Reinauer Fuel Transportation Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1573 (N.L.R.B. 1980)

REINAUER FUEL TRANSPORTATION CORPORATION 1573
Reinauer Fuel Transportation Corporation and Local
33, United Marine Division, International Long-
shoremen's Association, AFL-CIO. Case 29-
CA-7008
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On May 30, 1980, Administrative Law Judge
Arthur A. Herman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the Charging
Party filed an answering brief to Respondent's ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
i Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In his discussion of employee Robert Santoro's union activity, the
Administrative Law Judge inadvertently omitted Santoro's unrefuted tes-
timony that he obtained a signed authorization card from "Joe the truck
driver" (Joe Rogalski). as well as from employee Carmine La Mantia
Union Organizer Ralph McKenzie also testified that he gave two authori-
zation cards to Santoro, besides the one Santoro signed, and that Santoro
returned them both signed
In adopting the Administrative Law Judge's finding that the Respond-
ent unlawfully discharged Robert Santoro for his union activity, we dis-
avow his statement that "another factor, namely, overtime, may have
played a role in Santoro's discharge." We find that Santoro was dis-
charged solely for his union activity in view of the Administrative Law
Judge's undisputed finding of no evidence that prior to January 24, 1979.
had any employee ever been disciplined for a refusal to work overtime:
the Administrative Law Judge's credibility findings, which we adopt
supra, that Santoro did not state at any time that he would no longer
work overtime: and the Respondent's failure to present conclusive evi-
dence that Santoro refused to work overtime in the 2 weeks prior to his
discharge.
In adopting the Administrative Law Judge's finding that the Respond-
ent possessed knowledge of Robert Santoro's union activity at the time of
Santoro's discharge, we note that, irrespective of whether or not the Re-
spondent at that time believed that Santoro was the chief union activist,
the record undisputedly shows that the Respondent knew of Sanotoro's
union activity prior to his discharge: by La Mantia's report of it to the
Respndent and by the presence of its assistant manager, Ole Baadshaug,
when Santoro gave La Mantia an authorization card
251 NLRB No. 210
Order of the Administrative Law Judge and
hereby orders that the Respondent, Reinauer Fuel
Transportation Corporation, Brooklyn, New York,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge or otherwise dis-
criminate against any employee for supporting
Local 333, United Marine Division, Interna-
tional Longshoremen's Association, AFL-
CIO, or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under Section 7 of
the Act.
WE WIL.L offer Robert Santoro immediate
and full reinstatement to his former job or, if
the job no longer exists, to a substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and
make him whole for any loss of pay which he
may have suffered as a result of his unlawful
discharge, with interest.
REINAUER FUEL TRANSPORTATION
CORPORATION
DECISION
STATEMENT OF THE CASE
ARTHUR A. HERMAN, Administrative Law Judge:
This case was heard before me in Brooklyn, New York,
on October 31 and November 1, 1979. A complaint
issued on March 30, 1979, on a charge filed February 14,
1979. The complaint alleges that Reinauer Fuel Trans-
portation Corporation, herein called Respondent, has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended. Respondent has denied the commission
of any unfair labor practices.
Upon the entire record, including my observation of
the witnesses, and after due consideration of the briefs
filed by the Charging Party and Respondent, I make the
following:
All dates herein are in the year 1979 unless otherwise indicated
1574 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
FINDINGS OF FAC'I
I. THE BUSINESS 01 RESPONI)INI
The facts found herein are based on the pleadings and
the admissions made at the hearing. Respondent, a New
York corporation, is engaged in the business of maintain-
ing and operating a wharf facility, providing mainte-
nance and repair services for tugboats. During the year
preceding the issuance of the complaint herein, Respond-
ent performed services valued in excess of $50,000, of
which services valued in excess of $50,000 were per-
formed in, and for various enterprises located in States
other than New York. The parties agree, and based on
the foregoing, I find that Respondent is engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE I.ABOR ORGANIZATION INVOLVEI)
The complaint alleges, the parties agree, and I find
that Local 333 is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE ALLEGEI) UNFAIR LABOR PRACTICES
A. Introduction
The complaint alleges () that on or about January 25,
Respondent discharged employee Robert Santoro be-
cause he joined and assisted Local 333, (2) that on or
about January 25, Respondent threatened to reduce cof-
feebreak time for its employees if they became or re-
mained members of Local 333, and if they gave any as-
sistance or support to it, and (3) that on or about January
26 and February 1, Respondent promised its employees a
benefit in order to induce them not to join or assist
Local 333 by announcing a pension plan to be effective
immediately, and then, on or about February 13, with-
held the implementation of the pension plan because
Local 333 filed a Petition for Certification. Respondent's
answer denies the pertinent allegations of the complaint,
and offers an affirmative defense contending that Santoro
was justifiably discharged because of his repeated failure
and refusal to perform overtime work now and in the
future.
