Donald E. Hernly, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1979

240 N.L.R.B. 840 (N.L.R.B. 1979)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donald E. Hernly, Inc. and District Council of New
York and Vicinity of the United Brotherhood of
Carpenters and Joiners of America, AFLCIO.
Case 29-CA 6058
February 21, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AN[) MEMBERS PENEI.LO
AN[) TRUESDAI.E
On August 2, 1978, Administrative Law Judge
George F. Mclnerny issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge dismissed in its en-
tirety the complaint herein which alleged, inter alia,
that Respondent violated: (1) Section 8(a)(1) of the
Act by threatening not to pay employees their previ-
ously authorized 2 hours' "show up" pay and at the
same time threatening them with discharge, layoff,
and other reprisals if they supported the Union; (2)
Section 8(a)(1) and (3) of the Act by refusing to pay
employees Ed Ortiz, Dick Wischhusen, Don Car-
man, Aldo Delu, Joe Oliveri, Donald Thomson,
C. N. Koenecke, and George Swapp their previously
authorized 2 hours' "show up" pay; and (3) Section
8(a)(1) of the Act by interrogating Carman and Delu
concerning their union memberships and their hav-
ing filed or been named in charges filed with the Na-
tional Labor Relations Board.2 The General Counsel
excepted in all respects to the Administrative Law
Judge's dismissal of the complaint.3 We find merit in
the exceptions to the extent that we agree with the
The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dr Wall Products, Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. i951). We have carefully
examined the record and find no basis for reversing his findings.
2The complaint was amended at the hearing to add this allegation.
Respondent filed cross-exceptions and a brief in support thereof "li]n
the event that the Board does not confirm the Recommended Order of the
Administrative Law Judge that the Complaint be dismissed in its entirety
240 NLRB No. 104
General Counsel that Respondent violated Section
8(a)(1) of the Act by: (I) threatening its employees in
the manner described above; (2) rescinding its prom-
ise and refusing to pay the above-named employees 2
hours' wages; and (3) interrogating employees Car-
man and Delu concerning charges filed with the Na-
tional Labor Relations Board.
The underlying facts, as found by the Administra-
tive Law Judge and more fully set out in his Deci-
sion, are as follows:
Respondent, a New York corporation, is engaged
in construction contracting, particularly the building
of docks, piers, and similar structures. Early in 1977,4
a general contractor, Copat, was awarded a contract
for work on the Red Hook Sewer Project in Brook-
lyn, New York. Copat subcontracted the driving of
steel sheet piling and other work to the Respondent.
Commencing in March and continuing until the em-
ployees were laid off on November 14 due to lack of
work, Respondent employed two dockbuilder crews,
each consisting of four men and a foreman, to do the
above-described job.5
On October 25 or 26, Mike Paterno, one of Copat's
principals, died. On that day or the next, Respon-
dent's employees learned that, because of Paterno's
death, the job would be closed down on Friday, Oc-
tober 28. Concerned that they possibly might not get
paid for that day, Respondent's employees discussed
the matter among themselves. As a result, on Octo-
ber 27, Shop Steward Edwin Ortiz discussed the mat-
ter with Gary Galamidi, Respondent's job superin-
tendent. Galamidi confirmed the fact that the job
would be shut down on October 28. However, he
promised to pay the employees 2 hours' wages for
that day. Ortiz and the other employees were not sat-
isfied with this resolution. Ortiz decided to leave the
matter unresolved until the Union's business repre-
sentative, Harkin, was able to come to the jobsite to
discuss the situation.
On Monday, October 31, Harkin arrived at the
jobsite and met with the members of the crew. Short-
ly thereafter, Harkin engaged in a conversation with
Ortiz and Galamidi. It is undisputed that during the
course of this conversation, the Union's representa-
tives demanded a full day's pay for the previous Fri-
day. The Administrative Law Judge also found that,
following this short talk, "Galamidi became excited,
began shouting and cursing . . . [and he] stated that
the promised two hours' pay would not be paid, and
that he could close down the job anytime he wanted
4 All dates herein refer to 1977 unless otherwise specified.
The foreman worked under a guaranteed 40-hour workweek. The gang
members, however. were paid only for the number of hours that they
worked. Other employees of the Respondent who operated mechanical
equipment were members of another union and were also paid on a guaran-
teed 40-hour basis.
DONALD E. HERNLY, INC. 841
and lay off all the employees anytime he wanted."
