Gerrity Co. Inc.

National Labor Relations Board - Board Decisions

May 22, 1968

171 N.L.R.B. 674 (N.L.R.B. 1968)

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gerrity Company Incorporated and Truckdrivers &
Helpers Local Union No. 317, an affiliate of the
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America.
Case 3-CA-3271
May 22, 1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On February 23, 1968, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not en-
gaged in certain other unfair labor practices alleged
in the complaint. Thereafter, General Counsel and
Respondent filed exceptions to the Decision and
supporting briefs, and the Respondent filed an an-
swering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Gerrity Company In-
corporated, Syracuse, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F. FREY, Trial Examiner. This case,
which was tried before me at Syracuse, New York,
171 NLRB No. 106
on November 20 and 21, 1967, with all parties par-
ticipating in the trial through counsel, involves the
issues whether Respondent, Gerrity Company In-
corporated, (1) interrogated an employee in an il-
legal manner through an alleged foreman in viola-
tion of Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, 29 U S.C Sec. 151, et seq.
(herein called the Act), and (2) discharged two
employees and refused to reinstate them for cause
or because of their activities on behalf of the
above-named Union in violation of Section 8(a)(3)
of the Act. The issues arise on a complaint issued
by General Counsel on September 22, 1967,
through the Regional Director of Region 3, which
was amended at the trial,' and answer of Respon-
dent admitting jurisdiction but denying the commis-
sion of any unfair labor practices. At close of the
trial all parties waived oral argument, but General
Counsel and Respondent have filed written briefs
which have been carefully considered by me in
preparation of this Decision.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor on
the stand, I make the following:
FINDINGS OF FACT
1. THE EMPLOYER AND LABOR ORGANIZATION
INVOLVED
Respondent is a Delaware corporation with its
principal office and place of business in Boston,
Massachusetts, and other places of business in Mas-
sachusetts and New York, in all of which it sells
and distributes lumber and related products. Its
lumberyard in Syracuse , New York, is the only one
involved in this case . In the year prior to issuance
of the complaint Respondent had direct inflow of
goods and materials to its Syracuse yard valued in
excess of $50,000. I find that Respondent is an em-
ployer engaged in commerce within the meaning of
Section 2( 6) and (7) of the Act.
The above Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Organization of the Employees
Employees at the Syracuse yard began union ac-
tivity about June 20, 1967, when three of them, in-
cluding Robert Clark, talked to the Union's busi-
ness agent, John Parise, privately, seeking advice
about getting the Union into the plant. He gave
them advice and also gave employee Harold Lash-
way union authorization cards to distribute. Lash-
way gave most of the cards to Clark who gave some
to employee Clarence W. Montroy; the two latter
' The complaint issued after Board investigation of charges tiled by the
Union on July 17 and September 20, 1967
GERRITY COMPANY INCORPORATED 675
men were the only employees who distributed them
to employees at the yard. At the request of Mon-
troy, Parise had a private meeting June 22 with
Clark, Montroy, and two other workers to discuss
further procedure. On July 2 Montroy and Clark
met with Parise privately and gave him some signed
cards. Montroy signed his card July 7 and gave it to
Parise, Clark signed his on July 5 and gave it to
Parise .' There is no proof that Respondent had
direct knowledge of this union activity through ob-
servation thereof. However, I find from credited
testimony of Montroy, Office Manager Vernon M.
Gingerich, and Sales Manager Robert Wall that: In
the first week of July, Montroy showed Gingerich
one of the cards, asking him in a joking manner if
he would like to join the Union. Gingerich com-
mented that there should have been a union in the
plant long ago. Before July 11, Gingerich learned
from other employees that there was talk about the
Union, and he reported this to Wall, who com-
mented that he did not think anyone should be sol-
iciting for the Union during work hours. Thereafter,
Wall asked Gingerich several times what he heard
about the union activity. In the same period, some
employees asked then Office Manager George
Dugan casually in a joking manner when he was
going to join the Union. I find from these conversa-
tions that Respondent was aware of the union ac-
tivity as early as the first week in July; however, I
find nothing coercive in the reaction and remarks
of plant offcials to this knowledge at that time, par-
ticularly since Gingerich's comment clearly in-
dicated he favored a union in the yard.'
