Continental Can Co., Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1962

136 N.L.R.B. 1135 (N.L.R.B. 1962)

CONTINENTAL CAN COMPANY, INC. 1135
Liza Jane's testimony concerning this matter is that just before her discharge
Crank told her that she was throwing merchandise in the basket and not putting the
linen in straight enough . Whereupon he took the basket from her without any
explanation as to what he was going to do with it. Toward the end of the workday
according to her she was discharged when Crank said that he had caught her sleep-
ing the previous day and today she was not doing the job as the Company liked it
done. He therefore suggested that she punch her card and not come back. Liza
Jane testified that Crank accused her of putting the merchandise in so it was
rumpled but did not at any time mention to her that she had been throwing mer-
chandise on top of the tissue rolls. Liza Jane denied that she had been improperly
putting material in the basket but did not specifically deny that she had been putting
it on top of the rolls. She did concede that she had been warned previously many
times about putting the tissues in the bottom of the basket. She said that the basket
that was taken from her at the time of Crank's complaint had no tissue in it at all.
I accept Crank's account of the events of September 28. In so doing I find con-
siderable support in the testimony of Respondent 's President McDonald, whom I
find to be completely credible. McDonald examined the basket taken from Mrs.
Carroll by Crank and confirmed that the rolls were crushed and the linen hap-
hazardly piled.
On consideration of all the evidence I conclude that it fails to indicate by a pre-
ponderance that the discharge of Mrs. Carroll was discriminatory within Section
8(a)(3) of the Act.
CONCLUSIONS OF LAW
(1) Alamo Linen Service is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
(2) Local 131 Laundry and Dry Cleaning International Union, AFL-CIO, is a
labor organization within the purview of Section 2(5) of the Act.
(3) Respondent has engaged in an unfair labor practice within the scope of Sec-
tion 8(a) (1) of the Act, but the nature and magnitude of the unfair labor practice
committed is not such as to warrant the issuance of a remedial order
(4) Respondent has not engaged in the unfair practice under Section 8(a)(3)
alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this case , it is recommended that the complaint herein be
dismissed.
Continental Can Company , Inc. and Mickey Greco
United Papermakers and Paper Workers, AFL-CIO and Mickey
Greco. Cases Nos. 22-CA-728 and f2-CB-301. April 17, 19692
DECISION AND ORDER
On May 22, 1961, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. Thereafter, General Counsel and both Respondents filed ex-
ceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
'The Respondent Union has requested oral argument This request is denied as the
record , including the exceptions and briefs , adequately presents the issues and positions
of the parties
136 NLRB No. 98.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Leedom].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error vas committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case,2 and hereby adopts the Trial Examiner's evidentiary findings,
but not his conclusions or recommendations. The Trial Examiner
concluded that the Respondent Company violated Section 8 (a) (1),
(2), and (3) and that the Respondent Union violated Section 8(b)
(1) (A) and (2) of the Act by the discharge of the eight complainants.
He based this conclusion on the following evidentiary findings:
The Company, in the latter part of 1959, opened a plant in Carteret,
New Jersey. In April 1960, the Union was certified to represent the
Carteret employees, and contract negotiations began. By the middle
of July an economic impasse was reached, and at a union meeting on
July 16 the employees accordingly voted to strike on July 25. On
July 21 the Company made a new offer in an effort to resolve the
impasse. On the following day George Pescatore, the Union's re-
gional director and vice president, called a meeting of the employees
to consider the latest offer of the Company, and to reconsider the strike
vote of July 16. With company permission the meeting was held in
the cafeteria during a period between the work shifts. At the meetuig
objections from a group of employees opposed to reconsideration of
the strike vote increased in vehemence until it erupted into commotion
and bedlam 3 At this point, Pescatore fled the cafeteria. In doing so,
he met the plant manager, David Roggenkemper; he told Roggen-
kemper of the disturbance; and he identified the eight complainants
as the employees he thought were the cause of the disturbance. Rog-
genkemper, accompanied by the police, went to the cafeteria, called
out the names of the employees identified by Pescatore, and discharged
them.
During the following 2 workdays, the plant was shut down due to
the refusal by employees to cross a picket line set up by the dischargees.
On the third day, July 27, a union committee met with the Company
and requested the return of all the employees. The Company agreed
except for the eight dischargees, but indicated that if any of the dis-
chargees furnished the Company with a statement signed by the em-
ployees showing that they were not involved in the fight at the meet-
2 On March 8, 1962, the Respondent Union filed a "Petition . . for Reopening of
Hearing to receive newly discovered evidence," and the General Counsel filed a nieino-
randum in opposition As we are dismissing the complaint, we find it unnecessary to pass
upon the petition
a Evidence submitted by the Company's nurse shows that employees Belkowski , Russo.
and Wolansky received first-aid treatment for minor injuries which they stated had been
sustained in the "union fight" at the meeting
CONTINENTAL CAN COMPANY, INC. 1137
ing, they too would be taken back. Thereafter, two of the eight
furnished such statements, and the Company took them back.
The Trial Examiner reasoned that the Union requested and the
Company effected the discharge of the eight employees because of their
opposition to Union Official Pescatore at the meeting, that in attending
the union meeting and opposing Pescatore they were engaged in pro-
tected concerted activities ; that the Company's contention that the
discharges were for fighting was "purely pretextuous" ; and that the
discharges were therefore unlawful.
We disagree. Clearly, those discharged were part of a dissenting
element who objected at the meeting to Pescatore's demands that an-
other strike vote be taken. Equally clear is the fact that their objec-
tions caused a commotion in which people were injured. The Act
does not protect violence, and fighting is not a protected activity even
if union activity gives rise to it. Moreover, the Company did not
know that opposition to Pescatore was the cause of the fighting when
it made the discharges. Therefore the theory of the Trial Examiner
that the discharges were accomplished to rid the Company and its al-
leged ally, Pescatore, of opposition within the Union seems untenable.
In sum, we think that Pescatore was not acting in violation of the
Act when he merely reported to Roggenkemper that certain employees
were the cause of an obvious disturbance, nor was Roggenkemper vio-
lating the Act when he accepted the statement and discharged the
complainants because of it.
Any possible inference of unlawful motivation was negated, in our
view, by the Company's later action in reinstating, with no loss of
pay, those who could prove they were not involved in any fighting.
Accordingly, we shall dismiss the complaint herein.
[The Board dismissed the complaint.]
CFIAIRMAN MCCUL LOCH, dissenting :
The issues in this case are factual as the Trial Examiner found, and
turn on the resolution of highly conflicting testimony. The Trial
Examiner who saw the witnesses and heard the case made a careful
and discriminating evaluation of the evidence before him, and I find
no adequate basis on that evidence for rejecting his findings, conclu-
sions, and recommendations.
Accordingly, on the basis of the present record, I would affirm the
Trial Examiner'
4 As my colleagues are dismissing the complaint on the basis of the record already made,
I find it unnecessary to reach or determine the possible questions raised by the Union s
motion for a reopening to receive newly discovered evidence.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon separate charges filed by Mickey Greco, which were duly consolidated, the
General Counsel of the National Labor Relations Board, through the Regional
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for the Twenty -Second Region (Newark, New Jersey ), issued a complaint
dated September 23, 1960 , as later amended , alleging that the Respondent Company
and Respondent Union have engaged in and are engaging in unfair labor practices
in violation of Section 8(a)(1), (2 ), and (3 ) and Section 8(b)(1) (A) and (2) of
the Act, respectively . The answers of the Respondents admit certain allegations
of the complaint but deny the commission of any unfair labor practices . Pursuant
to notice , a hearing was held before Reeves R. Hilton , the duly designated Trial
Examiner, in Newark, New Jersey, on October 31 and November 1, 2, and 3, 1960.
All parties were represented by counsel and were afforded full opportunity to
adduce evidence , to examine and cross-examine witnesses , to present oral argument,
and to file briefs . Thereafter , counsel for the parties submitted briefs.
About January 7, 1961 , counsel for the Charging Party filed a motion to reopen
the record for the purpose of taking the testimony of a newly discovered witness,
Clifford Williams. About January 12, the General Counsel joined in the motion.
Counsel for the Respondents filed their oppositions to the motions . On January 25,
I issued an order granting the motions for the purpose of taking the testimony of
Williams, subject to the right of the Respondents to present testimony in rebuttal or
opposition thereto. On March 1, 1961, a hearing was held in Newark, New
Jersey, at which time counsel were afforded opportunity to adduce evidence in
accordance with the terms of the order , to present argument , and to file briefs, and
supplemental briefs were filed. All briefs have been considered fully.