Galamidi credibly testified that he is an excitable
person and that he "blew his top," but said it was
because of a remark by Harkin to Ortiz and another
employee, advising them to "Remember, you're
working for me and you don't work for him." As it
turned out, Galamidi revoked his authorization for 2
hours' wages, and the employees were not paid for
any hours on October 28.
As noted above, on November 14, Respondent
laid off dockbuilders due to lack of work. On No-
vember 16, the Union filed the charge in the instant
case, alleging that Respondent "terminated the em-
ployment" of Carman, Delu, and three other named
employees because of their union memberships and
activities.6 Around Thanksgiving 1977, Respondent's
president, Frank J. Gaidon, telephoned employees
Carman and Delu. Gaidon asked Carman what he
knew about the charges and whether he was person-
ally responsible for filing the charges against the
Company. Delu was asked if he knew anything about
the charges filed with the National Labor Relations
Board. As noted above, the complaint was amended
at the hearing to add the allegation that Respondent,
by its president, interrogated Carman and Delu in
violation of Section of 8(a)( ) of the Act.
As mentioned previously, the Administrative Law
Judge dismissed the complaint in its entirety. With
respect to the allegation that Respondent threatened
not to pay employees their previously authorized 2
hours' wages and at the same time threatened them
with discharge, layoff, and other reprisals if they sup-
ported the Union, we find that such conduct inhibit-
ed employees in the exercise of their Section 7 rights,
thus violating Section 8(a)(l) of the Act. It was
Galamidi's credited testimony that he made the
above statements in response to Harkin's remark that
the employees worked for him (Harkin) and not for
Respondent. Although he may have been upset as a
result of Harkin's remark, Galamidi's state of mind
at the time he uttered the above threats is no defense
to this violation because of the coercive and unlawful
effect of his threats on the employees. Moreover, we
note that Galamidi carried out his threat not to pay
the 2 hours' wages on the same day that he made the
above threats.7
With respect to the allegation that Respondent re-
scinded its promise to pay and refused to pay em-
ployees 2 hours' wages, we find that such conduct
6 By a letter dated Januarv 6. 1978. the Regional Director approved the
withdrawal of "the portion of the charge in the above-entitled matter which
alleges the termination of employment of various employees." However. the
remainder of the charge, which alleged that Respondent "interfered with.
restrained, and coerced employees in the exercise of the rights guaranteed in
Section 7 of the Act." was left intact for further processing.
Cf. Swift Terriles, Inc.. 214 NLRB 36 (19741.
interfered with the employees' exercise of their Sec-
tion 7 rights, thus violating Section 8(a)( 1) of the Act.
The record establishes that, prior to the October 31
incident, Galamidi obtained Gaidon's approval to
pay the employees 2 hours' wages, adjusted employ-
ees' timecards to reflect the extra pay, and notified
his office of these developments. It was only after the
employees expressed dissatisfaction with the arrange-
ment and called in the Union's business representa-
tive for further action that Galamidi withdrew his
promise to pay the 2 hours' wages. Clearly,
Galamidi's handling of this matter interfered with
the employees' rights to act together for mutual aid
or protection and thus was violative of Section
8(a)(I) of the Act.'
With respect to the allegation concerning Gaidon's
interrogation of employees, we find such conduct vi-
olative of Section 8(a)(1) of the Act. In dismissing
this allegation, the Administrative Law Judge found
that Gaidon's questions were devoid of threats of
coercion and were aimed at determining "the basis
for the charge and whether the individuals had per-
sonally filed them." He further noted that "the em-
ployees treated the affair casually and without fear."
The Administrative Law Judge's reliance on these
facts is misplaced. The Board has stated that "inter-
ference, restraint, and coercion under Section 8(a)(1)
of the Act does not turn on the employer's motive or
on whether the coercion succeeded or failed. The test
is whether the employer engaged in conduct which, it
may reasonably be said, tends to interfere with the
free exercise of employee rights under the Act." 9
Gaidon's interrogation of Carman and Delu inter-
fered with these employees' rights to file charges with
the National Labor Relations Board and to give tes-
timony in support thereof, thus violating Section
8(a)( I) of the Act.
CONCLUSIONS OF LAW
I. Respondent Donald E. Hernly, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. District Council of New York and Vicinity of
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By threatening not to pay employees their pre-
R In view of the fact that the remedy would be the same, we find it unnec-
essary to determine whether, as alleged in the complaint. Respondent's re-
fusal to pay employees 2 hours' wages. because of their union membership
also violated Sec 8(aX3) of the Act. Interboro Contractors Inc, 157 NLRB
1295. 1302 (19661. enfd. 388 F.2d 495 (2d Cir. 1967).
