New York Sheet Metal Works, Inc.

National Labor Relations Board - Board Decisions

Aug 2, 1979

243 N.L.R.B. 967 (N.L.R.B. 1979)

NEW YORK SHEET METAL. WORKS. INC
New York Sheet Metal Works, Inc. and Leo T. Leo-
nelli. Case 29 CA-5685
August 2, 1979
Thus. the Board has considered the record and the
attached Decision of the Administrative Law Judge
in light of the exceptions and brief and has decided to
affirm the rulings,3 findings.4 and conclusions of the
Administrative Law Judge and to adopt his recom-
mended Order.
DECISION AND ORDER
ORDER
BY MEMBERS PENEI.()O, MURPHY. AND TRUFSDAI.E
On November 14, 1978, the National Labor Rela-
tions Board issued an Order' in the above-entitled
proceeding in which it rejected Respondent's excep-
tions as untimely submitted pursuant to Section
102.46(a) of the National Labor Relations Board
Rules and Regulations, Series 8, as amended. In ac-
cordance with Section 10(c) of the National Labor
Relations Act, as amended, and Section 102.48 of the
Board's Rules and Regulations, the Board therefore
adopted, pro forma, the findings and conclusions of
the Administrative Law Judge and ordered Respon-
dent to take the action set forth in his recommended
Order. Thereafter, on December 12, 1978, the Board
denied Respondent's motion wherein it requested per-
mission to file its exceptions to the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has now decided, sua sponte, to recon-
sider its original Order herein, and to permit Respon-
dent to file its exceptions and brief for the reasons set
forth below.
Upon the issuance of the Administrative Law
Judge's Decision, the time for filing exceptions and
briefs was set for October 11, 1978.2 Respondent sub-
sequently requested an extension of time for filing ex-
ceptions to November 13. The Board granted the par-
ties an extension of time for filing exceptions to
October 20. On November 13, Respondent hand-de-
livered its exceptions and brief to the Board. Respon-
dent asserts, with supporting affidavits, that its coun-
sel did not receive notification of the Board's adverse
ruling in granting a limited filing extension to October
20. Inasmuch as there is no documentary evidence
that the Board's order granting an extension was ever
served on Respondent, we conclude that it would ef-
fectuate the policies of the Act to apply liberally our
filing deadlines in this case. Accordingly, we shall va-
cate our original Order herein of November 14 and
accept Respondent's exceptions and brief.
I Not reported in bound volumes of Board Decisions.
I All dates herein are in 1978 unless otherwise indicated.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, New York Sheet Metal
Works, Inc., Brooklyn, New York, its officers, agents.
successors, and assigns, shall take the action set forth
in the said recommended Order.
IT IS FURTHER ORDEREI) that the Order of Novem-
ber 14, 1978, in this proceeding be, and it hereby is
vacated.
3 Respondent has excepted to the Adminlmsratlse Law udge's denial to
Respondent ofan opportunity to impeach witnesses fr he General (iunsel
An examination of the designated portion of the record upon which reliance
is placed reveals no unfairness or prejudice in the denial. however. s -
spondent was attempting at this point in the hearing to impeach a Aitne-, on
an issue collateral to the unfair labor practices alleged It is well within the
discretionary authority of an administrative law judge at a Board hearing Io
apply the general evidentiar) limitation on impeachment f a witness on a
collateral matter. See 3 Wigmore. Evidence. § 001 (3d ed 14(0)
' Respondent has also excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's establishcd policy not to over-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance oif all of the relevant evidence convinces us that
the resolutions are incorrect Sandard Drv Itl/ Prducl, In., 91 NRB
544 (1950). enfd. 188 F.2d 362 (3d ('itr 19511 We have carefull examined
the record and find no basis for reversing his findings
DECISION
S1ATr-MFNT ()F rHE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge: On
June 3, 1977. Leo T. Leonelli. the Charging Party, filed an
unfair labor practice charge in Case 29-CA-5685' against
New York Sheet Metal Works, Inc.. Brooklyn. New York,
Respondent, alleging that Respondent had discharged Leo-
nelli because of his membership and activities on behalf of
Local 28, Sheet Metal Workers, a labor organization, and
now refuses to recall or reemploy Leonelli. On June 30.
