M. J. Pirolli & Sons, Inc.

National Labor Relations Board - Board Decisions

Nov 18, 1972

194 N.L.R.B. 241 (N.L.R.B. 1972)

M. J. PIROLLI & SONS
M. J. Pirolli & Sons , Inc. and Teamsters Local Union
No. 379, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Case 1-CA-7366
November 18, 1972
DECISION AND ORDER
By CHAIRMAN. MILLER AND MEMBERS
FANNING AND JENKINS
On August 17, 1971, Trial Examiner Robert Cohn
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed cross-
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions2 and to adopt his
recommended Order.
ORDER
'Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, M. J. Pirolli & Sons, Inc., Watertown,
Massachusetts, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order.
i For the reasons set forth in his separate opinion in United Packing
Company of Iowa Inc., 187 NLRB No. 132, Chairman Miller concurs in the
issuance of the bargaining order but only on the basis of Respondent's
serious violations of Section 8(a)(1) and (3), as set forth in the attached
Trial Examiner's Decision.
2 The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a
Trial Examiner'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.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT COHN, Trial Examiner: This proceeding, tried
before me at Boston, Massachusetts, on March 17, 18, and
19, and April 5, 1971, with all parties present and
represented by counsel, involves a complaint issued'
pursuant to Section 10(b) of the National Labor Relations
i Dated December 18, 1970, based upon a charge dated November 12,
1970. All dates hereinafter refer to the calendar year 1970 unless otherwise
241
Act, as amended (herein the Act), alleging that M. J. Pirolli
& Sons, Inc. (herein the Company or Respondent),
interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed under Section 7 of the Act by
certain conduct described more fully herein, including the
discharge of employees in order to discourage membership
in and activities on behalf of Teamsters Local Union No.
379, a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (herein the
Union), in violation of Section 8(a)(3) of the Act, and
refusing to bargain with the Union in violation of Section
8(a)(5) of the Act. Respondent's answer admitted the
jurisdictional allegations of the complaint, but denied the
commission of any unfair labor practices.
At the trial, full opportunity was afforded all parties to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally on the record, and to submit
briefs. Oral argument was waived. Helpful briefs were
submitted by counsel for all parties, which have been duly
considered. Upon the pleadings, stipulation of counsel, the
evidence, including my observation of the demeanor of the
witnesses,2 and the entire record in the case, I make the
following:
FINDINGS OF FACT
I. COMMERCE
Respondent , a Massachusetts corporation , is, and has
been at all times material herein, engaged in the business of
the sale and distribution of building materials . In the course
and conduct of its business operations , it causes to be
delivered at its Watertown , Massachusetts, location,
directly from points located outside the Commonwealth of
Massachusetts, building materials having a value in excess
of $50,000 annually.
The Respondent is, and has been at all times material,
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material , a labor
organization within the meaning of Section 2(5) of the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Commencement of the Union Campaign
As a result of discussions among the employees of
Respondent respecting the desirability of being represented
for purposes of collective bargaining by a labor organiza-
tion, one of the employees, David Anderson, on or about
November 5, contacted Union Representative Walsh. On
November 6, Anderson received union authorization cards
from Walsh, and on Saturday, November 7, 12 of the
Respondent's truckdrivers and yardmen signed the cards
and returned them to Anderson. The latter returned them
to Walsh who, on November 9, dispatched a letter to the
Respondent which stated as follows:
indicated.
2 Cf. Bishop and Malco Inc., d/b/a Walker's, 159 NLRB 1159, 1161
194 NLRB No. 37
242
Michael J. Pirolli & Sons
56 Irving Street
Watertown, Massachusetts
Dear Sirs:
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Please be advised that a vast majonty ,pf the warehouse-
men and drivers of your company have designated
Local Union # 379 as their bargaining representative.
Please advise me as soon as possible when it is
convenient for your .[sic ] to ,meet withrepresentatives of
this Local Union to discuss a wage scale and agreement
covering the employees referred to above.
Sincerely yours,
LOCAL UNION #379
Paul V. Walsh
Organizer
Although the record reflects that the aforesaid letter was
mailed by United States certified mail in Boston , Massa-
chusetts, on November 9, it was not apparently received by
Respondent at its post office box in Watertown until
November 13. Nor was a petition for election , which was
filed by the Union with the Regional Office of the National
Labor Relations Board in Boston on November 9, delivered
to the Respondent at its post office box until November 13.
In the interim , and more particularly on November 12,
significant events took place at the premises of Respondent
which gave rise to the principal issues in the instant
proceedings.
B. Events of November 12
1. The discharge of Mark J. Lynch
This employee commenced working for the Company in
November 1969 as a truckdriver. He is also referred to in
the record as Walter Lynch, which is his father's name
which the son utilized at the commencement of his
employment in order to drive some of the Company's
equipment .3
Lynch, along with 11 other employees, signed a union
card on November 7, as above related.
Lynch was discharged on November 12 by Michael J.
Pirolli, Sr., president and owner of the Company? On that
day, Lynch reported to work at the usual time, 6:30 a.m.,
received a loading slip from the office, and took it to one of
the forklift operators to load his truck. While he was
waiting for the truck to be loaded, he received a summons
over the loudspeaker to report to the office, which -he did.
Upon arriving there, Pirolli, Sr., told him to punch
3 Apparently the father had a license to drive 10-wheel equipment (a
class II license) and Mark Lynch had no license at all. The father's license
mistakenly reflected his age as 24; Mark Lynch, who was 18, was therefore
able to "pass" with it Subsequently, Mark Lynch was able to secure a class
III (ordinary) license but never did acquire a class II license.
4 The record reflects that the Respondent is a family-owned corporation
with Michael J Pirolh, Sr, being its founder, owner, and chief executive
officer. He participates in the day-to-day activities of the corporation and,
aside from Williams Qualters, the dispatcher, is the only conceded
supervisor However, one of his sons, Michael P. Pirolh, also works on a
full-time basis for the Respondent, his status as a supervisor having been
raised as an issue in the proceeding. (The General Counsel and the
Charging Party contend that he is a supervisor, Respondent argues that he
is not) For the sake of brevity and clarity in this decision, these two
out-that he did not need him any more, and to go fix his
license. This, according to the testimony of Lynch, was all
of the conversation.5
Although Lynch left the office after the interview, he did
not leave the premises. Pirolli, Sr., testified that following
the exit interview, Qualters reported to him that Lynch had
threatened. to "get even" with Pirolli by-bombing the place,
or something to that effect. Pirolli went out into the yard
and spoke further with Lynch who, at that time, was
conversing with employee Robert Morrissey. Pirolli walked
to where they were standing and told Lynch that he had
been fired and that he wanted him to get off his property.
Morrissey advised Lynch to leave, and the latter did so,
punching out at 7:43 a.m.
2. The alleged discharge of other employees
Shortly following the termination of Mark Lynch on
November 12, as above related, the 11 other card signers
ceased working for the Company and left the premises.
General Counsel and the Charging Party contend that the
Company discharged these men and that was the reason for
their departure; the Respondent contends that the men
walked out or struck in protest of the firing of Mark Lynch.
We now proceed to a consideration of the evidence on this
issue.