B. Background
Local 333 has had a 20-year relationship with Re-
spondent's parent company, which owns and operates
tugboats and barges. It represents the 130-150 tugmen
employed by the parent company. Respondent is en-
gaged in performing the repair work on those vessels,
and it is essential that in order to keep the boats operat-
ing efficiently, repairs must be performed as quickly as
possible. In the course of servicing the collective-bar-
gaining agreement covering the tugmen, Local 333 made
its initial contact with Respondent's employees in the
summer of 1978. These are the employees who perform
the shipyard repair and maintenance services on the tug-
boats. Toward the end of 1978, Joseph Fitzgerald, a
Local 333 delegate, gave union authorization cards to
Ralph McKenzie, one of Respondent's employees, to dis-
tribute to the other employees for signature. On January
23, in the evening, Fitzgerald met with five employees2
at a tavern on Staten Island where seven signed cards
were returned to him.3 On January 24, Local 333 filed
its Petition for Certification with the Board, and sent a
telegram to Respondent claiming to represent a majority
of its employees and demanding recognition. It is ad-
mitted by both parties that Respondent received the tele-
gram sometime during the morning of January 25.
C. Santoro's Discharge
Robert Santoro was hired by Respondent's marine su-
perintendent, Craig Reinauer, and its assistant marine su-
perintendent, Edgar Sanderleaf, in September 1978 as a
diesel mechanic.4 At the time of hire, Santoro was told
the job required overtime. The record establishes that
from the time of Santoro's hire to about the middle of
January, Santoro performed his duties without incident,
worked overtime along with the other employees when
it was necessary, and on occasion, like other employees,
refused to work overtime when it interfered with person-
al considerations. When the latter occurred the employ-
ees were not reprimanded, suspended, or discharged. 5
The record also shows that, during that same period of
time, Santoro's union "activities" were limited to a single
conversation that Santoro had with Fitzgerald in Decem-
ber 1978. In fact, as stated above and as admitted by
Fitzgerald, Santoro, and McKenzie himself, McKenzie
was the one employee most actively engaged in sponsor-
ing Local 333. It was McKenzie who gave out most of
the union authorization cards to the employees, and it
was he who arranged with Fitzgerald to have the em-
ployees present at the union meeting held on Tuesday,
January 23.
Santoro testified that he signed a card given to him by
McKenzie on Monday, January 22, and that he, Santoro,
gave a card to Carmine La Mantia who also signed it on
January 22. La Mantia's testimony confirms the fact that
he asked Santoro for a card, and that he signed a card on
January 22; and that on Tuesday, January 23, he notified
Reinauer that even though he was against the Union, he
had signed a card and all the employees had signed
cards. La Mantia also admitted telling Rocchio that he
had signed a card.
McKenzie testified that on Tuesday, January 23, at
quitting time, 4 p.m., in the locker room, while the em-
ployees were getting dressed to leave for the union meet-
ing, Rocchio came in and asked if anyone was working
overtime. It seems that there was a barge in the yard
which the employees were working on, but no one from
management had asked them to work overtime, and
since they had the scheduled union meeting, they left at
the normal quitting time. As for Santoro, he testified that
he had received a call at 2 p.m. that day from his daugh-
2 Ralph McKenzie, Robert Santoro, Anton Verbora, Robert Cerio, and
Joe Rogalski.
' The employee complement in January consisted of seven yardmen
and three managerial employees.
