Charley Toppino and Sons, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1247 (N.L.R.B. 1962)

CHARLEY TOPPINO AND SONS, IN C. 1247
It has been further found that the Company , by payment to committee members
for time spent at meetings , and by directing that a member of the Committee, which
processes grievances for employees , handle such grievances on behalf of the Com-
pany, contributed support to and interfered with the administration of the Com-
mittee in violation of Section 8(a)(2) of the Act . I shall therefore recommend
that it cease and desist therefrom . In the absence of evidence that the Committee
has been freely selected by the employees as their collective bargaining representa-
tive,13 I shall further recommend that the Company withdraw recognition from the
Committee , unless and until that labor organization shall have been certified by the
Board.
It has been further found that the Company , by interrogation of an employee
concerning her union activities and desires , interfered with , restrained , and coerced
its employees in violation of Section 8(a) (1) of the Act. I shall therefore recom-
mend that the Company cease and desist therefrom.
For reasons stated in the subsection entitled "Wagner ," I shall recommend that
the complaint be dismissed insofar as it alleges the discriminatory termination and
failure and refusal to reemploy Wagner.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Union, Allied Industrial Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. Factory Committee is a labor organization within the meaning of Section 2(5)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of Ella
Jean White , thereby discouraging membership in a labor organization , the Company
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By payment to committee members for time spent at meetings , and by direct-
ing that a member of the Committee handle employee grievances on behalf of the
Company, thereby contributing support to and interfering with the administration
of the Committee, the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (2) of the Act
5. By such discrimination , support, and interference , and by interrogation concern-
ing an employee's union activities and desires , thereby interfering with , restraining,
and coercing employees in the rights guaranteed in Section 7 of the Act, the
Company has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
6. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
7. The Company has not engaged in unfair labor practices within the meaning
of the Act by terminating the employment of and failing to reemploy Georgia A.
Wagner.
[Recommendations omitted from publication.]
18 Cf M Bskin & Son, 135 NLRB 666 , at footnote 15
Charley Toppino and Sons , Inc. and Freight Drivers , Warehouse-
men and Helpers Local Union No. 390, an affiliate of Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America . Case No. 12-CA-2147. September
28, 1962
DECISION AND ORDER
On June 7, 1962, Trial Examiner William Seagle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
138 NLRB No. 133.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudical error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the ex-
ceptions and briefs, and hereby adops the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.2
i Interest on backpay shall be computed in the manner set forth in Jam Plumbing &
Heattinq Co., 138 NLRB 716 For the season set forth in the dissent in that case, Mem-
ber Rodgers would not award interest on backpay and does not approve the award here
2 The notice appended to the intermediate Report is hereby amended by deleting the
phrase "This notice must remain posted for 60 days from the date hereof," and substi-
tuting therefor the phrase "This notice must remain posted for 60 consecutive days from
the date of posting " The notice is further amended to include the following paragraph
to be placed immediately below the signature
"NOTE -We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed Forces."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and amended charges dated, respectively, September 28, October 16,
and November 29, 1961, a complaint, dated December 1, 1961, was issued against
the Respondent, charging it with violations of Section 8(a)(1) and (3) of the Act.
The Respondent denied these allegations in its answers , and on February 5, ^6, 7, 8,
9. 12, and 13, 1962, Trial Examiner William Seagle held a hearing with respect to
the allegations at Key West, Florida. At the conclusion of the taking of testimony
at the hearing, counsel for the General Counsel presented oral argument with respect
to the issues in the proceeding , and subsequent to the hearing counsel for the
Respondent filed a brief which I have duly considered.
Upon the record so made, and -based upon my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent, Charley Toppino and Sons, Inc. (sometimes referred to as
Toppino or the Toppinos), is, and at all material times has been, a Florida corpora-
tion, having its principal office and place of business at Stock Island, Florida,
where it has been engaged in the manufacture and sale of concrete blocks,
crushed stone , ready-mix concrete , and rock fill . In addition to the plant at Stock
Island, Florida, the Respondent has operated a batching plant at Marathon, Florida,
and a portable plant at Zigsby Park, Florida , and has engaged in business as a con-
struction contractor. The Respondent, moreover, through a wholly owned subsidiary
corporation , operates a marina that not only furnishes harbor space but also sells
CHARLEY TOPPINO AND SONS, INC. 1249
boats. The marina resulted from the Toppinos' quarrying operations, being formed
when the bay bottom was quarried.
During the period of 12 months prior to the issuance of the complaint, the Re-
spondent, in the course and conduct of its business, manufactured, sold, and dis-
tributed materials valued in excess of $500,000, of which materials valued in excess
of $50,000 had a direct impact on national defense, and materials valued at $50,000
were utilized in the construction of highways and for bridges which are an integral
part of the Federal highway system. During the same period of time, the Respondent,
in the course and conduct of its business, sold and distributed products valued in
excess of $100,000, of which products valued in excess of $50,000 were furnished
to, among others, Florida Builders, Inc., each of which enterprises annually pur-
chases and receives goods valued in excess of $50,000 directly from without the
State wherein said enterprises are located and/or performed services valued in excess
of $50,000 in States other than the State wherein said enterprises are located.
Jurisdiction of the Board is not disputed.
II. THE LABOR ORGANIZATION INVOLVED
Freight Drivers, Warehousemen and Helpers Local Union No. 390, an affiliate
of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (hereinafter referred to as the Union), is a labor organization that has
sought to organize the employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introductory
The business of the Respondent was originally a partnership which was founded
by Charley Toppino. Since his death , the business has been conducted by his five
sons. Although now corporate in form, it has been run as a family corporation,
each of the five sons being primarily responsible for the operation of a particular
department or phase of the business . Philip Toppir o, who is president of the cor-
poration , has been primarily in charge of the front office, has done the estimating,
and has taken care of financial problems. George B. Topino, who is a vice president
of the corporation , and who has managed the marina since the beginning of 1960,
also has assisted his brother , Paul Albert Topino, who is treasurer of the corporation,
in the operation of the ready-mix department and the block plant . However, until
the time that his brother , George, took over the management of the marina, Paul
Toppino was in charge only of the operation of the block plant. Edward Toppino,
who is also a vice president of the corporation , has had responsibility primarily for
the outside work, namely , subcontracting not directly connected with the sale of
manufactured products , and also has supervised the heavy equipment operators.
Finally, Frank P. Toppino, who is secretary of the corporation , has had general
charge of the maintenance department.
Although the brothers have, thus , been in active control of the Toppino business,
there have been at least two supervisory employees , in addition to various assistants,
engaged in the day-to-day operation of the business . Among these are Gilbert
Del Pino, who is foreman of the block plant , and Joseph S. Perez, foreman of the
maintenance department . Moreover , Del Pino is the father-in-law of Paul Toppino,
his daughter , Edna, being married to the latter. Del Pino is also related by marriage
to Raymond Beiro and Sam Cagnina , who is the first cousin to Edna Toppino, and
who had lived with Del Pino while he was single. Beiro and Cagnina, two of the
discriminatees involved in the presen t proceeding , are, thus, nephews of Del Pino
by marriage . Joseph Perez is not related by blood or marriage to any of the Toppinos
but he is the brother -in-law of Perfecto Sanchez, one of the rank -and-file employees
who played a role in acquainting the Toppinos with the union activities of the em-
ployees. Another rank- and-file employee, Willie Hernandez, who performed a
similar service, is the nephew of Del Pino.
The central issue in the present proceeding is the status of Manuel Carmona, one
of the discriminatees, who was finally discharged by the Toppinos on the ground,
allegedly, that he had solicited memberships on behalf of the Union, although he was
a supervisory employee. Carmona regarded himself, however , simply as the batcher
in the ready -mix department , whose job was , primarily, to batch out the concrete
for the ready-mix drivers. The Toppinos contend, on the other hand , that Carmona
was the hatcher -foreman with full authority to hire, fire , and transfer employees,
and to direct responsibly the operations of the ready-mix department. The evidence
with iespect to the status of Carmona is in sharp conflict, and upon the correct
resolution of this conflict depends not only the right of the Toppinos to discharge
him but also an understanding of the case as a whole.
1250 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
B. The Respondent's covert antiunion campaign
The attempt to organize the Respondent's employees appears to have been launched
early in August 1961, and Sam Cagnina took the lead in making this attempt.
Cagnina was originally a forklift operator in the block plant who doubled also as a
stripper in the block plant.' But before August 1961 he had lost his job as forklift
operator, and was only stripping blocks. As he was married and had three children
to. support, he secured part-time employment as a driver with the Overseas Trans-
portation Company, which had a contract with the Teamsters. Knowing this, some
of the Toppino employees asked Cagnina to contact a representative of the Teamsters,
and he agreed to do so. He arranged a meeting at his home with James G. Weaver,
a Teamster representative, and two of the Toppinos' employees, Raymond Beiro
whose nickname was "Mundi" and who was also a stripper in the block plant, and
Manuel Carmona, were invited to attend this meeting and did. At this meeting,
which occurred in the middle of August,z Weaver gave union authorization cards
to Beiro, Cagnina, and Carmona, and explained to them that it would be necessary
for them to get the cards signed by at least a majority of the Toppino employees.
Beiro took the authorization cards home with him, and appears to have been chiefly
instrumental in getting most of them signed, although Cagnina and Carmona also
-obtained some signatures . Beiro obtained most of the signatures one night by
getting into a car and going from house to house. In the car with Beiro were, in
addition to Cagnina and Carmona, two other Toppino employees named Danny Fox
and Marvin Fox. The signatures to the authorization cards were all obtained
within a week after they had been received from Weaver, and Weaver testified that
3,6 such cards were turned over to him.
Under date of August 28, 1961, William Howard Lasater, the president of the
Union, addressed a letter to the Respondent, claiming to represent a majority of
the Toppino production employees, and asking for a meeting for the purpose of
negotiating a collective-bargaining agreement. The letter also included an offer
to permit a neutral person to check the union authorization cards at the meeting
that was being requested and concluded with a warning that action would be taken
by the Union to remedy any discrimination against any of the Toppino employees
because of their union activities.
Philip 7bppino testified that when he first read the letter from the Union-it
was received by him on either August 29 or 30-it made him "kind of sore," and
that he at once called a meeting of the brothers. They decided to see their local
attorneys but the latter advised them to consult specialists in the field. Philip Top-
pino contacted a friend of his who suggested Fisher & Phillips, the firm that has
represented the Respondent in the present proceeding. George B. Smith, of that
firm, arrived in Key West a few days later. M a result of the consultation with
him, the Respondent set the following telegram to the Union:
Re your Aug 28 letter please be advised we doubt you represent a majority
of our employees. Suggest you utilize NLRB process in this matter.
Almost immediately after the receipt of the union letter the Respondent discharged
Sam Cagnina and Raymond Beiro who had launched the attempt to organize the
employees, and their discharge was followed by that of Bertram Murphy on Sep-
tember 6; Leroy Jordan on September 19; Manuel Carmona on September 21; and
Charles Sobausis on September 22. All of these discharges are alleged to have
been discriminatory.
A number of witnesses called by the General Counsel testified with respect to
the hostility of the Toppinos to the Union and their efforts to discourage their em-
ployees from supporting it. Some of these efforts preceded the receipt of the Union's
letter requesting recognition and others followed shortly thereafter. In addition
to the Toppinos themselves, Gilbert Del Pino and Joseph Perez participated in these
efforts.
Thus, Leroy Jordan, one of the forklift operators in the block plant who was
discharged by the Respondent on September 19, 1961, testified that 4 weeks before
this event, which would be on or about August 21, Paul Toppino talked to a small
1 The job of a stripper is to remove the blocks from the racks, and stockpile them in
the yard This is piece work, and paid for at the rate of 50 cents a rack
2 Weaver testified that the meeting occurred on a Tuesday in the first week in August
Weaver must have been mistaken about this If the day was a Tuesday, it must have
been August 15 Beiro testified that he signed his union authorization card on August 16,
and the card of Perfecto Sanchez, which is in evidence, bears the same date. The drive
to get the cards signed up was launched immediately after they were received from
Weaver.
CHARLEY TOPPINO AND SONS, INC. 1251
group of employees in the block plant-Gilbert Del Pino was also present-and
warned them against signing up with the Union . Paul Toppino told the employees
that "he was under the impression that a union was coming on the job and said
he didn't know who all had signed and who hadn't signed, but all of them that
hadn't signed, he didn't want them to sign, because he felt that we got along fine
so far without a union and he felt we could get along better without a union, without
having it.. . At this point, Del Pino asked the group of employees whether
they had any idea as to who signed for the Union, and when, apparently, he received
no answer, commented: "We don't know yet, but we'll know in a few days." Leroy
Jordan then complained that he had not yet received a raise that had been promised
him for the last 6 weeks, and Paul Toppino properly explained that it was against
the law for him to give any raises at that time.
Jordan aleb `had a conversation with Edward Toppino two Saturdays before he
was discharged, which would make the date of the conversation about September 8.
Jordan, who was trading in his automobile, apparently wanted Edward Toppino
to sign for him in connection with this transaction. But Edward Toppino declined
to do so, and stated that he was under the impression that the employees in the
block plant were signing up for the Union. Although Jordan had signed a union
card, he contended that this was not true, and this led Edward Toppino to say:
"We will know in a few days, as quick as the report comes back from Miami. As
soon as we find out who is going to sign, we will know it. We will sell the equip-
ment. We won't have a union in here."