9American Freigh'as.s Co, Inc. 124 NLRB 146. 147 (1959; see also
irrton Dental Products Di ision of Liton Industrial Products, Inc, 221 NI.RB
700. fn. 2 (1975: (ontinental (Chenrmal Cornlani. 232 NLRB 705, 706. fn. 4
( 1977}.
DONALD E. HERNLY. NC 41
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viously authorized 2 hours' "show up" pay and at the
same time threatening them with discharge, layoff,
and other reprisals if they supported the Union by
rescinding its promise to pay 2 hours' "show up" pay
for October 28, 1977, to employees Ed Ortiz, Dick
Wischhusen, Don Carman. Aldo Delu, Joe Oliveri,
Donald Thomson, C. N. Koenecke, and George
Swapp for engaging in protected concerted activity,
and refusing to pay its employees said "show up" pay
for the same reason; and by interrogating employees
Don Carman and Aldo Delu concerning their having
filed or having been named in charges filed with the
National Labor Relations Board, Respondent has
engaged in unfair labor practices within the meaning
of Section 8(a)(l) of the Act.
4. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act.
TIHE REMEDY
We have found, contrary to the Administrative
Law Judge, that the Respondent has engaged in cer-
tain unfair labor practices in violation of Section
8(a)(l) of the Act by: (I) threatening not to pay em-
ployees their previously authorized 2 hours' "show
up" pay and at the same time threatening them with
discharge, layoff, and other reprisals if they support-
ed the Union; (2) rescinding its promise to pay 2
hours' "show up" pay for October 28, 1977, to em-
ployees Ed Ortiz, Dick Wischhusen, Don Carman,
Aldo Delu, Joe Oliveri, Donald Thomson, C. N.
Koenecke, and George Swapp and refusing to pay its
employees said "show up" pay: and (3) interrogating
employees Don Carman and Aldo Delu concerning
their having filed or having been named in charges
filed with the National Labor Relations Board. In
order to effectuate the purposes of the Act, the Re-
spondent will be ordered to cease and desist from
engaging in such unfair labor practices and to make
employees Ed Ortiz, Dick Wischhusen, Don Car-
man, Aldo Delu, Joe Oliveri, Donald Thomson,
C. N. Koenecke, and George Swapp whole for any
loss of earnings they may have suffered by reason of
Respondent's failure to pay them 2 hours' "show up"
pay for October 28, 1977. The amount of backpay
due and interest thereon shall be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).10
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
'0 See. generally. Isy Plunmbing I& eaing (. 138 NIRB 716 (19621
lations Board hereby orders that the Respondent,
Donald E. Hernly, Inc., Massapequa, New York, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening not to pay employees previously
authorized "show up" pay and at the same time
threatening employees with discharge, layoff, and
other reprisals if they supported the Union.
(b) Rescinding its promise to pay employees 2
hours' "show up" pay for engaging in protected con-
certed activity and refusing to pay employees said
"show up" pay for the same reason.
(c) Interrogating employees about their having
filed or having been named in charges filed with the
National Labor Relations Board.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights under the National Labor Relations
Act, as amended.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Make whole employees Ed Ortiz, Dick Wisch-
husen, Don Carman, Aldo Delu, Joe Oliveri, Donald
Thomson, C. N. Koenecke, and George Swapp for
any loss of earnings in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its place of business in Massapequa,
New York, copies of the attached notice marked
"Appendix." " Copies of said notice, on forms pro-
vided by the Regional Director for Region 29, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced. or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
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 l.abor Relations Board."
DONALD E. HERNLY. INC. 843
APPENDIX
No(ic-: To EPlOY I i s
POSIti) BY ORDER O()f lL
NATIONAL LABOR RELAII()NS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice and we intend
to abide by the following.
Section 7 of the Act gives all employees these
rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To bargain collectively through representa-
tives of their own choosing
To refuse to do an) or all of these things.
WE wll. NOT- threaten not to pay employees
previously authorized "show up" pas and at the
same time threaten them with discharge, layoff.
and other reprisals if they supported the U1nion.
W}I wILL Not rescind promises to pay our em-
ployees "show up" pay and refuse to pay our
employees "show up" pay because they engage
in protected concerted activity.