B. The Alleged Interrogation
On Friday, July 7, 1967, Lucho DeToro, yard
manager of the Reedville, Massachusetts, lum-
beryard of Gerrity Company, a Nevada corporation
with its main office in Boston, Massachusetts,
visited the Syracuse yard to talk to his friends there,
in the course of a visit to see his parents who lived
in Syracuse. On this date or during a similar visit in
this period, employees Fesko, Towndrow, and
Hoch asked him what he thought about the Union,
as they said they were thinking about it. DeToro in-
dicated that he knew almost nothing about unions
because he had never worked under one, but he felt
that they ought to work "under the people that
pays you the most. If its Gerrity or the Union, its
your decision." On July 7, DeToro asked Montroy
what he thought about the Union, and Montroy
replied that it was a good thing. DeToro com-
mented that the Union would take the men out on
strikes, and Montroy replied it would not unless
there was good cause for it.4
General Counsel argues that the single interroga-
tion of Montroy, in which he disclosed his union
sympathy, was a coercive interrogation which vio-
lated the Act, and also made it clear to Respondent
that Montroy was prounion. Respondent replies
that DeToro's interrogation was not binding on it
because DeToro had for several years been an em-
ployee of Gerrity Company, another corporation not
connected with Respondent and not a Respondent
herein. On this defense, admissions of Wall and
Dugan and testimony of DeToro establish that: De-
Toro had worked for Respondent as foreman of the
Syracuse yard for about 6-1/2 years up to 1964,
achieving that position after rising through various
yard jobs over the years, during which he became
an expert in lumberyard layout and operation. In
1964, at the suggestion of Wall, he had conferences
with J. Frank Gerrity II, president of Gerrity Com-
pany and secretary or treasurer of Respondent, at
the common Boston office of both, as a result of
which he moved over to the Reedville yard as
manager for 3 months on a trial basis, at end of
which time Gerrity made him permanent yard
manager for Gerrity Company there, and he there-
upon moved his family from Syracuse to Reedville,
where he has held that job ever since. In the first
week of July 1967, DeToro was sent back to
Syracuse on temporary detail for several days to
help a new forklift operator learn how to stack and
handle lumber according to grades, and how to fill
orders, and to do other lumberyard jobs properly.
In course of the training, DeToro showed him how
to rearrange the yard layout in efficient manner. It
was apparently on this trip that DeToro talked to
employees about the Union as found above. I find
that, while DeToro was not on the payroll of
Respondent while on this detail, he was clearly act-
ing in an apparent supervisory capacity, similar to
his prior job there, on behalf of Respondent, hence
his remarks and conduct are attributable to Respon-
dent,' even though he may also have been speaking
to friends and other employees for the most part in
a manner similar to many previous social visits to
the yard.
However, the record shows no other interroga-
tion of employees or other action during the cam-
paign showing an unusual or adverse interest by
Respondent in the employees' organizing efforts.
There is no background history of employer hostili-
ty to or discrimination against employee concerted
These facts are found on. credited and uncontradicted testimony of
Parise , Clark, and Montroy
" He had been in at least three different unions in various jobs prior to his
employment by Respondent.
I These facts are found on credited testimony of Montroy and DeToro
The latter claimed he did not know Montroy. but did not deny directly or
categorically the testimony of Montroy about this talk, and since DeToro
admitted talks with the other three men about the Union, t accept Mon-
troy's version
While it appears that the Nevada corporation and Respondent have
separate shareholders, work forces, payrolls, and lumberyards, the record
also shows that They have at least the common officer noted above,
Respondent leases office space in the Boston office of Gerrity Company,
both corporations buy materials from each other, and DeToro's detail back
to Syracuse was arranged by Wall because of his superior and expert
knowledge of that yard and its operation
363-177 0 - 72 - 44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action. The single interrogation of Montroy and sin-
gle comment by a supervisor of an allied employer
stating one traditional consequence of union affilia-
tion, which Montroy argued against openly, falls far
short of indicating that DeToro, or Respondent
through him, was seeking information about the
progress of the campaign with the idea of taking ac-
tion against individual employees or any group. De-
Toro's implied supervisory position, while indicat-
ing that he might be speaking for management, was
at most only a temporary short- term one, as against
that of a supervisor in daily contact with all em-
ployees at Syracuse. His question and comment ap-
parently came in a short, casual, and informal con-
versation in the yard in a context of social and in-
formal contacts with other employees, as con-
trasted with a formal interview in the office by a
top active supervisor. Finally, Montroy, a longtime
union adherent,' showed no hesitation about dis-
playing his prounion sentiments and arguing in
favor of the Union in response to the single
question and single comment, which indicates an
absence of any feeling that he was being in-
timidated. On all these circumstances I am unable
to conclude that DeToro's single , isolated question
with brief comment is sufficient to support a finding
that the interrogation was coercive. I therefore
find that it did not violate the Act, and grant
Respondent's motion to dismiss paragraph 8(a) of
the amended complaint.