It will be recalled that at the time when Pirolli, Sr.,
directed Mark Lynch to get off his property, Lynch was in a
conversation with employee Robert Morrissey. Morrissey,
who impressed me as being an honest and forthright
witness, testified that the only part of the conversation he
heard between Lynch and Pirolli was when the latter told
Lynch to get off his property, "to get the hell out of here
.... Pirolli then turned to Morrissey and advised him
that he had just fired Lynch because he was "no good" and
a "troublemaker"; whereupon he inquired of Morrissey,
"who's making all the trouble around here?" Morrissey
responded that he did not know and that even if he did he
would not tell Pirolli. The latter became angry at that
remark and asked Morrissey if he was "one of them," to
which Morrissey replied in the affirmative-that he had
signed the card and that he was also stewards Pirolli
immediately responded that Morrissey was fired, muttered
an obscenity, and directed Morrissey to "punch out. I don't
need you." Morrissey then left his truck where the
conversation had taken place and commenced to walk
across toward the garage where the timeclock was situated.
The record reflects that Morrissey punched out at 7:53 a.m.
and drove his car off the premises immediately thereafter.
Employee David Anderson, who was at the time also
persons will henceforth be referred to as Pirolli, Sr ., and Pirolh, Jr.
5 Pirolli, Sr., testified that, in addition to the matter of the license, he
mentioned to Lynch the latter's burning out of two motors in his trucks
and also a complaint from a customer that Lynch had given said customer
"a lot of static" when Lynch delivered a load of material the preceding
Tuesday. Lynch specifically denied that Pirolli said anything about any
event that had occurred at the Stronghold Masonry Company, the
customer involved. For reasons discussed , infra, I credit the testimony of
Lynch over that of Pirolli.
6 The record reflects that during or after the employees signed the
authorization cards, they sought to designate Morrissey as the union
steward but he, initially, refused to accept the post However, it appears
that he subsequently relented and agreed to act as spokesman for the
group.
M. J. PIROLLI & SONS
waiting for his truck to be loaded, observed Pirolli, Sr., and
Morrissey in a conversation but, according to his testimo-
ny, only heard the part when Pirolli told Morrissey that the
latter was fired; Pirolli threw his hands into the air and said
that whoever signed those cards were fired; and as he said
this Pirolli was looking directly at Anderson and since
Anderson did sign one of the cards, he took it for granted
that he was discharged. He therefore punched out also.
Ronald Ianazzi, a forklift operator for the Company,
testified that on the morning of November 12 he observed
Mark Lynch walking across the yard, and the latter advised
lanazzi that he had been fired. When lanazzi asked why,
Lynch responded that it had something to do "about my
license." lanazzi then observed Pirolli, Sr., talking with
Morrissey but the only part of the conversation that he
heard was Pirolli's telling Morrissey that he did not need
him anymore. Pirolli then approached Ianazzi and told him
"you, you're through, get the [obscenity] out of here."
lanazzi then proceeded to the garage to punch out when he
heard Pirolli, Jr., who was standing in the yard, saying that
"anyone who signed the card is fired." 7
Leslie Poor was a mechanic for the Company. He
testified that on November 12 he reported for work at
approximately 7 a.m. and had commenced working on a
few trucks when he heard some commotion at the other end
of the garage. He heard Pirolli, Sr., say to someone (whom
Poor was unable to identify), "get out of the yard and stay
out." About 2 or 3 minutes later Pirolli, Sr., came to the
front of the truck where the witness was working and asked
if he had signed a union card. When Poor answered
affirmatively, Pirolli, Sr., said, "Well, screw, we don't need
you"; whereupon, Poor picked up his tools, placed them in
the toolbox, and punched out. Poor testified that while he
was putting his tools away, Pirolli, Sr., "came in and started
yelling at [him] . . . after all we've done for you ....
We've lent you money, we've let you use the truck. And,
you turn around and do this to us." About that time,
Dispatcher Qualters stuck his head through the window
from his office into the garage and asked what was going
on, to which Pirolli, Sr., pointing at Poor, said, "he's one of
them."
Philip Malkasian had only started working for the
Company on November 3. On November 12, he reported
for work at approximately 6:30 a.m., swept out the cement
house, and then was called in to make a delivery. However,
the truck would not start so he contacted Poor, the
mechanic. The latter was in the process of putting in a new
battery when, according to Malkasian's testimony, both
Pirolli, Sr., and Pirolli, Jr., came over. The former asked, "if
we had a union would you join it?" Poor replied, "yes."
Pirolli, Sr., then asked if he signed a union card and Poor
again answered affirmatively; whereupon Pirolli, Sr., said
"get the [obscenity] out." As both of the Pirollis
commenced to walk away, Pirolli, Jr., turned around and
asked if Malkasian had signed a card also. When he
answered, "yes," Pirolli, Jr., said "get the [obscenity] out."
The record reflects that Ronald Ianazzi punched out that morning at
7:55 a.m
8 Several other employees, including David Anderson, Ronald Ianazzi,
and Paul Di Luzio, testified to the same effect
9 Testimony of Di Luzio. Windsor Bruce, although presently working
243
As he was leaving, he heard Pirolli, Sr., say that anyone who
signed a card was fired.
Raffaele Franciosa, a truckdriver for the Company,
testified that on November 12 he reported for work at
approximately 6:30 a.m. and was sent immediately to East
Watertown, Massachusetts, to pick up a load of material;
that when he returned at approximately 8 a.m. he heard
that Lynch had been fired and he heard Pirolli, Sr., tell
Morrissey that "you're fired"; that he then observed Pirolli,
Sr., and Pirolli, Jr., walking about the yard advising
employees that if they had signed a card they were fired;
that Pirolli, Jr., personally asked him if he'd signed a card,
and when Franciosa replied affirmatively, Pirolli, Jr., said,
"you're fired. Get out" Franciosa further testified that as
the employees were leaving the premises he heard Pirolli,
Jr., say to them, " I swear I 'll kill any one of you who comes
back here." 8
Paul Di Luzio, a truckdriver, began work on November
12 at approximately 6 a.m. According to his testimony, he
brought his truck to the middle of the yard to be loaded and
then went up into the yard to wait on customers. Shortly
thereafter, employee Windsor Bruce came up to him and
told him that Morrissey had been fired and asked if Di
Luzio intended to go out with them. Di Luzio asked Bruce
who else was getting fired, and the latter responded,
"Walter Lynch and a few others when they come back from
their loads." 9 Di Luzio started walking toward the garage
when he met Pirolli, Jr., who stopped him and asked if he
had signed a union card, stating that anyone who signed a
union card was automatically fired. Di Luzio proceeded
over to the garage to punch out on the timeclock. As he
proceeded through the garage, Pirolli, Sr,, approached and
asked if he was with him (Pirolli) or with the other fellows,
to which Di Luzio replied that he was with the majority
"and besides he was fired anyway."
Paul Cleary, a truckdriver, commenced work on Novem-
ber 12 at approximately 6:30 a.m. He took a load of
materials to a job in Malden, Massachusetts, and thereafter
went to the premises of the Plasti-Crete Company, arriving
about 9 a.m. There he saw employees Poor and Franciosa
who advised him, briefly, of their version of what had
transpired at the premises of the Respondent, i.e., that
anyone who had signed a union card had been fired. Cleary
returned to the Respondent's premises , arriving there
approximately 9:30 a.m. and went into the office. There, he
saw Pirolli, Sr., and Dispatcher Qualters, and the former
asked him if he had signed a union card. When he replied
affirmatively, Pirolli said "get out," and Qualters said
"punch out." 10 Cleary then proceeded to the garage,
punched out, and headed across Irving Street to where his
car was parked. At this time Pirolli came out and stated that
he had built the place with his bare hands and "no bunch of
bastards are going to run it for me." He grabbed Cleary by
the shoulders as if to hit him and the latter stated, "Go
ahead, Mike. Right here in the street." Pirolli dropped his
hands at that.
Lawrence (Larry) Brophy, a truckdriver, reported for
for the Respondent, was not called as a witness.
