Freeport Marble & Tile Co., Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1965

153 N.L.R.B. 810 (N.L.R.B. 1965)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the extent that such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL offer to Herbert Wildfeuer immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and make whole Herbert Wildfeuer, Benito Cabrera,
Tom Clark, Julius Farcas, Christian Graf, Lucien Mirambeau, and Paul Wetz-
stein for any loss of earnings each may have suffered as a result of his discharge.
AUTO-CONTROL LABORATORIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204
Freeport Marble & Tile Co., Inc. and Stonecutters Association of
North America , AFL-CIO, Boston Local
Freeport Marble & Tile Co., Inc and Journeymen Stonecutters
Association of North America
Freeport Marble & Tile Co., Inc . and Journeymen Stonecutters
Association of North America, Petitioner . Cases Nos. 1-CA-
4573, 1-CA-4680, and 1-RC-7807. June 09, 196'5
DECISION AND ORDER
On March 10, 1965, Trial Examiner William W. Kapell issued his
Decision in the above -entitled proceeding , finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of Section 8 ( a) (1), (3), and ( 5) of the National
Labor Relations Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Trial Examiner 's Decision . The Trial Examiner further
found that the 8 ( a) (1) violations constituted grounds for setting aside
the election of April 30 , 1964. However, having concluded that
Respondent previously refused to recognize and bargain with the
Union in violation of Section 8(a) (5), he recommended that appro-
priate relief be ordered to remedy the refusal to bargain, and that the
Petition in Case No. 1-RC-7807 be dismissed and all proceedings held
in connection therewith vacated. Thereafter , the Respondent filed
exceptions and a supporting brief and the General Counsel filed a brief
in support of the Trial Examiner's Decision.
153 NLRB No. 63.
FREEPORT MARBLE & TILE CO., INC. 811
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
has considered the Trial Examiner's Decision, the exceptions and
briefs, and the entire record in these cases, and hereby adopts the find-
ings, conclusions,' and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders that
Respondent, Freeport Marble & Tile Co., Inc., Boston, Massachusetts,
its officers, agents, successors, and assigns shall take the action set
forth in the Trial Examiner's Recommended Order.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
I The Trial Examiner , pursuant to an order of the Regional Director for Region 1,
admitted testimony concerning the supervisory status of Pasquale LaFrazia and Albert
Biagi The Trial Examiner affirmed a prior determination of the Regional Director that
LaFrazia is a supervisor but reached a conclusion different from that of the Regional Di-
rector as to Biagi, whom the Trial Examiner also found to be a supervisor . These find-
ings are factually supported by the record . Respondent requests the Board to strike all
testimony concerning the status of these individuals , contending that the Regional Di-
rector exceeded his authority in directing a further hearing on this issue after it had been
fully litigated and resolved by express findings in his earlier Decision and Direction of
Election Contrary to the statement in the Trial Examiner's Decision , the Board has
not previously had occasion to pass upon the Regional Director 's ruling in this regard
since Respondent did not, apart from its exceptions herein, seek review of the order direct-
ing a new hearing on the employee status issue . However, because the Trial Examiner's
findings are supported by substantial evidence on the record before us , and the redeter-
mination of Biagi's status fails to affect other issues in the consolidated proceeding, Re-
spondent was plainly not prejudiced by the relitigation and determination of the Trial
Examiner that Biagi is in fact a supervisor . Accordingly , we affirm the Trial Examiner
and find it unnecessary to pass either upon the procedural regularity of the Regional
Director 's direction of a further hearing or upon the effect of Respondent 's failure to seek
timely review thereof.
TRIAL EXAMINER'S DECISION AND REPORT ON
OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
Cases Nos 1-CA-4573 and 1-CA-4680, proceedings under Section 10(b) of
the National Labor Relations Act, as amended , herein called the Act, were heard
in Boston , Massachusetts , on November 9, 10, 12, 13, and 18, 1964,1 with all par-
ties participiating pursuant to due notice on a consolidated complaint issued on
June 23 by the Regional Director for Region I of the National Labor Relations
Board , herein called the Board , alleging violations of Section 8(a)(1), (3), and (5)
of the Act. In its duly filed answer Respondent denied the commission of the
alleged unfair labor practices.
Also consolidated for hearing with the aforesaid consolidated complaint were
the Union's objections to conduct affecting the results of an election held on April 30
in Case No. 1-RC-7807, and the status of two employees previously determined
by the Regional Director in his Decision and Direction of Election to which no
I All dates herein refer to the year 1964 unless otherwise noted
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objections were filed, but which upon reconsideration he found would best be clari-
fied by further hearing herein . All parties were afforded full opportunity to examine
and cross-examine witnesses and to submit briefs . Able and competent briefs were
submitted by General Counsel and Respondent and have been fully considered.
Upon the entire record 2 in the cases , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material herein Respondent , a corporation duly organized under and
existing by virtue of the laws of the Commonwealth of Massachusetts , has main-
tained its principal office and place of business at 264 Adams Street in the city of
Boston, Commonwealth of Massachusetts , and has been continuously engaged in
fabrication , sale, and installation of marble, slate , tile, and terrazzo products at all
times material herein . During the year prior to the issuance of the consolidated
complaint , Respondent , in the course and conduct of its business operations, pur-
chased , transferred , and had delivered to its plant , marble, slate , tile, and terrazzo
and other goods and materials valued in excess of $50 ,000, which were transported
to its plant directly from States of the United States other than the Commonwealth
of Massachusetts, and in foreign commerce directly from foreign countries . Respond-
ent admits and I find, that it has been engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Journeymen Stonecutters Association of North America , herein referred to as the
Union , and Stonecutters Association of North America , AFL-CIO, Boston Local,
herein referred to as Boston Local , are, and at all times material herein have been,
labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and setting
The events to be considered in the instant cases occurred in 1964 during the
Union's attempt to establish itself as the exclusive bargaining representative of
Respondent 's production and maintenance employees at its sole plant in Boston,
Massachusetts , where it fabricates marble and other products in preparation for their
installation on construction jobs. These employees are referred to as "inside"
employees , and have never been represented by a union . Respondent 's installation
employees , called "outside" employees , install its products at the jobsites, and have
been represented for many years by several labor organizations other than the Union
herein in multiemployer units, while Respondent has been represented by an employer
association of which it is a member.
On March 11 , the Union filed a petition in Case No . 1-RC-7807 requesting certifi-
cation as bargaining representative for a unit of Respondent 's production and main-
tenance employees . Pursuant to a hearing held on said petition on March 25, the
Regional Director on April 9 issued a Decision and Direction of Election in which
he found that the following employees of Respondent constitute a unit appropriate
for the purposes of collective bargaining:
All production and maintenance employees at the Employer's Dorchester, Mas-
sachusetts , plant, including truckdrivers and shippers , but excluding marble set-
ters, tile setters , terrazzo setters, marble , tile, and terrazzo helpers, office clerical
employees , professional employees, guards, and supervisors as defined in the
Act.
Said Decision also excluded employee Pasquale LaFrazia from the unit because of
his supervisory status, and included employee Albert Biagi, who was engaged in
shipping and receiving all materials. An election held on April 30 resulted in 11
votes being cast for and 11 against the Union . Biagi voted at the election without
2 A joint motion , dated January 12, 1965, by counsel for General Counsel and Respond-
ent to correct the record is hereby granted, and the transcript of the testimony Is hereby
corrected as moved therein with the further correction that p. 440 , 1. 26-27 , be changed
to read p . 440, 1. 23-25 I also order that the record be corrected to change "count" to
to "countermand" on p. 507, 1. 6 and 8
FREEPORT MARBLE & TILE CO., IN C. 813
challenge, whereas LaFrazia made no attempt to vote. On this same day, the Bos-
ton Local filed a charge against Respondent alleging violations of Section 8(a)( I)
of the Act.
On May 4, the Union filed the following timely objections to Respondent's con-
duct affecting the results of the election- (1) gave raises to some employees as
inducement against the Union; (2) threatened employees; (3) held captive meetings;
(4) interrogated employees on union activities; (5) posted notices in violation of the
24-hour rule; and (6) these and many other acts of intimidation designed to inter-
fere with their rights to organize. On June 4, the Regional Director issued a sup-
plemental decision and notice of further hearing in which he found that objections
Nos. 1, 5, and 6 were without merit; that the captive speech in objection No. 3 was
made prior to the 24-hour period preceding the opening of the polls; and that there
was merit to objections Nos 2 and 4. In view of his rulings on objections Nos. 2
and 4, he found it was unnecessary to discuss and rule upon the contents of the
Employer's speech made to its employees on April 29, or upon its letter of April 24
containing alleged objectionable threats of closing the plant Based on his findings
of merit in objections Nos. 2 and 4, the Regional Director set aside the election. He
also found that in the course of his investigation, evidence was revealed indicating
that Biagi may possess supervisory authority and the shop foreman, LaFrazia, may
not possess supervisory authority, a determination of which would affect the unit
placement of these employees as made in his original decision, and directed a further
hearing to resolve the issues pertaining to the unit placement of these employees.
He also directed that a new election be held at a time and place to be determined
following the aforesaid hearing.
On June 11, the Regional Director issued a complaint in Case No. 1-CA-4573,
based on the charge filed on April 30, alleging that Respondent unlawfully inter-
rogated its employees and made threats of economic reprisal and promises of benefits
in violation of Section 8(a) (1).
