Peter Carando, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1969

178 N.L.R.B. 642 (N.L.R.B. 1969)

642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peter Carando , Inc. and Local 33, Amalgamated
Meat Cutters and Butcher Workmen of North
America , AFL-CIO . Case 1-CA-6457
September 25, 1969
DECISION AND ORDER
BY MEMBERS FANNING , BROWN, AND ZAGORIA
On February 28, 1969, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had
not engaged in certain other alleged unfair labor
practices. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Peter Carando, Inc.,
Springfield, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set
'In adopting the Trial Examiner 's findings that the Respondent violated
Sec 8 ( a)(1) when Peter Carando, Jr said that ( I) those who didn't like the
family business arrangement could "get out ", (2) if the employees were
represented by the Union their overtime would be reduced , (3) the
employees would enjoy greater vacation benefits at the new plant , and (4)
under the Union the employees might lose their profit-sharing plan, we
note particularly the timing of such remarks , since they were made shortly
after the Union's demand for recognition and constituted apparent
promises of benefit and threats of retaliation to deter the Respondent's
employees from joining the Union
We reject , upon a careful examination of the record , the Respondent's
contention that the Trial Examiner manifested prejudice and partisanship
throughout the hearing and in his Decision The trial Examiner 's findings
are based , in part , upon credibility determinations to which the Respondent
has excepted After careful review of the record, we conclude that these
credibility findings are not contrary to the clear preponderance of all
relevant evidence Accordingly we find no basis for disturbing these
findings Standard Drv Wall Products, 91 NLRB 544 enfd 188 F 2d 362
(C A 3)
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: Copy of the original
charge herein was served upon Respondent on September
16, 1968,' The complaint issued on October 3, and the
hearing was held on December 16 and 17. The issues
litigated related to alleged violations of Section 8(a)(1)
and (3). After the hearing briefs were filed by Respondent
and the General Counsel.
Upon the entire record ,' including my observation of
the witnesses, I adopt the following findings and
conclusions,
1 RESPONDENT'S BUSINESS
Peter Carando. Inc , a corporation, herein called
Respondent, is engaged at its plant in Springfield,
Massachusetts, in the manufacture, sale and distribution
of sausages. During its latest fiscal year Respondent sold
and shippped products valued at more than 550,000 to
out-of-State points. Respondent is engaged in commerce
under the Act.
fl. THE UNION
Local 33, Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, hereinafter
called the Union , is at labor organization under the Act.
In. THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues: (1) Whether
Respondent violated Section 8(a)(1) of the Act by various
promises, and threats, and by soliciting employees to
report on the Union activities of other employees,' and (2)
whether Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Gugliette?
A. Sequence of Events
Respondent employs about 100 in its plant, where it is
engaged in the manufacture of sausages. The Union
launched its campaign to organise the plant in July,
visiting employees at their homes and, beginning in
August, conducted meetings attended by a number of
employees. On August 27. Gugliette, maintenance helper,
signed a union card; and, several employees were invited
to meet union agents at his home on September 10. When
none of them appeared, it was arranged by the Union with
Gugliette that a larger meeting would he held on
September 18, and that he would pass word of that
meeting to his fellow employees at the plant. fie did so
the next day. During the same day he was discharged,
allegedly for incompetence. The next day, September 12,
the Union requested recognition by Respondent as the
bargaining agent of the employees, which request was
rejected. On September 17 and 30, Respondent's vice
president, Carando, Jr., delivered speeches to the
assembled employees. the general purport of which was
that the employees had nothing to gain from a union As
'All dates are in 1968, unless otherwise stated
'For corrections of the transcript of testimony , see the order of February
14, 1969.
'Certain allegations of 8(a )( I) violations which were struck at the hearing
will not here be considered
1,79 Ni RR Nn 100
PETER CARANDO, INC. 643
to specific items in these speeches, there was conflicting
testimony which will be discussed below.
B. Discussion
1. The 8(a)(1) issues
Gugliette testified that late in August, while he was
working on a conveyor in the "sausage cooler," Lalli, an
admitted supervisor, entered the room, closed the door,
and, addressing some 12 employees in the room, alluded
to the start of the Union's campaign, and warned them
that, it they adhered to the Union, they would lose their
benefits and Respondent would reduce their work hours;
and that discussion ensued between Gughette and Lalli as
to whether the employees were already receiving a 2-week
vacation, Gugliette taking the position that they were not,
and Lalli insisting that they were. Gugliette added that
Lalli concluded his remarks by advising the employees
that it was "up to you people it you want the Union."
Lalli denied that there was any such incident.
Although, under cross-examination, Gugliette amplified
his prior account of Lalli's remarks by citing a threat
therein to eliminate Respondent's existing profit sharing
plan, the amended complaint alleges only a threat by Lalli
to reduce overtime.' Accordingly, that will be the only
matter here considered.
Respondent points to the fact that there were certain
variations between Gugliette's versions under direct
examination and under cross-examination, one of which
has already been mentioned. However, these variations did
not represent any direct conflict, but consisted in the
furnishing of more details about Lalli's speech at one
point than at another.' Respondent's brief also cites the
failure of the General Counsel to call any of the dozen or
so employees to whom Lalli allegedly spoke However,
Gugliette testified that he did not know their names" and
there was no evidence nor contention that the General
Counsel knew their names In any event, Respondent was
in a better position to ascertain what employees worked in
that area of the plant during August, and, if their
testimony would have been favorable to Respondent, it is
difficult to understand why it failed to call them. Thus, if
any inference is to be drawn from their nonappearance, it
would seem adverse to Respondent rather than the
General Counsel. Moreover, as related below, Lalli proved
himself' an unreliable witness with regard to other matters.
