Pat Izzi Trucking Co.

National Labor Relations Board - Board Decisions

Nov 27, 1964

149 N.L.R.B. 1097 (N.L.R.B. 1964)

PAT IZZI TRUCKING COMPANY 1097
dente that but for the desire of some of the employees for union representation, the
Respondents would have continued this operation . In the circumstances of this case,
I am not persuaded that this burden has been sustained The operation was clearly
unprofitable to Redmond . Her hope that Sir James would provide her with a greater
proportion of dresses rather than blouses to work on seems not to have been realized .4
At the time of closing , it is true , Redmond had a greater number of employees than
at any time in the preceding months, and from this it is argued that the business
was at least on the road to a profitable showing . But Redmond 's testimony is to the
contrary and, I think, is to be believed. The loss of capital during the first 3 months
of operation was clearly of serious importance to her She characterized it as a
loss of her life savings and I think that if the continued operation offered any promise
of profitability, she would have seized this opportunity to recoup I find that the
business operation of the Respondents was terminated on or about January 28 because
Redmond was losing money Even though it was probably the fact that this losing
enterprise was threatened with even greater losses should the Respondents be forced
to deal with the Union, it does not follow that "but for" the Union the business
would have been continued The probability on this record is that it would have
ceased in any event I find therefore, that by teiminating the business arrangement
on January 28, the Respondents did not engage in unfair labor practices within the
meaning of Section 8(a) (1) and (3) of the Act.
It is therefore recommended that the complaint be dismissed.
4 Redmond testified that her operators preferred to work on dresses and that some of
them quit when such work was not supplied
Patrick F . Izzi d/b/a Pat Izzi Trucking Company and Local 64,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case No. 1-CA-4476. No-
vennber 07, 1964
ORDER
On July 17, 1964, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices, and recommending
that it cease and desist therefrom and take certain affirmative action
to remedy such unfair labor practices. On the same date, the case
was transferred to the Board.' The General Counsel filed a brief in
support of the Trial Examiner's Decision.
Thereafter, the Respondent filed a carbon copy of the so-called
exceptions to the Trial Examiner's Decision, stating only that said
Decision is against the evidence, the law, and the weight thereof.
The General Counsel and the Changing Party filed motions to strike
the so-called exceptions. The Board's Executive Secretary rejected
them in a letter which informed the Respondent that it had not com-
plied with the requirements of the Rules and Regulations respecting
exceptions and briefs. The Respondent's attention was particularly
directed to the requirements that exceptions must designate the pre-
i The text of pertinent parts of the Board 's Rules and Regulations , Series 8 , as amended,
including Sections 102 46 and 102 48 , was attached as a matter of course to the Order
transferring the case to the Board, served upon the parties
149 NLRB No. 108.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cise parts of the Trial Examiner's Decision excepted to, and cite the
precise parts of the record relied on to support the exceptions. The
Executive Secretary granted a further extension for the filing of
proper exceptions.
Thereafter, the Respondent filed another set of so-called exceptions
and a request for oral argument. The General Counsel and the
Charging Party filed motions to strike the second set of so-called
exceptions. The Charging Party also objected to the Respondent's
request for oral argument.
The Respondent's second so-called exceptions are also in summary
form. Without a supporting brief, Respondent has excepted, sepa-
rately, to each major subdivision of the Trial Examiner's Decision,
and to all the Trial Examiner's rulings at the hearing, but only on
the same three general grounds stated in the first set.
Section 102.46(b) of our current Rules and Regulations sets forth,
with particularity, the requirements that must be met in the filing of
exceptions. It further provides that exceptions not specifically urged
shall be deemed waived, and exceptions that do not comply may be
disregarded. The so-called exceptions do not state the questions of
procedure, fact, law, or policy to which exception is taken; they do
not cite the precise parts, or any part, of the record relied upon; and
they do not state grounds or cite authorities. Neither is there a brief
that would either aid in construing them, or explain the basis of
Respondent's request for oral argument. Accordingly, we grant the
motions to strike the so-called exceptions 2 As no proper statement
of exceptions has been filed with the Board, we shall abide by Section
102.48 (a) of the Rules and Regulations which provides that : "In the
event no timely or proper exceptions are filed as herein provided,
the findings, conclusions, and recommendations of the trial examiner
as contained in his decision shall, pursuant to section 10(c) of the
act, automatically become the decision and order of the Board and
become its findings, conclusions, and order, and all objections and
exceptions thereto shall be deemed waived for all purposes." 3
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, and Section 102.48 of the National Labor Relations Board
Rules and Regulations, Series 8, as amended, the Board hereby adopts
the findings and conclusions of the Trial Examiner as contained in
his Decision, and orders that Patrick F. Izzi d/b/a Pat Izzi Trucking
Company, his officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended Order.