Respondent filed a request for review of the Regional Director's supplemental deci-
sion and notice of further hearing based on the grounds that the Regional Director's
findings of fact were erroneous and should be set aside and/or a new hearing ordered
on the factual issues, and that the Regional Director committed prejudicial error in
ordering a further hearing to resolve the status of Biagi and LaFrazia because that
matter had been fully litigated in the original representation hearing, and a determi-
nation had been made therein to which no objections had been filed The Regional
Director thereupon issued a second supplemental decision and further notice of hear-
ing, which in effect affirmed his prior findings, and Respondent filed a request for re-
view of this decision Meanwhile, the Regional Director denied Respondent's motion
to consolidate the complaint in Case No. 1-CA-4573 with the hearing ordered in Case
No. 1-RC-7807. By order of July 17, the Board granted Respondent's request for
review and directed that a hearing be held on the objections sustained by the Regional
Director in Case No. 1-RC-7807, and that it be consolidated with Case No. 1-CA-
4573 for purpose of hearing and decision. By supplemental order of July 23, the
Board further directed the Regional Director to include in his consolidation order a
bearing on the unresolved issues cited in his supplemental decision, arising from the
letter referred to therein in footnote 4, and the speech, which was the subject of
objection No. 3.
The Boston Local thereafter on July 23 filed an unfair labor practice charge in
Case No. 1-CA-4680, alleging the unlawful discharge of employee Louis Politano
in violation of Section 8(a)(3), and on July 27 the Union filed an amended charge
alleging Respondent 's discriminatory discharge of Louis Politano in violation of
Section 8(a)(3), and its unlawful refusal to bargain in violation of Section 8(a)(5).
On September 10, the Regional Director issued a consolidated complaint in Cases
Nos. l -CA-4573 and 1 -CA-4680, alleging violations of Section 8(a)(1), (3), and
(5), and an order consolidating the hearing of these cases with the hearing on objec-
tions Nos. 2 and 4, on the unresolved issues raised by the letter and speech as directed
by the Board , and also on the issues pertaining to the unit placement of Biagi and
LaFrazia. Respondent in its answer to the consolidated complaint denied the com-
mission of any unfair labor practices, and stated that even if the Union represented
a majority of its employees, it was under no obligation to bargain with the Union
until said Union was certified by the Board.
Respondent 's Motion to Dismiss
Prior to the hearing herein , Respondent filed a motion to dismiss the consolidated
complaint or, in the alternative , that Case No. 1-CA-4680 be severed from Cases
Nos. l -CA-4573 and 1 -RC-7807 on the ground that since the Union 's representa-
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion petition had not been dismissed or withdrawn, it was an abuse of the Board's
processes to proceed simultaneously with the representation matter and refusal-to-
bargain allegation. By order of October 5, Trial Examiner Sidney Lindner, to whom
the motion to dismiss had been referred for disposition, denied it on the grounds that
related proceedings may be consolidated to effectuate the policies of the Act or to
avoid unnecessary course or delay, and that related objections to an election may be
consolidated with complaint charges. Respondent renewed said motions during the
hearing herein at which time decision was reserved. In its brief, Respondent con-
tends in support of its motions that the instant case is distinguishable from the Bernet
Foam Products Company, Inc., case 3 because in that case the election had been set
aside by the Regional Director prior to the Board's Decision, whereas in the instant
case, the representation matter is still pending in view of the Board's order directing
a hearing on the objections to the election. The distinction urged by Respondent is
without merit. In Irving Air Chute Company, Inc, Marathon Division,4 and
S. N. C. Manufacturing Co., Inc.,5 which are analogous to the instant case in that
representation matters were also pending, objections to an election were consolidated
for hearing with alleged refusal-to-bargain allegations by order of the Regional
Director. And in its decision in S N. C. Manufacturing Co., Inc., supra, the Board
specifically approved its reversal of the waiver rule as applied in Bernel Foam Prod-
ucts Co., Inc., supra. The equity considerations of inconsistency and unfairness of
giving a union innumerable opportunities to obtain recognition at the expense of an
employer, raised by Respondent herein, were fully considered and rejected by the
Board in Bernel Foam Products Co., Inc., supra and reaffirmed in Irving Air Chute
Company, Inc., Marathon Division, supra. Accordingly, Respondent's motion to
dismiss the consolidated complaint is hereby denied. Although Respondent did not
in its brief renew its motion to sever Case No. 1-CA-4680 from the other cases,
which it made during the hearing and on which decision was reserved, I now also
deny that motion for the reasons stated in Trial Examiner Lindner's order
B. The alleged 8(a)(1) violations
The consolidated complaint alleges that Respondent interfered with, restrained,
and coerced its employees by unlawful interrogation, threats of economic reprisal,
and promises of benefits in violation of Section 8(a)(1). The evidence supporting
these allegations a is as follows:
1. The conversations held with employees
On March 14, Michael Sarni, Respondent's president, approached employee Louis
Politano, a cutting machine operator, at his machine and in the course of a conver-
sation with him, asked ". . . and why do you come here to instigate a union," and
walked away. Politano followed Sarni to his worktable and asked for an explana-
tion. Sarni replied, "We have no trouble with the Union, you come here now we
have trouble with the Union," and further advised him that he had received a letter,7
which he showed him, and accused him of informing the Union that he had given
him a 5-cent raise. Politano read the letter and denied he had informed the Union
about the increase. Sarni then took Politano into the office of Joseph Levis, who
was out at the time, and, in the presence of Sarni's son, Patsy, questioned him as to
whether he signed an application card and who else signed cards. Politano declined
3146 NLRB 1277. The Board there held that a labor organization which loses an
election may nevertheless seek bargaining relief under Section 8(a) (5) of the Act or Sec-
tion 8(a) (1) in appropriate circumstances, where it appears that the employer has engaged
in conduct requiring the election to be set aside, thereby reversing the former rule of
waiver previously established in Aiello Dairy Farm8, 100 NLRB 1365
1149 NLRB 627
5147 NLRB 809.
0 Testimony elicited during the hearing of conversations between Respondent's General
Manager Levis and employee Pasquale LaFrazia, which were allegedly of a coercive nature,
is not considered herein because LaFrazia was found, infra, to be a supervisory employee.
7 The letter, dated March 13, was a copy of a letter sent by Union General President
Howard I. Henson to the Board's Boston Regional Office with copies to Michael Sarni and
Joseph Politano, a brother of Louis Politano and treasurer of the Union's Boston Local
The letter states that on March 11, Henson called Sarni, informed him of having filed a
petition for an election, requested recognition, and was advised by Sarni that he would get
an answer on March 12 ; that Sarni then gave 5-cent raises to part of the employees , and
that when Henson called back on March 12, Sarni "refrained from recognition "
FREEPORT MARBLE & TILE CO., INC. 815
to answer the questions, and advised Sarni to talk to the men. Sarni replied, "I'm
not ready for a union. I got to keep putting money into the business in order to
meet payroll expenses." 8
On or about April 27, Levis engaged Louis Politano in a conversation as the lat-
ter was leaving the plant about 4:30 p.m., in which he asked how Politano felt about
the Union and stated that "the Union can promise but it's up to the employers to
deliver. If they cannot afford to deliver there is nothing they can do about it. They
would have to do one on [sic] two things; close the doors and the fellows that are
now working would be out of a job, or they would have to bring in prefinished marble
in order to keep up with competition." Levis, while asking Politano how he felt
about the Union, requested him to find out how the men felt and to report back, and
also "to gain the feelings of the men in voting No." Politano agreed, but declined
to reveal whether he or other employees signed cards. Levis then assured Politano
that no matter how the election turned out, his job was guaranteed .0
Salvatore DePietro began working for Respondent in May 1962 and left at the
end of May 1964. A day or two before the election he had a conversation alone in
the shop with Levis who said he could not tell him whether to join or not to join
the Union but if the Union got in and they put his back to the wall, he would have
to send the work out to be finished, which would mean the end of their jobs.
DePietro replied that he was going to leave anyway because he was not making
enough money for a married man. Levis retorted, "You don't have to do that because
if the Union is going to lose, then I fix everything ok." DePietro responded, "Mr.
Levis why don't you fix it before we start to put the Union in? Now it's too late." 10
A few days before the election, employee Giacomo Rosa was told to see Levis,
who in Italian, told him that they should be friends, that he should not go to the
Union, and that if the Union got in he would close the shop."
8 These findings are based on the testimony of Louis Politano. Sarni in his testimony
admitted having a conversation with Politano at which he confronted him with the letter
from the Union. He also testified that when he received the letter he did not read
it carefully but saw the name "Politano" on the bottom, mistakenly concluded that it
was from Louis, and called him into his office to inquire about it ; that Louis
denied knowing anything about the letter, pointed out that it was from his brother Joseph,
and said he was a union man and if the Union found out he worked there he would be
fined $500; and that he never questioned Louis about the Union or about the membership
cards. Politano 's testimony concerning the conversation is credited because it was more
convincing than Sarni's and appeared to be more likely under the circumstances.
g These findings are based upon the testimony of Louis Politano . Levis, in his testi-
mony, stated that in the conversation in which he allegedly guaranteed Politano's job, all
he said was that he knew how to lose as well as to win from his athletic experiences, and
no matter how the election turned out they would be friends just the same ; and that aside
from personal matters, nothing was said about the Union . Levis testified further that
in another conversation with Politano as the latter was leaving the plant about 4.30 in
the afternoon on the Friday prior to the election he told him about the matters he intended
to cover in his speech ( the contents of which is discussed infra ) to the men on the fol-
lowing Monday . He denied questioning Politano about the Union or requesting Politano
to ascertain how the men felt about the Union and to report back to him On cross-
examination , however , Levis stated that he started to tell Politano about the implications
of having to obtain finished materials , but was interrupted by Politano , who replied that
he understood, and then went on to state that Sarni thought he ( Politano ) was responsible
for all of this situation whereas in fact he had nothing to do with it and the first he
heard about it was when Sarni confronted him with the letter . Politano 's testimony is
credited because it was convincing and plausible.
