Del Bonis Sand & Gravel Co.

National Labor Relations Board - Board Decisions

Jul 12, 1976

225 N.L.R.B. 652 (N.L.R.B. 1976)

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Del Bonis Sand & Gravel Co. and Peter J. Ricci. Case
1-CA-10934
July 12, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On April 20, 1976, Administrative Law Judge Lo-
well Goerlich issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Decision.
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 briefs
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 Respondent, Del Bonis Sand & Gravel
Co., Cranston, Rhode Island, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
said recommended Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
1976, charging that the Respondent by its sales manager,
Albert G. Panllo, threatened an employee with discharge
unless that employee gave up his claim against Respondent
for backpay and refused to accept his appointment as shop
steward.
The Respondent filed a timely answer denying that it
had engaged in the unfair labor practices alleged.
The case came on for hearing at Providence, Rhode Is-
land, on February 24, 1976. Each party was afforded a full
opportunity to be heard, to call, examine, and cross-exam-
ine witnesses, to argue orally on the record, to submit pro-
posed findings of fact and conclusions, and to file briefs.
All briefs have been carefully considered.
FINDINGS OF FACT,' CONCLUSIONS AND REASONS THEREFOR
I THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times material a cor-
poration duly organized under and existing by virtue of the
laws of the State of Rhode Island.
At all times herein mentioned, Respondent has main-
tained its principal office and place of business at 950
Phoenix Avenue in the City of Cranston, and State of
Rhode Island (herein called the Cranston plant), and is
now and continuously has been engaged at said plant in
the manufacture, sale, and distribution of concrete.
Respondent in the course and conduct of its business
causes, and continuously has caused at all times herein
mentioned, large quantities of raw materials used by it in
the manufacture of concrete to be purchased and trans-
ported in interstate commerce from and through various
States of the United States other than the State of Rhode
Island.
During calendar year 1975, Respondent, in the course
and conduct of its business, received materials valued in
excess of $50,000 directly from points located outside the
State of Rhode Island.
The aforesaid Respondent is and has been engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 251, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, 121
Brightridge Avenue, East Providence, Rhode Island (here-
in referred to as Local 251), is a labor organization within
the meaning of Section 2(5) of the Act.
LOWELL GOERLICH, Administrative Law Judge: The
charge filed by Peter J. Ricci on August 4, 1975, was served
on the Respondent herein, Del Bonis Sand & Gravel Co.,
on the same date. The complaint was issued on October 17,
1975, in which it was charged that the Respondent on July
25, 1975, discharged its employee, Peter J. Ricci, in viola-
tion of Section 8(a)(3) and (1) of the National Labor Rela-
tions Act, as amended, herein referred to as the Act. An
amendment to the complaint was filed on February 5,
i The facts found herein are based on the record as a whole and the
observation of the witnesses The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits, with due
regard for the logic of probability, the demeanor of the witnesses, and the
teachings of N L R B v Walton Manufacturing Company & Loganville Pants
Co, 369 U S 404, 408 (1962) As to those witnesses testifying in contradic-
tion to the findings herein, their testimony has been discredited, either as
having been in conflict with the testimony of credible witnesses or because
it was in and of itself incredible and unworthy of belief All testimony has
been reviewed and weighed in the light of the entire record No testimony
has been pretermitted
225 NLRB No. 85
DEL BONIS SAND & GRAVEL CO. 653
III. THE UNFAIR LABOR PRACTICES
A. The Facts
Frank Del Bonis is and at all material times herein was
Respondent's president and the person who " see[s] that ev-
erything runs in order." James Boyajian is and was the
business agent for Local 251. Peter John Ricci was em-
ployed by the Respondent in May 1969 and worked as a
driver of ready-mix and dump trucks until his discharge on
July 25, 1975. Ricci was a member of Local 251.
At all times mentioned herein the Respondent was a par-
ty to a collective-bargaining agreement between Local 251
and Rhode Island Road Builders Association, called the
Rhode Island Construction & Ready Mix Agreement,
which, among other things, required union membership as
a condition of employment. Citing the contract, Local 251,
by letter dated July 7, 1975, advised the Respondent that it
was demanding that the Respondent comply with the
contract's vacation article and the time-and-one-half rate
of pay for work performed on Sunday provision of the
contract. It also requested that the Respondent inform em-
ployee Michael Lipizzera of the union-security require-
ments of the contract.
