiel also began to send some polishing work to a Canadi
an die-caster However according to Matthews this would have had no
effect on the Respondent at any time material herein
as Specifically Matthews indicated that Standard Kiel began to use
GIM s services 9 months prior to the date on which he testified
6' Matthews emphasized that the decision to use new vendors was an
economic one and was not based on any dissatisfaction with the Re
spondent s service
66 The invoices were produced by the General Counsel who obtained
copies from Standard Kiel It is undisputed that these invoices reflect all
of the work that the Respondent performed for Standard Kiel during the
years 1979 through May 1983 The Respondent also produced a number
trary to DiAngelo s testimony some piecework was
available at the time Mills left the Respondents employ
and during the period immediately thereafter 66 As the
General Counsel points out in her brief between July
and December 1982 the Respondent only experienced a
moderate decline in business when this period is corn
pared with the same months in prior years on a month
by month basis 67 Although the record does not reveal
precisely how many hours of work were available for
the Respondent to give to Mills as piecework it is clear
Standard Kiel did in that period send to the Respondent
grinding and polishing work in a quantity that did not
deviate grossly from previous years its use of in house
polishing equipment notwithstanding 58
D Analysis and Conclusions
To establish a violation of Section 8(a)(3) of the Act
the General Counsel must make a prima facia showing
that the respondents conduct was unlawfully motivat
ed 69 Thereafter the respondent must demonstrate that
its purposes were lawful See Wright Line 251 NLRB
1083 (1980) enfd 662 F 2d 989 (10th Cir 1981) cert
denied 455 U S 989 ( 1982) 60
of original invoices for August and September 1982 which were also re
ceived into evidence
66 The invoices highlight DiAngelo s tendency to exaggerate and his
utter lack of attention to detail They quite clearly contradict DiAngelo s
repeated assertion that part 2850 which Standard Kiel began polishing in
house constituted 99 9 percent of the Respondent s polishing work for
that customer over the last 5 years Nor do they support DiAngelo s con
tention that the Respondents polishing business declined more than 100
percent after Standard Kiel purchased its own equipment I might add
that it is mathematically impossible for business to decline by more than
100 percent
67 The General Counsel illustrated her point with a chart which she
appended to her brief Drawing on information contained in the invoices
in evidence the chart sets forth the revenue that the Respondent re
ceived from Standard Kiel for polishing and grinding work for each
month in 1979 through May 1983 inclusive The calculations as to reve
nue include all of the polishing and grinding functions which Mills per
formed and which are designated on the invoices as G Pol G P
Pol Extra Gound Pol and Emery Satin another grinding proc
ess was not included in light of evidence that Mills did not do this kind
of work
ba The record does not indicate how many man hours of polishing
work Standard Kiel generated for the Respondent . In the first place
where the invoice items are designated as G P and C P (i e general
polish and chrome plating ) there is no way to apportion the polishing
and plating work In the absence of evidence to the contrary I accept as
reasonable the General Counsels assumption that the proportion al
though unknown remained constant between 1979 and May 1983 It is,
moreover impossible to discern from the record how many man hours
each function took to perform on a particular piece The copies of the
invoices each bear a Standard Kiel stamp which notes the date Standard
Kiel received the finished goods from the Respondent the date the in
voice was processed and the date payment was due The invoice itself
reflects the date the document was created Nowhere however does the
document reveal the date on which the Respondent received the goods
for work Although Matthews attempted to shed fight on this question by
estimating the time that it would take to perform certain functions on the
various items, his testimony consisted of educated guessing and did not
come close to covering all of the different operations and parts cited in
the bills
60 [Iln assessing whether a prima facie case has been presented an
administrative law judge must view the General Counsel s evidence in
isolation apart from the respondents proffered defense Hillside Bus
Corp 262 NLRB 1254 (1982)
60 See also NLRB v Transportation Management Corp 462 U S 393
(1983) where the Court approved the Board s Wright Line test
BRONX METAL POLISHING CO
In the case at bar the General Counsel adduced ample
evidence to support a puma facie case that the Respond
ent engaged in discriminatory conduct 61 The record
clearly shows that DiAngelo was aware of the Union s
activities in general and Mills participation in particu
lar 62 The record also reveals evidence of union animus
in the repeated threats DiAngelo and Marcano made to
Mills 63 My finding of union animus is bolstered by
Judge Edelman s determination in his case as affirmed
by the Board that the Respondent engaged in multiple
unfair labor practices 64 Finally the timing of DiAnge