A few days later Jordan also had a conversation with Del Pino in which the fore-
man told him that "he had found out exactly who all had signed, that they had the
paper in the office with a letter and the names on it," and added that "Jordan's
name was on it." Jordan denied this and asked to see the paper with his name
on it. But Del Pino walked off without showing anything to Jordan.
Mario Machin, one of the strippers in the block plant, who worked with Sam
Cagnina, testified that on the day of the latter's discharge, Del Pino interrogated
him and Willie Hernandez, the nephew of Del Pino, who worked as a forklift oper-
ator in the block plant, with respect to whether they had signed union cards. Other
.employees were also present when this interrogation occurred. Both Hernandez
and Machin denied that they had signed union cards. Whereupon Del Pino ob-
served: "You're lucky you didn't."
Early in September Nelson Estopinin, who worked as a tireman in the maintenance
department, had a conversation with Perez, his foreman, while the two of them
were driving to a golf course job on which the Toppinos were then working, in
order to pick up a dump truck which Estopinin had left there. Perez asked Estopinin
whether he had signed any cards for the Union. When Estopinin denied any knowl-
.edge of this subject, Perez told him that "he knew all who have signed the cards,"
and added: "If you have signed some of those cards, you better sign off."
Early in September Bertham Murphy, who was operating a payloader on the same
golf course job, had a conversation with George Toppino in which he was inter-
rogated about his knowledge of union activities. George Toppino drove up with
Edward Toppino in a car while Murphy was sitting on his payloader after finishing
his lunch. George called Murphy over and asked him what he knew about the
Union. Murphy admitted that he had signed a union card but added that he did
not think that he would vote for the Union. George Toppino asked Murphy if he
knew anybody else who had signed the cards but the latter declined to reveal any
.of their names. In the course of the conversation George Toppino also remarked
that "the company wouldn't go union."
Charles Sobausis also testified with respect to a conversation in early September
involving George Toppino, James Knowland, a payloader operator, and himself.
'Sobausis gave the following account of this conversation:
George Toppino was doing all the talking and he asked me to come on over.
Him and James Knowland were already talking or he was talking to James
Knowland and I went over there and George Toppino said that he wasn't going
to go union. He said that the union is no good He said that Jimmy Hoffa is
a racketeer and misuses union funds, buys Cadillacs and cigars. He said that
if he has to, he will close down the cement plant and he said he is going to sell
his trucks, some of them, and his cranes, some of them, he said, and he is
going to sell one of his payloaders and the few men he has there, he is going
to make all foremen, and he used quite a bit of profanity in his conversation.
'Sobausis was then asked: "Can you tell us what he said exactly?" but he replied:
"Well, it's against my religion, sir, to say those nasty words."
66235,3-63-col. 138 80
1 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniel Fox, one of the ready-mix drivers, who had been in the car with the group
of employees who had solicited signatures to the union authorization cards, testified
that he had a conversation with George Toppino early one morning in the latter
part of September in which the latter stated that "they would close the gates for
ten years before they would let the union in." At the time this conversation took
place Fox was wiping down the barrel of his ready-mix truck, and George Toppino
had driven up and called him down. He had opened the conversation by observing.
"I hear you guys want a union here," and Fox had cautiously replied: "That's what
I heard " George Toppino's remark about shutting down the plant then followed
The conversation between 'George Toppino and Fox lasted about 10 minutes but
the latter could remember only the vivid remark about shutting the gates for 10
years.
Before he was finally discharged on September 21, Manuel Carmona was sub-
jected to a series of warnings and interrogations with respect to union activity.
Early in September, in the course of a conversation with Joseph Perez in the main-
tenance department, the foreman told him that if he knew anything about the union
activity that was going on it would be to his advantage to talk to one of the Top-
pinos and tell him everything about it because he would hate to see him mixed up
in it and lose his job Shortly thereafter George Toppino issued a similar warning
to Carmona where he worked in the hatching plant. George Toppino asked Car-
mona whether he knew anything about the union activity, and when Carmona
denied that he had any such knowledge, George Toppino told Carmona that he
would hate to see him get mixed up with the Union, and he added that "they were
nothing but a bunch of gangsters who rode around in Cadillacs all day and they
couldn't have the union no matter what. They would rather sell the equipment and
close the doors and run the place themselves."
Apparently, this conversation with one of the brothers made Carmona uneasy
and shortly thereafter he, himself, called Paul Toppino aside to explain to him
that he was not "the number one union agitator" he was reputed to be. Paul
Toppino invited Carmona into his office but Philip Toppino came into the office and
took over the conversation. He asked Carmona whether he did not feel that he
owed the Company anything, and when Carmona admitted that he did, having
worked for the Company for 9 years, Philip Toppino asked him- "Well, aren't you
loyal to the company?" Carmona replied: "I have been loyal to the company I
have come to work blind in one eye, lame in one foot, sick, never had a vacation
or nothing and I have been loyal to the company." Philip Toppino then informed
Carmona that they had evidence that he was the No. 1 union agitator, and that if
he valued his job he would get straightened out. He also added that the Company
could not afford to go union There was some more conversation about the Union
consisting of a bunch of gangsters who rode around in Cadillacs. A couple of days
after this interview George Toppino came into the batching plant, and, approaching
a group of employees that included Carmona, showed them issues of magainzes that
contained articles on unions. According to George Toppino the themes of these
articles was that unions consisted of gangsters and racketeers who caused delay in
Government jobs, and he kept on saying that he would not have the Union no
matter what happened, and that he would rather close the plant or run it himself
Carmona again denied any knowledge of union activities, and declared that he
would not join the Union.
Except for the fact that they always fixed the time of their conversations with
employees about the Union as occurring sometime after the receipt of the Union's
letter. the Respondent's witnesses did not deny that they participated in such con-
versations. Indeed they sometimes supplied details with respect to them that went
beyond the testimony of the General Counsel's witnesses But in general they
attempted to represent all their conversations with employees as discussions of the
disadvantages of unionism that arose spontaneously as they circulated around the
plant, or while the employees were having their lunch If the Respondent's witnesses
are to be believed, it seems that little study groups always formed to which Del
Pino, Perez. or one of the Toppino brothers would deliver a little lecture on the
evils or disadvantages of unionism.
Thus. Del Pino admitted that in the month of September 1961, he had five or
six conversations with groups of employees about the Union during lunch time.
or while the employees were taking a break. According to Del Pino, he merely told
them that while a union was all right for cigarmakers or carpenters who had plenty
of members, and performed specified tasks, it was no good for employees in a
ready-mix plant who had to be shifted from one operation to another. Del Pino
did express these views but there is equally no doubt that, as the General Counsel's
witnesses testified, he also interrogated the employees concerning their union mem-
CHARLEY TOPPINO AND SONS, INC. 1253
bership and activities , sought to make the employees believe that he knew who were
union adherents, and warned them against having anything to do with the Union.
Actually, Del Pmo, who spoke a mixture of Spanish and English, was a terrific
talker, and he talked so much that he could hardly remember what he had said
upon any particular occasion . He made this clear himself at one point of his
cross-examination when he exclaimed: "How can it be possible if they spoke about
everything that I can remember exactly." Moreover, while he was on the stand,
he also explicitly denied that he had ever had any conversation with his nephew,
Willie Hernandez, regarding the union activities of any of the employees, and when
asked: "Now, did you at any time ever specifically ask Willie Hernandez if he had
signed a union card," he replied: "No, I never asked Willie Hernandez nothing."
But, when Willie Hernandez himself was called as a witness by the Respondent, he
made it all too clear that his uncles denials were far from the exact truth. Hernandez
testified to another lecture on unions which Del Pino gave to a group of employees
in one of the Respondents panel trucks which was used to transport the employees
to and from work, and in the course of which he told the employees that it would
not do them any good to get into the Union. Hernandez also testified to another
conversation that he had with Del Pino one Sunday during a family outing at the
stock car races on Stock Island. Hernandez asked his uncle "If things with the union
had gotten straightened out," and, according to Hernandez, his uncle replied that "he
didn't know yet what was going to come of it" but added: "Willie, I hope you didn't
get into this, too. I don't want you to be in that because, like I have explained to you
a bunch of times, I don't think it's going to benefit you at all if the union does come
in." [Emphasis supplied.] Hernandez had actually signed a union card but, in order
not to upset his uncle, he assured him that he had stayed out of it. Incidentally,
Hernandez also testified that Del Pino's lecture on the cigarmakers and carpenters
occurred at a time when Cagnina was still working.
Perez was somewhat more candid than Del Pino in testifying about his convei-
sations with employees about the Union. He virtually admitted his conversation
with Estopinin except that he attempted to make it appear that he did not directly
ask him not to sign a union card, and that he did not specifically tell him to sign
off the Union Thus, Perez testified that he said to Estopinin: "I assume that you
already signed a card for the union. Well, when we have elections, think twice
before you say yes or no, because after all, they have been good to you, so why
would you want to hurt one or the other. Think before you do anything at all."
[Emphasis supplied ] During his cross-examination with respect to the Estopinin
conversation, Perez made it apparent that he had not merely been making assump-
tions, and that he was expecting Estopinin to refrain from supporting the Union
because of past favors done for him. Asked whether he had ever asked any of the
employees whether they had been approached by Carmona to sign union cards,
Perez proceeded to explain:
I have never asked none of them whether they had been approached. As far
as they were concerned, that's their business The only one I ever asked, I
told you, was Nelson Estopinin, and that was because whenever he needed,
money, he would go to Frank and get whatever favor he needed. He had to
go to Frank, so why should he get somebody to represent him.
Perez also admitted to participating in the plant in general conversations about
the Union but maintained that he was merely stating his own personal views: "I told
them," he testified, "that they would be buying their right to work, because there
are no other construction companies out here." He also testified that he told the
employees: "I don't see why we have to pay union dues to work at a specific place,
because if you go any other place here, there's no union." Perez was then asked:
"Did you tell them anything else, if you remember?" and he replied- "I might have,
but I don't recall anything else right now." This hardly amounts to a denial of
anything else which he may have said.
As for the Toppino brothers themselves, they, too, admitted the conversations in
which the Union was involved but sought to counter the accusations of interrogation
and intimidation, although it is manifest from their testimony that they were testi-
fying largely on the basis of a presumption of innocence on their part rather than on
the basis of actual recollection. Yet Paul Toppino, who was an extremely evasive
and reluctant witness, came close to admitting that Leroy Jordan had correctly
reported the substance of his remarks to the group of employees that included
Jordan. "Well," I said this, he testified, "that 1 didn't know and I didn't want to
know whether any of the boys had signed union cards, but I wished that if they
hadn't, they wouldn't, because I didn't see any reason that we needed a union out
there." [Emphasis supplied.] An employer who expresses the wish to a group
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aof employees that they do not join a union is not merely expressing an opinion.
Actually, Paul Toppino's testimony shows that he had only the vaguest recollection
of the circumstances under which the conversation with the group of employees
occurred. Indeed, he did not even remember, or pretend not to remember, whether
Leroy Jordan was in the group to which he talked. Although he was only "reason-
ably sure" that Jordan was there, he proceeded to testify that it was Jordan who asked
about the raise! Edward Toppino also denied Jordan's testimony about the list
coming back from Miami but this brother's testimony also shows that he was relying
,on logic rather than actual recollection. "I couldn't say that about the names on a
list because I didn't even know if there was a list or we would ever see a list."
[Emphasis supplied.] Actually, there is nothing to show that there was any list
coming from Miami but the propagation of this myth served its purpose in frighten-
ing any credulous employees. George Toppino, who appears to have been the most
curious and talkative of the brothers, admitted to the conversation with Murphy
in the cab of the latter's payhauler but contended that he merely asked Murphy
whether he had been approached by Carmona to sign a union card. He testified
that the conversation with Murphy occurred "toward the end of September," but by
this time everybody in the plant already knew about Carmona's activities, so that
there would have been absolutely no point in asking about them. George Toppino
also admitted to the conversation with the group of employees, including Carmona,
in the course of which he showed them two magazines, and asked the employees to
read two articles contained in them but he contended that the articles dealt with
union activity on missile bases. He could not remember, however, whether any of
the employees made any comments, and there can be little doubt that he unburdened
himself also on his favorite subject of union racketeering, as both Carmona and
Charles Sobausis testified. It is significant that George Toppino was not even called
upon to deny his remarks to Sobausis and Knowland, despite the fact that Sobausis
also imputed profanity to him. Neither was he called upon to deny Machin's testi-
mony that he had told this employee that he was lucky he had not signed a union card.
C. The Respondent's overt antiunion campaign
Up until the time of the receipt of the Union's letter requesting recognition, the
activities of the Respondent against the Union had been covert. But the Toppino
brothers were now advised by counsel, apparently, that Carmona as a foreman
could not solicit signatures to union authorization cards; that any signatures ob-
tained by him, or in his presence, would be invalid; and that they could interview
their employees to ascertain how many of them had been approached by Carmona
to sign union authorization cards, and obtain affidavits from them with respect to
these approaches. In conducting these interviews, the activities of the Toppino
brothers now, therefore, become entirely overt.
During several days preceding the discharge of Carmona on September 21 the
Respondent conducted a grand-scale interrogation of its employees with respect to
his activities. Some twoscore employees were interviewed by Philip Toppino either
in his office or at other points in the plant. Counsel for the Respondent was present
during these interrogations, and Paul Toppino also participated in a considerable
number of them. A majority of the employees who were questioned made affidavits
with respect to Carmona's union activities. Some also included in their affidavits,
apparently, allegations concerning Carmona's alleged supervisory status.3
In attempting to defend themselves against the charges of antiunion hostility
and interference with the rights of their employees to organize, the Respondent's
witnesses advanced an official version of the events in which they had participated
that is supposed to establish their complete innocence of any wrongdoing. But the
official version is, for all its edulcoration, at variance with hard facts, and in many
respects with the Toppinos' own testimony.