C. The Discharge of Montroy
Montroy was hired as a forklift operator at the
Syracuse yard on March 13, 1967, and worked in
that capacity until his discharge on July 11. His du-
ties involved the movement of lumber in bound
loads from boxcars into and around the yard, and
movement of lumber around the yard.
On the afternoon of July 10, 1967, on orders
from Office Manager Gingerich, Montroy began to
unload lumber from a boxcar by running the fork-
lift partly into the car, lifting the lumber, and
backing out with each load. In doing this he got the
forks of his lift jammed under a load of lumber and
apparently tore loose the forks and a side-shift
mechanism on the forklift while trying to shift the
load in order to get it through the doors of the car.
He told Gingerich about this about 3:45 p.m. Gin-
gerich inspected the lift, and saw that the lift could
not be used at all, because the forks were twisted
out of shape, the hydraulic hoses operating the lift
and side-shift mechanism were torn away, and the
side-shift unit itself had been torn off its rollers.
After discussing it with Montroy, Gingerich told
him to chain the forks temporarily to the "mast" or
6 Montroy had previously been a union official in the United Auto
Workers for 7 years while working for General Motors Corporation
Bourne Co v NLRB ,332F2d47(CA 2)
These events are found from credited testimony of Montroy, Gingerich,
Dugan . Wall, and William Mant7, plus documentary proof In view of the
upright portion of the lift, and then back the lift
away from the load. Montroy did this, and was able
to withdraw the lift from the car. Gingerich at once
told Dugan about the damage. He also discussed it
with Dugan the afternoon of July 11 in the
presence of Wall who then told Dugan that Respon-
dent could not "put up with this kind of abuse to
expensive equipment any longer," and told Dugan
to discharge Montroy for it. Respondent on the
10th had its service dealer send out a mechanic to
fix the lift; the mechanic did an emergency repair
job about 5:30 p.m. that evening, by putting the
forks in their proper places, replacing one hose
with fittings, and removing the chain which had
become jammed in the wheels. The cost of this
repair was $34.27, and it allowed the lift to operate
up and down, but the mechanic could not fix the
side-shift mechanism for lack of a proper hydraulic
hose with fitting for it, and an essential part for the
hydraulic cylinder. Thereafter, Respondent was
able to use the lift for several weeks only without
the side-shift mechanism.8
Montroy worked as usual on July 11, but when
he reported at 5 p.m. to Dugan at the office that
some lumber was ready for shipment the next day,
Dugan took him into the warehouse, and told him
he would have to let him go. The testimony as to
the next remarks is conflicting : Montroy says that
he smiled at this remark, and Dugan said, "It is not
what you are thinking," but that income was low,
sales were down, and Respondent had to let two
men go, but that Dugan would give Montroy a
letter of recommendation if he wanted it. He also
says Dugan did not mention the damage to the fork-
lift at all. In contrast, Dugan says he told Montroy
at the outset that he was discharging him for the
damage to the forklift, and then referred to
Respondent's financial situation and offered the
letter of recommendation "to take some of the bite
out of it," and "to soften the blow" of discharge. I
credit Dugan's version of the latter remarks, for it
seems more credible that he would have done the
natural thing in explaining the damage to equip-
ment of the day before as the immediate cause of
discharge, after having talked to Gingerich about it
and being ordered by Wall earlier that afternoon to
make the discharge for that reason, than that he
would have shied away from the real and prominent
reason and instead made only the equivocal re-
marks indicated by Montroy.
