Paramount Metal & Finishing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1976

225 N.L.R.B. 464 (N.L.R.B. 1976)

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paramount Metal & Finishing Co ., Inc. and Para-
mount Plating Co., Inc . and Teamsters Local Union
No. 408, a/w International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of
America. Cases 22-CA-6265 and 22-CA-6325
June 30, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On December 1, 1975, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of 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 considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
In agreement with the Administrative Law Judge,
we find that Respondent, through its president, Vin-
cent Fuschetti, engaged in unlawful surveillance by
observing a meeting between Union I Organizer Di
Leo and several employees, thus violating Section
8(a)(1) of the Act. We further find, in agreement with
the Administrative Law Judge, that Respondent vio-
lated Section 8(a)(3) of the Act by unlawfully laying
off employee Joseph Policastro. However, we find
merit in Respondent's exceptions to his finding that
the lay off of employee Jose Rodriguez violated Sec-
tion 8(a)(3) and (1) of the Act.
The Administrative Law Judge found, and the rec-
ord shows, that Joseph Policastro initially contacted
the Union in August 1974, served as the Union's ob-
server at the October 25 election, and throughout the
Union's campaign was one of the Union's most ac-
tive adherents. The Respondent soon became aware
of Policastro's activities and, in late August, one of
Respondent's officers, Richard Fuschetti, interrogat-
ed Policastro about his protected activities and
1 In the absence of exceptions thereto, we adopt the Administrative Law
Judge's finding that the Respondent did not violate Sec 8(a)(1) and (3) by
granting wage increases to its employees in October 1974
2 Teamsters Local Union No 408, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein
called the Union
promised certain benefits if he identified other em-
ployees who had signed authorization cards.' Policas-
tro spurned these overtures, but he did admit to Fus-
chetti that he had signed a card. In addition, as noted
above, shortly before the election, Respondent's
president, Vincent Fuschetti, engaged in unlawful
surveillance of a union meeting attended by Policas-
tro, Jose Rodriguez, and several other employees.
Thereafter, on February 7, 1975, Policastro was per-
manently laid off.
The Respondent maintained that its decision to lay
off Policastro was motivated only by business con-
siderations rather than discriminatory reasons. In
support of its defense, the Respondent asserted that
the department where Policastro was last assigned
had no work in early 1975, that (as the Administra-
tive Law Judge found) the Respondent had experi-
enced a decline in business, and that from July 1974
to August 1975 the Respondent had laid off or termi-
nated some 20 of its 46 employees.
We agree with the Administrative Law Judge that
Policastro's termination was motivated at least in
part by his union activities. In reaching this result, we
rely on the General Counsel's showing of knowledge
and union animus, and the unconvincing nature of
the Respondent's asserted reasons for the layoff.
Policastro, a man with 35 years of experience in
the industry and 7 years with the Respondent, was
admittedly a "valuable" employee who, because of
his thorough knowledge of the industry and with
Respondent's operation in particular, was capable of
performing a wide variety of production and mainte-
nance jobs. Indeed, in view of Policastro's skills, ex-
perience, and the fact that he "saved the company
money," Supervisor Walter Alina recommended to
President Fuschetti that Policastro not be laid off.
Finally, as the Administrative Law Judge found, Po-
licastro was among the more senior employees in
Respondent's plants, and, had strict plantwide se-
niority been followed, Policastro would not have
been laid off in February 1975, or at the least would
have been recalled before August. In any event, it is
clear that work which Policastro could perform was
available in other departments when Policastro was
laid off in February.
In explaining his decision, President Fuschetti tes-
tified that he relied on departmental seniority, atten-
dance, and "many other factors"-presumably skill,
versatility, and experience. We agree with the Ad-
ministrative Law Judge that this explanation simply
does not withstand scrutiny in view of Policastro's
admitted value to the Respondent. Accordingly, we
3 This conduct occurred outside the 10(b) period and is, therefore, not
found to be violative of the Act However, we agree with the Administrative
Law Judge that such conduct is background for events which followed
225 NLRB No. 61
PARAMOUNT METAL & FINISHING CO.
find that the Respondent's unconvincing reasons for
the layoff actually support the General Counsel's pri-
ma facie case of unlawful discrimination.
However, in considering the layoff of Jose Rodri-
guez we are compelled to reach a different result and,
contrary to the Administrative Law Judge, we find
that the General Counsel has not proved by a pre-
ponderance of the evidence that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
The Administrative Law Judge's finding that Jose
Rodriguez was discriminatorily laid off rests on his
belief that the Respondent should have selected em-
ployees for layoff on the basis of objective criteria;
here, plantwide seniority.4 But the National Labor
Relations Act does not require that an employer act
wisely, or even reasonably; only,-whether reasonable
or unreasonable, that it not act discriminatorily.s
Even if we find an employer's action unreasonable,
that is only evidence that it may have acted discrimi-
natorily, and hence unlawfully. In the context here,
we cannot conclude that the decision to retain Mar-
cellino Rodriguez instead of Jose was unreasonable,
nor do we find other evidence sufficient to convince
us that the decision was discriminatory.
Vincent Fuschetti testified that he decided to lay
off Jose Rodriguez, when he returned from a 3-
month absence caused by a nonwork-related acci-
dent, because of a slowdown in business. Marcellino
Rodriguez, who had been transferred to Jose's job
while he was recovering from his accident, was re-
tained although he had been hired about 2 months
later. Fuschetti explained that Marcellino was a more
dependable employee.