As for Gugliette, during his lengthy sojourn on the witness
stand, he impressed me as rather naive, and, in any case,
as not sufficiently astute' to invent the foregoing,
circumstantial account of the cooler room incident.
Accordingly, I credit Gugliette and find that on the
foregoing occasion Lalli warned the employees that, if
they adhered to the Union, Respondent would reduce their
hours of work, and that by such threat of reprisal
Respondent violated Section 8(a)(1).
'At the hearing , the General Counsel orally amended the original
complaint by adding an allegation of a threat by Lalh to revoke an existing
profit-sharing plan Because of the multiplicity of such amendments offered
at the hearing , the Examiner instructed the General Counsel to submit in
writing an amended complaint containing all such amendments Such a
document was subsequently submitted , and, with respect to the foregoing
"sausage cooler" incident , alleges only a threat to reduce overtime.
'The only item as to while there appears to be any possible conflict was
whether, as Gugliette testified on direct , Lalli said, " . there was a union
starting around ," or, as Gugliette testified on cross, Lalli said that he
"heard a rumor that the Union is starting in here " I do not regard such a
variation on an immaterial point as significant , particularly when one
All the other 8(a)(1) allegations relate to the speeches
delivered by Carando, Jr, on September 177 and 30. The
amended complaint alleges that these speeches contained
the following promises and threats, calculated to influence
the employees' union sentiments : (a) a threat of loss of
overtime; (b) a threat to abolish profit sharing; (c) a
threat to discharge Union adherents; (d) a promise of
increased vacation benefits; and (e) a promise of higher
wages.
In addition, it is contended that in the foregoing
speeches employees were solicited to report on the union
activities of other employees.
The General Counsel relied on the testimony of two
employees as to the content of the speeches. Respondent,
on the other hand, relied principally on the testimony of
Carando. Sr., Respondent's president, and Carando, Jr ,
its vice president, that the speeches were read in their
entirety by Carando, Jr , from a prepared text, and that,
after such reading. the elder Carando paraphrased his
son's remarks in Italian for the benefit of those employees
who were not sufficiently versed in English; and,
Respondent introduced in evidence the text of the
speeches, as verified by the Carandos.
There remains to be considered the various conflicts
between the foregoing text and the testimony of the
General Counsel's witnesses.
Stellato, who was still in Respondent's employ, testified
that in the first speech Carando, Jr., asserted that under a
union the employees, would lose overtime, and promised
that vacation benefits would be improved after
Respondent moved to its new plant, which was then under
construction; and that in the second speech Carando, Jr.,
warned that the employees might lose their profit-sharing
plan under a union, urged the employees to notify him at
once, if they were solicited in the plant to sign a Union
card, and declared:
We have always been like a family The ones who don't
want to join the family get the hell out.
Stellato testified that the first speech was read from a
sheet of paper, but the second was not.
Rigazio, a former employee, testified that in his
"second" speech Carando, Jr., inter alia , promised that
after the move to the new building, if the employees
worked only 40 hours a week they would receive the same
earnings as they were then receiving for 49 hours' work,
and stated that Respondent's was a family business and
that, "if you didn't like the family, to get the hell out."
According to this witness. this speech was read by
Carando, Jr., from a document in his hand. Although the
witness described this as the "second" speech, it developed
that he meant only that it was the second of two speeches
delivered on the same day to different groups of
employees, and, when asked specifically whether it was
delivered on the 30th, answered only that he thought so.'
However , since Rigazio's testimony as to the contents of
the speech included references to matters (other than those
cited above) which, for the most part, appear only in the
prepared text of the September 17 speech, it is found that
the speech concerning which he testified was the one
delivered on that date.
considers the notorious tendency of persons not trained in the law to
equate hearsay reports with statements of fact
'As a maintenance man, he was not regularly employed in the sausage
cooler but worked throughout the plant.
'Although some employee testimony gave September 23 as the date of
the first speech, 1 accept the testimony of the Carandos that the correct
date was September 17.
'Up to that point the questioning of Rigazio had proceeded on the
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Carandos insisted that both speeches were read by
Carando, Jr., from a prepared text, to which he adhered
faithfully, and he specifically denied that he made the
various threats and promises ascribed to him by Stellato
and Rigazio. Daponde, an employee witness for
Respondent, corroborated that Carando, Jr., read both
speeches.
The text of the first speech introduced in evidence,
recited, inter alia , that the Union had made a request for
recognition, which was rejected by Respondent, reminded
the employees of the various benefits conferred on them
by Respondent, including pay raises and profit sharing,
implied that the Union's only purpose was to extract dues
and other monies from the employees, and extolled the
"cooperative family spirit" prevailing in the plant. The
second speech, inter alia, imputed to the Union various
misrepresentations, referred to alleged threats by solicitors
for the Union that those who refused to sign a union card
would lose their jobs, urged that such threats be reported
immediately to Respondent for appropriate action,
asserted that Respondent would not "let anybody push
our employees around," and concluded:
We intend to do everything legally within our power to
protect people from having a Union forced upon them
against the will of the majority. Don't let yourselves be
tricked or misled by people who are not your friends.
Don't be afraid to stand up for your rights because we
will protect you.
While I am satisfied that the first speech, at least, was
read from a prepared text, the question remains whether,
in addition, although seeming to read therefrom, the
speaker interpolated remarks not appearing therein, such
as those described in the testimony of Stellato and
Rigazio. Unlike the. Carandos, neither of them appeared
to have anything to gain by their testimony,' and Stellato
must have been aware that he was risking his employer's
displeasure by so testifying.