2 The Respondent's request for oral argument is denied for reasons set forth in this
Order
3 Cf Kings Electronics Co, Inc., 109 NLRB 1324
PAT IZZI TRUCKING COMPANY 1099
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed by the above-named labor organization on February 7 and 11,
1964, the General Counsel of the National Labor Relations Board issued a complaint
and notice of hearing on March 23, 1964. Amendments to the complaint were there-
after issued and served on April 1 and 6, 1964. Answers were received from the
Respondent.' The amended complaint alleges and the answers deny that the Respond-
ent has engaged in unfair labor practices in violation of Section 8(a) (1), (3), and (5)
of the National Labor Relations Act, as amended. Pursuant to notice, a hearing was
held in Providence, Rhode Island, on April 20 to 24, 1964, before Trial Examiner
C. W. Whittemore.
At the hearing all parties were represented by counsel, and were afforded full
opportunity to present evidence pertinent to the issues, to argue orally, and to file
briefs A brief has been received from General Counsel.
Disposition of the Respondent's motion to dismiss the 8(a) (5) portion of the
complaint, upon which ruling was reserved at the hearing, is made by the following
findings, conclusions, and recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Patrick F. Izzi is an individual proprietor doing business under the trade name and
style of Pat Izzi Trucking Company, with principal office and place of business in
Providence, Rhode Island. At this terminal, it is engaged in the business of provid-
ing and performing interstate transportation of goods and property of all kinds and
related services. The Respondent is licensed by the Interstate Commerce Commission
Annually the Respondent received gross revenue of more than $50,000 from that
part of its operations which are performed as an essential link in interstate com-
merce and,/or for various enterprises which themselves are directly engaged in com-
merce and over which the Board would exercise jurisdiction
Annually the Respondent purchases, transfers, and delivers to its Providence ter-
minal, materials valued at more than $50,000 directly from States other than the
State of Rhode Island.
The complaint alleges, the answer admits, and it is here found, that the Respond-
ent is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
Local 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization admitting to membership employees of
the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The chief issues raised by the complaint include- (1) the discharge of two of the
Respondent's truckdrivers, Dessler and Couitt; (2) the alleged refusal to bargain with
the Union as the exclusive representative of employees in an appropriate unit; (3)
whether or not a strike of the Respondent's employees was caused and prolonged by
its unfair labor practices; (4) whether or not the Respondent unlawfully refused to
reinstate all strikers upon an unconditional offer to return to work; and (5) whether
or not by other conduct the Respondent has interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by the Act.
All events in issue occurred shortly after the Respondent's truckdrivers signed
cards authorizing the Charging Union to represent them in collective bargaining.
I On June 3, 1964, after the hearing, notification was received from Attorney Lisker
that he had "withdrawn as counsel for the employer," and on June 8, 1964, similar
notification was received from Attorney Novogroski Both letters are hereby made a part
of the record in the case.
1100 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
B. Events before the Union 's demand to bargain
1. Interference , restraint . and coercion
Credible testimony indicates that in December and January, the Respondent's driv-
ers were working 80 or 90 hours a week , sometimes as much as 17 hours a day.
They were denied a Christmas bonus at the end of 1963. The ground appears to
have been fertile for self-organization.
Dessler and Couitt actively sought assistance from the Charging Union, and them-
selves distributed authorization cards among their fellow drivers Between them
they obtained signatures to most, if not all, cards submitted during the hearing.
Patrick Izzi, head of the Respondent, as a witness admitted that he was informed
by a telephone call from someone in Boston late in the afternoon of February 5, to
the effect that union cards were being signed by his drivers. His own testimony also
shows that he promptly took measures to find out who, among his drivers, were
responsible.
The first driver he approached on the point, it appears, was Pasco Macri, away
from the terminal and at a shopping center, where he asked the employee to meet
him. Izzi queried him as to his knowledge of union activities and specifically asked
if he had signed a card. Macri denied knowledge of the matter, pointing out that he
had just returned from an extended vacation, but he suggested that Izzi might well
question Frank Couitt. Izzi telephoned to Couitt and instructed him to come to the
teiminal as soon as possible. Couitt did so, and was discharged under circumstances
described below.2
A few minutes after his interrogation of Macri, the timing of incidents indicates,
Izzi also queried driver Robert Natale. The latter was about to leave the Providence
terminal on a trip when he was called to the telephone. Pat Izzi demanded to know
if he was up to his "old game" or organizing a union and asked if he was "tired of
eating." Natale stoutly denied the accusation. Izzi then asked the driver if, in his
travels, he would try to get "some information" for him.
At or about the same time employee Anthony Scaramuzzi was asked, also by Izzi
over the telephone, what he knew about the Union.
It is concluded and found that by Izzi's above-noted interrogations and threats the
Respondent engaged in 8 (a) (1) conduct.
2. The discharge of Murray Dessler
As noted above, as soon as Macri had suggested that Couitt might yield the infor-
mation he wanted, Pat Izzi called that driver and directed him to come to the office.
Couitt was busy at home with domestic matters, but agreed to come to the terminal
as soon as possible.
In the meantime , Izzi summoned Dessler to the office The latter had driven that
day from 2 a.m. to 5 p.m., and at the end of this long day had checked in with Don-
ald Izzi , the terminal dispatcher , who had merely told him to report for work the
next morning at 5 o'clock.
When Dessler got back to the office , in response to Pat Izzi 's call, the latter
promptly accused him of trying to organize the drivers in a Boston local of the
Teamsters . Dessler denied the accusation . Izzi insisted that he had found out that
he and another driver were trying to organize the "place," told him to take his pay
and get out. Dessler repeated his denial. Izzi then asked who was so engaged, if
not he, and promised him a job for life if he would tell him. Dessler declared he
was no "rat," and was given his pay. Just before leaving the office, having been
discharged , Pat Izzi - remarked that truck T-61, which was then in New York, had
had an accident and at least intimated that Dessler had been responsible for it.