From the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE COMPANY 'S BUSINESS
The complaint alleges that the Company, a New York corporation, has its principal
office and place of business in New York City, that it maintains plants and ware-
houses in New York and New Jersey and is engaged in the manufacture and sale
of fibre drums and related products. The present case involves the Company's plant
at Carteret, New Jersey, where in the year preceding the issuance of the complaint it
manufactured and sold products valued in excess of $4,000,000, of which products
valued in $100,000 were shipped directly from the plant to places outside the State of
New Jersey . The Company admits it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and I so find.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondent Union admits that it, as well as Local 790, are labor organizations
within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The issue
The broad question presented is whether the Union attempted to cause or caused
the Company to discharge, and did the Company discharge, eight employees because
they engaged in protected activities in violation of Section 8(b)(1)(A ) and (2) and
Section 8 (a)( 1 ), (2), and (3) of the Act, respectively.
B. The hiring of employees, the certification of the Union
The Company opened the Carteret plant in the latter part of 1959 and since then
David G. Roggenkemper has been plant manager.
According to James Russo the Company obtained a number of its employees under
the following circumstances . Russo was employed at Peter J. Schweitzer , a division
of Kimberly-Clark, a paper plant, and was president of Local 697, United Paper-
makers and Paperworkers , which was the bargaining representative for the employees.
About October 23, 1959, the plant, which employed about 75 employees, was closed
down. A week or so prior thereto Russo contacted Frank Mendez, an International
representative of the Union, regarding the placement of the Schweitzer employees in
other jobs . Mendez told Russo that Continental Can was opening a new plant in
Carteret and to get in touch with George Pescatore, vice president and regional direc-
tor for the Union in that area. Russo telephoned Pescatore and inquired if the
Schweitzer employees could obtain jobs at the new plant and Pescatore said he
would send Russo Continental Can employment applications to be filled out by the
men, with the understanding that the job applicants would sign a union membership
card. Pescatore also stated the applications "would be run through " and initialed by
him before the applicants could be hired.
CONTINENTAL CAN COMPANY, INC. 1139
Shortly thereafter Russo received the above forms. He then informed the
Schweitzer the employees they had to sign the employment application and the union
card or membership application in order to get a job at Continental Can. All the
Schweitzer employees signed both forms.
About October 26, Russo delivered the signed applications to Pescatore at his
office in Newark, New Jersey. Pescatore inquired if Russo had sorted out the trouble-
makers in the old local, then he examined the applications for the purpose of getting
good unionmen into the plant and eventual representation of the employees. Pesca-
tore sorted out the job applications, Russo was No. 1, then forwarded the applications
to the Company with a letter stating the top 20 men should be hired first. Mickey
Greco's application was included in the top 20. Russo said the union cards or mem-
bership applications were not forwarded to or requested by the Company.
Russo talked to Roggenkemper and Charles Henry, personnel supervisor, regarding
employment prior to and about January 11, 1960, and on January 18 Russo and
Greco were hired. In the interval, January 11 and 18, Henry informed Russo the
Company needed 10 men so the 2 of them went over the applications and agreed
on the men to be hired, including, of course, Russo and Greco. Russo voluntarily quit
his employment about September 28, 1960.
Russo worked January 18, and then took off for 2 weeks, during which time he was
apparently self-employed. Since Pescatore had stated the Union would file a repre-
sentation petition when it had sufficient members in the plant, Russo, upon his return
to the job, or a week later, reported to Mendez that the Union had 20 men in the
plant. Mendez, after talking to Pescatore, called Russo and said the Union would
wait until it had 30 members. Seemingly, the United Steelworkers began organizing
the employees in February and March and during that period Russo spent all his
time, he was only working a 6-hour day, 2 days a week, campaigning for the Union.
The Board's records show that the Union filed a representation petition on Febru-
ary 24, 1960 (Case No. 22-RC-743, not published in NLRB volumes), and pursuant
to stipulation an election, with the Union and the Steelworkers appearing on the
ballot, was held on April 20, 1960. Of the 61 eligible employees, 40 voted in favor
of the Union and 20 for the Steelworkers. The Union was thereafter certified by the
Board.
C. The formation of a new local; the negotiations between the Union
and the Company
After its certification, the Union chartered a new local, Local 790, to represent
the Continental employees and Russo was elected president.
Contract negotiations commenced around June 13, 1960, and, according to Russo,
about eight meetings were held up to July 22. Mendez or Pescatore acted as' spokes-
man for the Union while William B. Jones, manager of industrial relations, acted
in a similar capacity for the Company.
Jones testified the Company initially offered a minimum hourly rate of $1.78 an
hour, and at the meetings of July 11 and 13, the base rate was increased to $1.79 and
$1.81, respectively.
Russo testified that the membership held a meeting on Saturday, July 16, to con-
sider the Company's last offer of $1.81 an hour. The membership rejected this offer
and wanted no less than the rate paid at the Company's Tonawanda plant where the
Union had an agreement providing for a base rate of $1.91 per hour. The member-
ship then took a strike vote and voted 59 to 8 to take strike action. That afternoon
the Company was notified of the strike vote and that the strike would take place on
Monday, July 25.
On Thursday, July 21, the Union met with the Company and, for the first time,
Byron Renick, International representative, appeared with the committee. Jones,
after stating Pescatore had informed him a union meeting was to be held the next
day, announced the Company was increasing its offer to $1.86 per hour. Jones
stated at this meeting, as well as several others, that the base rate offered by the
Company was comparable to prevailing rates in the area and as this was a new plant
the Company could not pay the same rate as at Tonawanda, which was an old estab-
lished plant. Jones said the meeting concluded with the union representatives stating
they would contact him or Roggenkemper.
Russo said that after Jones left Renick announced Pescatore had left instructions
that the committee call another meeting of the membership to consider the Com-
pany's latest offer. While Russo pointed out the committee had no authority to do
so, in view of the action taken at the July 16 meeting, a meeting of the membership
was held that day in the Company's cafeteria. Russo did not consider the meeting
as an "official" one, but to inform the membership of the Company's latest offer.
641795-63-vol. 136-73
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Russo introduced Renick who outlined the Company's offer and stated a meeting
would be held the next day so the membership could take another strike vote. Mickey
Greco, as well as other members, objected to such a meeting for the reason that a
strike had already been voted upon and sanctioned by the Union and insisted that
Renick immediately notify Pescatore of their position. Renick then called Pescatore
from a booth in the cafeteria, but was unable to reach him. When Renick so in-
formed the employees, Greco and others insisted they would not leave until he had
done so. After two or three calls Renick spoke to Pescatore and related to Russo
that Pescatore had stated, "If that's the way you want it, if you want to go on strike
Monday, you may go out on strike Monday at this plant."
Pescatore said Renick called him on July 21 to report the Company had increased
its offer to $1.86, that he was meeting with employees in the cafeteria, and that they
were refusing to hold another meeting for the purpose of considering the offer.
Pescatore stated they would have to hold another meeting. After a brief delay,
apparently to check with the membership, Renick stated the men were not going to
take a vote. Pescatore told Renick, "Tell them to go to hell . . .. Shut the
plant down."
Jones felt that the final offer was not acceptable to the membership because they
wanted nothing less than the Tonawanda rate. Not hearing from the committee,
Jones telephoned Pescatore that evening to inform him of the final offer and express
the opinion the offer should be submitted to the membership for decision one way or
another.
That night Mendez telephoned Russo to say that Pescatore was ordering Russo to
call another meeting. Russo explained he could not do so and if Pescatore wanted to
call a meeting he would have to send him a letter or telegram, or go to the plant him-
self and post a notice. That ended the conversation.
D. The events of July 22
Around noon of July 22, Russo received a telegram from Pescatore ordering him to
call a special meeting for both shifts at 3:30 that afternoon for the purpose of taking
a strike vote on the Company's last offer. Russo showed the telegram to the com-
mittee and then posted it on the bulletin board.
About 3 o'clock Russo met Pescatore and Renick in the office part of the plant and
Pescatore inquired how he felt about the situation. Russo said he did not like it,
"it stinks," and Pescatore queried if he were afraid of "these bums " Russo
denied he was afraid whereupon Pescatore remarked, "Well, you turn that
meeting over to me. I will show you how to handle these bums." They then went
to the cafeteria where about 90 members were assembled.
Pescatore, Renick, Russo, and John Schworn, recording secretary of Local 790,
sat at a table facing the group. Russo called the meeting to order then turned it over
to Pescatore. Pescatore spoke but a few words when Mickey Greco interrupted to
complain that the meeting was illegal since it was being held on company premises.
