Jerry Cardullo Ironworks

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 515 (N.L.R.B. 2003)

JERRY CARDULLO IRONWORKS, INC. 515
Jerry Cardullo Ironworks, Inc. and Shopmen’s Local
Union No. 455, International Association of
Bridge, Structural, Ornamental & Reinforcing
Iron Workers, AFL–CIO. Cases 29–CA–24655,
29–CA–24907, 29–CA–25169, 29–CA–25263, and
29–CA–25322
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND WALSH
On May 30, 2003, Administrative Law Judge Howard
Edelman issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2
AMENDED REMEDY
Substitute the following for the second paragraph in
the remedy section of the judge’s decision:
“The Respondent shall be ordered to execute the
2002–2005 collective-bargaining agreement requested by
the Union on September 25, 2002. The Respondent fur-
ther shall be ordered to comply with the terms of the
agreement retroactive to July 1, 2002, the effective date
of the agreed-upon collective-bargaining agreement, de-
scribed above. To the extent that the Respondent has
failed to comply with the terms of the above-described
contract, it shall be ordered to make whole its employees
for any loss of earnings and other benefits they may have
suffered as a result of that failure. Also, to the extent that
the Respondent has failed to make payments to any bene-
fit funds in the amounts required by the above-described
contract, it shall be ordered to make such funds whole in
accordance with the terms of that contract, including

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We hereby correct two inadvertent errors in the judge’s discussion of
John Miranda’s employment history with the Respondent. Miranda
took two leaves of absence during 2001, and was refused reinstatement
on his request in November 2001.
2 We shall amend the judge’s remedy, modify the recommended Or-
der, and substitute a new notice to conform to the Board’s standard
remedial language and the facts of the case.
paying any additional amounts applicable to such delin-
quent payments in accordance with Merryweather Opti-
cal Co., 240 NLRB 1213, 1216 (1979). In addition, the
Respondent shall reimburse unit employees for any ex-
penses ensuing from its failure, if any, to make such re-
quired payments or contributions, as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd.
mem. 661 F.2d 940 (9th Cir. 1981). All payments to unit
employees shall be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173
(1987).3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Jerry Cardullo Ironworks, Inc., Bayshore,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to provide the Union, upon re-
quest in the spring of 2001 and August 2001, the names,
dates of hire, classifications, and rates of pay of unit em-
ployees; upon request in March 2002, the names and
dates of hire of all unit employees, including those on
layoff; upon request on April 11, 2002, a list of job func-
tions performed by each unit employee during the past 3-
year period, a list of vacation, holiday, sick leave, and
overtime pay received by each employee during the past
3-year period, records showing medical coverage sup-
plied by the Respondent to unit employees, including
copies of individual employees’ medical cards, and a list
of benefit payments made to unit employees during the
last 3 years; upon request on September 4, 2002, a list of
unit employees who received unilateral wage increases,
and the amount of such increase during August 2002; all
of which information is relevant and necessary for the
performance of its duties as the collective-bargaining
representative of the employees in the following bargain-
ing unit:
All production and maintenance employees including
plant clericals employed by Respondent at its Bayshore
facility engaged in the fabrication and/or manufacture
of all ferrous and non-ferrous metals, iron, steel and
other metal products, including plastic products, and all
3 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of delinquency, the Respondent
will reimburse the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
340 NLRB No. 69
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516
maintenance employees engaged in maintaining ma-
chinery and equipment and other maintenance work,
excluding all office clerical employees, superinten-
dents, or employees engaged in erection, installation or
construction work.
(b) Failing and refusing to bargain collectively and in
good faith with the Union, by unilaterally granting a
wage increase without first notifying the Union and af-
fording it a meaningful opportunity to bargain with re-
spect to such change.