10 These findings are based on the testimony of DePietro . Levis on direct examination
admitted that he spoke to DePietro on April 27 at which time he told him that whether or
not he signed a union card , he did not have to vote for a union, that the Union can only
promise but the Company delivers when it could afford to, and that he could not discuss
his wages because of the pending election; and he also denied that he ever told him if
the Union put his back to the wall he could close the shop. On cross-examination Levis
admitted that he spoke to DePietro about matters covered in his letter and speech, and
also informed him of the situation involving the importation of finished material from
Europe. DePietro, who was subpenaed to testify and is no longer with Respondent, Im-
pressed the Trial Examiner as being a truthful witness and his testimony is credited.
11 These findings are based on the credited testimony of Rosa. Levis in his testimony
denied that he ever told Rosa that if the Union got in he would close the shop, but
admitted that in a conversation with Rosa prior to the election he told him essentially
what was included in his letter and speech
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The day before the election, Levis in a conversation with employee Pasquale Man-
ganiello, told him that he would like to have him vote against the Union because the
application does not mean a thing, that what is important is the way he will vote,
that he should not be afraid if the Union does not enter into the shop because he will
make everything right, and that if the Union succeeds in entering the shop then he
will have the work come in finished and he would close the shop.12
2. Respondent's letter of April 24
Respondent admitted that copies of its letter dated April 24 (General Counsel's
Exhibit No. 7) were sent to those of its employees who read English, that a trans-
lation in Italian (General Counsel's Exhibit No. 8) was sent to those of its employees
who were unable to read English, and that in some instances where there was doubt
as to the language ability of the employee both copies were sent. The letter sets
forth in pertinent part as follows:
1 urge you to vote No because I believe that the Journeymen Stonecutters
Union is a serious threat to the continued operation of this plant and you! job.
The Union has probably told you that you have everything to gain and noth-
ing to lose by voting them in-this is not true and the Union knows it. The
very future of this plant and your jobs are at stake.
3. The speech of Joseph Levis
On the day prior to the election Joseph Levis called a meeting of the employees
at the plant during working hours and delivered a speech 13 to them. He stated in
his speech, inter alia, that he had already explained to most of them how he felt
about the Union and why he urged them to vote no in the election; that the Union
had told them they have nothing to lose and everything to gain if voted in; that this
was not true and there was an awful lot they could possibly lose; that he was unable
to correct or promise to correct their complaints during the pending election and his
decision with respect to their complaints would have to wait until after the election;
that about this time in past years it had been the practice of the Company to nego-
tiate on wages for the "outside" people (some of whom had already received
increases) following which they would review the wages of the "inside" people; that
after the election , if the Union was defeated , he would announce his decision; that
if the Union won the election wage increases would have to be negotiated with the
Union; that the Union was not a guarantee of anything and could be a ticket to
disaster ; that the Company was engaged in a very competitive business and the trend
was to buy prefinished marble, most of it imported from Italy, and almost all their
competitors were buying it because it was cheaper to operate that way; that the
Union could strangle companies like theirs ; that if the Union got in shop costs could
rise out of line, in which event they would be unable to operate the plant any longer;
that if they were to stay in business and meet competition they would have to buy
prefinished marble ; and that he was not making ' any threats or promises..
Conclusions as to Section 8 (a) (1) Violations
I find that Sarni's interrogation of Louis Politano in their conversations related
above as to whether he had signed a union card and the identity of other employees
who signed cards, in the context of the attending circumstances in which this inter-
rogation occurred, and in the absence of any evidence to establish that the interroga-
tion had a legitimate purpose or motive , carried with it at least the aroma of coer-
cion , especially when coupled with Sarni's strong objections to the unionization of
the "inside" employees , and tended to interfere with , restrain , or coerce Politano in
the exercise of his rights guaranteed by the Act, in violation of Section 8(a) (1) of
the Act .14 I also find for the same reasons that Levis' conversations with Politano
"These findings are based upon the testimony of Manganiello. Levis in his testimony
stated that in a conversation with Manganiello on the Monday before the election he began
to tell him what he had previously told DePietro and Rosa when he was interrupted by
Manganiello, who complained about the dirty nature of his work, that he, Levis, replied, "I
cannot talk to you about your conditions now and it will have to wait until after the elec-
tion." Manganiello 's testimony was convincing and direct and is credited
13 The only issue raised by the speech is whether it contained coercive remarks , its tim-
ing is not in issue.
14 Sweetwater Rug Company, 148 NLRB 498
FREEPORT MARBLE & TILE CO., INC. 817
in which he asked him to ascertain the identity of the employees who signed union
cards and to report back to him also constituted violations of Section 8(a)(1). I
find further that Levis ' conversations with DePietro , Rosa, and Manganiello conveyed
the impression that if the Union won the election , the plant would discontinue fabri-
cating marble and resort to purchasing prefinished marble, and that a resultant loss
of employment would inevitably ensue from unionization . The unlawful inhibitory
and coercive effects of threats of such economic reprisal constitute violations of
Section 8(a)(1). Furthermore , Levis' statement to DePietro that he would fix
everything if the Union lost, and his statement of similar import to Manganiello,
constitute promises of economic benefits also violative of Section 8(a)(1).15 I also
find that Levis' speech and Respondent 's letter in the context of the entire record
must be interpreted as implying a promise of benefit to the employees if they rejected
the Union , and also a thinly veiled threat to discontinue the fabricating processes in
the plant if the Union won the election . Heick Moving & Storage, Inc., 150 NLRB
1124. In making these findings , I do not overlook the closing remark in Levis'
speech or in similar remarks made directly to employees that he was not making any
threats or promises . This remark or other remarks to the same effect did not miti-
gate the effect of his threats and his dire predictions . As the Board stated in Brown-
wood Manufacturing Company, 149 NLRB 921, "If the Respondent did not wish
the employees to be concerned with these possibilities (threats and warnings) there
was no need to raise them in the first place. Having sounded the alarm , Respondent
cannot so easily avoid the effect of its words."
Even assuming Levis' good faith in portraying to the employees the economic
consequences affecting Respondent 's position relative to the competition of pre-
finished marble, it would be no defense to a Section 8(a)(1) charge because of its
inherent tendency to interfere with, restrain , or coerce the employees in the exercise
of their rights guaranteed in Section 7 of the Act. It is the tendency of an employer's
conduct to interfere with those rights, rather than his motives , that is controlling.
N.L.R.B . v. Burnup and Sims, Inc., 379 U.S. 21 ; N.L.R.B. v. Erie Resistor Corp., et
al., 373 U.S . 221. Moreover , even assuming that Levis ' dire predictions should be
construed as a reference to the possibility of discontinuing plant fabricating work if
the Union won, they nevertheless would be coercive . ". . . statements on the part
of management to employees that it might be necessary to close the plant, made
during a period when unionization of its employees was sought to be effected, must
be regarded as coercive , notwithstanding sincere belief that such result would fol-
low." United Fireworks Mfg. Co., Inc. v. N.L.R .B., 252 F. 2d 428, 430 (C.A. 6).
C. The alleged violation of Section 8(a)(3)
During the week of June 15, employee Louis Politano, a cutting machine operator,
requested and received permission from Sarni to take time off on July 6, 7, and 8,
and possibly the balance of that week , in order to attend a personal court matter.
Politano was told it would not be necessary for him to call in before returning to
work. During the week in which Politano took time off, Sarni received complaints
from three of his installation lobsites that the marble being installed did not blend
properly, and was told to stop shipping any more of it. Sarni thereupon directed
Levis to find other marble for which he went to New York.
On July 13, Politano returned to the plant to resume working but before he could
change into his working clothes Sarni told him "there is no need of changing your
clothes. I have no work for you . . I don't have any marble . when I get the
marble in I will call you." A short time later when Politano was leaving the plant,
he met and asked Sarni whether his layoff was due to his union activities, and he
was assured it was because of a lack of work. Later that week , Politano telephoned
Levis and advised that he had been laid off. Levis assured him that it was due to a
lack of work because Sarni had told him during the previous week they were running
out of Botticini ( marble ), and he had been to New York to get some, and that his
layoff was not due to his union activity . When Politano inquired as to how long he
would be laid off, Levis said he would call back, which he did in a few days when he
again assured Politano that they were short of marble but were expecting to get
some from New York, and his layoff would be for a short period. The new marble
was received about August 8.
On the Friday before August 4, Politano received a call from Levis to report to
work on August 4, and on the following morning he also received a registered let-
ter from Levis to the same effect. When he reported to work as instructed , he found
IS N.L R.B. v. Exchange Parts Company , 375 U.S. 405, 409.