The first element of the official version is that the Toppino management was wholly
ignorant of the union activity of the employees until the union letter requesting
recognition was received on August 29 or 30. This is contrary to the testimony
of Leroy Jordan with respect to Paul Toppino's conversation with a group of em-
ployees about the Union prior to the receipt of the union letter. The contention
also violates all the probabilities. The Respondent would hardly be in a position
to assert in its reply to the Union's letter that it doubted that the Union represented
a majority of its employees if the letter had really come as a bolt from the blue
and it had up to this point remained wholly uninterested and uninformed about the
3 See , for instance, the affidavit of Daniel J ("Danny" ) Fox. It is in evidence as
Respondent ' s Exhibit No . 3 Philip Toppino also testified that Wally Daeffler was asked
to include in his affidavit a statement outlining Carmona's duties.
CHARLEY TOPPINO AND SONS, INC. 1255,
union activities of its employees . But, most importantly , the contention is incon-
sistent with Philip Toppino's own testimony . He was the most unwittingly candid'
of the Toppino brothers , and as he went along, he repeatedly contradicted the
official version , and sometimes himself. Thus, he testified on direct examination
that he first heard mention of the presence of the Union in the plant while they
were laying off eight or nine employees from a golf course fill job on which they
had been working, and that this occurred prior to receiving the letter from the Union.
According to Philip Toppino , when Perez went out to give the laid-off employees their
checks, one of the men who was being laid off said to Perez: "Was the layoff anything
to do with the union?" At that time , Philip Toppino further testified , "We had not
breathed a word around the plant about the union ." So when Perez told him that
"there was union activity in the plant and that it was mixed up with the foreman,"
he jokingly remarked to Perez: "It 's not you, you one -armed so and so," and Perez
replied: "Absolutely not." Despite this testimony , Philip Toppino on his cross-
examination , although he still maintained that he talked to Perez "sometime in
August ," now testified that he thought it was after the receipt of the Union 's letter.
A few minutes later Philip Toppino was explaining, however , that "we started
laying off actually about the middle of August, cutting back down, and it was towards
the end of August that we got this union thing . . Even more remarkably,
during his cross -examination , he also contradicted his allegedly joking exchange.
with Perez about the foreman who was implicated . Thus, he testified : "Maybe I
didn 't make it clear this morning, but Joe Perez, on the first time he gave me the
information , said that it was his understanding that it was Manuel at that time.. "
[Emphasis supplied .] There can be no doubt that the layoffs on the golf course job
were underway in the middle of August , and that Philip Toppino and his brothers
then learned of the union activity and began to institute countermeasures.
Another element of the official version has to do with the role of Perfecto,
Sanchez, the brother -in-law of Perez , in acquainting the Toppino brothers with,
Carmona's activities in behalf of the Union . According to the official version,
Perfecto Sanchez told Perez that he had signed a union card at the solicitation of
Carmona, and Perez then passed this information on to the Toppino brothers, this,
too, occurring after the receipt of the union letter . Sanchez, a Cuban refugee, who
acted as a combination janitor and barber at the plant , left the employ of the
Toppinos in the latter part of September 1961 to work for one Bob Shack , and the
Respondent did not produce Perfecto Sanchez as a witness . He remains, thus, a
somewhat obscure and shadowy figure.
The testimony of Perez himself, who was called as a witness by the Respondent,
conforms closely to the official version. Perez could not remember exactly when
Perfecto first approached him but he was sure it was after the receipt of the union
letter, probably the first or second week in September . According to Perez, he
relayed what Perfecto had told him to George Toppino , and, then , a day or two,
later-apparently they took their time about it-he took Perfecto to Philip Toppino's
office, where some or all of the brothers were awaiting them . Naturally, this indirect
approach of Perfecto Sanchez to the Toppino brothers through his own brother-in-
law was favored because it tended to remove some of the taint in the transmission
of the information to them. As Perez testified , Perfecto "wanted me to know about
it because me being his brother -in-law , I might run into some difficulty or some-
thing." A moment or two later, however , Perez spoiled this explanation somewhat
by revealing also that his brother -in-law also told him : "I owe the Toppino's quite
a bit. They have been very nice to me and I wouldn 't want anything to come up
that they don't know anything about." Perez finally sought to create the impression
that the intermediary approach of Sanchez to the Toppino brothers through himself
was necessitated by the fact that Sanchez spoke no English . "He does not speak
English," he testified.
But again it was Philip Toppino who failed to stick to the official version. He-
testified that "within a day or so , a day or so after this conversation with Perez
(in which he had jokingly accused him of being the disloyal foreman ), one of the
employees came in and told me that he had been asked to sign a union card by
Mr. Carmona." This employee who thus directly approached him he identified
as none other than Perfecto Sanchez. A day or so after the conversation with Perez
would be considerably before the receipt of the union letter. Moreover , Philip,
Toppino took immediate advantage of the opportunity that had thus been presented
to him . He asked Perfecto Sanchez: "Is it [the Union] fairly wide spread in the
plant" and , from Sanchez, he received the reply that as far as he knew , it was. It
seems that Perfecto Sanchez spoke some English and Philip Toppino a little Spanish,
and, apparently , they just managed to understand each other. Philip Toppino also
testified that Perfecto Sanchez in approaching him also told him that he wanted
to talk to him "without anybody being around ." In fact, Philip Toppino spoke to,
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perfecto Sanchez twice, and it was only upon this second occasion that Perez was
called in, in addition to counsel for the Respondent , and an affidavit was taken from
Sanchez about Carmona's union activities. It seems that an affidavit was also taken
from Antonio Sanchez, a brother of Perfecto.
In addition to Philip Toppino, Paul and George Toppino testified concerning the
Perfecto Sanchez incident. Paul Toppino proved to be an extremely evasive and
unreliable witness. At first he could not even remember when or from whom he
first heard of Carmona's connection with the Union. But, after his memory had
been jogged, and he had been reminded that this subject must have been of consider-
able interest to him, he reluctantly named Perfecto Sanchez as the source of his
information
As for George Toppino, he readily admitted talking to Perfecto Sanchez about
'Carmona and learning from Perfecto that he had signed a union card, but he too
.attempted to maintain that Perfecto approached him through Perez. In addition,
however, George Toppino testified that he, himself, talked to four or five of the
employees about Carmona's attempts at solicitation. Of these employees, he named
James Knowland, Bertham Murphy, Charlie Gomez, and Cecil Knowles. George
"Toppino asked these employees for affidavits concerning Carmona's activities, and
they agreed to furnish such affidavits. It is not clear, however, whether the con-
versations between George Toppino and these employees were part of the grand-
-scale interrogation in Philip Toppino's office.
Perhaps the most important ingredient of the official Toppino version, insofar as
It concerns the investigation of Carmona's activities , is the contention that in
approaching the employees who were interrogated it was made clear to them that
they had nothing to fear and were free to sign union authorization cards if they
so desired and that all the Toppino brothers wanted to know was simply whether
they had been solicited by Carmona to sign a union card=not whether they had in
fact signed a union card. This contention was gaudily embellished by Philip Toppino
when he testified that he told Wally Daefffer when that employee was called into
his office that "under the law as I understood it, that if his card had been solicited
by a foreman or if a foreman was present, that it was void and if he was serious
;about it he had better go and sign another one. . " [Emphasis supplied.] Similar-
ly, Paul Toppino testified that in questioning the employees, "I clearly made them
understand when I did ask them the questions that if they signed that affidavit that
-they would void that card (namely, the card signed at the request of Carmona)
and if they were still interested in participating in union activity, to sign another
card and just make sure that Manuel didn't have anything to do with this card."
[Emphasis supplied.]
As usual, it was Philip Toppino himself who undermined his own claim of rectitude.
He had already testified that when first approached by Perfecto Sanchez he had
.asked him how widespread the union activity was. This is hardly consistent with
-an entire lack of concern about his employees' union activities. He now revealed
-also that in opening his interviews with the employees during the grand interrogation
he opened them actually with a very leading question which was designed to invite
-them to reveal all they knew about union activities Thus, in testifying with respect
to his interview with Wally Daeflier, Philip Toppino quoted the exact words with
which he opened the interview with this employee "Wally," Philip Toppino asked
him, "do you know anything about this union business," [Emphasis supplied.]
Similarly, Philip Toppino testified that in interviewing Jack Fredericks, another
employee who was questioned by him, he asked him "if he knew anything about the
union ," and that in interviewing still another employee, Nelan, he also asked
him "what he knew about the cards being signed." Even more revealing is Philip
Toppino's testimony concerning Willie Ruth Philip Toppino testified that Ruth
admitted that he had signed a union card but claimed that he had not read it, and
that he had then admonished Ruth: "Supposing it had been a note for $10,000,
would you have signed it, too9" Nothing could better reveal how far from indifferent
Philip Toppino was to the signing of union cards. Ruth's uneasiness during the inter-
view is also apparent. The positive fear of another employee is even more manifest
from Philip Toppino's testimony with reference to his interrogation of Harold Black-
man, a Negro employee who bore the nickname, apparently, of "Lumumba " "I
asked him," testified Philip Toppino, "if he had been approached and frankly, I
don't remember what he said. He was scared to death, I remember that." [Emphasis
supplied ]
The sincerity of the protestations of the Toppino brothers , as well as the truth
of their testimony with respect to the interrogations of the employees, may fairly
be judged also in the light of the actual results obtained by them. The employees
CHARLEY TOPPINO AND SONS, INC. 1257
questioned did not confine themselves simply to telling their interrogators whether
they had been solicited by Carmona to sign a union card. Those who had signed
union cards told them, in at least every recorded instance , that they had in fact
signed union cards. It is apparent that, even if the distinction between being asked
to sign a union card and actually signing one had been explained to them, they
would have either failed to understand the distinction, or ignored it entirely in their
anxiety to propitiate their interrogators.
In fact it would have made no sense whatsoever to confine the interrogation
.to the question whether Carmona had approached any of the employees Long
before the grand interrogation the Toppino brothers had been informed by Perfecto
Sanchez, if such information was not already in their possession, that Carmona
was siliciting signatures to union authorization cards. If he was, indeed , a foreman,
they had the evidence which they neede dto justify his discharge. But, if this evidence
was insufficient, they obtained evidence of his guilt from the first few employees
whom they interviewed. There was no necessary therefore, to go on interviewing
employees until their number exceeded twoscore or more. The continuation of the
interrogations beyond the point at which Carmona's activities were firmly established
would make sense only if, in addition to this, the interrogators wished to ascertain
also whether the employees interrogated had signed union cards, and, if so, how
many of them had done so. The Toppinos were questioning the Unions majority,
and the extent of the Union's success was a matter of vital concern to them. More-
over, this is not merely a logical deduction but is affirmatively established by what
is perhaps Philip Toppino's most significant admission. When asked what advice he
had received from counsel for the Respondent, his answer was: "Counsel advised us
to find out how many cards had been solicited by Manual Carmona, so we went
into as much detail as we could towards finding it out "
I find in the next section of this report that Carmona was not a supervisory
employee. The interrogation of the rank-and-file employees concerning him was,
therefore, clearly a violation of Section 8 (a) (l) of the Act. But it would be no less
so if Carmona were in fact a supervisory employee. As the Toppinos knew about
his activities, they could have discharged him without going through the motions
of staging an elaborate investigation requiring the interrogation of a great many of
their employees. This interrogation was in fact intended only to mask their real
purpose which was to deter the rank-and-file employees from supporting the Union.
The investigation was undertaken, moreover, before any unfair labor practice charges
had been filed against the Respondent, and it could not be justified, therefore, as a
means of preparing for an eventual hearing. The investigation was also unjustified
as a means of canvassing the strength of the Union among the employees The
Respondent had already rejected the request of the Union for recognition as the
representative of a majority of the employees. Apparently, a request for an election
was pending, and no useful purpose would have been served, therefore, by determin-
ing how many employees had been solicited by Carmona. As for the question whether
the union had made a sufficient showing of interest to warrant an election, this was
for administrative determination by the Board 4
D. The status of Carmona
The issue with respect to the status of Carmona is whether he was, as he main-
tained, merely the batcher with primary responsibility for servicing the ready-mix
trucks, or, as Paul Toppino, the Respondent's principal witness on this aspect of
the case, maintained, the batcher-foreman with supervision over the whole ready-mix
department, including the operations in the yard and the operations of the crusher
crew.