115 Qualters was not called as a witness even though at the time of the
hearing he was still employed by the Respondent as a dispatcher, a
conceded supervisor.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work at approximately 6:30 a.m. and took a load of
wallboard to Summerville, Massachusetts. Upon his return,
but before he reached the premises of the Respondent, he
saw Mark Lynch on a bridge on Arsonal Street (which runs
beside the Respondent's premises), at approximately 8:30
a.m. Lynch advised him that he had been fired, and they
went to a nearby coffeeshop for a cup of coffee. Brophy
returned to the Company's premises and went into the
office where he had the following conversation with
Dispatcher Qualters:
A. He asked me if I'd signed a Union card. And I
asked him what business was it of his. He said, "It
makes no difference. We already know that you've
signed the card. I said, "Well, if you already know, what
are you asking me for?"
Q. I didn't hear that. Say that again?
A. He said-I said, "If you already know, what are
you asking me for?" He said, "Well, if you've signed the
Union card, you're fired." And I asked him to repeat it,
and he said, "If you've signed a union card, you're
fired."
Q.
time?
Do you recall if anything else was said at that
A. Well, there was a little banter back and forth as I
was punching out. Mr. Qualters asked me if I-why
would I do something like this to Mike? And I said, "Do
something like what to Mike," and he was still
mumbling as I left.
Q. At any time after Mr. Qualters asked you about
signing the card, did you tell him whether you signed
the card or not?
A. Yes, I did.
Q. What did you say to him?
A. I said, "Yes, I did sign the union card."
Q. Was that before he told you to punch out?
A. I believe it was, yes.
After Brophy punched out, he went back to the diner and
picked up Lynch and both of them went to a nearby
restaurant called Dunkin Donuts where the other terminat-
ed employees had gathered. It was at that location that
employee David Anderson telephoned Union Representa-
tive Walsh and advised him of what had occurred.'1 Within
a few hours, Walsh filed the charge in the instant case and
the employees established a picket line about the premises
of the Respondent. The parties stipulated that the picketing
commenced at 11 a.m. on November 12; the charge reflects
that it was filed at the Board's Regional Office in Boston at
1:02 p.m. the same day.
The testimony of the Pirollis is much at variance with the
foregoing. Pirolli, Sr., testified that after he directed Lynch
to get off his property, the following conversation ensued
between him and Morrissey:
11 Many of the employees testified that while they were at the Dunkin
Donuts Restaurant, Mrs. Yolanda Pirolh, wife of Pirolli, Sr, came to the
restaurant, apparently for the purpose of obtaining coffee. While there, she
allegedly uttered a threat to the employees which the General Counsel
urges is a violation of Section 8(a)(1). However, I find insufficient evidence
in the record to support the allegation that Mrs. Pirolli was a supervisor or
agent of the Respondent during this period. It is true that she spent a
substantial amount of her time at the premises of the Respondent
(apparently as a result of the fact that her children were no longer at home
and that she wished the company of her husband), but there is scant, if
any, evidence that she either possessed or exercised any of the indicia of
Well, Bob Morrissey is putting the forks in the trucks
and he says to me-he says, "You know, Mike, you
can't fire him." I says, "I can't fire him? What do you
mean?" He says, "Well, you know, we all signed the
cards last Saturday-the application cards to the
Union-last Saturday and I am the shop steward." And
he says, "As far as I'm concerned, you can't fire him."
So, I says, "Bob, I don't know anything about unions
at this place at this time. I don't know any notification
of it whatsoever and as far as I'm concerned, as of this
minute, I still own this business. Now, if you want to
work, Robert, you can work, and if you don't want to
work, you can go out with him." And I said, "That's all
there is to it."
And he says, "F-you," slams the door, and started
to walk out. So, I started to walk out with him. The next
thing I know I looked to the right and Ronnie
Ianazzi-he's way over in this corner-he's running
over to Bruce and he tells Bruce, "Come on. He's fired
Morrissey."
Pirolli then testified that as he was walking through the
yard, he heard Windsor Bruce ask Clifford Burdge if he was
coming. Burdge asked, "where are you going?" To which
Bruce said, "we're going out." Burdge replied, "I'm not
going nowhere. I'm staying." 12 Pirolli then testified that as
he passed a truck in the yard, he spoke to Leslie Poor who
was tightening a battery; that standing around the truck
with him were Paul Di Luzio, Philip Malkasian, and
Raffaele Franciosa; that Di Luzio and Poor started to walk
across the yard when Pirolli asked Poor where he was
going; and that Poor replied, "the majority is walking out
and I've got to go with them." Pirolli testified that he then
reminded Di Luzio that he had granted him many favors,
such as saving his brother from going to jail and loaning Di
Luzio money, but that Di Luzio responded that he had
asked Pirolli for a raise which was not granted and he was
"going out." Pirolli then testified that he went into his office
and waited for his son to return from East Watertown;13
Pirolli, Sr., testified that upon his son's return he told the
latter that he had fired one employee and that many of the
others were walking out but that meanwhile they had many
orders to deliver to customers; that he then directed his son
to "go down in the yard and go see, what we got left. Ask
who got cards or who wants to stay or who wants to go, but
let's find out how many are left so that we can arrange to
get our order out." Pirolli, Sr., staunchly maintained that he
did not, as General Counsel's witnesses testified, go about
the yard firing employees because they signed union cards;
that, indeed, the only conversations with employees he had
that morning were with Mark Lynch, Morrissey, and Di
Luzio.
Pirolli, Jr., testified that he came in to work about 6:30
supervisory authority set forth in Section 2(11) of the Act. Accordingly, I
will recommend that those allegations of the complaint be dismissed
12 As previously noted, Windsor Bruce was not called as a witness.
Burdge testified that he had finished loading David Anderson's truck and
was standing there when Bruce walked by and asked him if he was going.
Burdge asked, "going where?" but Bruce did not respond and "just kept on
walking."
13 Pirolh, Jr, testified that he was absent from the Respondent's
premises from approximately 7.30 to 8 a.m. due to a trip to a customer in
East Watertown, Massachusetts, of which more anon.
M. J. PIROLLI & SONS
a.m. on November 12 and worked about the premises until
approximately 7:30 a.m. when his father asked him to go to
the East Watertown Cement Block Company because one
of Pirolli's trucks was delayed in being loaded; that he
proceeded to the Block Company (which normally takes
about 5 or 6 minutes driving time), but that as he arrived
there the Pirolli truck was pulling out of the Block
Company's premises; however, he stayed and talked to the
owner of the company, Paul lanazzi (uncle of Ronald
lanazzi), about a new cement block machine; that he
returned to the Respondent's premises at approximately 8
a.m. and that as he drove into the yard, many employees
were headed out toward the street; that he went into the
office and asked his father what was happening, to which
his father replied, "well, they're all leaving"; that his father
then directed him to find out who was staying so that they
could get the trucks loaded; that he thereupon went into the
yard and asked approximately four employees whether they
signed a card and whether they intended to continue
working; that the four he interrogated (Clifford Burdge,
Gearhart Bernard, James Livings, and James McKinnon)
all responded that they had not signed the cards and that
they would continue working.14
Analysis and Concluding Findings Respecting
Alleged Discharge of Mark Lynch and Other
Employees on November 12
Respondent contends that Pirolli, Sr., had no knowledge
of the union activities of its employees prior to his
conversation with Morrissey on the morning of November
12; that he therefore did not know that Mark Lynch was
involved in such union activities, and therefore such could
not be a reason for his discharge. However, it is by now a
well-established principle that direct knowledge of an
employee's concerted or union -activities is not a "sine qua
non for finding that he had been discharged because of such
activities. On the contrary, there is well-established Board
and court precedent that such knowledge may be inferred
from the record as a whole." 15
In the light of such precedent, and on the basis of a
consideration of the entire record in this case, and
particularly the following points in the record, I conclude
that such an inference could and should be drawn: (1) the
small number of employees at the facility (approximately
17-20); (2) the fact that during the approximately 5 days
between the actual signing of the cards and the discharge,
there is evidence of discussions among the employees
respecting the signing of the union cards and what effect
such union activities might have on Pirolh, Sr. Thus Yard
Foreman Clifford Burdge, a witness for Respondent,
testified that he knew that the employees were signing cards
although he did not know exactly which employees; that on
Wednesday, November 11 (which was normally a holiday
although a few employees worked), Burdge and Windsor
14 Pirolli, Jr., testified that Burdge asked him, "does it make any
difference?" to which he replied in the negative.