Dessler had driven this truck on a trip a day earlier , but it had been driven to New
York by another driver . Dessler pointed out to Izzi that the truck had been checked
when he brought it in , and the matter was apparently dropped.
The foregoing findings as to the discharge interview are based upon the employee's
credible testimony. -
21zzi's interrogation of llfacri is, in the main , admitted At the outset, and to obviate
the necessity of repetitive footnotes , the Trial Examiner states that he can iely upon no
part of Izzi ' s testimony where it is in conflict with more credible evidence Izzi, whom
the Trial Examiner observed during the 5 days of hearing sessions, was far from an
impressive witness Much of his testimony, as the record shows, was inconsistent and
self-contradictory As noted, both of his able counsel withdrew after the hearing closed
Whatever their reason for such action, the Trial Examiner has no brief or argument from
them suggesting why their former client's testimony should be believed
PAT IZZI TRUCKING COMPANY - 1101
Having found, in a footnote above, the complete unreliability of Pat Izzi's testi-
mony in general, the Trial Examiner believes it unnecessary to review in detail Izzi's
shifting and inconsistent but extensive testimony as to the discharge of Dessler and
his reason for the action. Insofar as it is possible to determine precisely what Izzi
would have believed, it appears that he contends that Dessler was discharged because
of his "attitude" when accused of causing damage to the T-61 truck.
The maze of inconsistent and contradictory testimony given by Pat and Donald
Izzi concerning claimed damage to this T-61 truck defies all efforts of unraveling,
and leads to the conclusion that most of it was fabricated after the event of the dis-
charge for the purpose of curtaining the real reason for the action-Pat Izzi's admit-
ted concern about the organizing of his drivers.
Donald Izzi claimed, and this point is corroborated in part by the drivers con-
cerned, that sometime during the day of February 5, he talked over the telephone
with drivers DiMillio and Winer in New York, and that they spoke of some apparent
damage at the rear of the T-61 truck, which Winer was then driving. Both drivers
flatly denied, however, that they told Donald it was "new" damage, as the latter
claimed they did. The drivers' denials are more credible and are accepted. If he had
been informed, as he claims, that the damage was new and the doors would not open
or close properly and that Winer disclaimed responsibility, then it is reasonable to
believe that Donald Izzi, who had full authority as a management official, would at
least have questioned Dessler about the matter when he checked in later that day-
since Dessler had used the truck before Winer took it over. Yet, as found above,
Dessler was merely told to report at a certain hour the next morning.
Furthermore, Pat Izzi's testimony early in the hearing shows clearly that, even if
his version is to be accorded some weight, that neither he nor Donald were convinced
that Dessler was responsible for damage, if any, to the truck before discharging him.
For Pat lzzi claimed that he discharged Dessler because of his "attitude" when the
question of responsibility was raised, and that it was this "attitude" which convinced
him Dessler had, in fact, been responsible.
Donald Izzi so contradicted himself in his testimony about the truck damage that
no reliance can be placed upon his version. On direct examination he claimed that
he had a telephone call from some customer on February 4, while the truck was
being driven by Dessler, reporting damage to a pole and wires, and he added: "They
blamed Murray Dessler for it." On cross-examination, however, he has flatly denied
that the caller had accused Dessler of "doing it." Since it would appear that the
Respondent would have it believed that the damage to the truck was inflicted on this
February 4 occasion, then there is no explanation as to why some inspection was not
made immediately upon the truck's return to the terminal, and before Winer took it
over. '
In short, there is no credible or convincing evidence in the record establishing that
Dessler was responsible for any unreported damage to the T-61 truck on February 4,
or that the damage itself, of whatever nature, had anything to do with the discharge
except as an afterthought, and as an attempt to erect a pretext.
Finally, the Trial Examiner concludes and finds that Dessler was discharged to
discourage union membership and activity, and that such discrimination constituted
interference, restraint, and coercion.
3. The discharge of Frank Couitt
Not long after Dessler was discharged, Couitt arrived at the office, as instructed
by Pat lzzi According to the latter's own testimony, he immediately told this driver
that Macri had "referred me to you" about the union organizing, and demanded to
be told what he knew about it. Couitt, he further testified, so resented the apparent
accusation that he promptly turned over his key, asked for his money, and quit.
The latter claim is absurd on its face. Absent some explanation not revealed here,
it is wholly implausible that a truckdriver for some 5 years, who has led an organi-
zation drive to better his own and other drivers' working conditions, would collapse
and quit as Izzi said he did.
More reasonable is the discharge interview as described by the credible testimony
of Couitt. According to the driver, Pat Izzi opened the conversation by declaring
that he had heard he was organizing the Union-he and another "fellow." He
declared that Couitt and another driver had been seen in Boston the day before sign-
ing men up. Couitt denied it. Izzi insisted that he knew he and another were trying
to get a union in, told him to turn in his key and pick up his pay, and vowed that he
would never have a union "in here," but would close the doors first. As Couitt left,
Izzi remarked, "Don't worry, your buddy got it too."