'Other acknowledged management personnel involved herein are Ole
Baadshaug, assistant manager, and Carmine Rocchio, yard manager Both
Sanderleaf and Baadshaug were former union members.
5 This is confirmed by the testimony of employees Verbora. La
Mantia, McKenzie, and Cerio and is not contradicted by Respondent
REINAUER FUEL I-RANSI'ORTATION CORPORATION 1 575
ter, telling him that he was needed at home; he asked
Sanderleaf to be excused for the rest of the day, and San-
derleaf granted him permission. The record establishes
that after tending to his daughter's needs, Santoro pro-
ceeded to the union meeting.
The next day, Wednesday, January 24, during a cof-
feebreak in the locker room, while the entire crew was
present, including Baadshaug, Sanderleaf castigated the
crew for failing to work overtime when requested to do
so." Sanderleaf stated that he and Santoro had quite a
heavy discussion about walking off the job and the over-
time involved. After stating that he told Santoro that he
knew overtime is required on the job, Sanderleaf quoted
Santoro as saying, "... I'm sick and tired. I am fed up
.... Nobody comes and asks me, it's just done . . .. I
have commitments elsewhere and I am not working
overtime . . . no more . . . I'm sick and tired of being
annoyed on weekends, and I'm working 40 hours, and
that's it." Sanderleaf responded, "Well I really don't
need a man that only wants to work 40 hours." Sander-
leaf stated that this discussion was heard by the entire
crew, and that later, when talking to Baadshaug who
agreed with Sanderleaf, Baadshaug said, "We need a
man that will work our hours, not just the hours that he
wants to work." After talking to Baadshaug, Sanderleaf
told Rocchio that he wanted Santoro discharged. Roc-
chio asked Sanderleaf to think it over, and according to
Sanderleaf, he went back into Rocchio's office that after-
noon and told Rocchio he had to get rid of Santoro.
Sanderleaf said, "I want to let him go the following day,
which is the end of our pay week."' According to San-
derleaf, Rocchio agreed and Santoro was terminated on
Thursday, January 25. Sanderleaf testified that when
Craig Reinauer heard that Santoro was being discharged,
he told Sanderleaf to hold off because he wanted to
speak to Santoro, and he, Reinauer, could not get to the
wharf facility until Thursday. 8 Santoro testified that the
locker room meeting took place on January 24, and that
Sanderleaf reprimanded all of the crew for not working
overtime. He stated that Sanderleaf questioned the men
"as to nobody working overtime the day before and I ex-
plained to him why I was out and he said he knew that,
6 Sanderleaf testified that this meeting took place on Tuesday, January
23, and that he directed his remarks to Santoro, for not having worked
overtime the previous week However, neither of Respondent's only
other two witnesses, aadshaug and Cerio, corroborate the date stated by
Sanderleaf. Rather, Cerio when confronted with his affidavit, agrees that
the meeting had to have taken place after the day the employees walked
off the job to attend the union meeting at the tavern And Baadshaug.
though pressed by both counsel for a date, could not state that it was on
January 23 In light of the above, the testimony of General Counsel's wil-
nesses. infra, the uncontroverted evidence that the union meeting took
place on January 23, and the employees' refusal to work overtime in
order to attend the union meeting, it is more than plausible and I find,
that this crucial meeting in the locker room occurred, at the afternoon
coffeebreak. on Wednesday, January 24
7 On cross-examination, Sanderleaf stated that the payroll week ended
on Wednesday, and payday is Thursday night.
8 Although Reinauer was called as a 61 1(c) witness by General Coun-
sel, no questions regarding Santoro's termination were asked of him, and
Respondent's counsel did not choose to raise the issue with him either
According to Santoro, Reinauer'told him he was being discharged be-
cause he did not work enough overtime. Since no termination papers had
been filled out, Santoro was asked to come back on Friday. for which he
received a half day's pay
but he said I still wasn't working enough overtime." San-
toro further testified that although it was expected that
the men work overtime on occasion, it was a common
gripe among the employees that management did not
give the men sufficient notice when it wanted them to
work overtime; that management would tell them at
quitting time that they were needed on the job, rather
than advise them 2 or 3 hours earlier. This gripe was
aired at the meeting by Santoro, McKenzie, and Ver-
bora. Santoro denies flatly that he said that he would
never work overtime again; McKenzie and Verbora con-
firm his denial, but Baadshaug and Cerio testified that
Santoro said he did not want to work overtime anymore.