During the 14 weeks before his accident, Jose Ro-
driguez worked a full week only seven times and only
16 hours during the last 2 weeks of that period. Ac-
cording to Fuschetti's uncontroverted testimony
Marcellino Rodriguez showed up for work every day.
Despite Jose's seniority, his replacement had little, if
any, less experience on the job, particularly when
considered in light of the Administrative Law
We disavow the Administrative Law Judge 's apparent finding that the
Respondent 's use of departmental , as opposed to plantwide , seniority is
unjustified Such a finding is beyond the allegations contained in the com-
plaint , and we make no finding in this regard Nor do we find, as the
Administrative Law Judge did, that adoption of a plantwide seniority sys-
tem is necessary to remedy the instant violation of Sec 8(a)(3) and (1)
5 Unlike our colleague , we see nothing to bewilder anyone in the differ-
ence between an employer 's decision to cut back its work force by laying off
employees and its subsequent selection of the employees who will be laid
off There is nothing in the National Labor Relations Act that requires
layoffs to be made only on the basis of seniority or any other particular
criterion , so long as union or concerted activities have no role in the deci-
sion In the absence of an established formula , a decision to lay off employ-
ees does not automatically identify the employees to be laid off At the risk
of belaboring the obvious, an explanation of the reason that an employer
has decided to cut back its work force is not an explanation of the reason
that a particular employee has been selected for layoff the former decision
determines the size of the work force , the latter , its composition
465
Judge's finding that there is little difference in the
skills involved in different departments. Nor does it
appear that experience would be an overriding fac-
tor; many of the Respondent's employees are un-
skilled.
Fuschetti's statement to Jose Rodriguez that he
was being laid off because of business conditions
does not conflict with his later explanation of the
reasons he selected Jose rather than Marcellino Ro-
driguez. They simply involve different consider-
ations: there is nothing in the former which even sug-
gests a reason for Jose Rodriguez' selection for
layoff. Nor do we find it unusual or significant, in
itself, that the Respondent selected one employee for
layoff rather than another for reasons which it did
not consider sufficient for discharge- in selecting an
employee for layoff, an employer cannot always have
the luxury of choosing between a "good" employee
and one it would discharge in any event. This is not a
case where the employee's faults have demonstrably
been contrived or are so outrageous that they never
would have been tolerated and thus fall of their own
weight.
The record does not establish that the Respondent
departed from any established and uniformly applied
practice in selecting employees for layoff; there was
no practice. The Respondent's attempt to explain
Policastro's layoff on the basis of departmental se-
niority, which we have rejected, scarcely proves that
some seniority system should have been followed in
the case of Jose Rodriguez. The record shows that
the Respondent chose to retain the more dependable
of two employees with comparable experience. That
is not an unreasonable basis for decision and it does
not become so merely because the Respondent was
hostile to the Union. We find that a preponderance
of the evidence does not establish that Jose Rodri-
guez was laid off for discriminatory reasons.
In view of the foregoing findings, we shall issue a
new Order as provided below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Paramount Metal & Finishing Co., Inc. and Para-
mount Plating Co., Inc., Newark, New Jersey, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Engaging in unlawful surveillance of its em-
ployees' union activities.
(b) Laying off or otherwise discriminating against
employees in any manner, with regard to their hire
and tenure of employment, or any term and condi-
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of employment, because of their union activities.
(c) In any other manner interfering with, restrain-
ing, or coercing any employee in the exercise of his
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Joseph Policastro immediate and full re-
instatement to his former job or, if that job no longer
exists , to a substantially equivalent job, without prej-
udice to his seniority or other rights previously en-
joyed, and make him whole for any loss of pay due to
the discrimination against him by awarding him
backpay from the date of his discharge to such time
as he receives a valid offer of reinstatement, the com-
putation of such moneys to be in accord with the
Board's Decision in F W Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
(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, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its plant in Newark, New Jersey, copies
of the attached notice marked "Appendix." 6 Copies
of said notice on forms provided by the Regional
Director for Region 22, after being duly signed by an
authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER JENKINS, dissenting in part:
Unlike my colleagues, with whom I agree in all
other respects, I find, as did the Administrative Law
Judge, that the Respondent unlawfully terminated
employee Jose Rodriguez in violation of Section
8(a)(3) and (1) of the Act.
As my colleagues agree, the record shows that Ro-
driguez, along with fellow employee Joe Policastro,
took an early and active interest in the Union's cam-
paign. Rodriguez was the leading union advocate
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
among the Respondent's Spanish-speaking employ-
ees, and clearly was the dominant figure in soliciting
their support for the Union. On several occasions-
and once within view of Supervisor Alina-Rodri-
guez and Policastro handbilled employees near the
plant doorway. Furthermore, as my colleagues have
found, Respondent President Fuschetti engaged in
blatant surveillance of a union meeting attended by a
few employees, including Rodriguez. Thus, the Ad-
ministrative Law Judge found, the Respondent was
well aware of Rodriguez' union activities before it
terminated him.
The record also shows that from the very begin-
ning of the union campaign the Respondent was
openly hostile to the protected activities of its em-
ployees and, in an early effort to thwart the union
drive, offered benefits to Policastro if he would iden-
tify employees who had signed authorization cards.
Several months later, following the Union's victory
in the October 1974 election, the Respondent finally
resorted to the only recourse left at its disposal-the
patently unlawful discharge of Policastro in Febru-
ary 1975.