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial Examiner concludes and finds that Couitt was discharged to discourage
membership in, and activity on behalf of, the Union, and that such discrimination
constitutes interference, restraint, and coercion.
4. The threat of layoff to Scaramuzzi
As noted above, Izzi questioned Scaramuzzi, by telephone, early in the evening of
February 5, as to his knowledge of the organizing efforts. Later that same evening,
between the discharge of Dessler and Couitt, Scaramuzzi was at the terminal. Izzi
again asked what he knew about the Union, and again Scaramuzzi disclaimed knowl-
edge. Izzi declared he had fired Dessler for trying to organize, and he had Couitt
coming down He asked Scaramuzzi who had signed cards. The driver again denied
having such knowledge. Izzi then said, according to the driver's credible testimony,
"If you don't tell me what's going on, you're going to have two weeks off." Scara-
muzzi repeated his denial of knowledge, and left.
Izzi's interrogation and threat of reprisal on this occasion constituted unlawful inter-
ference, restraint, and coercion.
5. The strike
Immediately after his discharge, Couitt telephoned Dessler and told him of his
dismissal. Dessler replied that he also had been fired, and Scaramuzzi had been laid
off for 2 weeks, and said they would be down at once at the diner, where Couitt was
calling from The three drivers then drove to the home of another driver, Phipps,
where they picked up the latter and another drivel, Herman. The five returned to
the diner. Driver Macri, previously identified, came in The drivers discussed the
situation confronting them. While they were talking, Donald Izzi came in for coffee
and as he left remarked that if they wanted to talk to him he would be in the office
nearby.
Of the employees there, three of them, Phipps, Macri, and Herman, were scheduled
to take trucks out at 2 o'clock the approaching morning. They decided that, because
of the discharges, they would not go to work, and that all would meet at the union hall
the next morning. Scaramuzzi decided to go home for needed sleep.
Omitting a number of details of lesser importance, such as Scaramuzzi's taking out
a load early the morning of February 6 after being misinformed as to other drivers by
Donald Izzi, it is established that the striking drivers met with a union representative
about 10 o'clock the next morning, and said they were on strike because of the dis-
charge of Dessler and Couitt. The latter turned over to the union representative some
14 cards signed by drivers, as will be described more fully in another section of this
Decision. The driveis then went to the office of the Union's attorney, Sheehan, where
they reported the occurrences of the preceding night and voiced the belief that drivers
then out on the road would join the strike if they knew about the happenings They
said there were trucks in New York and that they wanted to meet them as they
returned that night and inform the driveis of their action. Sheehan advised them to
be sure, if the drivers wanted to join the strike, that the trucks be left in a safe place
with someone to guard them.
That night a number of the strikers drove into Connecticut, met five Izzi trucks
coming from New York, informed the drivers of the strike as they stopped to pay toll,
and the five drivers joined them, leaving the trucks at a large A & P parking lot with
driver Phipps to watch out for them Couitt called Patt Izzi, told him the drivers of
the trucks were on strike, and he had better come and get the equipment. Police were
there at the parking lot, who approved the procedure.
By February 9, when a picket line was set up, 19 of the 22 drivers and helpers on the
payroll, as of February 6, according to a list provided the Regional Office by counsel
for the Respondent, were on strike.
The Trial Examiner concludes and finds that the Respondent caused the strike,
which began on February 6, by its unlawful discharge of drivers Couitt and Dessler.
C. The refusal to bargain
By letter of February 6 to the Respondent, counsel for the Union advised it of its
claim of majority-representative status and asked for an early date to begin negotia-
tions for a contract. On February 7 counsel had a call from Counsel Lisker of the
Respondent, asking for a copy of the demand letter and saying he was to meet with
his client the next day and would communicate with him later
On February 8 Lisker telephoned Sheehan, told him he could not meet with him on
February 10, as the latter had suggested in his letter, but might meet sometime later.
PAT IZZI TRUCKING COMPANY 1103
According to Sheehan's credible testimony, nothing was said in either telephone con-
versation concerning any possible question either as to majority or unit. It is clear
that no reason for such a question existed-most of the drivers were then on strike.
No meeting was arranged or held. The Respondent never voiced any doubt con-
cerning the majority until, in its undated answer to the complaint but received by the
Regional Office on March 31, 1964, it said it denied the allegation of an appropriate
unit, and neither admitted nor denied the allegation of majority-representative status.
The complaint alleges that an appropriate unit consists of:
All truckdrivers and helpers of Respondent employed at its Providence, Rhode
Island, terminal, exclusive' of all other employees, office clerical employees, dis-
patchers, guards, and all other supervisors as defined in Section 2 (11) of the Act.
This is the unit for which the Union, in its letter, claimed majority status as
representative.
Further ground for the finding that not until its answer was filed, was doubt as to
unit or-majority expressed by the Respondent-and even then not to the Union
involved, since no copy of its answer was served upon it, appears in a list of employees
entitled "Employees of Izzi Trucking Company as of Feb. 6, 1964," forwarded by
Counsel Lisker to the Regional Office by letter of March 4, 1964. As previously
noted, that list contains the names of 22 employees, some 19 of whom were then, or
had been, on strike.