796-027-66-vol. 153-53
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his former cutting machine being operated by employee Ferrante, and his uncle,
LaFrazia, put him to work on the cutting machine previously operated by employee
John Mei, on which Politano has, apparently, continued to work since that time.
The record shows that Politano was the only employee laid off; that no operator
of a cutting machine had been laid off during the previous 30 years; that some
employee laborers with less seniority than Politano were kept on the job; that
although Politano never did laborer's work in the plant, he was qualified to do such
work; that Sarni never asked him about his ability to do work other than cutting
and was of the impression that it would be beneath his dignity to do laborer's work
and consequently never offered him such work; and that the total hours worked by
the "inside" employees during the weeks ending July 18 and 25 and August 1, were
somewhat less than during the several weeks preceding the week of July 13.16
Conclusions as to Section 8(a) (3) Violations
Respondent's union animus and its knowledge of Politano's union activities were
clearly demonstrated in its violations of Section 8(a) (1) involving Politano. Fur-
thermore, Respondent's knowledge of Politano's union activities is also indicated in
its request for review of the Regional Director's decisions setting aside the election
without a hearing, in which it contended that the Regional Director erroneously
relied upon testimony obtained from or through the assistance of Politano, a clearly
biased witness. It also appears that Politano acted as an observer for the Union at
the election on April 30.
Sarni's contention that Politano was laid off because there was no cutting work to
be done due to a lack of work was refuted by the testimony of LaFrazia to the effect
that employees Ferrante and Mario Moscato continued to operate the cutting machines
following Politano's layoff and by the testimony of Levis that during the week end-
ing July 18, Ferrante and Mario Moscato worked as cutters. Moreover, it appears
that no cutter had been laid off during the previous 30 years even during slack
periods, and it was not uncommon to transfer men from one operation (cutting) to
a laborer's work when conditions in the plant warranted. Sarni's explanation that
Politano was not assigned to do laborer's work because he was unaware of Politano's
ability to do such work (and admittedly never inquired whether he could), and that
he had the feeling it would be beneath Politano's dignity to perform such work not
only lacks substance but is hardly convincing
Viewing Politano's layoff in the context of Respondent's union animus, its viola-
tions of Section 8(a)(1), and its knowledge of Politano's union activities; and con-
sidering the fact that no cutter had ever been laid off during the preceding 30 years
despite periods of slack work, that Politano was the only employee to be laid off, that
employees were transferred from one operation to another when conditions in the
plant warranted, that laborers with less seniority than Politano were kept on; and
that Sarni failed to give a credible explanation of Politano's layoff or his failure to
assign Politano to do work other than cutting, even assuming that the cutting work
was curtailed, I find that the alleged curtailment of the cutting operations was used
as a pretext to lay off Politano, and that the real motivating cause for his layoff was
his union activity. Moreover, even accepting Respondent's claim that a lack of
marble justified a layoff, I find that the selection of Politano to be laid off was moti-
vated by his union activity. Furthermore, even assuming that a decrease in the
cutting work constituted a valid ground for his layoff, it is well settled that the pres-
ence of valid grounds for an employee's discharge or layoff does not legalize it where
the circumstances reasonably indicate that the union activities weighed more heavily
in the decision to layoff him off than did other factors N.L R B. v. Whitin Maclaine
Works, 204 F. 2d 883, 885 (C.A. 1).
26 The above findings are based upon the credited composite testimony of Politano,
Sarni, Levis, and LaFrazia Sarni's testimony to the effect that in the second conversa-
tion with Polltano on July 13, Politano inquired only whether he was being laid off or
discharged, and that following Politano's layoff, employees Ferrante and Mario Moscato,
marble cutters, were given other work to do, and no cutting work was done in the plant,
is not credited Levis contradicted Sarni's testimony concerning the cutting work done
following Politano's layoff He testified that during the week ending July 18, Ferrante
and Moscato worked on the cutting machines LaFrazia also testified that following
Politano's layoff, his machine was idle for a few days and then Ferrante began to operate it
FREEPORT MARBLE & TILE CO., INC. 819
Respondent's argument that the timing of Politano's layoff-almost 3 months after
the election-strongly indicates that his layoff was not discriminatory is untenable.
Respondent evidenced its concern of Politano's union activities after the election when
it filed its request for review of the Regional Director's second supplemental decision
on June 30, wherein it again contended that the Regional Director erroneously relied
on evidence obtained from or through the assistance of Politano, a clearly biased
witness. I therefore conclude that Politano was discriminatively laid off in violation
of Section 8(a) (3) and (1) of the Act.
D. The alleged violation of Section 8(a)(5)
1. The demand for recognition
On March 11, Howard I. Henson, general president of the Union, filed a repre-
sentation petition with the Board for a unit of Respondent's employees. Later that
day, he telephoned Michael Sarni, advised him that he represented the Union and a
majority of his employees and had filed a representation petition, and that he "would
hope and appreciate the fact that he might recognize our union as the bargaining
representative for the employees in his shop"; and then explained to him by recog-
nizing the Union they could go ahead and bargain for a contract without the neces-
sity of going through other procedures. Sarni replied that he could not give him a
definite answer at that time, and it was arranged that Henson would call back the
following day for an answer. The next day Henson called back and Sarni refused to
recognize the Union.17 The following day Henson sent a letter to the Board's Bos-
ton Regional Office and a copy to Sarni, asserting, in part, that Sarni had refused his
request for recognition. Apropos the alleged request for recognition, the parties
stipulated into the instant record, a stipulation entered into during the representation
hearing that on or about March 11, the Union orally requested recognition for the
unit involved herein,18 and the Employer (Respondent) orally on or about the same
day refused to grant recognition unless and until it was certified at such time by the
National Labor Relations Board in an appropriate unit for collective bargaining. I
find in accordance with the credited testimony and the stipulation that the Union
made a request for recognition as bargaining representative of an appropriate unit
on or about March 11.19
I find further that the Union's demand for recognition was of a continuing nature
in the circumstances involved herein. A formal demand by the Union subsequent
to March 11 would have been futile in the light of Respondent's prior peremptory
refusal. Thus, in Local No. 152, afi/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (American Compressed Steel
Corporation) v. N.L.R.B., 343 F. 2d 307 (C.A.D.C. ), a case bearing striking similar-
ity to the instant case, the court enforced the Board's bargaining order in the following
circumstances: On April 11, the union requested recognition in the mistaken belief
that it represented a majority in the appropriate unit. The company responded that
it was not interested, but in no manner disputed the union's representative capacity.
The union-thereupon sent a registered letter to the company repeating its demand,
which was ignored. By April 25, the union had obtained a majority of the employ-
ees authorizing it to represent those employees. The court held that, inasmuch as
the union obtained a majority status by April 25, the Board was justified in construing
the union's conduct as a continuing demand in circumstances where a formal demand
in the light of the company's prior peremptory refusal would have been useless. See
also N.L.R.B. v. Burton-Dixie Corporation, 210 F. 2d 199, 200 (C.A. 10); Henry
17 These findings are based upon the credited testimony of Henson. Sarni testified that
he received only one call from Henson in March, in which he claimed to represent the
Union, and f tated that he wanted to organize his shop, to which Sarni replied that they
were doing marble work and not limestone and that "I 'm not interest [ sic]."
18 In his opening statement , Respondent 's counsel conceded that the unit was appro-
priate and the only question affecting the unit was whether it should include two em-
ployees, Albert Biagi and Pasquale LaFrazia, whose status as supervisors was in issue.
19 Respondent's contention in its brief that no unequivocal request for recognition or
bargaining was made is without merit . The evidence clearly establishes that a request
for recognition and bargaining was made. In Barker's East Main Corporation , 142 NLRB
1194, cited in Respondent's brief, the union's letter "requesting recognition" was clarified
in subsequent conversations between the parties as being a request for an election
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spen & Company, Inc., 150 NLRB 138; Cameo Lingeiie, Inc., 148 NLRB 535; Aero
Corporation, 149 NLRB 1283, where the requests for recognition and bargaining
were held to be of a continuing nature.20
2. Respondent 's refusal to recognize and bargain with the Union
The testimony of Sarni clearly establishes that he refused to recognize and bargain
with the Union. In his own words he stated , "I'm not interest [sic]." He expressed
no intimation that it was because he doubted the Union's majority , and the Union
was never asked to prove its majority . His failure to do so warrants the inference
that Respondent entertained no such doubt . Tinley Park Dairy Co., d/b/a Country
Lane Food Store, 142 NLRB 683. Nor does the Union 's failure to tender proof of
its majority status give rise to a good-faith doubt on the part of Respondent . Lacking
a challenge by Respondent , there was no necessity for the Union to offer such proof.
Roy Miller Freight Lines, Inc., 149 NLRB 1007. Furthermore , the filing of the
Union's petition for an election did not of itself suspend Respondent 's duty to bar-
gain unless there is other evidence of a good-faith doubt. N L R.B. v. Samuel J.