While the recollection of Stellato and Rigazio was
fragmentary and coincided on only one point-the
injunction to "get out," addressed to those who did not
share in the "family spirit"-they, at least, displayed a
better recollection of the matter than Respondent's own
employee witnesses. Of all such that were called, only
Daponde was questioned by Respondent's counsel about
the speeches, and, apart from testifying that they were
read, he exhibited a total ignorance of the matter, as did
another such witness (Garvey) in response to questions
asked by the Examiner.10 Accordingly, I credit the
mutually corroborative testimony of Stellato and Rigazio
that Respondent indicated, in effect, that those who
preferred the Union to the "family" were persona non
grata and their departure would be welcomed.
Presumably, it is this remark that is alleged by the
General Counsel to constitute a threat of discharge. While
it falls short of spelling out such a threat, it clearly
bespoke Respondent's displeasure with such
nonconforming employees, and was calculated to render
them apprehensive, if not about their job security, at least
about their prospects of favorable consideration for
promotion, merit raises , or other preferments . It is found
that, by thus stigmatizing union adherents as undesirable
assumption that his testimony related to the September 30 speech (No
questions were asked him at the hearing about a speech on any other date
'There was no evidence that they were union adherents . Rigazio, in any
event, no longer had any stake in the Union 's campaign, since he was not
in Respondent 's employ at the time of the hearing.
and adjuring them to leave the plant, Respondent violated
Section 8(a)(1).
As already related, Stellato testified, also, that in the
first speech there was a threat of loss of overtime under
the Union and a promise that vacation benefits would be
improved at the new plant. Rigazio failed to corroborate
this. However, in view of the fact that the foregoing threat
of loss of overtime repeats the note sounded by Lalli in
his August speech, and, in view of the other,
aforementioned circumstances favorable to Stellato's
credibility, I find that Carando, Jr., did threaten that, if
the employees came to be represented by the Union,
Respondent would reduce overtime and at the same time
promised greater vacation benefits after the move to the
new plant. Even if it be assumed that the foregoing
promise was not impliedly conditioned on rejection of the
Union, I find from its timing and context that the purpose
thereof was to discourage union activity. It is, accordingly,
found that Respondent thereby additionally violated
Section 8(a)(1)."
Stellato's testimony that in the September 30 speech
the employees were warned that under a union they might
lose their profit-sharing plan was neither corroborated nor
contradicted by Rigazio, who, as found above, testified
only concerning the September 17 speech. For reasons
already stated, Stellato is credited, despite the denials of
the Carandos, and it is found that Respondent thereby
violated Section 8(a)(1) of the Act.
Stellato testified that in his second speech Carando, Jr.,
told the employees to inform him at once if "anybody
goes running to the shop and try to make anybody sign a
Union card ... " The General Counsel contends that this
constituted unlawful solicitation of employees to inform
on the union activities of other employees. However, it is
inferred that Stellato's testimony here has reference to the
following statement in the prepared text, which was
prefaced by a charge that certain employees were
threatening others with loss of their jobs, if they refused to
sign a union card:
We wish to make it clear that these are lies
UNDER NO CIRCUMSTANCES will anyone lose his
job at CARANDO'S because he refuses to belong to a
Union. If any employee threatens or pesters you during
working hours with these lies or threats, I want you
immediately to report this incident . . . to the office,
and I assure you that appropriate action will be taken.
Since it is apparent from the foregoing that Respondent
was seeking information only about coercive solicitation,
"For a more detailed discussion of such testimony , see the text , below.
"Stellato testified that in the second speech Respondent announced an
increase in health insurance benefits in the form of an enlargement of
hospital room coverage to $42 a day Since such an announcement does
appear in the text of the first speech, it is inferred that Stellato was
mistaken when he related this to the second speech . As to the legality of
this, although the matter is treated in the General Counsel 's brief, it is not
alleged in the amended complaint Moreover, I credit the uncontradicted
testimony of Carando , Jr, that at this point he was merely reminding the
employees of a past benefit, the increase in hospital room coverage having
been effected, and publicized to the employees , on July 20, and there is no
evidence that Respondent on that date had any knowledge of the Union
campaign Accordingly, I find no violation in this regard
As found above, Rigazio ascribed to Carando, Jr., a statement in his
first speech to the effect that, if, after the move to the new building,
weekly work hours declined to 40, the employees would still receive the
same pay as they were then getting for 49 hours Stellato failed to
corroborate this . At any rate, since, even if Rigazio is credited, this
promise involved a double contingency - the removal to the new plant and a
decline in work hours-1 deem it too insubstantial to warrant a violation
finding
PETER CARANDO, INC. 645
which would not be protected by the Act, I find no
violation here.
2. The discharge of Gugliette
According to Respondent's records, Gugliette was hired
in March 1963,12 at a rate of $1.50 an hour as an
unskilled laborer. About a year later, he began to work as
a maintenance helper under the direction of Fields on a
full-time basis, except for occasional, temporary
assignments to other work. The maintenance supervisor
was Lalli, who, in addition, supervised a production
operation and had some purchasing duties. In December
1967, when Fields quit, Lalli took over the direction of
Gugliette's work, which arrangement continued until his
discharge on September 11. By that time Gugliette's
hourly rate had risen from $1.50 to $3.04, and $.70 of this
increase was granted during the last 12 months of his
employment, of which amount only $ 20 represented
plantwide raises," the balance of $.50 being presumably
individual increases. Of this amount, 24 cents was granted
late in August, which it is inferred represents the S10 a
week increase which, it is agreed. was granted to Gugliette
at that time in consideration of his relinquishing certain
outside work. However, even if one does not count this,
the fact remains that during the last 12 months of his
employment, during most of which period he worked
under Lalli, Gugliette received raises totaling 26 cents an
hour, which must be considered as merit increases.
