Gates Air Conditioning, Inc.

National Labor Relations Board - Board Decisions

Oct 27, 1972

199 N.L.R.B. 1101 (N.L.R.B. 1972)

GATES AIR CONDITIONING, INC. 1101
Gates Air Conditioning, Inc. and Mauro Squicciarini
and Vito De Carlo. Cases 29-CA-2531-1 and 29-
CA-2531-2
October 27, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On May 25, 1972, Administrative Law Judge I
Laurence A. Knapp issued the attached Decision in
this proceeding. Thereafter, Respondent and the Gen-
eral Counsel filed exceptions and briefs, and the Re-
spondent also filed cross-exceptions and a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, to the extent consis-
tent herewith.
1. On August 21, 1972, the General Counsel filed
with the Board a motion to sever and dismiss the
complaint insofar as it pertains to Charging Party
Vito De Carlo on the ground that he has requested
leave to withdraw his charge on the basis of a post-
hearing settlement of the charge.
The motion is unopposed by the parties, and we
therefore grant it. We shall dismiss the complaint in-
sofar as it pertains to Vito De Carlo.
2. The Administrative Law Judge found that Re-
spondent discharged Squicciarini on August 24, 1971,
because of his and De Carlo's joint action in com-
plaining to and filing claims with-the state authorities
earlier that day concerning their wages. Respondent
excepts on the ground, inter alia, that Squicciarini was
discharged on August 23, one day before Squicciarini
acted in concert with De Carlo in filing wage claims
with the state authorities. We find merit in
Respondent's contention.
The record reveals that on August 23 Squicciari-
ni, having consulted with an official of the New York
i The title of "Tnal Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd . 188 F.2d 362 (C.A. 3). We have carefully examined the record and find
no basis for reversing his findings.
State Department of Labor, told Respondent' s Presi-
dent Liebowitz that he had been advised not to sign
the apprenticeship agreement which Liebowitz had
been insisting he sign. According to Squicciarini's
own testimony, which the Administrative Law Judge
credited, Liebowitz replied that he had to sign or leave
the job; he told Liebowitz he would do neither, and
Liebowitz would have to fire him; whereupon Lie-
bowitz fired him. This admission by Squicciarini
leaves unsupported the Administrative Law Judge's
finding that Squicciarini was not discharged until Au-
gust 24. As there is no evidence that Liebowitz was
aware that Squicciarini's refusing to sign the appren-
ticeship agreement on August 23 represented
anything more than Squicciarini's pursuit of personal
or individual objectives, we cannot conclude that
Squicciarini's discharge on August 23 was unlawfully
motivated, as alleged. Cf. Gunnels Industrial Painters,
Inc., 197 NLRB No. 92.
Contrary to Respondent's contention, however,
this fact does not detract from the Administrative
Law Judge's alternative conclusion that Respondent
violated Section 8(a)(1) by refusing to employ Squic-
ciarini on August 24, because it learned of
Squicciarini's and De Carlo's concerted filing of back
wage claims with the New York State Department of
Labor. Clearly, Squicciarini's and De Carlo's joint
action on August 24 in filing complaints against Re-
spondent was protected concerted activity for mutual
aid or protection within the meaning of Section 7 of
the Act, as we have held in similar cases of employees'
complaints to local governmental authorities. B & M
Excavating, Inc., 155 NLRB 1152, enfd. 368 F.2d 624
(C.A. 9). And, even though we find Squicciarini had
been terminated on August 23, this does not affect the
disposition of 8(a)(1) and (3) allegations predicated on
discrimination in Respondent's denial of his request
for rehire. An applicant is an employee within the
meaning of Section 2(3) of the Act. Phelps Dodge
Corp. v. N.L.R.B., 313 U.S. 177.,
As set forth above, Squicciarini was discharged
on August 23. On the morning of August 24 he and
De Carlo filed wage claims with the State, and
Respondent's President Liebowitz was informed of
this by the State that same morning. That afternoon
Liebowitz met with Squicciarini and De Carlo and
told them that their backpay claims were literally put-
ting Respondent out of business. Squicciarini de-
manded "reinstatement," but Liebowitz merely
responded that it was "impossible."
On the next day, August 25, Squicciarini met
with Respondent's Secretary-Treasurer Zassman,
who offered to put Squicciarini to work at some
"Bronx State" job at a wage Zassman claimed to be
union scale. On August 28, having learned that the
wage rate paid there was less than the prevailing wage
199 NLRB No. 143
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scale, Squicciarini declined the offer. After further
discussion, Squicciarini told both Liebowitz and Zass-
man he wanted to return to the Suffolk job where he
had been working when he was fired. Liebowitz and
Zassman again flatly refused, without stating why. On
September 2, Squicciarini attempted to see Liebowitz,
and failing in that he left a message with Respondent's
office secretary that he had not heard from Respon-
dent about his "reinstatement" and that he had been
advised to file a "federal charge."
We agree with the Administrative Law Judge
that Liebowitz' references to the back-wage claim
made at the time he refused employment to Squiccia-
rini on August 24 establish that Respondent was
moved to refuse him employment by his back-wage
claim, which we have found to be protected concerted
activity. Whatever the reasons Respondent may have
had for originally discharging Squicciarini, it is clear
that those reasons were no longer material when Re-
spondent refused to reinstate Squicciarini on August
24 and that the real reason was his concerted activity.
That being the case, we find Respondent's refusal to
hire Squicciarini, on August 24, 1971, interfered with
Squicciarini's Section 7 rights and thereby violated
Section 8(a)(l).3 We shall therefore order Respondent
to offer Squicciarini employment and to make him
whole for his lost wages.
