Chromium Plating and Polishing Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1973

203 N.L.R.B. 345 (N.L.R.B. 1973)

CHROMIUM PLATING & POLISHING CORP.
Chromium Plating and Polishing Corp . and Frank Vas-
ques, George Cipolla , and Nathanial Brown
Amalgamated Production and Journeymen's Workers
Union of America , Local 9 and District 5 Affiliated
Unions (Chromium Plating and Polishing Corp.) and
Frank Vasquez , George Cipolla, and Nathaniel
Brown . Cases 29-CA-2870, 29-CA-2870-2, 29-
CA-2870-3, 29-CB-1207, 29-CB-1207-2, and 29-
CB- 1207-3.
April 30, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY,
AND PENELLO
On January 15, 1973, Administrative Law Judge
Arnold Ordman issued the attached Decision in this
proceeding. Thereafter, Respondent Company filed
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amenddd, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondents, Chromium Plating and
Polishing Corp., Brooklyn, New York, its officers,
agents, successors, and assigns, and Amalgamated
Production and Journeymen's Workers Union of
America, Local 9 and District 5 Affiliated Unions, its
officers, agents, and representatives, shall take the ac-
tion set forth in the said recommended Order.
i The Respondent Company has excepted to certain credibility findings
made by the Administrative Law Judge It is the Board's established policy
not to overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) We have carefully examined
the record and find no basis for reversing his findings
DECISION
345
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: An original
and two subsequent unfair labor practice charges were filed
against Respondent Company on May 9, 11, and 12, 1972,
respectively. On the same dates an original and two later
charges were filed against Respondent Union. Pursuant to
these charges the Regional Director for Region 29 of the
National Labor Relations Board, on July 28, 1972, consoli-
dated the cases and issued a single complaint directed both
against Respondent Company and Respondent Union.
As to Respondent Company, the complaint alleges, in
substance, that Respondent Company discharged employ-
ees Frank Vasquez, Nathaniel Brown, and Jesus Rivera on
May 8, 1972; that seven of their fellow employees engaged
in an unfair labor practice strike on May 10, 1972, in protest
against these discharges; and that Respondent discharged
these seven employees on the same day, May 10.' The com-
plaint further alleges that by the discharges of May 8 and
May 10 Respondent Company violated Section 8(a)(1), (2),
and (3) of the National Labor Relations Act, as amended.
As to Respondent Union, the complaint alleges , in sub-
stance, that Respondent Union, by its agents, Harry Pappa-
lardo and Miguel Martinez, threatened various employees
on May 8, 1972, with loss of employment for supporting a
union-deauthorization petition and, on May 10, 1972,
threatened various employees with loss of employment for
engaging in a strike which began on that day, thereby violat-
ing Section 8(b)(1)(A) of the Act.
Respondent Company and Respondent Union, in their
respective answers to the consolidated complaint, denied
that they had engaged in the alleged unfair labor prac-
tices.2
A hearing on the controverted issues was conducted be-
fore me in Brooklyn, New York, on October 11 and 12,
1972.3 Following the close of the hearing, briefs were filed
by General Counsel and by Respondent Company. Upon
the entire record,4 upon my observation of the witnesses,
i The names of these seven employees are George Cipolla, Ramon Lugo,
Willie McGuiness, Jesse James Hardy, Lucius Ellison, Rufus Gardner, and
Felix Nieves
2 One day before the hearing opened, counsel for the Respondent Union,
by telegram , withdrew its appearance and answer However, as shown in the
caption , Harry Pappalardo , at the hearing , entered his appearance for Re-
spondent Union His motion to reinstate the answer previously filed in Re-
spondent Union's behalf was granted
3 At the outset of the hearing , General Counsel moved to withdraw those
portions of the complaint relating to the alleged discriminatory discharge of
Vasquez, Brown, and Rivera on the ground that, notwithstanding subpenas
served on them , the three named individuals had not appeared at the hearing
The motion was granted Later that same day Vasquez did appear at the
hearing and explained that his failure to appear earlier was due to his appre-
hension that his absence from his new job might jeopardize his employment,
but that his new employer had now granted him permission to appear Under
-these circumstances, and perceiving no prejudice to Respondents inasmuch
as the motion to withdraw the allegations relating to Vasquez had been
granted only a few hours earlier, General Counsel's motion to reinstate the
allegations relating to Vasquez was granted over the objection of counsel for
Respoi.dent Company The ruling granting the motion to withdraw as to
Brown and Rivera remained undisturbed.
4 The pages of the transcript were inadvertently misnumbered in that the
Continued
203 NLRB No. 57
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and upon due consideration of the briefs , I make the follow-
ing:
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent Company, a New York corporation with its
principal office and place of business in Brooklyn, New
York, is engaged in the business of polishing and plating
metal furniture , fixtures , and related products . During the
year preceding the issuance of the complaint herein , a repre-
sentative year in Respondent Company's operations, Re-
spondent Company purchased and received goods and
materials , valued in excess of $50 ,000, which were shipped
to its Brooklyn plant from States other than New York. It
is undisputed , and I find, that Respondent Company is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
It is also undisputed , and I find , that Respondent Union
is a labor organization within the meaning of Section 2(5)
of the Act.
Jurisdiction is properly asserted herein.
II THE UNFAIR LABOR PRACTICES
A. Background
The instant controversy is a continuation of a labor dis-
pute which was the subject matter of a recent Board pro-
ceeding against Respondent Company identified on the
Board's docket as Case 29-CA-2646. 5 That proceeding re-
lated to the grant of recognition to, and the execution of a
collective-bargaining agreement with, the labor organiza-
tion which is the Respondent Union in the instant case.