If Carmona's testimony is accepted, it must be concluded that he was not a super-
visory employee. The batch plant was on steel stilts or beams 15 feet above the
ground, and the ready-mix trucks would pull under it to receive their loads. The
primary duty of the batcher was to weigh the rock and sand before the materials
were dumped in the truck. When it was slow, Carmona would also perform
various miscellaneous duties, such as help run the payloader or the crusher or take
samples to the laboratory. A common slack-time activity was painting or chipping
the ready-mix trucks in order to keep them clean , or sweeping the warehouse or
yard. Carmona would get the ready-mix drivers to paint, chip, or sweep on specific
instructions from Paul or George Toppino, and sometimes he would paint, chip,
or sweep himself. As batcher, Carmona also had to keep an eye on the warehouse
' See Fleming Manufacturing Company, Inc , 119 NLRB 452, 459; Ballas Egg P, odects,
Inc, 121 NLRB 873; Lincoln Bearing Company, 133 NLRB 1069, footnote 3
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and work in close cooperation with the dispatcher who received the ready-mix orders,
and with the payloader , who was in control of the supply of materials. It was
the dispatcher rather than Carmona who designated the number of trucks that
would have to be available on Saturday mornings, and it was not until he was thus
informed as to the number of trucks that would be needed that Carmona "selected"
the drivers . But this selection was practically automatic , being determined by
looking at a blackboard on which the number of hours already worked by each
driver was indicated , the drivers selected were those who had worked the fewest
hours during the week. Although Carmona also told the payloader whether to
come in on Saturday , again, he did so only after talking to the dispatcher . Carmona
had no authority to excuse employees from work , but occasionally he would receive
requests for time off and transmit them to proper authority . Carmona thus acted
as a conduit for orders emanating from other sources. As batcher, Carmona was
required to remain at the batch plant until all the ready-mix trucks were in. But
it was not part of his duties to check the ready-mix trucks to see that they were in
proper running order. If a truck pulled in, he gave it a load , and that was all he
did. On occasion , he would take a new driver out to check his driving ability but
he did this only upon request, and such requests had also been made to him before
he became a hatcher and was working simply as one of the ready-mix drivers.
Unlike Del Pino, Perez, or Roush-indeed , unlike any of the supervisory em-
ployees-Carmona was an hourly paid employee, receiving $ 1.95 an hour. If he
was a supervisory employee , he was the only one who was not paid on a weekly
basis.5 Carmona had no office or even desk of his own, and kept no records of
any kind showing the time worked by the ready-mix drivers or other production
employees . He would drop his timesheets in a box in one of the back offices where
they would be picked up by the timekeeper , and it was not part of Car`mona's
duties to check the time of other employees . Carmona explicitly denied that he
had any authority to hire, fire, transfer , or discipline employees, although he con-
ceded that , as an old and trusted employee of over 8 years ' standing, and one who
was in a good position to observe the ready -mix drivers , he was on a few occasions
consulted as to the merits of a particular employee.
On the other hand , if the testimony of Paul Toppino is accepted , Carmona was,
indubitably , not only a supervisory employee but one who ranked at least as high
as Del Pino, and who had duties far more inclusive than those of the latter. Paul
Toppino himself equated the two men . "Gilbert Del Pino ," he testified, "was my
foreman in the block department," and "Manuel Carmona was my immediate fore-
man in the ready -mix department ." Paul Toppino explicitly testified not only that
Carmona had complete charge of the hatching operation and the ready-mix drivers,
including all the chores which they performed in their spare time, such as painting
and chipping , but also that he was responsible for the repair or maintenance of
the equipment in the ready -mix department In addition , he testified that Carmona
had charge of all operations in the yard , which would include the dump truck and
payloader operations , and also of the crusher , and its crew . Moreover , Paul Top-
pino also asserted that it had always been the job of the hatcher to run the whole
ready-mix department , as well as the crusher. Thus, he testified during his direct
examination.
Q. Is there any particular reason why the hatcher of the ready-mix depart-
ment is always the foreman of the ready -mix department at your company?
A. Well, for a very good reason; because he has most of the vehicles that
is in his department located right around him, and somebody has to have the
responsibility of scheduling these trucks and knowing when to bring them in
and when to knock them off, and him being right there with the job, he is
actually the only logical one that could do it [Emphasis supplied ]
During his cross-examination, Paul Toppino testified that it had always been the
batcher's duty to oversee the work of the crusher "because we, up until about 4 or
5 months ago, we had a lab where be did the testing himself of the materials after
they were manufactured ." But, in the case of the crusher at least, Paul Toppino
conceded that Carmona did not prove very satisfactory as a laboratory technician,
and that they had had to sublet the testing for the plant.
Paul Toppino's testimony that it was logically necessary for the hatcher to be
ex oficio, so to speak, batcher-foreman, and, as such, the head of the ready-mix
department and of the crusher crew, and that the batcher had actually always oc-
a This was accomplished by so-called R-low contracts under which provision was made
for an hourly rate to be paid to an employee who has a fluctuating workweek but who
was nevertheless guaranteed a weekly wage
CHARLEY TOPPINO AND SONS, INC. 1259
cupied these positions , had already been shown to be absolutely without any foun-
dation in fact 2 days before he took the stand, when the Respondent had called
Sam Harden as its first witness. The succession to the job of hatcher since 1950
is established for the most part by his testimony, as well as that of other witnesses,
and it shows that the jobs of batcher, head of the ready-mix department, and
supervisor of the crusher crew were separate and distinct up to the time that Car-
mona was made hatcher shortly before January 1960.
From 1950 to 1953, the hatcher at the Toppino plant was one Charles Teat or
Teate who was a Negro known as "Mule Train." Although he was the hatcher, he,
admittedly, did not supervise the ready-mix drivers. The explanation for this,
according to George Toppino, was that his only job at that time was to take care
of the ready-mix department, where the volume of production was much smaller,
and that Teat's race made it inadvisable to give him charge of the ready-mix drivers.
The fact remains, however, that Teat was not batcher-foreman. During the period
that "Mule Train" was batcher, the foreman of the ready-mix department was one
Tony Anthony.
Who exactly succeeded "Mule Train" as hatcher, and was batcher from 1953
to 1955, is not clear from the record but it is established by Sam Harden's testimony
that, after working as a mixer-driver for a few months, he became batcher in 1955
at a time when Tony Anthony was still foreman. After batching for 2 months or
so, Harden was made an assistant foreman, and when Anthony left a few months
later, Harden became hatcher and foreman . At first he had charge of the ready-mix
drivers and the warehouse only but then duties with respect to the crusher and the
yard crew were added to his responsibilities. But it proved virtually impossible to
batch, be on the crusher, and out in the yard at all times, and toward the end of
1958 he, therefore, put one James Kirkwood Bethel (known as "Kirky") on hatch-
ing but Kirkwood was not a foreman and worked under Harden's supervision. Ac-
cording to Harden, Kirkwood left after a few months and Carmona took over the
hatching. But Kirkwood came back to Toppino's after a few months, and Kirkwood
and Carmona did the batching together. While they were batching, Harden was
the general foreman of the ready-mix department. But in September 1959 the
supervisor of the crusher left, and Harden was put on the crusher entirely. Harden
appears to have been somewhat confused about time sequences , and, judging from
Carmona's own testimony, as well as the testimony of George Toppino, Carmona
did not become hatcher on anything like a regular basis until nearly the end of
1959, although he probably batched some on an irregular basis in the preceding
months. Harden also testified that when he was put on the crusher in September
1959, he left Carmona in charge of the ready-mix department, turning over to
him at that time the keys to his desk, the laboratory, and the warehouse. I do
not credit this testimony, for Carmona denied that Harden ever turned any keys
over to him, and Harden himself made a contradictory assertion in an affidavit
prior to the hearing. In this affidavit, he had deposed: "I was foreman when I left
and I was in charge of the crusher,, the ready-mix operation and the yard mainte-
nance." [Emphasis supplied.] George Toppino testified, moreover, that Carmona
became hatcher shortly before he took over the marina in January 1960. In any
event, it is again abundantly clear from the testimony of Harden, as well as of George
Toppino, that the jobs of batcher, foreman of the ready-mix department, and of the
crusher were not always amalgamated.
This is, finally, further established by the testimony of Weldon ("Wally")
Daeffier, the present batcher at the Toppino plant 6 Although he described himself
as "the hatcher and the foreman of the ready-mix department," and testified that
when Carmona was on the job, he was his foreman, he conceded in his testimony
that he had no supervision over the crusher. He also conceded that despite his
claim to being batcher-foreman, he had no responsibility for maintenance, and he
did not distribute paychecks to the employees, this being done by the dispatcher.
Daeffler , too, must be regarded as an untrustworthy witness. After testifying that
his duties were the same as those of Carmona, he confessed that he was not familiar
with a number of Carmona's alleged duties, such as keeping a time book and
checking pay slips. Daefller, who is 26, looked even less mature than this, and if
he performed all the duties to which he laid claim, he was carrying a burden that
appears to have been too much for him. The record shows also that Daefller had
collaborated with the Toppinos in the so-called investigation of Carmona before
the latter was discharged.
6 Daefiler did not immediately succeed Carmona as bather The job was held for a
brief period by one William Swicker who was put on field work at his own request
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his testimony, Paul Toppino not only maintained that Carmona was batcher-
foreman with full authority responsibly to direct employees but also that he possessed
unrestricted authority to hire,7 fire, and transfer employees without consulting anyone,
and that he had exercised such authority in many instances He proceeded to tell
about a number of these instances with considerable circumstantial detail. Thus, he
testified that Carmona fired an employe by the name of McIntyre, who drove the
yard truck, for spilling bags of cement that he was supposed to deliver; another
employee by the name of George Gonzalez, for trying to sell to a contractor some
concrete he had left over in his truck when the contractor telephoned to Carmona to
complain about it; and still another employee Charles Jones, a suspended Key
West policeman, who had been temporarily hired for 6 weeks as a mixer-driver 8
Even more interesting is the case of one of the employees who, according to Paul
Toppino, was fired by Carmona after consultation with him. This employeee was
Donald Cornutt, one of the mixer drivers with whom, allegedly, Carmona could not
get along. Paul Toppino testified on direct examination that when Carmona first
spoke to him about Cornutt, who was a good driver but whose "attitude was bad,"
he suggested that Cornutt be kept on but be given a talking to because they were
rather busy at the time. He then further testified that when Carmona spoke to him
again about Cornutt, he told Carmona: "Suit yourself. Make up his time if you
want." However, on cross-examination, Paul Toppino gave an almost totally differ-
ent story. He now testified not only that the trouble with Cornutt was that he was
cheating on his time but also that he was against firing him despite his cheating!
Paul Toppino also testified with respect to the transfer of two employees for which
Carmona, he claimed, was responsible The first of these employees was one
Sheldon Drake who was operating a truck that serviced the ready-mix bins and took
the material away from the crusher after it had been processed According to Paul
Toppino, Carmona came to him one day and told him: "This Drake is too slow
and he can't keep up with the operation, but the boy's work is good. Maybe we
can transfer him to another department" The result was that Sheldon was transferred
to the mining division where he wrote tickets as a checker.
Undoubtedly the most interesting of all is Paul Toppino's testimony with respect
to the transfer of Bertham Murphy in the summer of 1961 9 According to Paul
Toppino, Murphy had been hired as an assistant to Carmona "to do the loading
and servicing of the ready-mix operation" but friction developed between the two
men, and Carmona after grumbling for a while, came to him one day, and declared.
"You either get rid of Murphy or I quit." [Emphasis supplied.] "So," Paul
Toppino testified further, "at that time my first idea was to fire Murphy and then
actually, he was a pretty good driver, so we moved him to the golf course lob
driving a big payhauler we had, which is the same as a Euclid " During his cross-
examination, Paul Toppino testified again but even more vividly with respect to the
same alleged incident, as follows-
Q. You testified, I believe. with respect to Murphy, that Manuel came in
and said, "Either get rid of Murphy, or I'm going to quit."
A. Those were his exact words He said, "I can't stand this man another
minute. Do something with him. Fire him or something. I can't stand him "
Carmona testified with respect to each of the discharges or transfers mentioned
by Paul Toppino With respect to the discharge of McIntyre, whom he knew as
"Mac," Carmona testified that he saw him breaking bags of cement, and, consider-
ing himself responsible for the cleanliness of the warehouse, said to McIntyre:
"If you can't do it right, don't do it, and that when McIntyre started to mumble
something, he remarked to him. `I'll be glad when you get fired,' or something like
that " About 2 hours later McIntyre was discharged but not by Carmona McIntyre
was discharged by Roush, the dispatcher, who told Carmona about it Carmona
also testified that he had heard of the incident involving Gonzalez but that he
had not discharged him. He specifically denied that he had received any telephone
call from the contractor involved in the incident, and maintained indeed that he
could not have received such a call, since there was no direct line to the batcher's
shack. He also denied that he had had anything to do with the hiring or firing of
Policeman Jones. As for the discharge of Cornutt, Carmona testified that on one
I Paul Toppino testified that when Carmona needed it driver he called the employ meat
agency, although he would sometimes talk to one of the brothers before doing so
s According to Paul Toppino, Carmona allegedly fired Jones after several weeks when
he had found a replacement for him but be failed to explain why Carmona had taken this
action, and Jones himself testified that he quit.
8 This is the same Bertham Murphy who was eventually laid off on September 6, 1961.
CHARLEY TOPPINO AND SONS , INC. 1261
occasion , he remarked to Paul Toppino , apropos of Cornutt, whom he remembered.
as a red -headed fellow: "I wish I could buy a new car and knock off at one o'clock
in the afternoon." A week or two after this occasion Paul Toppino asked him to
check Cornutt's timecards with him, and they discovered that Cornutt had been
falsifying his timesheets . But, Carmona testified, his only connection with Cornutt's.
discharge was that Paul Toppino asked him to give Cornutt his check. Carmona
testified also that his only connection with the transfer of Drake was as a bystander.
One day he was standing outside with Frank Toppino when Drake almost drove off
a ramp , and Frank Toppino remarked to him : "I'm going to have to find somebody
else to do that before the man kills himself." Finally, Carmona denied the personality
clash between himself and Bertham Murphy. He testified that Murphy was hired
by Paul Toppino to help Carmona keep his hoppers full of rock and sand, and that
he had never requested that Murphy be transferred . However, one day Edward
Toppino came to Carmona and asked him whether he could get along without
Murphy, and when Carmona replied in the affirmative, Edward Toppino told him:
"If you can get by without him, I 'm going to use him to drive a Uke over on the
golf course."