Insisting that he was, nevertheless, dissatisfied with
Gugliette's performance, Lalli cited three examples of his
incompetence during 1968. beginning with a steam pipe
incident in April, which was followed by a canning
machine episode in August and a steam valve problem on
September 11, which last event allegedly triggered
Gugliette's discharge.1° According to Lalli, the first of
these incidents- in April -prompted him to complain to
Carando, Sr.. that he could no longer work with
Gugliette, and Carando, Sr., promised to try to find
someone to fill the vacancy created by Field's departure.
Lalli added that, after the canning machine incident in
August, his initial reaction was, again, to complain to
Carando, Sr , who counselled patience, adding, "We are
going to try to get a person. and when we do, this
problem will be resolved."
While Lalli's foregoing testimony as to his complaint in
April was substantially corroborated by Carando. Sr., he
explained that at the time his intention was not to replace
Gugliette but to find someone to take over Lalli's function
of directing Gugliette's work.15
Carando, Sr., continued that even before April he had
been looking for a replacement for Fields, and that in
May he approached Brisbois, who had been servicing
certain of Respondent's equipment, and offered him
Fields' fob, that Brisbois demurred at first, but, finally.
early in August, promised to come to work for
Respondent that fall, and it was arranged that he would
meet with Carando, Sr., 3 weeks before entering on duty
"Gugliette thought his hiring date was March 1962. 1 deem
Respondent's records more reliable.
"See Resp Exh. 2
"Although denying any culpability with regard to the other two
incidents , Gugliette admitted that he was responsible for the damage to the
canning machine. In view of this admission , no useful purpose would be
served by attempting to resolve conflicting testimony as to the precise
nature of his mistake on that occasion
"As to the canning machine incident, according to Carando , Sr., he gave
only a noncommittal response to Lalli's complaint.
to discuss terms. As to the contemplated effect of the
hiring of Brisbois on the retention of Gugliette, the
witness gave two somewhat different accounts. Under
direct examination, he seemed to say that when, at their
May meeting, Brisbois asked what would become of
Gugliette, the witness rejoined that it would be necessary
to discharge him, and the witness added that, in reporting
these discussions to Lalli, the witness repeated that, when
Brisbois came, Gugliette would have to go. Although this
was corroborated by Lalli," Carando, Sr., under
cross-examination, stated that he told Brisbois that he was
not sure whether he would discharge Gugliette, and the
witness acknowledged that he did not actually decide to
discharge Gugliette until the events of September 11,
discussed below, and that, had Gugliette's work improved
after his $10 raise, he would have been retained even after
Brisbois reported. The latter did not in fact report until
early November and Lalli averred that during the interval
of about 7 weeks between Gugliette's discharge and
Brisbois ' arrival Lalli had to do all the maintenance work
himself, as best he could."
Both Carando. Sr., and Lalli agreed at the hearing that
the decision to give Gugliette the $10-a-week raise in
August (only a few days after the canning machine
incident, referred to above) was prompted by the hope
that his efficiency would improve if he curtailed his
outside work and that Gugliette was warned separately by
each of them at that time of discharge, if he did not show
any improvement. However, Gugliette' s version was that
he was notified of the raise by Carando, Sr., who stated
only that it was conditioned on his giving up his outside
work, and that he did give up the bulk of such work, and
Gugliette denied that he had ever been warned of
discharge.
Thus, even if one credits Carando. Sr., who assumed
responsibility for the ultimate decision to discharge
Gugliette, the fact that he had been seeking since early in
the year to find a fully qualified maintenance man did not
mean that he had decided to discharge Gugliette, and it
was in fact his intention before September 11, to have
Brisbois relieve Lalli of the maintenance duties he had
inherited from Fields, and to have Gugliette continue as
Brisbois' helper. In any event, Lalli admitted that it was
Respondent's normal practice not to discharge an
employee until a replacement was available. Lalli, also,
admitted that late in August, when Gugliette received his
$10 raise, Respondent had no definite assurance that
Brisbois would report, and that it was deemed wise to
hold on to Gugliette in the meantime and attempt to
upgrade his performance, and thereby salvage
Respondent's "investment" in him . However, according to
Lalli after the incident on the IIth he feared to retain
Gugliette on maintenance work because of the damage he
might cause by his ineptness, and, in fact, because so
disenchanted with Gugliette that Lalli would not even
"In connection with the Brisbois matter , an incident occurred at the
hearing that appeared to reflect on Lalli's candor During the General
Counsel's case, he testified at some length (under rule 43(b)) about his
efforts to secure Brisbois as a replacement for both Fields and Gugliette
and about other details of his search for a maintenance man. It was only
after Respondent 's counsel interposed a suggestion (presumably intended as
an objection to the pending question ) that it should first be established that
it was Lalli who approached Brisbois that the witness acknowledged that
he was not "the first one" to approach Bnsbois, and later testimony of
Lalli and Carando, Sr ., disclosed that Lalli did not approach Brisbois at
all, the matter being handled entirely by Carando, Sr.
"In addition, Lalli supervised a production department , consisting of
about 14 employees, and had some purchasing duties.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consider transferring him to an unskilled labor job.18
As to the events of September 11, his last workday,
Gugliette gave the following account, during his initial
appearance on the stand:
During the morning he notified 20 to 30 employees of
the Union meeting scheduled for the 18th. At the 3 p.m.,
coffeebreak he sat at the same table with Lalli and
Carando, Sr., who, were not more than 10 feet distant
from him . He told five or six employees at the table of the
union meeting, including Parerra Cardinal, Newbury, and
Lengilenjies. and, while this was going on , Lalli put his
coffee cup down and stared at Gugliette. At 4:30 p.m.