At the hearing the Respondent, through valiant but unconvincing efforts of its two
counsel, endeavored to have it appear that: (1) three employees who operate only out
of a New York terminal should be also included in the unit, and (2) the list sent to
the Board on March 4 should have contained the additional names of a few "part
time" employees.
The Trial Examiner considers it unnecessary here to review and dispose of the
contentions made as to the various individuals who, the Respondent belatedly claimed,
should be counted in the unit. It is clear that some were hired after the start of the
unfair labor practice strike beginning on February 6, or had been discharged or had
left employment before that date. Credible evidence shows that the duties and area
covered by the few New York employees are not such as to make mandatory their
inclusion in an appropriate unit.
In short, no credible evidence was brought forward by the Respondent to show
that the unit alleged in the complaint was clearly inappropriate, or that the actual
identity of all employees in that unit on February 6 was substantially different from
that submitted to the Board, by the Respondent itself, on March 4.
At the hearing, 16 union authorization cards were received in evidence upon com-
petent identification by the individuals who signed them on or before February 6, all of
whom are listed as being on the payroll that date. Two other drivers, Frank Natale
and W. B. Phillips, also identified cards they had signed. Neither is listed, however, on
the document referred to, and there appears to be some question as to whether either
or both should be considered as being on the critical payroll. Since the majority
status of the Union does not turn on resolution of this point, it is deferred until a later
section dealing with the refusal to reinstate strikers.
Sixteen is obviously a majority of 22. It is therefore concluded and found that the
Charging Union was, on February 6,• 1964, and at all times since then has been, the
exclusive bargaining representative of all employees in the above-described appro-
priate unit.
By failing and refusing to meet and negotiate with the Union, as requested by the
Union on February 6, 1964, the Respondent, since February 8, 1964, has refused to
bargain in good faith as required by the Act, and thereby has interfered with,
restrained, and coerced employees in the exercise of their Section 7 rights.3
D. Interference, restraint, and coercion during the strike
Upon the credible testimony of the employees involved are based the following
findings:
(1) As noted above, Pat Izzi queried driver Robert Natale regarding the Union
just before the latter left the terminal on a trip the evening of February 5. Early the
next morning, February 6, Natale called Pat Izzi from Philadelphia to report some
delay in unloading his truck. Izzi told Natale he had "just fired Murray (Desslei)
and Couitt"-and that they were the union instigators. Izzi added, "Why don't you
tell me the truth? You must be in on it." Natale again denied knowledge on the
point, whereupon Izzi told him to get the load off, get back to New York, pick up a
a The complaint, as amended, alleges certain other conduct of a positive nature as also
being violative of Section 8(a) (5). Such matters will be recited in a later section of this
Decision.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
load and go directly to Boston, promising him a "big, fat bonus." Upon reaching
New York, Natale called the Providence terminal and was told by Donald Izzi that the
"fellows were out on strike." He gave the driver instructions regarding the delivery
in Boston, and promised him a bonus after making it. Natale, however, joined the
others on strike when reaching the Connecticut toll point, as previously noted. After
the five trucks were parked early the morning of February 7, Natale called Pat Izzi to
tell him where the trucks were being left and that he had joined the strike. Izzi offered
him $25 at first, and then $50 to bring the truck into Providence. The driver declined.
(2) Drivers DiMillio and Falco took out loads early the morning of February 6,
before the union meeting. After they returned, and in the evening of that day, they
were called to the terminal. Pat Izzi told them that the "boys" on strike were at a
nearby restaurant, and instructed them to go over and try to get them back Izzi told
Falco to inform the strikers that they would all get a raise in pay if they would, in
effect, drop the Union.
(3) DiMillio and Falco talked to the others on strike, as directed and although
some of the latter started for the terminal, they turned away before e:'tering. When
back in the office Falco finally told Izzi that all of his drivers had signed union cards,
including himself. Pat Izzi broke down, and declared that the Union would not get
in, and he would "fight them right to the end "
(4) Both Falco and DiMillio continued to work for another day or two. On
February 8 Pat Izzi gave DiMillio $50 for "sticking by" him
(5) After the picket line was put up on February 9, DiMillio demurred at crossing
it. Izzi finally persuaded him, promising to "take care of" him later. And his pay was
immediately raised by $10 a week.
(6) On March 27 Pat Izzi met DiMillio at a gas station and threatened- "When I
get through with you, you will wish the hell you never knew me." He told the driver
he would be "walking the street a long time" and clearly implied that he would see to
it that he did not obtain work elsewhere.
(7) Early in the morning of February 6, after the meeting of the drivers at the
diner following the discharge of Dessler and Couitt, driver Napolitano came to the
terminal office and remarked to Donald Izzi that he had learned the men were on
strike. Izzi told him not to worry, that organizing had been tried before and failed,
that Dessler and Couitt had been fired for trying to organize, and that these two
would never again work for the Company.
The above-described threats, promises of benefit, and the granting of benefits, for
the clear purpose of discouraging the employees in their exercise of the rights to engage
in union and concerted activities constituted inteiference, restraint, and coercion.