15 Wiese Plow Welding Co., Inc, 123 NLRB 616, 618, see also Texas
Industries, Inc, 156 NLRB 423, 424-426.
16 See, e.g., Angwell Curtain Company, Inc. v. N L R B., 192 F.2d 899
(C.A. 7), where it was found that a management representative reference to
"this thing" meant "union activities."
245
Bruce were working when Paul Di Luzio came in and
wondered why he had not been asked to work. Di Luzio
then said, "we'll see what happens after he [Pirolli, Sr.] gets
the letter." Although Burdge denied telling either of the
Pirollis or Qualters about this conversation, I believe that it
is a tenable inference that in this closely held
corporation-which Pirolli, Sr., described as a big
family-knowledge of such activities which would come to
a yard foreman would also likely come to the attention of
the dispatcher and/or higher management ; (3) the timing of
the discharge which took place shortly after the card
signing; (4) Pirolli, Sr.'s conversation with Morrissey in
which he inquired, "Bob, who is making all the trouble
around here?" When Morrissey replied that he did not
know, Pirolli asked directly, "are you one of them?" The
foregoing questions, in my view, indicate a prior knowledge
on the part of Pirolli that something untoward was
occurring among the employees in the plant; that he was
not altogether sure of the nature and extent of such
activities and sought to find out from one of his older and
trusted employees. In the absence of any other reasonable
explanation on the record of any "trouble" around the
plant, I am convinced that Pirolli used the term as a
euphemism for union activities;16 and (5) the abrupt and
disparate manner in which Lynch was terminated. Thus, in
his testimony, Pirolli, Sr., recognized that the matter of the
license and the burned-out motors were not very substan-
tial reeds upon which to base the discharge since, as the
record reflects , other employees had been driving Respon-
dent's equipment without adequate licenses and were not
discharged. Also, if that item plus the burned-out motors
had been a sufficient reason for discharge, such would have
occurred in September or October when these events
occurred. Accordingly, Pirolli, Sr., relied strongly on the
asserted incident involving the Stronghold Masonry
Company on November 10 as the proverbial "straw which
broke the camel's back." However even if that incident
occurred as was reported to Pirolli, Sr., by Qualters (who
was not called upon to testify), it is quite significant that the
decision to discharge was made, and the discharge was
effectuated, without notifying Lynch and giving him an
opportunity to present his side of the story. This has been
held to be evidence of discriminatory intent.17
Under all circumstances, I am convinced, and therefore
find, that Respondent would not have discharged Lynch
for the reasons asserted had it not known or believed him to
have been a participant in the union activities of its
employees, to which it was unalterably opposed. I therefore
find and conclude that such discharge was in order to
discourage union activities in violation of Section 8(a)(3)
and (1) of the Act.
Resolution of the case as respects the termination of the
other employees on November 12 turns principally upon a
determination of credibility of witnesses . This difficult
chore of a factfinder is not rendered less so in the instant
17 Rockingham Sleepwear, Inc., 188 NLRB No. 110. See also United
States Rubber Company v. N.LR.B., 384 F.2d 660, 662-663 (C A. 5), where
the court stated : "Perhaps most damning is the fact that both Brewster and
Morales were summarily discharged after reports of their misconduct.
without being given any opportunity to explain or give their versions of the
incidents."
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case . However, after a careful consideration of all the
testimony, including demeanor (see N.LR.B. v. Dinion Coil
Company, 201 F.2d 484, 487 (C.A. 2)), "along with the
consistency and inherent probability of testimony," 18 I find
generally in favor of the witnesses for the General Counsel.
Thus, while some of such witnesses were more impressive
on the witness stand than others, it is difficult to believe
that all were fabricating when they testified that the Pirolhs
fired them upon learning of their union activities. This is
particularly probable in the light of Pirolli, Sr.'s great
antipathy toward the Union, as disclosed by the record,19
and the highly charged emotional temperament of Pirolli,
Sr.20 Given this state of affairs-of some eight or nine
employees leaving the Company' s premises , with about 20
orders to deliver-I believe it highly unlikely that Pirolli,
Sr., would have spoken only to Di Luzio in attempting to
ascertain facts or entice the employees to remain at work.
Moreover, in assessing the credibility of the testimony with
respect to what occurred in the yard of the Respondent on
the morning of November 12, I have given considerable
weight to the failure of Respondent to call as a witness its
supervisor and agent, William Qualters, to testify at this
hearing inasmuch as he was intricately involved in much of
the activity and many of the conversations that morning.
Under these circumstances, I am not only crediting the
uncontradicted testimony of employees who attributed
certain remarks to Qualters, but I am also inferring that had
Qualters been called as the witness, his testimony would
have been adverse to the interest of Respondent.21
It is true , of course, as Respondent argues, that there is
some evidence in the record in support of its contention
that the employees planned and executed a walkout or a
strike on the occurrence of any adverse conduct on the part
of Pirolli, Sr., to their union organizational activity.
However, such evidence as there is is quite scanty and
insubstantial when compared to the mass of evidence
proferred by the counsel for General Counsel that the
employees were in fact discharged. I have also considered
as being entirely possible the circumstance that, while a few
of the employees may have planned in advance to walk out
if Pirolli discharged one of their number, Pirolh, Sr., may
well have disrupted such plan by first discharging all who
had signed union cards.
Respondent also contends that I should discredit the
testimony of employee witnesses who testified, in sub-
stance, that Pirolli, Jr., stated several times in the yard that
morning that anyone who signed union cards were
automatically fired since Pirolli, Jr., testified that he was
not present in the yard from approximately 7:30 until 8
a.m. due to his being on an errand to the East Watertown
Cement Block Company. However, in addition to demean-
or considerations, his candor and truthfulness were
18 Universal Camera Corporation v. N.LR B., 340 U.S. 474,496
19 In addition to the other evidence heremabove set forth, Cleary
testified that Pirolh, Sr., told him in August that "he had beaten the Union
once before and that if they tried again, he could beat them." Mark Lynch
testified that on one occasion when Pirolli, Sr., was taking ham to the
registry to get his license , he stated that unions were no good and that,
since the employees were getting paid close to union rate, "there would be
no sense in going union "
20 Even the brief of Respondent notes this particular trait of its
president (Resp. br. p. 17). And Pirolli, Sr., testified that "by that time (9
a.m. on November 12) we were all kind of nerved up." See also testimony
considerably impaired by the following answers to
questions concerning the nature of the "cards" concerning
which he was admittedly interrogating the employees:
Q. Now, when you asked employees whether they
signed a card did you indicate what kind of card you
were speaking about?
A. No, sir. I didn't know what card they had signed.
The old man said-his exact words were, "They have
signed cards. They are leaving., Find out who is staying
of the people who have signed cards the people who
haven't signed cards."
Q. Do you know what type of cards you[r] father
was referring to at that moment, sir?
A. At that moment, no. At that moment it
happened too fast to know what kind of card.