WE WiI.L NOT interrogate our employees con-
cerning their having filed or having been named
in charges filed with the National Labor Rela-
tions Board.
WF. wi. Nt in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WtE WILL make Ed Ortiz, Dick Wischhusen,
Don Carman, Aldo Delu. Joe Oliveri., Donald
Thomson, C. N. Koenecke, and George Swapp
whole for their loss of wages because of our dis-
crimination against them, plus interest.
DONALD E HERNL.Y. INC
DECISION
STATEMENT OF THE CASE
GEORGE F MCINERNY. Administrative Law Judge: The
charge on which this case is based was filed on November
15, 1977, by District Council of New York and Vicinity of
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, herein referred to as the Dockbuild-
ers or the Union, against Donald E. Hernly, Inc., herein
called Respondent or the Company. On January 5, 1978,
the Regional Director for Region 29 issued the complaint
in this matter alleging that Respondent violated Section
8(a} (I) and (3) of the National Labor Relations Act. as
amended, in that it failed to pay a promised benefit and
threatened its employees because of the union activit of
these employees.
Pursuant to notice included in said complaint, a hearing
was held at Brooklyn. New York. on May 25 and 26. 1978.
All parties were represented by counsel and were afforded
full opportunity to be heard. to examine and cross-examine
witnesses, to introduce testimonial and documentary evi-
dence, and to argue orally. Thereafter, Respondent filed a
brief which has been carefully considered.
Upon the entire record in this case including my obser-
vation of the witnesses, I make the following:
FINDINCGS OF F(
I Jt RISI)IC1 ION
Respondent is a New York corporation engaged in con-
struction contracting, particularly the building of docks,
piers, and similar structures from its principal office and
place of business at 25 East Chestnut Street, Massapequa,
Nassau County, New York. During the year prior to the
issuance of the complaint Respondent. in the course and
conduct of its business operations, performed construction
contracting services valued in excess of $50,000, of which
services valued in excess of $50,000 were performed in, and
for various enterprises located in, States other than the
State of New York. I find, therefore, that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II LABOR OR(iANIZATION
District Council of New York and Vicinity of the United
Brotherhood of Carpenters and Joiners of America. AFL--
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
I1 I HE NFAIR LABOR PRAC(I(ES
A. Background
The Union and Respondent have had a bargaining rela-
tionship for many years.' Early in 1977.2 the Company ob-
tained a contract for the driving of steel sheet piling and
treated creosote wooden piles as a subcontractor on a job
described as the Red Hook Sewer Project in Brooklyn.
New York, under the direction of a general contractor
named Copat. Two crews were employed on the project
there '.as a question as to uhether there is currentls an entire contract
or merel a memorandum of agreement extending a prior agreement, I find
that there was. at the time of the hearing. a collecti ve-bargaining agreement
covering the employees in question loever. I find further thai neither the
existence of the agreementl nor Its prticiulal r form. is relesanl t o this pro-
'eed un he
\11 d.ites herein .ire in 197' unles. othersaisc lndiclted
DONALD E. HERNLY. N.
.. . . . . _ .
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beginning in March and continuing until the crews were
laid off on November 14.
B. Incidents of Union Animus
In order to demonstrate Respondent's hostility toward
the Union and the Section 7 rights of the employees, coun-
sel for the General Counsel introduced evidence of two
incidents which occurred on this job.3 The first of these
apparently happened shortly after the job began in March.
Shop steward Edwin Ortiz testified that the Company
failed for over two months to replace some tools which
were stolen from a shanty located on the job. Ortiz further
testified that the shanty burned down and that, despite re-
quests by him to management, it was not replaced.
On cross-examination, Ortiz gave a somewhat different
version of these events. He admitted that the only things
lost from the shanty were a few articles of clothing and a
hammer and wrench belonging to a trainee. He further
stated that he and the other employees had been previously
informed by the Company that they should not keep their
tools in the shanty because vandalism was a common oc-
currence in the neighborhood. Despite their disregard of
the Company's instructions, the men were compensated for
their losses--even though the processing of the claim took
some time.
Ortiz, under cross-examination, also contradicted his
earlier testimony about the replacement for the burned
shanty, finally admitting that at least two replacements
were supplied by the Company.