Following a hearing which closed on May 4, 1972, the Ad-
ministrative Law Judge, Morton D. Friedman , found in
substance that Respondent Company had unlawfully assist-
ed the Union and had discriminated against its employees
by granting recognition to the Union on November 8, 1971,
and by executing and enforcing a collective -bargaining
agreement on December 6, 1971, which agreement con-
tained , inter alia , union-security and dues-checkoff provi-
sions, all at a time when the Union did not represent an
uncoerced majority of Respondent Company's employees.
Based upon these unfair labor practice findings , Adminis-
trative Law Judge Friedman , in his decision dated August
25, 1972, directed Respondent, inter alia , to withhold recog-
nition from the Union and to cease giving effect to the
collective-bargaining agreement it had executed with the
Union. No exceptions were filed, and on October 2, 1972,
the National Labor Relations Board adopted the unfair
labor practice findings and conclusions of the Administra-
tive Law Judge and directed that his remedial order be
complied with.
pages following p 378 are designated as pp 279 to 292 That numbering is
hereby corrected and the pages will be numbered 379-392
5 The Decision of the Administrative Law Judge and the Board 's Order
adopting that Decision are included in the record herein and are identified
as G C Exh. 2A and B
The events which are the subject matter of the instant
case occurred while the foregoing proceeding was pending
and arose in substantial part from a continuing resistance
by certain of Respondent Company's employees to the rec-
ognition which had been extended to Respondent Union, to
the collective-bargaining agreement which had been execu-
ted on December 6, 1971, and particularly to the union-
security and dues-checkoff provisions which Respondent
Company, according to the decision in Case 29-CA-2646,
was found to have unlawfully enforced . Indeed, among the
individuals who filed the unfair labor practice charges giv-
ing rise to the complaint in Case 29-CA-2646 were Rufus
Gardner and Ramon Lugo , who are among the employees
alleged in the instant case to have been unlawfully dis-
charged.
B. The Evidence
1. The events of May 4, 1972
As noted , the last day of hearing in Case 29-CA-2646 was
on May 4, 1972. That morning 14 employees of Respondent
Company presented themselves at the Brooklyn office of
the National Labor Relations Board to file a petition asking
for withdrawal of Respondent Union's authority to compel
them to join the Respondent Union as a condition of their
employment6 All 14 employees at that time affixed their
signatures to a written statement requesting the withdrawal
of that authority . Included among the 14 signatory employ-
ees were all the employees alleged in the instant case to have
been discriminatorily discharged.
Mario Fichera, Jr., vice president of Respondent Compa-
ny and the person in charge of its labor relations , was also
present at the Brooklyn office in connection with the hear-
ing in Case 29-CA-2646 . Fichera asked the employees what
they were doing there . When the employees informed Fich-
era that they were there to file a petition , Fichera told them
that if they did not return to the plant by noon they would
be fired? Fichera acknowledged stating in the course of this
conversation that the employees were "going in the wrong
direction" and conceded that he probably said also that this
"bullshit has gone pretty far."
2. The discharge of Vasquez; the
events of May 8, 1972
Francesco Vasquez began to work for Respondent Com-
pany at the beginning of April 1972 as a truckdriver at $3
an hour. Respondent Company had only one truck at that
time . Vasquez' employment came about because Walter
Parks, who had been the regular truckdriver, had been ar-
6 This petition , which was filed with the Board, bears the number 29-
UD-69
r The findings as to this incident are predicated on the testimony of Rufus
Gardner, George Cipolla, Francesco Vasquez , and Ramon Lugo. Mario
Fichera , Jr, testified that the incident occurred, that he asked the employees
what they were doing there , that the employees told him they were there to
file a petition , that he complained that all of them did not have to leave the
plant to file a petition , and that he directed the employees to return to work
by noon. Fichera made no mention in his testimony relating to his statement,
already testified to by the employees, that he had threatened them with
discharge if they failed to return by noon.
CHROMIUM PLATING & POLISHING CORP. 347
rested and put in jail. Mario Fichera, Jr., thereupon called
Respondent Union for a driver and Respondent Union re-
ferred Vasquez who was a member of that organization.
Fichera told Vasquez he would be the truckdnver. He did
not tell Vasquez the job was temporary. Vasquez drove the
truck for a few weeks. Shortly after Vasquez was hired,
Respondent Company hired Sam Mercado. Mercado on
occasion acted as helper to Vasquez and on occasion drove
the personal station wagon of Robert Fichera, secretary-
treasurer of Respondent Company, when the needs of the
business required the use of an additional vehicle for special
pickups or deliveries.
Walter Parks was released from jail after a brief stay and
returned to Respondent Company's employ about May 1,
1972. Parks was given back his old job as truckdriver. As
Mario Fichera, Jr., testified, he told Vasquez at this time
that Vasquez was a good driver, that management wanted
to keep him on, that an additional truck which the Compa-
ny had ordered to carry on its operations would be delivered
in a few days, and that Vasquez would be the driver for that
vehicle. The additional truck was delivered in a few days
and Vasquez was assigned as its driver. During the interven-
ing few days before the new truck was delivered, Vasquez
was assigned to work inside the plant in the packing and
racking departments and operated a forklift, and he also
made a few pickups or deliveries in the station wagon. 8
Vasquez drove the new truck during the workweek of
May I to May 5 and also on Monday, May 8. On May 4,
however, as previously related, Vasquez was among the em-
ployees who went to the Board office to file the deauthoriza-
tion petition and to whom Mario Fichera, Jr., spoke.
Vasquez credibly testified that on this occasion Mario Fich-
era, Jr., specifically put to him the query, "Frank, what are
you doing here?"
According to Vasquez, he returned from his driving du-
ties on Monday, May 8, about 4 or 4:30 in the afternoon.
Robert Fichera, upon Vasquez' arrival at the plant, told
Vasquez that Mario Fichera, Jr., would like to see him.