lo s decision to cut Mills rate just 6 weeks after the
Union s success in a Board conducted election further
supports my determination that the conduct was unlaw
fully motivated 65
The finding that the Respondent acted with an unlaw
ful purpose is but one element essential to a determina
tion that Mills was constructively discharged The
second element requires a finding that the burdens im
posed on the employee caused and were intended to
cause a change in working conditions so onerous as to
force that employee to resign 66
The 25 percent decrease in Mills rate of pay on piece
work that at the time represented his available work
had an obvious and substantial impact on Mills eanungs
Accordingly I find that the change in his working con
ditions rendered his continued employment with the Re
spondent untenable67 and compelled his resignation 68
Furthermore the foreseeability of Mills resignation cou
pled with DiAngelo s union animus conspire to support
the inference that this was the intended result of the con
duct 69
61 Crucial factors in establishing a prima facie case are the timing of
the unlawful conduct the Employers knowledge of union activity and
union animus Dutch Boy Inc 262 NLRB 4 ( 1982) enfd sub nom
ARTRA Group Inc v NLRB 730 F 2d 586 (10th Cir 1984)
62 It is undisputed that DtAngelo and his partners were aware of the
organizational activities as of early July when they received a letter from
the Union Additionally Dukngelo s knowledge as to Mills participation
is evident in the episode in which he commented upon Mills activities in
driving employees to union meetings
63 Illustrative of these episodes are Marcano s threat to discontinue the
Thanksgiving turkeys and Christmas bonuses DiAngelo s threat to put
Mills on the clock at S4 an hour and his statements on September 15 that
he was cutting Mills rate because of the Union These and other mci
dents have been detailed herembefore
64 See Bill Fox Chevrolet 270 NLRB 568 570 (1984) in which the ad
ministrative law judge with Board approval used a poor decision in
volving the same respondent to support his independent finding of union
animus noting that it would be naive to ignore the pervasiveness of Re
spondent s recent past misconduct with regard to this union
65 The timing of the cut in Mills piece rate is even more suspicious in
light of the fact that in the 10 years that he had worked full time for the
Respondent his rate had never been cut before
66 Algreco Sportswear Co 271 NLRB 499 500 (1984) (The two ale
ments essential to proving a constructive discharge were articulated as
follows First the burdens imposed upon the employee must cduse and
be intended to cause a change in his working conditions so difficult or
unpleasant as to force him to resign Second it must be shown that those
burdens were imposed because of the employees union activities )
67 The bare fact that an employee resigns in response to an unfair
labor practice does not establish a constructive discharge Kogy.x Inc
272 NLRB 202 206 (1984)
68 See Holiday Inn of Santa Maria 259 NLRB 649 662 (1981) SE.
Nichols Marcy Corp 229 NLRB 75 83 (1977)
69 See e g Sure Tan, Inc v NLRB 467 U S 883 (1984)
305
Having discredited the Respondents assertion that
Mills facing a decline in piecework and the necessity of
working on time had quit his job I conclude that the
Respondent has failed to rebut the General Counsel s
prima facie case Accordingly I find that the Respond
ent violated Section 8(a)(3) and (1) of the Act 70
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III above found to constitute unfair labor practices oc
currmg in connection with the operations of the Re
spondent descnbed in section I have a close intimate
and substantial relationship to trade traffic and coin
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow thereof
V THE REMEDY
Having found that the Respondent has engaged in cer
tam unfair labor practices I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
In light of the standards set forth in Hickmott Foods
242 NLRB 1357 (1979) I conclude that a broad remedial
order is appropriate herein since it has been shown that
the Respondent has a proclivity to violate the Act 71
Accordingly I recommend the use of the broad injunc
tive language in any other manner in the recommend
ed Order 72
Having found that the Respondent constructively dis
charged Henry Mills on September 15 I recommend that
the Respondent offer him immediate and full reinstate
ment to his former position and if said position no
longer exists to a substantially equivalent position with
out loss of seniority or other benefits and make him
whole for any loss of pay resulting from the discrimma
tion against him by payment of a sum of money equal to
the amount he normally would have earned as wages
from the date of his discharge to the date of a bona fide
offer of reinstatement 79 less net interim earnings The
backpay due under the terms of the Order shall be coin
puted in the manner prescribed by the Board in F W
Woolworth Co 90 NLRB 289 (1950) with interest as
prescribed in Florida Steel Corp 231 NLRB 651
(1977) 74
70 Even assuming arguendo that the Respondents conduct did not
amount to a constructive discharge the act of cutting Mills piecework
rate because of his union activities would in any case violate Sec 8(aX3)