3. We also find merit in the General Counsel's
exceptions to the Administrative Law Judge's failure
to find that Respondent refused employment to
Squicciarini in September because of his union activi-
ties.
As noted above, on August 25 Respondent of-
fered Squicciarini a job at a "Bronx State" project,
which he declined on August 28 for reason stated
above. On September 3 Squicciarini and De Carlo
visited Respondent's "Bronx" job, where they urged
four of Respondent's employees to join Local 295 of
the Operating Engineers, and on September 7 they
brought a Local 295 agent to the site to discuss the
Union and its benefits. On September 8 or 9,
Respondent's Secretary-Treasurer Zassman accused
Squicciarini of "harassing" him (Zassman) and told
Squicciarini that Respondent's employees did not
want the Union. Squicciarini told Zassman, inter alia,
that he still wanted to be "reinstated," whereupon
Zassman invited him to Respondent's office the next
day. Squicciarini accordingly went to the office,
where he met Liebowitz and Zassman on September
10. The latter told him to leave the men alone regard-
ing the Union and added that Respondent did not
want him in its employment. When Squicciarini insist-
ed on being "reinstated" at the Suffolk job, Liebowitz
3 See Wilson & Toomer Fertilizer Company, 151 NLRB 949, Shawnee Indus-
tries, Inc, 140 NLRB 1451.
again said that this was impossible, without saying
why, but that he would hire him as a foreman on some
"Manhattan" job when it began on September 15 or
16. He told Squicciarini to call him at that time.
On or about September 14, Zassman called
Brown, one of the four employees on the Bronx job
whom De Carlo and Squicciarini had approached ear-
lier about the Union, and told Brown that Squicciarini
and De Carlo were trying to make a lot of trouble and
that "they" had told him (Zassman) that Brown and
two other Bronx site men were "stabbing him (Zass-
man) in the back" by having asked Squicciarini and
De Carlo to bring the Union in. Zassman's statement
impelled Brown to deny any desire to bring the Union
in and to cancel his plan to attend a union meeting.
On the afternoon of September 16 Liebowitz tele-
phoned Squicciarini and accused Squicciarini of put-
ting him out of business. Squicciarini retorted that
Liebowitz had been "pacifying" him by promising
"reinstatement" but without intending to do so. Lie-
bowitz concluded the conversation with "If it snowed
in hell, I wouldn't take you back."
On the basis of the foregoing evidence, we infer
and find that Respondent was moved to refuse em-
ployment to Squicciarini on this occasion because of
his union activities, in violation of Section 8(a)(3) of
the Act. Cf. Phelps Dodge Corp. v. N.LR.B., 313 U.S.
177.
4. We agree with the Administrative Law Judge
that Respondent's statement to employee Brown on
or about September 14, as set forth above, was intend-
ed to elicit information about the employees' union
activities and thus was violative of Section 8(a)(1). We
find no merit in Respondent' s argument that to be
unlawful the statement must be cast as a query. Con-
sidering all the surrounding circumstances, including
the demonstrated union animus, the other unfair la-
bor practices found herein, and the implicit inquiry as
to the employees' union sympathies, Zassman's state-
ment constituted interrogation as to union activities
which tends to restrain or interfere with employees in
the exercise of rights guaranteed by the Act and was
therefore violative of Section 8(a)(1) of the Act.4 See
Corriveau & Routhier Cement Block, Inc., 171 NLRB
787.
AMENDED CONCLUSIONS OF LAW
Delete paragraph 3 of the Administrative Law
Judge's Conclusions of Law and substitute therefor
the following:
3. By refusing to employ Mauro Squicciarini on
4 We note that the interrogation did in fact interfere with the exercise of
those rights since as a direct result of the interrogation Brown and other
employees decided not to attend a forthcoming union meeting at which they
had earlier planned to be present
GATES AIR CONDITIONING, INC.
August 24, 1971, because of his protected concerted
activity for mutual aid or protection, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By refusing to employ Mauro Squicciarini on
September 16, 1971, because of his membership in,
sympathies for, and activities on behalf of Local 295,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3)
of the Act.
5. By unlawfully interrogating an employee con-
cerning the union sympathies and activities of its em-
ployees, Respondent has engaged and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act. ,
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that Respondent, Gates Air
Conditioning, Inc., Hempstead, New York, its offi-
cers , agents , successors, and assigns , shall take the
action set forth in said recommended Order, as so
modified:
1. Delete paragraph (a) from section 1 of the
Administrative Law Judge 's recommended Order and
substitute the following:
"(a) Refusing to employ employees because of
their protected concerted activities for mutual aid or
protection or because of their union activities, as
guaranteed by the National Labor Relations Act, as
amended."
2. Delete paragraphs (a) and (b) from section 2
of the Administrative Law Judge's recommended Or-
der and substitute the following:
"(a) Offer to Mauro Squicciarini employment in
his former job, or if his former job no longer exists, in
a substantially equivalent job, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay suffered by reason of the
refusal to employ him, in the manner set forth in the
section of the Administrative Law Judge's Decision
entitled `The Remedy.'
"(b) Notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of the
United States , of the right to full employment, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act."
3. Substitute the attached notice for that of the
1103
Administrative Law Judge.
IT IS FURTHER ORDERED that Case 29-CA-2531-2
be, and it hereby is, severed and dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL Offer to Mauro Squicciarini his for-
mer job or , if that job no longer exists , a substan-
tially equivalent job, with backpay.
WE WILL NOT refuse to employ or otherwise
discriminate against employees because they
concertedly submit claims, complaints, or reports
to agencies of the State of New York relative to
wages or other working conditions on jobs we
perform.