Vasquez proceeded to the office and Mario Fichera, Jr., said
to Vasquez, "I have to lay you off." Vasquez asked, "Is it
my work? Is it something I did?" Fichera replied in the
negative, added that there was no work, not enough for two
drivers, and handed Vasquez his paycheck.10
Vasquez testified that he left the office at this point. Upon
leaving the office, he saw Harry Pappalardo and Miguel
Martinez, Respondeni Union's business' representatives,
who were in the plant at the time. Vasquez told Pappalardo
and Martinez that Mario Fichera, Jr., had just laid him off.
Martinez asked why and Vasquez replied, "He said lack of
work and there's no more work for two drivers." Pappalardo
asked whether Vasquez had signed the deauthorization peti-
tion on May 4, the preceding Thursday. Vasquez said he
had and Pappalardo retorted, "'Well, that's why he fired
you.,,
8 The findings in the above two paragraphs derive from the testimony of
Vasquez, Mario Fichera, Jr, and Walter Parks, all of whose testimony in this
regard is wholly consistent and differs only in minor and immaterial detail
inasmuch as Fichera knew that Vasquez had been referred for employ-
ment by Respondent Union, Fichera would obviously have been surprised
to find Vasquez participating in a union dissident group action
10 Normal payday in Respondent Company is Friday N
According to Vasquez, he then returned to the plant of-
fice to pick up his layoff slip. Pappalardo and Martinez
followed him into the office. Vasquez volunteered to Mario
Fichera, Jr., that he would work inside the plant at the lower
rate of pay inside workers received and Fichera replied that
there was no work inside or outside. Fichera was given a
layoff slip, signed by Robert Fichera as secretary- treasurer,
which read:
To Whom It May Concern,
Frank Vasquez was laid off on 5-8-72. He has been
working for Chromium Plating & Polishing for approx-
imately one month. As soon as industry picks up, we
will rehire him if he is available.
Neither Pappalardo nor Martinez-their status as agents
of Respondent Union was not disputed by Respondent
tUnion-testified."
Mario Fichera, Jr., did testify as to the layoff interviews.
Fichera said that he had decided to terminate Vasquez'
employment because, although Vasquez was a good driver,
his performance as an inside worker was wholly inadequate.
Pressed by his counsel as to whether a cost factor entered
into that decision, Fichera said that inside workers received
a lower wage than drivers.
Fichera confirmed that he had called Vasquez to his of-
fice . Fichera testified further that he told Vasquez that dnv-
ing duties on the new-truck would be sporadic, that he
would have to lay Vasquez off, but wanted the right to call
Vasquez back because Vasquez was a good driver. Accord-
ing to Fichera, Vasquez commented, "That's bullshit. That's
not the reason. But if you lay me off, you lay me off. That's
it."
Fichera also confirmed that there was a second conversa-
tion at which Pappalardo was present. According to Fich-
era, when Vasquez lodged his complaint to Pappalardo, the
latter told Vasquez, "Don't worry, I got you this job, so I'll
get you another job." On cross-examination, Fichera stated
that he had not given Vasquez any prior notice of discharge
although he thought that the collective-bargaining agree-
ment with Respondent Union required a 2-day notice.
As the foregoing recital demonstrates, the testimony of
Vasquez and Fichera as to the two office interviews between
Mario Fichera and Francesco Vasquez is consistent and
complementary. I find that the interviews were substantially
as they testified. I further credit Vasquez' undisputed testi-
mony as to his conversation with Pappalardo and Martinez
in the interval between the two office interviews.
Relevant here also is the evidence relating to the extent
of driving work done after May 8, the date of Vasquez'
discharge . Vasquez testified that, following Parks' return to
work and after the new truck was delivered, the old truck
was in use most of the time and the new truck" was used
every day. He testified furiher that after his discharge Sam
Mercado, who was junior to him in seniority, drove the new
truck. George Cipolla testified that he saw the new truck
being loaded on May 10 and asked Mario Fichera, Jr., to
put Vasquez back to work. Fichera replied that he had no
work for Vasquez. When Cipolla called Fichera 's attention
to the fact that the new truck was being loaded, Fichera said
11 Respondent Union presented no witnesses Pappalardo, who entered his
appearance for Respondent Union, was present throughout the hearing and
was advised of his right to participate fully at all stages of the proceeding
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there would be only one stop. Cipolla urged that Vasquez
be given that stop, and protested that Vasquez was being
fired "out of seniority." Vasquez and Cipolla also testified
that they saw the new truck being driven by Sam Mercado
on May I I.
Mario Fichera , Jr., testified, largely on cross-examina-
tion , as to the extent of truck utilization . He explained that
he let Vasquez go because the use of the second truck every
other day or every 2 days did notjustify Vasquez' retention;
that the new truck was used "very seldom" for about a
month after Vasquez was laid off ; that when it was used it
was driven by Sam Mercado who was junior to Vasquez in
seniority, but whose employment had not been terminated
because Mercado was originally hired as a packer; that later
when business picked up Sam Mercado drove the truck
most of the time ; and that about 2 months before the hear-
ing a new driver was hired to operate the truck. Mario
Fichera, Jr., explained his failure to recall Vasquez, as he
had orally told Vasquez he would and as was indicated on
Vasquez' layoff slip, on the ground that the hiring of truck-
drivers was no longer his responsibility and that that respon-
sibility had been transferred to his brother, Robert Fichera,
1-1 /2 to 2 months earlier.
On the basis of the foregoing testimony , I am satisfied
and find that, while there was a temporary dropoff in the
utilization of the new truck in the few weeks immediately
following Vasquez' discharge, the truck was still being uti-
lized and that thereafter the truck was restored to full opera-
tional use.
At the end of the workday on May 8, Respondent Union
Officials Pappalardo and Martinez were still at the plant.