1977, the Regional Director for Region 29 of the Board
issued a complaint alleging that on or about February 15.
1977, Respondent laid off Leonelli and has since failed and
refused to reinstate, or to offer to reinstate, him. Respon-
dent thereafter duly filed its answer denying the commis-
sion of unfair labor practices.
Pursuant to notice, a hearing was held before me in
Brooklyn. New York. on December 19. 1977. and on
I This case was originally consolidated with Case 29 CA 5556 On Sep-
tember 11, 1977. the charge in Case 29 CA 5556 was dismissed b) Order.
243 NLRB No. 135
967
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 13, 1978. All parties appeared at the hearing, and
were afforded full opportunity to participate, to introduce,
to meet material evidence, to examine and cross-examine
witnesses, to present oral argument, and to file briefs.
On the entire record in the case, including my observa-
tion of the witnesses and their demeanor. I make the follow-
ing:
FINDINGS OF FACT
I. URISDICTION; LABOR ORGANIZATION
Respondent is and has been at all times material a corpo-
ration duly organized under, and existing by virtue of, the
laws of the State of New York.
At all times material Respondent has maintained its prin-
cipal office, plant, and place of business at 161-3 17th
Street, Borough of Brooklyn, in the City and State of New
York, where it is engaged in the fabrication and installation
of ductwork for air conditioning systems and related prod-
ucts.
During the past year, Respondent purchased and re-
ceived goods and materials valued in excess of $50,000 from
enterprises located in the State of New York, which enter-
prises had received the said goods and materials in inter-
state commerce directly from other states.
During the past year, Respondent fabricated at its plant,
and installed at various sites in New York City, products
valued in excess of $50,000 which were furnished to, among
others, an enterprise which annually purchased and re-
ceived from outside the state of its location goods valued in
excess of $50,000.
The Respondent is, and at all material times has been, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Local Union No. 28, Sheet Metal Workers International
Association, AFL-CIO, is, and at all material times has
been, a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
Pursuant to its membership in the Sheet Metal and Air
Conditioning Contractors Association of New York City,
Inc., an association of employers, Respondent is a party to
a collective bargaining contract between the contractors as-
sociation and Local 28 effective July 16, 1975, to June 30,
1978. The contract provides, inter alia, that the regular
working day shall consist of 7 hours labor between 8 a.m.
and 3:30 p.m., and that the regular working week shall con-
sist of 5 consecutive 7-hour days beginning with Monday
and ending with Friday of each week. All labor performed
during these hours shall be recognized as regular time and
paid for at the regular hourly rates specified in the agree-
ment (art. VIII). The contract further provides a minimum
hourly wage rate, along with a procedure for trial before
Local 28 of any signatory employer paying less than the
prescribed wages, and imposition of a financial penalty
upon conviction. Financial penalty and other discipline
may also be imposed on a journeyman union member for
accepting less than the prescribed wages.
During 1975 and 1976, there was a substantial diminu-
tion of activity. and consequently employment. in the con-
struction and related trades in the New York area, a situ-
ation which affected Respondent.
Leo Leonelli, the Charging Party, was a journeyman
sheet metal worker with Respondent for a number of years.
He was also a working foreman at times, and was described
by Respondent's superintendent as a "valuable man."
Prior to October 1975. Respondent, in accordance with
the union contract, worked 7 hours a day, 5 days a week.
The General Counsel's evidence, denied by Respondent,
but supported by the credited testimony of a substantial
number of employees, is that beginning in October 1975.
apparently as a consequence of the reduction in business
and employment, Respondent introduced a system of pay-
ing employees only for 30 hours, though they worked 35. In
addition, at the end of the week the men were paid, not for
30 hours, but for 28. The remaining 2 hours were accumu-
lated in a reserve until a week when those hours, plus the 30
hours worked, equalled 35, and in that week the men were
paid for 35 hours.