WE WILL NOT refuse to employ or otherwise
discriminate against employees because of their
membership in, sympathies for, or activities on
behalf of Local 295, International Union of Op-
erating Engineers, AFL-CIO, or any other labor
organization.
WE WILL NOT coercively question employees
about their union sympathies or activities or
those of other employees.
WE WILL NOT in any manner interfere with,
restrain, or coerce employees in the exercise of
these rights.
Our employees are free to engage in union or
concerted activities for their mutual aid or protection.
GATES AIR CONDITIONING, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
ual, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's Office, 16 Court Street, 4th Floor, Brooklyn,
New York 11241, Telephone 212-596-3535.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LAURENCE A. KNAPP, Trial Examiner: I heard these
cases , consolidated for hearing and decision, at Brooklyn,
New York, on February 28 and 29, 1972, following prehear-
ing procedures in compliance with the National Labor
Relations Act, as amended (herein referred to as the
"Act").I Following the hearing, briefs were filed by counsel
for the General Counsel and for Respondent.
Upon the entire record in the case, including my obser-
vations of the demeanor of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer does not
deny, and I find that during the year preceding issuance of
the complaint (a representative period) Respondent, a New
York corporation engaged in the installation of heating,
ventilation, air conditioning, and sprinkler systems and oth-
er mechanical contractor operations, purchased and re-
ceived at its places of business in the State of New York,
from suppliers located in the State of New York, equipment
and other goods and materials valued in excess of $50,000
which those suppliers had received directly from States oth-
er than the State of New York. Respondent is engaged in
commerce and in activities affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
The complaint alleges, Respondent's answer does not
deny, and I find that Local 295, International Union of
Operating Engineers, AFL-CIO (herein sometimes called
"Local 295" or "the Union"), is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Questions Presented
In April 1971, Respondent was engaged in the installa-
tion of what appears from the record to have been some sort
of sprinkler system in a number of buildings composing
what is referred to in the record as the "Suffolk State
School" construction job, that is, a project for the State of
New York or some agency thereof. In the latter part of that
month, and about a week apart, Respondent hired the two
Charging Parties , De Carlo and Squicciarini , and put them
to work on this job, with De Carlo serving as Squicciarini's
helper. Their work appears to have consisted mainly of
installing pipe, fittings, sprinkler heads, and like equipment.
1 The charges herein were filed on September 17, 1971, the cases were
consolidated and the complaint was issued on December 30, 1971, and
Respondent filed an answer to the complaint dated January 7, 1972. All dates
used herein refer to the year 1971 unless otherwise indicated.
The complaint alleges that in August Respondent dis-
charged these two employees because in the interim they
had complained to an agency of the State of New York
concerning the wages paid them and because of their other
concerted activity, and that Respondent thereafter refused
to reinstate them for these reasons and because of their
activities in joining and assisting Local 295. By its answer,
Respondent admitted the discharge of Squicciarini; denied
that De Carlo was ever discharged (alleging affirmatively
that he left his job); and denied the commission of any
unfair labor practices with respect to the employment of
these two men. The complaint further alleges, and Respon-
dent denies, that Respondent engaged in unlawful interro-
gation of employees with respect to their union activities.
B. The Alleged Unlawful Discharges and
Refusals of Reinstatement
1. Main events and circumstances
According to undisputed testimony which I credit, the
specifications for the Suffolk construction project prescribe
the minimum wage rate Respondent was required to pay to
journeymen steamfitters, the top job classification of me-
chanic in this type of construction labor, and, in dollar or
percentage figures, the rates to be paid to the categories of
helpers or apprentices not in the rank of fully qualified
journeymen. These rates for journeymen and lesser qual-
ified mechanics fixed by the state are identical to the corre-
sponding prevailing union "scale." The job specifications
setting forth these rates were not put in evidence, but I
credit record evidence that at the time of the principal
events involved in this case, "scale" in the case of a journey-
man was $9.775 per hour.2 When De Carlo was hired on
April 21, he agreed to commence work at a rate of $3.50 per
hour, the amount offered him by Respondent's President
Liebowitz, and in June he received a raise to $4 per hour.
When Squicciarini went to work on April 29, he agreed to
a rate of $280 per week, the amount proposed by Liebowitz.
De Carlo testified that in antecedent discussions with Lie-
bowitz, he was told that while the firm was not "union" it
paid the union scale , but that Liebowitz asked him to "live
with" Respondent for a while and he would get "scale," or
Respondent would take care of him, later. In the case of
Squicciarini, he testified that when he was first interviewed
by Liebowitz, Liebowitz told him that Respondent paid the
union "scale" but that in the final interview, when he agreed
to go to work for $280 per week, Liebowitz said "Let's live
together" for a while and then he would be paid " scale."
Liebowitz, on the other hand, testified that in his prehire
interviews with both men he explained to them that the
specifications prescribed the job pay scales ; that these in-
cluded scales for "apprentices" but that since Respondent
was not a "union" firm it had to register apprentices under
the corresponding apprentice training program of the New
York State Department of Labor; and that Squicciarini
agreed to being employed as a "third-term" apprentice and
De Carlo as a "first-term" apprentice, and at the corre-
sponding wage scales . Since Squicciarini and De Carlo were
2 This figure is the total of $7.115 hourly wage rate plus $2 .66 representing
union "annuities."