In order to establish Santoro's aversion to working
overtime, Sanderleaf related an incident which he al-
leged occurred on Thursday, January 18. The entire
crew was working that day on a "320," putting a gener-
ator and muffler change on it. It was a big job and re-
quired overtime because the boat had come in just before
noon. At 5 p.m., Sanderleaf realized that Santoro was
not on the boat; he became concerned that Santoro
might have fallen into the water, and so with the aid of
one of the men and a flashlight, he searched the boat
along the bulkheads and the dock, but to no avail; after
searching for about 15 minutes one of the men told San-
derleaf that Santoro had punched out at 4 p.m. Sander-
leaf stated that he voiced his bitterness about Santoro to
the fellows standing around by saying, "at least he could
have had the common decency to tell me that he is leav-
ing." Sanderleaf claims he spoke to Santoro about the in-
cident the next day, but that "the issue wasn't pushed too
heavy on Friday." That Friday evening, according to
Sanderleaf, overtime was required again, and again San-
toro did not work overtime. 9 Although, according to
Sanderleaf, he mentioned the overtime incident again to
Santoro on Monday, January 22, the big discussion about
overtime did not occur until Tuesday, January 23.1 °
Santoro does not recall walking off a job, and not per-
forming overtime, on either January 18 or 19. He denied
having a conversation with Sanderleaf on Friday morn-
ing, January 19, regarding the "overboard" incident, and
emphatically stated that he never walked off a job with-
out giving notice ". . . I always said good night and told
them I was leaving." In addition, Santoro testified that
no member of the crew or Sanderleaf ever told him that
they had to conduct a search for him because they
feared that he might have slipped overboard. Verbora
stated that he does not remember any incident like this
occurring. And, McKenzie testified that there was never
such an incident at the yard. I
' According to McKenzie's testimony, Baadshaug told the ress that a
barge Was coming in for minor repairs that day Both McKenzie and San-
toro volunteered to work overtime. but Baadshaug said he did not need
either one.
io Here again. Sanderleaf is testifying about the crucial locker room
meeting, which I have already found, had to have occurred on 'Vednes-
day, January 24
i Although Cerio. Respondent's witness, was called to testify about
the crucial locker room meeting of January 24. he was not asked to con-
firm Sanderlears testimony regarding January 18, even though it was al-
leged by Sanderleaf that Cerio had aided in the alleged search While
Baadshsug recalled an incident in January when Santoro did not work
overtime. he revealed nothing to connect it to an overboheard search
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McKenzie's testimony described his activities on behalf
of the Union. He had been trying to organize Respond-
ent's crew since March 1978, and was finally successful
in January in getting cards signed by the men, which led
up to the union meeting on Tuesday, January 23. A most
interesting part of McKenzie's testimony, that went unre-
butted, involved a conversation that he had with Car-
mine La Mantia on Thursday, January 25. McKenzie
stated that La Mantia told him that Santoro "would be
fired that evening because the Company found out about
union activities . . . that he (La Mantia) didn't mention
my name because I was his close friend. If not, I would
be on that list also." McKenzie further testified that the
evening before, La Mantia told him that the Company
had found out about the union activities. 12
Santoro testified that on Thursday, January 25, at 2
p.m., La Mantia told him that he heard Rocchio talking
in the office about Santoro, and that Respondent was
going to discharge Santoro. As stated above, Santoro
was discharged that afternoon.
La Mantia testified that Ole Baadshaug was present in
the locker room on Monday, January 22, when La
Mantia signed a union authorization card; that on Tues-
day, January 23, he told Craig Reinauer that he had
signed a card, even though he was against the union, and
that all of the employees had signed cards. On that same
day, he told Carmine Rocchio that he had signed a card,
and he told Baadshaug that he was not for the union;
and that on either Tuesday, January 23, or Wednesday,
January 24, he told Sanderleaf that he did not want the
Union. 13 The record established that La Mantia was not
present at the union meeting on January 23.
It is Respondent's contention that Santoro was dis-
charged on Thursday, January 25, because he refused to
work overtime, and not because of any union activity.