George Cipolla credibly testified that the two officials were
pulling the men to one side as they were leaving work to talk
to them and that Cipolla heard the officials tell employee
Neff to "stick with us and we will take care of you." Cipolla
testified that at this point he interjected the comment, "Stick
with Local 9 and you'll get far" to which Martinez replied,
"If you stay with Lugo [a union dissident and one of the
signatures to the May 4 deauthorization petition], you're
going to be out of here." Martinez added the comment,
"You signed the petition and you're going to get fired if you
stay with Lugo." Cipolla's testimony as to this incident is
undisputed and I credit that testimony.
3. The work stoppage of May 10,
1972; the discharges
Francesco Vasquez and Nathaniel Brown were dis-
charged on May 8, allegedly for lack of available work. On
that day or the following day, Jesus Rivera was also dis-
charged. On May 9, despite the alleged shortage of work,
Respondent Company hired three new employees.
A number of employees were disturbed at this sequence
of events and on the morning of May 10 at the beginning
of the workday there was a work stoppage by seven employ-
ees." The seven employees were George Cipolla, Ramon
is There is varying testimony as to whether the work stoppage was decided
upon that morning in the plant dressing room before working hours or
whether it resulted from a discussion held by some of the participants the
preceding day I believe and find that the proposed work stoppage was
Lugo, Willie McGuiness, Jesse James Hardy, Lucius Elli-
son, Rufus Gardner, and Felix Nieves. Like Vasquez,
Brown , and Rivera , these seven were among the 14 employ-
ees who had presented themselves at the Board offices on
May 4 to file the union-deauthorization petitio.i and who
were reproved at that time by Mario Fichera, Jr.
As will be apparent presently , there are discrepancies in
the testimony concerning the precise circumstances sur-
rounding the work stoppage , but the essential facts are rela-
tively undisputed. Immediately after the 8 o'clock bell rang
for the start of the day's operations , the seven named em-
ployees did not go to work but stood around on the plant
floor. Mario Fichera, Jr., who observed this through the
glass partition in his upstairs office , came down, ap-
proached the group, and asked what was going on. He was
informed by the participants in the work stoppage that they
had gathered to present a demand that Vasquez, Brown,
and Rivera be rehired. Fichera rejected the demand, direct-
ed them to go back to work , and suggested that they pursue
their grievance through the processes of Respondent Union.
The group rejected the suggestion and directive and did not
go back to work. After some additional discussion and pur-
suant to Fichera 's ultimatum that the participants in the
work stoppage return to work or be discharged, Fichera
discharged them and told them to come upstairs to the
office and get their checks.
During the course of the stoppage, which went on for over
an hour , the local police arrived pursuant to a call from
Fichera and, after some colloquy with the participants to
the dispute, informed the seven employees that they, the
police , could do nothing about the situation and were there
merely to carry out Fichera's instructions to remove the
seven employees from Respondent Company's premises.
During this same interval , Respondent Union 's representa-
tives, Pappalardo and Martinez, put in an appearance. The
participants in the work stoppage told Martinez and Pappa-
lardo what they were doing and why. Pappalardo and Mar-
tinez informed the participants that Respondent Union
could do nothing for them because they had filed a petition
to stop the Respondent Union from collecting dues . Pappa-
lardo urged the participants to return to work or they would
be fired.
Pursuant to Fichera's directive, endorsed by the police,
the seven employees engaging in the work stoppage went to
the plant dressing room to change their clothes and then
proceeded to the office to pick up their checks. Pappalardo
and Martinez were also in the office at this time . Fichera,
before giving them their checks , asked the employees to go
back to work . They refused . Fichera gave them their checks
and also gave each of the seven employees a termination
slip. The slips carried the date 5-10-72 and the name of the
particular employee. Each slip read:
To Whom It May Concern,
As of 5-10-72, the above name is no longer em-
discussed on both occasions . The evidence presented also fails to resolve
whether the work stoppage was intended to last only long enough for the
seven employees to present their demands or whether it was designed to
continue thereafter in support of the demands Inasmuch as presently ap-
pears, the seven participants in the work stoppage were discharged that very
morning, the question as to the intended duration of the work stoppage
remains unresolved
CHROMIUM PLATING & POLISHING CORP. 349
ployed by this firm. The reason of their [sic] termina-
tion is a work stoppage.
Mano Fichera
The seven employees then left the plant and proceeded to
the Board offices to file unfair labor practice charges.
Considerable testimony was adduced, principally from
Respondent Company's witnesses, in an effort to establish
that the seven participants engaged in various forms of mis-
conduct during the work stoppage. Thus, Benjamin Delga-
do, who had been hired that very morning, testified, as a
witness for Respondent Company, that there was screaming
and shouting, that he was called names and that Ramon
Lugo sought to prevent him from working, threatened him,
and even tried to push him when he sought to go to work.
According to Delgado, Fichera intervened at this point.
Delgado also testified that on the afternoon of May 10,
following the discharges, Lugo stood in front of the plant
and threatened Delgado when he left the plant. I find Del-
gado not to be a credible witness. His eagerness to ascribe
misconduct to the participants in the work stoppage is ex-
emplified by his testimony that Lugo was outside the plant
all afternoon on May 10 and threatened him. Uniform testi-
mony of several witnesses which I credit established that
following the discharges Lugo and the other six work stop-
page participants went directly to the Board offices to file
charges and submit affidavits and remained there all af-
ternoon.
Mario Fichera, Jr., testified that there was considerable
name-calling, cursing, and shouting. He corroborated
Delgado's testimony that he interceded when Lugo tried to
push Delgado and made reference to another pushing inci-
dent where he was not altogether certain about the identity
of the employee being pushed. On the other hand, it would
appear that these matters were not of such proportion as to
occasion Fichera deep concern inasmuch as he invited the
seven participants in the work stoppage to return to work
just before he handed them their checks and termination
slips. Fichera specifically acknowledged at the hearing that
he was willing at that time to take the seven back to work
despite the alleged violent activity to which he had testified.
Moreover, the termination slips which Fichera had pre-
pared and signed made no reference to misconduct and
specified the work stoppage as the only ground for dis-
charge.
