Clearview Concrete Products Corp.

National Labor Relations Board - Board Decisions

Nov 7, 1974

214 N.L.R.B. 755 (N.L.R.B. 1974)

CLEARVIEW CONCRETE PIPE
Clearview Concrete Pipe Corp ., d/b/a Clearview Con-
crete Products Corp., and Grand Pre-Stressed
'Corp . and Earl Nare . Case 29-CA-3560
November 7, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 14, 1974, Administrative Law Judge Ben-
jamin B. Lipton issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondents Clearview Concrete Pipe
Corp., d/b/a Clearview Concrete Products Corp.,
and Grand Pre-Stressed Corp., Deer Park, Suffolk
County, New York, their officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Administrative Law Judge: Upon a
complaint by the General Counsel alleging that Respon-
dents engaged in certain violations of Section 8(a)(1) and
(3) of the Act, a trial was conducted in Brooklyn, New
York, on February 19 and 20, and March 4, 1974.1 Briefs
filed by General Counsel and Respondents have been duly
considered.
On the entire record, and upon my observation of the
demeanor of the witnesses, I make the following:
1 All dates are in 1973, unless otherwise noted The complaint issued on
November 30, based upon a charge filed on September 21 and amended on
November 26
FINDINGS OF FACT
1. JURISDICTION
755
Clearview Concrete Pipe Corp., herein called Clearview,
is engaged in the manufacture, sale, and distribution of
concrete pipe and related products. Grand Pre-Stressed
Corp., herein called Grand, is engaged in the manufacture,
sale, and distribution of pre-stressed concrete and related
products. Respondents, having their principal offices and
place of business in Deer Park, Suffolk County, New York,
constitute a single integrated enterprise operating in gener-
al with common officers, ownership, and direction, and a
common labor policy affecting their employees.2 During
the year preceding issuance of the complaint, Respondents
had a direct inflow in interstate commerce of purchased
goods and materials valued in excess of $50,000. Respon-
dents admit, and I find, that they are engaged in commerce
within the meaning of the Act.
II. LABOR ORGANIZATION
District 15, International Association of Machinists and
Aerospace Workers, AFL-CIO, herein called the Union or
the Machinists, is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Essential Issues
1. Whether Respondents coercively interrogated each of
six maintenance employees and made threats to discharge
these employees for their activities in seeking representa-
tion by the Union, in violation of Section 8(a)(1).
2. Whether Respondents violated Section 8(a)(3) in ter-
minating the six maintenance employees, successively, on
July 26, August 2 and 8.
Respondents deny all the alleged violations and assert as
affirmative defenses that (a) the first two maintenance em-
ployees were laid off for lack of work, and (b) thereafter
the remaining employees were discharged for failing and
refusing to perform their assigned work "in a proper and
efficient manner" and for lack of work.
B. Background and Organizational Activity
About 70 employees are employed by Respondents
working within the same plant facilities. As generally ap-
pears, the bulk of these employees are represented in three
contract bargaining units by the Teamsters, the Operating
Engineers, and the Laborers. However, the maintenance
employees here in question have been excluded from these
units, were denied memberships in the recognized unions,3
and were unrepresented.
In late June, after earlier discussions among certain of
the maintenance employees, Earl Nare approached the
2 For the purposes of this case , at least, the distinction between the two
companies is purely nominal so far as employees and employment condi-
tions are concerned.
3 Testimony of Louis Leonardi
214 NLRB No. 98
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machinists and a meeting between Union Agent Henry
Rizzo and the employees was arranged. On July 6, at such
a meeting held with four of the maintenance employees
near Respondents' plant, Rizzo described organizing pro-
cedures and distributed blank authorization cards. Subse-
quently, these cards were signed by all six maintenance
employees.' About July 16, the cards were mailed as a
group to the Union.
Dated July 20 (Friday), the Union sent Respondents a
formal letter claiming, and offering to furnish proof, that it
represented a majority of the employees, and requesting
recognition and negotiation of a contract for a unit of "all
mechanics , helpers, welders, maintenance and all service
employees." 5
C. Interrogations and Threats of Discharge
Louis Leonardi testified that, about July 20, he and his
brother Peter were in the office of Plant Superintendent
David Frances reporting for night-shift duty at 4 p.m.