GATES AIR CONDITIONING, INC. 1105
not specifically questioned as to whether Liebowitz made
the apprenticeship explanations or whether they agreed to
employment as "third" and "first" terms apprentices before
commencing work, as Liebowitz testified, it cannot be said
with assurance that their testimony is in clear conflict with
that of Liebowitz in this regard. In any case, however, I do
not credit the testimony of Liebowitz. In the first place, by
virtue both of his demeanor and of various characteristics
of his testimony notes at various succeeding points in this
decision, I have concluded that Liebowitz cannot be regard-
ed as a reliable witness on significant fact questions. Sec-
ondly, the facts as I find them below concerning the
eventual (in late July) submission of apprenticeship agree-
ments to the two men appear incompatible with Liebowitz'
testimony, and particularly his testimony that the two men
had agreed to serve as apprentices in their prehire inter-
views; rather those facts, including the questions the two
men raised and the hesitance or resistance they then mani-
fested toward signing (see infra), tend strongly to establish
that there had not been the extensive prior explanation to
and agreement by them which Liebowitz claimed had taken
place. Furthermore, Liebowitz' testimony that Squicciarini
had agreed to work as a "third term" apprentice is not borne
out by the apprenticeship agreement finally submitted to
him, which, like the one submitted to De Carlo, classified
him as an apprentice for the complete 5-year term.3 Finally,
Liebowitz' other testimony fails to provide any satisfactory
explanation for the submission to the men of agreements
denominating them as "Refrigeration and Air Condition-
ing" mechanics rather than "Steamfitter" workers, and in
this connection I regard as unbelievable Liebowitz' claim
that the Company's failure to utilize the steamfitter classifi-
cation was a mere negligent inadvertence, particularly since,
according to Liebowitz himself, the project specifications
described the project's jobs as exclusively in the steamfitter
category with corresponding steamfitter wage scales.
On about July 19, Liebowitz gave to Squicciarini to
sign a New York State Department of Labor form of "Ap-
prenticeship Agreement" describing Squicciarini as an ap-
prentice "Refrigeration & Air Conditioning Mechanic" for
a 5-year term.4 Squicciarini told Liebowitz he would look
the document over and let Liebowitz know and asked Lie-
bowitz if he was ready to start paying "scale," as to which
Liebowitz said he would talk to Zassman, Respondent's
secretary-treasurer . The following Monday, De Carlo, new-
ly returned from vacation, was given by "Wolfie" Zeising,
the job foreman, a similar apprenticeship document 5 to
sign . De Carlo told Zeising that he was not an air-condition-
ing worker but Zeising repeated the direction that he fill out
and sign the document. De Carlo then talked to Squicciari-
ni, who told him not to sign. A day or so later, Liebowitz
asked Squicciarini if he had signed; Squicciarini replied in
the negative and Liebowitz told him that if he did not sign
he would have to leave. About this same time or a little later,
De Carlo asked Liebowitz if his signing would affect his
wages and Liebowitz replied in the negative, explaining that
the documents were merely designed to show that he had so
many air-conditioning workers on the job. De Carlo said he
3 See GC Exh. 2A and B.
4 CG Exh. 2A and 2B.
'CG Exh. 6.
was not an air-conditioning mechanic, but Liebowitz told
him not to worry-that signing would not prevent his get-
ting up to "scale"-whereupon he signed. A couple of days
later, De Carlo asked Liebowitz when he was going to start
bringing him up to scale; Liebowitz replied that De Carlo
had signed the apprenticeship paper and would get no more
raises, Squicciarini (who was present) said he had not signed
and asked what about his raise, and Liebowitz told Squic-
ciarini he would get his raise when he "straightened
out."6
About this time, that is, on August 2, Squicciarini and
De Carlo signed union membership cards at the head-
quarters of Local 295.
About August 20, Liebowitz was at the jobsite where
he accused Squicciarini of having complained to West, a
State inspector of construction on the Suffolk job, that the
Company was not doing the work according to the require-
ments of the plans and specifications. Squicciarini denied
having made such a complaint to West and asked Liebowitz
to bring West to the job for a confrontation with Squicciari-
ni. This Liebowitz declined to do, stating that it was best not
to carry the matter further. De Carlo then "demanded" to
see West and Liebowitz told him he could not "demand"
anything and that if he went to the offices of the State
inspection officials he would be fired?
On August 23, Squicciarini had a telephone conversa-
tion with Frank J. Rigatti, an investigation official of the
State Department of Labor (apparently about the appren-
ticeship matter and his wage rate), in the course of which
Rigatti told Squicciarini he was entitled to the journeyman's
"scale" and that he should come to Rigatti's office if he
wished to file a complaint. After this conversation with
Rigatti, Squicciarini had a telephone conversation with,Lie-
bowitz in which he told Liebowitz that he had been advised
not to sign the apprenticeship document. According to
Squicciarini, Liebowitz told him that he had to sign or leave
the job; he told Liebowitz he would not leave and Liebowitz
would have to fire him; and Liebowitz thereupon told him
to consider himself fired. According to Liebowitz, he told
Squicciarini that Respondent could no longer use him in
view of problems of work performance and inability to get
along with other employees Squicciarini had manifested
6I base these findings on the testimony of Squicciarini and De Carlo.