Nonetheless, against this background my col-
leagues conclude that the General Counsel failed to
prove that Rodriguez' discharge on March 14 was
also motivated, at least in part, by the same discrimi-
natory reasons which prompted Policastro's termina-
tion. In effect, they find that there existed indepen-
dent nondiscriminatory reasons for Rodriguez'
discharge which overcome, or at least meet, the Gen-
eral Counsel's prima facie showing of unlawful con-
duct. I cannot agree because the reasons advanced
by the Respondent do not withstand scrutiny and, in
consequence, offer support to the General Counsel's
affirmative case.
Thus. the Respondent initially asserted that Rodri-
guez was not rehired in March 1975, following an
accident suffered on December 31, 1974, because
business was slow and there was no work then avail-
able for Rodriguez in his department. Thus, as with
Policastro, Rodriguez was led to believe that his lay-
off was necessitated by the implementation of some
departmental seniority rule. However, with regard to
Rodriguez, the Respondent readily conceded that it
deviated from its own rule. Thus, Marcellino Rodri-
guez, Rodriguez' replacement, was spared although
he had less seniority than Rodriguez. In these cir-
cumstances, it is abundantly clear that Respondent's
shifting reliance on its own rule, which at times was
disparately enforced, strongly suggests that the real
reason for its conduct rests elsewhere.
In obvious recognition of its unconvincing expla-
nation on March 14 that Rodriguez' layoff rested on
the nondisparate application of some objective stan-
PARAMOUNT METAL & FINISHING CO. 467
dard or rule, such as seniority, the Respondent later
asserted at the hearing below that Marcellino Rodri-
guez was retained because he was "more dependa-
ble" than Jose Rodriguez. The only evidence present-
ed by the Respondent to support this additional
defense is that Jose Rodriguez worked a full 5-day
week only seven times in the 14 weeks prior to his
accident on December 31, 1974. There is no showing
in this record that these absences were not excused or
explained to the satisfaction of Rodriguez' supervi-
sors. Nor is there any showing that Rodriguez was
told that his job was in jeopardy because of alleged
attendance problems. Indeed, following his accident
Rodriguez periodically visited the Respondent and
with his superiors discussed his return to work when
his injured hand had healed. Yet, it is undenied on
this record that the Respondent at no time informed
Rodriguez he would not be reemployed because of
his previous attendance record. And, perhaps even
more important, there is no showing that Rodriguez'
attendance record was any worse than Marcellino
Rodriguez', or any other employee's, record. Indeed,
since this information was readily available to the
Respondent, I find it significant that the Respondent
failed to present this evidence. Such a failure of proof
warrants the drawing of an inference that such evi-
dence, if produced, would have been adverse to the
Respondent's interest. But, at the very least, the fail-
ure to present the evidence of other employees' atten-
dance records exposes the weakness of the
Respondent's further explanation that Rodriguez'
discharge was dictated because of his alleged poor
attendance.
In sum , I find that the Respondent has failed to
rebut the General Counsel's prima facie showing that
Rodriguez' discharge was motivated, at least in part,
by reasons proscribed by the Act. Indeed, as shown,
Respondent's failure to advance anything other than
shifting, patently false, and unsubstantiated reasons
for its conduct not only bolsters the General
Counsel's showing but also lays bare the real reason
for Rodriguez' discharge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT lay off or otherwise discriminate
against our employees in any manner , with re-
gard to their hire and tenure of employment, or
any term and condition of employment, because
of their union activities.
WE WILL NOT engage in unlawful surveillance
of the Union activities of our employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed under Section 7 of the
Act.
WE WILL offer Joseph Policastro immediate
and full reinstatement to his former job or, if
that job no longer exists , to a substantially
equivalent job, without prejudice to his seniority
or other rights, and WE WILL make him whole for
any loss of pay suffered by reason of the unlaw-
ful conduct against him.
PARAMOUNT METAL & FINISHING CO., INC.
AND PARAMOUNT PLATING CO., INC.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: Teamsters
Local Union No. 408, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, Local 408, or the Charg-
ing Party, filed the charge in Case 22-CA-6265 on March
4, 1975,' and the charge in Case 22-CA-6325 on April 14,
against Paramount Metal & Finishing Co., Inc. and Para-
mount Plating Co., Inc., herein collectively termed the Re-
spondent or Company, alleging that Respondent violated
Section 8(a)(1) and (3) of the Act.
An order consolidating cases, complaint and notice of
hearing was issued by the Acting Regional Director of Re-
gion 22 on May 30. It alleges that the two companies con-
stitute a single employer within the meaning of the Act,
were engaged in interstate commerce and violated the Act
by surveilhng union activities of its employees and by
granting wage increases to undermine support for the
Union and by laying off employees Joseph Policastro on or
about February 7, and Jose Rodriguez on or about March
14.
Respondent's timely answer was amended at the hear-
ing, and as amended, Respondent admitted, for the pur-
pose of this proceeding, that it was a single employer en-
gaged in commerce within the meaning of the Act; that
Vincent Fuschetti its president, Richard Fuschetti its secre-
tary and treasurer, and Walter Alina its plant manager are
management agents and that Respondent laid off Joseph
Policastro on or about February 7, 1975. Respondent de-
nied that it had violated the Act in any way.
The parties were afforded full opportunity to appear, to
examine and cross -examine the witnesses , and to argue or-
ally at the hearing held in this matter in Newark, New
Jersey, on August 7 and September 9, 1975. General Coun-
sel and Respondent filed briefs which have been carefully
considered.