Kobritz, d /b/a Star Beef Company, 193 F. 2d 8, 14 (C.A. 1); Irving Air Chute
Company, Inc., Marathon Division, 149 NLRB 627 ; General Medical Supply Corp.,
140 NLRB 712, 713.
Respondent , however, contends it had doubt as to the appropriateness of the unit
( as petitioned for) in view of its long history of bargaining on a multiemployer unit
basis for its other employees , which gave rise to a jurisdictional dispute until resolved
by the Regional Director Although Levis testified to that effect, this doubt was
never conveyed to the Union at the time of its request for recognition . Moreover,
it is well settled that a history of multiemployer bargaining for other employees does
not establish a multiemployer unit as the only appropriate unit for previously unrep-
resented employees in a different category . Popular Priced Dress Manufacturers
Group, Inc., 126 NLRB 966, 967. Furthermore , even assuming that Respondent
refused in good faith to recognize the Union , based upon its erroneous impression
of the law concerning the appropriateness of the unit , such good faith is not avail-
able as a defense to a charge of refusal to bargain . Old King Cole , Inc. v. N.L.R.B.,
260 F. 2d 530 (C.A. 6); Taylor Forge & Pipe Works v. N.L.R.B., 234 F. 2d 227
(C.A. 7).
3. The Union's majority
a. The form of the Union 's "authorization" cards
To establish the Union 's designation as bargaining representative by a majority of
the employees in the appropriate unit, General Counsel produced cards containing
printed matter and blank spaces for insertion of appropriate answers in the following
form:
APPLICATION FOR MEMBERSHIP
Assessment ---------------------------
Name in Full ------------------------ Date Signed --------------
Job Classification --------------------- Rate ---------------------
Present Address ------------ ------------ ----------- -----------
Street City Zone State
No obligation if no election , or if Stone Cutters fail to win Election.
Applicant 's Signature ------------------------
(This application to be kept secret, except for the Union and N.L.R.B.)
Such cards containing the appropriate insertions , including the signatures of the
employees, were admitted in evidence over Respondent 's objection to establish the
Union's designation as their bargaining representative Respondent contends that
the cards themselves do not authorize the Union to represent the employees for pur-
poses of collective bargaining because nowhere on the card is the Union given any
authority to bargain or represent these employees , and accordingly they must be
rejected as proof of the Union 's majority status. Respondent further contends that
20 Respondent 's contention that the union majority must have been demonstrated as of
March 11 when the demand for bargaining was initially made is without merit. In sup-
port of its position, Respondent cited Rea Construction Company, 137 NLRB 1769, footnote
1. In that case, the Board held that the date of the receipt (by mail) of the request for
bargaining rather than the date such request was sent is the time as of which majority
status is to be determined, thereby rejecting an attempt by the Respondent to advance the
critical date to the date when the request was mailed. The Board did not pass upon the
continuing nature of the request following its receipt, which is in issue herein.
FREEPORT MARBLE & TILE CO., INC. 821
the cards were also invalidated for designation purposes and limited for use only in
an election because of the inscription appearing on the bottom of the card reading,
"No obligation if no election, or if Stone Cutters fail to win Election." Neither of
these contentions is meritorious.
In construing union cards which only indicated on their face that they were appli-
cations for membership, and did not contain any language specifically authorizing
the Union to represent the signatories, the Board has consistently held that they are
sufficient to constitute a designation of a bargaining agent. Thus, in Food Machinery
Corporation, 41 NLRB 1428, 1445-1456, the Board held "The signing of an applica-
tion for membership in a labor organization in itself constitutes a designation of that
organization as a bargaining agent." Accord. United Biscuit Company of America,
Union Biscuit Division, 101 NLRB 1552, 1568, footnote 27; Sunshine Mining Com-
pany, 7 NLRB 1252, 1261-1262, enfd. 110 F. 2d 780 (C.A. 9); Hood Rubber
Company, Inc., 5 NLRB 165, 168, N.L.R.B. v. Chicago Apparatus Company, 116
F. 2d 753, 756 (C.A. 7).
Nor does the inscription on the bottom of the card, "No obligation if no election, or
if Stone Cutters fail to win Election," limit the cards for use in an election only. No
authorities are cited by Respondent in support of that contention, and I find no justi-
fication to so construe the language on the card. That phrase is not inconsistent with
granting the Union immediate authority to represent the signatories to the cards, and
does not per se invalidate the cards for authorization purposes. At most, it might
inject an element of ambiguity in construing the cards, which could be clarified by
evidence of the factual circumstances attending their signing. As appears infra, there
is no substantial credible evidence that any employee was told that the signing of the
card would be used only to obtain an election. On the contrary, the signatories to
the cards were told that the purpose of the card was to join the Union. Moreover,
even assuming that some employees were told that signing a card could lead to an
election, such testimony would not be inconsistent with the evidence establishing that
they were told the purpose of the card was to join the Union and thereby authorize it
to represent them 21 I, accordingly, find that the cards on their face were sufficient
to constitute a designation of the Union as the bargaining agent of the employees
who signed them.
b The validity of the signed cards
General Counsel and Respondent entered into a stipulation during the hearing that
the appropriate unit contained the 20 employees 22 enumerated in General Counsel's
Exhibit No 5.23 It therefore was incumbent on General Counsel to show that the
Union had at least 11 valid authorization cards at a time when its request for recog-
nition was effective In its brief Respondent asserts, even assuming a valid and
unequivocal bargaining request was made on March 11, that of the 11 union cards in-
troduced in evidence by General Counsel, which the Union had obtained by March 11,
the cards signed by LaFrazia, Ferrante, Giovanni Cardarelli, Castagnetti, Bruno,
and Fusco must be rejected as invalid cards Respondent, however, concedes that
the cards of Fulvio Cardarelli, Moscato, Mei, Manganiello, Politano, and DePietro
were valid cards, assuming that these cards in themselves can be considered evidence
of authority to bargain. In view of my finding, supra, that such cards on their face
constituted valid designations of a bargaining agent, I find that they are valid desig-
nations of the Union as the bargaining representative of those employees.
21 Cf N.L R B v. Geigy Company, Inc., 211 F 2d 553, 556 (C A. 9), where there was
evidence to the effect that the signing of the authorization cards was intended simply as
the initial step toward securing a Board election at which the employees could express
their choice as to representation and not as a present authorization of the Union to bar-
gain in the employees' behalf ; that both the Union and the employees contemplated the
authorization cards would be used in aid of a petition for a Board election ; that the
matter of union initiation fees and dues was put off until after an election could be held ;
and that other evidence, however, indicated that the employees intended to give the
Union immediate authority to bargain in their behalf The court affirmed the Board's
holding that the effective designation of the Union as the bargaining representative was
supported by substantial evidence on the record considered as a whole, and was therefore
conclusive.
22These employees were: Bertini, Bruno, Caccaviello, Fulvio Cardarelli, Giovanni
Cardarelli, Castagnetti, Ciampa, DePietro, Ferrante, Fusco, Lazzaro, Letteri, Manganiello,
Met, Moscato, Politano, Rosa, Sarno, Steriti, and Todisco
23 The inclusion or exclusion of two other employees, Albert Biagi and Pasquale LaFrazia,
depended upon a determination as to whether or not they were supervisory employees As
indicated infra, under objections to election where this issue is resolved, they are found
to be supervisors and, accordingly, not included in the appropriate unit.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Disputed Cards
LaFrazia's card, as contended by Respondent, may not be counted in determining
the Union 's majority because he was found to be a supervisor.
Fusco did not appear at the hearing 24 and his card was introduced through the
testimony of Mei and Politano.2'' Mei testified that he requested Fusco to sign the
card; that he explained the signing of the card was for the purpose of forming the
Union; and that he saw Fusco sign the card . Respondent contends that inasmuch
as discrepancies and contradictions appear in the testimony of Mel and Politano as
to what part of Fusco's card was filled out by each of them, and also by the testimony
of Elizabeth McCarthy, a handwriting expert, who compared handwriting specimens
of Mei and Politano with the handwriting on Fusco's card,26 therefore neither Politano
nor Mei are credible witnesses and, accordingly , there is no credible evidence as to
the actual signing of Fusco 's card. Respondent , however, made no attempt to attack
the genuineness of Fusco's signature by having the handwriting expert compare it
with his signature and other handwriting which appear on company records kept in
the usual course of business, such as working timeslips or other records. Nor did
Respondent explain why it did not attempt to do so although granted a continuance of
5 days to obtain and prepare the handwriting expert to testify. Mei's testimony,
despite some minor conflicting evidence , impressed me as being substantially truthful.
I accordingly find that Fusco 's card was a valid designation of the Union to represent
him for bargaining purposes as of March 11.
Bruno's card was introduced in evidence through Politano 's testimony 27 to the
effect that he told Bruno the card was an application for membership in the Union,
that he translated and read the card in Italian after filling it out, and that he saw
Bruno sign it. The handwriting expert, after comparing the handwriting on the card
with specimens of the handwriting of Politano and Mei, testified in contradiction to
Politano that the name on line 1, the job classification , the rate of pay, and the
address on the card were in his handwriting . 28 Respondent contends that there is no
credible testimony that Bruno signed the card and it , therefore, should be rejected.
Despite the conflicting evidence , which I consider of minor significance , I credit
Politano's version concerning the circumstances attending the signing of Bruno's card,
and find it a valid designation of the Union to represent him for bargaining purposes
as of March 11.
Giovanni Cardarelli testified concerning the signing of his card . His testimony
was to some extent ambiguous At one point he testified that when Mei handed him
the card after filling it out,29 he signed it without engaging in any conversation
because he was expecting the card and the employees had previously been talking
about it among themselves , and no explanation was necessary . At another point in
a* General Counsel stated that he had failed to appear despite being subpenaed
^It is well established that such cards may be introduced through the testimony of
witnesses , other than the signatories to the cards, who witnessed the signing of the cards.