Respondent offers the testimony of Sanderleaf and Baad-
shaug to establish that the decision to discharge Santoro
was made on Tuesday, January 23, after the critical
locker room meeting, at which Santoro was alleged to
have said that he would no longer work overtime, and
that this decision occurred 2 days before receipt of the
union's telegram demanding recognition.
Initially, it is absolutely imperative that the sequence
of events during the week of January 22-26 be firmly es-
tablished so that the unfolding of the occurrences flow in
a logical pattern. The uncontroverted testimony of Gen-
eral Counsel's witnesses substantiates the fact that most
of the authorization cards were signed by the employees
on Monday, January 22, including La Mantia's, and that
the critical union meeting, attended by 5 of the 7 em-
ployees, occurred on Tuesday, January 23. It necessarily
follows that management's disapproval of the employees'
12 On cross-examination, counsel for Respondent elicited from McKen-
zie the fact that he did not mention his conversation with La Mantia in
the affidavit he gave the Board. McKenzie stated that he did so purpose-
ly in order to protect La Mantia. who had asked him not to mention it,
and, himself because he could not count on La Mantia supporting such a
statement in his affidavit.
i3 Despite the fact that Sanderleai and Baadshaug immediately fol-
lowed La Mantia as witnesses for Respondent, neither was questioned re-
garding La Mantia's testimony as described above, and Respondent chose
not to question La Mantia at all. Under the circumstances, and absent any
evidence to the contrary, I credit La Mantia's testimony.
refusal to work overtime on that Tuesday, as voiced by
Rocchio, resulted in the discussion at the crucial coffee-
break meeting that had to have taken place, at the earli-
est, on Wednesday, January 24. In the midst of these
events, the uncontradicted evidence established that La
Mantia had revealed to management as early as Tuesday,
January 23, the fact that all of the employees had signed
cards. Through employee McKenzie, we learn that La
Mantia protected McKenzie from disclosure because of
their friendship, but that Santoro would be discharged
on Thursday, January 25. Having all of these undenied
facts before us, we are permitted the conclusion, unless
Respondent's evidence regarding Santoro's attitude
toward overtime can be established by a preponderance
of the evidence to have an overriding effect, that man-
agement had been misled by La Mantia into believing
that Santoro was the chief union activist, and therefore
had to be discharged because of his union activity.
Before finalizing that conclusion, however, it is only
fitting that a close examination of Respondent's conten-
tion regarding Santoro's attitude toward overtime be de-
tailed. The evidence estabished, and Respondent admits,
that although overtime was a requirement of the job, on
occasion, each of the employees at one time or another,
either declined, refused, or just did not work overtime,
and no disciplinary action was taken against any of them.
This was true at least up to the week of January 22.
Even when Respondent, through Sanderleaf, alleges that
it was greatly perturbed by Santoro's refusal to work
overtime on January 18 and 19,i4 Sanderleaf admits that
he did not come down hard on Santoro until the crucial
coffeebreak meeting in the locker room the following
week. And, it appears that when Sanderleaf castigated
the men for not working overtime the previous day, San-
toro could not have been included in that rebuke since
he had been granted permission to go home and tend to
his ailing daughter. In fact, since Santoro was not even
present in the locker room on Tuesday, January 23,
when Rocchio expressed his feelings about the men not
working overtime, it must be concluded that Sanderleafs
remarks the next day, made now with full knowledge of
the union activity supplied to management by La Mantia,
were directed to all of the employees, thereby not neces-
sitating the outburst attributed to Santoro by Sanderleaf.
It is more logical, and I find, that Santoro along with
McKenzie and Verbora, complained about the inad-
equate notice given by management in notifying the men
of overtime, and were requesting an earlier notification. I
do not find that Santoro said that he would not work
overtime again. Whatever differences existed between
the men and management regarding overtime, it did not
constitute the main cause for Santoro's discharge. Under
all the circumstances and especially in light of Respond-
ent's knowledge, albeit erroneously arrived at, of San-
toro's union activity at the time of the meeting on
Wednesday, January 24, I conclude that Respondent's
discharge of Santoro was motivated by his union activity
14 The January 18 incident is not admitted by Santoro, nor is it con-
firmed by other witnesses for Respondent. As to January 19. McKenzie
refutes the need for Santoro to work overtime, and this testimony is not
challenged.