Frances asked him what kind of a union he was in at his
previous job with a bus company and, when answered, fur-
ther inquired if that had anything to do with the Machin-
ists. Thereafter, at least once each day until he and his
brother were terminated on August 2, Frances questioned
him and remarked concerning the Union, e.g.; "I know
you guys signed cards, who started it?" "The companies
are not going to put up with it. You guys are all going to
get laid off. You went about it the wrong way." On five or
six occasions beginning about July 23, Foreman Thomas
Monahan interrogated and threatened Louis Leonardi, as
follows: "Who started the Union?" "You guys are crazy,
you are not going to get away with it." Louis Leonardi
refused to reveal the requested information. Peter Leonardi
corroborated his brother Louis concerning the questions
and remarks of Frances which commenced "around July
20" and were repeated daily until they were discharged.
Nare testified to interrogations and threats by Frances
occurring almost each day from about July 20 until his
termination on August 8, to wit:
He asked me who was responsible for associating the
union and if I belonged to this union before or how we
found this union and the company wouldn't stand for
the union. . . . We'll find ways to cut down on
either-send the trucks out for repair or discharge
men or something.
About July 23, Monahan asked Nare if he were responsible
for the Union, and then remarked, "now probably-ev-
erybody will get laid off because [Nare] started waving the
flag around."
Bartoli testified: Upon his return on August 2 from I
week's vacation, Frances questioned him "practically dai-
Earl Nare, Louis and Peter Leonardi, George Bartoli, John Winfield,
and Salvatore DiSomma
5 General Counsel represented that a (refusal-to-bargain) charge filed by
the Union was subsequently withdrawn apparently because of a jurisdic-
tional conflict with one of the recognized unions at Respondents' plant The
Union did not enter an appearance in the present proceeding
ly" five or six times before his own discharge on August 8
as to "who brought the Union in." At a later point, Bartoli
requested that he be not asked any more, and stated he did
not know, and would not tell even if he did know. During
this period, after August 2, Monahan passed the remark,
"I'm surprised at you, George, you know you are not going
to get nowhere, you are going to get laid off, they are going
to lay off two at a time until yourself all go, whoever signed
up." 6
Winfield testified that Frances questioned him each day
from July 23 until his termination on July 26-as to who
started the Union.' One response was that it was a unani-
mous decision of these employees
DiSomma testified that, on July 26, Frances asked him
"who started this business?" He replied that he did not
know, and would not tell if he did know. Later that day,
after he was terminated by Frances, he heard Monahan say
to a group of (unidentified) people at the cooler "Well,
there's two this week, there will be two next week." Di-
Somma then informed Louis Leonardi of Monahan's re-
mark.'
The foregoing testimony of the six maintenance employ-
ees carves a conviction and plausibility which, in my opin-
ion, clearly warrants full credibility. Superintendent Fran-
ces admitted that he separately interrogated Nare, Louis
Leonard[, and Bartolf as to why they wanted the Union,9
and initially denied that he discussed the Union with Di-
Somma, Winfield, and Peter Leonardi. Concerning the
Union, he indicated at a later point that he "asked ev-
eryone more than once."
It is well apparent, in my view, that Respondents' case is
replete with machinations, anomalies, and dissimulations.
Respondents' counsel eventually "stipulated" that Respon-
dents did receive, on July 23 or 24, the Union's letter dated
July 20 containing the bargaining request for the mainte-
nance employees, supra. However, Vice President Vincent
DeLillo testified he did not disclose or discuss the letter
with Superintendent Frances until July 29 or 30.10 Admit-
tedly, a copy of the letter was promptly sent to Attorney
Donelan. Frances disclaimed knowledge of the Union
prior to July 30 or 31, when DeLillo purportedly showed
him the Union's letter, and he insisted that his interroga-
tions did not commence before such time. It suffices gener-
ally to assign knowledge of the Union to Respondents that
the Union's letter was in Respondents' hands, as I find, at
least by Monday, July 23. From the testimony of the six
maintenance employees, it is evident that Frances and
Monahan had an awareness of the union organizational
effort on or before July 23, whether or not either of them
were actually shown or apprised of the Union 's bargaining
6 Shortly after DiSomma was laid off on July 26, he told Bartoli Monahan
had made the same remark-that the maintenance men will be laid off two
at a time each week Bartoli then approached Frances concerning this "ru-
mor," and Frances merely replied that he did not know
7 Winfield identified several laborers , as well as Monahan , who were pre-
sent on one such occasion
8 Bartoli, Peter Leonardf , and DiSomma were not cross -examined con-
cerning the interrogations and threats
gin the testimony of Frances, he also asked Nare what local they were
trying to get in Although he knew the answer, he "wanted to see if [Nare]
knew " He described Leonardi's response to the interrogations he just
said, well, you know, and he took off "
10 DeLillo was not directly asked when he received the Union's letter
CLEARVIEW CONCRETE PIPE 757
request at such time. In substantial respects, I find and
regard the testimony of Frances as self-contradictory,
changing, contrived, and unworthy of credit. The single
sweeping denial by Monahan that he had ever discussed
the Union with any of the six maintenance employees is
rejected. Accordingly, I conclude that, in the separate in-
stances described above, Respondents engaged in coercive
interrogations and threats of discharge , constituting serious
violations of Section 8(a)(1) of the Act, as alleged.