D. The Discharge of Clark
Clark had worked for Respondent as a
truckdriver for about a year before 1966, and quit
for personal reasons. About May 1, 1967 , he came
nature of the damage and Respondent 's prompt action on the basis thereof,
I find it unnecessary to determine from conflicting proof whether or not the
lift was fully repaired about 2 weeks later during a routine service call, or
never fully operable prior to its destruction in a fire at the yard in August
GERRITY COMPANY INCORPORATED 677
back to Respondent at its request in the same job,
and worked until his discharge on July 11. His
union activity in June and early July has been
described above. While there is no direct proof (as
General Counsel admits) that Respondent knew
about Clark's solicitation of union cards at the
yard, I have found that Respondent knew about the
union activity there generally, and of Montroy's ac-
tivity and prounion sentiment in particular, before
July 11, and since the record shows that the work
force consisted of no more than 15 workers in this
period, it is inferable, at least prima facie, that
Respondent probably was aware of Clark's activi-
ty.9
About 1 p.m. on July 11, Dugan or Gingerich
dispatched Clark in the normal course to deliver a
load of framing lumber to a specific jobsite of
Glenn Heffron, a building contractor, on North
Manlius Road in a suburb of Syracuse. According
to Clark's uncontradicted story, when he asked in
the office for a street number after getting the
delivery order, the office girl could not give it to
him or tell him how to get to the above road, so at
her suggestion he sought out another driver, who
was familiar with that area and gave him detailed
driving instructions. He drove to North Manlius
Road but could not find the Heffron jobsite,
although he drove along the road for about a mile,
trying to find it by looking for a building site which
appeared ready for use of framing lumber. Failing
to find'the Heffron job, he asked one Eno, another
contractor building on the street, about the Heffron
job, and was directed by him to another location.
Arriving there, he found no one on the jobsite nor
any indication of the contractor' s name , but he un-
loaded the lumber there and returned to the yard
about 3 p.m. where he loaded more lumber and
delivered it.
Clark further testified: Upon his return about 3
or 3:30 p.m., Gingerich told him he had been told
by Heffron that he had not received his lumber.
Clark told Gingerich what he had done with it, after
explaining his trouble in locating the jobsite. At
quitting time that evening , Clark told Gingerich he
would not be at work the next day, as Dugan had
previously permitted him to take off on the 12th for
personal reasons . Gingerich looked at Dugan, who
was near by, and then told Clark "you are
through." Clark became angry and upset and asked
why. Dugan then took him outside the office and
told him he was through. Dugan explained that he
had a letter from the Boston office telling him to
lay off the "bottom two men," due to a $500 in-
crease in wages and a 15-percent decrease in sales
at the yard. Clark asked if his work was satisfacto-
ry, and Dugan said it was. Clark said he did not be-
lieve his layoff was based on a letter from Boston,
but that it was for union activity and the "union
problem." Dugan denied it was, saying he knew of
no "union problem." Neither Gingerich or Dugan
ever mentioned the misdelivery of the lumber.
While corroborating to some extent Clark's ver-
sion of the first talk with Gingerich about the
misdelivery, his mention of his coming absence of
the 12th, and the announcement of both Dugan and
Gingerich that he was "through," as well as Du-
gan's mention of the Boston letter and company
finances in the discharge talk, the testimony of Gin-
gerich, Dugan, and Wall about events of that day
present a different picture. They testified, with mu-
tual corroboration, in substance that: Heffron
telephoned the yard about 3 p.m. and asked Wall
where his lumber was. Wall checked the delivery
tickets for the time Clark left the yard, and told
Heffron the lumber should have been delivered an
hour ago.10 Heffron told him it had not arrived, but
that a Gerrity truck had dumped a load of lumber
down the street from his site, and if that was his
lumber it was the wrong place. Wall replied he
would investigate and get his lumber to him as soon
as possible." Wall discussed the misdelivery with
Dugan and Gingerich, and he finally told Dugan to
discharge Clark for the error. When Clark returned
late that afternoon, he and Gingerich talked about
the error in delivery as noted above, and Gingerich
told him at that time that he would have to go out
the next day to pick up the load. When Clark
replied he would not be in due to the permitted
absence, Gingerich then said he was "through,"
and when Clark got angry about it, Dugan took him
outside the office, and repeated that he was
"through" because he had dropped the load at the
wrong place, and said this mistake was very costly
to Respondent, and at this time he mentioned
receipt of letters from the Boston office indicating
that the Syracuse yard had an excessive payroll as
compared to its sales, and that management there
would have to "buckle down"; Dugan also admits
he may have indicated that if the business did not
get better, there might have to be layoffs, and that
he offered to give Clark a letter of recommendation
if he wanted one. Dugan admits the final charges by
Clark that the layoff was due to the union activities
and "union problem," and that he denied it, saying
he knew of no "union problem." Clark then asked
if anyone else was being fired that day, but when
Dugan asked why he asked that, Clark gave no
answer. For the same reasons stated on the Dugan-
Montroy talk, I credit the version of the company
officials about events of that day.