(c) Failing and refusing to bargain collectively and in
good faith with the Union, by insisting as a condition of
agreeing to terms of a successor collective-bargaining
agreement that the Union agree to withdraw a National
Labor Relations Board complaint, a demand for a trust
fund audit, a pending arbitration, or other nonmandatory
proposals.
(d) Failing and refusing to bargain collectively and in
good faith with the Union, by raising issues that had been
agreed upon during the course of collective bargaining.
(e) Failing and refusing to bargain collectively and in
good faith with the Union, by refusing to execute the
2002–2005 collective-bargaining agreement, although
the terms and conditions of employment had been agreed
upon.
(f) Threatening unit employees with layoff or dis-
charge because the Union had received a favorable arbi-
tration award, or because they engage in activities on
behalf of the Union.
(g) Threatening unit employees that union agents could
no longer visit the Respondent’s facility for the purpose
of policing and enforcing its collective-bargaining
agreement with the Union, notwithstanding a broad visi-
tation clause.
(h) Summoning law enforcement officials to remove
union agents visiting the Respondent’s facility for the
purpose of policing and enforcing its collective-
bargaining agreement with the Union, notwithstanding a
broad visitation clause.
(i) Discharging or laying off employees because of
their membership in, or activities on behalf of, the Union.
(j) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Union with the information requested
as set forth above.
(b) Notify the Union in advance of any proposed
changes in mandatory subjects of bargaining, obtain the
Union’s consent before implementing changes to such
subjects contained in the parties’ collective-bargaining
agreement, and bargain collectively and in good faith,
upon request by the Union.
(c) Upon request by the Union, rescind the unilateral
wage increase granted in August 2002.
(d) Execute the 2002–2005 collective-bargaining
agreement as requested by the Union.
(e) Give retroactive effect to the terms and conditions
of the collective-bargaining agreement and make whole
its employees and the Union for any losses they may
have suffered by reason of the Respondent’s refusal to
execute the agreement, as set forth in the remedy section
of the decision.
(f) Within 14 days from the date of this Order, offer
John Miranda full reinstatement to his former job, or if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any rights
or privileges previously enjoyed.
(g) Make John Miranda whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of this decision.
(h) Within 14 days from the date of this Order, remove
from its files any reference to its unlawful discharge of
John Miranda, and within 3 days thereafter notify him in
writing that this has been done and that the discharge will
not be used against him in any way.
(i) Preserve and, within 14 days of a request, or within
such additional time as the Regional Director may allow
for good cause shown, provide for examination and
copying at a reasonable place designated by the Board or
its agents all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Order.
(j) Within 14 days after service by the Region, post at
its Bayshore, New York facility copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JERRY CARDULLO IRONWORKS, INC. 517
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since Spring 2001, the
approximate date of the first unfair labor practice found
herein.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to provide the Union,
as it requested in the spring of 2001 and August 2001,
the names, dates of hire, classifications, and rates of pay
of unit employees; as it requested in March 2002, the
names and dates of hire of all unit employees, including
those on layoff; as it requested on April 11, 2002, a list
of job functions performed by each unit employee during
the past 3-year period, a list of vacation, holiday, sick
leave, and overtime pay received by each employee dur-
ing the past 3-year period, records showing medical cov-
erage supplied by us to unit employees, including copies
of individual employees’ medical cards, and a list of
benefit payments made to unit employees during the last
3 years; as it requested on September 4, 2002, a list of
unit employees who received unilateral wage increases,
and the amount of such increase during August 2002; all
of which information is relevant and necessary for the
performance of its duties as the collective-bargaining
representative of the employees in the following bargain-
ing unit:
All production and maintenance employees including
plant clericals employed by us at our Bayshore facility
engaged in the fabrication and/or manufacture of all
ferrous and non-ferrous metals, iron, steel and other
metal products, including plastic products, and all
maintenance employees engaged in maintaining ma-
chinery and equipment and other maintenance work,
excluding all office clerical employees, superinten-
dents, or employees engaged in erection, installation or
construction work.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with the Union, by unilaterally granting
a wage increase without first notifying the Union and
affording it a meaningful opportunity to bargain with
respect to such change.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with the Union, by insisting as a condi-
tion of agreeing to terms of a successor collective-
bargaining agreement that the Union agree to withdraw a
Board complaint, a demand for a trust fund audit, a pend-
ing arbitration, or other nonmandatory proposals.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with the Union, by raising issues that
had been agreed upon during the course of collective
bargaining.