D. The Terminations
1. Winfield and DiSomma-July 26
In the late afternoon on July 26, Winfield and DiSomma
were "laid off" by Frances. The reason he gave each of
them was "things are getting slow." Preceding this action,
Frances told the Leonardi Brothers he wanted to show
them something, and took them to the back of the shop
where they witnessed the termination of Winfield. Then he
called out to the personnel within earshot "There, you all
heard me tell him we are slowing down. We don't need him
anymore." Shortly thereafter in the maintenance shop,
Frances openly challenged Nare, "Now see what your
union can do for you. There's a telephone." Nare attempt-
ed to place a call but was unable to get an outside line. 11
On occasion during the following days, Frances would ask
Nare in a joking vein, "Where are you going to work next
week?"
The above testimony is not specifically refuted by Fran-
ces and stands in contrast with his broad denials, supra,
that he was even aware of the Union on July 26. Two
further sidelights are noted relating to Frances' knowledge
of the Union on this date. When Winfield was preparing to
leave the plant following his layoff, Frances remarked to
him, "You are not going to take this lying down, I am
sure." And, according to Frances, when he informed Di-
Somma of his layoff, DiSomma inquired whether it had
anything to do with the Union; he merely replied, "What
union?" and walked away."
Added to the interrogations and threats already found,
the telephone incident with Nare on July 26 further reveals
a distinct antagonism of Frances toward union organiza-
tion of the maintenance employees. And his manner of
effecting the layoffs on July 26 strongly suggests a planned
purpose of warning the remaining maintenance employees
that further terminations would follow on the same
grounds that "things were getting slow "
2. The Leonardis-August 2
Louis and Peter Leonardi regularly worked on the night
shift, from 4 p.m. until midnight. They were scheduled to
begin their vacation on Monday, August 6. On August 1,
11 The foregoing evidence was given by Nare, the Leonardis, and Win-
field Monahan , who was present, was not questioned concerning these
events
12 On cross-examination , Frances attempted to explain that DiSomma
merely alerted him to something going on, but he had no knowledge of
"which local or union " was involved
Louis Leonardi asked Superintendent Frances, "If you are
not going to fire me this week . . . is it all right if I go on
vacation next week? I would like to get my check tomor-
row." Frances said he would let him know. A few minutes
later, Frances came back and instructed both Leonardis to
report for work the next morning, on the day shift. On
August 2, about 2 p.m., Frances handed each of the Leo-
nardis their final checks, which included vacation pay,
signed by Vice President DeLillo. He indicated they were
laid off, and gave no reason. Later, Frances and Monahan
approached Peter Leonardi as he was packing his tools.
Frances stated he was sorry, there was nothing he could
do, it was out of his hands. He made the same remarks to
Louis Leonardi.