Larry Parks, whom Vasquez had been hired to replace
and who later returned to Respondent Company's employ,
also testified as a witness for Respondent Company. Parks
testified that there was a lot of cursing and shouting, that
he was called names, and that the other employees were
working although the seven participants in the work stop-
page made some effort to stop them from working. Al-
though Parks was in the area, he could not recall any
"pushing" incident.
Foreman Davidson testified that the seven work stoppage
participants were not working, that other employees were
standing around watching them, that the seven urged them
not to work, and that there was some cursing. He further
testified, however, that he was in a position to observe the
entire situation, that he saw no employee physically stop-
ped, and that he heard no threats
The remaining witnesses for Respondent Company were
also questioned as to alleged misconduct. Berrara, an em-
ployee and steward for Respondent Union, testified that he
heard no cussing, that there was loud talking because of the
noise of the machines that were operating, that, apart from
the seven, the other employees were working, and that the
seven did not try to stop the others from working.
Sergeant Johnson, who was one of the local police called
to the plant on May 10, was also presented as a witness for
Respondent, Company. He testified that he had been sum-
moned on umerous occasions to the Respondent Compa-
ny plant and that neither his notes nor his recollection gave
him any basis for testifying as to the course of events on
May 10 except that there was a labor dispute and it was
referred to court.
Several of General Counsel's witnesses also testified in
this regard. Rufus Gardner testified that to his knowledge
it was not contemplated that the work stoppage participants
speak to other employees about their joining the stoppage
or about barring or interfering with other persons entering
the plant. He testified that the other employees were work-
ing. George Cipolla testified that there was no violence, that
there was loud talking because of the noise of the machines,
that he saw some of the other men working, but could not
say whether all the others were working. He further testified
that he did not talk to any of the other employees. Vasquez,
who was present for only a brief interval on May 10, testi-
fied that he saw no violence, that there was no yelling or
fighting, and that he did not notice whether the other em-
ployees were working. Lugo testified as to various matters
and stated also that he had not touched Delgado and had
not blocked anyone from working. Based upon my observa-
tion of Lugo and my appraisal of his entire testimony, I find
Lugo to be of doubtful credibility and credit his testimony
only where it was corroborated by other witnesses.
Reviewing the entire testimonial pattern as to the alleged
misconduct of the seven participants in the work stoppage,
it is important to note that the work stoppage presented a
very critical situation, that the emotions of those concerned
would inevitably be highly charged, that the stoppage was
itself a continuation of a bitter controversy between Re-
spondent Company and Respondent Union on the one
hand and the dissident employees on the other, and that the
hearing in Case 29-CA-2646 relating to the controversy had
been concluded less than a week earlier. Under all these
circumstances, it is not surprising that there was some van-
ance in the versions of the events related by the several
witnesses.
On the basis of all the testimony and evidence of record,
I find that the seven employees did engage in a work stop-
page and were discharged for so doing. The other employees
remained at work, but the record assuredly warrants the
inference, and I find, that some of the working employees
were distracted by the work stoppage, the interchanges that
ensued, and the arrival of the police and Respondent
Union's representatives. I further infer and find that there
was loud talking and shouting, occasioned in part by the
need to be heard above the noise of operating machines, and
that one or more pf the several participants in the work
stoppage may have sought to persuade some of the working
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to Join the work stoppage. Based on the testimo-
ny of all the witnesses or on the testimony of Respondent's
witnesses alone, I find insufficient basis for a finding that
the seven participants engaged in threats or coercion to
compel their fellow employees to Join the work stoppage. As
to the incident in which Lugo allegedly pushed or tried to
push Delgado, I am satisfied and find that the incident, if
it happened at all, was of minor significance, and that Fich-
era so regarded it and so regarded other instances of alleged
misconduct to which he testified.
C. Analysis and Concluding Findings
1. Respondent Union's violations of Section 8(b)(1)(A)
The complaint alleges that Respondent Union, acting
through Harry Pappalardo and Miguel Martinez, whose
status as business representatives and agents of Respondent
Union is undisputed, restrained and coerced employees of
Respondent Company in the exercise of their Section 7
rights, thereby violating Section 8(b)(I)(A) of the Act.
As already indicated, 14 of Respondent Company's em-
ployees filed a petition with the Board on May 4, 1972, to
withdraw Respondent Union's authority to compel them to
join Respondent Union as a condition of their employment.
The right of the employees under Section 7 of the Act to
invoke the Board's processes in this regard is unchallenged,
quite apart from the fact that the Respondent Union's au-
thority to represent the employees and to execute and im-
plement a collective-bargaining agreement in their behalf
with Respondent Company was being successfully chal-
lenged in an already pending Board proceeding.
It is undisputed that, when Francesco Vasquez told Pap-
palardo and Martinez on May 4 that he was being fired by
Respondent Company, Pappalardo told Vasquez that his
discharge was attributable to his signing the deauthonzation
petition. Similarly, it is undisputed that on May 8 Pappalar-
do and Martinez told dissident employees that they should
stick with Respondent Union and that if they signed the
petition and joined with the employees opposing Respon-
dent Union they would be fired. On May 10, the day of the
work stoppage, Pappalardo and Martinez informed the par-
ticipants that Respondent Union could do nothing for them
because they had filed a petition to stop Respondent Union
from collecting dues and urged them to return to work or
they would be fired. The testimony as to these May 10
statements is unchallenged. Indeed, as already noted, Re-
spondent Union presented no witnesses, although Harry
Pappalardo, who entered his appearance for Respondent
Union, was fully advised of the Union"s rights to participate
fully and was himself present throughout the hearing.
The coercive thrust of the statements made by Respon-
dent Union's representatives on May 8 was plain; employ-
ees who sought relief by invoking the Board's processes
would be fired. The restraint and coercion imposed upon
the employees' exercise of their Section 7 rights in this re-
gard and the consequent violation of Section 8(b)(1)(A)
need no elucidation.