Liebowitz testified that he did not induce De Carlo to sign by representations
of "bigger or better things" forthcoming for De Carlo (which is not an
accurate restatement of De Carlo's testimony that Liebowitz assured De
Carlo that signing the agreement would not "prevent his receiving wage
raises), and, asked concerning the truth of De Carlo's testimony that he said
the apprenticeship document was merely designed to show the number of
air-conditioning workers employed , gave the rather tangential answer that he
had "indicated" to both men, but did not "remember specifically when," that
under State law "either a man is a full mechanic or must be registered with
the state" under its "apprenticeship program " To the extent that any of this
testimony may be regarded as serving to contradict that of De Carlo, I do
not credit it because, as set forth later in this decision, I do not consider
Liebowitz a reliable witness on significant fact questions. Liebowitz made no
specific reference in his testimony to that of Squicciarini in regard to this
matter, an omission which , as a rather common characteristic of his testimo-
ny as a whole , impresses me unfavorably as to his general credibility (see
infra).
r In his testimony , Liebowitz stated that in July West told him that Squic-
cianni had made such a complaint to him in May. Squicciarini , in his testimo-
ny, denied having made such a complaint to West Resolution of this conflict
would be troublesome in the absence of the testimony of West , who was not
called as a witness , and does not appear to be essential
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and because of Squicciarini 's refusal to sign the apprentice-
ship agreement in the face of Respondent's need to comply
with State law in this regard.
On the next day, August 24, Squicciarini and De Carlo
called on Rigatti at his office where they signed their re-
spective claims for insufficient wages in amounts calculated
by Rigatti ($4023.85 in the case of De Carlo and $1592.85
in the case of Squicciarini), based on each being entitled to
the full journeyman rate of $9.775 per hour.8 Rigatti then
telephoned to Liebowitz who went promptly to Rigatti's
office, where, according to Liebowitz, Rigatti stated that
since the Company had not registered as a "steamfitting"
shop with the State Department of Labor and had not reg-
istered the two men as steamfitter apprentices, Respondent
was obligated to pay both men at the full journeyman rate
and that if Respondent did not comply with this "ruling" all
payments to Respondent under the contract would be with-
held until the matter was finally adjudicated. Liebowitz
testified that such a "freeze" would have ruined Respondent
financially, and that he promptly had the two men reclassi-
fied at the State Department of Labor in the steamfitter
category.
When Liebowitz returned to his office that afternoon,
he found Squicclarim and De Carlo there. There then en-
sued some conversation at the outset of which Liebowitz
gave Squicciarini a check for the 1 day's pay due him and
told him that he wanted Squicciarini to know what he had
done to him (Liebowitz), that he, Liebowitz, knew of the
backpay claims the men had filed and that this was literally
putting the Company out of business. In the further conver-
sation, Squicciarini stated that he wished to be reinstated
and Liebowitz replied that it was impossible to reinstate him
at the Suffolk school job? On this same occasion, Liebowitz
had a private talk with De Carlo during which I find, on the
basis of the credited testimony of De Carlo, the following
occurred: After stating that the men were ruining him, Lie-
bowitz told De Carlo that he would pay De Carlo the ap-
proximate $4,000 back wages if he had to, but then stated
that in lieu of making this payment he would pay De Carlo
an all-inclusive $250 per week, telling De Carlo he did not
want to lose him; De Carlo offered to sign a paper accepting
this proposition; Liebowitz then abandoned this approach
on the ground that Rigatti might find out about it and
require payment of the full back wages;10 and Liebowitz
finally told De Carlo to go back to work at the Suffolk
school job and, when De Carlo inquired about payment of
the back wages, Liebowitz told him that he either went back
to work or took the back wages but "was not going to get
s CG Exhs. 3, 7.
9 I make these findings on the basis of the credited testimony of Squiccian-
nI. The essence of Liebowitz' meagre testimony concerning what was said on
this occasion is that the two men stated they wanted their jobs back and he
told them this was impossible because Rigatti had told him that if he changed
the classifications of the two men to apprentices he would have a total of
apprentices on the Job which exceeded the ratio of apprentices to Journeymen
permitted under State law. While I am satisfied and find that the two men
were refused reinstatement to their jobs on this occasion , on the basis of all
the testimony and circumstances of record , including the evidence concern-
ing subsequent events and the demeanor of the witnesses , I do not credit
Liebowitz' testimony that he told the men that the journeyman -apprentice
ratio was the reason.
10 Liebowitz' testimony makes no specific reference to what took place in
this conversation with De Carlo on August 24.
both."
At the conclusion of these discussions, it was agreed
that the group (Liebowitz, Zassman, Squicciarini, and De
Carlo) would meet for a further discussion of the rein-
statement matter the next day at lunch. After lunch at a
restaurant that day, August 25, the four repaired to
Respondent's office where according to Squicciarini, whose
testimony I credit (particularly since Zassman did not testi-
fy), Zassman offered to put him to work at some "Bronx
State" job Respondent was then performing at $360 per
week; Squicclarim agreed to this proposition if this rate was
"scale," which Zassman said it was, showing Squicciarini
some document indicating that as of February 1, 1971, scale
was $6.65 per hour plus some $2.35 in annuities; Zassman
told Squicciarini to go home and think about it; after Lie-
bowitz came out of his office, where he had been talking to
De Carlo, Squicciarim told Liebowitz and Zassman that he
wanted to return to the Suffolk job but they said they could
not do this without giving him any reason; and he told
Liebowitz and Zassman he would give them his answer to
the "Bronx State" job proposal by the end of the week."
While Liebowitz and De Carlo were together on this
same occasion, Liebowitz handed De Carlo a check cover-
ing the wages due him as of this date (with the official State
employment record form) 12 and there took place a conver-
sational exchange in which according to the testimony of
De Carlo, which I credit, Liebowitz asked De Carlo what he
was going to do; De Carlo said he wanted his back wages;
and Liebowitz told him he could either have his back wages
or go back to work at the Suffolk job.1$
I find that Liebowitz discharged De Carlo on this occa-
sion, rejecting Respondent's contentions, and Liebowitz'
initial testimony, that De Carlo was never discharged but
merely left the job. Indeed, the evasive, contradictory, and
otherwise unimpressive testimony Liebowitz gave on the
question whether De Carlo was discharged constitutes an
important reason for my conclusion that Liebowitz should
be considered an unreliable witness as to important ques-
tions of fact.14 Moreover, his failure to testify, or to testify
11 On August 28, Squiccianni 'called Zassman by telephone and informed
him that he would not take Zassman's offer because it was not "scale ," telling
Zassman in this connection that he had had an intervening conversation with
Rigatti, who had informed him that "scale" had been revised upward on July
1, 1971, at which time it had been increased to $7.115 per hour plus $2.66,
i.e., the $9 775 figure Rigatti had used to compute the backpay claims.