I cannot accept Paul Toppino 's testimony with respect to Carmona 's powers to
hire, fire, or transfer employees in his discretion . Apart from Paul Toppino 's general
untrustworthiness as a witness , there are special reasons for disbelieving him. Al-
though he testified that Carmona would call the employment agency when he needed
a driver, the testimony of the local manager of the Florida State Employment Service,
who was called as a witness by the General Counsel, and the records produced by
him,10 fail to show that Carmona called the agency or that he was ever designated
as the person to be seen by the applicant . The person to be seen was always one
of the Toppino brothers, or Roush, the dispatcher. As for the cases involving.
the discharge or the transfer of employees , the testimony of Paul Toppino was
either vague, contradictory, improbable , or unbelievable . Carmona could hardly
have received the call about Gonzalez when there was no direct line to the batcher's
shack. He would hardly have gotten rid of the suspended policeman without at
least consulting one of the Toppinos , since, obviously , this was a very special kind
of a situation . It is particularly hard to believe that Carmona would not have taken
advantage of his supposedly unrestricted authority to discharge employees when the-
employees involved were supposedly ones for whom he had a personal dislike.
Indeed it is manifest from Paul Toppino 's own testimony in the case of Bertham'
Murphy that Carmona had no authority to fire an employee He would not have,
allegedly, threatened to quit unless Murphy were fired unless he had no authority
to fire Murphy himself. Moreover, Paul Toppino made it manifest that he was.
reporting Carmona's exact words in making the threat , and, these words were:
"Either get rid of Murphy or I'm going to quit "
There are in evidence , to be sure , two affidavits , which, if accepted at their face
value, would tend to support the Respondent 's contention that Carmona was a
supervisory employee. The same Daniel Fox, who was called as a witness by the
General Counsel , gave an affidavit to Philip and Paul Toppino and counsel for the
Respondent on September 21, 1961 , in the course of the interrogation of the em-
ployees about Carmona, in which Fox deposed as follows:
My foreman is Manuel Carmona. He is the man who tells me what to do,
when to do it and for how long. He is the man to whom I go when I want
time off from work . To the best of my memory, I have asked him for time off
on two occasions and in both instances , he has let me take off. I have always
understood that Manuel Carmona could fire me and although he has never fired
me, f haven 't ever gone so far as running the risk to see if he would.
Fox repudiated this affidavit on the witness stand. He explained that he had sworn
to it in order to get his job back , and I accept his explanation . It seems that at the
time he gave the affidavit, Fox was out of work, having been laid off. The day
before he gave his affidavit, Wally Daeflier, who was Fox's brother-in-law, came to
the latter and told him that he could go back to work if he would sign the affidavit.
So he signed the affidavit and was put back to work the next day. Fox conceded
that no one in the course of the interview that resulted in the affidavit specifically
told him that he would get his job back if he signed the affidavit . But he had already
been told that by his brother -in-law, and the Toppino brothers made it an immediate-
reality.
10These are in evidence as General Counsel's Exhibits Nos. 11(a) to (g).
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carmona himself also gave an affidavit on the same day as Fox, when he was
interrogated in a similar manner by the Toppinos and their counsel . In this affidavit,
Carmona deposed as follows:
My duties , in addition to the actual hatching of the concrete , include the
scheduling of the drivers insofar as the actual loads which they haul. I also
sometimes tell the drivers when to knock off and if there is to be a late load
hauled , I designate which man to stay on and carry the material . I also grant
employees time off when they request it or if the work is such that I can 't spare
them , I refuse their request for time off.
When neither Paul nor George Toppino is around the plant , I consider myself
to be in charge of the ready-mix department . They are away from the plant
very often.
I have on occasion gone to Paul Toppino and told him that an employee was
no good and recommended that he be let go and Paul has terminated or trans-
ferred the man out of the department on my recommendation , although I leave
the decision up to Paul Toppino.
I have also recommended that men be hired . I make these recommendations
to either Paul or George Toppino.
Asked if he had read the statement before he signed it, Carmona replied , "I glanced
over it , yes, sir." It is seriously to be doubted , however, that even if he had read it
over carefully , that he would have understood the full impact of the words and
concepts which it contained . The statement was based on questions framed by the
Respondent's lawyer , and the language of the statement was the latter 's but the
person who answered the questions-namely Carmona-was a simple man who had
never completed the sixth grade in public school . The contest was, therefore, un-
equal from the beginning . It is apparent , moreover, that when he was answering the
questions of the Respondent 's lawyer , that Carmona was in abject fear of losing
his job, and was, therefore , attempting to propitiate his interrogators . Indeed, as
soon as he had signed the statement , he was discharged by Philip Toppino but not
before the latter had attempted to extract from Carmona the admission that he was
"a foreman ." In this Philip Toppino was not successful , and during his testimony
concerning the statement Carmona adequately explained his actual powers and
duties, which did not exceed the routine direction of the ready-mix drivers, and the
passing on to them the orders received either from one of the Toppino brothers
or from the dispatcher.
A number of witnesses , in addition to Paul Toppino , were called by the Respondent
to testify with respect to the status of Carmona . Marvin Sylvester Smith , a foreman
for Powell Brothers , a Fort Lauderdale construction firm that was purchasing a
special concrete for the pouring of pilings , testified that Paul Toppino told him
at the outset of this work that lasted 5 or 6 weeks that if he had any problems he
should talk to Carmona , and that on one occasion Carmona helped him out by getting
him a forklift to unload steel at one time . This testimony is hardy very significant.
The cement used for the pilings was not the ordinary Toppino bagged cemcnt which
could be batched out of the plant but had to be lifted with a forklift and dumped
in the back of the trucks . It was only natural that in view of the special problems
involved that the Powell Company foreman should be advised to consult with the
batcher . Of even less significance is the testimony of Mario Alvarez, one of the
ready-mixer drivers, who was the only rebuttal witness called by the Respondent.
He testified that he considered Carmona to be his "immediate foreman" but the
only reason he could give for thinking so was that "if there was anything I would
have to do with my truck like clean it up, Manual would tell me what to do."
On grounds of credibility alone the testimony of Jones, the suspended policeman,
with respect to the status of Carmona , must be totally rejected. It was Paul Toppino
who revealed Jones' fall from grace. He himself had testified , when previously
on the stand , that when he was hired by the Toppinos "I was on vacation from
the police department ." In addition , Jones seemed to have had a highly private
and peculiar notion of the meaning of the term "immediate supervisor ." Although
be testified that he thought Carmona was his foreman , he had also given an affidavit
in which he had deposed that his immediate supervisor was Frank Toppino.
Of all the Respondent's witnesses other than the Toppinos who testified with
respect to the status of Carmona , one of the most interesting was certainly Roush,
the dispatcher . The Respondent contends that Roush was not a supervisory em-
ployee, and Roush himself gave testimony to this effect . But Carmona testified
that the dispatcher supervised the ready -mix drivers when George or Paul Toppino
were both away from the plant; that the dispatcher was indeed the No. 1 man in
the batch plant; and that he considered the dispatcher to be his immediate supervisor.
Two of Carmona 's fellow employees also gave testimony to much the same effect.
CHARLEY TOPPINO AND SONS, INC. 1263
Beiro testified that Roush "usually called any man" and that Roush once assigned
him to driving a "flat bed," delivering sand, rock and cement. Beiro also testified
that once when he had an eye injury it was Roush who told him to take time off to see
a doctor, and initialed his timecard so that he could be paid for this time. Although
Roush testified after Beiro, the dispatcher was not called upon to deny Beiro's testi-
mony. Sobausis testified: "I considered Mr. Roush to be my foreman," and it is
apparent from Roush's own testimony that he played a considerable role in the dis-
charge of Sobausis, as is subsequently to be related.
Roush's own testimony, moreover, shows that he occupied a position in the
Toppino business far more important and vital than Carmona's. He had a large
office-approximately 15 feet square-and this was not only the real hub of the
ready-mix department but also of the operations of the plant as a whole. In the
dispatcher's office was a telephone and intercom squawk box to the batcher's shack,
and all telephone calls, as previously indicated, came through the dispatcher, there
being no private lines to the hatcher or anyone else in the plant. The dispatcher
normally received all radio communications from company cars. Being thus the
center of all communications, he was the one who received customer complaints,
and was responsible for sound customer relations. It was the dispatcher rather than
the hatcher who took the orders, and the ready-mix drivers got their invoices from
the dispatcher and handed over the signed invoices to him after delivering an order.
The dispatcher relayed the orders to the hatcher on the intercom or squawk box
when they were received, and even told the hatcher when to start hatching and, as
already related, it was the dispatcher who really determined how many ready-mix
drivers would be needed on weekdays as well as Saturdays. It was the dispatcher
who handed all the employees their checks every week, and these employees would
include, of course, the ready-mix drivers. Like Carmona, Roush had an assistant
for a number of months in 1961, which would certainly indicate that there was a
time when the job was rather taxing. Indeed, Paul Toppino testified that Roush's
predecessor in the job of dispatcher, one Clive Peters, died of a heart attack that was
caused by his job. Although Roush disclaimed authority to hire employees, he ad-
mitted that he was approached by applicants for employment. Although he also
disclaimed authority to grant time off to employees, he admitted that on occasion
he had received such requests from employees. Although be further disclaimed
authority to lay off or discharge employees, he played a preponderant role in the
discharge of Sobausis, one of the ready-mix drivers. Finally, it appears that Roush,
unlike Carmona, had a B-low contract, guaranteeing him $90 a week, although his
hours, too, were irregular.
The status of Roush, the dispatcher, is not directly in issue. Although his testi-
mony has a bearing, of course, upon the credibility of the Respondent's witnesses,
it is only cumulative, so far as this is concerned. It is not essential, therefore, to
determine whether Roush was in fact a supervisory employee. But, on the basis
of his own admissions, and employing them as a standard of comparison, it may
certainly be said that if Roush, the dispatcher, was not a supervisory employee, then
neither was Carmona, the hatcher.
Apart from the testimony of individual witnesses, the problem of the status of
Carmona may be considered in terms of the inherent probabilities and the logic of
his situation. The mere fact that he aligned himself with the rank-and-file employees
in their effort to organize would be unusual if he were in fact an acknowledged
supervisor. While such alignments have occurred, just as suicides occur, neither is
exactly normal. Equally abnormal was the behavior of the Toppino brothers if
Carmona was in fact an acknowledged supervisor. They dawdled and temporized
for weeks after they knew of Carmona's activities before they fired him. This seems
hardly consistent with any assumption that they were sure of their ground. The
Toppino brothers present indeed the strange spectacle of employers seeking des-
perately for evidence of the supervisory status of one of their own employees. Nor-
mally one would expect that they could prove from their own employment records
what Carmon's position actually was. Counsel for the Respondent was asked to
produce such records, and he finally did produce an employment record which
contained a box for indicating any change in an employee's position. But this box
was left blank in the case of Carmona, although the change in his position from
mixer-driver to hatcher had occurred but recently.
The very recentness of this change militates against the conclusion that Carmona
was the hatcher foreman. At the time when he was discharged by the Respondent
he had been batcher for approximately a year and 9 months. During this period,
he had to learn the job (which he had not wanted in the first place)," and a sub-
21 Carmona protested at first that he was not qualified to batch but he was told to
batch, and batch he did
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial portion of this period was spent in special assignments in the field.12 Yet
be is represented by the Toppinos as a firmly established batcher-foreman who
dominated the whole ready-mix department at least.
The general nature of the supervision over the Toppino business, in the conduct
of which all five of the Toppino brothers were active, was such that there was not
much real authority left for anyone else to exercise even if he was a supervisory
employee. Although each supervised a particular phase of the business , each, in
any emergency was omnicompetent The only foreman who could measure up to
one of the Toppino brothers appears to have been Del Pino but, then, he was, after
all, a member of the Toppino family at least by marriage. The competence of Perez
appears to have been largely technical, as was that of other assistants to the Toppino
brothers who may have had limited supervisory authority. In addition to such
supervisors, there were, to be sure, in the production phases of the business several
key employees upon whom the daily routine of production depended in considerable
degree, such as the dispatcher who took and routed the orders, the hatcher who
serviced the ready-mix trucks, and the payloader who had the 'important job of
keeping the block plant and the ready-mix department stocked with materials. Key-
men are not , however, necessarily, supervisory employees
In testifying about their own duties, the Toppino brothers seemed to realize the
unfavorable inference that could be drawn from their total oversight of the business.
Some of them sought, therefore, to minimize the importance of their roles by stress-
ing that their duties often took them into the field, or that they had personal inter-
ests-it seems that George and Paul Toppino were racing enthusiasts, the one driving
a racing car and the other a speedboat-that would reduce the attention that they
could give to the operation of the plant Both of these factors were, however, greatly
exaggerated by them The Toppinos had radio-equipped cars that enabled them to
keep in touch with the plant when they had business to attend to in the field, and,
as for the sports activities these appear to have taken place for the most part during
weekends. The occasions when not even one of the Toppino brothers was at the
plant to keep an eye on the business must have been rather infrequent.