See Piero Corporation, 149 NLRB 1283 , footnote 12, and authorities cited therein.
=a In making her handwriting comparisons , McCarthy used conceded genuine specimens
of Politano 's handwriting and the purported genuine signature and other handwriting
of Mei appearing on company records ( working timeslips ) prepared in the usual course of
its business , which were admitted in evidence over General Counsel ' s objection for com-
parison purposes . General Counsel 's contention that such company records may not be
admitted for comparison purposes is without merit . "Handwriting , admitted to be used
as a basis for comparison under the Act of Congress is not required to be proven genuine
in any other way that is any other document offered in evidence." Dean v . US , 246 F.
568 576-577 (C A 5) Also, in weighing the testimony of the handwriting expert. I took
into consideration the fact that the disputed handwriting was handprinted , which was
conceded by the expert to make her task more difficult than when comparing handwriting
of connected letters
a+ In explanation of Bruno's failure to appear , there was testimony by Politano to the
effect that Bruno and Castagnetti had told him they were going to Italy Levis also
testified that he heard Bruno and Castagnetti were thinking of going to Italy
As with Fusco 's card the disputed handwriting was handprinted , which made it more
difficult to form a comparison judgment Also, no attempt was made to compare Bruno's
signature with specimens of his signature and other handwriting kept by Respondent in
the usual course of its business
2DMei stated that the card was not filled out in his handwriting and he did not recall
seeing Cardarelli sign it Politano testified that the card was not in his handwriting, and
the handwriting expert testified that the date was in Politano 's handwriting and she could
not identify the other writing on the card
FREEPORT MARBLE & TILE CO., INC. 823
his testimony Cardarelli stated that Mei explained to him that the card signing was
necessary to form a union; that he knew they had to sign the cards to have a union
come in, and that they signed the cards in order to have an election. It is well settled
that an employee's thoughts or afterthoughts as to why he signed a union card and
what he thought the card meant, cannot negative the overt action of having signed
a card designating the union, or having the effect of designating the union as bar-
gaining agent. Furthermore, even assuming that Cardarelli was told that signing the
card would cause an election to be held, that would not be inconsistent with what he
was told about the necessity to sign the card in order to form a union. Nor is there
any evidence that he was told that the card he signed would be used only to obtain an
election.3° Nor would Cardarelli's card be invalidated even assuming, as contended
by Respondent, that he was told at the time he signed it that everybody had signed up.
It was not established nor even intimated that Cardarelli signed his card in reliance
upon that misrepresentation.31 I therefore find that Cardarelli's card was a valid
designation of the Union as his bargaining representative as of March 11.
Ferrante's card was introduced in evidence through the testimony of Louis Poll-
tano, who testified that he filled out the card at the request of Ferrante; that he asked
Ferrante whether he knew what the card meant and Ferrante replied that it meant
membership in the Union; and that after he filled out the card Ferrante read it and
then signed it.3' Ferrante, although initially subpenaed by General Counsel who
declined to call him as his witness. testified on behalf of Respondent that he refused to
sign the card when first approached by Mei because he already belonged to a union
and was contemplating leaving Respondent to return to his own business. He testified
further that a few days later Louis Politano approached him and he signed the card
after being told by Politano that signing the card was only to help bring an election
and that they did not have enough signatures for an election. According to the testi-
mony of Louis and Joseph Politano,33 Ferrante attended a meeting at the home of
Joseph Politano on October 27, where Ferrante, upon being shown his card by Ellis
(co-counsel for the General Counsel), acknowledged his signature and stated that the
card was given to him to become a union member. Ferrante admitted attending
the meeting at Joseph Politano's home and acknowledging his signature on his card,
but denied that anything else was said, and that a day or two later he was interviewed
by Respondent's counsel concerning the signing of his card. It seems unlikely that
General Counsel would have initially subpenaed Ferrante after meeting him at the
home of Joseph Politano unless he was fairly certain that his testimony would be
favorable to his case.34 After observing Ferrante's demeanor and considering the
circumstances surrounding his testimony, I credit the testimony of the Politanos to
the effect that Ferrante signed his card to become a member of the Union, and I con-
clude that his card was a valid designation of the Union as his bargaining agent when
the Union requested recognition and bargaining on March 11.
3° Cf Cumberland Shoe Corporation, 144 NLRB 1268, where the Board distinguishes the
Englewood Lumber Company case, 130 NLRB 394, cited by Respondent in its brief, on the
ground that the employees were there told that the cards were only for the purpose of
securing a Board election
31 Cf. NLRB. v. H. Rohstein f Co., Inc, 266 F 2d 407 (C A 1), cited by Respondent,
where the court in reversing the Board stated that the testimony concerning the circum-
stances surrounding the execution of the disputed card (whether the signatory of the card
signed it in reliance upon the misrepresentation that the Union had obtained a majority)
was not resolved by the Trial Examiner, and that the Board, in essence, erroneously held
that the validity of the card was not affected even if the signatory relied upon the mis-
representation in signing the card choosing a collective-bargaining agent The court also
stressed the fact that it seemed fairly clear that the untrue claim of success (the obtain-
ment of a majority) was of great importance to the signatory, a circumstance not ap-
parent in the instant case
33 The handwriting expert testified that the date on the card was in Politano's hand-
writing but that the balance of the card was in the handwriting of Ale! This card was
also handprinted.
33 A brother of Louis Politano and recording secretary of the Boston Local
34 On cross-examination Ferrante admitted that he was present at the hearing on Mon-
day, and at the close of the session on that day was told by Ellis to return on Tuesday
to testify ; and that the following morning Ellis spoke to him in the corridor outside the
hearing room, and in reviewing the circumstances attending the signing of his card, he
gave answers which conformed with his subsequent testimony on direct examination. He
also stated that he approached and spoke to Respondent's counsel in the corridor outside
the hearing room following his conversation with Ellis. The record also shows that Fer-
rante attended a union meeting both before and after he signed his card, which does not
appear to be consonant with his alleged lack of interest in the Union
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the above findings relative to the validity of the union cards, it appears
that as of March 11 when the Union made its request for recognition and bargaining,
it had been designated as bargaining representative for the following 10 employees:
Fulvio Cardarelli, Moscato, Mei, Manganiello, Louis Politano, DePietro, Fusco,
Bruno, Giovanni Cardarelli, and Ferrante. Inasmuch as the appropriate unit con-
sisted of 20 employees, the Union had failed to obtain a majority as of March 11.
Inasmuch as the Union's request for recognition and bargaining was of a continu-
ing nature, as noted above, it becomes necessary to determine whether the cards of
Castagnetti and Rosa, allegedly signed on March 16, were valid cards for the purpose
of designating the Union as their bargaining representative.
Castagnetti's card was introduced in evidence through the testimony of Politano,35
who testified that he filled out the date on the card at home on Sunday, March 15, and
inadvertently put that date on it under the mistaken impression that he was dating it
for Monday, the following day. On March 16, he gave Castagnetti the card at the
shop, told him in Italian it was an application for membership in the Union, and
asked hint whether he wanted to sign it. He then filled out the balance of the card
pursuant to Castagnetti's request and read it back to Castagnetti, who then signed it.
When the card was shown to Politano on cross-examination he revised his testimony
and stated that he filled out the date and job classification on the card while Mei filled
out the name on the top line The handwriting expert testified that Mei filled out the
date and the first and third lmes.36 Respondent contends that the alleged discrepan-
cies which appear with respect to the writing on Castagnetti's card completely dis-
credit Politano, and therefore the card must be rejected because of a lack of affirma-
tive evidence that Castagnetti signed it Considering all the evidence, I credit Poli-
tano's testimony to the effect that the card was signed on March 16 by Castagnetti for
the purpose of joining the Union, and I find that he thereby designated the Union as
his bargaining agent.
Rosa testified that he signed his card sometime in March. Before he signed it
Politano explained to him in Italian that the card was an application to become a
union member and then he filled it out in his presence. Politano then read the card
back to him in Italian, and Mei, who was with Politano, handed him the card and told
him all the other employees had already signed cards. Politano testified that he
dated the card March 15 at home at the same time he inadvertently and mistakenly
dated Castagnetti's card, and that he saw Castagnetti sign it on Monday, March 16,
after explaining in Italian to him that the card was an application to join the Union.
After changing his testimony as to whose handwriting (handprinted) appeared on the
card, Politano asserted that the date and job classification were in his handwriting.
Mei testified that he did not remember asking Rosa to sign his card. The handwriting
expert testified that the date was not in Politano's handwriting, and that Mei wrote the
date, the first and the third lines. Despite the conflicting testimony as to who filled
out the various parts of the card, I credit Rosa's testimony as related above
Respondent also contends that inasmuch as Mei told Rosa all the other employees
had signed cards, when he handed him his card, Rosa's card must be rejected because
it was obtained through misrepresentation. However, nowhere does it appear that
Rosa signed his card because of his reliance on the alleged misrepresentation. In fact,
it definitely appears that Rosa had already indicated his desire to sign the application
for union membership before Mei's statement was made, and it had no effect'on him
with respect to his signing of the card 37 I accordingly find that Rosa's card was a
valid designation of the Union as his bargaining representative as of March 16.