REINAUER FUEL TRANSPORTATION CORPORATION 1577
primarily. Although another factor, namely, overtime,
may have played a role in Santoro's discharge, I con-
clude that but for Respondent's belief that Santoro was
engaged in union activity, he would not have been dis-
charged. 1 5 Further, there is nothing in the record to
show that prior to January 24 any employee had ever
been disciplined or discharged for his refusal to work
overtime. Moreover, the timing of the discharge-just I
or 2 days after learning of Santoro's involvement in
union activity-is most convincing. 6 Accordingly, I
conclude that Respondent, by discharging Santoro for
discriminatory reasons, violated Section 8(a)(3) and (1) of
the Act.
D. Alleged Threat To Reduce Coffeebreaks Because of
Union Activity
Company policy was to give the employees 15 minute
coffeebreaks. Both Santoro and McKenzie testified that
the coffeebreaks lasted about 15-20 minites, and, accord-
ing to Santoro, some of the employees and Sanderleaf
played cards during the break. They both stated that
during a coffeebreak on Thursday, January 25, Sander-
leaf told them that from then on coffeebreaks would be
only 10 minutes long. McKenzie added that after a while
coffeebreaks went back to 15 minutes in length. Neither
of these witnesses were asked whether the employees
had ever been told before January 25, that management
disapproved when the employees extended the coffee-
break. Although Respondent does not deny that the inci-
dent took place, Sanderleafs uncontradicted testimony is
that on five or six occasions since the summer of 1978,
when the men took advantage and extended the coffee-
breaks, he threatened to reduce the breaks to 10 minutes,
but never did. He also admitted having played cards
with the employees on three occasions in the last 6
months. Cerio testified that there had been complaints by
management for a long time, accompanied by threats to
cut out coffeebreaks, because the employees had abused
the privilege, but the threats were never carried out.
In light of the unrebutted testimony of Sanderleaf and
Cerio to the effect that the employees had been warned
on several occasions not to abuse the privilege of indulg-
ing in 15 minute coffeebreaks by extending them to 20 or
more minutes, and in the absence of any evidence what-
soever linking this rather innocuous act to the ongoing
union activity, I find that the General Counsel has failed
to meet its burden of proving that Respondent's threat
was caused by Local 333's activity. In these circum-
stances, I find the evidence insufficient to establish that
by threatening the employees with shorter coffee breaks,
Respondent acted in violation of Section 8(a)(1) of the
Act.
E. The Alleged Promise of Benefit Through a Pension
Plan and the Withholding of Same
Craig Reinauer stated, and I credit his testimony re-
garding the pension plan, that he had told the employees
on several occasions before Local 333's telegram was re-
ceived by Respondent, that Respondent had been consid-
"' Melody Oldsmobile GMC. Inc.. 230 NLRB 440 (1977)
l6 Southern Paint d Waterproofing Co, Inc, 230 NLRH 429 (1977)
ering such a plan for about a year. He also credibly testi-
fied that after receipt of the telegram, when he was ques-
tioned by some of the employees about the plan, that
under advice of counsel, he could not discuss it with
them at this time because it might be construed as a
promise of a benefit.' 7 McKenzie confirms a good por-
tion of Reinauer's testimony admitting that they had dis-
cussed pension plans for over a year before the advent of
Local 333 in January, and that when the men questioned
Reinauer about having a pension plan, he advised them
as stated above. In addition, however, McKenzie relates
an incident that he claims occurred on Friday night, Jan-
uary 26. It is this incident which General Counsel con-
tends constitutes the unlawful promise of benefits. Ac-
cording to McKenzie, he and Sanderleaf had worked late
that night, and about midnight, when they had finished
working, and were going towards the locker room,
McKenzie heard the telephone ringing. Shortly thereaf-
ter, Sanderleaf came into the locker room and told
McKenzie that Rocchio "had just gotten a call from Mr.