E. The alleged discriminatory discharges
a. The cases of Cagnina and Beiro
The union activities of Cagnina and Beiro have already been related, and it is
apparent that Cagnina was instrumental in launching the union drive, and that
Beiro was principally responsible for getting the union authorization cards signed
There is little doubt, moreover, that the Toppino brothers had knowledge of the
union activities of Cagnina and Beiro Apart from testimony by Beiro, which I
credit, that he showed the union authorization cards which he had obtained to a
number of the Toppino employees, including Willie Hernandez, the nephew of Del
Pino, there is the testimony of Leroy Jordan, which I also credit, that one morning,
a few days before the dismissal of Cagnina and Beiro, at a time when the breakdown
of the block machine caused a lull in production, Del Pino approached a group of
employees, including himself, and remarked that "Sam and Mundi had got to be
very smart on the job, was going out and giving union cards and in a few days they
was going to get it." The fact that, they did "get it," almost immediately after
the receipt of the union's request for recognition, and the Toppinos' official acknowl-
edgement of the existence of the Union, certainly is convincing evidence that they
were discriminatorily discharged.
In testifying concerning their discharges, Cagnina and Beiro could not recollect
the precise dates on which they had occurred. Cagnina testified that he was dis-
charged between September 1 and 6, and Beiro testified that he was discharged
sometime in September, which is, of course, even more indefinite. However, at
almost the close of the hearing, counsel for the Respondent introduced into evidence
weekly payroll summaries for all the allegedly discriminatorily discharged employees,
including Cagnina and Beiro, that seem to indicate that the last day worked by
Cagnina was Friday, September 1, and that the last day worked by Beiro was
Wednesday, September 6. However, it should be noted that the Labor Day weekend
intervened between these days, and thus, if the payroll summaries are correct, Beiro
worked only for 2 days after the discharge of Cagnina, namely on Saturday.
September 2, and Wednesday, September 6. The record fails to show why Beiro
did not work on Tuesday, September S.
1= After hurricane Donna in September 1960, for example, Carmona was sent for a
while to the Toppino branch at Marathon
CHARLEY TOPPINO AND SONS, INC. 1265
- The principal witness of the Respondent with respect to the discharge of both
Cagnina and Beiro was Del Pino. He, too, did not remember the precise day or days
of their discharge . But, according to Del Pino, Cagnina was a chronically late
employee whom he had been warning about his tardiness , and whom he finally
"suspended" "for coming too late to work" on the morning of his discharge. Del
Pino testified that on the morning in question Cagnina was supposed to report for
work at 6 a.m.; that he called his wife two or three times beginning at 9 a.m. in an
effort to get him to work; and that he "suspended " 13 Cagnina when he returned from
his lunch about 1 p in. and found him at work in the block plant
As for Beiro, Del Pino's story was that he discharged him for telling him "to
go to hell" when he tried to stop him from stripping more racks than had been
assigned to him. According to Del Pino, he arrived at the plant about 6 a.m and
told Beiro , who was already there, that he would have 23 racks to strip but when
he returned later and saw that Beiro was doing more than the 23 racks, he tried to
stop him, and was then told "to go to hell ." Del Pino further testified that he then
went to the office and had Beiro "suspended " but was prevented from telling him of
this "suspension" directly because Beiro had already left . Instead he sent Beiro
word of his suspension by Cagnina Thus, Del Pino testified:
Q. Did you tell him that he was suspended?
A. When I returned, he was already gone.
Q. Did you ever tell him that he was suspended?
A. No.
Q. Did you ever send word to him or a message to him that he was suspended?
A. With Sam Cagnma.
Q. When did you do this?
A. I can 't remember whether it was the same day or the next day.
The record shows that there were four strippers working in the block plant at
The time of the discharge of Cagnina and Beiro . In addition to the latter, Mario
Machin and a colored employee by the name of Roosevelt Carey worked as strippers
,Cagnina was accustomed to drive to work in Machin's car. It seems that at first
they worked in the hours between midnight and dawn but, according to Del Pino,
after a fire occurred at the Toppinos ' Marina, the insurance company objected to the
night work , and a change of hours was instituted just before the discharge of Cagnina.
The testimony of Cagnina , Beiro, and Machin , as well as Cagnina 's wife differs
radically from that of Del Pino's with respect to the events culminating in the dis-
,charges. Unraveling the testimony of these witnesses presents something of a problem
because they were all rather inarticulate and, although Del Pino could make himself
understood in English , he spoke in such a peculiar mixture of English and Spanish
that his testimony had to be taken , finally, through an interpreter.
The testimony of Cagnina himself was that he had never been taken to task by
Del Pino for coming late to work ; that in the period immediately preceding his
-discharge the hour for reporting to work was changed several times; and that it was
not until just before his discharge that Del Pino told him that, due to the fire at
the Toppino marina and the objections of the insurance company, he would have
to come to work in the future between 1:30 and 2 p . m. Consequently , Cagnina
further testified he arranged the previous day with Machin for the latter to pick
him up at the Overseas Transportation Company, which Machin did at 1 p.m.
After arriving at the block plant, Cagnina started stripping , and he had done five
racks when Del Pino came running to him and told him to stop stripping . According
to Cagnina 's testimony , the following conversation took place between him and Del
Pino:
I said, "What 's wrong?" He said , "I tried to call your house and you were
gone. I'm sorry to have to tell you this, but you're fired ." I said, "Why, Gil-
bert," and he said, " I don't know , Sam." I said, "Well, who fired met" He
said, "I don't know, but Philip and two well dressed men came over and talked
to me and Philip said he doesn 't want to see your face and Mundi's face around
the yard anymore , and would you please do me - a favor and go down to Mundi's
house and tell him not to bother to come in tomorrow morning," and I told
Machin to keep the racks and I will wait for him outside
Cagnina concluded his testimony with respect to his discharge by relating that he
waited until Machin picked him up, and that he then asked Machin to drop him
off at Beiro's house where , upon his arrival , he informed Beiro that "he was fired "
Machin , who was called as a witness not only to implicate Del Pino in the
"Apparently Del Plno employed the verb " suspend" as a synonym for "discharge "
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Toppinos' unfair labor practices but to corroborate Cagnina's account of his dis-
charge, testified that on the day of Cagnina's discharge they were asked to report
for work at 1:30 p in. and that he and Cagnina reported for work together. Machin
further testified that he observed Del Pino talking to Philip Toppino just ,before
Cagnina was discharged by the foreman, and that he overheard the conversation
between Del Pino and Cagnina in which the foreman told the latter that Philip
Toppino had said that "he didn't want to see him or Mundi, that he didn't want
to see their faces in the yard anymore. . Finally , Machin also testified that
after Cagnina had been discharged and had left the block plant, Del Pino came
over to him and engaged him in conversation in the course of which Del Pino re-
marked: "As good as we treated Sam and everything, he went and done a thing
like that with the union . . like he was doing something to ruin the company
and everything, as good as they treated him." Machin testified further that when
about 10 days or 2 weeks after Cagnina's discharge, he went to talk to Paul Toppino
about being paid at a higher rate for doing some special separation blocks, and
he remarked to Paul Toppino after this matter had been straightened out, "Too
bad what happened to Sam," Paul Toppino observed : "Sam didn 't use his head, how
about you." Machin exclaimed : "What do you mean?" and Paul Toppino asked
him: "You haven't done something with the union, too, have you?" to which Machin
replied: "No, not me." However, Philip Toppino denied that he had ever instructed
Del Pino to discharge Cagnina or Beiro, and Paul Toppino denied that he had
remarked to Machin that it was too bad about Sam not using his head.
Cagnina's wife testified that she did have two telephone conversations with
Del Pino during the morning of her husband 's discharge but her account of the
substance of these conversations differs considerably from Del Pino 's. She testified
that in the first conversation with Del Pino that occurred about 10 a.m. Del Pino
merely asked whether Sam would be coming in to work that day, and she told him
that he would ,be getting off at the Overseas Transportation Company in time to
report for work at the block plant. In the second of the telephone conversations
with Del Pino that occurred after Cagnina was already on his way to the block
plant, Cagnina 's wife testified , Del Pino was greatly excited , and attempted to stop
Cagnina from coming to the plant at all by telling her that "they" did not want
to see Cagnina's face in the yard any more. Cagnina's wife specifically denied
that Del Pino had ever complained about her husband's tardiness. She also denied
that in one of the telephone conversations with Del Pino she had told the latter,
as he had testified, that Cagnina was downtown in Key West without money for
transportation to the plant.
Beiro's testimony with respect to his own discharge was that on the day of his
discharge, he came to work even before the watchman, and that he had stripped
30 racks and started to do 5 more when Del Pino arrived-it was then 6 o'clock
in the morning-and told him: "Don 't start on these five . Don't do no more:"
Beiro further testified that when Del Pino stopped him from further stripping he
did not tell him "to go to hell" or say anything else to him but simply changed his
clothes and departed. Beiro could not remember the exact day that Cagnina came
and told him of his discharge but he did remember that it was in the evening, and
that he was watching television at home when Cagnina arrived. According to
Beiro, Cagnina came into the room and , laughing, said : "We are fired ." Beiro
asked: "What do you mean?" Cagnina replied: "They don't want us over there
anymore. . . We are the instigators for the union." Thereupon Beiro remarked:
"God damn Gilbert." Beiro did not go back to the plant again except to'get his
check, which he did on Friday of that week.
The discharges of Cagnina and Beiro were climaxed by a highly emotional family
scene which was staged by Edna Toppino, the wife of Paul Toppino, a few weeks
after these two employees had been discharged. It will be recalled that Cagnina
and Beiro were Del Pino's nephews by marriage and that Edna Toppino, Del Pino's
daughter, was a first cousin of Cagnina (as well as a first cousin of Beiro's wife).
Several weeks after the discharge of Cagnina and Beiro, she picked Cagnina up at
his home in the late afternoon and, without telling him where she was going, took
him to Beiro's home Cagnina and Beiro, as well as Edna Toppino herself, testified
with respect to the latter's visit, and, while their accounts differ somewhat it is fair
to summarize what happened by saying that Edna Toppino upbraided Cagnina and
Beiro during her visit for their disloyalty to the family in promoting the Union.
According to Cagnina, they arrived at the Beiro home while the family was
eating, and Edna Toppino was "very upset and crying and carrying on," and demand-
ing to know how he could have done what he did, being a member' of the family:
According to Beiro, Edna Toppino, when she came to his house, was "all excited.
crying, raising a little hell , calling me names, calling me a son of a bitch," and
CHARLEY TOPPINO AND SONS, INC. 1267
asking why "I did a thing like that." She also accused him and Cagnina of being
the instigators of the Union who were supposed to get $500 apiece for starting it
and be made agents of the Union in Key West; stated that "they" knew all along
who had started the union in Key West, and that she had wanted to talk to them
but Paul Toppino would not permit her to do so until after the Union's letter ar-
rived; and finally told him that "they" were going to make sure that he would
never get another job in Key West.
According to Edna Toppino, her visit to Beiro's home was prompted by a tele-
phone call from his mother-in-law who had told her that Norma, Beiro's wife, was
upset and crying. She decided to take Norma one of her pills but as she passed
Cagnina's house the thought occurred to her, "Why shouldn't he see what this has
done to my family." When she arrived at the Beiro's home, she saw that Norma's
eyes were red and that she had been crying, so she started to cry herself, and asked
"Sammy and Ray why, what had they done this for." The "this," she explained,
was that Cagnina and Beiro had filed unfair labor practice charges-a step with
which she had been made acquainted by her husband, Paul, only the day before.
Edna Toppino conceded that during the visit she was "very upset with these two
boys," but that most of her conversation had been directed at Sammy "because
he is the one I love most and he is the one who hurt me the most." Indeed, she
was very emotional in testifying about "Sammy " "I love him like a brother," she
declared. "I always have since we were children. He has lived with us off and
on since we were eight, nine. He was always at my house. After he was 14, he
came and lived with us. If he liked Pepperoni I gave him that...." One of the
remarks she made to Sammy in the course of her discourse was: "My mother and
father (namely, Gilbert Del Pino) have been so good to you at the block plant
I know for a fact that daddy has said, `Go rest for a while in the back, I'll go drive
that lift.' " Another remark was: "I said I would never sign anything that I thought
would have hurt their children and I expected them to think the same of mine to
want the very best for them." However, she denied that she had threatened that
the Toppinos would see to it that Cagnina and Beiro would never get a job in
Key West.
The testimony of Cagnina with respect to his discharge is extremely puzzling in
one respect. If his discharge preceded that of Beiro, as the weekly payroll sum-
maries seem to indicate, and Beiro worked for at least 2 days after the discharge of
Cagnma, the latter could not have gone to the former's house on the date of his
discharge to tell Beiro either that the Toppinos did not want to see their faces in
the yard anymore, or to tell Beiro simply that he was fired. However, there is the
positive testimony of Del Pino himself that he sent word of his discharge to Beiro
by none other than Cagnina. In this state of the record, the only way of reconciling
the testimony of the witnesses with the Respondent's payroll summaries is to as-
sume that the notation of the reason for Cagnina's discharge on his payroll summary
was erroneously put on what was not in fact his last payroll summary, and that
Cagnina in fact worked at least I day in the following week, namely, on September 6,
the day that Beiro was discharged. Although Del Pino testified that he sent Cagnina
to inform Beiro of his discharge either the same day or the following day, it must
have been the same day. Since Beiro worked in the early morning of the last day
of his employment, and Cagnina worked in the late afternoon of the last day of
his employment, it is natural to assume that the latter carried the bad news to the
former on the same day.14
The anomalous aspect of the case of Beiro is that, although the discrimination
preceding his discharge is alleged to have been that he was given only 23 racks to
strip on the day of his discharge when normally he would have been given 30 racks
to strip, Beiro himself testified that, when Del Pino stopped him from stripping any
more racks, he had done 30 racks, and was starting on 5 more. However, when
the discrepancy between his testimony and what his payroll summary showed was
called to his attention he conceded, although grudgingly, that he must have been
mistaken, and there is no good reason for not accepting in his case what the payroll
record of the Respondent actually shows.