The same conclusion follows from the statements of Re-
spondent Union's representatives in connection with the
work stoppage on May 10. As more fully set forth hereinaf-
ter, the work stoppage here was a legitimate and protected
concerted activity by the employees concerned. Neverthe-
less, Respondent Union's representatives made it plain that
they would not support the participants in the work stop-
page because they had filed a petition to stop Respondent
Union from collecting dues and that the participants would
be fired if they did not abandon the work stoppage and
return to work.13 This constituted an additional infringe-
ment on the exercise by Respondent Company's employees
of the Section 7 rights and a further violation of Section
8(b)(1)(A)•
I conclude and find that Respondent Union by the fore-
going conduct engaged in violations of Section 8(b)(I)(A) of
the Act.
2. Respondent Company's violations
of Section 8(a)(1), (2), and (3)
The complaint, as amended at the hearing (fn. 3, supra),
alleges that Respondent Company violated Section 8(a)(1),
(2), and (3) of the Act by discharging Francesco Vasquez on
May 8 and by discharging the seven participants in the work
stoppage on May 10.
Vasquez was discharged on May 8, 1972. He was origi-
nally hired when Mario Fichera, Jr., asked Respondent
Union to send him a truckdriver as a replacement for Wal-
ter Parks, who was no longer available because of his legal
difficulties. Respondent Union sent Vasquez, a member of
Respondent Union. Fichera, aware of this background, was
obviously surprised to find Vasquez among the employees
who appeared at the Board offices on May 4 to file a union-
deauthorization petition. Fichera specifically directed the
query to Vasquez, "Frank, what are you doing here?"
On Fichera's own admission, Vasquez was a very compe-
tent employee. When Walter Parks returned to work upon
his release from jail and was given back his Job as truckdriv-
er, Fichera asked Vasquez to remain at work because an
additional truck would be delivered in a few days. During
this interval, Vasquez was given inside work at the plant
with an occasional stint at driving the station wagon. Upon
delivery of the new truck, Vasquez became its operator and
drove regularly.
On Monday, May 8, however, 4 days after Fichera saw
Vasquez at the Board offices, participating in the filing of
a union-deauthorization petition, Fichera summoned Vas-
quez to his office, informed Vasquez that he was being laid
off because there was not enough work for two drivers, but
that because Vasquez was a good driver he would be re-
called as soon as business improved. The termination slip
given Vasquez was to the same effect. Vasquez' request that
he be assigned to inside work-as had been done while
delivery of the new truck was being awaited-was rejected.
At the hearing, Fichera reiterated that he let Vasquez go
because there was not enough work at the time for two
U The record contains a suggestion that Respondent Union's position in
this regard may have been predicated on the ground that its collective-
bargaining agreement contained a no-strike clause Respondent Union not
only presented no evidence , as previously noted, but made no legal argument
The collective -bargaining agreement was not put in evidence and, in any
event, would not serve as a defense inasmuch as it was illegally executed and,
indeed, was set aside in Case 29 -CA-2646.
CHROMIUM PLATING & POLISHING CORP. 351
drivers and that he did not assign Vasquez to inside work
because he felt that Vasquez had not performed competent-
ly during his prior stint as an inside worker. Prompted by
his counsel, Fichera indicated, additionally, that an assign-
ment to inside work was not feasible because Vasquez' rate
of pay was higher than that which inside workers received.
Yet Vasquez had offered to take an inside job at the inside
workers' pay scale.
The reasons assigned by Fichera for Vasquez' discharge
do not withstand scrutiny. Credible testimony establishes,
and, indeed, Respondent Company does not deny, that the
truck driven by Vasquez continued to be used following the
latter's discharge. Mercado, who was junior to Vasquez in
seniority and who had on occasion acted as Vasquez' helper,
did the driving. On Fichera's own testimony, it appears that
Mercado spent more and more time driving and finally a
new driver was hired to take over the driving duties. Vas-
quez was not recalled despite the specific commitment made
by Fichera to recall Vasquez as soon as business improved.
Fichera explained this omission on the ground that in the
interim the hiring of truckdrivers had been delegated to his
brother, Robert. I deem the explanation lame, if not con-
trived.
I find rather that the discharge of Vasquez was prompted
by Mario Fichera's general resentment against the action of
the 14 employees in filing a union-deauthorization petition
and by his particular pique that Vasquez, who was referred
to him by Respondent Union, was one of the 14 who went
to the Board offices on May 4. Vasquez was the first of the
14 to be discharged, 4 days later, and 2 days after that,
Mario Fichera seized an opportunity to discharge 7 more.
In all, including Brown and Rivera, Respondent Company,
within 6 days after the filing of the petition, discharged 10
of the 14 employees who subscribed to that petition. Not
wholly without significance also is the fact that Pappalardo
and Martinez, Respondent Union's representatives, who
obviously enjoyed a cordial relationship with Respondent
Company, volunteered readily that Vasquez' discharge was
attributable to his support of the deauthorization petition.
The defense of lack of work is suspect in view of the fact
that three new employees were hired on May 9, that the
truck Vasquez drove continued to be used to some extent
after Vasquez' discharge, and that within a relatively short
time the truck was restored to full operation. And most
enlightening, as already noted, was Respondent Company's
hiring of a new driver as opposed to recalling Vasquez, an
admittedly competent driver whom it had committed itself
to rehire.
I conclude and find, on the basis of all the evidence, that
the real reason for Vasquez' discharge was his participation
in the filing of the union-deauthorization petition 4 days
earlier. I find further that Respondent Company's action in
this regard constituted an interference with the right of
Vasquez and his fellow employees to engage in an activity
protected by Section 7, hence a violation of Section 8(a)(1),
and a discriminatory discharge to discourage the legitimate
activities against Respondent Union, hence a violation of
Section 8(a)(3). Finally, the discharge of Vasquez was an
additional action by Respondent Company to further its
recent campaign of unlawful assistance to Respondent
Union which was the subject matter of the proceeding in
Case 29-CA-2646. Accordingly, I find Vasquez' discharge
to be also a violation of Section 8(a)(2).