TRIAL EXAMINER: Did you know that they were
Union cards?
THE WITNESS: No, sir. Not at the time.
TRIAL EXAMINER: What sort of card did he
mean?
THE WITNESS: He had mentioned to me that they
had signed cards.
TRIAL EXAMINER: But he didn't say "Union
cards"?
THE WITNESS: He didn't come out and say
"Union cards." He said, "cards", and I just went out
and asked had they signed cards.
TRIAL EXAMINER: Well, did you know what sort
of cards you were asking about?
THE WITNESS: Not at the time, sir.
The foregoing testimony is, in my view, highly incredible
and taints other testimony of this witness as respects his
activities that morning. Moreover, I do not consider that
the testimony of Paul lanazzi of the East Watertown
Cement Block Company substantially corroborates Pirolli,
Jr., as to the exact time he was at the Block Company's
premises. lanazzi's testimony was based not on a timeclock
but rather on his estimate of the time it usually takes to load
a truck. Finally, I have also considered that the testimony
of Paul lanazzi was proffered in violation of the rule
handed down at the beginning of the hearing requiring
sequestration of witnesses. While I have no doubt that such
was an inadvertance on the part of the counsel for
Respondent, nevertheless, I find that Paul Ianazzi's
testimony did constitute an infraction of that rule and I
have therefore given it little, if any, weight.
Accordingly, in the light of all of the foregoing, I find and
conclude that the Respondent did, on the morning of
November 12, discriminatorily discharge the following
named employees because of their union activities, and I
will recommend an appropriate remedy.22
of Morrissey who stated, " it surprised me that he blew his top and fired
me-you know I wouldn't say I didn' t expect it , but it just
happened-bmg."
21 See II Wigmore , Evidence §§ 285, 290 (3d ed.); Interstate Circuit, Inc.,
et al. v. U.S., 306 U.S. 208, 225, 226 (1939); N.L.RB. v. A P W. Products
Company, 316 F 2d 899,903 (C.A. 2, 1963); N.LR B. v. Wallick & Schwalm
Co., 198 F.2d 477, 483 (C.A. 3, 1952), see also 5 ALR 2d 893, 896, 909-911
22 The employees are: David Anderson, Lawrence Brophy, Windsor
Bruce, Paul Cleary, Paul Di Luzio, Raffaele Franciosa, Ronald lanazzi,
Joseph Lynch, Philip Malkasian, Robert Morrissey, and Leslie Poor.
M. J. PIROLLI & SONS 247
C. Events Following the Discharges; the Offer of
Reinstatement
As previously noted, the discharged employees, under the
sponsorship of the Union, established a picket line about
the Respondent's premises at approximately 11 a.m. on
November 12. The record reflects that during the initial
stages of the picketing, the picketers and the Pirollis
exchanged a number of uncomplimentary epitaphs and
threats. There was, for example, testimony that on the
afternoon of November 12, Pirolli, Sr., threatened the
pickets that if they stepped foot on his property he would
shoot them.23 Pirolli testified that on the morning of
November 12 his wife had received an anonymous,
threatening telephone call which irritated him; that about 1
p.m. that day he advised the picketers that they had gone a
little too far in threatening to cut the tires on his truck,24
and bothering his wife; and that if he caught any of them
on his property at night to do damage to his trucks he
would shoot first and ask questions later.
On November 25, Pirolli, Sr., sent all of the employees
named in footnote 22, above, a telegram containing the
following message:
You are hereby unconditionally offered reinstatement
by M. J. Pirolli and Sons Inc. to your former position
without loss of seniority or benefits.
M. J. PIROLLI
It is the position of the General Counsel that such
telegram did not constitute an unconditional offer of
reinstatement because of a statement allegedly made by
Pirolli, Sr., on the picket line shortly after the telegram was
sent. It is also the position of counsel for the General
Counsel and counsel for the Charging Party that, m
addition, the discharged employees were privileged not to
comply with the offer because of the threats of personal
injury, should the employees come on their property, made
by the Pirollis, as hereinabove set forth. We now proceed to
a consideration of the evidence respecting this issue.
The record reflects that on the Saturday following the
transmission of the telegram , there was a conversation
between Pirolli, Sr., and Americo Pasquale, the union
representative on the picket line, with reference to the
telegram. According to Pasquale, Pirolli stated that the
fellows received a telegram and that they could come back
to work "any god damn time" they wanted but when they
did they were going to be fired. Pirolli testified that
Pasquale raised the issue of the telegram and accused Pirolli
of utilizing it merely as a "legal loophole," i.e., as means of
cutting off backpay. Pirolli denied that that was so and
stated, "look, if they want to come back to work, let them
come back to work."
Some of the employees who were standing nearby
apparently overheard some parts of the conversation, but
their testimony on this point is quite vague and ambiguous.
For example, Robert Morrissey testified that he heard
Pirolli, Sr., say that no matter what the telegram said "none
of you bastards will work for me, or stay with me, or some
sort of thing." David Anderson testified that Pirolli said, "I
don't care what fellows come back. None of them would
last a week or two." Ronald Ianazzi 's testimony is to the
same effect.
Paul Di Luzio testified that he never did receive the
telegram although, as the record reflects (G.C. Exh. 5(a)),
his name was at the top of the list of the telegrams to be
sent. In any event, 2 or 3 weeks later he advised Pirolli, Sr.,
that he never received one and the latter showed him a copy
of it with Di Luzio's name on it. Whereupon, Pirolli made
the statement that it was no matter, "you know why I sent
them telegrams out. Just let them come back , they'll
probably last 2 or 3 weeks."
The record also reflects that, aside from the telegram,
there were some conversations between the Respondent's
agents on the one hand and the employees on the other
respecting the latters' returning to work. Thus Pirolli, Sr.,
testified that the first such conversation occurred with Paul
Cleary whom he met while the latter was working at the
Plasti-Crete Company. Pirolli said that he understood that
Cleary was interested in coming back to work but the latter
said that he was not at that time-that he was happy where
he was. Cleary testified that he did not return to work
immediately because of the threat that Pirolli made on
November 12, to wit, that if he ever came back on the
property Pirolli would shoot him. He agreed that Pirolli
offered him his job back sometime in December after
Cleary commenced working for the Plasti-Crete Company.
Pirolli, Sr., testified that he received a telephone call from
Windsor Bruce requesting to come back to work and Pirolli
told him to come down and talk with him about it; that
Bruce did come down and Pirolli hired him and he is still
working for the Company; that about a week or two later,
Larry Brophy called him and advised that he was "fed up
with the Union" and asked for his job back;.that he told
Brophy to come down and see him; that Brophy started to
work immediately and is still working there. Brophy
testified that he received the telegram offering him
reinstatement around November 25 but that he did not
return to his job at that time; that he did, near the latter
part of December, call Pirolli and ask him if he could have
his job back; that Pirolli told him to come down to his
office and they would talk about it; that he did that and
Pirolli asked him why he waited so long after receiving the
telegram to come back, to which Brophy replied as follows:
THE WITNESS: What did I tell him? Well, the
hunting season was on and at the time I really didn't
need money, so I didn't feel I should go back to work.
And there were people still picketing out there and I felt
rather bad about going back to work if anybody was
picketing. That's substantially what I said.
TRIAL EXAMINER: Then, what did he say?
THE WITNESS: He just told me I could have my
old job back, if I wanted the job back, and I was willing
to work, then I could have the job.
23 It was stipulated that Pirolh , Sr., in addition to his building materials
business , was also a licensed dealer in firearms and kept a supply of guns
and pistols on the premises . There is also testimony that Pirolli, Jr., and
some of the employees had, in the past, shot rats on the premises from time
to time.