Apart from the direct evidence that the discharges of Cagnina and Beiro were
discriminatory in intent and execution, the circumstantial evidence strongly supports
the same conclusion. Moreover, it must be assumed that if the evidence establishes
discrimination in the case of the one, it must also have existed in the case of the
14 It is interesting that it is alleged in the complaint that Cagnina and Belo were
both discharged on the same day , although that day is alleged to be September 5
66,,2353-63-vol 138-81
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other. Even counsel for the Respondent concedes that the cases of Cagnina and
Beiro are so closely related that they must necessarily be considered together.
Now, the first question that arises in connection with the discharge of Cagnina
is whether it was truly important for him to report for work at 6 o'clock in the
morning, as Del Pino claimed. It must be remembered that the strippers were not
engaged in a manufacturing operation, or worked on an assembly line, in connec-
tion with which mutual cooperation between employees would be important. The
strippers had in fact been working in the predawn hours when no other operations
were proceeding in the plant and appear to have reported for work pretty much
as suited their convenience. Of course, volume is always a factor in production,
and the absence of a stripper on a particular day would make a difference in the
number of blocks stockpiled. This was doubtless what Del Pino had in mind when
he testified at one point that at the time of Cagnina's discharge the blocks were
needed for a Government contract. But the absence of one stripper during a
particular day would not affect the stockpile of blocks very materially, and it would
certainly not be affected at all if the strippers worked from 6 to 10 a.m. rather
than from 1:30 to 5:30 p.m. As a matter of fact, a passing remark of Philip Top-
pino, in the course of his testimony, indicates that the Toppino yard was jammed
with blocks with which they did not quite know what to do. Thus, he exclaimed:
"I mean it doesn't look very good to have 500,000 blocks in the yard and have no
place to put them."
As for the time that Del Pino actually instructed Cagnina and Machin to report
for work, I credit their testimony rather than Del Pino's. It is true, to be sure,
that on the day of his discharge Beiro reported for work before 6 a.m. But it
does not necessarily follow that, therefore, Cagnina and Machin were instructed to
report at 6 a.m., especially since the strippers worked at odd and irregular hours,
and independently of each other. To explain the change in working hours from
predawn to daylight hours, Del Pino testified that it was the result of objections from
the Respondent's insurance company, due to a fire that had occurred at the marina.
The connection between a fire at the marina and stripping at the block plant was
not made clear, however, and it certainly cannot be said to be self-evident. But,
even if it were, it would really not explain anything. It surely could make no dif-
ference to the insurance company whether the strippers worked from 6 to 10 a.m.
rather than from 1:30 to 5:30 p.m. Indeed, if the insurance company's objection
was based upon the dangers of working at night time, it would prefer the bright
daylight of the afternoon to the crepuscular hours following the dawn. Actually,
the insurance company's objections could not have been very serious, in view of
the testimony of Machin that after Cagnina's discharge, he used to go to work at
times that varied from 8:30 at night to 1 o'clock in the morning! "It didn't," tes-
tified Machin, "make any difference what time I went in." Moreover, it is a fact
that Machin was not discharged at all, although he and Cagnina always drove to
work together, and, therefore, reported for work at the same time. On the day of
Cagnina's discharge, he and Machin came into work together but nobody, apparently,
said so much as a single harsh word to the latter.
As for the discharge of Beiro, Del Pino's story that he discharged him for exceed-
ing his assigned quota of racks was contradicted by himself! Del Pino gave wholly
inconsistent testimony with respect to the method of assigning the work to the
strippers. On direct examination, Del Pino testified that, before they started to work,
he told each stripper how many racks he would have to strip that day. But, on
cross-examination, he testified, as follows:
Q. Now, when did you give these employees (the strippers) instructions as
to'how many racks to do?
A. They would look at it and they would know how to distribute it among
themselves.
Q. Well, now, how would they know?
A. They used to count them.
If the strippers distributed the work among themselves, it is hard to understand
Del Pino's sudden vigilance to foil the grasping Beiro. But, assuming that Del
Pino's vigilance was called for, did Beiro exceed his quota, which normally, the
evidence shows was 30 racks? Del Pino produced a record which showed that on
September 6, that day before Beiro's discharge, the block machine produced 117
racks. These would be the blocks that would be stripped the following day (the
blocks took ,8 hours to dry). As there were four strippers working on September 6,
each stripper would be entitled to strip 291/4 racks if the work were equally dis-
tributed. Yet Del Pino stopped Beiro after he had done only 23 racks. Clearly,
this action was discriminatory. This discrimination becomes even more apparent
when it is considered that Machin was a much slower stripper than Beiro, for he
CHARLEY TOPPINO AND SONS, INC. 1269
testified that on the day of Cagnina's discharge, which must have been also the day
of Beiro's discharge , he, Machin , stripped only 15 racks . This would leave 34 racks
each for the 3 other strippers . Moreover , Beiro testified without contradiction by
Del Pino that when he had been taken off the ready-mix truck Del Pino had assurred
him: "Don 't worry, Mundi. I'll give you enough racks to make a good salary."
While I do not credit Del Pino's testimony that in preventing Beiro from doing
more than the 23 racks of blocks , he was merely seeing to it that the work was
equally distributed , I do credit his testimony that Beiro told him "to go to hell"
when he stopped him. At this point in his testimony , Del Pino swore not only by
the oath he had taken when he took the stand but also swore-with fervor-by his
mother . I should not regard this, perhaps, as absolutely conclusive but it seems
to me that Beiro's habits of speech were so rough that curse words came irresistibly
to his lips. He indulged in "damns" even while he was on the stand. I do not,
therefore , credit his denial . He either attempted to conceal the truth to save
himself from embarrassment , or, as seems more likely, he could not remember a
form of expression that was such a frequent component of his everyday speech.
However, I am convinced that Beiro 's rudeness to Del Pino was a reaction to what
he regarded and to what actually was the latter 's unfair and discriminatory conduct,
and even that Del Pino's reaction to Beiro's rudeness would not have been to dis-
charge the latter if it had not been for his actions in helping the Union . Indeed, the
evidence shows that in discharging Beiro, as well as Cagnina , Del Pino was simply
acting on orders from the Toppinos.
If there could be said to be any doubt as to whether the discharges of Cagnina
and Beiro were motivated by their union activity , it must be regarded as dispelled
by the existence of the family relationship between Del Pino and these two em-
ployees and between them and Edna Toppino . The closeness of these relationships
makes it extremely improbable that Del Pino would have discharged Cagnina for
such a reason as reporting late for work , or that he would have prevented Beiro
from stripping a few extra racks of blocks.
Apart from its importance to an understanding of the discharges of Cagnina and
Beiro, Edna Toppino's visit was only another example of the interference of the
Toppinos with the organizational rights of their employees . I find it difficult to
credit Edna Toppino's account of her visit to the Beiro home. The feelings of the
Toppinos about the union were evidently so strong that Paul Toppino could hardly
have refrained from discussing the subject with his wife. Moreover , in her own
testimony concerning the visit Edna Toppino made it manifest that her interest in
and concern about the union situation was hardly any the less vivid than that of
her husband . When she finally went on the visit , it was undoubtedly with his
knowledge and consent . If the sole purpose of her visit was simply to bring
Beiro's wife a pill, she would hardly have picked up Cagnina on the way. Like all
the other Toppinos , she related her knowledge of the union activities of Cagnina
and Beiro to the receipt of the union letter and the filing of unfair labor practice
charges by them . Actually, it was not Cagnina and Beiro who filed these charges
but the Union itself, and they were not filed until September 28, 1961, which must
have been after the date of her visit to Beiro's home. However, I credit Edna
Toppino's denial that she threatened that the Toppinos would see to it that Cagnina
and Beiro would never get a job in Key West . She undoubtedly said something
about this , as Beiro testified , and she herself admitted , but she may have merely
expressed a fear that this might happen . In the circumstances , however, it was
natural for Cagnina and Beiro to have understood this as a threat
b. The case of Bertham Murphy
Bertham Murphy has already been mentioned as the employee who, when he,
was interrogated by George Toppino about his union activities and those of other
employees , declined to reveal their names, and also as the short-lived assistant to
Carmona in the batch plant who, allegedly, was transferred to the municipal golf
course job to operate a payhauler because of Carmona's objections to working with.
him
Murphy was first employed by the Toppinos about 3 years ago and worked for
about 6 months on a drilling crew, and then for another 6-month period as a
general helper to Edward Toppino on a road crew, after which he had been laid
off. He was then reemployed by the Toppinos in June 1961. He was laid off'
again on September 6, 1961.
Two days before the termination of his employment , he reapplied for work but
was told by Edward Toppino that there would be no work on the golf course that
day. He returned the next day but he was then told by Edward Toppino that they
had nothing for him to do, since the golf course job was in the finishing stage,
and it was suggested to him by Edward Toppino that he contact Powell - Brothers
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Construction Company for a job, but Murphy told Edward Toppino that he had
once worked for Powell but quit, and that he did not wish to return there. This
conversation took place on Wednesday, September 6. On Friday of that same
week, Murphy came to the plant to get his check and was told by Roush, the dis-
patcher, that he had been laid off. Murphy testified that two payhaulers were used
on the golf course job, and that during the period of 2 days that he was trying to
get work there, he saw two payhaulers in operation there.
Edward Toppino, who was the principal witness with respect to Murphy's case,
testified that he told him a week before the golf course job was completed that he
could go back to the ready-mix department but that he subsequently received word
from the ready-mix department that "they did not want him there as he was a sort
of troublemaker there... " 15 Consequently, he had to let Murphy go. Edward
Toppino did not challenge Murphy's testimony that he had seen two payhaulers
working on the golf course job after his layoff but he explained that 2 days after
Murphy's layoff, he had an extra day's work to clean up the golf course job, and
he put on this work a dragline operator who at that time was not busy.
The layoff or discharge of Murphy, occurring at the same time as the discharge
of Cagnina and Beiro, is certainly cause for suspicion but it is not established by
a fair preponderance of the evidence that it was discriminatory. Murphy was not
one of the so-called ringleaders of the union movement. He was, to be sure,
interrogated by George Toppino, and refused to cooperate by revealing the names
of employees who had signed union cards. But, according to Murphy's own testi-
mony, he had also informed George Toppino that despite the fact that he had
signed a union card, he did not think that he would vote for the union. It would,
therefore, have been self-defeating for the Toppinos to get rid of a potential sup-
porter. There is also no doubt that the golf course job actually was nearing com-
pletion when Murphy was laid off, and there is nothing to call into question Edward
Toppino's explanation of the presence of the second payhauler after Murphy's layoff.
The only basis upon which it could be concluded that the layoff of Murphy was
discriminatory would be the falsity of the explanation for not restoring him to his
prior job as a helper to Carmona. The falsity of an explanation for a discharge
is strong evidence that it was discriminatory. But here the false story seems to have
been invented long after the layoff of Murphy in order to magnify the importance
of Carmona, and bolster the contention of the Toppinos that he played an impor-
tant role in the selection and retention of employees. It is apparent from Carmona's
own testimony that he had no need for the services of Murphy as a helper at the
time he was transferred to the golf course job. Therefore, there could have been
no need to rehire Murphy for the batch plant. Doubtless it would be poetic justice
to hold the Toppinos responsible for their own fiction.' But, since the fiction was
not a motivating cause of their conduct, but a subsequent inspiration, a finding
that .the discharge of Murphy was motivated by his union affiliation is not justified.
c. The case of Leroy Jordan
Leroy Jordan was one of two forklift operators in the block plant. He operated
the hydraulic forklift that had six forks and that was used to move the blocks and
to unload the trucks. At the time of his discharge on September 9, 1961, he had
been employed by the Respondent for about 6 years, although it is not clear that
he had worked as a forklift operator in the block plant during all these years.
Jordan has already been mentioned as the employee who attempted to get the
help of Edward Toppino in trading in his automobile but who was unsuccessful
in this because Edward Toppino was under the impression that the block plant was
a hotbed of unionism Jordan was also the employee who had been accused by
Del Pino of having signed a union card. Although the accusation was denied, it
was well founded, Jordan having signed a union card at the solicitation of Cagnina.
Considering that Jordan was an old employee, the circumstances of his discharge
seem most unusual. He customarily worked from 6 a.m. to 6.30 p.m On the
day of his discharge, which was Tuesday, September 19, he worked all day and went
home. About 10 p.m. of the same day, Willie Hernandez, the nephew of Del Pino,
acting as the latter's emissary, brought Jordan his paycheck and told Jordan merely
that his uncle had asked him to bring the check. Jordan asked Hernandez what had
happened, and the latter said that he did not know. So, at 6 o'clock the following
morning, Jordan went to the plant to see Del Pino. Jordan testified about his inter-
view with Del Pino on the occasion as follows:
I wanted to know why I was paid off like that that time of night and he claimed
he didn't know anything about it. I asked him what he was doing with my
25 Edward Toppino identified the "they" as either Paul Toppino or Manuel Carmona.
CHARLEY TOPPINO AND SONS, INC. 1271
check that time of night and he said someone brought it to him from the office
and then I left. So, I said, "Jesus Christ, there wasn't anybody in the office
when I was there."