WE WILL NOT fail and refuse to bargain collectively
and in good faith with the Union, by refusing to execute
the 2002–2005 collective-bargaining agreement, al-
though the terms and conditions of employment had been
agreed upon.
WE WILL NOT threaten you with layoff or discharge
because the Union had received a favorable arbitration
award, or because you engage in activities on behalf of
the Union.
WE WILL NOT threaten you that union agents can no
longer visit our facility for the purpose of policing and
enforcing our collective-bargaining agreement with the
Union, notwithstanding a broad visitation clause.
WE WILL NOT summon law enforcement officials to
remove union agents visiting our facility for the purpose
of policing and enforcing our collective-bargaining
agreement with the Union, notwithstanding a broad visi-
tation clause.
WE WILL NOT discharge or lay off employees be-
cause of their membership in, or activities on behalf of
the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
WE WILL furnish the Union with the information re-
quested as set forth above.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 518
WE WILL notify the Union in advance of any pro-
posed changes in mandatory subjects of bargaining, ob-
tain the Union’s consent before implementing changes to
such subjects contained in the parties’ collective-
bargaining agreement, and bargain collectively and in
good faith, upon request by the Union.
WE WILL, upon request by the Union, rescind the uni-
lateral wage increase granted in August 2002.
WE WILL execute the 2002–2005 collective-
bargaining agreement as requested by the Union.
WE WILL give retroactive effect to the terms and con-
ditions of the collective-bargaining agreement and make
you and the Union whole for any losses you may have
suffered by reason of our refusal to execute the agree-
ment.
WE WILL, within 14 days from the date of the Board’s
Order, offer John Miranda full reinstatement to his for-
mer job, or if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any rights or privileges previously enjoyed.
WE WILL make John Miranda whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful discharge of John Miranda, and WE WILL, within 3
days thereafter, notify him in writing that this has been
done and that the discharge will not be used against him
in any way.

JERRY CARDULLO IRONWORKS, INC.

James P. Kearns, Esq., for the General Counsel.
Alan B. Pearl, Esq. (Portnoy, Messinger & Pearl), for the Re-
spondent.
Belle Harper, Esq., for the Charging Party.
DECISION*
STATEMENT OF THE CASE
FINDINGS OF FACT AND ANALYSIS
AND CONCLUSIONS OF LAW
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on January 29, 2003, in Brooklyn, New
York.
On unfair labor practice charges filed by Shopmen’s Local
Union No. 455, International Association of Bridge Structural,
Ornamental & Reinforcing Iron Workers, AFL–CIO (the Un-
ion), a complaint issued on January 7, 2003, alleging that the
Respondent, Jerry Cardullo Ironworks Inc., violated Section
8(a)(1), (3), and (5) of the Act.

* Corrections have been made according to an errata issued on June
18, 2003.
Based upon the entire record herein, the briefs submitted by
counsel for the General Counsel and Respondent’s counsel, and
my observation of the demeanor of the witnesses, I make the
following.