So far as appears, this system was installed and main-
tained without the knowledge or acquiescence of Local 28.
In instituting the system, Respondent told the employees
that it was a consequence of the bad economic situation
and would continue until the economy got better. Though
dissatisfied, the employees apparently acquiesced in the ar-
rangement for a substantial period of time. However, in the
early spring of' March 1976, Leonelli began to complain
about the length of time that the system had been in exis-
tence, and began to press Respondent's officials for a com-
mitment as to when it would end. He was unsuccessful.
Some of these discussions were heated. The matter drifted
along until December 1976. In the interim, Leonelli contin-
ued to press Respondent's officials for a commitment as to
the termination of the program.
The matter finally came to a head early in December
1976, when Leonelli went to the office of Salvatore Rotun-
no, Respondent's president, On this occasion, Leonelli told
Rotunno that he no longer wished to work the 35-hour
week for 30 hours pay, and said that he wanted to work 28
hours for 28 hours pay. Leonelli's testimony as to this con-
versation, which took place in the presence of Respondent's
superintendent, Thomas Lupo, is undenied and credited.
Rotunno told Leonelli either to work as the others did or
"you quit." In response to Leonelli's question as to whether
that meant that he was fired, Rotunno said "no, you quit."
Leonelli thereupon returned to his work station. Shortly
afterward, Superintendent Lupo came to Leonelli and
asked Leonelli whether he was coming to work tomorrow.
Leonelli replied that if he did he was going to work 28
hours for 28 hours pay. Lupo replied "well, Leo, it looks
like you don't work here." Leonelli then left the premises
and was unemployed for 3 days.
In the intervening period, Leonelli contacted Local 28
business agent Carl Fiore. Leonelli explained the situation
to Fiore and told him that he had been working 35 hours a
week for 30 hours pay. Fiore then contacted Superinten-
dent Lupo and told him what Leonelli had said. Lupo de-
nied Leonelli's statement, telling Fiore that Leonelli had
been paid for all hours he had worked. During the conver-
968
NEW YORK SHEET METAL WORKS, INC.
sation. Superintendent Lupo agreed to reinstate Leonelli on
a 7-hour a day 4 day a week basis. Leonelli then returned to
work in accordance with that agreement. He thereafter
worked the 7-hour 4 day week and was paid for the full 28
hours. However the shop remained open for 5 days. and
other employees continued to work 35 hours for 30 hours
pay.'
Sometime after Leonelli's reinstatement, Respondent re-
quested permission of Local 28 to work a 6 hour day, rather
than the 7-hour day required by the contract. Local 28 de-
nied the request. Nevertheless, after the beginning of the
new year, 1977, Respondent notified the employees that it
would institute a new hour and pay procedure in the shop.
effective immediately, in which the employees would work
30 hours a week on 5-6 hour days, and would be paid for
the full 30 hours. Leonelli objected to such an arrangement,
and as a consequence that change was not effected. Upon
withdrawal of the plan. Respondent abolished the employ-
ees' coffee breaks. Respondent then instituted a 7-hour 4
day week of 28 hours for all employees.
On February 15, 1977, Respondent announced that it
was laying off all employees because of a shortage of cash
to meet the payroll, and that when it secured money the
men would be called back to work. Leonelli was among the
employees so notified. This was the first time that Leonelli
had ever lost work because of a layoff. However. Respon-
dent did not lay off all employees. Some were retained.
On February 17, 1977. learning that not all employees
had been laid off. Leonelli contacted ocal 28 Recording
Secretary Joseph Casey and informed him that Respondent
had been manipulating hours and pay of the employees.