°Cf Ctuv Electric Company, 164 NLRB 844, Ventre Packing Co , In(
163 NLRB 540, 541.
1* The Heffron site was less than 10 miles from the yard, and since the
truck usually traveled about 20 miles an hour in the city, Clark should nor-
mally have reached the site in about a half hour
" Heffron testified on rebuttal for the General Counsel to deny alleged
comment in this talk about having seen a Gerrity truck earlier that after-
noon parked at a local bar, but he did not deny the above testimony of Wall
about the remainder of the conversation
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Contentions of the Parties, and Conclusions on
Both Discharges
Montroy and Clark were the sole, and thus
prominent, union solicitors. As noted above,
Respondent knew directly of Montroy's union ac-
tivity and prounion sentiment , and it is inferable
that it was also aware of Clark's similar activity.
Respondent discharged both in close succession on
the same day, during their union activity and
shortly after they signed cards. These circum-
stances support a prima facie inference of dis-
criminatory action against both, and because of
their common union activity and similar treatment
at discharge, their situations can readily be
analyzed together, as General Counsel does in argu-
ment . However, Respondent's specific defenses as
to each must first be treated separately. Respon-
dent's basic defense is that it discharged both men
promptly for bad performance which occurred, in
Montroy's case the day before, and in Clark's case
only hours before, discharge. I have found that
Respondent advised each at time of discharge of his
misconduct, and this prompt and natural action is a
cogent circumstance pointing toward a normal
discharge for cause. This conclusion is also sup-
ported by other facts showing less than satisfactory
performance of Montroy in the past, and
highlighting the July 11 negligence of Clark.
The record shows that the July 10 damage to
Montroy's forklift was the third such instance of
abuse of that same machine by him within the past
3 months, and that it was the most serious because
Respondent had never before experienced such
damage to a forklift by any employee.12 Thus, I find
from uncontradicted testimony of Wall and Dugan
that: While Montroy was using the lift in April
1967, one of two upright protective bars on front of
the lift was broken off, and in mid-May Respondent
found both bars broken, with a hose controlling the
side-shift mechanism damaged, all of which
required repairs. The two earlier damages were
contributing factors considered by Wall when he
ordered the discharge the day after the third in-
cident. The three instances showed Respondent
Montroy's continued inclination toward negligent
handling of equipment, and Wall's testimony in-
dicates the third instance was the one which finally
and actually motivated discharge. Wall and Dugan
also indicated that Montroy had been less than a
"stellar" employee, in that he had a record of
habitual tardiness, though not for a sufficient
period each time to require deductions from his
weekly pay, and that he may have been delinquent
at times about reporting in when absent for sickness
or other reasons , and these traits may have played a
part in Wall's final decision to discharge.
"Although this lift was one of the smallest used in the yard , it was also
one of the newest ( less than a year old) and most expensive models (cost
about $7,000) because it was the only one with machinery for side-shifting
loads by power
In the case of Clark, Respondent presents, aside
from his specific July 11 mistake, the same general
justifications as for Montroy, but with these addi-
tions : In explaining his attempt to deliver the
lumber, Clark admitted in testimony that he had ac-
cepted the word of contractor Eno working on the
same street about the location of the Heffron job,
assuming (but without asking) he was a customer of
Respondent, and in his travels up and down North
Manlius Road looking for Heffron, he did not try to
find a telephone in a home or elsewhere to call the
office for instructions because he "felt funny"
about asking to use a private phone, and he found
no public pay phone on the street; nor did he ask
Eno if he had a telephone, or where he could find
one. Wall testified credibly that when drivers can-
not find a site, they normally call the office for in-
structions, and that it was ordinary good judgment
for them to do this if they got lost, even after
receiving initial travel instructions from the office.
Wall also testified credibly that Respondent went to
extra expense in sending two other employees to
North Manlius Road in the next day or so to reload
the lumber by hand and deliver it to Heffron. The
extra expense loomed large in Wall's mind at
discharge due to the recent admonitions from
Boston about running the yard more efficiently. It is
also evident that, in trying to make the delivery,
Clark did not use ordinary commonsense or good
judgment in relying on the instructions of some
other contractor as to the location of the Heffron
site , in failing to check to see if a Heffron permit
was on the site where he unloaded, and in not
calling the office for specific instructions before un-
loading at an unmarked site.