3. Nare and Bartoli-August 8
When Frances notified these employees on August 8 that
they were "laid off," he conveyed no reason for such ac-
tion. He told Nare that his paycheck was sent over "from
the office," that his "hands were tied, he had nothing to do
with it, orders came from upstairs." And he asked, "You
are not going to take this lying down, are you? What is this
union going to do for you?" Similarly, Frances told Bartoli
"this is coming from the office, it is beyond my control,"
and he was "sorry it happened this way." This uncontra-
dicted testimony, as with the Leonardis on August 2, plain-
ly belies Respondents' contention that Frances acted en-
tirely alone in the decisions to terminate each of the six
men in the maintenance department
E. Respondents' Defenses; Further Evidence; Conclusions
Respondents' reason for laying off the first two employ-
ees, on July 26, is grounded on "lack of work." The affirm-
ative defense, which appears in counsel's answer to the
complaint, asserts that, on August 2 and 8, the remaining
four maintenance employees were "discharged" as a result
of "said individuals failing and refusing to perform work
tasks assigned to them in a proper and efficient manner
and in accordance with the custom established in the per-
formance of work by said individuals, which failure and
refusal, on information and belief, came about as a result
of the discharge of John Winfield and Salvatore DiSomma
on or about July 26, 1973, and as a result of a lack of work
to keep said individuals employed. ..." There is no "in-
formation" and no indicated basis for "belief" of any indi-
vidual or concerted decision or action by the Leonardis,
Bartoli, or Nare to engage in a slow down or reduction in
their normal efficiency following the "discharge" of Win-
field and DiSomma. The additional ground, that of lack of
work, advanced for the later four discharges appears to
claim there was suddenly no work to sustain the entire
preexisting maintenance department as of August 8. Such a
claim is unsupported and patently fallacious
Respondents' general position of lack of work embraces
a limited period of 3 or 4 months preceding the termina-
tions during which the maintenance employees, and others,
were assigned for a portion of their time to perform certain
work on "bogies." A "bogie" consists of a large metal
frame from 80 to 100 feet long, with eight wheels, which is
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
used by Respondent as a trailer for hauling beams or other
heavy pre-stressed concrete products. In April or May, Re-
spondents purchased 12 "dollies" as army surplus which it
undertook to convert to the bogies. The process required
the welding, or "fabricating," of heavy metal plates and a
variety of mechanical and electrical work. The main task of
constructing the bogies was completed in the last week of
July, when Respondents began to use them for deliveries.
However, there was a continuing need of repair and main-
tenance of the bogies. Prior to such purchase of army sur-
plus, Respondents employed in its operations other bogies
on which various maintenance work was routinely per-
formed. Frances gave as reason for the overtime work that
there was a "deadline" for the completion of the bogies,
originally set for July 15, but postponed. As purported just-
ification for the termination based on "lack of work," this
testimony does not reconcile with the overwhelming evi-
dence. If such a deadline existed, it is exceedingly strange
that the employees were given no advance notice of such
deadline and the possibility of layoff due to a slackening of
work. Indeed, the employees were consistently and sub-
stantially occupied in jobs, including overtime, unrelated
to the bogies in the long period preceding as well as during
the few months of the army surplus conversions.
Nare had been employed by Respondents 13 for 6-1/2
years as a trained mechanic, working on trucks, forklifts,
payloaders (concrete mixers), pipe machines, and general
plant maintenance. He testified there were always projects
and tasks to be performed; he was never lacking in work.
Nare spent about 2 hours a day on the army surplus bogies
until his discharge on August 8.
Bartoli had been employed with Respondents for about
2 years and 8 months. As a mechanic, he performed the
same work as Nare, as well as certain welding functions.
Apparently for the major part of his employment until his
discharge, on August 8, his regular workweek averaged 53
hours, or 13 hours at overtime pay. It appears that the
competence of Bartoh, in particular, was highly regarded
by Frances and Monahan. In June, and each year when
the vacation list was prepared, the maintenance employees
were invited by Respondent to work during all or part of
their 2-week paid vacations and receive double pay for
such work. Bartoli agreed to work for 1 week of his vaca-
tion, at the end of July. He testified that about 50 percent
of his time was spent during a 2-month period working on
the army surplus bogies. He was given charge of this pro-
ject and distributed the work to the rest of the men.
Louis Leonarde had been employed, mainly on the night
shift, for about 2-1/2 years as a mechanic. He was respon-
sible for repairing pipe machinery on which 20-30 laborers
depended for their work the next morning, and had regular
repairs on forklifts, cement mixers, trucks, and other equip-
ment. On the army surplus bogies, he devoted about I or 2
hours a night, only when he had time left over from his
other, priority, duties.
Winfield worked for about 2 years, performing general
duties as a mechanic and also did some shop welding. In
addition, for about 5 months until his termination, on July
13 Nominally he was on the payroll of Respondent Grand He worked
and was supervised together with employees of Respondent Clearview
26, he operated a "payloader" from 4 to 6 p.m. almost
every day.14 He testified, as of July 26, there were several
major repair jobs in process and other jobs waiting to be
done. On one job (rebuilding the transmission of a pay-
loader), the mechanics needed about 3 more weeks to com-
plete the repair. He did "some work" on the army surplus
bogies, but not every day.