12 GC Exh. 9.
13 Liebowitz was not directly questioned as to whether he had a conversa-
tion with De Carlo on August 25 (although such a conversation undoubtedly
took place), but he did admit having given De Carlo his check and the
unemployment slip (see fn . 14, infra). With reference to another portion of
De Carlo's testimony , he testified that it was "impossible " for him to have
told De Carlo he could have either the back wages or his Suffolk job because
the State Department of Labor had said that the back wage claims had to
be paid and so he had "no choice." To the extent that this testimony conflicts
with that of De Carlo as set forth in the text, I do not credit it because in
these and other respects I consider Liebowstz a less reliable witness than De
Carlo.
14 Liebowitz first testified that when he returned from Rigatti 's office on
August 24, the two men stated that they wanted their jobs back but he told
them this was impossible because of the steamfitter-apprentice ratio obstacle
pointed out by Rigatti . Somewhat later, he testified that he had never told
De Carlo to leave the job . At this point the Trial Examiner intervened with
his own examination of Liebowitz, which began with the Examiner pointing
to Liebowitz' earlier testimony that he had told the two men that they could
not be taken back because of the ratio matter but was now saying that he
had never terminated De Carlo's employment. Liebowitz made a reply to the
GATES AIR CONDITIONING, INC. 1107
in any candid detail, as to what transpired in the meeting
with the two men on August 24 and 25, coupled with the
absence of any testimony by Zassman, constitutes further
reasons for crediting the testimony of De Carlo and Squic-
ciarini over that of Liebowitz in these and other significant
particulars.
About September 2, Squicciarini and De Carlo picked
up at Rigatti's office their respective back-wage checks
which Liebowitz had theretofore left with Rigatti. Thereaf-
ter that same day, Squicciarini went to Respondent's office
and, in the absence of Liebowitz and Zassman, left word
with the office secretary to the effect that he had not heard
from them relative to reinstatment and had been advised to
file a "federal charge," a message which the secretary said
she would pass on to the company officials.
On September 3, Squicciarini and De Carlo went to the
"Bronx" job, where they urged Respondent's four employ-
ees on this job to join the Union and agreed to bring to the
job some days later a union member who could better de-
scribe union benefits, etc. On September 7, they brought
such a member to the site, who made some explanations
along the lines described, gave these four employees union
cards, and invited them to attend a union meeting the fol-
lowing week. On September 8 or 9, Squicciarini received a
telephone call from Zassman, who accused Squiccianni of
"harassing" him-that he knew Squicciarini had ap-
proached the men at the Bronx job and that these men did
not want to join the Union. Squicciarini replied that these
men had indicated to him before his discharge that they
were interested in matter of union membership and he was
just trying to help them out, and went on to tell Zassman
that he had still not been reinstated whereupon Zassman
invited him to come to Respondent's office for a talk. Squic-
ciarini went to Respondent's office on September 10, where
he had a talk with Liebowitz and Zassman. Crediting
effect that he did not know until the afternoon of August 24 that De Carlo
"had left" and went on to assert that he had not previously "fired" him The
Examiner then pointed out that Liebowitz ' previous statement that when the
men came in on the 24th they said they wanted their jobs back implied that
they had lost them, to which Liebowitz replied with the assertion that he had
never fired De Carlo. The Examiner then pointed to De Carlo's testimony
that on this occasion Liebowitz had told De Carlo that he either must take
the back wages or go back to work but couldn't have both, which Liebowitz
denied having said. The Examiner then pointed to De Carlo's testimony that
Liebowitz had given De Carlo his paycheck with the unemployment insur-
ance form, to which Liebowitz replied that he did not pay De Carlo and made
an incomplete reference to the "office girl," at which point the Examiner
commented that office girl did not do such things "on her own" and asked
Liebowitz why he had given the unemployment slip to De Carlo. Liebowitz
iephed that De Carlo had said he was not going to work , "was gone," and
so, implying that De Carlo had quit, explained that De Carlo had to be given
the slip "by law " The Examiner then inquired when De Carlo had "gone,"
and Liebowitz explained that afternoon , the "day he got the slip" The
Examiner then inquired why De Carlo had been given the slip unless he either
was discharged or had said he was quitting, to which Liebowitz answered that
he told De Carlo that he had no power to give him his job back , so that the
matter did not involve any decision on his part. The Examiner then com-
mented that Liebowitz had had prepared De Carlo's final check and the slip,
to which Liebowitz first replied that he did not have the check prepared but
then went on to state that when he returned from Rigatti's office he had
instructed the office secretary to make out checks for the two men, telling
her that the two men could not work for Respondent any more . The Examin-
er then commented that in telling De Carlo that Respondent could not
employ him further , Liebowitz, in effect, had terminated him, to which
Liebowitz replied "I guess so . It's a matter of semantics."