E The unconditional offer to return to work
On March 20, 1964, counsel for the Union sent a letter to the Respondent offering
unconditionally and on behalf of each of the 19 listed drivers who had gone on strike
on February 6 or within a few days thereafter, to return to work. The letter also
asked that the Union be informed of the "time, date and place each employee is to
return to work." The list contained the following names-
Frank Couitt Edward Mitchell Wilfred Pierce
Rocco DiMillio Patrick Macri Wesley Phipps
Murray Dessler Carmino DiStefano Anthony Scaramuzzi
James Dias Joseph Mazzatto Samuel Wirer
Joseph Ferle Robert Natale Walter Phillips
Pasquale Falco Frank Natale
Edward Herman _ Silvio Napolitano
As in the case of the Union's earlier letter requesting to bargain, the Respondent
failed to reply to this offer, on behalf of all strikers, to return to work.
On March 25 counsel for the Union telephoned Attorney Novogroski regarding the
lack of response to his letter of March 20 Novogroski said he would discuss the
matter with his client that afternoon and then let him know. Novogroski did not
call union counsel as promised.
Not until April 3 did the Respondent, through its counsel, communicate with the
Union. On that date, by regular mail which was not received by the Union until
April 6, counsel for the Respondent sent counsel for the Union a letter stating that it
had, on the same date, sent letters to each of eight listed individuals offering to permit
them to return to work at 7 a m. on April 6. Since the individual letters to employees
had been sent by registered mail, counsel for the Union had been informed by some
of the recipients of such offer before April 6.
PAT IZZI TRUCKING COMPANY 1105
Neither the letter to the Union nor to the individuals even suggests any reason for
the Respondent's selection of individuals to recall or why all 19 who had offered to
return were not recalled.
Only one of the eight who received the Respondent's letter of recall, dated April 3,
accepted the offer and returned to work-Carmino DiStefano. The others, appar-
ently learning that all who had gone on strike were not being permitted to return,
failed to report on April 6 as instructed. On April 9 the Respondent sent individual
letteis to two more strikers, neither of whom returned. None of the remaining nine
strikers, whose unconditional offer to return to work was received by the Respondent,
have been offered reinstatement
A few days after the individual letters were received, all who had been on strike,
with the probable exception of DiStefano who did go back to work, met with the
union officials It was decided that such a partial reinstatement offer was not valid,
since it obviously was designed to have the effect of arraying one-half of the strikers
against the other half, thereby destroying the union majority, which throughout these
events the Respondent had refused to recognize.
As noted, the Respondent has chosen to ignore its obligations under the Act to
deal with the Union as the exclusive representative of its drivers. It has never
informed this lawful representative of any reason why it has refused to reinstate all
of the strikers.
Nor at the hearing did the Respondent offer any clear claim as to why it refused
to answer the Union's letter of March 20 or to take back all of the strikers-with the
exception of Murray Dessler. As to him, the amended answer does allege that "he
had disqualified himself for reinstatement" by "acts of misconduct during a strike."
This claim of "misconduct" rests chiefly upon the testimony of Pat Izzi, whom the
Trial Examiner has found unreliable as a witness Even if full credit is given to
Izzi's testimony on the three or four incidents involving Dessler, all of them are of a
minor nature-when considered in the light of the fact, generally acknowledged, that
truckdrivers on strike seldom display the demeanor of pallbearers on parade. One
incident concerned a minor tussle with a replacement on the picket line. According
to a police report on the item, however, it appears that the replacement himself admit-
ted that he might have been responsible for the incident, having spit upon Dessler as
he went through the picket line and no complaint was filed.
Izzi also claimed that Dessler was arrested for throwing eggs at a vehicle. Only
on cross-examination and after being confronted by a threat of possible perjury
proceedings, did Izzi finally admit that he was well aware that Dessler had been tried
and acquitted of the alleged offense.
Izzi also contended that Dessler called him obscene names. Called in rebuttal,
Dessler candidly admitted the fact, explaining that such action followed and was
precipitated by Izzi's having almost daily called him or his wife, calling them "kikes"
and threatening to "blackball him" in the industry. Izzi was not recalled to deny this
accusation.
In short, the Trial Examiner finds no merit in the claim by the Respondent that
Dessler has been refused reinstatement because of misconduct during the strike.
Their names being included among the list of strikers who unconditionally offered
to return to work, as noted above, the status of Frank Natale and W. B. Phillips is
now considered. It appears to be the Respondent's somewhat confused contention
that both drivers had been removed from the payroll before February 6, and were
not employees on that date.
Natale, as a witness, admitted that he had been discharged on January 24 by
Donald Izzi, as he had been two or three times in the past. (Donald Izzi is Natale's
godfather.) But he testified credibly, and it is found, that he was recalled to work
on Friday, February 7, but thereafter went on strike with the others.
As to Phillips, credible testimony is to the effect that upon return from a trip on
February 1, he was questioned by Donald Izzi concerning some trouble he had
reported with the truck clutch, and told that a mechanic would check it and he would
talk to him about it later. The next day he reported for work, but Donald told him
to see Pat Izzi first, and to call in the next morning. Izzi was out of town the next
day and Phillips could not reach him On Tuesday the driver went to the tei minal
where he received his weekly pay from Donald, who merely said to see Pat the next
day. On Wednesday he called in but, as Pat Izzi's own testimony shows, he was away
from the Providence terminal until late in the day, when he fired Dessler and Couitt.