Local 28 conducted an investigation, of which Respondent
was aware, took affidavits from the employees, and ulti-
mately held a trial on April 27. 1977. of Superintendent
Lupo, President Rotunno, and William Michaels, all three
being officials of Respondent and union members. At this
trial, employees testified to the pay practices heretofore de-
scribed. Rotunno and Lupo denied the charges: Michaels
did not appear. Rotunno, Lupo., and Michaels were found
guilty of paying employees on a basis other than that pro-
vided in the bargaining contract and the union rules. and
each was fined $750.
In the meantime, on April I, 1977, Raymond Arlotta
filed the unfair labor practice charge with the Board in Case
29-CA-5556 referred to in footnote 1. supra. alleging that
Respondent had discharged him on March 14. 1977. in vio-
lation of Section 8(aXI) and (3) of the Act. Sometime fol-
lowing the union trial of April 27, Superintendent Lupo
filed charges with Local 28 alleging, in sum, that Leonelli
had, in violation of union rules, worked for less than the
union scale for two employers, one of them Respondent.
2 Business agent Fiore also testified that, sometime later. employee Ray
Arlotta had told Local 28 that Respondent was paying Arlotta 30 hours
while working 35 and that on this occasion he (Fiore) believed that Local 28
had audited Respondent's books and found that Arlotta had been paid all
the hours he worked. Assuming that Fiore was not mistaken in his recollec-
tion. his testimony in this respect establishes no more than that, when in-
spected. Arlotta's payroll records showed that he was fully paid. Pay may be
in cash or by check. In any event, it will be seen that Respondent's officials,
who are union members, were tried by the Union on the 35-30 charges and
found guilty.
The motivation for this action of Lupo's was either that
Lupo considered Leonelli to be connected with Arlotta's
action in filing the unfair labor practice charge of April 1.
1977. or Leonelli's involvement in the union trial of Re-
spondent's officials--the record is not clear which.'
At a union trial on these charges in September 1977. Leo-
nelli was found guilty and fined $1.200.
The Recalls from Layoff
In the interim between the February 15 layoff and the
trial of Leonelli in September. a number of other events had
occurred.
About late February 1977. Respondent recalled the laid-
off employees, except for Leonelli. Respondent's evidence.
denied by Mrs. Leonelli. is that Mrs. Leonelli was told by
telephone that her husband should return to work. I credit
Mrs. Leonelli's testimony and find that eonelli was not
notified to return to work.
Since February 1977. Respondent has hired new employ-
ees in jobs Leonelli is qualified to fill.
Conclusions
The G(eneral Counsel contends that l.eonelli was not re-
called from layoff because of his actions in opposing Re-
spondent's wage practices and in bringing the matter to the
attention of ocal 28. I have found unsubstantiated Re-
spondent's contention that eonelli was in fact recalled. Re-
spondent also denies that Leonelli's concerted actiities
contributed to his separation, arguing that it was unaware
of Leonelli's February complaint to ocal 28 at the time
Leonelli was laid off. Respondent's contentions are negated
by a number of faclors.
In the first place. Respondent's defenses are conflicting
and inconsistent. Originally. Respondent's position was that
l eonelli was discharged because of lack of work, a position
not reconcilable with its final position that Leonelli was
recalled but failed to report to work. Indeed, Superinten-
dent Lupo's testimony is that the personnel action of Feb-
ruary 15. 1977, was not in fact a layoff, an assertion contra-
dicted by Rotunno. With respect to the asserted recall,
Respondent did not speak to Leonelli; its contention is lim-
ited to the claim that the message was given to his wife.
That testimony, not credited, seems inconsistent with Pres-
ident Rotunno's testimony to the effect that when Leonelli
was laid off he took his tools with him, leading Rotunno to
conclude that Leonelli did not wish to return to work for
Respondent. And. in explanation of Respondent's failure to
inquire of Leonelli as to why Leonelli had not returned,
Rotunno testified that he did not care and that he could get
Thus. Lupo's testimony:
"the way this started, Arlotta filed charges with the Nt.RB for what
he thought was just."
"In the interim we had a trial in Local 28 and I found Leonellh was
connected with this and from Iforl that I brought him up on charges in
the local."