The second incident of alleged animus concerned a com-
plaint by Ortiz that the Company was not using enough
men in the operation the Company was performing at the
time. He testified that Superintendent Galimidi replied that
he wanted to see the provision in the contract to which
Ortiz was referring. On cross-examination Ortiz admitted
that he had not looked at the contract before making his
complaint, had not looked at the contract after making the
complaint, and had not followed the contractual grievance
procedure after Galimidi requested that he be shown where
the Company was violating the contract.
Aside from the effect of this testimony on Ortiz's credi-
bility, I cannot find that these incidents show that Respon-
dent or its superintendent held convictions or had ex-
pressed views which indicated hostility to the Union, or an
intent to discourage membership in it. N.L.R.B. v. Garner
Tool and Die Manufacturing, Inc., 493 F.2d 263 (8th Cir.
1974). Indeed, the instances cited by General Counsel are
relatively minor manifestations of rough spots in the con-
tinuing labor-management dialogue at this Company.
These kinds of incidents are almost invariably worked out,
3As to a third incident, I ruled at the hearing that evidence could not he
adduced on events which occurred 3 1/2-years before the hearing. General
Counsel made an offer of proof to the effect that, at that time. Respondent's
superintendent, Galimidi. fired the Union's shop steward on the job, there-
by causing a work stoppage which was straightened out on the intervention
of Respondent's president. I find not only that the incident is too remote in
time to he considered, but also, based on the substance of the offer of proof,
does not show any animus against the Union on the part of the superinten-
dent. At most, it shows animus against the person appointed as shop stew-
ard.
as they were here, by the participants without the assis-
tance of the National Labor Relations Board or even by
recourse to the formalities of the contractual grievance
procedure. In the case of the stolen tools and clothes, the
employees eventually were compensated. They were lucky
to get that, in view of the fact that they had disregarded the
superintendent's recommendation that they not leave
things in the shanty. On the question of manning, we do
not yet know who was right because the shop steward, Or-
tiz, never looked at the contract to find out whether he was
correct in his complaint.
If as this record shows, on another occasion Superinten-
dent Galimidi, referring to Ortiz, commented that the
Union ought to give an examination for shop stewards; or
if Business Agent Harkin asked Galimidi if he was "crazy,"
these incidents, too, are just minor contusions and abra-
sions given and received by strong-willed individuals with
differing points of view on issues which concern them both.
All of these instances are perfectly normal in an ongoing
collective-bargaining relationship and do not constitute
substantial evidence that Respondent was hostile toward
the Union or wished to discourage membership in the
Union. It is totally unrealistic for any employer engaged in
a construction project, presumably for a public agency, on
the waterfront in Brooklyn, New York, to entertain a no-
tion that he could operate such a project on a nonunion
basis.
C. The 2 Hours' Pay Incident 4
On the Red Hook Sewer Project Respondent employed
two gangs of four men each and a foreman. Harry Bonne
was foreman of one gang which included shop steward Ed-
win Ortiz, Richard Wischhusen, Donald Carman, and
Aldo Delu. The other gang was headed by Tom Vickers
and included Joel Oliveri, Ronald Thompson, C. N. Koe-
necke, and George Swapp. The foremen worked under a
guaranteed 40-hour work week but the gang members were
paid only for the hours they actually worked. Other em-
ployees of Respondent who operated mechanical equip-
ment were members of another union. These employees
were also employed on a guaranteed 40-hour basis.
On October 25 or 26, Mike Paterno, one of the principals
of the general contractor Copat, died. On that day or the
next, Respondent's employees learned that because of
Paterno's death the job would be shut down on Friday,
October 28. They became concerned about the possibility
that they would not get paid for the day since they had
heard that all other employees on the job would be paid.
They discussed the matter among themselves; as a result,
Ortiz approached Galimidi to find out whether they were
to work on October 28, or, alternatively, were to be paid
for the day.
There is no serious dispute concerning the versions of
4 Respondent urges that the fact that the specific allegations in the com-
plaint were not the subject of a charge, nor part of the onginal charge in this
case,requires that the complaint be dismissed. I do not agree. The matters
contained in the complaint are closely related to and grow out of the con-
duct complained of in the charge. N LR B. v. Fant Milling Company, 360
U.S. 301 1959); National Licorice Company v. N.L R.B., 309 U.S. 350
(1940): N L. R B. v. Kohler (ompany, 220 F.2d 3 (7th Cir. 1954)
844
DONALD E. HERNLY, INC. 845
the conversations between Ortiz and Galimidi on October
27. There were several conversations during that day be-
tween the two men. Galimidi confirmed the fact that the
job would be shut down and there would be no work on
October 28. 1 find that in one of these conversations Gali-
midi promised to pay the employees 2 hours for the day. In
fact, he obtained the agreement of Company President
Frank J. Gaidon, to pay the 2 hours, noted this fact on the
employees' timecards, and notified his office of the situa-
tion.