Phillips called in Thursday morning, after the strike had been called, and for the
first time was able to talk to Pat Izzi. On this occasion Izzi told him, "You are
finished."
770-076-65-vol. 149-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undisputed that Phillips was never required to turn in his key, as clearly was
the custom when a driver was fired. He was not told he was "finished" until after the
strike began on February 6.
While it may well be that the driver's employment was in a somewhat uncertain or
suspended status from February 1 until 6, the preponderance of credible evidence
establishes that whatever may have been Pat Izzi's intention earlier in the week,-he
took no affirmative action until after he had fired Dessler and Couitt, precipitating
a strike of the other employees. Upon consideration of the entire record and Pat
Izzi's impulsive antiunion conduct, the Trial Examiner is convinced and finds that
Phillips was not discharged on February 6 because of any past dereliction, but
because Izzi believed him to be a union adherent-a belief fully confirmed 2 or 3
days later when, as found above, Falco told him all drivers had signed union cards.
In summary as to these two drivers, the Trial Examiner believes and finds that
both Natale and Phillips must properly be considered as strikers who have been
refused reinstatement.
The Trial Examiner is in agreement with General Counsel's persuasive argument,
well supported by citations, to the effect that under circumstances existing here the
Respondent, having caused the strike and having tried by various unlawful means to
break it, was obligated to reinstate all strikers upon receipt of the unconditional offer
to return to work, and that it failed in such obligation by selecting a few from the
total number to be recalled. Consistent with this conclusion, it is further found that
the individuals who did receive personal offers to return were under no obligation to
accept. To have done so would have permitted the employer to benefit by its own
unfair labor practices and have yielded to its clear purpose and intent-destruction
of the Union as their majority representative.
F. Final conclusions
It has been concluded above that the Respondent failed and refused to bargain with
the Union by ignoring its demand for negotiations. It is now concluded that it also
refused to bargain as required by the Act by other conduct; including: (1) failing and
refusing to communicate with the Union directly concerning its unconditional offer
to return all strikers, whom it lawfully represented, to work on March 20; (2) bypass-
ing the Union and offering jobs only to some of the strikers; (3) changing wage rates
for employees who did not immediately go on strike; and (4) promising and granting
rewards and benefits to nonstrikers in order to undermine the Union's majority status.
It is also concluded, in the context of this case, that by refusing to reinstate all strikers
,and selecting only some to be reinstated, the Respondent discriminated as to hire and
tenure of employment to discourage union membership and activity, and that such
discrimination further interfered with, restrained, and coerced employees in the ex-
ercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection' with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
-and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom, and take certain affirma-
tive action to effectuate the policies of the Act.
It has been found, herein that the Respondent unlawfully discharged certain
employees, and unlawfully refused reinstatement to all strikers who unconditionally
offered to return to work after a strike caused by the Respondent's unfair labor prac-
tices. It will be recommended that the Respondent offer to employees Dessler and
Couitt and to all employees listed on the attached Appendix A, immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice,
to their seniority or other rights and privileges, and make them.whole for any, loss of
earnings suffered as a result of the discrimination against them , by payment to each of
a sum of money he would normally have earned as wages from the, date of the dis-
crimination (in the case of the employees listed on Appendix A, March 20, 1964) to
the date of full offer of reinstatement , less net earnings during said period , and in the
manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and
with interest on the backpay due in accordance with Board policy set out in Isis
Plumbing & Heating Co., 138 NLRB 716.
PAT IZZI TRUCKING COMPANY 1107
It will also be recommended that the Respondent, upon request, bargain collectively
in good faith with the Charging Union, and if an understanding is reached, embody
such understanding in a signed agreement.
In view pf the serious and extended nature of the Respondent's unfair labor prac-
tices it will be recommended that it cease and desist from infringing in any manner
upon the rights of employees guaranteed by Section 7 of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following.
CONCLUSIONS OF LAW
1 Local 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is a labor organization within the meaning of Section 2(5)
of the Act
2 All truckdrivers and helpers of the Respondent employed at its Providence,
Rhode Island, terminal, exclusive of all other employees, office clerical employees,
dispatchers, guards, and all supervisors as defined by the Act, constitute a unit appro-
priate for the purposes of bargaining within the meaning of Section 9(b) of the Act.
3. By virtue of Section 9(a) of the Act, the said labor organization has been, since
February 6, 1964, and now is, the exclusive representative of all employees in the said
unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
4. By refusing, since February 8, 1964, to bargain collectively in good faith with
the said labor organization as the exclusive representative of all employees in the said
appropriate unit, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (5) of the Act
5. By discriminating as to tenure of employment and reinstatement, to discourage
membership in, and activity on behalf of, the above-named labor organization, the
Respondent has engaged in and is engaged in unfair labor practices within the meaning
of Section 8(a) (3) of the Act
6. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon the
entire record in the case, the Trial Examiner recommends that the Respondent, Patrick
F. Izzi d/b/a Pat Izzi Trucking Company, its officers, agents, successors, and assigns,
shall:
1 Cease and desist from:
(a) Refusing to bargain collectively in good faith with Local 64, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of all employees in the following appropriate unit:
All truckdrivers and helpers employed at its Providence, Rhode Island, terminal,
exclusive of all other employees, office clerical employees, dispatchers, guards, and all
supervisors as defined by the Act.