"After he was brought up on charges, I think he figured him and
Arlotta had a good thing going. then he filed with the NLRB."
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any number of excellent mechanics at that time.4 With re-
spect to Respondent's contention that it had no knowledge
of Leonelli's complaint to Local 28 at the time of the layoff,
this is, of course, true, since Leonelli's union charges were
not filed until after the layoff. Quite apart from Respon-
dent's knowledge of Leonelli's activity about Respondent's
wage practices prior to the layoff, the fact that the layoff
preceded Leonelli's February complaint to Local 28 is
nonsequitur, since the issue is not whether Leonelli was law-
fully laid off but whether he was unlawfully not recalled. In
any event, Respondent was admittedly aware in February
1977, of Local 28's investigation, that its agents visited one
of Respondent's jobsites on February 22 to check records
and to question men about Respondent's wage practices.
and that Local 28 had summoned employees to the union
hall in early March where they gave affidavits concerning
the matter. We have seen that the testimony establishes that
Superintendent Lupo's union charges against Leonelli were
motivated either by Leonelli's complaint against Respon-
dent before Local 28. or by his later unfair labor practice
charge against the Respondent.
Leonelli was a skilled mechanic, a working foreman, an
admittedly valuable man, whose departure, in the words of
Respondent, was "a great loss to the Company."'
Respondent's actions after its asserted recall of Leonelli
are not consistent with the claim that it recalled him, or
with the admitted fact that he was a valuable employee.
For Respondent made no attempt to contact Leonelli per-
sonally when he did not return to work, nor did its officials
inquire of him on occasions thereafter when they encoun-
tered him as to the reason. In the circumstances. Rotunno's
explanation is simply not credible. Nor did Respondent call
Leonelli or inquire, when it was notified in March that Leo-
nelli had made a claim for unemployment compensation
asserting that he was unemployed by reason of layoff. Nor
is there indication that Respondent contested that claim-
an omission contrary to Respondent's interest if the facts
were as it now contends. In these circumstances the fact
that this was the first time that Leonelli had been laid off by
Respondent since he was hired acquires added significance.
While Leonelli did not specifically request reinstatement,
his reasonable and credited testimony is that after making a
number of trips to the plant and discovering that not every-
one had been laid off, and later, that those who had been
laid off had been recalled, except for himself, he "read the
handwriting on the wall," concluded that further effort was
futile, and ceased making any further effort.
Respondent contends that several of the new emloyees
whom Respondent hired after February 1977, are "high
workers," that is, they work in high places, and that Leo-
nelli could not do that work. The credited evidence is that
Leonelli has worked as high as 29-30 stories from both
scaffolds and bosun chairs and has never indicated hesita-
tion about high work. This contention of Respondent is
found unsubstantiated.
'4 He stated, "I could get the very best there were and I didn't have to he
concerned with one man who apparently didn't want to come back to work
because he picked up his tools and left. If he wanted to come back to work
with me he would have left his tools."
hAn attempt by President Rotunno, on cross-examinaiion. to minimize
those appraisals is not credited.
Respondent also contended that the grievance machinery
of the contract is available to dispose of Leonelli's case.
However, the availability of contractual machinery to re-
solve a dispute involving discrimination against an em-
ployee in the nature of unfair labor practices, is not a bar to
proceedings under the Act.
I conclude that Leonelli was not recalled to work after
being laid off in February 1977, because of his opposition to
Respondent's wage policies and procedures. Since that ac-
tivity related to a provision in a collective bargaining con-
tract, it was concerted within the meaning of Section 8(a)(l )
of the Act, as well as an activity in support of a labor or-
ganization. Thus, the failure to recall Leonelli was a viola-
tion of Section 8(a)(1) and (3) of the Act. In addition,
though it is unnecessary to the conclusion. I find that Re-
spondent was aware of Leonelli's complaint to Local 28 at
significant times, and that that was an additional factor
contributing to the failure to recall him.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in unfair labor practices in violation of
Section 8(a)(1) and (3) of the Act, it will be recommended
that Respondent cease and desist therefrom, and take cer-
tain affirmative action designed to effectuate the policies of
the Act.