Attacking these contentions, General Counsel
tries to shrug off the third accident to the forklift as
inconsequential , because the proven cost of repair
of about $34 was far less than the testimonial esti-
mates of Wall and Gingerich, ranging from $400 to
$600. While the great discrepancy alone can be
considered one indication that Respondent may
have been trying to puff up the seriousness of that
accident to justify the discharge, this does not over-
come the salient fact that this incident, the third in
a short time, was a good indication of a pattern of
carelessness that would be a normal motivation for
discharge, regardless of Montroy's union activity,
especially in light of the recent admonitions to Wall
about cutting down costs. Hence, I do not view the
exaggerated estimate of the repair as a significant
factor supporting the claim that the third accident
was only a pretext for the discharge.1a Nor is it sig-
nificant that Respondent had no pattern or practice
of degrees of discipline for damage to equipment
based on the extent or cost of repair of damage, for
it would be unusual for a small employer to operate
" Gingerich never saw the actual repair bill , and as the record shows that
a fire in August 1967 destroyed the Syracuse warehouse including the of-
fice with all business records except duplicate payroll records in Boston, it
appears that Wall was testifying under a handicap and was relying on his
own estimate of the extent of the repair cost
GERRITY COMPANY INCORPORATED 679
by a chart or graph in meting out discipline on a
precise, computer-like basis.14 In any event, the ex-
perience of three instances of damage to equipment
by the same employee in a short time would nor-
mally be a far more powerful motive for discharge
than the actual cost of repair each time, because of
the pattern of bad performance displayed. In like
manner , the vague testimony of Wall and Dugan on
cross -examination admitting past tardiness of Mon-
troy or other violations of plant rules as possible
factors in the discharge, cannot be considered a cir-
cumstance showing per se shifting or inconsistent
defenses of the type usually found in pretext cases,
for neither witness testified on direct examination
that Montroy was given this as a reason at
discharge, and their testimony about it adduced on
cross-examination indicates at most that , while it
may have been in Wall 's mind before and at
discharge , it was not a motivating factor . The same
conclusion follows in Clark's case, for Respondent
did not cite tardiness or any other failure to call in
upon absence to him as a reason for discharge.
It is true that other facts in the record tend to
show both men had been satisfactory employees
and this weighs somewhat against the defense. First
of all, there is no credible proof that Montroy's
prior negligence was brought to his attention at
discharge, which raises some question about
Respondent 's real view on the seriousness of his
past deficiencies; if Wall had these incidents in
mind when he talked to Dugan and Gingerich and
decided to fire him, as he states, it seems strange
that Dugan would not have mentioned them and
then cited the third accident as the "straw that
broke the camel's back," so to speak, when he
discharged Montroy. Looking to their past records,
I have found that Clark had quit Respondent's em-
ploy after about a year at Syracuse and was then
sought out and rehired by Respondent. He testified
without contradiction that: Once in May and once
in June 1967, he asked Gingerich how he was do-
ing, and the latter said he was "doing good." About
June 1, Gingerich transferred him from a small to a
larger truck, telling him he could do a better job
with it than its present driver. When Montroy came
to the yard once in April to pick up a paycheck
while on sick leave, he asked if his work was
satisfactory, and Dugan told him it was, and that he
would be operating in the warehouse by himself
when he returned from sick leave; the inference is
that he would work henceforth with little or no
direct supervision. On June 10, both men were
given 20-cent pay raises , with Dugan telling them
jokingly at the time that he had "bad news" for
them, that they would get the raises shortly, and
that "you have been doing good work, keep it up,
and there will be more to come." While the record
shows that another driver received the same raise at
the same time, and other employees had received
5-, 10-, or 15-cent raises at various times from
March onward, three of them going to employees in
July, including one union adherent (Harold Lash-
way), Respondent does not try to explain away the
obvious indication of merit as the reason for the
raises of June 10 which is inherent in Dugan's re-
marks to Clark and Montroy, hence I must find that
they were merit raises which, in Montroy' s case at
least, further indicates that before the union cam-
paigns Respondent did not consider his prior
negligence serious enough to require any warning
on June 10 or to prevent his getting one of the lar-
gest raises given to any employee up to that time.