Ortiz and the other employees were not happy with this
resolution. Ortiz complained to Galimidi that this was a
lockout, and he stated that a resolution of the matter would
have to be left until the Union's business representative.
Harkin, came down to the job to decide what to do. Ortiz
then attempted to contact Harkin but was unable to do so
on October 27. The next day Harkin called Ortiz' home
and made arrangements to meet on the job on Monday,
October 31.
On Monday, October 31, Harkin arrived on the job
around 10 a.m. and met with Ortiz, Foreman Bonne,5 and
the other members of the crew. After they had talked brief-
ly, Galimidi drove up in his car. A conversation then took
place between Harkin, Ortiz, and Galimidi, with Bonne as
a spectator. Carman and Delu witnessed the conversation
but were too far away to hear what was said.
After a short colloquy, during which the witnesses agree
that the union representatives demanded that the employ-
ees receive 8 hours' pay for the previous Friday, Galimidi
became excited, began shouting, cursing, and waving his
arms, and headed toward his car, followed by Harkin.
Among other things, Galimidi stated that the promised 2
hours' pay would not be paid, and that he could shut down
the job anytime he wanted and lay off all the employees
anytime he wanted. He then got into his car and drove
away.
While there is no real disagreement on these facts, there
is a substantial difference in the testimony of union wit-
nesses and company witnesses on Galimidi's reasons for
this outbrust. Harkin and Ortiz stated that the shouting
began with Galimidi expressing resentment that "the
Union was brought down on this." Harkin quoted Galimi-
di as saying to Ortiz "You went to the Union on me," and
then commencing his tirade against the employees.
In Galimidi's version of the incident, he admitted that he
"blew his top" and that he was an excitable person. How-
ever, he testified that he became enraged during this con-
versation because of a remark by Harkin to Ortiz and Bon-
ne, advising them to "Remember, you're working for me
and you don't work for him." Galimidi then went on to say
that he told Harkin that if such was the case he might as
well shut the job down.
From the testimony before me, my observation of the
witnesses, and from the inherent probabilities of the situa-
tion I find that Galimidi's version of what occurred on the
There is no evidence that the foremen on this job were supervisors with-
in the meaning of the Act. However. Bonne testified that he is a member of
the Union. and other testimony indicated that the foreman's position ma
be assigned to different individuals from job to job. Bonne testified as a
witness for the General (nsel
morning of October 31 is closer to the actual event than the
version contained in the testimony of Harkin and Ortiz.
My reasons for this finding are as follows:
1. Ortiz testified that he told Galimidi on the afternoon
of October 27 that he was going to check with Harkin on
whether the 2 hours' pay for October 28 was acceptable.
Thus, Galimidi could not have been surprised by Harkin's
appearance on the jobsite on Monday morning.
2. Ortiz further testified that he might have said some-
thing to the effect that the employees "work under union
policy." While he denied specifically that Harkin made the
remarks attributed to the business representative by Gali-
midi, I infer from the quoted testimony that something
along those lines was said.
3. Ortiz was a cautious, defensive witness whose mem-
ory was so poor that much of his testimony had to be
coaxed and cajoled out of him by the General Counsel
through leading questions and liberal references to and
quotations from his affidavit given in the course of the
Regional Office's investigation into this matter. His testi-
mony on the alleged incidents of union animus was contra-
dictory and, on direct examination, less than forthright. He
was, in addition, an interested witness both as the Union's
representative on the job and as an employee with 2 hours'
pay depending on the outcome of this case. For these rea-
sons, then, I do not credit Ortiz's testimony on the October
31 conversation where that testimony is contradicted by
that of Galimidi.
4. Harkin, of course, was also an interested witness. He
was self-assured and articulate and, unlike General Coun-
sel's other witnesses, did not have to be prompted by refer-
ences to affidavits or by leading questions. However, he
tended to become rambling, anecdotal and evasive on
cross-examination, and I specifically do not credit his deni-
al that he said something to the effect that the men worked
for him and not for Galimidi.