It will be recommended that Respondent be ordered to
offer Leonelli immediate and full reinstatement to his for-
mer position without prejudice to his seniority or other
rights and benefits, and make him whole for any loss of pay
or benefits he may have suffered as a result of the discrimi-
nation against him, by reimbursing him for his wage losses
resulting therefrom, less his net earnings during such pe-
riod, with interest thereon to be computed in the manner
prescribed in F. W. Woolssorth (or;panv. 90 NLRB 289
(1950), and Florida Steel orporation, 231 NLRB 651
(1977). and other apposite Board policies.6
It will also be recommended that Respondent be ordered
to cease and desist from infringing in any manner upon the
rights guaranteed in 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 issue the following recommended:
ORDER'
New York Sheet Metal Works, Inc.. Brooklyn, New
York, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Failing or refusing to recall laid-off employees, or
otherwise discriminating against employees, because of
6 At the close of the hearing, it appeared that the Respondent was pre-
pared to reinstate Leonelli. The recommended Order allows for that contin-
gency. Obviously, the reinstatement is not evidence of Respondent's inno-
cence, anymore than it is an admission of its guilt.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, he adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
970
NIEW YORK SEll I M I A. WORKS. IN(C.
their union or concerted activities protected hby Section
8(a)( I ) and (3) of the Act.
(h) In an) other manner interfering with, restraining, or
coercing employees in the exercise of' the righs guaranteed
by Section 7 of the Act.
2. Take the following affirmative action which will effec-
tuate the policies of the Act:
(a) Offer to Leo . Leonelli, if it has not already done so,
immediate and full reinstatement to his former position
without prejudice to his seniority and other rights and privi-
leges. and make him whole for any loss of pay. earnings, or
benefits he may have suffered by reason of Respondent's
discrimination against him.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying all payroll
records, social security payment records, timecards. person-
nel records and reports. and all other records necessary to
facilitate the effectuation of the Order herein.
(c) Post at its plant and other sites of operation, copies of
the attached notice marked "Appendix."' Copies of' said
notice, on forms provided by the Regional Director for Re-
gion 29, after being duly signed by an authorized represent-
ative of Respondent. shall be posted by Respondent imme-
diately upon receipt thereof, and maintained by it for 60
consecutive days thereafter, in conspicuous places. includ-
ing all places where notices to employees are customarily
In the event that this Order is enforced h a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted b) Order of
the National l.ahr Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals nlfircing an Order of the Na-
tional Lahor Relations Board"
posted. Reasonable steps shall bhe taken hb the Respondent
to ensure that said notices are not altered. defaced, or co' -
ered hb aily other material.
(d) Notilf the Regional I)irector for Region 29'). in writ-
ing. within 20 dayts from the date of this Order. hihatl steps
Respondent has taken to comply herewith.
A'PI-N D)IX
Notl l I TO lmlit Otyi:I
P')(SI) BY ORI)I:R ()I 1111
N A I I)NAI A()OR RII A I )NS BOARD
An Agency of the United States Government
Wi- wii.l NOI fail or refuse to recall employees from
layofl or otherwise discriminate against them in order
to discourage membership in a labor organization. or
in order to discourage their engagement in concerted
activities protected by the National Labor Relations
Act.
Wl- Wil11 N()I in an' other manner interfere with.
restrain, or coerce employees in the exercise of their
rights guaranteed by the National L.abor Relations
Act.
WI will I offer l.eo 1. Leonelli immediate and full
reinstatement to his former position, without prejudice
to his seniority and other rights and privileges. and
make him whole ftor any loss of' pay. earnings. or bene-
tits. which he may have suffered by reason of the dis-
crimination against him, with interest thereon as pro-
vided hb the Board.
NlVN Y()RK SlitI I MFIAI WORKS. I(.
971