1 Unless specifically stated otherwise the events in this case took place
during the latter months of 1974, and the early months of 1975
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principal question is whether Respondent was moti-
vated by antiunion considerations in laying off Policastro
and Rodriguez . On the basis of all the evidence I have
concluded that Respondent was motivated by antiunion
considerations in these layoffs and that Vincent Fuschetti
did surveil employees' union activities on 1 day, but that
the evidence is insufficient to find that Respondent violat-
ed the Act in granting raises to employees during October
1974. While there is evidence of an economic downturn,
which apparently caused Respondent to lay off some of its
employees, the conflicting standards used and the lack of
candor from some of Respondent 's witnesses has con-
vinced me that Respondent would not have laid off Poli-
castro and Rodriguez when it did but for their union activi-
ties. Accordingly, an appropriate remedial order will be
entered.
On the entire record in this case, including the exhibits
and the testimony offered, and my evaluation of the reli-
ability of the witnesses based on the evidence and their
demeanor , I make the following.
FINDINGS OF FACT
I. COMMERCE FINDINGS AND UNION'S STATUS
Paramount Metal & Finishing Co., Inc. and Paramount
Plating Co., Inc., are each New Jersey corporations with
their place of business on South 16th Street in Newark,
New Jersey, where they are engaged in the manufacture,
sale, and distribution of metal platings and related prod-
ucts. During the past year Respondent sold and distributed
finished products which were shipped in interstate com-
merce directly to States other than the State of New Jersey
and were valued in excess of $50,000.
Respondent admits and I find that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Respondent admits and I find that the Union herein is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Facts
Respondent's business consists basically of two opera-
tions: A plating and anodizing operation wherein parts are
plated and coated with metal of all types including pre-
cious metals and a spray painting operation which is locat-
ed across the street in a separate building. Except for un-
skilled labor, the skills and duties of employees in these
two operations are different and employees are not inter-
changed. The exception is that unskilled employees have
been transferred from the paint shop to the plating and
anodizing shop in 1975. The plating and anodizing busi-
ness up through the early part of 1975 was the biggest part
of Respondent's business and was under the control of
Vincent Fuschetti and the immediate supervision of Walter
Alina. The paint shop operation was run by Richard Fus-
chetti, Vincent's brother. Respondent has been in business
for some 18 years at this location. The normal workweek
was 5 days with occasional overtime on Saturday and
weekdays when needed by the volume of orders.
Vincent Fuschetti testified that the economic recession
began to catch up with orders in latter 1974 and some lay-
offs thereafter took place. From a total of some 46 employ-
ees in October the complement had dropped to approxi-
mately 26 by September 1975 when this case was heard.
The Company also experiences a high rate of turnover
caused in substantial part by the working conditions in the
plating department where a large volume of electricity is
used while the employees are wet and standing in water,
together with the use of acids with the accompanying
odors. New employees are frightened by the combination
and the conditions under which they must work. Although
some employees have been with Respondent for a number
of years there is a substantial number of new employees.
Joseph Policastro testified that he worked on all the
types of plating at the Company in addition to performing
various maintenance jobs including carpentry, electrical,
and plumbing work.
Vincent Fuschetti denied that Policastro had worked on
precious metals, but Alina partially corroborated Policas-
tro by stating that Policastro could handle the different
kinds of metal plating in addition to the enumerated types
of maintenance work. He enumerated some types of plat-
ing that Policastro had performed. Employees were as-
signed to specific areas or departments and worked mostly
there except when a rush order dictated that other work
must be done first. Alma recommended to Vincent Fus-
chetti that Policastro be retained because he was a good
and valued employee, which Alma stated Fuschetti admit-
ted. With such a plethora of skills and some 35 years of
experience in the plating field it is easy to see why Policas-
tro would be considered a valuable asset to a company and
one who would save a company considerable money with
his maintenance skills.
Rodriguez started with Respondent in April 1974 and his
whole experience in this field was with Respondent
Union Representative Di Leo testified that he first con-
tacted Respondent's employees around the second week of
August and met with Policastro and gave him authoriza-
tion cards to distribute to employees. Policastro distributed
the cards and returned signed cards to him. A meeting of
employees was held in latter August and the Union sent a
letter to Vincent Fuschetti dated August 26, demanding
recognition and requesting bargaining for a production
and maintenance unit, stating that it was willing to demon-
strate its majority status by submitting cards to a neutral
third party. The Union filed a petition with the Board on
September 3 and the parties agreed to a stipulation for
certification upon consent on September 25. The election
held on October 25, had 16 votes for the Union, 15 against,
and 3 challenges. Timely objections were filed by both par-
ties and on March 14, the Regional Director issued a re-
port on objections and challenged ballots. Respondent
filed exceptions to the report on March 23, and on May 23,
the Board certified the Union as the bargaining representa-
tive for Respondent's employees.
Prior to the election Respondent held two meetings for
all employees and Richard Fuschetti was the sole speaker
at both.
PARAMOUNT METAL & FINISHING CO. 469
There is some disagreement as to what he told the em-
ployees with the employees stating that he discussed the
amount of the raises and that no third party was involved,
but if the Union represented the employees , the Company
door would no longer be open to them . Respondent denied
saying anything about raises or union dues or deductions.
The parties agreed that Richard Fuschetti told the em-
ployees that there had been a petition filed with the Board,
that there was going to be an election and where and when
it was going to be held , and that it was by secret ballot and
no one would know how they voted . He said that signing
an authorization card or expressing an interest in the
Union did not obligate an individual to vote for the Union.