Hence, the sudden importance of these prior in-
cidents in Wall's mind when the third damage oc-
curred after he knew of Montroy's union activity,
plus the fact that Dugan did not mention them in
discharging him, raises a strong suspicion that
Respondent brought them forward only at the trial
in an attempt to build up a picture of a continually
negligent worker whose third instance of negligence
alone prompted Respondent to discharge him. It is
likewise inferable from the circumstances of Clark's
second employment, Gingerich's later praise of
him, and Dugan's praise at time of the raise, that he
was considered an improving and valuable em-
ployee, and that Respondent's satisfaction with him
quickly disappeared only when he carelessly
misdelivered one load of lumber after his union ac-
tivity became known.15 Another indication that the
derelictions of both were not in fact considered as
serious as now claimed, appears in Dugan's offer to
each man of a letter of recommendation if he
wanted it. This appears to be a beneficient gesture
more consistent with an economic layoff or other
separation for reasons beyond the employee's con-
trol, than with a discharge for serious misconduct.
Dugan 's explanation for the offer and for his men-
tion of alleged economic admonitions from the
Boston office to "buckle down," that it was in
order to "soften the blow" of the discharge, is not
persuasive for, on further cross-examination about
it, he admits that if he had to do it again , he might
not make the offer of the letter, and if the men had
requested letters later, he is not sure what he would
have said in them. One obvious inference is that he
acted on impulse in making the offer, trying to cut
down any adverse effect on their record arising
from a misconduct discharge, and that he might
" The record shows that Respondent had never experienced this type of
damage to any forklift before The only comparable incident involved
damage to another employee's car when one Fesko backed another forklift
into it , but there was no damage to the forklift itself, hence the fact that
Fesko was not discharged does not support General Counsel 's contention
or weigh against the inference of validity of Montroy 's discharge for three
proven damages to company equipment.
'S Dugan could recall only one instance of somewhat similar misdelivery
in the past , where the driver dropped his load at the wrong spot on an
apartment site, but no extra expense accrued to Respondent because the
lumber was still used on that site Wall admitted that other misdeliveries
similar to that of Clark probably occurred in the past , but Respondent ad-
duces no proof that any discipline , whether discharge or something less,
had been meted out in those cases
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have trouble wording a letter of recommendation to
overcome that adverse effect. On the other hand, it
is also a fair inference that if their past per-
formance, both general and specific, had been as
poor as Respondent now claims, he would not have
made the offer. Ergo, the mere fact of the offer
detracts greatly from the implication that their
derelictions of July 10 and 11 had drastically
changed them from mediocre or poor workers into
completely undesirable workers, and when it is con-
sidered with the economic reasons stated, which
Dugan admits were not the real reasons for the
separations, it impels the belief that the sum total of
the varying and inconsistent explanations given
them at discharge were but pretexts, designed to
conceal the true discriminatory motive, even
though the instances of recent misconduct cited
had in fact occurred.1e
Balancing all the facts and circumstances pro and
con as outlined above, it would appear that, while
some of the circumstances relied on by Respon-
dent , particularly the prompt discharge for proven
derelictions, if considered alone, are cogent indica-
tions that such derelictions were the efficient cause
of discharge, that inference is substantially
weakened by the factors last above mentioned
which tend to support the claim of General Coun-
sel. The case is a close one on the facts and in-
ferences can be drawn both ways; however I am
unable to conclude that the circumstances support-
ing Respondent's defense are sufficiently strong
overall to rebut the facts and circumstances in the
whole record supporting a finding of discriminatory
discharge. I am therefore constrained to conclude
on the whole record that General Counsel has
sustained the ultimate burden of proof that Respon-
dent discharged Montroy and Clark on July 11,
1967, for their known union activity, while using
their recent derelictions as well as vague economic
reasons as pretexts to hide the real unlawful motive,
and that Respondent thereby discriminated against
them in regard to their tenure of employment, in
violation of Section 8(a)(3) of the Act, and thereby
also tended to interfere with, coerce, and restrain
employees in the exercise of their statutory rights
under Section 7 of the Act, in violation of Section
8(a)(1).
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
II, above, occurring in connection with its opera-
tions set forth in section 1, 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.
IV. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, I recommend that it
be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent unlawfully
discharged Clarence W. Montroy and Robert E.