Pescatore said Greco was out of order and declared he could holler louder than any-
one else, he then spoke for about 10 minutes during which time he stated the men
were to take another strike vote. According to Russo, objection was made to this
action because a strike vote had already been taken and the strike had been sanc-
tioned by the Union. Pescatore answered he could give strike sanction and take it
away. Pescatore then asked for a motion to accept or reject the Company's last
offer. Again, objection was made to having another vote and Pescatore explained
this was necessary for whenever the Company made another offer it must be sub-
mitted to the membership for acceptance or rejection. He then repeated his request
for a motion from the floor. Ivan Nusic thereupon made a motion, which was
seconded, that a vote by secret ballot be taken on the Company's last offer. There
was much heated discussion, comment, argument, and name-calling in connection
with the motion and, as might be expected, the record precludes any accurate account
of the sequence of events. In this connection witnesses for the General Counsel
related the following occurrences:
Russo, Mickey Greco, Frank Miller, Joseph DeCicco, Richard Romanski, and
Wolodymyr Jakovenko testified to the effect that Pescatore told the group that Jones
had informed him that if the men refused the last offer and went on strike on Monday,
the plant would close down.
Romanski asked what was the use in having a union if the Company could do that
and after a brief exchange of words Pescatore stated that was enough for him.
DeCicco declared Pescatore talked like he was representing the Company and
Pescatore replied if he did not like it he could leave.
CONTINENTAL CAN COMPANY, INC. 1141
Victor Ciancia said that when Pescatore declared he wanted the men to vote his
way, he, Clancia, spoke against him because they had already voted on the matter.
Ciancia expressed his opposition a couple of times.
James Greco, brother of Mickey Greco, asked Pescatore if he were a dictator
and he answered, "No."
Jakovenko pointed out that Pescatore had made many promises to the men but now
he was knifing them in the back. Pescatore said he was doing what was best for the
men and told Jakovenko to sit down.
Frank Miller stated that Mickey did a lot of talking during the meeting.
From the testimony of Russo and Jakovenko it appears that shortly after
Jakovenko's remarks Pescatore announced the men would cast their votes, although
Russo stated the motion had not been voted upon. Russo further stated that when
the ballots, which read, "Strike, yes or no," were about to be handed out Leon
Boguszewski objected because the ballot box, an open container, was on the table
where Pescatore and the others were seated. The box then moved and about the
same time Pescatore handed ballots to three men, one of whom was Andrew Gaynor.
Russo stated that as Gaynor started to mark his ballot on the table in front of
Pescatore and others, Boguszewski walked toward the table complaining the voting
was not secret because Pescatore and the others could see how he was marking
his ballot. At that time Jakovenko came toward the front of the room. Russo
turned around and saw Renick reaching for a rubber hose under the table and told
him to drop it and leave the room, which he did. Pescatore had already left.
Mickey Greco then asked Russo to get Pescatore and continue the meeting. Russo
did not see any fighting but there was a "scramble" to put the ballot box in the
corner of the room.
Mickey Greco said that when Boguszewski complained the voting was not secret
Pescatore told him and Jakovenko to sit down. Then the "commotion" started with
everyone "screaming" and "hollering." Greco stated he did not engage in any fight-
ing nor did he see anyone fighting or throwing punches.
DeCicco stated that after three or four men went forward to vote he decided
to vote and as he walked toward the table everyone started running up and there
was "a hustle and a shuffle," which apparent lasted but a few minutes. DeCicco
saw Pescatore run out of the room. DeCicco denied he engaged in, or that he saw,
any fighting.
Ciancia said there was a lot of milling around, commotion, and confusion when
the voting commenced. He stated he did not participate in any fighting nor did he
see anyone else fighting.
Jakovenko testified that when Boguszewski protested the manner of voting he
joined in and accused Pescatore of running the meeting like a dictator. Pescatore
made no reply but smiled. Jakovenko said Greco then asked Pescatore if he were a
Communist and when Pescatore laughed or grinned, "that got me really mad,"
so he started toward Pescatore Y Somebody yelled to grab Jakovenko and about
20 men rushed toward him grabbing him when he was 4 or 5 feet from Pescatore.
As they were dragging Jakovenko to the back of the room someone hollered to hit
him, to bring him out of it, and somebody struck him. Jakovenko said he was all
right and they let him sit down.
Romanski stated Jakovenko seemed to have "lost his head" and while a group of
men were restraining him someone said to hit him, and someone did. Romanski
also saw Robert Belkowski on one knee, bleeding, so he went over and helped him
up. Romanski said he did not engage in any fighting.
Boguszewski did not testify at the hearing.
The Union's Evidence
Pescatore called the special meeting because he considered it necessary to take
a second strike vote since the Company had increased its offer after the first strike
vote had been taken.2 Pescatore stated Russo turned the meeting over to him and
as soon as he opened the session Mickey Greco questioned his authority to call the
meeting. Pescatore explained they were to vote on the last offer whereupon two
1 Jakovenko was 20 years old and was born in the Ukraine According to Russo,
Jakovenko said he had been in a concentration camp and apologized for his conduct
2 Pescatore's position in this respect had been approved by the International president
in an earlier and similar situation It is also clear from the exchange of letters in that
case that if the second strike vote is "not carried by two-thirds majority the strike sanc-
tion is then withdrawn"
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or three men jumped up and said they were not going to vote. Pescatore declared,
"You are going to vote; whether you like it or not, you are going to vote my way." 3
He further stated it was immaterial to him if they refused to vote, "because I have
the power to give you the sanction to strike or to take it away." This brought yells
of "stooge," "dictator," and other names, and when Mickey Greco asked if he was a
Communist he simply smiled at him. Pescatore requested a motion and Nusic moved
that a vote by secret ballot be taken on acceptance or rejection of the last offer.
According to Pescatore unless the offer was rejected by a two-thirds vote the com-
mittee would be authorized to sign the contract. The motion was seconded and
discussed for about 20 minutes. The discussion was rather orderly except for
four or five men who kept jumping up yelling "dictator." Finally, the motion was
approved by voice vote. Discussion continued and when someone accused Pescatore
of forcing the contract on them he replied it was a good agreement, although it could
be better. He also stated that Jones had told him and the committee if the Union
shut down the plant it would stay down. Mickey Greco said he did not believe
this and demanded Jones be brought in, which Pescatore refused to even consider.
When Pescatore announced the voting would begin someone complained the ballot
box was in front of him, so it was moved and placed in front of Schworn. As the
first man was about to mark his ballot, Mickey Greco, his brother, and brother-in-law,
apparently DeCicco, rushed toward the table, Mickey Greco yelling something about
getting the ballots. At the same time Boguszewski and Jakovenko were swinging
punches and in all there was quite a commotion. Pescatore saw Jakovenko, who
was "going wild," hit a man, while Nusic and Belkowski were struck by unidentified
men. While this was going on Willie Williams suggested it would be better for
Pescatore to leave, so the two of them left the room. Pescatore stated that al-
though a lot of men he could not identify were swinging, he did not see Mickey
Greco, his brother, Ciancia, DeCicco, or Romanski do any swinging or fighting.
Renick said when the fighting bgean he left his table and attempted to break
it up. Renick saw a piece of rubber lying on one of the tables where the men
had been seated so he picked it up and threw it into a corner of the room. He
denied he brought the piece of rubber into the meeting or that Russo told him to drop
it. Renick said while he was looking for Pescatore, Russo asked him to leave and
he told him he was not leaving until he found Pescatore.
Nusic said that during the commotion he was pushed rather than hit.
Belkowski said as he and five or six men walked toward the table to get their
ballots Jakovenko came running from the back of the room with his fists clenched
shouting he was going to get Pescatore. At the same time about five others ran up,
including DeCicco, Boguszewski, Romanski, and perhaps James Greco. Boguszew-
ski threatened Nusic and Belkowski and struck Belkowski five or six times, breaking
his bridgework and cutting his lips. During the scuffle DeCicco picked up the
ballots and threw them up in the air. Belkowski did not say how long the affair
lasted, the fellows were trying to quiet things down, but order was restored when
someone hollered a police car was outside. Belkowski remained in the cafeteria
until the meeting concluded then went to the first-aid room?
E. The discharges
1. The General Counsel's case
Russo testified, in line with Mickey Greco's suggestion, he left the cafeteria for
the purpose of having Pescatore return to the meeting and he found Pescatore with
Roggenkemper, a police officer, and two plant foremen in the area of the timeclock.
Russo told Pescatore the men wanted him to come back and complete the meeting.
Pescatore in strong, vile language refused to go back to the meeting and declared
all the members were suspended and the strike sanction rescinded. As Russo was
about to leave he heard Pescatore tell Roggenkemper "that these eight will have to
be fired." Russo returned to the meeting where he informed the men of his con-
versation with Pescatore and that the entire membership had been suspended and
Willie Williams had been appointed temporary president Russo also stated that
he had heard eight men were to be fired. When some of the members asked who
they were he answered he did not know for he did not hear any names mentioned.
About that time Roggenkemper, accompanied by a police officer and Foreman Fran
3 Later in his testimony Pescatore said he was referring to the method of voting, not
the results.