Remaining for consideration is the legality of the dis-
charge on May 10 of the seven participants in the work
stoppage which took place on that day. The work stoppage
was avowedly a protest against the discharge of Vasquez,
Brown, and Rivera and a demand that they be returned to
Respondent Company's employ. 14
It has long been established that a strike or work stoppage
to protest the discharge of fellow employees, whether those
discharges were justified or unjustified, is a concerted activi-
ty protected by Section 7 of the Act. See Summit Mining
Corporation, 119 NLRB 1668, 1672-73 (1958), and authori-
ties there cited. Indeed, Respondent Company, in its brief
(p. 7), concedes that "[i]n the case at bar the Complainants
participated in a work stoppage which clearly was protected
by the Act." Discharge for engaging in such protected con-
certed activity is a patent violation of Section 8(a)(1) and (3)
of the Act and also, in the context of the instant case, for
reasons already set forth, a violation of Section 8(a)(2) of the
Act.
Respondent Company defends, however, on the ground
that the discharges of the work stoppage participants were
not directed against the protected work stoppage but rather
against the violence and intimidation that accompanied the
work stoppage.15 The short answer to this contention is that
no violence occurred, that the misconduct, if any, which did
occur was minimal in all the circumstances and certainly
not of sufficient magnitude to warrant either a discharge or
denial of reinstatement after discharge. The protection ac-
corded by Section 7 to the concerted action of the employ-
ees is not so fragile as to be shattered by a loud voice or an
epithet uttered in a tense confrontation on a plant floor.
Moreover, even assuming , contrary to the findings herein,
that cognizable misconduct did occur, Respondent certain-
ly did not regard such misconduct as the basis for its dis-
charge action and, by the same token, such misconduct
would not afford a basis for the denial of reinstatement.
Mario Fichera, Jr., was present throughout the entire work
stoppage and on his own testimony was witness to such
conduct as did occur. Yet, at the final discharge interview,
Fichera invited the work stoppage participants to return to
work. Fichera conditioned that return solely on the aban-
donment of the work stoppage and made no reference to
misconduct which, in retrospect, Respondent Company
now claims was the real motivation for its action . The word-
ing of the termination slips handed to the participants con-
14 Insofar as the work stoppage was in protest against Vasquez' discharge,
heretofore found to be an unfair labor practice, the complaint alleges, and
I find, that the work stoppage was an unfair labor practice strike. However,
that finding is not significant in the circumstances of this case inasmuch as
all the participants in the work stoppage were discharged and, if illegality is
found in that regard, the participants would normally be entitled in any event
to full reinstatement . As demonstrated in the text , a work stoppage or strike
to obtain reemployment for discharged employees is a protected activity even
if the challenged discharges were wholly lawful.
15 At the hearing, it appeared that a defense might be predicated on the
fact that the work stoppage violated a no-strike provision in the collective-
bargaining agreement between Respondent Company and Respondent
Union Inasmuch as that agreement has been found to have been unlawfully
executed , Respondent Company quite properly does not urge that defense
in its brief
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
firms that the work stoppage was the only motivation for the
discharge." I conclude that the defense of violence and
misconduct is a patent afterthought designed to conceal the
true motivation for the discharges which represented a fur-
ther step in Respondent Company's continuing effort to
stifle opposition to its relationship with Respondent Union.
Here, as in N.L.R.B. v. Clinton Packing Co., Inc., 468 F.2d
953 (C.A. 8, 1972), "[e]vidence of prior unfair labor practic-
es is relevant in determining the Company's motivation in
its subsequent conduct."
In sum and on the evidence of record, I find that Respon-
dent Company by discharging the seven participants in the
work stoppage on May 10, 1972, violated Section 8(a)(1),
(2), and (3) of the Act.
CONCLUSIONS OF LAW
1. By threatening employees of `Respondent Company
with loss of employment for filing a union-deauthorization
petition and for engaging in a protected work stoppage,
Respondent Union violated Section 8(b)(1)(A) of the Act.
2. By discharging Francesco Vasquez on May 8, 1972,
and by discharging George Cipolla, Ramon Lugo, Willie
McGuiness, Jesse James Hardy, Lucius Ellison, Rufus
Gardner, and Felix Nieves on May 10; 1972, Respondent
Company violated Section 8(a)(1), (2), and (3) of the Act.
3. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Union and Respondent
Company engaged in certain unfair labor practices, the stat-
ute requires that the respective Respondents be required to
cease and desist from such conduct . On the basis of the
findings made in this proceeding and, in view of the findings
made in the prior closely related proceeding in Case 29-
CA-2646, a broad disposition on the part of both Respon-
dents to engage in unfair labor practices is revealed and a
broad order to enjoin such conduct is warranted.
The unfair labor practices found also dictate the proprie-
ty of directing affirmative remedial action . I shall direct that
Respondent Company reinstate the eight employees, found
to have been discriminatorily discharged, to their former
positions or, if such positions no longer exist , to substantial-
ly equivalent positions, dismissing , if necessary , employees
subsequently hired to replace the wrongfully discharged
employees . I shall further direct that Respondent Company
make the eight discharged employees whole for earnings
lost as a result of their wrongful terminations by payment
to each of them of a sum of money equal to that which each
would normally have earned , absent the unlawful discnmi-
nation , from the date of his termination to the date of Re-
16 Under the circumstances, I deem it unnecessary to explore whether, as
General Counsel contends, Respondent Company, by inviting the work stop-
page participants to return to work, condoned such misconduct as may have
occurred While I believe that such a finding would be warranted, it is
abundantly clear on the basis of the testimony afforded by Mario Fichera,
Jr , himself, and on the basis of the termination slips that misconduct, if it
occurred at all, was not a factor entering into the discharge determination
and no misconduct occurred thereafter to warrant a denial of reinstatement
spondent Company's offer of reinstatement, less their net
earnings during said period. Backpay shall be computed
and interest added in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co, 138 NLRB 716 (1962). To facilitate and
achieve these ends, the customary requirement for record-
keeping will be included.