5. Galimidi impressed me as a forthright and candid
witness. During extensive examination by General Counsel
his testimony did not reveal any contradictions or inconsis-
tencies except insofar as his testimony differed from those
of Ortiz and Harkin. I therefore find his testimony with
respect to disputed points to be credible.
6. My resolution of the credibility issues is further aided
by consideration of the testimony of Foreman Bonne.6
Harkin and Ortiz testified that Bonne was present during
the conversation with Galimidi. Bonne testified that he was
present at the beginning, but that he then began walking
away. He said that he heard Galimidi say something about
"taking away my powers." This is corroborative of
Galimidi's own testimony and, coupled with the fact that
Bonne heard nothing about the Union being called in, rein-
forces my above-stated conclusions as to credibility.
Therefore, I find that at some point in the conversation
of October 31 Harkin made a remark to the effect that the
Union and not the Employer, made the rules, and that
Galimidi perceived this as an assault on what he consid-
ered the prerogatives of management. He then "blew his
I regard Bnne as a disinterested witness since, as foreman. he as paid
for October 28. In other respects his demeanor convinced me that he as
telling the truth as he best remembered the events f October 31
DONALD E. HERNLY. NC.
. . _ . , . . _ .
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
top," rescinded his promise 7 to pay 2 hours for Friday, and
elaborated on his view concerning his rights over the job.
In any event, the effect on the employees was less than
overpowering. Ortiz testified that everybody expected that
they would get a full day's pay for October 28. Harkin
testified that he told the men that Galimidi would "prob-
ably calm down" and that he thought the men would get
the day's pay. It is clear that the employees were not upset
by Galimidi's histrionics. In the circumstances of this case,
this is not surprising. From the testimony of Ortiz, Bonne,
and the others, it is evident that they expected the Union to
take care of them as it always had in the past. Layoffs and
job shutdowns are common in the construction industry. It
is also true that in a highly specialized segment of that
industry, such as is involved here, unions exercise a much
greater control over employment, methods of work, and
assignment of personnel than in industry generally. Con-
trolling the source of manpower, they can and do act more
effectively in protecting the contractual rights of their
members. Working for different employers at different
times, employees in the construction industry find stability,
protection, and reassurance in the union, which is always
vigilantly present even though employers come and go. In
commenting to the employees that they worked for him
rather than Galimidi, Harkin was merely reassuring them
and reminding them that the Union would take care of the
matter.
As it turned out, the Union did not. When payday came
around on November 2 there was no pay for any hours on
October 28. As he had promised, Galimidi had cancelled
the 2 hours previously authorized. The Union then filed a
grievance and proceeded to step one of the grievance pro-
cedure, which involved a meeting of the Union with the
General Contractors' Association. The grievance was de-
nied and for some unexplained reason was not brought to
arbitration, although the record shows that the contract did
contain provisions for final and binding arbitration.
D. The November Inrerrogation 9
Employees Donald R. Carman and Aldo Delu testified
that they were called on the telephone around Thanksgiv-
ing of 1977 by company President Frank J. Gaidon.
Carman stated that when he received the call he recog-
nized Gaidon's voice because he talked to him quite often
on the telephone. Gaidon asked him what he knew about
The question of whether there was an offer" or a "promise" to pay the
2 hours is really oniy semantic. Whether there was an offer or a promise, if
there was no acceptance there can he no obligation. In either case. Ortiz
made it clear on Thursday. October 27. that he had not accepted, and was
going to consult with 1iarkin. There is no dispute that on October 31. this
offer or promise was rejected and the Union was demanding a full day's pay
for October 28. Having rejected the 2 hours' pay. and having failed to
pursue the grievance procedure beyond the first step, the Union cannot now
say that the Employer was not free to withdraw its offer or promise.
The date of this meeting does not appear in the record.
The complaint herein was amended at the hearing to add an allegation
that Respondent had interrogated employees ill violation of Sec. 8(a)( I of
the Act. Respondent argues that this amendment be rejected. I find that the
amendment is reasonabl related to the other allegations of the complaint.
does not prejudice the Respondent. and was fully litigated at the hearing. It
is within my discretion to allow the amendment and I reaffirm that ruling.
Rules and Regulations. Series 8, as amended. Sec. 102.17.
the charges and whether he was making the charges against
the Company personally. The Company's president also
stated that he did not know whether he could hire any of
the employees back at the present time because he had
never had anything like this happen before.