Based upon the overall demeanor of William Colavito, union
president, and Jerry Cardullo, Respondent’s president and
owner, I find Colavito to be a credible witness. I also find Car-
dullo to be an incredible witness. In this connection, Colavitos’
testimony was very detailed, and established an excellent recol-
lection of the facts, especially concerning the collective-
bargaining negotiations. He was extremely responsive to ques-
tions put to him on cross-examination. Moreover, his testi-
mony on cross-examination was consistent with his direct tes-
timony. In contrast, Cardullos’ testimony was not as detailed
as Colavitos’ testimony. At times he impressed me as being
evasive, especially during cross-examination. Moreover, as set
forth in detail below, his testimony was inconsistent with his
own records. At other times his testimony was not believable
on its face. Accordingly, when Cardullos’ testimony is incon-
sistent with that of Colavito, I credit Colavito. Colavito and
Cardullo were the only witnesses in this case.
Respondent is a domestic corporation with its principle of-
fice and place of business in Bayshore, and Long Island, New
York, where it is engaged in the business of iron fabrication.
Respondent annually purchases and receives at its Bayshore
facility goods valued in excess of $50,000 directly from points
located in states other than the State of New York. It is admit-
ted that Respondent is engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
Respondent and the Union have had a series of collective-
bargaining agreements for about 25 years, covering a bargain-
ing unit of:

All production and maintenance employees including plant
clericals employed by Respondent at its Bay Shore facility
engaged in the fabrication and/or manufacture of all ferrous
and non-ferrous metals, iron, steel and other metal products,
including plastic products, and all maintenance employees
engaged in maintaining machinery and equipment and other
maintenance work, excluding all office clerical employees,
superintendents, or employees engaged in erection, installa-
tion or construction work.

At all material times herein the Union has been the exclusive
collective-bargaining representative of the unit described
above.
It is also admitted that the Union is a labor organization
within the meaning of Section 2(5) of the Act. The Union has
had a series of collective-bargaining agreements with Respon-
dent for over 25 years. William Colavito, president of the Un-
ion, and Jerry Cardullo, Respondent’s owner, negotiated these
collective-bargaining agreements. The last agreement expired
on June 30, 2002.
The parties had a broad visitation-rights clause in their
agreements and a practice where Colavito, who serviced the
shop, could visit the employees in the working areas of the
shop as long as he didn’t interfere with production. During the
spring of 2001, Colavito made an unannounced visit to Re-
spondent’s shop. At this time he observed about 20 unit em-
JERRY CARDULLO IRONWORKS, INC. 519
ployees working in unit positions. The parties’ collective-
bargaining agreement requires Respondent to hire through its
hiring hall. The Union’s hiring hall records indicated only eight
unit employees. Respondent also had an obligation under the
agreement’s fund provision to similarly provide the fund with
the same list of employees. Colavito went into the office and
confronted Cardullo about these additional employees and
asked him for a full list of names. Notwithstanding this re-
quest, Cardullo then wrote a list of 16 employees stating only
their first name. He never supplied the Union with a full list
including first and last names.
It is well settled that an employer has a duty to furnish the
representative of employees covered under a collective-
bargaining agreement with information relevant and necessary
to enforce and administer its collective-bargaining agreement.
NLRB v. Acme Industrial Co., 385 U.S. 432 (l967). A list of an
employer’s employees, dates of employment, duties, wage
rates, etc., covered by a collective-bargaining agreement is
presumptively relevant. American Logistics, Inc., 328 NLRB
443 (1999). I find the Respondent’s response to the Union’s
request nonresponsive. And although Colavito made other
requests for such information, it was never supplied. I find
such conduct in violation of Section 8(a)(1) and (5) of the Act.
In August 2001, Colavito again learned that Respondent
hired an undisclosed number of unit employees. Colavito
promptly called Cardullo and told him he knew that he had
hired new employees and requested the names, classifications,
dates of hire, rates of pay, etc. Notwithstanding such request,
Cardullo never furnished the requested information. I find such
refusal to be in violation of Section 8(a)(1) and (5) of the Act.
In March 2002, employee John Miranda told Colavito that he
had been laid off. Colavito called Cardullo and asked why
Miranda wasn’t working. Cardullo told him work was slow.
Colavito asked him to supply him with a list of the names and
dates of all employees, including those employees on layoff.