He urged the employees to be present and vote and hoped
that they had confidence in his brother and himself. He
admitted saying that General Motors and Western Electric
were both large unionized companies and were experienc-
ing massive layoffs and that being unionized did not pre-
vent employees from being laid off. He said that Respon-
dent had a history of not laying off people and hoped this
would continue in the future.
Vincent Fuschetti denied hearing anything said which
would have indicated how Respondent felt about the
Union.
It is also agreed that prior to the union election for the
pay period ending October 11 , Respondent gave the em-
ployees two checks , the second one for $8 of their wages
and enclosed a note which stated that sum would be the
approximate amount of monthly union dues they would
have to pay under a usual contract and urged that they
vote against the Union for a full paycheck every week. The
slip and the two paychecks were distributed to the employ-
ees by Plant Manager Walter Ahna.
B. Disputed Background Testimony
Joseph Policastro who had some 35 years of experience
in plating metal was first employed by Respondent in Sep-
tember 1964 , until he left in February 1971. He was reem-
ployed in January 1974 and worked until February 1975
when he was laid off , making a total of 7-1/2 years with
Respondent . Vincent Fuschetti testified that Policastro had
been employed by Respondent for about 5-1/2 years, al-
though the dates of Policastro 's employment were available
to him.
Policastro said he and a few others talked about a union,
picked one out of a telephone book , called and met the
organizer , and started organizing . Ordinarily they met the
organizer on the streets near the plant.
In August , Walter Alma told Policastro that Richard
Fuschetti wanted to speak to him across the street in the
paint department . He went over and Richard Fuschetti
asked if Policastro knew anything about a union , since he
had heard a union was trying to get in. Policastro said he
had heard about it and had also heard that Fuschetti had
spoken to two other employees about it . Fuschetti asked if
he knew anything about union cards being given out and
Policastro admitted he did . Fuschetti next asked who had
received the cards , who had signed them , and what union it
was. Policastro asked whether they were talking man-to-
man, and when he was assured they were, he asked why
Vincent Fuschetti had called at 9 o'clock one night and
told him not to bring his son to work any more , and wheth-
er that was because of the Union . Richard Fuschetti said
that Vincent did not do it because of that , that Policastro
knew Vinny and said Vinny was angry and if that was what
was bothering him, they could put Policastro 's son back to
work with no loss of pay . Policastro said his son already
had a job . Fuschetti said that , if Policastro would give him
the names of the people who had signed the union cards,
he would give Policastro not a little raise but a very big
raise . Policastro did not tell Fuschetti who had signed
union authorization cards but admitted that he had done
so.
Richard Fuschetti denied having such a conversation
with Pohcastro , and Walter Alma said he had no recollec-
tion of instructing Pohcastro to go see Richard Fuschetti,
denied it . This testimony concerns statements made prior
to 6 months before the filing of a charge in this matter and
cannot be considered as evidence of violations of the Act.
This testimony serves only to show Respondent had
knowledge of the union organizational attempts and of
Policastro 's part in it at the early stages of organization. I
credit Policastro that this conversation occurred as he testi-
fied and do not credit Richard Fuschetti 's denial.
As may be seen from the evidence the Fuschettis and
Alina sought to deny knowledge of union activity and of
animus toward the Union , when it is clear under the cir-
cumstances that they had such animus and knowledge.
This will be detailed further , infra.
Policastro and Jose Rodriguez distributed at least two
leaflets to employees . Rodriguez says he distributed leaflets
to the Spanish -speaking employees outside the plant and
on one occasion saw Alma in the plant doorway watching
them . Policastro additionally gave out leaflets in the plant
and at employees' homes. Rodriguez also explained to the
Spanish-speaking employees what the Union was about
and asked them to sign cards.
C. The Surveillance Incident
Ordinarily the employees would meet with Union Or-
ganizer Di Leo on the streets near Respondent's premises.
In late September or early October Di Leo met Policastro,
Jose Rodriguez, Jasper Stewart, who assisted Policastro,
and Dominic Tanzola after work and they stood talking on
19th Avenue about 30 feet south of the intersection with
South 16th Street , near Di Leo's car . Policastro , Rodriguez,
and Di Leo testified that they saw Vincent Fuschetti drive
his car west on 16th Street , pull into the intersection and
stop and observe their meeting for a minute or more before
driving ahead . Several minutes later they saw Fuschetti re-
peat this performance , again going in the same direction.
The four employees and Di Leo thereupon walked to the
corner and went into a tavern . In a few minutes one of the
barmaids said their boss was coming by again and Policas-
tro looked out the window and saw Fuschetti driving his
car in the opposite direction on 16th Street, coming back
towards the plant . Policastro said Fuschetti stopper! at the
intersection paused for a minute or so looking around and
crossed 19th Avenue and turned into the driveway at the
paint shop.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the next day Vincent Fischetti told Policastro that his
meeting did not last too long, and Poltcastro replied that it
did and Fuschetti should have come into the tavern and
they would have bought him a beer.
There was testimony that the most direct route home for
Vincent Fuschetti would have been to go up 18th Avenue
and that he would only proceed across 19th Avenue and
turn at the next intersection if he was going to get gasoline
for his car before proceeding home.