DiSomma was employed for over 1 year doing mostly
repair and heavy welding. Prior to his termination, he
worked overtime 2 or 3 Saturdays each month and I or 2
hours during the week because "there was so much work to
catch up on." At Respondents' request, he consented to
forego 1 week of his vacation because he was told there
"was plenty of work" for him. A "considerable amount" of
his time was spent on the army surplus bogies. Actually,
the work on these bogies was never finished; they would
break down or crack, and there was always something to
do on them. At the time of his termination, he was working
on a job, which consumed most of his time, welding large
pallets, unrelated to the bogies. Foreman Monahan then
told him there were 3 or 4 months of full-time work to be
done on these pallets. Only DiSomma was permitted to
perform this type of work, which required "special weld-
ing,"
Peter Leonardi was employed for about 13 months as a
helper in maintenance and mechanical work Inter aka, he
was responsible for greasing and cleaning all the vehicles
and machines. He testified he told Frances, who was
aware, that it was impossible to keep up with the greasing
and cleaning because he had to do so much other work on
the night shift. On most, but not all, nights in the week he
was able to work about 4 hours on the army surplus bogies
since the project was begun about May 1.
Arty Carbone and Rodriquez Gomez were purportedly
hired as "laborers" in about the spring of 1973 and directly
assigned to perform welding work on the bogies in con-
junction with the maintenance crew" Gomez, particularly,
was not an experienced welder and had to be trained by
DiSomma. Frances was never critical of DiSomma's work,
but did complain about Gomez. After the termination of
the six regular maintenance employees, Carbone and Go-
mez were continued in their same employment.16 In Fran-
ces' testimony, he told all six maintenance employees in
virtually identical language that "things are getting slow, I
have to let you go." He indicated that he made the deci-
sions to terminate these employees on the successive dates
in accordance with the Company's seniority policy. And he
stated that, since the terminations , all maintenance welding
has been performed by laborers.
During Nare's entire tenure of 6-1/2 years, there were no
prior layoffs of maintenance employees, as he credibly tes-
tified.17
14 During the regular day shift ending at 4 p in , an operating engineer ran
the payloader
'5 Frances stated Gomez worked 4 to 5 months, until he quit in Novem-
ber
16 Frances testified that Gomez received the same pay, $5 20 an hour, as
did Nare. Bartoh, Louis Leonardi, and Winfield DiSomma's rate was $4 70
17 In testifying that there were instances of such layoffs, Frances specified
the names of Carpenter and Salanie On cross-examination , he admitted
that these two individuals were in fact members of the Operating Engineers
His vague mention of an employee called "Ron" is unacceptable Respon-
CLEARVIEW CONCRETE PIPE
Respondents ' witnesses generally disclosed that new
maintenance employees were hired beginning in "late Au-
gust ." After a turnover of four such employees , who could
not handle that work , two mechanics were found suitable
and have since been employed . is These new maintenance
employees have been working overtime , and the night shift
has been eliminated.
It appears that Nare was the only maintenance mechanic
during his first 3 years of employment , since early 1967.
However, commencing about December 1970, additional
maintenance employees were hired "when they were form-
ing Grand Pre-Stressed across the street ." The manifest ev-
idence , sought to be ignored by Respondents , is that the
maintenance department of six employees was formed and
intact substantially before the short term bogie project was
begun in the spring of 1973. Thus, preceding their termina-
tions, four of the maintenance crew had been continuously
employed for 2 or more years, and two had been so em-
ployed in excess of 1 year . Respondents ' testimony and
insistent arguments that , following the six terminations as
of August 8, the "normal" complement of two mainte-
nance employees in the department was resumed is dis-
missed as sheer fabrication . And the broad contention that,
suddenly, at the conclusion of the bogie conversions, there
was no work to sustain the entire maintenance crew is like-
wise wholly unsupportable . The specific and uncontradict-
ed evidence of the employees amply establishes that there
was full-time work for the regular six-man department af-
ter July 26 to the same extent as existed for the long term
preceding the interval of the bogies.19 Moreover, there is
scarce justification for the retention of Gomez and Car-
bone in maintenance work while laying off the regular
maintenance employees , particularly DiSomma, Winfield,
and Bartoli who were doing skilled welding work.