Thereafter on July 18, 1975, the Respondent worked em-
ployees Lipizzera and Earl Cooke on ready-mix trucks 2
although it had refused to give Ricci, whose seniority was
senior to that of either Lipizzera or Cooke, an assignment
when he had phoned dispatcher Fisher on the morning of
July 18, 1975. Neither Lipizzera nor Cooke was a member
of Local 251.3
On July 19, 1975, Ricci lodged a grievance with Local
251 at the union hall in which he requested 1 day's pay
because Cooke, an employee with less seniority, worked a
full day on July 18, 1975 At the same time Ricci was ap-
pointed shop steward for the Respondent's plant by Boya-
jian. Prior to that date there had been no steward. On July
21, 1975, Boyajian mailed two letters to the Respondent,
one informing the Respondent that Ricci had been ap-
pointed steward and the other detailing Ricci's grievance.
On July 22, 1975, President Del Bonis replied by letter
alleging that Ricci's claim was "in error."
On July 21, 1975, Ricci again phoned Fisher in regard to
whether he should appear for work. Fisher's response was
negative. Ricci observed the Respondent's premises and
saw Lipizzera and Cooke driving ready-mix trucks; Ricci
lodged another grievance with Local 251. On the same date
Ricci informed Fisher that he had been appointed steward.
On July 22, 1975, Ricci again phoned Fisher and was
assigned work. According to Ricci at about 4 o'clock Del
Bonis "ran out of the office with two letters in his hand"
and said, among other things, "What are you f-ing guys
trying to run my company. . . . You take these two letters
and tell Mr Boyajian to jam them in his mother f-ing
a-." Del Bonis denied that such incident occurred.
Ricci worked again on July 23, 1975, at which time Paril-
lo told him "if you don't rip up your claim for your eight
hours, if you don't turn down your appointment as shop
steward, you would be fired. And on top of that you might
even catch an f'ing beating."
Parillo bore the title of sales manager. He described his
duties as follows, "I was supposed to help Frank [Del Bon-
is] sell ready mix concrete and wash the yard and go on the
job, check the job and stuff like that." Parillo also acted as
dispatcher when Fisher was absent which occurred during
Fisher's vacations and regularly Saturdays. Ricci referred
to Parillo as "the boss." Ricci described Parillo's duties in
these terms, "He would make the route out, and tell us
where to go for the deliveries, and general things like that."
Respondent does not contest the supervisory status of Par-
illo and he is found to be a supervisor within the meaning
of the Act.
On the same date, July 23, 1975, Boyalian, after receiv-
ing the letter from Del Bonis referred to above, phoned Del
Bonis. Boyajian advised Del Bonis that he "would have to
file for arbitration." Del Bonis' response was "drop dead."
Del Bonis added that he would not "go to arbitration."
The next day, July 24, 1975, Boyalian addressed a letter
to Chandler Beals, the attorney representing the Rhode
Island Road Builders Association, in which he request-
ed, inter aha, arbitration of Ricci's grievances and the
Respondent's violation of the contract's union-security
clauses by its use of nonunion employees. A copy of the
letter was mailed to the Respondent which was received by
it on July 25, 1975. Boyajian requested arbitration because
Del Bonis told him that he would not settle the grievance
by paying Ricci, that "he was not going to instruct his
employees to get in the union and he was going to go non-
union." '
On July 24, 1975, in response to his phone call, Ricci was
again told by Fisher that there was no work. Ricci "went
by the plant" 45 minutes later and observed Lipizzera and
Cooke driving ready-mix trucks and Richie DiMucci driv-
ing a dump truck. These employees' seniority was not only
junior to Ricci's seniority but they also were not members
of Local 251. Ricci filed another grievance.
On July 25, 1975, in response to a phone call around 7
a.m., Fisher again informed Ricci that there was no work.
At 10 a.m on the same day Ricci appeared at an arbitra-
tion hearing involving the discharge of Frank Lewis, a re-
spondent employee. Ricci was called as a witness by Boya-
jian. Ricci testified that Lewis was discharged because the
Respondent was "usingjunior men." Ricci also related the
number of employees who had driven "because Frank
Lewis got fired" which he had recorded at the request of
Boyajian. At the hearing it was disclosed that the Respon-
dent did not recognize Ricci as the union steward. Among
those appearing at the hearing were Del Bonis and Fisher.
At 1 p.m. on the same day Ricci appeared at the plant
for the purpose of picking up his paycheck. Panllo told him
that he could not give him his check but that he should
return at 3 o'clock because Del Bonis wanted to speak to
him. Parillo observed, "I think I got bad news for you."