It therefore follows that the Union was designated as the bargaining representative
by 12 employees, a majority of the 20 employees in the appropriate unit as of
March 16. Local No. 152, aff1w International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of,America (American Compressed Steel Corporation)
v. N.L.R.B., 343 F. 2d 307 (C.A.D.C.).
'*As appears above in connection with Bruno's card, there was evidence to the effect
that Castagnettl had returned to Italy.
3e Castagnetti's card was also handprinted, and no attempt was made to compare his
signature on the card with his signature or other handwriting appearing on company
records.
17 The case of N L R.B. v. H Rohstein & Co , Inc, supra, cited by Respondent in support
of its position, is inapposite as appears supra, in connection with a determination of the
validity of Giovanni Cardarelli's card. The instant case is clearly distinguishable in that
there was no reliance by Rosa on Mel's misrepresentation when he signed his card
FREEPORT MARBLE & TILE CO., INC. 825
Concluding Findings as to the Violation of Section 8(a)(5)
As noted above, I find that Respondent's refusal to recognize and bargain with the
Union after March 16 was not based on a good-faith doubt of the Union's majority at
a time in which the Union's request for recognition continued in effect and while it
represented a majority of the employees in the appropriate unit. I find further, as
indicated, infra, under objections to an election, that timely and meritorious objec-
tions to conduct affecting an election were filed by the Union, which warranted the
setting aside of the election. Under all the circumstances, including Respondent's
violations of Section 8(a)(1),38 I conclude that Respondent evaded its obligation to
recognize and bargain with the Union for the purpose of utilizing the preelection
period to undermine the Union's majority, and thereby violated Section 8(a) (5) and
(1) of the Act. The instant case falls within the Board's Decision in Irving Air Chute
Company, Inc., Marathon Division, 149 NLRB 627, which reaffirmed its position in
Bernel Foam Products Co., Inc., 146 NLRB 1277, and held that a labor organization
which loses an election may nevertheless seek bargaining relief under Section 8(a) (5)
of the Act or Section 8 (a) (1) where it appears that the employer has engaged in
conduct requiring the election to be set aside upon timely and meritorious objections
filed in the representation case. Moreover, the law is well settled that where an
employer does not question the union's majority support, and thereafter promptly
engages in unfair labor practices , which tend to undermine the union 's majority and
prevent the holding of a fair election, as found herein , such conduct is violative of
Section 8(a) (5). Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732, 741 (C.A.D.C.),
cert. denied 341 U.S. 914; N.L.R.B. v. Samuel J. Kobritz, d/b/a Star Beef Company,
193 F. 2d 8, 14 (C.A. 1).
Furthermore, even if the absence of a formal request for recognition after March 16
were fatal to a claim of refusal to bargain herein, an affirmative bargaining order
would nevertheless be appropriate to remedy the Section 8(a)(1) violations, and to
restore the status quo ante. American Compressed Steel Corporation, 146 NLRB
1463, enfd. sub nom. Local No. 152, aff/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America v. N.L.R.B, 343 F. 2d 307
(C.A.D.C.); Western Aluminum of Oregon Incorporated, et al, 144 NLRB 1191;
Greystone Knitwear Corp. and Donwood, Ltd., 136 NLRB 573, 575-576, enfd. 311
F. 2d 794 (C.A. 2).
The Objections to Election Case No. 1-RC-7807
1. Relitigation of the status of LaFrazia and Biagi
As related hereinabove under section III, A, entitled "Background and setting," the
Regional Director in his decision and direction of election found, inter alia, that
LaFrazia was excluded from the unit because he was a supervisor, while Biagi was to
be included as a nonsupervisory employee. Following the Union's filing of objec-
tions to election in which no objection was made to the status determination of
LaFrazia and Biagi, the Regional Director issued a supplemental decision and notice
of further hearing in which he found that in the course of his investigation evidence
was revealed indicating that Biagi may possess supervisory authority while Shop
Foreman LaFrazia may not possess supervisory authority, and directed a further
hearing to resolve the issues pertaining to the unit placement of these employees.
Respondent in his requests for review of the Regional Director's supplemental deci-
sions claimed, inter alia, that the Regional Director committed prejudicial error in
ordering a further hearing to resolve the status of LaFrazia and Biagi because that
matter had been fully litigated in the representation case hearing and a determination
had been made therein to which no objection had been filed. At the hearing Respond-
ent's objections to the introduction of any evidence concerning the status of LaFrazia
and Biagi were overruled, and such evidence was admitted. In its brief Respondent
argues that all such evidence should be stricken from the record because relitigation
of issues previously disposed of should not be permitted in the absence of newly
discovered evidence or absent evidence not in the possession of the Union at the time
of the representation hearing.
I find Respondent's objections are without merit. Its reliance upon Section 102.67
(f) of the Board's Rules and Regulations, Series 8, as amended, is misplaced. That
section specifically precludes any party, upon its failure to request review, from reliti-
is Respondent's Section 8(a) (1) violations occurring about the time of the Union's re-
quest for recognition, while not permitting a mechanical finding of intent to dissipate a
Union's majority may properly be considered in determining the Company's intent, and
the unfair labor practices are indicative, although not dispositive, of Respondent's motive
in not recognizing the Union . Cameo Lingerie, Inc., 148 NLRB 535.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gating any issue in any related subsequent unfair labor practice proceeding which was
or could have been raised in the representation proceeding. In the instant case the
Regional Director on his own initiative ordered the hearing and his authority to do
so is amply supported by Section 102.69(c) of the Board's Rules. It is well estab-
lished that the jurisdiction of the Regional Director in making postelection investiga-
tions is not limited to the specific issues raised by the parties. International Shoe
Company, 123 NLRB 682, 684; Carter-Lee Lumber Company, 119 NLRB 1374.
Furthermore, in its requests for review by the Board of the Regional Director's sup-
plemental decisions, Respondent contended, inter alia, that the Regional Director
committed substantial and prejudicial error in directing relitigation of the status of
LaFrazia and Biagi. However, the Board in passing upon those requests for review
issued orders reversing and modifying the findings of the Regional Director with
respect to a hearing concerning the Respondent's conduct which affected the election
but made no finding with respect to the status issue, and thereby, sub silentio, affirmed
the Regional Director's finding on that issue. Section 102.67(f) of the Board's Rules
provides that a denial of a request for review shall constitute an affirmance of the
Regional Director's action which shall also preclude relitigating any such issue in any
related subsequent unfair labor practice proceeding, and I consider myself bound
thereby.
a. LaFrazia's status
LaFrazia has been employed by Respondent for 41 years. For the past 21/2 years
he stated that he "walks around and sees that the men do what they are told and to do
it right." Prior to that time he was a machinist doing all kinds of repair work at an
hourly pay of $2.95, and was told what to do by Azzari, his foreman. When Azzari
left, he became a foreman and now receives $3.25 an hour, which is 10 cents an hour
more than the highest paid machine operator. He spends all his working time in the
shop and is in charge of the shop during the absence of Sarni and Levis, both of whom
spend considerable time away from the plant attending to their outside duties. The
specifications prepared by Sarni indicating the fabricating processes (the cutting,
polishing, etc.) to be performed on each job are brought to LaFrazia, who thereupon
exercised his own judgment in assigning men to work on each step of the job, and also
transfers men from one machine to another when in his judgment such transfer is
necessary. He is held responsible for the proper performance of the work under his
supervision and, according to Levis, also makes effective recommendations as to hie-
ing and firing.39 Several of the shop workers also testified that they take orders from
LaFrazia in connection with their work and, in effect, regard his as their foreman.
I find that LaFrazia was charged with the responsibility of directing and supervising
the work of the employees working in the shop, and that his duties were more related
to managerial and company functions that to those of the employees whom he
directed. Cf. West Penn Power Co. v. N.L.R B., 337 F. 2d 993 (C.A. 3). I accord-
ingly find that LaFrazia is a supervisor within the meaning of the Act, and excluded
from the appropriate unit involved herein.
b. Biagi's status
Biagi has been working for Respondent since its inception 42 years ago. He started
work as a truckdriver and was put on a weekly salary basis, which was the customary
practice at that time. He continues to be paid on that basis and also receives either
a vacation or bonus and is paid for sick leave and holidays. None of the employees
in the shop receive such benefits, and all of them are paid on an hourly basis. Biagi's
work, at all times material herein, consisted of taking care of the shipping and receiv-
ing for the Company, including the loading and unloading of trucks and the operation
of an outside crane. He is also responsible for maintaining the Company's stores (the
materials kept in its warehouse) in proper order. Whenever he requires assistance in
the performance of his duties, he has the authority to call upon and select the
laborers working in the shop and to direct them in the performance of such work. If
no laborers are available, he can select machine operators to assist him 40
It is also undisputed that in January the following incident occurred which throws
light upon the extent of Biagi's authority: At that time Biagi approached employee
Manganiello, who was polishing a piece of marble given to him by another employee,
inquired what he was doing, told him to stop, and said that he would report it to Sarni
when he arrived. That evening Sarni questioned Manganiello about the incident
39 These findings are based upon the credited composite testimony of LaFrazia, Levis,
and Sarni.
40 These findings are based upon the credited composite testimony of Biagi,, Levis, and
Sarni.