24 Apparently, Pirolh had heard from Paul Ianazzi that on November 10
one of Pirolli's drivers (Bob Morrissey) had advised Ianazzi to be careful
with his trucks for cut tires and nails.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER: And you said- -
THE WITNESS: That I was willing to work and that
I wanted the job.
TRIAL EXAMINER: Did he tell you when to come
in?
THE WITNESS: Yes. I started work then.
TRIAL EXAMINER: Right then and there?
THE WITNESS: Yes.
TRIAL EXAMINER: All right.
Q. (By Mr. Kelleher) And you've worked there up
to the present. Is that correct?
A. Yes.
Pirolli testified that 2 or 3 days later he received a
telephone call from Joseph Lynch who wanted to come
back to work; that Lynch came down to see him and that
Pirolli hired him; however, Lynch only worked 1 day and
never came back. According to Pirolli's testimony, he
understood that Lynch went into the service.25
Pirolli testified that David Anderson called him the first
week in January to inquire about his W-2 (statement of
earnings) form, and also commented that he understood
that Pirolli had rehired Bruce and Brophy. Pirolli inquired
when Anderson wanted to come back to work and,
according to Pirolli's testimony, Anderson replied that he
could not come back that week because he was going to
have his teeth extracted. Pirolli said to let him know when
he wanted to return but that he did not hear from Anderson
any more. Anderson acknowledged that he called Pirolli
pertaining to his tax forms and that Pirolli started to tell
him about Lynch and Cleary going back to work for him
and asked Anderson, "how about you." Anderson testified
that he responded as follows: "Yes, if the money was right
and I got what I wanted and I didn't have to work on
freight cars. And then he [Pirolli] said, `all right, I'll call you
Monday,' " but Anderson never heard from him.
The record reflects that shortly after the sending of the
telegram offering reinstatement, employee Richard Cabelus
(who had not signed a union card and who had remained in
the employ of Respondent) met Ronald lanazzi, Richard
Malkasian, and Raffaele Franciosa at a cleaning establish-
ment and they indicated to him that they wished to return
to work. Cabelus advised them to go down and see Pirolh,
Sr.-that Cabelus "[knew] he'll take you back. Just go
down and see him." However, the three requested Cabelus
to talk to Pirolli, Sr., for them and Cabelus agreed to do so.
Cabelus then talked to Pirolli who told Cabelus to have
them come and see him the following Monday, which
message Cabelus passed on to lanazzi. However, the latter,
according to Cabelus' testimony, stated "I don't want to go
up there. Have him come down and see us." Cabelus said
he did not want to be the middleman and dropped out of
the picture. The short of the situation is that the employees
did not go in to see Pirolli, Sr., and, as Pirolli testified, if
they wanted their jobs back they were available but he was
25 Lynch did not appear as a witness at the hearing.
26 Credited testimony of Morrissey and Anderson. Pasquale was not
impressive as a witness and his testimony, to the extent that it differs from
that of the other employees, is not credited
27 See, e.g., testimony of Brophy. I consider in the same category the
reluctance of Malkasian, Ianazzs, and Franciosa to go into the premises to
speak to Pirolli, Sr, directly.
28 It appears that Poor did not receive the telegram until approximately
not "going all over the square looking for them." Franciosa
testified that, not having heard from Pirolli on Monday, he
called Respondent's office from a pay telephone the
following day (with Ronald Ianazzi and Malkasian
standing by); that he talked to Qualters who told him that
Pirolli, Sr., was not there; that Franciosa advised that he
had received a telegram to go back to work to which
Qualters replied.that "if we don't see you on the picket line
for about 3 weeks period of time that we might call you."
Analysis and Concluding Findings as to the Offers
of Reinstatement
It would seem (and I do not understand counsel for the
General Counsel or counsel for the Charging Party to claim
otherwise) that the November 25 telegram of Respondent
to the employees constituted, on its face, a valid offer of
reinstatement. Under these circumstances, it would seem to
require clear and convincing proof that the offer did not
mean what it purported to convey. In my view, the record
evidence in this case does not rise to that standard.
The record reflects that the telegram was sent by Pirolli,
Sr., in the context of some abortive settlement negotiations
attempted as a result of the charges filed, in this case.
However, that fact, of course, does not detract from the
effectiveness of the offer. What did detract from its
effectiveness was the statement of Pirolli, Sr., on the picket
line to the effect that the employees would not stay with the
Company even if they accepted the offer.26 This rather
ambiguous statement could be interpreted to mean that the
employees would not come back or "stay" unless they had a
union. Moreover, whatever was stated on the picket line,
the fact remains that three employees (Brophy, Joseph
Lynch, and Bruce) did respond to the telegram and were
reinstated. Another (Cleary), according to his own
testimony, was offered-and declined-an offer of reins-
tatement by Pirolli, Sr. Anderson acknowledged the oral
offer but attempted to attach conditions of his own as a
prerequisite to returning to work. These facts certainly
confirm the good faith of the offer and tend to negate the
assertions of some of the employees that they were fearful
of returning because of the threats made by the Pirollis on
the first day of the picketing and/or the conversation
between Pirolli, Sr., and Pasquale hereinabove referred to.
Finally, I have considered, as was intimated by some of the
testimony, that so long as the employees were picketing,
none of them wanted to break the bond and cross the picket
line.27
Accordingly, I find and conclude that the telegram sent
by the Respondent on November 25 constituted a valid and
binding offer of reinstatement to the named employees and
I shall not require, in my recommended Order, that
Respondent make a new offer of reinstatement 28
2 weeks after the other men received theirs; however, he conceded
receiving such a telegram from Pirolli offering unconditional reinstatement
to his prior position with full benefits and rights , but he never responded to
the telegram Di Luzio also contended that he did not receive the telegram
although his name appeared on the list of employees to whom it was sent.
However, he testified that after advising Pirolli, Sr, of the fact, Pirolh
showed him a copy, thereby fulfilling Respondent's obligation to him in
this respect.
M. J. PIROLLI & SONS 249
D. The Alleged Refusal To Bargain
The complaint alleges that the following constitutes a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All truck drivers, warehousemen and yardmen em-
ployed by Respondent at its Watertown, Massachusetts
location, but excluding all other employees, office
clerical employees, professional employees, guards and
supervisors as defined in Section 2(11) of the Act.
Respondent does not contest the composition of the unit
but rather contends that the Union did not represent a
majority of its employees in said unit at the time the Union
made its request for bargaining, as hereinabove
described.29 Since the Respondent's weekly payroll period
runs from Thursday through the following Wednesday, the
appropriate payroll period for determining majority status
in this case is that payroll period ending November 19,
which is incorporated in the record herein as Respondent's
Exhibit 1. On that payroll a total of 28 names appeared;
however, it is noteworthy that the last 8 names are
separated from the first 20 by a space. It is a reasonable
inference that such separation indicates a difference in
function and relationship of the latter 8 from the first 20
who, the record reflects, work either as truckdrivers or
yardmen. Thus, two of the eight (Pirolli, Sr., and Qualters)
are conceded supervisors and therefore excluded from the
unit; three of the eight (Hagopian, Walker, and Carmel) are
office clerical employees and likewise excluded from the
unit. The remaining three (Michael, Robert, and John
Pirolli) are sons of Pirolli, Sr. Michael P. (Pirolli, Jr.) is
alleged in the complaint to be a Section 2(11) supervisor.