Lalli asked him who had left the toolcrib open , and, when
he answered that he had, Lalli discharged him, citing the
fact that Carando, Sr., had "dumped on" Lalli because of
a pipe in another building that had been left hanging, and
declaring that he (Lalh) was getting too many headaches.
When Gugliette then asked Lalli for a layoff slip, he went
to the office and returned with the report that Respondent
did not give out such slips. Gugltette then put his tools in
the car, and turned his keys over to Carando, Sr.,
punching out about 4:45 p.m. that day.l°
Gugliette added, without any contradiction. that he had
always left the toolcrih unlocked during the day, and that
the pipe in question had been hanging for 3 or 4 years.
and he had never before been told to secure it.
Respondent's witnesses gave an entirely different
version . Lalli testified that in the morning of the 11th he
recommended Gugliette's discharge to Carando, Sr., who
approved it, and that such recommendation was prompted
by an incident relating to a valve on the return pipe
leading to a boiler, which supplied steam heat to the
pepperoni room and controlled the humidity in the room.
According to Lalli, the matter had its inception on
Saturday, September 7, when Gugltette performed certain
repairs on the pipes attached to that boiler, during which
repairs it was necessary to close the foregoing valve. The
witness continued that the next day, Sunday, Carando,
Sr., advised him that there was no heat at all in the
pepperoni room, that on Monday Gugliette was assigned
to find the reason for this; that finally, early in the
morning of Wednesday, September 11, Gugltette reported
to him that he had found that the valve in question had
not been turned on after the foregoing repairs were
completed, thereby presenting the spent steam from
returning to the boiler; that, when Gugliette failed to
explain why the valve was still closed, Lallt decided that
Gugliette would have to be discharged that day, that,
when, after the 9 a.m. coffeebreak, he gave Carando. Sr.,
the alternative of retaining Gugltette or Lalh, Carando,
Sr., authorized the discharge; and that about 10 a m. Lalli
notified Gugltette that he was being discharged because of
the steam valve matter.
Carando, Sr , confirmed that he reported to Lalli on
Sunday that there was no steam in the pepperoni room;
that about 10 a.m. on the 11th I.alli reported the
aforedescribed valve incident to him, threatening to resign,
unless Gugltette was discharged. and that his discharge
was thereupon authorized by the witness. He added that
about 11:30 a.m. Gugliette tendered him the keys.Y° When
asked whether he had seen Gugliette again that day, the
"Lalli admitted that after September 11, he hired some unskilled labor
"Gugliette and Carando , Sr., gave apparently conflicting account, of a
conversation between them at the time the keys were handed over As it
does not seem that resolution of this conflict would shed any material light
on the reason for Gugliette's discharge, the matter will not be further
considered
witness gave a rather obscure answer, which was
construable as a statement either that he had seen
Gugliette return about 1 or 1 :30 p.m. to pick up his tools
or that he assumed that Gugliette had done so. However,
when the witness was again asked whether he saw
Gugliette return at 1:30 p.m., he answered only, "He had
to come back to the plant because he had to pick up his
tools." It is evident therefore that the witness did not
claim to have seen Gugliette in the plant after the transfer
of the keys at 11:30 a.m.
Lalli confirmed that about 11 a.m. he saw Gugliette
talking to Carando, Sr., and holding a bunch of keys.
Lalli added that at noon Gugliette asked him for a "pink
slip" or discharge notice, which request was rejected by
the witness, after consulting Carando, Jr. The latter
testified that it was about 11:30 a.m. when Lalli reported
that Gugliette wanted a "pink slip" setting forth the
reason for his discharge ; that the witness called his
"corporation attorney," who advised him that he was not
required to furnish such explanation;21 and that he so
informed Lalli shortly before noon. The witness added
that it was about this time that he learned from Lalli that
he was discharging Gugliette because of his inadequacies,
citing a 3-day search and the discovery of the closed valve
that morning
Thus, Lalli and the Carandos were in substantial
agreement that their last contact with Gugliette was about
noon on the l Ith, and the Carandos agreed that in the
morning of the 11th Lalli cited the closed valve to them as
the immediate reason for the discharge. However, while
insisting that that matter was, in fact, the last straw, Lalli
did not dispute Gugliette's testimony that, in discharging
him. Lalli mentioned the unlocked tool crib. Lalli
conceded, in fact. that he did make such a remark, but
explained that this was a mere conversational gambit.22
Finally, both Lalli and the Carandos denied that before
Gugliette's discharge they had any knowledge of employee
Union activity, and Lalli and Carando, Sr , specifically
denied that they had ever overheard any discussion of the
Union by Gugltette.
A number of employee witnesses were called by
Respondent to corroborate the foregoing version of the
circumstances of the discharge.
Stnisecalchi testified for Respondent about an occasion
when the witness, Lalli. and Gugliette discovered that
there was no steam in a room on the third floor of the
plant, that all three checked "all over." and that Gugliette
found that a valve was closed, but denied that he was
responsible therefor. While at one point, on direct, he
estimated that the steam was off for I or 2 days, the
witness, under cross-examination, said that Lalh reported
the lack of steam at 7 a.m , and the closed valve was
found only about half an hour later As to the date of this
incident, the witness testified at one point that it was a
Wednesday, but elsewhere indicated that it was anywhere
from I to 3 days before Gugliette's discharged2' Moreover,
while it was difficult to ascertain from the witness'
confused testimony where the valve in question was
"See preceding lootnote
"That attorney was not called to verity the time of such consultation,
and no explanation was offered for that omission
"The foregoing admission was made in the course of Lalli's testimony
for Respondent He had not mentioned the toolcnb remark in his initial
account of the discharge , ( while testifying under rule 43(b)), but he
explained that his memory had been revived by Gugliettc 's testimony and
by a view Lalli had taken of the tool, rib that morning , before taking the
stand At the same time , he denied that he had made any reference to the
unsecured pipe, in discharging Gugliette
"In this respect, at least, the incident here described more closely
PETER CARANDO, INC. 647
located, the more likely interpretation thereof seems to be
that the valve was not on the return pipe but on a steam
supply line.