Ricci met with Del Bonis at 3 p.m. Present also were
Fisher and Parillo. According to Ricci, Del Bonis said,
2 Ready-mix truckdriver jobs were included under the coverage of the
contract
3 Del Bonis had indicated to Boyajian his intent to operate nonunion ure to conform to the terms of the contract
The Respondent had been subjected to three strikes in 1975 for its fail-
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
" . . for being a wise guy this morning you're fired for
testifying against the Company this morning. No f-ing
union is running my place; if you want your pay, you go
down to the 251 building and get your pay per week. Mr.
Boyalian will pay you every week."
Del Bonis testified that he told Ricci that he was being
fired "[f]or abusing Mr. White." Del Bonis said, "I told
him this particular person came in the office screaming. I
got it through Mr. Fisher that he abused this person and he
cursed him, and he used bad language. And this was the
story I got. And when I got the story that was the last
chance he had with me." Del Bonis said that he had been
informed of the White incident the "week that he [Ricci]
got fired." 5
Fisher's version of what occurred at Ricci's discharge is
more expansive than that of either Ricci or Del Bonis. He
testified that Del Bonis, in firing Ricci, said: "because you
stole, because you abused my trucks, because you abused
my customers." On cross-examination Fisher said, "Mis-
conduct, breaking of the machinery, abusive language to
the customers-I guess there was one other. I don't really
recall that. But f know he listed them and he held his finger
and he said `this is why you are being fired, for this reason,
for this reason, for this reason, for this reason.' "
"There was no hemming and hawing. He told him exact-
ly why and the instances why." 6
B. Conclusions and Reasons Therefor
While in some respects the testimony of Ricci, Del Bon-
is, and Fisher are suspect, the credited evidence in the rec-
ord establishes without a doubt that the Respondent dis-
charged Ricci because of his participation in protected
union activities and that the "real motive" I of the Respon-
dent was to discourage membership in a labor organization
in violation of Section 8(a)(3) of the Act.
It is clear that the Respondent's reasons for Ricci's dis-
charge advanced in this proceeding were afterthoughts and
were pretextual. Del Bonis' attitude toward Local 251 was
antagonistic He expressed his intent to "go non-union";
he worked nonunion employees with less seniority on
Ricci's job; he refused to accept Ricci as a steward; he
opposed arbitration; and he rejected out of hand what ap-
peared to be legitimate grievances.
5 According to Fisher the White incident occurred at the end of June or
the beginning of July He said that about 10 days later he reported it to Del
Bonis in these words "I told him that this Mr White had come in and
complained vehemently about his conduct on the street, and that the guy
was a police officer, and that he knew Mr Del Bonis and I wanted to tell
him before this Mr White happened to see him and tell him himself
The guy came in and was very upset with Peter's language to the neighbors
in that neighborhood When Peter came back, he came in sort of like he was
a little crazy-that's the only way I can put it, with his hands up in the air
begging the guy not to shoot him "
Fisher is not credited as to what occurred at the time Ricci was dis-
charged His testimony differing from that of Del Bonis presents no more
than afterthoughts for the purpose of diverting attention from the real rea-
son for Ricci's discharge Moreover , it is significant that Parillo who was
present at Ricci's discharge , although called as a witness by the Respondent,
was not asked to give his version of what occurred
7 "[T]he 'real motive' of the employer in an alleged 8(a)(3) violation is
decisive " N L R B v John Brown, et a!, d/b/a Brown Food Store, et a!, 380
U S 278, 287 (1965)
His antagonism against the Union and his timing 8 of
Ricci's discharge after his exercise of protected rights re-
buts any conclusion that Ricci's discharge could be other
than unlawfully motivated. Indeed, according to Del Bon-
is, he fired Ricci based upon a stale report from his dis-
patcher, Fisher, without a personal investigation. Nor did
he afford Ricci an opportunity to state his position. "Per-
haps most damning is the fact that both [employees] were
summarily discharged after reports of their misconduct
... without being given any opportunity to explain or give
their versions... ." United States Rubber Company v.
N. L. R. B., 384 F.2d 660, 662-663 (C.A. 5, 1967). Moreover,
Del Bonis was an unbelievable witness. Ricci's discharge
was a consequence of Del Bonis' deep antagonism against
Local 251.
Hence it is found that the Respondent unlawfully dis-
charged Ricci because he engaged in protected union activ-
ities which included his giving testimony adverse to the
Respondent at the arbitration proceedings, his pressing
grievances under the contract, and his acceptance of the
office of union steward. "It is now well settled that dis-
charging or otherwise discriminating against an employee,
because of his processing employee complaints or griev-
ances as a union steward, or his . . . assertion of a claim or
right pursuant to the terms of a collective-bargaining
agreement, is in violation of both Section 8(a)(1) and (3) of
the Act." State Mechanical Constructors, Inc, 191 NLRB
393, 396 (1971).