4 The Company's first-aid records show that Russo, Belkowski, and Harry Wolansky re-
ceived first-aid treatment for minor injuries which they stated had been sustained in a
"union fight."
CONTINENTAL CAN COMPANY, INC. 1143
Nebel , entered the room. Russo estimated that about 10 minutes elapsed from the
time Pescatore left the meeting to Roggenkemper 's appearance . Roggenkemper an-
nounced, "Will these eight men please step outside?" and then read seven names
from a list; the two Grecos, Ciancia , DeCicco, Romanski , Boguszewski , and Jako-
venko, all named in the complaint as discriminatees . Roggenkemper and these in-
dividuals left the room and the membership meeting ended.
Each of the above -named individuals ( except Boguszewski ) testified that Roggen-
kemper came into the cafeteria and, in substance , stated, "Will the following eight
men follow me?" whereupon he read seven names from a list he had before him.
Roggenkemper and the seven men then went to the timeclock area where they
were discharged. Mickey Greco asked why they were being discharged and
Roggenkemper replied, "I 'm ordered to fire you eight men ." When Greco inquired
if top management officials or Pescatore had given the order , Roggenkemper an-
swered, "I have been ordered to." The remaining men testified he simply said he
had been ordered to fire them but refused to disclose the person or persons who
issued the order . Jakovenko said three times he asked who had given the order and
while Roggenkemper did not answer the inquiries he did finally state they were being
discharged "for creating a disturbance ." Jakovenko remarked he was the one who
got "Pescatore hot under the collar," so why should he fire the rest of the men.
DeCicco admitted Roggenkemper told them they were being discharged for fighting
on company property. He also stated he told Roggenkemper that Ciancia was not
involved in anything at the meeting . Upon being discharged the men left the plant.
Later, Russo met Pescatore outside the plant and when he asked Pescatore if he
realized what vile remarks he had made to him , Pescatore repeated the remarks.
Russo got into his car and then asked how long the suspension would last. Pescatore
said it was only a matter of weeks. Russo also inquired if the eight men, the num-
ber used by Roggenkemper , would ever return to the plant and Pescatore replied,
"As long as I am Regional Director in this area , they will never get back to work."
Miller testified he remained at the meeting for about an hour and when Pescatore
announced that members who were not paid up should leave before the voting, he
left the cafeteria and went to the lockerroom to change his clothes. About 10 min-
utes later Miller decided to go back to the meeting to find out the results of the
voting and as he entered the screenroom , which is adjacent to and has an entrance
to the cafeteria, he saw Willie Williams running out of the cafeteria. Miller asked
what was wrong and Williams said he was going to call the police. As Miller
approached the door to the cafeteria , Pescatore came running out, "white as a
ghost," and stated , "there is a bunch of mad dogs in there . they ought to fire
the whole bunch of them." Pescatore ran to the timeclock, followed by Miller,
where he met Roggenkemper, Nebel, and "Al," apparently Alvin Reiff, quality con-
trol supervisor Miller heard Pescatore tell them that the Union, as well as the
committee , is suspended , that no strike vote had been taken , and "any man who
does not report for work on Monday morning at his regular scheduled shift, you
have my permission to fire him." As Pescatore, Roggenkemper, and Willie Williams
headed for the office, Miller heard Pescatore mention "Mickey," whom he under-
stood to be Mickey Greco. The group then entered the office Russo was not
present with Miller during this time , nor was he in the cafeteria when Miller re-
turned to the meeting . However, about 10 minutes later Russo came and announced
the Union had been suspended . Miller was also present when Roggenkemper read
off seven names from a list and told the men to follow him. About 15 minutes
after the meeting broke up, Miller met Pescatore outside the plant and when Richard
Rowe walked out of the door Pescatore asked if he knew him. Miller said he did
not know him , whereupon Pescatore remarked , "There is one guy I missed." Miller
was riding home with Russo and while they were in Russo's car, Pescatore came over
and asked Russo if he were mad at him. Russo said, "No," and inquired how long
the suspension would last and Pescatore replied 2 weeks or 30 days at most. Russo
then asked when the seven men would return to work and Pescatore answered, "As
long as I am Regional Director of Region Two, those men will never come back
to work."
Clifford Williams, who testified at the reopened hearing on March 1 , 1961, was
employed at the plant in June 1960 and for many years prior thereto he had worked
for the Company at its Newark plant While employed at the Newark plant
Williams was a member of the Steelworkers and when he came to Carteret he joined
Local 790, later becoming chief steward Williams did not engage in any organiza-
tional activities on behalf of the Steelworkers at the Carteret plant.
Williams was present at the meeting on July 22, and attempted to restrain
Jakovenko when he approached Pescatore . Williams then left the meeting and a
minute or so later he saw Pescatore hurriedly come out of the silk screen room and
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.as he passed Williams he said, "Those people are crazy in there." Williams followed
.Pescatore, who was alone, to the timeclock area where he met Roggenkemper.
There, Pescatore, in the presence of Williams and Henry, told Roggenkemper, "Those
-people are crazy and they are being led by a small group. . Call the police."
Pescatore, according to Williams, then stated, "Fire these men," and named Mickey
•Greco, Jakovenko, and five or six others whose names he could not recall. Roggen-
kemper wrote their names on a piece of paper. While Williams believed Nebel
was present at the time, he could not recall seeing Russo, Willie Williams, or Gaynor
in the area. Continuing, Pescatore told Roggenkemper the entire local was sus-
pended and Renick and Willie Williams would act as administrator and chairman,
respectively. Pescatore further stated that "Anybody that don't report to work
Monday you have the right to take them off the payroll, but the names I gave
you, they are finished." Williams said Russo, Willie Williams, and Gaynor were in
the area when Pescatore made the above statement.
About that time the police arrived and Roggenkemper went into the cafeteria.
Williams remained outside but heard Roggenkemper call out the names of the men
who were discharged.
Later Williams entered the cafeteria and when some of the members asked Russo
to call the meeting to order he replied he had been suspended and Willie Williams
was chairman of the local.
Williams admitted he spoke to Henry twice that day requesting permission to take
off that night for the reasons he was going on vacation Monday and he did not
want to jeopardize his seniority with the Company. Henry granted his request.
Neither of these talks occurred during the Pescatore-Roggenkemper conversation.
Williams, on cross-examination, admitted he did not hear Pescatore give any reasons
for requesting the discharges, that no mention was made of employee opposition
to the contract, and he did not hear Russo ask Pescatore to return to the meeting.
2. The Respondents' case
It is conceded that on July 22, Roggenkemper granted Pescatore's request to hold
a meeting at the plant for both shifts so that the members could vote on the Com-
pany's last wage offer. It is also clear that Roggenkemper instructed all office and
supervisory personnel to stay away from the cafeteria while the meeting was in
progress and there is no claim the instructions were not followed
About 4:15, Roggenkemper was returning to his office from the plant and he
noticed a group of men in the timeclock area The men were excited and talking
and as he passed one unidentified individual said, "Don't go in the cafeteria because
there was a fight in there." Roggenkemper made no reply and continued on his way
to the general office area. There the office workers, who quit at 4:30, were con-
gregated and some unidentified persons told him a fight was going on and the police
should be called. Roggenkemper then went to the switchboard operator who in-
formed him the police had been called at the request of Foreman Bart Johnson.
She also stated Pescatore and Renick were looking for him. Roggenkemper met
Pescatore and Renick and had a continuing conversation with them in the sales
office and the lobby of the plant. Both office and plant employees were present dur-
ing this conversation. Roggenkemper asked what was happening and Pescatore
said, "There was a helluva fight going on in the cafeteria." Roggenkemper requested
the names of the men who were fighting because, under company rules, they were
subject to discharge. Pescatore said it was "Mickey Greco and his gang" and also
a man called "Yak," meaning Jakovenko. The identity of the remaining dis-
criminatees (except Rowe) was obtained through Pescatore's description of their
physical appearance or clothing worn, whereupon employees, who were milling
around, would volunteer the name of the person thus described.
Meantime a police officer arrived and after Roggenkemper had secured the names
of seven men, the officer asked what was going on. Roggenkemper stated the em-
ployees were having a union meeting in the cafeteria and a fight was going on. The
officer said "he had just come by there and everything seemed to be quiet." Ad-
mittedly, the interior of the cafeteria can be seen from the plant driveway. Roggen-
kemper then told Pescatore and Renick he was going to discharge the men on his
list and Pescatore suggested he wait until Monday, but Roggenkemper refused
because he "wanted to get it over with "
Roggenkemper and the officer then went to the cafeteria where he found every-
thing quiet. About 10 minutes had elapsed from the time Roggenkemper first heard
of the disturbance until he entered the cafeteria. There Roggenkemper simply
announced , "The following men will please come with me," and called out the names
of the seven men on his list . Roggenkemper took the seven men to the timeclock
CONTINENTAL CAN COMPANY, INC. 1145
area and, after telling them to punch out, if they had not done so, stated, "Effective
at once you are all discharged for fighting on Company property." Mickey Greco
commented he knew the meeting should not have been held on company property.