Garvey corroborated certain testimony of Lalli that on
the 11th at the 9 a.m. coffeebreak he complained to
Garvey of Gugliette's shortcomings, citing his failure to
turn on a steam valve, and declaring that Lalli was about
to give Carando, Sr., a choice between retaining Gugliette
or Lalli. Garvey added that he attended the afternoon
coffeebreak, and was "pretty sure" that Lalli, who usually
sat next to him at coffee, was there, but did not know
whether he saw Gugliette there He admitted that at the
coffee breaks Gugliette usually sat about 10 feet from
Lalli, but he denied that at the afternoon coffeebreak he
heard any discussion of the Union by Gugliette, and could
not recall having seen Gugliette at all that afternoon.
Garvey, however, demonstrated either the fallibility of
his memory or his partisanship" by his answers to
questions by Respondent's counsel about Carando, Jr.'s
speeches He related that he thought he had heard one
such speech, was vague as to the date, and insisted that
Carando, Jr , "never said anything for or against the
Union" nor about insurance or wages. both of which
items were admittedly mentioned in the speeches. He,
Finally, indicated that the speech he had in mind was one
Carando, Jr., made on a different occasion (when the
Union picketed the plant)
Daponde testified that about 10 or 1 1 a.m., on the 11th,
he saw Gugliette picking up some tools, and was told by
him that he had dust been discharged because of Lalli's
dissatisfaction with his work; and that he did not see
Gugliette again that day However, Daponde. also, gave a
highly partisan account of the content of Carando's Jr.'s
speeches. As already noted, he corroborated the testimony
of the Carandos that the speeches were read, but he
insisted, contrary to the fact, that Carando. Jr., expressed
no opinion therein about the Union, pro or con, and
denied, also contrary to the fact, that anything was said
therein about Union cards or dues.2'
Cardinal, whom Gugliette claimed to have notifed of
the Union meeting at the 3 p.m. coffeebreak, was called
by Respondent, and, while acknowledging that he usually
had coffee with Gugliette, denied that he did so in the
afternoon of the 11th, and, claimed to have last seen
Gugliette in the plant on the 10th. When asked whether
Gugliette had ever notified him of the Union meeting to
be held on the 18th, he answered, "I don't recall."
Another of Gugliette's alleged partners at the afternoon
break, Newbury. denied that he was even in the plant at
that time in the afternoon of Gugliette's discharge.t6 While
avowing that he might have heard Gugliette talk about
unions in the plant to others, he pleaded inability to recall
what was said. He claimed not to have learned of
Gugliette's discharge until the next day, but had difficulty
in recalling the calendar date of the incident, finally
nlacina it in October.
parallels the ' cooking room" incident described by Gugliette in the text,
below, than the one described by Lalli
"He had worked for Respondent for 17 years, and was still so employed
at the time of the hearing
"fie professed to have no other recollection of any remarks about the
Union by Carando, Jr . except that, when an employee complained about
the Union's visits to his home, he was told that, if such visits persisted, he
should "send them away " While such advice appears in the text of the
second speech , it is not clear from Dapondc's testimony whether he was
relating the foregoing remark to that speech or to another less formal
occasion
Lengilenjies, who was also named by Gugliette as a
participant in the coffeebreak incident, insisted that
Gugliette told him about the Union meeting in the
morning, not the afternoon , of the 11th, and , although
attesting that Gugliette always sat next to him at coffee,
he professed to be unable to recall whether Gugliette
attended the afternoon break or was anywhere else in the
plant that afternoon.27
Gugliette testified, in rebuttal, that there was no
incident on the 11th involving a steam valve; that, while
he had neglected to shut off such a valve 3 days earlier,
that was one which affected the steam in the cooking
room , and not the pepperoni room ; that he corrected his
mistake the next day, when it was called to his attention
by another employee; and that, when, the same day, he
reported the matter to Lalli, he offered no comment. As
to his work activities on the 11th, he related that he went
about his usual duties, punched out for lunch at noon,
punched in after lunch , and punched out soon after his
discharge at 4:30 p.m. This was partially corroborated by
Rigazio, who gave a circumstantial account of a
conversation with Gugliette about 2 p.m., on the 11th, in
Respondent's plant, testifying that the conversation related
to the repair of a part on Rigazio's machine, and that in
the course thereof he was notified by Gugliette of the
union meeting on the 18th. Unlike Respondent's employee
witness and Lengilenjies , Rigazio was no longer working
for Respondent at the time of the hearing.
Gugliette reiterated, also, that he took coffee with
Newbury in the afternoon of the 11th. adding a previously
undisclosed detail of the incident as it affected Newbury,
and insisted that the incident related by Daponde took
place in Respondent's garage shortly after 4:30 p.m. on
the 11th
To recapitulate the evidence up to this point, if one is
to credit Respondent's witnesses, it would be necessary to
find that Gugliette had worked as a maintenance helper
for some 4 years, receiving, during the last year,
substantial merit raises, but, because of two derelictions
occurring over a 4-month period. was warned of discharge
in August, unless his work improved, and that, when, in
the morning of September 11, the steam valve incident
occurred. Respondent lost patience and discharged him
the same morning because of that incident, but without
even waiting, in accordance with its usual practice, to
assure itself of an immediate replacement," and without
considering transferring him to another , less responsible
job.