of the Act, which prohibits an employer from altering an employees
working conditions in retaliation for the latter s protected activity Tm
Mar Communications 265 NLRB 664 682 (1982)
71 Bronx Metal Polishing Co 268 NLRB 887 (1984)
71 Thurston Motor Lines 263 NLRB 110 In 3 (1982) Talbert Mfg 258
NLRB 776 fn 2 (1981) St. Francis Hospital 252 NLRB 1247 fn 3 (1980)
76 While the record reflects that the Respondent offered to reinstate
Mills in between hearing dates the issue as to whether such offer of rein
statement satisfied the Board s requirements was not fully litigated Ac
cordmgly I will defer that question to the compliance stage of this pro-
ceeding Charles H McCauley Associates 248 NLRB 350 in 2 In 7
(1980)
74 See generally Isis Plumbing Co 138 NLRB 716 ( 1962) See also
Olympic Medical Corp 250 NLRB 146 (1980)
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1 Bronx Metal Polishing Co Inc is an employer en
gaged in commerce within the meaning of Section 2(2)
(6) and (7) of the Act
2 Local One Joint Board Leather and Machine
Workers Union United Food and Commercial Workers
International Union AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act
3 The Respondent has interfered with restrained and
coerced its employees in the exercise of their rights guar
anteed in Section 7 of the Act and has thereby engaged
in unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act by unlawfully reducing the Charging
Party s piece rate thereby reducing his earnings all be
cause of his union activities and to discourage other em
ployees from engaging in union activities and thereby
constructively discharging him and causing his termina
tion
4 The unfair labor practices found above affect coin
merce within the meaning of Section 2(6) and (7) of the
Act
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed75
ORDER
The Respondent Bronx Metal Polishing Co Inc
Bronx New York its officers agents successors and as
signs shall
1 Cease and desist from
(a) Discouraging membership in or support of Local
One Joint Board Leather and Machine Workers Union
United Food and Commercial Workers International
Union AFL-CIO or any other labor organization by
constructively discharging employees by cutting their
piecework rates thereby creating working conditions so
onerous as to force them to resign or otherwise discrimi
nating against them in their hire and tenure
(b) In any other manner interfering with restraining
or coercing employees in the exercise of the rights guar
anteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Henry Mills immediate and full reinstatement
to his former job or if that job no longer exists to a sub
stantially equivalent position without prejudice to his se
nionty or any other rights or privileges previously en
toyed and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the decision
(b) Remove from its files any reference to the unlawful
discharge and notify him in writing that this has been
done and that the discharge will not be used again st him
in any way 76
75 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
t
ses76 Sterling Sugars 261 NLRB 472 (1982)
(c) Preserve and on request make available to the
Board or its agents for examination and copying all pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(d) Post at its Bronx New York facility copies of the
attached notice marked Appendix 77 Copies of the
notice on forms provided by the Regional Director for
Region 2 after being signed by the Respondents author
ized representative shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered defaced or covered by
any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
P7 If this Order is enforced by a Judgment of a United States Court of
Appeals the words in the notice reading Posted by Order of the Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
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 the parties participated the Na
tional Labor Relations Board has found that we have
violated the National Labor Relations Act We have
been ordered to post this notice and to abide by its
terms
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT discourage membership in or support of
Local One Joint Board Leather and Machine Workers
Union United Food and Commercial Workers Interns
tional Union AFL-CIO or any other labor organize
tion by constructively discharging employees by cutting
their piecework rates, thereby making working condi
tions so onerous as to force them to resign or otherwise
discriminate against them in their hire and tenure
WE WILL NOT in any other manner interfere with re
strain or coerce you in the exercise of the rights guaran
teed you by Section 7 of the Act
BRONX METAL POLISHING CO 307
WE WILL offer Henry Mills immediate and full rem WE WILL notify him that we have removed from our
statement to his former job or if that job no longer files and have asked the Employer to remove from the
exists to a substantially equivalent position without prej Employers files any reference to his discharge and that
udice to his seniority or any other rights or privileges we will not use the discharge against him in any way
previously enjoyed and WE WILL make him whole for
any loss of earnings and other benefits resulting from his BRONX METAL POLISHING CO INC
discharge less any net interim earnings plus interest