Having received no adequate explanation from Del Pino, Jordan waited a long time
to talk to Paul Toppino 16 but the latter never appeared, and Jordan went home.
Thus, Jordan, like Beiro, was also subjected to discharge by emissary.
At the hearing, however, Del Pino was quite voluble about the "suspension" of
Jordan, and took entire responsibility for this action. At various points in his
testimony Del Pino thus formulated the reason for Jordan's discharge:
Because I found a operator for the lift better than him.
When I found a new operator.
For not complying with his work.
For leaving work when he was supposed to have been there while I went
out to lunch and for coming after the time that he was supposed to have been
there.
Because he was no good as a lift operator.
Jordan himself had testified that Del Pino thought very well of him, and had in
fact complimented him on his work only a week before his discharge. Pressed for
details, therefore, to support his contention that Jordan was no good, Del Pino
related that he had asked Paul Toppino to get rid of Jordan shortly after he was
put on the forklift both because of his tbad personal habits and his inefficiency as a
forklift operator. Thus, he testified:
I told Paul Toppino to suspend that man because he was no-good,- because
he broke too many blocks. Paul told me to give him another opportunity. I
gave it to him, but every day he was worse, because on Sunday he got drunk
and on Monday he was no good for anything.17
In the course of his testimony, Del Pino supplied considerable chapter and verse
with respect to Jordan's personal derelictions, and it is perfectly true that on several
occasions Jordan had been found guilty either of drunk and disorderly conduct, or
of driving under the influence of intoxicating liquor. But there is no evidence what-
soever that Jordan was ever drunk or disorderly on the job, and his alleged tardiness
remained wholly undocumented. Moreover, just a few weeks before his discharge,
Del Pino, as he himself admitted, had lent $20 of his own money to Jordan so that
he could pay a fine, and the Toppinos on another occasion had made advances to
Jordan from his wages, so that he could pay his fine, and get out of jail and return
to work. Furthermore, again to help him get to work, the Toppinos had sold him
one of their old cars on the installment plan, taking the installments out of his
wages. Generally speaking, employers do not help employees in these ways, unless
they are very much appreciated. The Toppinos, therefore, would hardly have put
themselves out to assist Jordan if actually he were no good as an employee. On the
contrary, he seems to have been very much wanted.
The most significant aspect of Jordan's case is, perhaps, that even Del Pino did
not claim that Jordan was drunk, or disorderly, or tardy, or inefficient just before,
or even shortly before, his discharge. Thus, there was nothing that could be said
to have triggered his discharge immediately. He was discharged, if Del Pino is to
be believed, entirely because of past derelictions i This is incredible.
Del Pino, to be sure, contended also, apparently, that he fired Jordan when he
found a better operator. In the end, it turned out, however, that the better operator
was none other than Willie Hernandez who had been there all the time. Hernandez'
forklift was then taken over by one Joe Catonia. The two forklifts were, however,
of different types.
So unbelievable was Del Pino's attempted explanation of Jordan's discharge that
counsel for the Respondent was driven to advance a wholly different theory than
his own witness! This was that Jordan was not discharged but laid off due to a
cutback in production, and that in selecting him as the employee to be laid off his
past derelictions were taken into consideration. The trouble with this theory is that
it is wholly inconsistent with Del Pino's testimony. Moreover, there is no good
reason even for believing that there was any decline in production in the block plant.
Less. than 2 weeks before the discharge of Jordan, Cagnina had been discharged,
10 From an affidavit of Jordan' s it does appear that Del Pino was communicative only
to the extent of telling Jordan that he had been called into the office by Paul Toppino
and told to give Jordan his check.
17 This is the same Del Pino who claimed the unrestricted right to hire and fire em-
ployees. Yet here he is appealing to Paul Toppino to get rid of Jordan ! It seems also
that before Jordan was put on the forklift , it was operated by Del Pino himself !
'7272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegedly, for coming late to work , and thus reducing production . None other than
Del Pino himself, in the course of his testimony concerning Jordan's discharge , stated
that while Jordan was employed at the block plant the employees there were working
6 days a week and 12 hours a day. Finally , whatever the volume of production,
it did not affect the number of forklift operators who were needed . There were two
forklift operators before Jordan was discharged . Two forkhft operators continued
to be employed after Jordan was discharged
Since there is no other possible explanation , I find that the real reason for Jordan's
discharge was his support of the Union.
d. The case of Carmona
It has already been related how on September 21, 1961 , Carmona was interrogated
concerning his union activities , and how after an affidavit supposed to establish his
supervisory status had been extracted from him, he was discharged by Philip Toppino.
The ground of his discharge was that he had participated in the union activities of
the rank-and-file employees despite the fact that he was a foreman.
In discharging Carmona, Philip Toppino read his supposed foreman a lecture that
indicated how revolting he found his conduct to be. Thus, as Philip Toppino
testified:
I told him that I was very, very disappointed in him and, in fact, that I
wasn't particularly hurt with the fact so much that he had done it, but the fact
that he 'had allowed it to go on without telling us. In other words, my feelings
were just hurt and I was just disgusted with the man and at the end of the con-
versation I told him that I just couldn ' t even sign his check without making me
sick to my stomach and we discharged him and I told him that it was quits.
[Emphasis supplied.]
Again, according to Philip Toppino 's own testimony , Carmona did not take his
reproof in silence. As Philip Toppino testified:
Q. Mr. Carmona said , "I'm not a rat?"
A. That' s right.
Q. To what was that in response?
A. In response to my question asking him why, as a supervisor , he didn't
come in and say something to us that someone was unhappy or felt that they
needed someone else to represent them. [ Emphasis supplied.]
It is plain from Philip Toppino 's own testimony , therefore , that he regarded the
essence of Carmona's disloyalty to be not so much that as a foreman he had partici-
pated in the union activity but that he had allowed it to proceed without telling him
that there were employees who were unhappy and felt that they needed outside
representation.
As it is admitted that Carmona was discharged because of his participation in the
union activities of the employees , and, as in my view, the Respondent did not suc-
ceed in establishing that he possessed supervisory status, it follows that his discharge
on September 21, 1961, was dicriminatory.
In view of this conclusion , I need not consider whether the Respondent did not
interfere with the organizational rights of its employees in violation of Section
8(a)(1) of the Act by discharging Carmona partly because he had failed to report
on the unhappiness of the employees and their interest in union representation. In
the consideration of this question , the alleged status of Carmona as a supervisory
employee would be immaterial . It is, moreover , not clear from the record that the
parties intended to litigate this question . In the charge originally filed in this pro-
ceeding , the theory was advanced that Carmona was discharged because of his
failure to cooperate with the Respondent in the commission of unfair labor practices.
This theory was abandoned , however, in the amended charges, and in the complaint
finally issued in the proceeding.
e. The case of Charles Sobausis
The complaint charges that Charles Sobausis was discriminatorily discharged on
September 26, 1961 . Sobausis was hired as a ready-mix driver but also drove a
yard truck . On August 17, 1961, he signed a union authorization card but he
explicitly testified that he engaged in no other form of union activity, and he was not
himself interrogated concerning his activity . Any inference that the Respondent had
knowledge of his union affiliation would rest only on an inference that his union card
was among those shown to Willie Hernandez . Sobausis himself told James
CHARLEY TOPPINO AND SONS, INC. 1273
Knowland, the payloader operator, that he had signed a union card but there is
nothing to shown that Knowland told anyone else about it. Sobausis was laid off
on September 22, 1961, and, Roush, the dispatcher, in giving Sobausis his check,
told him that he was being laid off for lack of work. Sobausis' payroll summary for
this week carries the notation "Reduction in force."
There is nothing to show that Sobausis' layoff on September 22, 1961, was moti-
vated by his union affiliation. Indeed, Sobausis was reemployed by the Respondent
on December 6, 1961, and was not discharged until January 9, 1962. His discharge
at this time was occasioned by his conduct while he was instructing a new ready-mix
driver in driving a ready-mix truck. The truck, which had two rear axles, on which
eight tires were mounted, developed two flats on the same side in the rear. The
Respondent contends that Sobausis was discharged not so much for failing to do
anything about the flats but because of his lackadaisical attitude when he was ques-
tioned about it. I consider the evidence inconclusive on this question. Sobausis
himself did not have a very clear recollection of what he said in justification of his
conduct at the time of his discharge. Apparently, the Respondent did not object to
the litigation of the issue of Sobausis' discharge on January 9, 1962, despite the
failure of the complaint to allege it. In any event, I do not find his discharge on
January 9, 1962, to have been discriminatory.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of the Respondent set forth in section III, above, occurring
in connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
The scope of the Respondent's unfair labor practices in the present case seem
sufficiently extensive to justify a broad form of cease-and-desist order, and I shall
recommend an order designed not only to prevent the repetition of the specific unfair
labor practices in which the Respondent has engaged but also to effectuate all the
guarantees of section 7 of the Act.
So far as affirmative relief is concerned, I shall recommend that the Respondent
offer Sam Cagnina, Raymond Beiro, Manuel Carmona, and Leroy Jordan immediate
and full reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights or privileges, dismissing, if necessary, any
employees who may have been hired to replace them. I shall also recommend ,that
each of them be made whole for any loss of pay he may have suffered by reason of
the discrimination against him by payment to him of a sum of money equal to the
amount which he normally would have earned as wages from the date of his dis-
charge to the date of the Respondent's offer of reinstatement, less his net earnings
during said period, said backpay to be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289.
I see no adequate reason for withholding the usual remedy of reinstatement and
backpay in ,the case of Beiro because of his rudeness to Del Pino, since it was pro-
voked by the latter's unfair labor practices. The record shows, moreover, that some
of the Toppinos' habits of speech were no less deplorable.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By interfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has violated Section
8 (a) (1) of the Act.
4. By discriminating with respect to the hire and tenure of employment of Sam
Cagnina, Raymond Beiro, Manuel Carmona, and Leroy Jordan, the Respondent has
violated Section 8(a) (3) and (1) of the Act.
5. The Respondent has not discriminated with respect to the hire and tenure of
employment of Bertham Murphy and Charles Sobausis in violation of Section
8(a) (3) and (1) of the Act.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Charley Top-
pino and Sons, Inc., Stock Island, Florida, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Freight Drivers, Warehousemen and Helpers
Local Union No. 390, an affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza-
tion of its employees, by discharging employees or by discriminating in any other
manner in regard to hire, tenure, or any other term or condition of their employment.
(b) Interrogating its employees concerning their membership in, or their ac-
tivities on behalf of, Freight Drivers, Warehousemen and Helpers Local Union
No. 390, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization, in a manner
constituting interference, restraint, or coercion in violation of Section 8(a)(1) of
the Act.
(c) Soliciting or attempting to induce employees to refrain from union affiliation
by promises of economic benefits; or threatening employees with loss of employ-
ment, a shutdown or removal of the plant or sale of company equipment, or other
reprisals if they affiliate with, or refuse to withdraw from, the Union, or if a
union organizes the plant.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action in order to effectuate the policies of
the Act:
(a) Offer to Sam Cagnina, Raymond Beiro, Manuel Carmona, and Leroy Jordan
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges, and make
them whole for any loss of pay they may have suffered by reason of the Respond-
ent's discrimination against them in the manner and to the extent set forth in the
section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of the amount of backpay due under the terms of this Recommended
Order.
(c) Post at its plant at Stock Island, Florida, copies of the attached notice marked
"Appendix." 18 Copies of said notice, to be furnished by the Regional Director
for the Twelfth Region, shall, after being duly signed by Respondent's representa-
tive, be posted by Respondent immediately upon receipt thereof, and be maintained
for 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 such notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Twelfth Region, in writing, within 20
days from the receipt of this Intermediate Renort and Recommended Order, what
steps Respondent has taken to comply herewith.19
-in the event that this Recommended Order be adopted by the Board the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
191n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their membership in,
or their activities on behalf of, Freight Drivers, Warehousemen and Helpers
NOPCO CHEMICAL COMPANY 1275
Local Union No. 390, an affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other labor or-
ganization, in a manner constituting interference, restraint, or coercion in viola-
tion of Section 8 (a)( I).
WE WILL NOT solicit or attempt to induce our employees to refrain from
union affiliation by promises of economic benefit; or threaten our employees
with loss of employment, shutdown, or removal of the plant or sale of company
equipment, or other reprisals, if they affiliate with, or refuse to withdraw from,
the Union or if a union organizes the plant.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist the said Freight Drivers, Warehousemen and Helpers Local Union No.
390, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection or to refrain from any and all such activities.
WE WILL offer full and immediate reinstatement in writing to Sam Cagnina,
Raymond Beiro, Jr., Manuel Carmona, and Leroy Jordan, to their former
positions, if existing, or otherwise to substantially equal positions, without pre-
judice to their seniority or other rights and privileges, and make them whole
for any loss of pay suffered as a result of the discrimination against them.
All our employees are free to become or remain or to refrain from becoming or
remaining members of Freight Drivers, Warehousemen and Helpers Local Union
No. 390, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization.
CHARLEY TOPPING AND SONS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(PHILIP ToPPINO, President)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Twelfth Regional Office,
112 East Cass Street, Tampa 2, Florida, Telephone Number, 223-4623, if they
have any questions concerning this notice or compliance with its provisions.
Nopco Chemical Company and International Union of Electrical,
Radio and Machine Workers, AFL-CIO. Case No. 10-CA-4980.
September 28, 1962
DECISION AND ORDER
On July 25, 1962, Trial Examiner Samuel M. Singer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices as alleged in the
complaint. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
138 NLRB No. 141.