Delu testified that he also recognized Gaidon's voice on
the telephone, and that Gaidon told him that he had re-
ceived charges from the National Labor Relations Board
containing the names of members of Delu's gang on it, and
did Delu know anything about it. Delu replied in the nega-
tive. Gaidon then said something about getting a lawyer to
fight the case.
Gaidon was not called upon to testify in this proceeding
so this testimony is undenied 0 and deemed to be admit-
ted.
E. Conclusions
As I noted above, I do not find that the instances offered
by General Counsel, including the incident described in his
offer of proof as evidence of union animus, in fact consti-
tute union animus. I find rather that these instances are
merely manifestations of an ongoing labor-management
relationship not uncommon in industry, particularly in the
construction industry.
With regard to the blowup on October 31 I have found
Galimidi's version credible, and I have discredited the tes-
timonies of Ortiz and Harkin on the question of bringing
the Union in, and on the question of Harkin's statement to
the employees about who they really worked for.
Further, even if Galimidi waxed overenthusiastic in his
threats to lay everybody off, the employees were not con-
cerned. They knew they would be laid off in the natural
course of things, when the job was finished, and not before.
The testimonies of Harkin and Ortiz make this clear. After
all, was Respondent going to call in nonunion dockbuilders
down there on the Brooklyn waterfront?
Thus, I conclude that there was no violation of Section
8(a)(l) in Galimidi's outburst of October 31.
With respect to the allegation that Respondent unlawful-
ly withheld 2 hours' pay, I find no antiunion motivation. I
do not believe that Galimidi withdrew the promise to pay
the 2 hours because Ortiz brought the Union in. Rather, I
believe he withdrew the promise because it was not accept-
able to the Union. They wanted 8 hours and were not, on
the morning of October 31, going to settle for less. Wheth-
er, under the contract, they were entitled to the 8 hours is
not before me.
For these reasons, then, I find no violation of Section
8(a)(l).
The remaining allegations in the complaint allege unlaw-
ful interrogation of employees by Frank Gaidon. The un-
denied testimony establishes that Gaidon called two em-
ployees and asked if they knew anything about the original
charge in this case and asked one of the employees if he
m A portion of Gaidon's affidavit given during the Regional Office's in-
vestigation of this case was admitted into eidence. The affidavit did not
deal with these allegations. but rather with the question of whether Galimidi
made an offer of 2 hours' pay, or promised 2 hours' pay. on October 27. My
findings on that question are given above.
I The charge alleged the unlawful layoff of the five employees Ortiz,
Wischhusen. arman. Delu. and Bonne.
DONALD E. HERNLY. INC. 847
had personally filed the charge.'2
In evaluating this incident, I have considered the back-
ground, the nature of the information sought, the identity
of the questioner, the place and method of the interroga-
tion, and the truthfulness of the reply. In this case there is.
as I have found, no background of union animus or hostili-
ty. Indeed, the questioner explained to Carman and Delu
that he had never received such a charge before. The na-
ture of the information sought was the basis for the charge
and whether the individuals had personally filed. There
was no indication in these questions of threats or coercion.
Each of the witnesses who testified had been a member of
the Union for some years, and the Union has had contracts
with Respondent for years. This is not the kind of situation
where a union is organizing and the information sought
deals with union membership or organizational activities.
It is true that the questioner was the Company's president.
but the witnesses gave no indication that they were in awe
of him. They both had had numbers of telephone calls
from him and seemed on relatively familiar terms with
l? Gaidon also stated to one employee that he did not knos v hether he
could hire the employees hack until the matter ais resolved lThis .rtatement
Is not alleged to he violative of the Act.
him. The employees were interrogated informally, over the
telephone, in their own homes. The replies were truthful.
and the evidence shows that the employees treated the af-
fair casually and without fear.
Therefore, I hold that the interrogation in this case was
not of such a nature as to violate Section 8(a)( ) of the Act.
N.I..R. B. v. Dorn's Transportation (rontpanl. Inc., 405 F.2d
706 (2d Cir. 1969): Bonnie Bourne d a Bourne Co. v.
N.L. RB., 332 F.2d 47 (2d Cir. 1964), and cases cited
therein.
CON(t t SI()NS ot- L ,A
1. Respondent, Donald E. Hernl., Inc., is an employer
engaged in commerce within the meaning of Section 2(2).
(6), and 7) of the Act.
2. District Council of New York and Vicinity of the
United Brotherhood of Carpenters and Joiners of America,
AFL CIO. is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)( 1) and (3) of the Act as
alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
DONALD E. HERNLY. INC.