There is likewise a complete lack of merit in the vague
defense that , since the first termination on July 26, the four
remaining maintenance employees did not perform their
work "in a proper and efficient manner" in the period until
their respective terminations on August 2 and 8. These four
employees of substantial tenure were not warned or re-
proached for inefficient work , and were told only that they
were laid off for lack of work . Their immediate supervisor,
Monahan, testified he did not speak to any of these em-
ployees directly concerning alleged deficiencies , but merely
informed Superintendent Frances that certain work had
not been done , indicating a need rather than a criticism.
Even as embellished by Frances , his alleged complaints
against these employees consisted of no more than the usu-
al requests to "hustle it up " or to get a needed repair job
done . He admitted there are "always complaints with ev-
eryone." 20 I find that , in this short period , the employees
dents had records which could readily have been produceo
is Monahan 's testimony
19 Louis Leonardi testified that there was more work , and he worked even
harder , after the first two men were laid off on July 26
20 1 do not credit Frances' testimony , for example , that Nare was slowing
up on all jobs, and that when he told Nare "you better shape up ," Nare just
smiled and "went along his merry way " I similarly view the apparently
innocuous instances regarding the "400 " machine and Nare's sweeping the
floors The night -shift assignments for the Leonardis were listed on a black-
board It was a usual occurrence , preceding the bogie project , that some of
these tasks could not be completed on the particular nights and that Frances
mentioned the unfinished work to the Leonardis from time to time
759
were performing with their normal competence , and that
there was no reasonable basis for terminating them on the
alleged grounds of inefficiency.
Based on dubious testimony , without records , the point
is stressed by Respondents that "normal" operations have
continued since August 8 with only the two new mainte-
nance employees . In all the circumstances , I do not consid-
er the evidence shown as any proof refuting the alleged
discriminations . It is recalled that Frances had threatened
Nare that Respondents "wouldn 't stand for the union" and
"will find ways to cut down .. . send the trucks out for
repairs or discharge men or something ." Having the pecu-
liar knowledge , Respondents have not probatively dis-
closed what was actually done after the terminations con-
cerning performance of all the maintenance work which
the record shows existed in full measure . Significantly, all
maintenance welding is now being performed by laborers,
admittedly a shift to a different method of operation since
the terminations . Since August 8, the extent to which newly
hired laborers or others in the represented units have been
utilized in the general maintenance functions , or whether
trucks and other equipment previously serviced in the
maintenance department were being sent out for such
work , as threatened by Frances , are not elements within
the General Counsel 's burden to establish . The various de-
fenses are manifestly pretextous ; Respondents ' animus is
clear; and the timing of the terminations significantly fol-
lows closely upon the Union 's request for recognition. Cer-
tainly, there was unlawful discrimination in terminating
each of the six maintenance employees while continuing
Gomez and Carbone in the maintenance shop and prompt-
ly thereafter undertaking to hire new maintenance employ-
ees.
In the entire record , the evidence is sufficient in support
of the General Counsel 's complaint that Respondents dis-
charged the entire contingent of the existing maintenance
department , fulfilling the express threats of Frances and
Monahan , because of a compelling motivation to bar their
quest for representation by the Machinists and to prevent
such attempts in the future . Accordingly , I conclude that
Nare , Bartoli , Louis Leonardi , Peter Leonardi , Winfield,
and DiSomma were discharged in violation of Section
8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section III,
above , occurring in connection with Respondents ' opera-
tions described in section I, above, have a close, intimate,
and substantial relation with trade, traffic , and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the discriminatory discharges and other seri-
ous violations, the cease-and-desist order in broad form is
clearly warranted.21
It has been found that Respondents unlawfully dis-
charged John Winfield and Salvatore DiSomma on July
26, Louis and Peter Leonardi on August 2, and George
Bartoli and Earl Nare on Augut 8, 1973. It will therefore be
recommended that Respondents offer these employees im-
mediate and full reinstatement to their former positions or,
if such positions no longer exist, to substantially equivalent
positions, without prejudice to the seniority or other rights
and privileges they previously enjoyed, and make them
whole for any loss of pay suffered as a result of the dis-
crimination against them, by payment to them of a sum of
money equal to that which they normally would have
earned, absent the discrimination, with backpay and inter-
est computed under the established criteria of the Board 22
It will be further recommended that Respondents preserve
and make available to the Board, upon request, all payroll
records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
and useful to determine the amounts of backpay and the
rights of reinstatement under the terms of these recommen-
dations.