This information was not provided. I find such refusal to be in
violation of Section 8(a)(1) and (5) of the Act.
The Union subsequently filed for arbitration over Respon-
dent’s repeated failure to call the union hiring hall for new
hires. Thereafter, the Union received a favorable arbitrators
decision. As a result of this decision, the Union sent Respon-
dent a letter dated April 11 requesting that Respondent supply it
with the following information:

1. A list of job functions performed by each unit em-
ployee during the past 3 year period.
2. A list of vacation, holiday sick leave and overtime
pay received by each unit employee during the past 3 year
period.
3. Records showing medical coverage supplied by Re-
spondent to the unit employees, including copies of indi-
vidual employees’ medical cards and a list of benefit pay-
ments made to the unit employees during the past three
year period.

This letter was sent certified and received by Respondent.
Notwithstanding such request, Respondent never furnished the
Union with the requested information. I find such conduct in
violation of Section 8(a)(1) and (5) of the Act. Acme Indus-
trial, supra.
Collective-bargaining negotiations began in June 2002. The
parties had a total of nine bargaining sessions. On September
4, 2002, during one of these bargaining sessions, Colavito
found out that Cardullo had given some unit employees raises
in pay without notifying or discussing it with the Union. Co-
lavito asked Cardullo for the names of the employees who re-
ceived such raises and the amounts of such raise. Cardullo
refused to supply such information. I find such conduct in
violation of Section 8(a)(1) and (5) of the Act. Moreover, uni-
lateral changes during the course of collective bargaining con-
cerning matters that are mandatory subjects of bargaining are
regarded as per se refusals to bargain. Accordingly, I find the
granting of such raises and the refusal by Respondent to supply
the names of those employees receiving such raises and the
amounts thereof to be in violation of Section 8(a)(1) and (5) of
the Act.
At the end of the September 4 bargaining session Colavito
met with about 12 of the unit employees, on Respondent’s front
lawn, reporting what took place during this session.
Colavito turned and saw Cardullo behind him. Colavito had
no knowledge as to how long Cardullo had been there or
whether he heard anything. No other witnesses testified as to
this incident. As described above, Cardullo was on his own
property and it was summertime. I find insufficient evidence to
support this complaint allegation of surveillance.
During the September 4 negotiation, Cardullo conditioned an
agreement of a collective-bargaining agreement on the Union’s
withdrawal of an outstanding Board complaint, the withdrawal
of the Union’s demand for a trust fund audit, and the with-
drawal of the John Miranda arbitration. On cross-examination
Cardullo admitted to such bargaining demands. Conditioning
an agreement on nonmandatory subjects is a violation of Sec-
tion 8(a)(1) and (5) of the Act. NLRB v. Borg-Warner Corp.,
356 U.S. 324 (1958). Accordingly, I find that Respondent vio-
lated Section 8(a)(1) and (5) of the Act.
The parties next met on September 11. Although it is admit-
ted that Respondent had agreed to most of the terms of a new
collective-bargaining agreement, except as to four items de-
scribed below, Cardullo suddenly disagreed as to terms he had
always agreed to in prior agreements. In this regard, Colavito
credibly testified as follows:

Q. All right. I think you said the next meeting was
September 11th?
A. I think it was around that time.
Q. What, if anything, happened that day?
A. Well, he had the same objections in terms of the,
the proposal. But then he went, took the contract. He had
the contract in front of him. He went and started turning
page by page, and he started raising one issue after an-
other, which he had never raised before.
Q. He had the contract that expired 2002?
A. Yes. He raised the question of the bargaining unit.
He raised the question of some people to be excluded from
the bargaining unit. Holidays, eligibility for holidays, he
didn’t want what was in the contract. The hiring hall, he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 520
didn’t want in the contact. Shoes, he didn’t want in the
contract. He went through, I think, about half the contract,
raising one issue after another.