Reinauer informing him that we had a pension."' On
the following Monday morning, McKenzie asked the
other employees if they knew anything about the pen-
sion, and received a negative response. And, a few days
later, when McKenzie asked Reinauer about the pension,
he claims that Reinauer said, ". . . that the pension was
in force from the previous year . . . that it's document-
ed, but they cannot give us a pension now because of the
union activities, it would appear to be a promise."
From a complete analysis of McKenzie's testimony,
with regard to the pension plan, vis-a-vis Reinauer's testi-
mony and Sanderleafs denial of the midnight incident, I
credit Reinauer, and come to the conclusion that the re-
marks he made to the men in response to their question,
were not violative of the Act. I find it hard to believe
that Reinauer would call another member of manage-
ment, Rocchio, at midnight on a Friday night before a
weekend and expect him to tell another member of man-
agement, Sanderleaf, who in turn will tell one employee
about a pension plan for the men when, by McKenzie's
own admission, he was the only employee on that job at
that time. It seems more plausible that such an announce-
ment, if it were made at all, would be to at least a group
of employees directly during regular working hours. It
must be remembered that talk about a pension plan had
been going on for a long time, and it was commonplace
for any of the employees to approach Reinauer from
time to time and inquire about it. However, as soon as
management became aware of the Union's presence, it
consulted legal counsel, and as Reinauer so credibly tes-
tified, it was advised not to discuss the matter any fur-
ther with the men in order to avoid the deduction that a
promise of benefit was being made.
Having concluded that McKenzie's testimony regard-
ing the midnight announcement of a pension plan on
l Reinauer's affida'it was offered and received into evidence as G C
Exh 3. In it, Reinauer states that after receipt of the Union's telegram he
told the employees that a pension plan 'aas being discussed and that they
would get it, but because of the arrival of the Union they could not go
any further for fear that it might he construed as a promise
'I Sanderleaf categorically denies hasing any such con'seration with
McKenzie
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Friday, January 26, is not credible, and believing Sander-
leaf that no such incident took place, I find that no
promise of benefit in the form of a pension plan had been
made by the Company on January 26 or at any other
time critical to the proceedings herein. It necessarily fol-
lows that any later remarks of Reinauer to the employees
regarding a pension plan must be construed as merely an
ongoing discussion of a subject begun in 1978 with the
caveat that, by advice of counsel, the less said the better,
and not a withholding of a benefit once promised. I find
a good-faith belief by Respondent that it would have
been an unfair labor practice for it to elaborate on its
future plans at this critical time. Under the circum-
stances, I find the evidence insufficient to establish a
promise of benefit and/or a withholding of said benefit in
violation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 333 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Robert Santoro on January 25, 1979,
because of his support of Local 333, Respondent engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and
(7) of the Act.
4. Respondent has not violated Section 8(a)(1) of the
Act as alleged in paragraphs 6, 10, and 11 of the com-
plaint herein.
5. Respondent has not violated Section 8(a)(3) of the
Act as alleged in paragraph 11 of the complaint herein.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom, and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent having discriminatorily discharged Robert
Santoro, I find it necessary to order it to offer Robert
Santoro full reinstatement, with backpay computed as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), plus interest as set forth in Isis Plumbing Heating
Co., 138 NLRB 716 (1962), and Florida Steel Corporation,
231 NLRB 651 (1977).
Upon the foregoing findings of fact, and conclusions of
law, upon the entire record, and pursuant to Section
10(c) of the Act. I hereby issue the following recom-
mended:
ORDER19
The Respondent, Reinauer Fuel Transportation Corpo-
ration, Brooklyn, New York, its officers, agents, succes-
sors, and assigns, shall:
't In the event no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
any employee for supporting Local 333, United Marine
Division, International Longshoremen's Association,
AFL-CIO, or any other union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Robert Santoro immediate and full reinstate-
ment to his former job, or if the job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered, in
the manner set forth in the Remedy.
(b) 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 records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its place of business in Staten Island, New
York, copies of the attached notice marked "Appen-
dix." 20 Copies of the notice, on forms provided by the
Regional Director for Region 29, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained for 60 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 the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofor as it alleges violations of the Act not specifically
found.
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall he deemed waived for all purposes
"' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enfi)rcing an
Order of the National Labor Relations Board "