Upon the foregoing findings of fact, and upon the entire
record, I make the following:
CONCLUSIONS OF LAW
1. Respondents are employers 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 discharging Earl Nare, George Bartoli, Louis Leo-
nardi, John Winfield, Salvatore DiSomma, and Peter Leo-
nardi, thereby discouraging membership in the Union, Re-
spondents have engaged in and are engaging in unfair la-
bor practices within the meaning of Section 8(a)(3) of the
Act.
4. By the foregoing, and by other specific acts and con-
duct interfering with, restraining, and coercing employees
in the exercise of the rights guaranteed in Section 7 of the
Act, Respondents have engaged in and are engaging in
unfair labor practices within the meaning of Section 8(a)(l)
of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the above findings of fact, conclusions of law, and
the entire record in the case, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER23
Respondents, Clearview Concrete Pipe Corp., d/b/a
Clearview Concrete Products Corp., and Grand Pre-
Stressed Corp., Deer Park, Suffolk County, New York,
their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities or those of their fellow employees.
(b) Threatening employees with discharge or other re-
prisals for seeking union representation or otherwise en-
gaging in union or concerted activities.
(c) Discouraging membership in District 15, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, by discharging employees, or in any other man-
ner discriminating in regard to hire or tenure of employ-
ment or any term or condition of employment.
(d) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Earl Nare, George Bartoli, Louis Leonardi,
John Winfield, Salvatore DiSomma, and Peter Leonardi
immediate and full reinstatement to their former positions,
or if such positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights or privileges, and make them whole for any loss of
earnings, in the manner set forth in "The Remedy" section
of the Decision of the Administrative Law Judge.
(b) Preserve and make available to the Board or its
agents all payroll or other records, as set forth in in "The
Remedy" section of the Decision of the Administrative
Law Judge.
(c) Post at their Deer Park, New York, plant and facili-
ties, copies of the attached notice marked "Appendix." 24
Copies of said notice, on forms provided by the Regional
Director for Region 29, shall, after being duly signed by
Respondent, be posted immediately upon receipt thereof in
conspicuous places, and be maintained for a period of 60
consecutive days. Reasonable steps shall be taken to ensure
that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondents have taken to comply herewith.
21 N L R B v Express Publishing Company, 312 U S 426 (1941), N L R B
v Entwistle Mfg Co, 120 F 2d 532 (C A 4, 1941)
22 F W Woolworth Company, 90 NLRB 298 (1950), Isis Plumbing &
Heating Co, 138 NLRB 716 (1963)
23 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
24 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
CLEARVIEW CONCRETE PIPE 761
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice; and we intend to carry out the Order of
the Board, and abide by the following.
WE WILL NOT question you regarding your union
activities, or the union activities of your fellow em-
ployees, in a manner which would coerce you regard-
ing your rights under the Act.
WE WILL NOT threaten you with discharge, or pun-
ishment of any kind, because you seek union represen-
tation or engage in any manner in union or concerted
activities for your mutual aid and protection.
WE WILL NOT discharge or layoff employees, or
otherwise discriminate against them, in order to dis-
courage membership or support for District 15, Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed employees in the National Labor Rela-
tions Act, which are as follows:
To organize themselves
To form, join, or help unions
To bargain as a group through a representative they
choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
Since it has been found that we unlawfully termi-
nated the employees named below, WE WILL offer to
give them back their regular jobs or, if those jobs no
longer exist, WE WILL give them substantially equiva-
lent jobs, and WE WILL pay them for the earnings they
lost because of the discrimination against them, with
6-percent interest.
Earl Nare John Winfield
George Bartoli Salvatore DiSomma
Louis Leonardi Peter Leonardi
All our employees are free to become or remain, or re-
frain from becoming or remaining, members of any labor
organization of their choice, except to the extent that such
rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment,
as authorized by Section 8(a)(3) of the Act, as amended
CLEARVIEW CONCRETE PIPE
CORP., d/b/a CLEARVIEW
CONCRETE PRODUCTS CORP.
AND GRAND PRE-STRESSED
CORP