Fuschetti denied that he had ever spied on the employ-
ees' union activities but did recall seeing groups of men
outside the shop from time-to-time. He testified that he did
not know who Di Leo was and did not recall seeing him
until he met him at the election. Fuschetti did not recall
driving around the block but did recall one occasion on
which he had driven past the intersection and then had
come back to check whether the gate was locked in the
driveway to the paint shop. He said he would not have
pulled into the intersection and looked down in that direc-
tion because 19th Avenue was a busy street, particularly in
the late afternoon, and to do as the employees testified, he
would have been asking for an accident. He said that he
had stopped at the stop sign at that corner and from that
position could have easily seen a group of men south of the
intersection on 19th Avenue where the men testified they
had been.
Vincent Fuschetti denies making the comment about the
meeting attributed to him by Poltcastro.
Vincent Fuschetti was equivocal in his testimony con-
cerning this incident. Considering all the testimony it is
clear that Fuschetti would not have driven twice in the
same direction past 19th Avenue and returned the third
time in the opposite direction if he had not been trying to
observe the meeting of his employees with Di Leo.
Certainly with the employees meeting Di Leo on the
street in the vicinity of Respondent's premises, the identity
of the employees most interested in the Union was easy for
Respondent to determine. Fuschetti testified that he did
see groups of employees talking in the vicinity of the plant
and I credit Di Leo, Policastro, and Rodriguez that Fus-
chetti paused long enough to observe them and determine
who they were.
D. The Layoffs
According to Joseph Policastro, in February, Walter Ali-
na called him to the front office and said things were get-
ting slow and the Company accountant said it looked pret-
ty bad and they had to lay him off. Alina gave him a check
and a layoff slip. Policastro asked why they were laying
him off, when there were others there with less seniority
and named some of them. Alina replied that they had given
him his job back and when Policastro asked what that
meant, Alma said there was also the thing with the Union.
Policastro said he was not going to take this easy and was
going to make waves. The helper Stewart was also laid off
the same day.
In July 1974 there were 46 people on the payroll. Re-
spondent produced a payroll for latter August 1975 which
showed 26 employees on the payroll. According to
Respondent's August 1975 payroll, of the 17 employees on
the payroll, excluding the 9 people in the paint department,
only 7 employees had more plantwide seniority than Polt-
castro and of the 10 lower in seniority, I was employed in
1969, 1 in 1972, and the remaining 8 in 1974 and 1975.
Walter Alma testified that he told Policastro it was un-
fortunate that he did not have work at that time, that since
business had gone way down, he could no longer use him
and asked Poltcastro to stay in touch and if business
picked up they would reemploy him. During cross-exami-
nation Alma testified that he was consulted about the deci-
sion to lay off Policastro but not the decision to lay off
Rodriguez and recommended to Fuschetti that Policastro
be kept as long as possible, acknowledging he was a good
and valuable employee. Alina denied that any mention was
made of the Union while they were talking.
Jose Rodriguez fractured a bone on New Year's Eve,
and his hand remained in a cast until March. In the interim
he visited the plant on several occasions and spoke to Alina
and the Fuschettis concerning when he would be able to
come back to work. On March 14, he returned to the plant
stating that his doctor had released him and he was ready
and available for work. He was given a layoff slip and told
that business was too slow and to come back later. Rodri-
guez testified that his sister-in-law, a longtime employee of
Respondent, told him a man from the paint shop had been
put on his job and that another man had been hired for the
paint shop. Rodriguez said that during his visits to the
plant he saw Marcellino Rodriguez (no relation) and Hay-
wood Griffin both working in the department where he
had worked and said that both of these men had started to
work for Respondent after he did.
Considering Respondent's August 1975 payroll, it is
clear that at least 7 of the 17 employees (excluding the
paint department's 9 employees) had less plantwide senior-
ity than did Jose Rodriguez if we accept Rodriguez' testi-
mony that he started to work for Respondent in April
1974. However, Respondent's Exhibit 4 gives a date of hire
for Jose Rodriguez of June 11, 1974, and by such a date 5
of the remaining 17 employees had less plantwide seniority
than Jose Rodriguez. Rodriguez also testified that while
handing out union leaflets with others on one occasion he
had seen Walter Alma near the front door of Respondent's
premises looking at them.
Vincent Fuschetti testified that Policastro worked in the
tin-bismuth plating area with Jasper Stewart and per-
formed what maintenance work they had. He said that 80
to 90 percent of the work in that particular plating area
came from one company, Atlantic Metal, which in Decem-
ber 1974 told him to cut back on production and thereafter
the work dropped from 40 to 50 percent. Stewart was doing
most of the work in the department at that time while Poli-
castro was busy on maintenance. In February, he received
a letter which said that all production for Atlantic Metal
was to stop immediately, and he then laid off both Policas-
tro and Stewart and there was only 3 days' work done in
that department from February until the hearing. Fuschetti
said that most of the necessary maintenance work had
been done by that time and he had one employee who had
been with the company a number of years, who performed
whatever maintenance work was left.
Alma testified and Vincent Fuschetti confirmed that
PARAMOUNT METAL & FINISHING CO. 471
Fuschetti alone made the decision as to who was laid off.
Fuschetti said he decided who to layoff and, "I went most-
ly by their activity, their attendance, their seniority, by de-
partment, and many other factors were involved." Fuschet-
ti said he laid off Policastro and Stewart because there was
no work for their department, and in effect states that de-
partmental seniority was the deciding factor there.
When Jose Rodriguez sought work in March, Fuschetti
said he checked as between Marcellino Rodriguez (who he
states was hired about 2 months after Jose) and Jose and in
comparing their attendance records found that Jose's rec-
ord was so bad that he decided to keep Marcellino Rodri-
guez. He said he had no idea that Jose Rodriguez was
"with the union" when he decided to lay him off.