(b) Interrogating employees concerning their union membership and sympathies
in a manner violative of Section 8(a) (1) of the Act.
(c) Promising or granting benefits to discourage union membership and activity.
(d) Threatening economic reprisals to discourage union membership and activity.
(e) Discouraging membership in the above-named, or any other labor organization,
by discharging, laying off, suspending, or refusing to reinstate any of its employees
because of their union membership or activity, or in any other manner discriminating
in regard to hire or tenure of employment, or any term or condition of employment.
(f) In any other manner interfering with, restraining , or coercing employees in the
exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the Board finds will effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the above-named labor organization as
the exclusive representative of the employees in the above-described appropriate unit,
and embody any understanding reached in a signed agreement.
(b) Offer immediate and full reinstatement to their former or substantially equiva-
lent positions , without prejudice to their seniority or other rights and privileges, to
employees Frank Couitt and Murray Dessler and to employees listed on Appendix A,
and make them whole for any loss of pay they may have suffered by reason of the
unlawful discrimination against them , in the manner prescribed in the section above
entitled "The Remedy."
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the determina-
tion of the amounts of backpay due and right of reinstatement under the terms
described herein.
(d) Post at its Providence, Rhode Island, terminal, copies of the attached notice
marked "Appendix B." 4 Copies of the said notice, to be furnished by the Regional
Director for Region 1, shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 1, in writing, within 20 days from the
date of the receipt of this Trial Examiner's Decision, what steps the Respondent has
taken to comply therewith.5
'In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Circuit Court of Appeals, the words "a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"a Decision and Order."
'In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
Rocco DiMillio Edward Mitchell Wilfred Pierce
James Dias Patrick Macri Wesley Phipps
Joseph Ferle Joseph Mazzatto Anthony Scaramuzzi
Pasquale Falco Robert Natale Samuel Winer
Edward Herman Frank Natale Walter Phillips
Silvio Napolitano
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the'National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in, or activities on behalf of, Local 64,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization, by discriminatorily discharging
our employees, by refusing reinstatement to unfair labor practice strikers upon
their unconditional request, or by discriminating against employees in any other
manner in regard to their hire or tenure of employment, or any terms or con-
ditions of their employment.
WE WILL NOT unlawfully interrogate our employees concerning their union
membership, desires, and activities.
WE WILL NOT promise or grant benefits in an effort to discourage joining or
remaining members of the Union, or engaging in concerted activities.
WE WILL NOT threaten economic reprisals in an effort to discourage union
activities.
WE WILL offer to Frank Couitt and Murray Dessler and to the following
,named strikers, immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of pay suffered as a result of
the discrimination against them:, ,
Rocco DiMillio Edward Mitchell Wilfred Pierce
James Dias Patrick Macri Wesley Phipps'
Joseph Ferle Joseph Mazzatto Anthony Scaramuzzi
Pasquale Falco Robert Natale Samuel-Winer
Edward Herman Frank Natale Walter Phillips' - -
Silvio Napolitano
CONTINENTAL CAN COMPANY, INC. 1109
WE WILL bargain collectively in good faith with Local 64, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
as the exclusive representative of all employees in the bargaining unit described
below, with respect to rates of pay, hours of employment, and other conditions
of employment and, if an understanding is reached, embody such understanding
in a signed contract. The bargaining unit is:
All truckdrivers and helpers employed at our Providence, Rhode Island
terminal, excluding all other employees, office clerical employees, dispatch-
ers, guards, and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights guaranteed by Section 7 of the Act.
PATRICK F. IZZI D /B/A PAT Izzi TRUCKING COMPANY,
Employer.
Dated------------------- By------------------------------------------
(Representative) (Title)
NoTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Tele-
phone No. 523-8100, if they have any questions concerning this notice or compliance
with its provisions.
Continental Can Company, Inc. and Mickey Greco
United Papermakers and Paper Workers, AFL-CIO and Mickey
Greco. Cases Nos. 02-CA-728 and 22-CB-301. November 07,
1964
SUPPLEMENTAL DECISION AND ORDER
On April 17, 1962, the Board, by a duly designated panel (Chair-
man McCulloch, and Members Rodgers and Leedom), issued a De-
cision and Order in this case (136 NLRB 1135), attaching the Trial
Examiner's Intermediate Report and adopting his evidentiary find-
ings, but (with Chairman McCulloch dissenting) not his conclusions
that the Respondents thereby violated Section 8 (a) (1) and (3) and
Section 8(b) (1) (A) and (2) of the Act. The Board therefore
dismissed the complaints.
On April 22, 1964, the United States Court of Appeals for the
Third Circuit filed its Opinion (331 F. 2d. 165), holding that the
evidentiary findings compelled the conclusion that the discharges
were discriminatorily motivated, and remanding the case to the
Board for further proceedings in conformity with the Opinion.
Thereafter, the Charging Party and the Respondents filed state-
ments of position and briefs.
Pursuant to the remand, the Board has reconsidered the case, and
hereby vacates its original Order and now adopts not only the find-
149 NLRB No. 92.