Q. And had he ever raised any of these issues at earlier
sessions?
A. No, he did not.
Q. And just shoes, you say, what did you mean by
that?
A. Well, it provides for a pair of work shoes once a
year course [sic] of a pair of work shoes, the company
provides that.
Q. And what did he say about the hiring hall?
A. He wanted, didn’t want to have to call the hall for
people.
Q. And what eligibility did he want for holidays?
A. Well, if a man was sick or a man on compensation,
you know, it provides for if the holiday falls within a cer-
tain time, well, then the man gets his holiday. He wanted
that eliminated.
Q. Do you recall discussing anything else or any other
issues he raised?
A. Holidays, he wanted to eliminate the holidays. But
I’m talking about the new issues. I don’t remember, at this
point.
Q. And did you respond?
A. Yes. You know, I said—raising all new issues,
they were not an issue before, and you look like he’s just
looking to make, stall these negotiations.

I find that Respondent, by raising issues that had never been
raised in the parties 25-year bargaining history, so late in these
bargaining negotiations, such as the composition of the bargain-
ing unit, the elimination of the hiring hall, and the elimination
of holidays, establishes an effort to undermine the Union and
frustrate the bargaining process. I find such conduct in viola-
tion of Section 8(a)(1) and (5) of the Act. Yearbook House,
223 NLRB 1456, 1465 (1976).
The Union contends that on or about September 25, the par-
ties had reached an agreement as to all terms and conditions of
a collective-bargaining agreement. Respondent contends that
there were 4 items to which agreement had not been reached.
According to Respondent’s attorney, Respondent had condi-
tioned agreement on the inclusion of a drug testing policy and
disciplinary system. The elimination of a holiday, Respondent
contending that the holiday to be eliminated should be Lin-
coln’s Birthday, rather than Election Day. Finally, that the
effective date of the wage increase was not decided.
With respect to the drug testing and disciplinary policies,
Cardullo testified on direct examination that he wanted it in-
cluded in the collective-bargaining agreement. However, on
cross-examination he admitted that he had agreed with Colavito
to have a separate agreement concerning both the drug and
disciplinary policies. His contradictory testimony on such a
major issue seriously affects his credibility I conclude that both
of these issues were not to be included in the parties’ collective-
bargaining agreement, but rather in a separate agreement to be
worked out later.
With respect to the effective date of the wage increases Co-
lavito credibly testified that during the negotiations he observed
Cardullo computing the cost of such increases as of July 1,
2002. Moreover, the parties past practice was to make the
wage increases retroactive to the expiration of the prior agree-
ment. Cardullo testified on direct examination that it was not
the practice of Respondent to have retroactive wage increases
in their collective-bargaining agreements. However, as set
forth above the last collective-bargaining agreement was retro-
active. In view of the documentary evidence, and in view of
the past practice, I find Cardullo’s testimony unbelievable, and
not credible. Moreover, as set forth above I find Colavito’s
testimony entirely credible.
Accordingly, I find that it was agreed that the wage increases
were to be effective as of July 1, 2002.
The only remaining issue to be decided is the holidays. In
view of my favorable impression as to Colavito’s credibility,
and my very unfavorable impression as to Cardullo’s credibil-
ity, I credit Colavito’s testimony. Colavito testified that al-
though the Union was willing to lose a day off, the Union felt
strongly about keeping Lincoln’s Birthday as a holiday. Co-
lavito testified that sometime during an August meeting the
parties agreed that Election Day would be deleted as a paid
holiday and each employee would be entitled to receive a paid
personal day for each year of the contract.
On September 25, the parties reached an agreement. Co-
lavito told Cardullo that he would draw up a stipulation. A few
days later Colavito met with Cardullo and gave him a copy of
the stipulation. Cardullo read it and said that it looked all right
and that he would give it to his lawyer to look at. Cardullo,
although requested, has refused to sign the stipulation. The
stipulation is set forth below. The stipulation is simple to read
and understand at a glance. There could be no misunderstand-
ing as to the terms set forth therein.