In regard to general business conditions, Vincent Fus-
chetti further stated that one of the main sources of
Respondent's business, Wayne Electric, is preparing to
close down and when that happens most of Respondent's
business will be affected and it is possible that the Compa-
ny may have to close.
Respondent's plant manager, Walter Ahna, testified that
during the layoff conversation with Policastro he did not
say anything about union problems being part of the rea-
son for the layoff. He was asked whether he knew if Poli-
castro was involved with the Union and answered that he
did not know, and that the same was true of Rodriguez.
During cross-examination he admitted that he knew Poli-
castro had something to do with the Union at the time of
the election when Policastro had something to do with the
voting, after saying first he did not know of Policastro's
inclination towards the Union. He also testified that in lat-
ter August he had not been told of a demand by the Union
to represent the employees, but then said the first notifica-
tion he received was from the Union's August 26 letter.
Alma said he did not recall ever being told by Richard
Fuschetti to bring Policastro to his office in August and
therefore denied the occurrence. Further, Alma did not re-
call saying anything to Policastro about being involved
with the Union or that because of such involvement that
Policastro's son was discharged. He did recall that the em-
ployees received two paychecks but said that he never
heard the employees say anything about it nor did they
question him about it. Indeed he said he had never heard
any talk about the Union nor saw any gatherings of any
employees or any leaflets handed out or the leaflets them-
selves. Despite all this he said the Fuschettis did tell him
what he could and could not say to the employees about
the Union.
According to Respondent's Exhibit 5, and the testimony,
Michael Orlatti was the main man in the precious metal
department, which apparently is called the small barrel de-
partment on this exhibit. The other two individuals work-
ing in that department in late August 1975 were Carmen
Heddi, who was employed on May 20, 1974, some 2 weeks
before Jose Rodriguez, and Marcellino Rodriguez who was
employed on August 20, 1974, some 2 months after Jose
Rodriguez. With Marcellino Rodriguez being retained it is
clear that departmental seniority was not followed in this
instance.
Considering the whole situation we have Alma and Vin-
cent Fuschetti claiming that they knew nothing of the
union activity of Jose Rodriguez, and Fuschetti (according
to Respondent's brief) saying he only learned of it in the
hearing in this matter. Fuschetti acknowledged learning at
some undetermined time of Policastro's union activities
and Alina claimed he had very little information regarding
Policastro's sentiments.
Both Fuschetti and Alma denied seeing employees on
the street engaged in any union activity, distributing leaf-
lets, or meeting with Union Organizer Di Leo. The testimo-
ny concerning Vincent Fuschetti riding around the block
twice and coming back a third time from a different direc-
tion makes a clear case that he was attempting to see what
the employees were doing with Di Leo. Fuschetti admitted
driving around the block twice, seeing men and offered a
variety of reasons why he might have ridden around the
block. The only logical reason is the surveillance as
Fuschetti's remark to Policastro the following day made
clear. Whether Fuschetti knew who Di Leo was by name is
not dispositive since clearly he would have assumed the
men were meeting a union agent.
This is not a very big plant, and the comings and goings
of the employees and their meetings on the street and dis-
tributing leaflets would have been noticed and commented
about. In these circumstances I cannot believe that Alina
and Fuschetti did not know of the activities of Policastro
and Rodriguez. Respondent argues in its brief that since
Respondent did not discharge Dominic Tanzola, one of the
four employees who was with Di Leo when Vincent Fus-
chetti repeatedly drove by, this proves that Respondent
was not seeking to rid itself of the union activists. It would
seem that since Respondent laid off three out of four em-
ployees in that meeting, the argument would be much more
persuasive the other way.
I credit the testimony establishing that Vincent Fuschetti
did stop at or near the intersection of 19th Avenue and
viewed the employees engaged in a meeting with Di Leo
and that he did so a few minutes later on a second occasion
and returned to the intersection a third time looking for the
men and what they were doing and that he did make the
comment on the following day to Policastro. I do not credit
Fuschetti's denial of this comment.
I also credit Pohcastro's testimony concerning his meet-
ing with Richard Fuschetti. I make no findings of viola-
tions of the Act based on that meeting and only find that
Respondent at that time knew of the union organization
and Policastro's activity. I do not credit the denials of the
Fuschettis and Alina in regard to their lack of knowledge
of the distribution of union literature inside and outside the
plant. Any distribution of union literature would certainly
have been called to their attention in this small plant and I
credit Jose Rodriguez that Walter Alma watched such a
distribution and observed those distributing the literature.
In regard to these layoffs we have Vincent Fuschetti
claiming that departmental seniority controls when it con-
cerns Policastro, a man with much more seniority and
much wider and more varied experience than most of the
employees who were left. When it comes to Jose Rodriguez
departmental seniority is dispensed with and the layoff is
justified on the basis of absenteeism.
I find and conclude that one of the principal reasons
why Vincent Fuschetti determined to lay off Joseph Poli-
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
castro and Jose Rodriguez was because of their union ac-
tivities and that they would not have been laid off at that
time but for their union activity.
I also find and conclude that Vincent Fuschetti decided
on the layoffs and testified that he used standards which fit
the end he desired and did not use reasonable objective
criteria in determining who should be laid off. In a small
plant such as this where the skills were not particularly
different in the departments and where a lot of unskilled
labor was used, it would appear that the most versatile
people should be kept and that an objective criteria such as
plantwide seniority should have been used provided that
the individuals had sufficient knowledge and expertise to
fit the remaining positions. If objective criteria had been
used it is apparent that Jose Rodriguez would have re-
mained and certainly with Walter Alina's recommendation
Policastro would have been one of the last employees to
leave.