When Roggenkemper remarked fighting did not settle problems, Greco complained
Pescatore had no right to conduct the meeting the way he did. Other men joined
in the discussion and in the course thereof some of them stated Ciancia had not
participated in any fighting. Roggenkemper said if that were true Ciancia would be
rehired. After some more talk the men shook hands with Roggenkemper and left
the plant. Roggenkemper denied he told the men he had been ordered to fire them.
He testified the decision to discharge the men was made without consultation with
company officials or any request from Pescatore or Renick. Roggenkemper stated
Nebel and Reiff were present when he discharged the men, but he did not see
Pescatore or Renick in the area at that time.
Following the discharges Roggenkemper met Pescatore and Renick in the plant
lobby and, for the first time, inquired as to the cause of the fighting. Pescatore
explained fighting broke out when the men started to vote. Pescatore also stated
the local was suspended and Willie Williams would act as chairman of the local,
while Renick would act as his representative. He further stated the plant would
operate on Monday and if any employees failed to report for work Roggenkemper
was free to take any action he might desire. At that point, Roggenkemper saw Rowe
outside the plant walking toward his car and Pescatore said , "That man was in the
fight too." Roggenkemper mentioned Rowe' s name and said he would fire him,
which he did. Pescatore and Renick then left the plant.
Henry, Nebel, and Reiff testified to the effect that Roggenkemper told the men
they were being discharged for fighting; that Mickey Greco complained the meeting
should not have been held on company property, and that some of the men asserted
Ciancia was not involved in any fighting.
Pescatore testified he met Roggenkemper in the plant lobby and remarked they had
a "riot" at the meeting. When Roggenkemper asked what happened, Pescatore said
as they were about to vote Mickey Greco and his boys rushed towards the table and
"A bunch of young punks were screaming like hell." Roggenkemper asked the
names of the men and Pescatore replied he knew only Mickey Greco and his
brothers-in-law, DeCicco, and Ciancia. Roggenkemper said he would find out the
names of the men involved Roggenkemper then went to the sales office, where
quite a crowd was assembled, and when Roggenkemper again asked for the names
of the men, Pescatore said he did not know their names. In line with Roggen-
kemper's suggestion, Pescatore attempted to give a description of the men. One he
described as having "sort of a beard and goatee, a little skinny cbap," and someone
in the crowd said that was Leon Boguszewski. Another he described as a "weight-
lifter and a refugee," and the response came that that was Jakovenko. Roggen-
kemper asked him to continue and Pescatore answered:
That is all I can describe. All I saw was swinging, there were some more
swinging, but I don't know their names. I can hardly describe them. There
were many more men who mentioned different people. I said, "I don't know
him." There was a name mentioned. I said, "I don't know the name. These
fellows who were sitting there they were swinging, I did describe them, they are
young boys." They mentioned about eight or nine more names. I said, "No, I
couldn't tell you, the names, don't mean a damn thing to me."
Although Pescatore stated be did not see any of the discriminatees fighting (apart
from Boguszewski and Jakovenko), he said he may have told Roggenkemper,
Mickey Green's "gang were [sic] fighting."
Roggenkemper then stated, "Well, I am going to fire these boys," and when
Pescatore asked the reason therefor, he answered, "we have a very strict plant rule"
-against fighting. Pescatore suggested that he wait until Monday, but Roggenkemper
said he was going to do it immediately.
During their conversation, seemingly immediately after Roggenkemper announced
he was firing the men, Pescatore told Roggenkemper that he had rescinded the strike
sanction, that he was suspending the local and its officers, and appointing Renick
administrator and Willie Williams chairman of the local. As Pescatore did not
know whether he had authority to suspend the local and its officers, he advised
Roggenkemper that he would get a letter from the president of the International
Union confirming his action .5 Pescatore stated the men would be in Monday and
8 The constitution of the International Union (article YII, section C. (b), p 24) pro-
vides- the character of a local union which violates the constitution or the policies of the
International Union may be suspended by the International president, subject to approval
of the International executive board It further provides (article XIX, section 3, p. 35).
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when someone in the group , there were 15 or 20 present, asked what would happen
if the men did not come in , Pescatore answered that was Roggenkemper 's problem.
The conversation ended on that note.
Pescatore said that while he and Renick were in the lobby , Russo asked him to
come back, that the men wanted to vote, but he refused , stating it was too late.
Russo then left.
Pescatore had a brief conversation with Russo , outside the plant, in the course of
which Russo inquired how long the suspension would last and he replied , "maybe 30
days," that as soon as things cooled off they would have another vote . He denied
having any conversation with Russo or Miller regarding the reemployment of the
discriminatees , or that he made the statement they would never return as long as he
was regional director , or that he asked Miller the name of an employee passing by,
whom Miller identified as Rowe. Pescatore denied that he requested Roggenkemper
to discharge any of the discriminatees.
Renick said he was not present at any time during the Pescatore -Roggenkemper
conversations.
3. The Respondents ' testimony at the reopened hearing
Roggenkemper stated he did not talk to Pescatore in the timeclock area, but in
the plant lobby and front area in the presence of a police officer, Renick, and some
employees . Roggenkemper did not see Clifford Williams when he was talking to
Pescatore but he could have been among the group of employees standing around.
Henry testified Pescatore passed by him in the main aisle of the plant , saying "Some-
one call the police," and continued on toward the main entrance of the plant.
Within a minute , Clifford Williams came by and remarked to Henry that he had
never seen a union meeting like this one . Williams went on and Henry proceeded
to the lobby where he saw Roggenkemper, Pescatore , Renick, and several employees.
Henry did not remain in the lobby but walked over to the first-aid room, which
is not within hearing distance of the lobby , and met Clifford Williams , who asked
to be excused from his shift that night. Henry said he would check with Nebel and
later did grant Williams' request. Henry stated he did not hear Pescatore ask
Roggenkemper to discharge anyone and he did not see Pescatore and Roggenkemper
talking together at any place other than in the plant lobby.
Pescatore said he and Willie Williams left the cafeteria together and walked down
the aisle or corridor leading to the timeclock area. Pescatore admitted that on the
way they met Henry and one or two men but denied seeing Clifford Williams.
Pescatore denied he ever requested Roggenkemper to fire any of the men.
Willie Williams testified he and Pescatore walked from the cafeteria to the first-aid
room and at no time did he see Clifford Williams.
Renick said he joined Pescatore and Willie Williams on their way to the first-
aid room but he did not see Clifford Williams.
4. Events Subsequent to the Discharges
On Monday , July 25, the seven dischargees picketed the plant and production
ceased for the next 2 days.
On July 27, the local committee , composed of Joe Campbell , chief steward,
Russo, Walter Mesuk , Ray Genz, and Al Zoli, met with Roggenkemper to discuss
the dispute . Campbell, according to Russo, acted as spokesman and asked if Rog-
genkemper would take back all the men Roggenkemper said all the men could
return , except the eight individuals he had fired , and mentioned Rowe as the eighth
dischargee . Campbell inquired the reason for the discharges and Roggenkemper
stated it was the policy of the Company to immediately discharge anyone caught
fighting on company property . Campbell pointed out no plant officials were
present at the meeting and asked how he knew of the fighting and the persons in-
volved . Roggenkemper said he received the information from Pescatore and that
Pescatore told him to fire the men involved . The meeting concluded with the
employees , except the dischargees , returning to work that afternoon
Genz testified substantially the same as Russo concerning the Campbell -Roggen-
kemper discussions and further stated that Roggenkemper said Pescatore had
"ordered the men fired ." Roggenkemper also stated he had heard Ciancia and
that where charges are preferred against an officer of a local union, the International
president or executive board may suspend the officer from all duties pending the trial and
decision of the charges against him Pescatore explained the International president
"gives us quite a lot of authority " in such matters and that he confirmed Pescatore's
actions No document was offered indicating such confirmation
CONTINENTAL CAN COMPANY, INC. 1147
Rowe had not been involved in the fighting and if they, or any other dischargee,
would furnish him with a signed statement from employees to that effect , he would
put them back to work.
Mesuk stated Roggenkemper admitted Pescatore advised him of the fighting and
furnished him with the names of the men that were discharged . However, he could
not remember Roggenkemper stating that Pescatore had ordered him to fire the men.
Roggenkemper said that Campbell , as spokesman for the committee ,° asked what
was necessary to get the men back to work and he replied the doors were open,
they could return anytime . Campbell then inquired about the dischargees and Rog-
genkemper stated his remarks did not apply to them ; that they were still discharged
as far as the Company was concerned . Campbell said they would see about that
later. The employees , except the dischargees , returned to work that day or the
following day.