Stipulation Between Jerry Cardullo Ironworks and
Ironworkers Local 455
It is hereby stipulated and agreed by and between Jerry Car-
dullo Iron Works Inc. (Company) and Ironworkers Local Un-
ion 455—IABSO—RIW (Union) that the contract between
the Parties which by the terms expires June 30, 2002 is hereby
extended with the following modifications:
1) Election Day shall be deleted as a paid holiday and
each employee shall be entitled and receive for each year
of the contract a paid Personal Day.
2) Wage rates of each employee and the minimum
rates of each classification shall be increased as set forth
below:
Effective for Finishers and Mechanics
July 1, 2002 July 1, 2003 July 1, 2004
6% 5% 6%
Effective for all other classifications
July 1, 2002 July 1, 2003 July 1, 2004
4% 4% 4%
3) Contract Termination: June 30, 2005
4) The Parties will agree on:
a) Work Rules
JERRY CARDULLO IRONWORKS, INC. 521
b) Substance Abuse Testing Program

Accordingly, I conclude that by refusing to sign the stipula-
tion of agreement, Respondent has violated Section 8(a)(1) and
(5) of the Act.
John Miranda, a unit employee began working for Respon-
dent in August 2000. He took a leave of absence during the
winter of 2001. When he attempted to return to work on De-
cember 9, 2002, Cardullo refused to reinstate him. The Union
thereafter filed for arbitration on his behalf. The Union refused
to withdraw its arbitration, and ultimately received a favorable
award requiring Cardullo to reinstate Miranda. Cardullo was
admittedly furious over the award.
On December 6, 2002, shortly after the arbitration award,
Colavito visited Respondent’s facility to discuss Miranda’s
reinstatement. Cardullo yelled at Colavito in the presence of
the unit employees. His anger was directed at the arbitrators
award. In this connection, Cardullo threatened Colavito in the
presence of unit employees that he would lay off five employ-
ees because the Union intended to enforce the arbitration
award, and that he would let Miranda go after working 1 day.
Cardullo then told Colavito in the presence of unit employees
that he could no longer come into Respondent’s facility, not-
withstanding a contractual agreement which provides that: “Un-
ion agents are permitted to enter Respondent’s facility at any
time during which employees are working for the purpose in-
vestigating complaints or working conditions.” Cardullo then
called the police and had Colavito removed from his facility. I
find that such conduct was in violation of Section 8(a)(1) and
(5) of the Act. West Lawrence Care Center, 308 NLRB 1011,
1015 (1992). I also find that his threats to lay off five employ-
ees if the Union enforced the arbitrator’s award is a violation of
Section 8(a)(1) of the Act.
On December 9, Miranda came back to work. Inside Re-
spondent’s facility, Cardullo told Miranda that he didn’t know
why he was there and why he was fighting to return. Cardullo
admitted on cross-examination that he intended to terminate
him after working 1 day. When Miranda completed his work-
day, Cardullo told him he was being laid off.
At trial, Cardullo contended that he let Miranda go because
he was the least senior employee. On direct examination, he
testified that there were no less senior employees than Miranda
currently working for Respondent. However, once again Re-
spondent’s records contradict his testimony. The seniority list
offered by Respondent establishes that at the time of his termi-
nation there were several employees with less seniority than
Miranda who were not laid off. At the day of trial, Respon-
dent’s records establish that six employees with less seniority
than Miranda were working. Once again Cardullo’s testimony
is contradicted by his own records.
Under the Board’s decision in Wright Line, 251 NLRB 1083
(1980), approved by the Supreme Court in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983), the General
Counsel must make a prima facie showing of sufficient evi-
dence to support the inference that protected conduct was a
motivating factor in the employer’s decision to terminate, sus-
pend or otherwise discipline an employee. Once this is estab-
lished the burden then shifts to the employer to demonstrate
that the same action would have been taken even in the absence
of protected conduct. The question, then, is not whether the
employer could have taken the adverse action, but whether it
would have done so in the absence of the discriminatee’s union
activities. Standard Sheet Metal, Inc., 326 NLRB 411 (1998).