I therefore will order the reinstatement of Policastro and
Rodriguez on the basis of their plantwide seniority. If
Respondent's business declines to a situation where Poli-
castro and Rodriguez would have been laid off under plant
wide seniority as Respondent indicated was possible, then
they are to be placed on, a recall list in the order of such
plantwide seniority.
Although noting that a meeting being held by a union on
a public street is apt to be observed by anyone I conclude
and find that Vincent Fuschetti did engage in illegal sur-
veillance by stopping and observing the meeting of the four
employees with Di Leo on two separate occasions and
coming back a third time looking for them. From the testi-
mony Fuschetti would not have driven by that corner twice
in the same direction if he had not been trying to observe
the actions of these employees. Certainly what Vincent
Fuschetti did was not an ordinary occurrence. If he had
driven by one time looked at the group and left that would
be one thing but repeatedly circling back to see what was
going on constitutes unlawful surveillance. See Emily Tweel
Jacobs, Russel Jacobs, and Emil Tweel d/b/a L. Tweel Im-
porting Co., 219 NLRB 666 (1975).
raises over the previous years seemed to be in the 10- and
15-cent area but there were a few raises on occasion that
were as much as 50 or 60 cents and others of 25 and 30
cents. The wage increases for October 14, 1974, seemed to
be in the area of 25 cents.
According to Respondent it had always reviewed its
business of the previous 12 months before October and had
given the employees a percentage of what Respondent's
profits had been, and that up until that month it had been
a good year. Respondent stated that it could not say that
1974 as a whole was a good year because it is evident that
business declined after October to some extent and Re-
spondent during latter 1974 and early 1975 laid off some of
its employees as its business declined.
Although there may be some suspicion that it granted
larger raises than it ordinarily had done in order to seek
favor with the employees and have them turn against the
Union there is no consistency in the past practice or any
other method set forth which would allow such a determi-
nation. Looking at the previous years and comparing them
with the wage raises for this time and considering the
amount of inflation this country was undergoing at that
point, the wage raises which appear to be less than 10 per-
cent do not seem excessive. Therefore I cannot find that
the wage increases given by Respondent in October 1974
were of such a nature as to make a clear impression on the
employees that they were granted to undermine their union
support and sentiment and I therefore will order this alle-
gation of the complaint dismissed.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II, and
therein found to constitute unfair labor practices in viola-
tion of Section 8(a)(1) and (3) of the Act, occurring in con-
nection with Respondent's business operations as set forth
above, in section I, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
E. The October Raises
The complaint alleges that on or about October 14 Re-
spondent granted wage increases to its employees to induce
them not to become or remain members of the Union or to
give assistance or support to it. Initially it was urged by
General Counsel that the date of the increases was not a
date when Respondent ordinarily gave any increases to its
employees. Respondent disproved this claim by estab-
lishing that it had over the years given raises to its employ-
ees on dates in October ranging between the 9th and the
20th and on one occasion gave a raise to its employees on
November 29.
General Counsel then argued that the raises were usually
large and were therefore not the ordinary raises given to
employees and could only have the purpose of trying to
persuade them not to support the Union.
Voluminous records were put into evidence giving vari-
ous wage increases data for various employees. There was
no true continuity in this information. The majority of the
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act as follows:
Having found that Respondent laid off Joseph Policas-
tro on February 7, 1975, and Jose Rodriguez on March 14,
1975, and did not thereafter offer them reinstatement, I
recommend that Respondent offer them immediate and
full reinstatement to their former positions or, if such posi-
tions have been abolished or changed in Respondent's op-
erations, then to any substantially similar position, without
prejudice to their seniority or other rights and privileges
and that Respondent make them whole for any loss of pay
they may have suffered by reason of Respondent's discrim-
inatory layoffs, by payment of a sum equal to that which
they would have normally received as wages from the dates
of their layoffs, until Respondent offers them reinstate-
PARAMOUNT METAL & FINISHING CO 473
ment , less any net earnings for the interim . Backpay is to
be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest at the rate of 6 percent per
annum to be computed in the manner set forth in Isis
Plumbing & Heating Co ., 138 NLRB 716 ( 1962). I further
recommend that Respondent make available to the Board,
upon request , payroll and other records in order to facili-
tate checking the amounts of backpay due them and any
other rights they might be entitled to receive.
Having found that Respondent did not use an objective
standard in making these layoffs , I conclude that an objec-
tive standard such as plantwide seniority should be used in
determining the length of the backpay periods, and for re-
instatement if Respondent undergoes substantial layoffs
due to economic conditions , providing that the discrimina-
tees are capable by objective standards of performing the
work available.
Having further found that Respondent violated Section
8(a)(1) of the Act by engaging in surveillance of the union
activities of its employees and since it is a part of the pur-
pose of the Act to prevent the commission of unfair labor
practices , I recommend that Respondent be ordered to
cease and desist from violating the Act in the same or a
similar manner . On the basis of the foregoing findings and
the entire record , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by un-
lawfully surveilling its employees ' union activities.
4. Respondent violated Section 8(a)(1) and (3) of the
Act by its discriminatory layoff of Joseph Policastro and
Jose Rodriguez because they engaged in union and con-
certed activities for the purpose of mutual aid and protec-
tion.
[Recommended Order omitted from publication.]