Squicciarini's testimony,15 one or another of these company
officials said that their men were not interested in the Un-
ion, and for him to leave them alone; and went on to inquire
why Squicciarini wanted to return to work when he was not
wanted. Squicciarini, asserting he had been unfairly treated,
said he wanted reinstatement and inquired why he could not
be reinstated at the Suffolk job. Liebowitz stated that this
was impossible but referred to the imminent prospect of a
job in Manhattan and told Squicciarini he would put the
latter in charge of this job as soon as it materialized, which
Liebowitz estimated at about September 15th or 16th and,
giving Squicciarini a card bearing Liebowitz' home tele-
phone number, told Squicciarim to call him at that later
time. In the conversation, Liebowitz stated that this job
carried the $6.65 rate (plus, I infer, the annuities allowance),
which Squicciarini stated he would accept.
In the meantime, on the day of the Union meeting,
which I conclude must have been about September 12-14,
Zassman called Brown, one of the employees on the Bronx
job, and told him that Squicciarini and De Carlo were trying
to make a lot of trouble and that they had told him that
Brown and two others of the Bronx job employees were
"stabbing him in the back" by having asked Squicciarini
and De Carlo to bring the Union in. Brown told Zassman
that the statement Zassman had attributed to these two
men, i.e., that the three Bronx job employees had asked
Squicciarini and De Carlo to bring the Union in, was false
and for this reason he would not attend the union meeting
that night which he and Vidal, another of the Bronx employ-
ees, had up to that moment planned to attend. Brown then
by telephone reported to Vidal his conversation with Zass-
man and told Vidal he would not attend the meeting, which,
in fact, none of the four Bronx job employees went to.
On September 16, Squicciarmi attempted unsuccessful-
ly to get in contact with Liebowitz, both by telephone to
Respondent's office and by a personal visit to the Suffolk
job, where he had been told Liebowitz was. While at the
Suffolk job, Squicciarini encountered a State official named
Tracy who had some official responsibilities over the Suf-
folkjob. Tracy asked Squiccianni if he was looking for a job
and Squicciarini replied that he had not been reinstated,
which he was seeking. Squicciarini went on to inform Tracy
of Liebowitz' accusation in August that Squicciarini had
previously reported to State Inspector West that Respon-
dent was not performing the Suffolk work properly and
asked Tracy if West would have made any such report to
Liebowitz. Tracy told Squicciarini that West would not
have said anything of this sort to Liebowitz and Squicciarini
asserted to Tracy that if such a report had been made he
would sue for defamation of character because of loss of his
job by virtue of such a report.16 That afternoon, Squicciarini
received a telephone call from Liebowitz in which Liebowitz
said "I want you to know what you just did to me.... You
are trying to put me out of business"; he told Liebowitz that
he had been trying to get reinstated but Liebowitz had been
"pacifying" him by telling him he would be reinstated but
had no such intention; and the conversation ended with
Liebowitz remarking "If it snowed in hell, I wouldn't take
15 As previously noted , Zassman did not take the stand, and Liebowitz
made no reference in his testimony to this day' s meeting with Squicciarini.
16 As previously noted (fn. 7, supra) Squiccianni testified that he had not
made any such statement to West
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you back." As in other instances , Liebowitz' testimony con-
tains no reference to Squicciarini's testimony concerning
this conversation.
2. Respondent's contentions and further findings
concerning the alleged discharges
As noted previously under the heading "Questions Pre-
sented," the complaint charges Respondent both with un-
lawfully discharging the two men (because of their wage
complaints to the New York authorities and of undefined
`other concerted activity"), and with unlawfully refusing to
reinstate the two men for the foregoing reasons and because
of their union activity, and in its answer Respondent denies
these allegations while asserting affirmatively that De Carlo
was not terminated but left his job, i.e., quit his employment.
As to the allegations of unlawful discharges because of the
wage complaints, Respondent in its brief contends, in the
case of Squicciarini, that these allegations are not sustained
by the proof on the theory that Squicciarini was discharged
during his telephone conversation with Liebowitz on Au-
gust 23 and because proof is lacking that Liebowitz knew
of Squicciarini's wage claim actions until the next day, Au-
gust 24. What I have found is that during the telephone
conversation between the two on August 23 Liebowitz told
Squicciarini to "consider [himself] fired." But Liebowitz'
own further testimony is that it was not until after his meet-
ing with Rigatti early in the afternoon of the next day,
August 24, that he instructed the office secretary to make
out Squicciarini's check (and that of De Carlo) because, by
reason of what Rigatti had said about journeyman-appren-
tice ratios, the two men could not work "for us anymore."
And as I have further found, in handing Squicciarim his
check and unemployment slip at this time Liebowitz' only
explanation was the wage claims the men had filed and their
asserted disastrous effect on Respondent. In these circum-
stances I find that, despite his telling Squicciarini on August
23 to consider himself "through," Liebowitz did not actually
reach his definitive decision to discharge Squicciarini until
after his conversation with Rigatti the next day. And Lie-
bowitz' accompanying references, in discharging Squicciari-
ni and De Carlo, to the wage claims the men had filed, are,
coupled with other supporting evidence, proof of a compel-
ling character that the action of the two men in filing the
wage claims was the, or at least a, primary cause of their
discharges. 17
The fact that, on evidence I credit, this basis of the
discharges was announced by Liebowitz makes it unneces-
sary to treat as worthy of serious consideration
Respondent's proof relative to Squicciarini's alleged defi-
ciencies as an employee and Liebowitz' assertions that these
and his refusal to sign the apprenticeship agreement were
the sole basis of his termination . But even if the General
Counsel's proof of unlawful motivation were less direct and
compelling, there are aspects of Respondent's evidence rela-
17 It should be noted , however, that even if Squiccianni is to be regarded
as having been finally and unconditionally discharged on August 23 before
Lebowitz had learned of the wage claims, it is clear , as I find below, that
Respondent 's refusal on August 24 to reinstate him was based on his having
filed the wage claim Hence , a reinstatement and backpay order is required
in any event in Squiccianni's case.