Thus, Respondent must persuade by a preponderance of the
credible evidence that it would have taken the actions described
herein in the absence of each discriminatee’s protected activi-
ties in support of the Union. T&J Trucking, Co., 316 NLRB
771 (1995).
The evidence clearly establishes a prima facie case that Re-
spondent discharged John Miranda in violation of Section
8(a)(3) of the Act. A prima facie showing of discriminatory
conduct under Section 8(a)(3) of the Act requires the following:
(1) that the alleged discriminatee be engaged in union activity;
(2) that the employer had knowledge of these activities; (3) that
the employer’s actions were motivated by union animus; and
(4) that the discrimination had the effect of encouraging or
discouraging union membership. Downtown Toyota, 276
NLRB 999, 1014 (1985), citing NLRB v. Transportation Man-
agement Corp., supra; Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S, 599
(1982).
It is clear that by Cardullo’s conduct, his December 6 threats
to lay off unit employees because of his anger at the Miranda
arbitration award, his threats to terminate Miranda, and his
admission during the course of this trial that he intended to
terminate Miranda after working 1 day establish a strong prima
facie case. Respondent’s defense that Miranda was laid off due
to economic conditions is contradicted by his own records and
admissions. Accordingly, I conclude that Respondent’s defense
is pretextual. I further conclude that Miranda was terminated in
violation of Section 8(a)(1) and (3) of the Act.
REMEDY
Having found Respondent has committed violations of Sec-
tion 8(a)(1), (3), and (5) of the Act, I shall recommend that it
shall be ordered to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the Act.
I recommend that Respondent be ordered to execute the
2002–2004 collective-bargaining agreement requested by the
Union on September 25, 2002. I further recommend Respon-
dent be ordered to comply with the terms of the prior agreement
retroactive to July 1, 2002, the effective date of the agreed-
upon collective-bargaining agreement, described above, and
make the bargaining unit employees and the Union whole for
any losses they may have suffered as a result of Respondent’s
refusal to execute this agreement in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), plus interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
I recommend that Respondent furnish the Union with the in-
formation requested by the Union in March, on April 11, and
on September 4, 2002, all of which is necessary and relevant to
the Union’s performance of it’s duties as the exclusive bargain-
ing representative of the unit employees.
I also recommend that the Union, at it’s option, may request
Respondent rescind it’s unilateral grant of a wage increase to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 522
the unit employees granted on August 2002. Such remedy is
necessary because such unilateral action denigrates the Union
in the eyes of the unit employees.
I recommend that Respondent notify the Union of any pro-
posed changes in mandatory subjects of bargaining and obtain
the Union’s consent before implementing such changes con-
tained in the parties collective-bargaining agreement and bar-
gain in good faith upon request by the Union.
With respect to the unlawful discharge of John Miranda, I
shall recommend that Miranda be offered unconditional rein-
statement to his former position of employment, or if such posi-
tion no longer exists, to a substantially equivalent position of
employment without prejudice to his seniority, or other rights
previously enjoyed by him. I shall further recommend that
Miranda must be made whole for any loss of earnings or other
benefits suffered as a result of his unlawful discharge, from the
date of his discharge, until the date a valid offer of reinstate-
ment, as defined by the Board, is made by Respondent. Back-
pay shall be computed in accordance with F. W. Woolworth
Co., supra, with interest as prescribed by New Horizons for the
Retarded, supra. In addition, Respondent must be ordered to
remove from Miranda’s personnel file, any reference to such
action and notify Miranda that this has been done and that this
personnel action will not be used against him in any way.
[Recommended Order omitted from publication.]