Roggenkemper said he met with the committee (excluding Russo ) on July 28 or
29, at which time Campbell stated Rowe had not been involved in the fighting. Rog-
genkemper replied he had also heard Ciancia had not engaged in any fighting and if
these men, or any others, could obtain written statements from employees attending
the meeting that they had not engaged in any fighting , he would put them back to
work. Campbell said he would "still have to go to bat" for the dischargees and
the meeting ended.
Ciancia and Rowe furnished Roggenkemper with the required statements and
were returned to work, without loss of pay, on August 15. Ciancia voluntarily quit
his employment on October 7, 1961.
On August 2, the employees went on strike , which remained in effect until
August 15, when an agreement was executed.
Analysis and Concluding Findings
Briefly stated , the question here is whether the General Counsel has proven the
allegations of his complaint , as amended , by a preponderance of the evidence, that
the Company by discharging eight employees at the Union 's insistence , and the Union
by thus insisting , thereby violated Section 8 ( a)(1), (2), and ( 3) and Section
8(b)(1)(A ) and (2 ) of the Act , respectively. Unlike most cases arising under
these proscriptions of the Act , the instant case does not stem from any unlawful
agreement or hiring arrangement, or a refusal to pay dues or initiation fees, but is
bottomed on alleged misconduct on the part of the dischargees while attending a
union meeting, with company permission , on company premises. The issues , there-
fore, are factual rather than legal and, although many facts are undisputed , the de-
termination of whether the Respondents engaged in unfair labor practices turns on
the resolution of highly conflicting testimony as to the circumstances under which
the discharges were accomplished.
There is no doubt Pescatore played an important role in securing employees for
the new Carteret plant . He processed job application forms for the Company, se-
lected applicants on the basis of union affiliation and loyalty , and upon his recom-
mendation some 20 men were hired . Russo stated , without contradiction , that while
he was working only a few days a week in February and March, he devoted all his
time to openly campaigning for the Union.
It is also clear that the Union , following its certification , chartered Local 790 and
contract negotiations commenced around June 13. Plainly the negotiations centered
on the minimum hourly rate, with the Company offering initially $ 1.78, and later,
on July 13, increasing to $1.81 an hour.
On July 16, the membership held a meeting, outside the plant , at which they re-
jected the Company's wage offer , insisted upon a rate equivalent to the rate paid
at the Company 's Tonawanda plant, $1.91 per hour, and voted 59 to 8 to take strike
action. That afternoon the Company was notified of the strike vote and that the
strike would take place on Monday, July 25.
Thereafter , on Thursday , July 21 , the Company met with the union committee and
increased its offer to $ 1.86 an hour . Jones left the meeting believing the committee
would contact him or Roggenkemper regarding the offer. After Jones left, Renick
informed the committee Pescatore had given instructions that the committee call
another meeting to consider the Company 's last offer . Russo protested the com-
mittee had no authority to do so by reason of the action taken at the July 16 meeting.
Nevertheless , a membership meeting was held that day in the company cafeteria,
which Russo termed unofficial , for the purpose of simply informing the membership
9 Roggenkemper said Russo did not attend this meeting In view of the testimony of
Russo , Genz, and Mesuk , I find Russo was present with the committee on this occasion.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the last offer. However, when Renick stated a meeting would be held the next
day so the membership could take another strike vote, Mickey Greco, and others
objected because they had already voted to strike and their action had been sanc-
tioned by the Union. Upon the insistence of Greco, and others, Renick telephoned
Pescatore to advise him of their position concerning the last offer and Pescatore went
along with their decision to strike the plant as scheduled. Seemingly, the meeting
ended on that note.
Although Jones was aware of the fact the men opposed acceptance of any rate
less than the Tonawanda rate, and had authorized the union committee to act accord-
ingly, still he telephoned Pescatore that night to suggest that the last offer be sub-
mitted to the membership for decision one way or the other. The same night Mendez
telephoned Russo to inform him Pescatore was ordering Russo to call another meeting.
Russo explained why he would not do so and if Pescatore demanded a meeting be
called he would have to send him a letter or telegram to that effect, or call it himself.
The following day Russo received a telegram from Pescatore ordering him to call
a meeting at 3.30 that afternoon in the company cafeteria, which he did.
Prior to the receipt of this telegram, which Roggenkemper picked up for Russo,
Pescatore telephoned Roggenkemper and made arrangements to hold the meeting
in the company cafeteria. In view of the foregoing conversation with Pescatore it
cannot be said that Jones and Roggenkemper were not forewarned that the meeting
might well develop into a highly controversial or explosive session.
According to Russo's undenied testimony, which I accept, Pescatore and Renick
spoke to him around 3 o'clock in the office area and asked what he thought of the
situation. Russo replied he did not like it, "it stinks." Pescatore then queried if he
were afraid of "these bums," which Russo denied, and told Russo he would
show him "how to handle these bums." They went to the cafeteria where about
90 members were assembled.
Unquestionably, Pescatore, from the very outset, met with strong, vigorous oppo-
sition from Mickey Greco and the dischargees, who challenged his right to conduct
the meeting for the purpose of taking a second strike vote, as well as the propriety
of holding the meeting on company property. Pescatore admonished the men that,
whether they liked it or not, they were going to vote, and vote his way, and warned
of his power to grant or revoke strike sanction. He further warned that Jones had
told him that if the Union caused a cessation of operations, the plant would remain
closed. Pescatore's admonitions, threats, and warnings were greeted with accusa-
tions of his being a stooge for the Company, knifing the members, conducting the
meeting like a dictator, and inquiries if he was a Communist. Finally, when Pesca-
tore announced the balloting would begin, with the ballot box in front of him,
commotion broke out as Jakovenko ran wildly toward Pescatore with men attempting
to restrain him, accompanied by much noise and hollering and a general milling
around or shuffling by the members. Undoubtedly, there was confusion and disorder
at that point, but, seemingly, it lasted only a few minutes. Pescatore claimed Mickey
Greco and his boys rushed toward the table where he was seated and a "bunch of
young punks were screaming like hell." Pescatore admitted Mickey Greco, his
brother, Ciancia, DeCicco, and Rowanski did not engage in any arm swinging or
fighting. In fact Pescatore could cite only three instances of fighting, Jakovenko
hit a man and Nusic and Belkowski were struck by persons he could not identify.
It may be that Jakovenko hit someone, although there is testimony to the contrary
and that it was Jakovenko who was hit by someone in order to snap him out of his
rage. Nusic denied he was struck and there is no question but Boguszewski hit
Belkowski. The discriminatees who testified at the hearing denied participating in
any fighting.
Pescatore left the meeting with Willie Williams before order was restored.
The evidence adduced by the General Counsel and the Respondents on events
occurring beyond this point is highly controversial.
In substance Miller testified as he was approaching the cafeteria through the silk
screen room he saw Willie Williams run past saying he was going to call the police.
Following closely was Pescatore who told Miller there was a group acting like "mad
dogs" and "they ought to fire the whole bunch of them." Miller followed Pescatore
to the timeclock area where Pescatore declared to Roggenkemper, who was with
Nebel and Reiff, that he had suspended the local, that no strike vote had been taken,
and Roggenkemper was free to discharge any employee failing to report for work
Monday. Miller also heard Pescatore mention the name "Mickey" to Roggen-
kemper as the two of them, with Willie Williams, were walking toward the office.
Russo was not present during any of the foregoing conversations.
Russo related he met Pescatore, along with Roggenkemper, a police officer and
two foremen, in the timeclock area and requested him to return to the meeting.
Pescatore refused and stated he had revoked the strike sanction and suspended the
CONTINENTAL CAN COMPANY, INC. 1149
local . As Russo was about to leave Pescatore told Roggenkemper "These eight
[men] will have to be discharged ." Russo thereupon returned to the meeting
and reported that the local had been suspended and that he had heard eight men
were to be fired. Mickey Greco, DeCicco, and Ciancia testified that Russo informed
the meeting he had heard eight men were to be discharged.
Clifford Williams testified he was in the tuneclock area, Henry was also present,
and heard Pescatore ask Roggenkemper to call the police and then tell Roggen-
kemper, "Fire these men," naming Mickey Greco and Jakovenko and five or six
other men whose names he could not recall. Roggenkemper thereupon wrote their
names on a piece of paper. He also heard Pescatore inform Roggenkemper that he
had suspended the local and Roggenkemper was free to discharge any man who did
not report for work on Monday. Russo, Willie Williams, and Gaynor were in the
area when the latter statement was made.
Roggenkemper, Pescatore, and Henry denied that Pescatore requested Roggen-
kemper to discharge the discnminatees and further denied they engaged in any
conversation in the timeclock area.