The evidence showed, in essence, that he works full time at
the Company's premises performing all of the jobs that the
rank-and-file employees normally perform; that is, he
drives and loads trucks, performs maintenance functions
when needed, waits on customers, etc. However, he is,
unlike the other rank-and-file employees (except Duggan),
paid on a salary basis and is apparently the only employee
who fills in for Dispatcher Qualters while-the latter is at
lunch. He has no authority to hire and fire, but on one
occasion did recommend a friend (Joseph Duggan) to his
father for hiring and Duggan was hired. Unlike the other
employees, Pirolli, Jr., does not punch a timecard and he
concededly has taught some of the other employees how to
perform their jobs and directs them in their work. However,
such directions usually are instructions to give preference to
one customer over another with respect to delivering
orders. Nevertheless, it is clear that the employees consider
the directions of Pirolli, Jr., to be tantamount to those of
Pirolli, Sr., in view of the filial relationship. Under all
circumstances, I find the situation here to be essentially the
same as that described in the case of Everett L. Harper, A
Sole Proprietorship,30 where the Trial Examiner (affirmed
by the Board), after finding the son in that case to be a
supervisor within the meaning of Section 2(11) of the Act,
stated:
Moreover, in view of [the son's ] relationship to the sole
owner of Respondent, the small size of the work force,
and the similarity of his concurrent statements regard-
mg the Union to those of his father, I find that the
employees were given reason to believe that [the son]
was speaking for management and that he was in fact
acting as a management agent (citing cases). I therefore
find that Respondent is responsible for the statements
and conduct of [the son] 31
Based upon all of the foregoing, I find and conclude that
Pirolli, Jr., is excluded from the bargaining unit and that
Respondent is responsible for his 8(a)(1) conduct described
above.
The record reflects that Robert Pirolh is the son of Pirolli,
Sr.; that he attends high school and works for the
Respondent after school hours and all day Saturday; that
he operates the forklift truck and performs duties both in
the yard and on the trucks. However, unlike other
employees, he is paid a salary of $40 per week whether he
works or not. The other son, John, is in college and works
for the Respondent when he is home on vacation. Although
he had not, in fact, worked for Respondent since the end of
summer vacation until November 12, he was nevertheless
carried on Respondent's payroll during the weeks ending
October 29, November 5, November 12, and November 19,
at a salary of $80 per week. When he is working during the
vacation periods, John helps Dispatcher Qualters in
shipping and in the office.
None of the sons of Pirolli, Sr., hold any office in the
corporation nor do they own any stock therein. Although it,
is not entirely clear in the record, it appears that Pirolli, Sr.,
owns all or substantially all of the stock. Under these
circumstances, I find and conclude that all- of the sons
should be excluded from the unit as "an individual
employed by his parent" within the meaning of Section 2(3)
of the Act.32
Although his name does not appear on Respondent's
payroll, the Respondent would include in the unit as a
regular part-time employee one David Cohen. It appears
that Cohen, who is employed regularly by a business forms
company, works for the Respondent usually on Saturdays
and occasionally for a few hours during the week if he has
time available. When working for the Respondent, he
drives a truck and performs duties in the yard, for which he
is paid $3 per hour in cash. Although he testified that he has
been performing work on this basis for Respondent since
August 1968, Respondent has no records of the number of
hours he worked there. It is noteworthy that the Respon-
dent never called Cohen to come in to work; rather, Cohen
appeared when he had time and if Pirolli, Sr., did not have
work for him to do, Cohen would leave.
On the basis of all of the foregoing, I find and conclude
Cohen to be a casual or irregular part-time employee and,
therefore, under established Board policy, excluded from
the unit.33
Respondent contends that three of the card signers
(Ronald lanazzi, Philip Malkasian, and Raffaele Francio-
29 It will be recalled that the Respondent refused the letter containing consequences. See Foam Rubber City #2 of Florida, Inc., d/b/a Scand,a,
such request on Friday, November 13. 167 NLRB 623.
30 169 NLRB 320 32 See Printing Industry of Delaware, 131 NLRB 1100, 1103; Bridgeton
31 Id at 324. The fact that the Respondent here is a closely held family Transit, 123 NLRB 1196, 1197.
corporation rather than a sole proprietorship does not alter the legal 33 See Haag Drug Company, Incorporated, 146 NLRB 798, 800; Mrs.
(Continued)
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sa) should not be counted in determining the Union's
majority status because they were "temporary" employees.
The evidence shows that Ianazzi commenced working for
the Respondent in May 1970, and he conceded that in his
employment interview with Pirolli, Sr., he advised that he
intended to return to college in December. However, he
also testified that he would continue to work part time after
he commenced classes if Pirolli would allow that.
Malkasian conceded that when he was hired on November
3, he advised Pirolli that he was trying to get into the state
police force and that he only expected to work for the
Respondent until he got a job with the state police.
However he was required to take a test and he did not pass
the test. Franciosa testified that at the time he commenced
work for the Respondent in October, he told Qualters (who
hired him) that he would "probably just work until spring
and he agreed to that."
The test of whether an employee should be considered
"temporary" and therefore excluded from the unit appears
to have been set forth by the Board in E. H. Sargent and
Company.34 In that case, a student was hired in August and
quit his employment the following February. In his
employment interview, the student advised the company
that "he wanted a job in order to earn enough money to
return to school, and that he had every hope of starting
school again at the second semester around February 1
... " The Board concluded that, "although it is true that
[the student] did not intend to remain permanently with the
Respondent, it does not appear that his arrangement with
[Respondent] imposed any definite terminal date upon his
employment. Neither in August nor in October, when he
authorized the Union as his bargaining agent, could his
expressed `hope' to return to school in February be equated
to any certamty that he would accumulate sufficient funds
to accomplish his desire." 35
Applying the foregoing test to the facts in the instant
case, it is clear that the arrangement between Respondent
and Malkasian and Franciosa imposed no definite terminal
dates upon their employment. Although it appears that
Ronald Ianazzi's arrangement may have imposed a more
definite terminal date, I find it unnecessary to make that
particular determination since even if he were excluded, the
Union would still represent a clear majority (11 out of 19 in
the unit).36
Accordingly I find and conclude that as of November 13,
Alma Doran, d/b/a Doran Nut Sales Company, 102 NLRB 1437, 1438;
Blade-Tribune Publishing Company, 161 NLRB 1512, 1520, reversed on
other grounds 180 NLRB No. 56.
34 99 NLRB 1318, 1320
35 Id at 1320
36 Also compare the testimony of Pirolh, Sr., who stated that he hired
Joseph Duggan on a salary basis because "he was only going to be part
time. He was waiting for another job to go to. This man has a major in
mathematics and he was teaching school and he had approximately a
month or two or three months that he didn't have much work, so we gave
him a job and we paid him on a salary basis " Thus it appears that Duggan
might be considered as "temporary" as lanazzi.
37 The Board's finding of 8(a)(5) violation in the latter case was reversed
by the Court of Appeals for the Seventh Circuit (416 F.2d 601, 606,
October 9, 1969) on the ground that "the unopened registered letter
containing a demand to bargain, which was validly refused pursuant to a
company policy, was not sufficient to convey a clear demand to bargain."
Here, Pirolli, Sr, made abundantly clear that he did not refuse the Union's
the Union represented a majority of the Respondent's
employees in an appropriate unit.
There remains the question whether Respondent unlaw-
fully refused to bargain pursuant to the Union's request.
Respondent argues (p. 33 of its brief) that "a refusal to
bargain cannot occur until the employer either receives the
demand for bargaining or sends a reply to such demand,
citing Allegheny Pepsi-Cola Bottling Company v. N.L.RB.,
[312 F.2d 529] 52 LRRM 2019 (3rd Circuit, 1962) and
N.L.R.B. v. Burton-Dixie Corporation, [210 F.2d 199] 33
LRRM 2483 (10th Circuit, 1954)." However those cases are
not in point because there, unlike here, the company did
not abruptly refuse the communication from the union.