On the other hand, if one is to credit Gugliette, it
would be necessary to find that, although he was at fault
in connection with the canning machine mishap," he was
never warned of discharge, and that, when, after that
incident, he was given the S10-a-week raise, he was told
"When asked whether he had seen Gugliette in the plant any time that
afternoon, he pleaded lack of recollection
'This witness had originally been subpoenaed by the General Counsel
However, toward the close of the hearing the General Counsel announced
that he did not intend to place him on the stand . The Examiner then called
him to the stand in the hope that he would shed some light on the matter
Parerra, also named by Gugliette as a participant in the coffeebreak
incident, was subpoenaed by the General Counsel, who reported, however,
that he had not appeared , pleading illness
"As already related, Brisbois was admittedly not being considered as a
replacement for Gugliette but as, in effect , a maintenance leadman
Moreover, Lalli admitted that late in August there was no certainty that
Brisbois would report , and it was not until some time in October that
Brisbois and Respondent linally agreed on terms and he did not report
until 3 weeks later
"See fn 14, above
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only that it was conditioned upon his giving up his outside
work: that there was no steam valve incident on the 11th,
but a somewhat similar incident on the 9th, which elicited
no comment from Lalli. that Gugliette was told on the
11th that his discharge was due, not to a closed valve, but
to other omissions: and that he was not terminated in the
morning of the 11th, but late that afternoon, and only
after he had invited other employees to a union meeting
within the hearing of Lalli and Carando, Sr.
The strength of Respondent's case lies in the
circumstantiality of Lalli's testimony concerning the steam
valve matter, the interlocking detailed corroboration
thereof by the Carandos, and the absence of any
confirmation of Gugliette's version of the critical
coffeebreak incident in the afternoon of the 11th.
However, Respondent's witnesses were at a loss to
explain away plausibly one crucial piece of evidence-the
entries on Gugliette's timecard for the l Ith.'° That card,
which was produced at the hearing by Respondent, shows
that on the 11th it was punched at Gugliette's reporting
time, at noon , at 12:45," and at 4:54.'= Thus, the entries
on the card jibe with Gugliette's account of his departure
from the plant for lunch at noon, his return after lunch,
and his final departure late in the afternoon, which
account was at least partially corroborated by Rigazio. At
the hearing, Respondent's witnesses were unable to
suggest any tenable basis for reconciling the foregoing
entries with their contention that Gugliette was discharged
about 10 a.m., and was last seen in the plant about noon.
Carando. Sr.'s aforenoted surmise that Gugliette might
have returned early in the afternoon for his tools, not only
has no evidentiary support, but would, in any case, not
explain why he stayed in the plant until nearly 5 o'clock,
and (if Respondent's witnesses are to be credited) without
attracting any attention. Respondent's brief attempts to
minimize the significance of the timecard entries by
pointing to certain testimony of Carando, Jr., that it was
his practice to pay a discharged employee for a full day's
work on his last day, whether or not he actually worked a
full day. However, the issue is not whether Gugliette was
paid for a full day but whether he worked a full day, and,
upon the present record, I must consider the timecard
entries more reliable on that issue than testimony which
was subject to the vagaries of memory or the taint of
interest.
It is therefore found that Gugliette returned to the plant
at 12:45 and remained there until close to 5. Since that
circumstance is more readily reconciled with his account
that he was not discharged until 4:30 p.m., than with
Respondent's version of a discharge at 10 ' a.m., I credit
Gugliette on that score. The fact that Respondent's
witnesses were not candid, or were mistaken, with respect
to such a material aspect of the discharge incident
militates against treating as any more reliable their
testimony with regard to (1) the reason assigned to
Gugliette for his discharge or (2) the circumstances which
prompted his discharge; and, it is found that, as Gugliette
testified, the only reasons so assigned were the unlocked
tool crib and the unsecured pipe As both were matters of
long standing and of so little significance that Respondent
did not see fit to rely thereon at the hearing, it is found
that the reasons given Gugliette were pretexts, which,
3°TX Exh. I
"Converting the "12.75" entry on the card to the conventional system of
timekeeping.
"Converting the "16 90" entry on the card to the conventional system
because of their patent insubstantiality, were abandoned at
the hearing in favor of a more plausible explanation -the
steam valve incident. It follows, also, from. my crediting of
Gugliette's version, that there was no steam valve incident
on the 11th, such as Respondent's witness described. and
that this, too, was a pretext and not the true reason for
the discharge.
There remains to be considered what basis there is in
the record for finding that Gugliette was in fact
discharged for Union activity.
The fact that Lalli gave Gugliette a pretextual reason
for his discharge and at the hearing offered a different
reason, which also had no validity. compels the inference
that the true reason was one which Respondent was
anxious to conceal. There is in addition the testimony of
Gugliette that he passed word of the Union meeting to
employees at the afternoon coffee break within the
hearing of Lalli and Carando, Sr., and that this activity
produced a visible effect on Lalli. Under all the
circumstances, I have resolved to credit such testimony,
despite the denials of Lalli and Carando, Sr.. and despite
the absence of any corroboration by the employees whom
Gugliette claimed to have solicited." In view of all these
considerations, as well as the hostility to the Union
displayed in the cooler room incident by Lalli, and in the
remarks of Carando, Jr., on September 17 and 30,
including those admittedly made, it is concluded that
Gugliette was discharged for his solicitation of employees
in the afternoon of September 11 to attend a Union
meeting, which solicitation was overheard by Lalli or
Carando, Sr., or both, and that Respondent thereby
violated Section 8(a)(3) and (1) of the Act.