FREEPORT MARBLE & TILE CO., INC. 827
and said, "When I'm away the people who you take orders from are Mr. Biagi and
Mr. Cardarelli, Giovanni Cardarelli; and if you don't like it, you know where the door
is." It also appears that LaFrazia was in the hospital at that time and Giovanni
Cardarelli was substituting for him at the shop, and that otherwise his name would
have been mentioned by Sarni in place of Cardarelli. Evaluating all the facts con-
cerning Biagi's duties, his authority, and the benefits relating to his vacation, sick
leave, and holiday pay, I find that Biagi was a supervisory employee within the mean-
ing of the Act.
2. Respondent's preelection conduct
As indicated hereinabove, the Board ordered a hearing on the objections sustained
by the Regional Director in his supplemental decisions, and also on the unresolved
issues raised by Respondent's letter and speech to the employees. In view of my
findings, supra, that Sarni's interrogation of Politano with respect to his union activi-
ties and the union activities of other employees tended to interfere with, restrain, or
coerce Politano in the exercise of his rights guaranteed by Section 7 of the Act, that
Levis' conversations with DePietro, Rosa, and Mangamello carried threats of eco-
nomic reprisal and promises of benefits, and that Levis' letter and speech to the
employees conveyed the impression that unionization of the shop would inevitably
jeopardize their jobs, were violative of Section 8(a)(1), I conclude with stronger
reason that such conduct interfered with the exercise of a free and untrammeled
choice in the election held herein.41 I accordingly find merit in and sustain the objec-
tions on which a hearing was directed, and it is recommended that the representation
election should be set aside However, in view of my findings of Respondent's
refusal to bargain as violative of Section 8(a)(5), and my Recommended Order in
that connection, I do not recommend that a new election be held.42
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, 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 Respondent violated Section 8(a)(1), (3), and (5) of the Act,
I will recommend that Respondent cease and desist therefrom and take certain affirm-
ative action, including the posting of appropriate notices,43 designed to effectuate the
policies of the Act.
It having been found that Louis Politano was discriminatorily laid off, I shall rec-
ommend that Respondent make him whole for any loss of earnings he may have suf-
fered by reason of his discriminatory layoff by payment to him of a sum of money
equal to that which he would have earned as wages from July 13, the date of the
discrimination against him, to August 4, the date of his reinstatement, less any interim
earnings, in a manner consistent with the Board policy set out in F. W Woolworth
Company, 90 NLRB 290, to which shall be added interest at the rate of 6 percent per
annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716.
It having been found that Respondent refused to bargain with the Union, which
represented a majority of the employees in an appropriate unit, I shall recommend
that upon request Respondent be ordered to bargain with the Union as the exclusive
representative of the employees in the appropriate unit.
In view of the foregoing findings of fact, and upon the entire record in these cases,
I make the following:
CONCLUSIONS OF LAW
1. At all times material herein, the Union and the Boston Local have been labor
organizations within the meaning of Section 2(5) of the Act.
2. At all times material herein, the Respondent has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
41 Playskool Manufacturing Company, 140 NLRB 1417, 1419 ; Dal-Tex Optical Company,
Inc., 137 NLRB 1782
42 In view of these findings and recommendations, it would follow that the petition for
certification of representatives filed by the Union in Case No. 1-RC-7808 should be dis-
missed, and that all proceedings held in connection therewith be vacated.
13 In view of the inability of some of the employees to read or understand English, such
notices shall be posted in English and Italian
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. All production and maintenance employees at Respondent's Dorchester, Massa-
chusetts, plant, including truckdrivers and shippers, but excluding marble setters, tile
setters, terrazzo setters, marble, tile, and terrazzo helpers, office clerical employees,
professional employees, guards, and supervisors as defined in the Act, constitute the
unit appropriate for the purpose of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. At all times material herein since March 16, the Union has been the exclusive
representative of all the employees in the aforesaid unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment, or other terms
and conditions of employment.
5. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor
practices proscribed by Section 8(a) (1) of the Act.
6. By discriminating in regard to the layoff and tenure of employment of Louis
Politano, thereby discouraging membership in the above Union, Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of
the Act.
7. By refusing since March 16 to bargain collectively with the Union, Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in these cases and the foregoing findings of fact and con-
clusions of law, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended , it is recommended that the Respondent, Freeport Marble & Tile Co.,
Inc., Boston , Massachusetts, its officers, agents, successors, and assigns , shall.
1. Cease and desist from:
(a) Illegally interrogating its employees about their union activities or inclina-
tions or threatening them with economic reprisals or promising them economic
benefits for the purpose of influencing their union activities or sympathies.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization , to form, loin, or assist
Journeymen Stonecutters Association of North America, or any other labor orga-
nization, to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any and all such activities, except
to the extent that such right is affected by the provision of Section 8(a)(3) of the
Act, as amended
(c) Discouraging membership in the aforesaid Union, or in any other labor
organization of its employees, by giving layoffs to its employees because of their
union membership or activities, or by discriminating in any other manner in regard
to their hire or tenure of employment or any other term or condition of employment.
(d) Refusing to bargain collectively with the aforesaid Union as the exclusive
representative of its employees in the following appropriate unit:
All production and maintenance employees at Respondent's Dorchester, Massa-
chusetts, plant, including truckdrivers and shippers, but excluding marble set-
ters, tile setters, terrazzo setters, marble, tile, and terrazzo helpers, office clerical
employees, professional employees, guards, and supervisors as defined in the
Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act-
(a) Make whole Louis Politano for any loss of earnings which he may have
suffered as a result of his discriminatory layoff in the manner set forth above in the
section of the Trial Examiner's Decision entitled "The Remedy."
(b) Upon request, bargain collectively with Journeymen Stonecutters Association
of North America as the exclusive bargaining representative of Respondent's employ-
ees in the unit found appropriate with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agreement.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due to Louis Politano, and to determine the loss of pay due to
his layoff.
FREEPORT MARBLE & TILE CO., INC. 829
(d) Post at its plant in Dorchester , Boston , Massachusetts , copies of the attached
notice marked "Appendix." 44 Copies of said notice in English and Italian, to be
furnished by the Regional Director for Region 1, shall, after being signed by an
authorized representative of Respondent , be posted immediately upon receipt thereof,
and be maintained for a period of 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify said Regional Director , in writing , within 20 days from the receipt
of this Decision , what steps Respondent has taken to comply herewith.433
It is further recommended that the objections to the election on which a hearing
was ordered be sustained , and that the election held in Case No . 1-RC-7807 on
April 30, 1964, be set aside.
44 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a Trial
Examiner" in the notice . If the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the notice will be further amended by the substitution of the words "a
Decree of the United States Court of Appeals , Enforcing an Order" for the words "a
Decision and Order"
11 In the event that this Recommended Order be adopted by the Board , this pi o% ision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps Respondent has taken to comply therewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT interrogate employees as to their union interests and activities
in a manner constituting interference , restraint , or coercion within the meaning
of Section 8 (a) (1) of the Act.
WE WILL NOT threaten employees with economic reprisals or promise them
economic benefits for the purpose of influencing their union activities or
sympathies.
WE WILL NOT in any like or related manner interfere with, restrain , of coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist Journeymen Stonecutters Association of North America , or any other
labor organization , to bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any or all such
activities , except to the extent that such right may be affected by the provisions of
Section 8(a) (3) of the Act, as amended.
WE WILL NOT discourage membership in Journeymen Stonecutters Associa-
tion of North America, or any other labor organization , by laying off or
refusing to reinstate any of our employees, or in any manner discriminating in
regard to their hire or tenure of employment, or any term or condition of
employment.
WE WILL make Louis Politano whole for any loss of pay suffered by him as a
result of his discriminatory layoff.
WE WILL bargain , upon request, with Journeymen Stonecutters Association of
North America , as the exclusive representative of all the employees in the
bargaining unit described below with respect to rates of pay, wages, hours of
employment, or other terms and conditions of employment , and, it an under-
standing is reached , embody it in a signed agreement . The bargaining unit is
All production and maintenance employees , including truckdrivers and
shippers , employed at our Dorchester, Massachusetts , plant, but excluding
marble setters, tile setters , terrazzo setters, marble, tile, and terrazzo
helpers, office clerical employees , professional employees, guards, and
supervisors as defined in the Act.
FREEPORT MARBLE & TILE CO., INC,
Employer.
Dated------------------- By-------------- -----------------------------
(Representative ) (Title)
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 24 School
Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any questions
concerning this notice or compliance with its provisions.
Telecom , Inc. and International Union of Electrical , Radio &
Machine Workers, AFL-CIO. Cases Nos. 9-CA-3143 and 9-CA-
3175. June 29,1965
DECISION AND ORDER
On October 6, 1964, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent and the Union filed exceptions to
the Trial Examiner's Decision and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications noted
below.
1. The Trial Examiner found, and we agree, that Respondent
threatened and interrogated employees in violation of Section 8 (a) (1)
of the Act.
2. We also agree with the Trial Examiner's conclusion that the deci-
sion to transfer the TLC work, and the selections for termination sub-
sequently made, were discriminatorily motivated. As more fully
appears in the Trial Examiner's Decision, the Union's organizing cam-
paign began in January 1964, and culminated in an election held on
March 27, 1964. Respondent engaged in unlawful preelection conduct
which resulted in the election being set aside.' Other unlawful threats
and interrogation stemming from Respondent's campaign and aimed
at the employees' job security are found to violate Section 8(a) (1)
1 Case No. 9-RC-5742, issued October 14, 1964.
153 NLRB No. 84.