The evidence adduced by the Respondents bearing on the circumstances leading
to the discharges presents a rather incongruous situation. According to Roggen-
kemper's version , Pescatore reported "there was a helluva fight going on" and when
Roggenkemper asked him to identify the men involved , so he could discharge them
for violation of company rules or policy, Pescatore replied it was Mickey Greco and
his gang, and Jakovenko. The remaining men (except Rowe) were identified
on the basis of description furnished by Pescatore, with unknown persons in the
crowd gathered around supplying the names of the men thus described. After ob-
taining the names of seven men, and without conducting any investigation as to the
truth or falsity of the fighting charge, Roggenkemper proceeded to discharge these
men.
Pescatore gave a different account of his discussion with Roggenkemper. He
claimed he told Roggenkemper a "riot" occurred at the meeting when Mickey Greco
and some "punks" rushed toward the table as the men were about to vote. Pescatore
specifically testified he did not see Mickey Greco or any of the discriminatees (except
Boguszewski and Jakovenko) engage in any arm swinging or fighting. Again, he
categorically denied telling Roggenkemper that Mickey Greco was involved in any
fighting, although he might have stated his gang was involved in the affair. Further,
although Pescatore testified substantially the same as Roggenkemper as to the manner
in which the men were identified, he asserted it was not until after Roggenkemper
secured their names did Roggenkemper announce that he was discharging them at
once for the violation of company rule against fighting
It is undisputed that Pescatore forthwith suspended the local and its officers and
appointed Renick administrator and Willie Williams chairman thereof.
It is equally clear Roggenkemper went to the cafeteria , called out the names of
the seven men, and brought them to the timeclock area for discharge.
Each of the seven dischargees testified they were fired by Roggenkemper and when
asked the reasons therefor , Roggenkemper answered he had been ordered to fire them.
Jakovenko stated that when he pressed for reasons, Roggenkemper added they were
being discharged for creating a disturbance while DeCicco said Roggenkemper also
stated they were being discharged for fighting.
Roggenkemper testified he informed the men they were discharged for fighting on
company property . He stated the decision was his own and he denied telling the men
he had been ordered to discharge them . Pescatore denied he requested Roggen-
kemper to discharge the men.
Concerning the discharge of Rowe , Roggenkemper explained that after firing the
seven men , he, Pescatore , and Renick were in the plant lobby discussing the cause of
the fighting when he observed Rowe walking toward his car. Pescatore recognized
Rowe as one of the men involved in the fighting, whereupon Roggenkemper said he
would fire him, which he did. Pescatore made no mention of Rowe 's discharge in
his testimony. Indeed, in his brief reference to Rowe, Pescatore testified unquali-
fiedly Rowe did not participate in any fighting and he could not identify Rowe at the
time the other dischargees were identified.
Both Russo and Miller testified they met Pescatore on the parking lot and asked
when the seven men would return to work. Pescatore replied that as long as he was
regional director for the region they would never come back to work . Pescatore
denied having any such conversation with Russo or Miller.
Based on their conduct and demeanor while testifying , I was far more impressed
with the testimony presented by witnesses for the General Counsel than that adduced
by witnesses for the Respondents. On the whole the witnesses for the General
Counsel testified in a convincing and consistent manner on material phases of the
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, although , as might be expected , they were not in the complete accord as to all
the details of the many events . In this connection it must be noted that Russo and
Ciancia had no personal or pecuniary interest in the outcome of the case for they
both voluntarily left their employment prior to the hearing. Nor can any ques-
tionable motives be imputed to Miller or Clifford Williams for they are not discrimi-
natees in the case and played no part in the dispute between Pescatore and Mickey
Greco and his followers . Nor does the fact that Clifford Williams testified belatedly
affect his testimony . Russo, Ciancia , Miller, and Clifford Williams testified in a
straight -forward manner and I accept and credit their testimony . On the other hand
the testimony of Pescatore and Roggenkemper is not wholly consistent on material
and crucial points. Further , Pescatore impressed me as being overwhelmed with
his power while Roggenkemper appeared to be doing nothing more than attempting
to sustain an untenable position.
There is no doubt Pescatore was working closely with the Company before and
throughout the operations of the Carteret plant. Thus , when Russo refused to call
a meeting for July 22 , for the purpose of taking a second strike vote on the Com-
pany 's last offer , Pescatore , having already made arrangements with Roggenkemper
for use of the cafeteria , promptly ordered Russo hold a meeting that afternoon.
Shortly before the meeting , Pescatore spoke to Russo and after questioning his
ability to control the membership , Pescatore declared he would show him how to
handle "these bums." In this spirit, Pescatore went to the meeting and proceeded
to demonstrate his ability to control the membership . Pescatore , as detailed above,
in unmistakable language told the members they were going to vote and vote his way,
to accept the last offer , under threat of his revoking the strike sanction , and with the
additional warning that if they went on strike the Company would shut down the
plant.7 It is undisputed that Mickey Greco and his group vigorously and loudly
protested Pescatore 's manner of conducting the meeting and his insistence that they
vote and vote to accept the last offer . Again, there is no doubt commotion and
bedlam immediately followed Pescatore 's announcement that the men start voting.
The disorder , it strikes me, began when Jakovenko, who resented Pescatore 's attitude
and went berserk , rushed toward Pescatore in a threatening manner and had to be
restrained by a number of men. I am also firmly convinced Pescatore 's actions pre-
cipitated the whole affair . Certainly , his derogatory remarks about the membership,
his conduct at the meeting , and his forthwith suspension of the local and its officers in
plain violation of the International constitution , convinces me he dealt with the
membership in high -handed , arbitrary , and dictatorial fashion and made it abundantly
clear he would tolerate no opposition from the membership . This, of course, is in
plain contravention of the rights guaranteed employees under the Act. Thus, the
Board has stated: 8
We do not believe the intent or purpose of the amended Act is to foreclose em-
ployees from questioning the wisdom of their representatives or from taking such
steps as they deem necessary to align their union with their position
The discharge of a dissident within a union when that termination is motivated
by a desire to eliminate protest must inevitably result in an infringement under
Section 8 ( a)(1) and 8 ( a)(3) of that employee's right to self -organization. We
believe that inherent in that right is the privilege of protest and persuasion of
others. Without this , effective employee representation becomes a nullity.
Within 10 or 15 minutes after the commotion began, seven of the employees were
discharged by Roggenkemper . The discriminatees asserted Roggenkemper gave no
reason for their discharges other than he had been ordered to fire them . On the con-
trary, Roggenkemper claimed Pescatore reported Mickey Greco and his gang were
fighting, so he fired the men for that reason . Pescatore conceded none of the dis-
criminatees , except Boguszewski and Jakovenko , engaged in any fighting and while
he told Roggenkemper some "punks" were screaming , he was not certain whether
he stated Mickey Greco 's gang, as distinguished from Greco, participated in the
fighting. The testimony of Russo, Clifford Williams, and Miller , which I credit,
fully supports the testimony of the seven discriminatees as to the reason given by
Roggenkemper for their discharge . I, therefore , find that Pescatore requested the
discharge of the seven men because of their opposition to him at the meeting and
7I do not accept Pescatore ' s explanation that lie was referring to the method of voting.
In any event his subjective state of mind is not controlling William L Lair,, General
Painter . et al , d/b/a Law Tanning Company, 121 NLRB 1748, 1753
8 Nu-Car Carriers , Inc, 88 NLRB 75, 76, enfd 189 F 2d 756 (CA 3), cert denied
342 U . S 919 ; Local 57, United Automobile , etc (International Harvester Company),
102 NLRB 111, 119
CONTINENTAL CAN COMPANY, INC. 1151
that Roggenkemper complied with request . I also find Rowe's discharge later that
day was for the same reason . There is, of course , no question but the men, while
attending the union meeting, were engaging in protected concerted activities.
Moreover , and apart from the foregoing credibility findings, the evidence shows
that the men were discharged because of their opposition to Pescatore 's demand that
they accept the Company 's last offer , not for violation of any company rule or policy
against fighting on company property, as urged by Roggenkemper . First, the only
evidence indicating the existence of such a rule or policy is Roggenkemper 's cavalier
statement that it has always been the policy of the Company to immediately discharge
an employee for fighting on company premises . Secondly, there is no evidence or
even contention that such a rule or policy was ever posted at the plant or that the
employees were ever informed of such a policy or rule. Certainly, the Company
cannot justify its dismissal of employees for violation of a rule which was neither
publicized nor made known to the employees .9 But assuming the Company had a
valid no-fighting rule, still it would not constitute a defense in this case . Here the
alleged fighting occurred in the company cafeteria in the course of a union meeting,
not while the men were performing their normal work duties. Manifestly , the no-
fighting rule would have been inapplicable and ineffective had the meeting been held
outside company premises, and I cannot distinguish that situation from the present
one. It does not follow that by permitting the Union to hold a meeting on its premises
that employee-members were still subject to the Company 's normal plant rules, the
same as if they were working. Surely, it would be ridiculous to say that a rule
prohibiting loud or excessive talking by employees would apply while the men were
attending a union meeting . Indeed, Roggenkemper recognized that the union meeting
had no connection whatever with plant business for he specifically placed the cafe-
teria out-of-bounds to all supervisory and office personnel while the meeting was in
progress . Accordingly, I find and conclude the employees were not subject to nor-
mal plant working rules while attending the union meeting.