Live to Squicciarini's alleged deficiences which render it in-
herently unworthy of credit.'8
Accordingly, I find that Respondent discharged Squic-
ciarini and De Carlo because of their complaints to and
claims filed with the state authorities relative to the wage
matter.19 Since the actions of the two men in exploring and
pursuing these wage claims with the state authorities plainly
constituted concerted activities of the character defined in
Section 7 of the Act, their discharges on these grounds
constituted unlawful interference, restraint and coercion vi-
olative of Section 8(a)(1) of the Act.
3. Respondent's alleged unlawful
refusal of reinstatement
As I have previously found, in the very meetings (Au-
gust 24 and 25) during which the two men were discharged,
their request to be returned to their jobs were denied. Since
the discharges and the refusals of reinstatement thus were,
in effect, a single or unified event, all brought on because
of the claims the men had filed with the state authorities, the
refusals of reinstatement on these occasions likewise viola-
ted Section 8(a)(1) of the Act 2°
C. The Alleged Unlawful
Interrogation
The General Counsel contends that Respondent en-
gaged in unlawful interrogation of employees concerning
their union activities (1) when in Zassman's telephone con-
versation with Squicciarini on September 8 or 9, Zassman,
referring to the prounion approach made by Squicciarini to
the Bronx job employees, asked Squicciarini why he was
"harassing" Respondent; and (2) by Zassman's remarks to
Bronx employee Brown the following week to the effect that
Squicciarim and De Carlo had said that the Bronx employ-
ees were trying to bring the Union in. Counsel for the Gen-
eral Counsel cites no authority for his contention that the
18 While, principally through the testimony of the job foreman , Zeising,
Respondent charged Squicciarim with a variety of instances of improper
work and one or two of argumentative disposition allegedly reported by the
foreman to Liebowitz, under further and cross-examination the foreman
made admissions showing that he had not, in fact, reported most of these
items to Liebowitz, and with respect to another of these items (the pipe-
moving incident not necessary to detail further) the evidence established that
it was Squicciarini, not the foreman , who brought this to Liebowitz' atten-
tion Moreover, Liebowitz' admission that he took up with Squicciarim only
one "complaint" (referring apparently to Squiccianni's alleged report to
State Inspector West) and his declination to permit a confrontation on this
matter, his subsequent contrary claims, under cross-examination, that he had
several discussions with Squiccianm concerning the latter's "problems", his
evasive and otherwise unconvincing testimony on the question whether he
had ever warned Squiccianni of discharge because of his alleged deficiencies;
the fact that, according to Liebowitz himself , he was satisfied with Squiccian-
m when he gave him the apprenticeship agreement to sign in late July; and
the absence of any reference to Squiccianm's alleged incompetence or in-
compatibility in the various postdischarge conversations regarding further
employment-all combine to show that Liebowitz did not, in truth , consider
Squiccianni an unacceptable employee or discharge him on the grounds
asserted
19 As to De Carlo, Respondent 's position in its brief is merely, as set forth
in its answer , that De Carlo was never discharged , a contention I have
rejected.
20 Since unlawful refusals of reinstatement took place at these times, it is
unnecessary to determine whether there were additional unlawful refusals in
the further dealings between the two men and Respondent 's officials on later
occasions.
GATES AIR CONDITIONING, INC.
first of these two items falls within the interrogation cate-
gory and, not fully satisfied that it does, I will recommend
that this allegation of violation be dismissed. On the other
hand, it seems to me that counsel for the General Counsel
is on solid ground in arguing that the statements Zassman
made to Brown were designed and, in any case, necessarily
had the effect of eliciting or seeking to elicit from Brown
some information as to the truth of the statements alleged
made by Squicciarini and De Carlo relative to the union
activities or sympathies of the Bronx job workers. There
being present no special circumstances rendering such in-
quiries lawful, they constituted unlawful interrogation, as I
find and conclude.
CONCLUSIONS OF LAW
1. Gates Air Conditioning, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Local 295, International Union of Operating Engi-
neers , AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging and refusing to reinstate Mauro
Squicciarini on August 24, 1971, and by discharging and
refusing to reinstate Vito De Carlo on August 25, 1971,
because of their protected activities , and by engaging in
unlawful interrogation concerning the union sympathies or
activities of its employees , Respondent has engaged and is
engaging in unfair labor practices affecting commerce with-
in the meaning of Section 8(a)(1) and 2(6) and (7) of the Act.
III THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
1109
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of com-
merce.
IV THE REMEDY
Having found that Respondent engaged in violations
of Section 8(a)(1) of the Act, my recommended order will
require that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act. And since unlawful discharges formed part of
Respondent's violations, my recommended order includes
the broad injunctive provisions necessary in such cases.
As I have found that Respondent unlawfully dis-
charged and refused reinstatement to Squicciarini on Au-
gust 24 and De Carlo on August 25, my recommended order
will provide that the Respondent offer them immediate and
full reinstatement to their respective formerjobs, or if these
jobs no longer exist, to substantially equivalent jobs, with-
out prejudice to their seniority and other rights and privi-
leges . My recommended Order will further direct that the
Respondent make them whole for their losses resulting from
the Respondent's discrimination against them by payment
to them of the sum of money they would have earned from
the date of their discharge until the date on which the Re-
spondent offers them reinstatement, less their net interim
earnings . Backpay shall be computed on a quarterly basis
and shall include interest at 6 percent per annum, as provid-
ed in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
[Recommended Order omitted from publication.]