Inasmuch as affirmative relief relating to the finding of
unlawful assistance in violation of Section 8(a)(2) of the Act
has already been directed in Case 29-CA-2646, direction of
such affirmative relief in this proceeding would be purely
duplicative and will not be entered.
Respondent Union has been found to have violated Sec-
tion 8(b)(1)(A). While there is evidence in the record that
Respondent Union tolerated, or perhaps even welcomed,
the discriminatory discharges found herein, there is no basis
in the record for finding that Respondent Union took any
action in that regard and no affirmative relief is directed to
be taken by Respondent Union with respect to the discharg-
es.
Both Respondents will be directed to post appropriate
notices and make appropriate reports.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I recommend the following Order."
ORDER
A. Respondent Chromium Plating and Polishing Corp.,
Brooklyn, New York, its officers, agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
of its employees to discourage them from availing them-
selves of the processes of the National Labor Relations
Board.
(b) Discharging or otherwise discriminating against any
of its employees to discourage them from engaging in pro-
tected work stoppages.
(c) Aiding, assisting , or contributing support to Amalga-
mated Production and Journeymen's Workers Union of
America, Local 9, and District 5 Affiliated Unions, or any
other labor organization of its employees.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their Section 7
rights to organize and bargain collectively or to refrain from
such activities.
2. Take the following affirmative action:
(a) Offer the individuals named hereunder immediate
and full reinstatement to their former jobs, dismissing, if
necessary, employees subsequently hired to replace them; if
such former jobs no longer exist, reinstate the individuals
named hereunder to substantially equivalent jobs. In either
event such reinstatement shall be without prejudice to the
seniority and other rights and privileges of the named em-
17 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
CHROMIUM PLATING & POLISHING CORP.
ployees. These employees are:
Francesco Vasquez Jesse James Hardy
George Cipolla Lucius Ellison
Ramon Lugo Rufus Gardner
Willie McGuiness Felix Nieves
(b Make the above-named employees whole for their lost
earnings in the manner set forth in the section of this Deci-
sion entitled "The Remedy."
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all payroll
records , social security payment records , timecards , person-
nel records and reports , and all records necessary to analyze
the amount of backpay due under the terms of this recom-
mended Order.
(d) Post at its plant in Brooklyn, New York, copies of the
attached notice marked "Appendix A." 18 Copies of the
notice, on forms provided by the Regional Director for
Region 29 , after being duly signed by an authorized repre-
sentative of the Respondent named herein , shall be posted
by the Respondent immediately upon receipt thereof, and
be maintained for 60 consecutive days thereafter in conspic-
uous places, including all places where notices to employees
are customarily posted . Reasonable steps shall be taken by
the Respondent to see that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order what steps
the Respondent has taken to comply herewith.
B. Respondent Amalgamated Production and Journey-
men's Workers Union of America, Local 9 and District 5
Affiliated Unions , its officers , agents, and representatives,
shall:
1. Cease and desist from:
(a) Restraining or coercing employees of Chromium
Plating and Polishing Corp. in the exercise of their right to
invoke the processes of the National Labor Relations Board
or to engage in a protected work stoppage.
(b) Restraining or coercing employees of Chromium
Plating and Polishing Corp. in any other manner in the
exercise of their Section 7 rights to organize and bargain
collectively or to refrain from such activities.
2. Take the following affirmative action:
(a) Post at its business office, meeting halls, or other
places where it customarily posts notices, copies of the at-
tached notice, marked "Appendix B." 19Copies of said no-
tice, on forms provided by the Regional Director for Region
29, shall , after being duly signed by an authorized represen-
tative of the Respondent, be posted by Respondent immedi-
ately upon receipt thereof, and be maintained for 60
consecutive days thereafter in conspicuous places, including
all places where notices to members are usually posted.
Reasonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
" In the event the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
19 See In . 18, supra
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
353
WE WILL NOT discharge or otherwise discriminate
against any of our employees to discourage them from
using the National Labor Relations Board.
WE WILL NOT discharge or otherwise discriminate
against any of our employees because they engage in
lawful work stoppages or strikes.
WE WILL NOT aid, assist, or contribute support to Am-
algamated Production and Journeymen 's Workers
Union of America , Local 9 and District 5 Affiliated
Unions, or any other labor organization of our employ-
ees.
WE WILL NOT in any other manner interfere with our
employees right to organize and bargain collectively or
to refrain from such activities.
WE WILL offer to take back the employees named
below to their old jobs and we will pay them for the
earnings they lost because we put them off their jobs.
The employees are:
Francesco Vasquez Jesse James Hardy
George Cipolla Lucius Ellison
Ramon Lugo Rufus Gardner
Willie McGuiness Felix Nieves
CHROMIUM PLATING AND
POLISHING CORP.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 16 Court Street, Brooklyn, New
York 11241, Telephone 212-596-3750.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT restrain or coerce employees of Chromi-
um Plating and Polishing Corp., because they want to
use or do use the National Labor Relations Board or
because they engage or want to engage in a lawful
strike or work stoppage.
WE WILL NOT restrain or coerce employees of Chromi-
um Plating and Polishing Corp., in any other manner
in their right to organize and bargain collectively or to
refrain from such activities.
AMALGAMATED PRODUCTION
AND JOURNEYMEN 'S WORKERS
UNION OF AMERICA , LOCAL 9
AND DISTRICT 5 AFFILIATED
Dated By
UNIONS
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office , 16 Court Street , Brooklyn, New
York 11241, Telephone 212-596-3750.