Clark on July 11, 1967, I recommend that Respon-
dent offer them immediate and full reinstatement to
their former or substantially equivalent positions
without prejudice to seniority or other rights and
privileges, and make each whole for any loss of
earnings he may have suffered as a result of the dis-
crimination against him, by payment to him of a
sum of money equal to the amount he would have
earned from the date of discriminatory discharge to
the date of a proper offer of reinstatement , less net
earnings during said period, the backpay to be com-
puted in the manner established in F. W. Woolworth
Company, 90 NLRB 289, and including interest at
the rate of 6 percent per annum, as required by Isis
Plumbing & Heating Co., 138 NLRB 716. The il-
legal discharges also warrant a broad cease-and-de-
sist order and notice.
CONCLUSIONS OF LAW
1. The Union is a labor organization, and
Respondent is engaged in commerce, within the
meaning of the Act.
2. By unlawfully discharging Clarence W. Mon-
troy and Robert E. Clark as found above, the
Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing
its employees in the exercise of their rights guaran-
teed them by Section 7 of the Act, by said
discharges, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
5. Respondent has not violated the Act by con-
duct alleged in the amended complaint other than
as found above.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in this
case, it is recommended that Respondent, Gerrity
Company Incorporated, its officers, agents , succes-
sors, and assigns , shall:
1. Cease and desist from:
"' The pretextual nature of the economic reasons given is also borne out
by the fact that in the next week Respondent advertised for truckdrivers
and forklift operators to fill "permanent positions "
GERRITY COMPANY INCORPORATED
(a) Discouraging membership in Truckdrivers &
Helpers Local Union No. 317, an affiliate of the In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or in any
other labor organization of its employees, by
discharging any of its employees or discriminating
in any other manner in respect to their hire or
tenure of employment, or any term or condition of
employment.
(b) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise of rights guaranteed to them by Section 7 of
the Act, except to the extent that such right may be
affected by an agreement requiring membership in
a labor organization as a condition of employment,
in conformity with the proviso to Section 8(a)(3)
of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Offer Clarence W. Montroy and Robert E.
Clark immediate and full reinstatement to their
former or substantially equivalent positions,
without prejudice to seniority or other rights and
privileges, and make each whole for any loss of pay
suffered by reason of Respondent's discrimination
against him, in the manner set forth in the section
hereof entitled "The Remedy"; and notify each if
presently serving in the Armed Forces of the
United States of his right to full reinstatement upon
application in accordance with the Selective Ser-
vice Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(b) Preserve and, upon request, make available
to the Board and its agents , for examination and
copying, all payroll records, social security records,
timecards, personnel records and reports, and all
other records relevant and necessary to the deter-
mination of the backpay due and the right of rein-
statement provided under the terms of this Recom-
mended Order.
(c) Post at its Syracuse, New York, yard, copies
of the attached notice marked "Appendix."" Co-
pies of said notice, on forms provided by the Re-
gional Director for Region 3, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof and
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of receipt of
17 In the event that this Recommended Order is 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 In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
681
this Recommended Order, what steps Respondent
has taken to comply herewith."
IT IS FURTHER RECOMMENDED that the amended
complaint herein be dismissed as to any allegations
of unlawful conduct other than those found above.
" In the event that this Recommended Order is adopted by the Board,
this provision 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 herewith."
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 Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in
Truckdrivers & Helpers Local Union No. 317,
an affiliate of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen &
Helpers of America, or any other labor organi-
zation of our employees, by discharging any of
our employees or discriminating in any other
manner in respect to their hire or tenure of
employment or any term or condition of em-
ployment.
WE WILL offer to Clarence W. Montroy and
Robert E. Clark immediate and full reinstate-
ment to their former or substantially equivalent
positions, without prejudice to their seniority
or other rights and privileges, and make each
whole for any loss of earnings suffered as a
result of our discrimination against him.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed to them by Sec-
tion 7 of the Act, except as such right may be
affected by an agreement requiring member-
ship in a labor organization as a condition of
employment, in conformity with the proviso to
Section 8(a)(3) of the Act.
WE WILL notify the above-named employees
if presently serving in the Armed Forces of the
United States of their right to full reinstate-
ment upon application in accordance with the
Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Forces.
GERRITY COMPANY
INCORPORATED
(Employer)
Dated By
(Representative ) (Title)
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecu- communicate directly with the Board's Regional
tive days from the date of posting and must not be Office, Fourth Floor, The 120 Building, 120
altered, defaced, or covered by any other material. Delaware Avenue, Buffalo, New York 14202,
If employees have any question concerning this Telephone 842-3100.
notice or compliance with its provisions, they may