Accordingly, it is found that by Ricci's discharge the
Respondent violated Section 8(a)(3) and (1) of the Act.
It is also found that Parillo's threat of discharge related
to Ricci on July 23, 1975, interfered with, restrained, and
coerced Ricci in the exercise of rights guaranteed by Sec-
tion 7 of the Act and was in violation of Section 8(a)(1) of
the Act
CONCLUSIONS OF LAW
I Local 251 is a labor organization within the meaning
of Section 2(5) of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act for jurisdiction to be exer-
cised herein.
3. By interfering with, restraining, and coercing employ-
ees in the exercise of rights guaranteed by Section 7 of the
Act, the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By unlawfully discharging Peter John Ricci on July
25, 1975, the Respondent engaged in unfair labor practices
in violation of Section 8(a)(3) and (1) 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.
6
Ricci was fired on the afternoon of the day on which he gave testimony
adverse to the Respondent The White incident, which was cited by Del
Bonis as the incident which triggered Ricci's discharge , occurred in the
latter part of June or the beginning of July, almost a month before Ricci's
discharge (Fisher's testimony) Although Fisher did not report the incident
to Del Bonis until around July 15, Del Boms did not discharge Ricci until
about 10 days later This delay, which casts doubts upon whether the White
incident was the real cause of Ricci's discharge, is not credibly explained in
the record
DEL BONIS SAND & GRAVEL CO. 655
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act. It having
been found that the Respondent unlawfully discharged Pe-
ter John Ricci and thereby violated Section 8(a)(3) and (1)
of the Act, it is recommended that the Respondent remedy
such unlawful conduct. It is recommended in accordance
with Board policy 9 that the Respondent offer Peter John
Ricci immediate and full reinstatement to his former posi-
tion or, if such position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings he may have suffered as a result of the
discrimination against him by payment to him of a sum of
money equal to the amount he would have earned from the
date of his discriminatory discharge to the date of an offer
of reinstatement , less net earnings during said period, to be
computed on a quarterly basis in the manner established
by the Board in F W. Woolworth Company, 90 NLRB 289
(1950), and including interest at the rate of 6 percent per
annum in the manner set forth in Isis Plumbing & Heating
Co, 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER10
Respondent, Del Bonis Sand & Gravel Co. of Cranston,
Rhode Island, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Unlawfully discharging or threatening to discharge
employees for filing or processing grievances under any
lawful labor agreement between the Respondent and a bar-
gaining representative within the meaning of Section 9(a)
of the Act or for accepting an appointment as a union
steward.
(b) In any other manner interfering with, restraining, or
coercing any employees in the exercise of the rights guar-
anteed them by Section 7 of the National Labor Relations
Act to engage in self-organization, to bargain collectively
through a representative of their own choosing, to act to-
gether for collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all these things.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Peter John Ricci immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, discharg-
ing if necessary any employees hired to replace him, and
make him whole for any loss of pay that he may have
suffered by reason of the Respondent's discrimination
against him in accordance with the recommendations set
forth in the section of this Decision entitled "The Reme-
dy„
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at its Cranston, Rhode Island, plant copies of
the attached notice marked "Appendix." II Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
9 See The Rushton Company, 158 NLRB 1730, 1731 (1966)
10 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
11 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties participated and of-
fered evidence, the National Labor Relations Board has
found that we unlawfully discharged Peter John Ricci be-
cause he engaged in lawful protected union activities and
has ordered us to post this notice.
WE WILL NOT discharge any of our employees for the
same reason we discharged Peter John Ricci.
WE WILL offer Peter John Ricci his job or, if his job
no longer exists, a substantially equivalent job, dis-
charging, if necessary, any employee hired to replace
him.
WE WILL restore his seniority and other rights and
privileges and pay him the backpay he lost because we
discharged him.
WE WILL NOT unlawfully threaten to discharge our
employees for filing or processing grievances under
our agreement with a union or for accepting an ap-
pointment as a union steward.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with,
restrain , or coerce any employees in the exercise of the
rights guaranteed them by the Act.
The Act gives all our employees these rights:
To organize themselves
To form , join , or help unions
To bargain as a group through representatives
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things
WE WILL NOT do anything which interferes with these
rights.
All our employees are free to remain, or refrain from
becoming or remaining , members of a labor organization.
DEL BONIS SAND & GRAVEL CO.