IV. THE REMEDY
It having been found that Respondent violated Section
8(a)(1) and (3) of the Act, it will be recommended that it
be required to cease and desist therefrom and take
appropriate, affirmative action. Such action shall include
an offer of reinstatement to Gugliette, and reimbursing
him for any loss of earnings suffered since September 11,
by reason of the discrimination against him. Backpay
shall be computed in accordance with the formula stated
in F. W. Woolworth Company, 90 NLRB 289: interest
shall be added to backpay at the rate of 6 percent per
annum. (Isis Plumbing & Heating Co.. 138 NLRB 716.)
In view of the obvious language barrier, it will be
recommended that the usual posted notices be
accompanied by an Italian translation.
In view of the nature of the violations found herein,
particularly the discrimination against Gugliette, a
potential threat of future violations exists. which warrants
a broad cease-and-desist provision.
CONCLUSIONS OF LAW
1. By threatening loss of overtime and profit sharing in
reprisal for Union activities, and by promising increased
vacations, and inviting employees who favored the Union
"Having found Gugliette a more credible witness than Lalli or the
Carandos , and having found that the three latter went to such great lengths
to fabricate a defense , and, considering that the three employees who
refused to corroborate Gugliette were at the time of the hearing still in
Respondent's employ, I cannot assume that, in testifying , they were free
from tear of reprisal, if their testimony did not conform to that of their
supervisors Moreover , the inexactness of their recollection as to other
matters pertaining to Gugliette 's union activity and his discharge has
already been noted
PETER CARANDO, INC.
to resign their employment, in order to discourage union
activity, Respondent violated Section 8(a)(l) of the Act.
2. By discharging Richard Gugliette on September 11,
in reprisal for his union activity, Respondent violated
Section 8(a)(3) and (I) of the Act.
RECOMMENDED ORDER
Upon the entire record in this case and the foregoing
findings of fact and conclusions of law, it is recommended
that Peter Carando, Inc., Springfield, Massachusetts, its
officers. agents. successors. and assigns, shall be required
to
l Cease and desist from-
(a) Discouraging membership in, and concerted
activities on behalf of, Local 33, Amalgamated Meat
Cutters and Butcher Workmen of North America,
AFL-CIO, or any other labor organization,
bydiscriminating against employees in regard to their hire or
tenure of employment or any term or condition of
employment.
(b) Threatening employees that it will reduce their
hours of work, abolish Respondent's profit-sharing plan or
visit other reprisals upon them because of their concerted
or union activities.
(c) Promising employees increased vacation benefits to
induce them to abandon their union activities.
(d) Inviting employees who favor a union to resign their
employment.
(e) In any other manner, interfering with, restraining,
or coercing, its employees in the exercise of their right to
sell'-organization, to form, loin, or assist the above-named
Union, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid of protection,
or to refrain from any or all such activities, except to the
extent permitted by the provisos in Section 8(a)(3) of the
Act.
2 Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act.
(a) Make whole Richard Gugliette in the manner set
forth in the section of the Trial Examiner's Decision
entitled "The Remedy," for any loss of pay he may have
suffered by reason of the Respondent's discrimination
against him, and offer him reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority or other rights and privileges.
(b) Notify Richard Gugliette if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Selective Service Act, as amended. after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Recommended Order.
(d) Post at Respondent's plant in Springfield,
Massachusetts. copies of the attached notice marked
"Appendix," together with a companion notice containing
an Italian translation thereof. 34 Copies of said notices, on
forms to be provided by the Regional Director for Region
1, shall, after being duly signed by Respondent's
representatives, be posted by Respondent immediately
upon receipt thereof, and maintained by it for 60
649
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent 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 receipt of this Decision,
what steps Respondent has taken to comply herewith."
IT IS FLRTHER ORDERED that all allegations of the
complaint relating to violations other than those found
above be. and they hereby are. dismissed
"In the event that this Recommended Order is 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 is enforced by a decree of a United States
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 is adopted by the Board,
this provision shall be modilied 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
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
Relations Act, as amended, we hereby notify our
employees that-
Alter a trial at which all sides had the chance to give
evidence, the Trial Examiner decided that we violated the
National Labor Relations Act, and ordered us to post
this notice.
The Act gives all employees these rights:
To engage in self-organization
To form, loin, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other
aid or protection; and
To refrain from any an all of these things.
WE WiLLNOT do anything that interferes with these
rights.
WE WILL NOT lire you, threaten to cut down your
overtime or put an end to profit sharing, or cause you
any other harm, because of your membership in or
support of Local 33, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO. or
any other union.
WE WIT L NOT promise to give you longer vacations to
keep you from wantine a union.
WE WILL NOT tell employees to get out, if they want a
union.
WE WILL offer to take back Richard Gugliette at his
old job and pay him for all the wages he lost because
we fired him on September 11, 1968.
All our employees are free to belong, or not to belong,
to Local 33, Amalgamated Meat Cutters and Butcher
Workmen of North America, AFL-CIO, or any other
union
Dated By
PETER CARANDO, INC.
(Employer)
(Representative ) (Title)
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days directly with the Boards Regional Office, 20th Floor John
from the date of posting and must not be altered, defaced, F. Kennedy Federal Building, Cambridge & New Sudbury
or covered b} any other material. Streets, Boston. Massachusetts 02203, Telephone
If employees have any question concerning this notice 617-223-3353
or compliance with its provisions, they may communicate