Further, the manner in which Roggenkemper carried out the discharges negates
the idea he fired the men for violation of the no-fighting rule. Admittedly, he sum-
marily fired the men without any investigation as to whether a fight had occurred
and whether the dischargees had even participated in any fighting . Again, there is
no claim the employees caused any property damage and Roggenkemper made no
inquiry along that line either before or after he discharged the employees Instead,
Roggenkemper quickly accepted Pescatore 's somewhat garbled complaint that the
meeting was disorderly and hastily identified the dischargees through Pescatore and
anyone who happened to be in the crowd . The means thus used to identify the men
for discharge are certainly flimsy and unreliable and entitled to no weight , insofar as
lending support to the charge that the dischargees actually engaged in fighting. I
find it incredible and unbelievable that Roggenkemper , with 25 years' experience with
the Company , would discharge employees under the circumstances related by him.
Again, the postdischarge conduct of the Union and the Company fully supports
the finding that the dischargees were discriminatorily dismissed . Thus, shortly after
the discharges had been accomplished Russo and Miller met Pescatore and inquired
when the discriminatees might return to work and he responded they would never
come back as long as he was regional director . Pescatore denied having an con-
versation on this subject , but, for the reasons already stated, I accept the testimony
of Russo and Miller and find Pescatore made the statement attributed to him.
As set forth above , the union committee met with Roggenkemper on July 27 in an
effort to settle the work stoppage . It is undisputed Roggenkemper agreed that all
the employees could return to work, except the dischargees . Russo, Genz , and Mesuk
uniformly testified that Campbell asked why the men had been discharged and
Roggenkemper replied it was for fighting on company property . Since no plant offi-
cials were present at the meeting , Campbell pressed Roggenkemper as to how he ob-
tained the names of the men supposedly involved in the fight and Roggenkemper said
he obtained the names from Pescatore . Russo and Genz quoted Roggenkemper as
saying Pescatore had ordered him to fire these men . However, Mesuk could not
remember if Roggenkemper made a statement to that effect. T can see no reason why
Russo, Genz , and Mesuk would manufacture such a story, so I accept and credit their
testimony.
Considering all the evidence I have no difficulty in finding the discriminatees were
unlawfully discharged as alleged in the complaint and the Company 's contention that
it terminated the employees for violation of a no-fighting rule is purely pretextuous.io
9 Southern Airways Company, 124 NLRB 749, 753
10 Counsel for the Company argues that in order to sustain a violation of Section
8(a) (3) and (b) (2), it is essential to prove that a Section 8(a) (3) violation would have
been committed if the employer had taken the action on his own initiative, citing United
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is noted that Boguszewski and Rowe did not testify at the hearing. However, the
evidence establishes that they were included in the mass discharge and were dis-
criminatorily fired under the same conditions and for the same reason as the other
dischargees. In such circumstances, the failure of Boguszewski and Rowe to appear
at the hearing does not preclude a finding that they were unlawfully discharged."
Unlike Ciancia and Rowe who were subsequently rehired, without loss of pay,
Boguszewski was accorded the same treatment as the remaining discriminatees. He
is, therefore, entitled to the protection of the Act and to remedial relief thereunder,
the same as his fellow discriminatees.
The statute protects the rights of any union member to express his dissatis-
faction over the stewardship of elected union officers, and it has been held that activi-
ties of employees aimed either at removing elected union officers, or at compelling a
change in their methods of running the Union, is protected against discharge by the
Company.12 In conclusion I find that by discharging the eight employees on July 22,
1960, at the request of the Union, the Respondent Company discriminated against
them in violation of Section 8(a) (3) and (1) of the Act, and that by causing such
discrimination by the Respondent Company, the Respondent Union violated Section
8(b)(2) and (1)(A) of the Act. By discharging the employees under the circum-
stances found herein, I further find the Respondent Company violated Section 8(a)
(2) of theAct.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in connection with
the operations of the Company described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in and are engaging in unfair
labor practices, I will recommend that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
As to the Respondent Union, I will recommend that it cease and desist from
causing or attempting to cause Continental Can Company, Inc., to discharge em-
ployees for protesting the conduct of union officers or otherwise engaging in con-
certed union activities. As to the Respondent Company, I shall recommend that it
be ordered to cease and desist from discharging employees for engaging in such
conduct.
I shall also recommend that the Respondent Union and the Respondent Company
jointly and severally make whole each of the individuals named below for any loss
of pay they may have suffered by reason of the discrimination against them:
Leon Boguszewski Mickey Greco
Joseph DeCicco Wolodymyr Jakovenko
James Greco Richard Romanski
Backpay shall be computed in accordance with the formula adopted by the Board
in F. W. Woolworth Company, 90 NLRB 289. I shall also recommend that the
Respondent Union be required to notify each of the above-named individuals and the
Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, Local 240, AFL-CIO, et at. (Frick Company, et at ),
116 NLRB 119, and earlier authorities. No doubt these cases support the proposition
for which they are cited, although they may be distinguished on factual bases from the
present case In any event, the Board specifically overruled the principle announced in
these cases In Northern California Chapter, The Associated General Contractors of
America, Inc., et al, 119 NLRB 1026. For further discussion of these cases, see Twenty-
third Annual Report, pp 68-69, 82-83
11N.L.R.B. v. American Potash and Chemical Corporation, 98 F. 2d 488, 493 (CA 9).
>z Nu-Car Carriers, Inc, supra; Falstaff Brewing Corporation, 128 NLRB 294; Local
212, International Union, United Automobile, etc. (Chrysler Corporation ), 128 NLRB 952;
Local 138, International Union of Operating Engineers, AFL-CIO (A Cestone Company),
118 NLRB 669, enfd 254 F. 2d 958 (C.A. 2) ; Acme Mattress Company, Inc, 91 NLRB
1010, enfd. 192 F 2d 524 (C A. 7) ; Kalof Pulp & Paper Corp., 120 NLRB 714, 123 NLRB
1623; enfd 290 F . 2d 447 ( C.A. 9). See also , International Association of Bridge, Struc-
tural and Ornamental Iron Workers , Local No. 494, AFL-CIO ( Spiegelberg Lumber and
Building Company), 128 NLRB 1379.
'Shear's Pharmacy, Inc., 128 NLRB 1417.
THE BUDD COMPANY, AUTOMOTIVE DIV., GARY PLANT 1153
Respondent Company in writing that the Respondent Union has no objection to his
employment by the Company. The Respondent Union shall not be liable for any
backpay which may accrue for the period beginning 5 days after it notifies the
Company and the discriminatees as aforesaid. It is also recommended that the Com-
pany make available to the Board, or its agents, upon request, payroll and other
records to facilitate the computation of the amount of backpay due and the rights of
employment.
In view of the nature of the unfair labor practices committed, the commission by
the Respondents of similar and other unfair labor practices may be anticipated. The
remedy should be coextensive with the threat. I will therefore also recommend that
the Respondents be ordered to cease and desist from infringing in any manner on the
rights of employees guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The operations of Continenal Can Company, Inc., occur in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. United Papermakers and Paperworkers, AFL-CIO, and Local 790 are labor
organizations within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Leon
Boguszewski, Joseph DeCicco, James Greco, Mickey Greco, Wolodymyr Jakovenko,
Richard Romanski, Richard Rowe, and Victor Ciancia, the Respondent Company
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By the above conduct, thereby interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent
Company has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a)( I) of the Act.
5. By causing the Respondent to discriminate against employees in violation of
Section 8(a) (3) of the Act, the Respondent Union has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(b) (2) of the Act.
6. By causing the Respondent Company to discriminate as aforesaid, thus re-
straining and coercing employees in the exercise of rights guaranteed in Section 7 of
the Act, the Respondent Union has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(b) (1) (A) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices which affect
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
The Budd Company, Automotive Division, Gary Plant and Inter-
national Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, UAW, affiliated with American
Federation of Labor and Congress of Industrial Organization,
AFL-CIO, Petitioner. Case No. 13-I?C-7639. April 17, 1962
DECISION AND DIRECTION OF ELECTIONS
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before William D. Boetticher, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
136 NLRB No. 108.