Clearly, an employer may not escape his duty under the Act
by refusing to receive a communication from the union in
the ordinary course of business. See N.L.RB. v. Columbian
Enameling & Stamping Co., Inc., 306 U.S. 292, 297; Quick
Shop Markets, Inc., 168 NLRB 180, 188 37
As found above, the Respondent, upon learning that a
large number of its employees had signed union cards,
embarked upon a campaign of extensive and flagrant
unfair labor practices including threats of reprisal and
discharge of the employees who had joined the Union. One
would be hard pressed to imagine conduct which is more
antithetical to the collective-bargaining principle, and
obviously rendered nugatory any opportunity to resolve the
representation question through the processes of an NLRB-
conducted election. Accordingly, I will recommend that the
Respondent be ordered to bargain with the Union at its
request as the exclusive collective-bargaining representative
of its employees in the aforesaid unit 38
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section iii,
above, occurring in connection with the Respondent's
operations described in section i, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
It having been found that Respondent commited certain
unfair labor practices, it must be ordered to cease and desist
letter pursuant to any general company policy but specifically because the
envelope on this particular letter reflected that it emanated from the
Union.
38 N.L.R B. v. Gissel Packing Company, 395 U.S. 575, United Packing
Company of Iowa, Inc., 187 NLRB No. 132, George J Roberts & Sons, Inc.,
d/b/a The Roberts' Press, 188 NLRB No. 51.
At the hearing, Respondent sought to introduce evidence of union
misconduct on and off the picket line for the purpose of barring a
bargaining order should the Trial Examiner find an 8(aX5) violation. World
Carpets of New York, Inc., 188 NLRB No. 10, and cases cited. In my view,
the evidence sought to be adduced at that time would had been premature
and speculative inasmuch as I had not determined whether a violation had
occurred. Accordingly, I allowed the Respondent to make a full and
complete offer of proof respecting the evidence sought to be offered on this
issue. After hearing such offer, I was of the opinion at that time, and
remain of the opinion, that the evidence does not rise to the standard, and
was of not such a nature, as to deny to the Union a remedial order
requiring the Respondent to bargain therewith.
M. J. PIROLLI & SONS
from engaging further in such conduct and to take remedial
actions designed to effectuate the policies of the Act. The
Respondent unlawfully refused to bargain with the Union
on demand; accordingly, it must be ordered to bargain with
that Union, in the unit found appropriate, upon demand,
and in the event an agreement is reached to embody such
understanding in a signed agreement. It having been found
that Respondent unlawfully discriminated against its
employees by discharging them, it must be ordered to
reinstate them (to the extent it has not already done so), and
make them whole for any loss of earnings they have
suffered in consequence of the unlawful discrimination in
the manner prescribed by the Board in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
Respondent's unfair labor practices indicate a general
attitude of opposition to the purposes of the Act.
Accordingly, a broad cease-and-desist order is necessary
and appropriate to effectuate the policies of the Act.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. M. J. Pirolli & Sons, Inc., Respondent herein, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Teamsters Local Union No. 379, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All truck drivers, warehousemen and yardman
employed by Respondent at its Watertown, Massachusetts,
location, excluding all other employees, office clerical
employees, professional employees, guards and supervisors
as defined in Section 2(11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. The Union was, on November 7, 1970, and at all
times thereafter has been, the exclusive collective-bargain-
ing representative of the Respondent's employees in the
aforesaid appropriate unit within the meaning of Section
9(a) of the Act.
5. By refusing to bargain with the Union as the
collective-bargaining representative of its employees in an
appropriate unit, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By discriminating against Mark J. Lynch, David
Anderson, Lawrence Brophy, Windsor Bruce, Paul Cleary,
Paul Di Luzio, Raffaele Franciosa, Ronald M. Ianazzi,
Joseph Lynch, Philip Malkasian, Robert Morrissey, and
Leslie Poor, the Respondent has engaged in conduct to
discourage membership in the Union in violation of Section
8(a)(3) and (1) of the Act.
7. By the foregoing conduct, by coercively interrogating
employees concerning their activities, by threatening
reprisals for joining the Union, Respondent has engaged in,
39 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
251
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 39
ORDER
M. J. Pirolli & Sons, Inc., its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Teamsters Local Union 379, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of its
employees in the aforesaid appropriate unit.
(b) Discharging or otherwise discriminating against its
employees because of their union membership and
activities.
(c) Coercively interrogating employees concerning their
union activities, threatening reprisals for joining the Union
or engaging in union activities, or in any other manner
interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to form, join,
or assist any labor organization, to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit described above with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is
reached embody such understanding in a signed agreement.
(b) Offer to Mark J. Lynch immediate, full, and
unconditional reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him and the
employees named below whole for any loss of pay which
they may have suffered as a result of the discrimination
against them in the manner set forth in that portion of this
Decision entitled "The Remedy": David Anderson,
Lawrence Brophy, Windsor Bruce, Paul Cleary, Paul Di
Luzio, Raffaele Franciosa, Ronald Ianazzi, Joseph Lynch,
Philip Malkasian, Robert Morrissey, and Leslie Poor.
(c) Notify immediately Mark J. Lynch, if presently
serving in the Armed Forces of the United States, of his
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.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
Section 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its premises in Watertown , Massachusetts,
copies of the attached notice marked "Appendix." 40 Copies
of said notice , on forms provided by the Regional Director
for Region 1, after being duly signed by the Respondent's
representative , shall be posted by the Respondent immedi-
ately upon receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify said Regional Director , in writing, within 20
days from the receipt of this Decision , what steps have been
taken to comply herewith 41
IT IS FURTHER RECOMMENDED that the allegations of the
complaint be dismissed in all respects other than those
found to have been sustained in the above findings and
conclusions.
40 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of The United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
41 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 1, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with
Teamsters Local Union 379, a/w International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, as the exclusive representative of
the employees in the bargaining unit described below.
WE WILL bargain collectively, upon request , with this
Union as the exclusive representative of all our
employees in the bargaining unit described below with
respect to rates of pay , wages, hours of employment,
and other terms and conditions of employment, and if
an understanding is reached embody such understand-
ing in a signed agreement.
The bargaining unit is:
All truck drivers , warehousemen and yardmen
excluding all other employees , office clerical
employees , professional employees, guards and
supervisors as defined in the Act.
WE WILL NOT discharge or otherwise discriminate
against employees because of their union membership,
activities , or sympathies.
WE WILL NOT coercively interrogate employees
concerning their union activities.
WE WILL NOT threaten our employees with reprisals if
they join the Union or otherwise engage in union
activities.
WE WILL NOT in any manner interfere with , restrain,
or coerce our employees in the exercise of their right to
self-organization, to form , join, or assist any labor
organization, to bargain collectively through represent-
atives of their own choosing , and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL offer Mark Lynch immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other
rights and privileges , and make him whole for all losses
he may have suffered by reason of our discrimination
against him.
WE WILL make whole the employees named below
for any loss of pay which they may have suffered as a
result of the discrimination against them:
David Anderson Raffaele Franciosa
Lawrence Brophy Ronald lanazzi
Windsor Bruce Joseph Lynch
Paul Cleary Philip Malkasian
Paul Di Luzio Robert Morrissey
Leslie Poor
Dated By
M. J. PIROLLI & SONS,
INC.
(Employer)
(Representative) (Title)
We will notify Mark Lynch , if presently serving in the
Armed Forces of the United States, of his 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 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office,
Bulfinch Building, 15 New Chardon Street, Boston,
Massachusetts 02114, Telephone 617-223-3330.