South San Francisco Scavenger Co.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 694 (N.L.R.B. 1974)

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Renato Achiro , Nello Lovi, Carlo Franco, Osvaldo
Bartoli , Richard Gotelli, Aldo Fornesi , Raymond
Piccardo , Carl Sanguinetti , Richard Fornesi, Roy
Uccelli, George Stagnaro , Giovanni Rossi , Dan Ber-
toldi, Silvo Ernest Bortoli, Partners d/b/a South
San Francisco Scavenger Company and Sanitary
Truck Drivers & Helpers Local Union No. 350, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen , and Helpers of America. Case
20-CA-8894
Decmeber 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
On June 14, 1974, Administrative Law Judge Earl-
dean V. S. Robbins issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief and the General Counsel
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We find merit in the Respondent's exceptions to the
Administrative Law Judge's findings and conclusion
that Respondent's closing of its repair shop and laying
off employees Cornell and Zuniga violated Section
8(a)(3) of the Act and that a statement made by Renato
Achiro, one of the partners, to Zuniga violated Section
8(a)(1) of the Act. Respondent contends that it decided
to close the repair shop because of the quality of the
work that was being performed, particularly by Zuniga,
coupled with the fact that Ed Gamache, their number
one mechanic, had resigned effective the last of Novem-
ber. Zuniga testified that on December 7, 2 days after
he signed a card for the Union, Achiro approached him
and told him that because he had signed a card he was
being laid off, that "the company don't like Union."
The Administrative Law Judge credited Zuniga's tes-
timony.
The record shows that the Respondent, a partnership
comprised of 13 partners, operates a trash pickup and
removal business in the San Francisco area. In the
course of their operations, Respondent employs some
38 drivers in addition to the driving done by 12 of the
partners. Respondent also operated a repair shop
staffed by Foreman Bartoli and Gamache, Cornell, and
Zuniga. The record also shows that in the past 2 years
there has been considerable defective work coming out
of the repair shop, much which was attributable to
Zuniga. During 1973, the number of complaints from
the drivers and the driver-partners increased, resulting
in the partners, at their regular monthly meetings, dis-
cussing contracting out the repair work. While nothing
came of these discussions prior to December, at a
monthly meeting on December 6 the partners again
discussed the question of contracting out the repair
work. At this time, the partners were concerned over
the future of the shop due to Gamache's resignation. In
view of this factor, the partners considered the alterna-
tives open to them; either they had to find a replace-
ment for Gamache or contract out the repair work. The
partners unanimously voted to close the repair shop
and contract out the repair work. As a result of this
decision, Cornell and Zuniga were laid off.
Pointing to this real and very serious situation in the
repair shop, as well as the testimony of all of the part-
ners that at no time during the December 6 discussion
concerning subcontracting was there any knowledge of
or discussion about Cornell and Zuniga's union activi-
ties, Respondent contends that the Administrative Law
Judge's crediting of Zuniga is contrary to the record
facts.
It is long-established Board policy that we will not
overrule an Administrative Law Judge's credibility
resolutions unless the clear preponderance of all the
relevant evidence convinces us that such resolution is
incorrect.' In such circumstances the importance of
the demeanor factor is greatly diminished, and we are
impelled to substitute our own credibility findings for
those of the Administrative Law Judge. This is such a
case. In our opinion, the record herein, the inherent
probabilities of the case, and the logical consistency of
the facts require the conclusion that Zuniga's testimony
is inconsistent, contrived, and unworthy of belief. Zuni-
gals testimony was clearly designed and directed to-
ward establishing that he had been engaging in union
activity, that Respondent's partners were aware of that
activity, and that the partners harbored animus to-
wards those who would engage in such activity, all
factors critical. of establishing a violation of Section
8(a)(3) of the Act.
As to Zuniga's testimony, the record shows several
substantial inconsistencies between his testimony and
the existing facts and testimony of other witnesses. The
record clearly shows that there was considerable defec-
tive work coming out of the repair shop and that a
substantial amount of this defective work could be
traced to Zuniga. Yet Zuniga testified that no one had
ever complained about his work, testimony which the
Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (C.A. 3, 1951).
215 NLRB No. 119
SOUTH SAN FRANCISCO SCAVENGER COMPANY 695
record clearly shows is false. The shop foreman testified
that he frequently complained to Zuniga about his
work, and that on several occasions had tried to have
Zuniga fired. In addition, Cornell admitted that hardly
a day went by that there weren't complaints from the
partners and drivers about the condition of the trucks.
Zuniga also testified that he was given the union card
,to sign on December 5, and that he returned it to
Cornell on that same day, whereas Cornell testified that
Zuniga did not return his card until the next day, the
6th, the day the partners voted to close the shop and
contract out the work. Zuniga further testified that
Achiro made the statement regarding his signing of the
card and being laid off when Achiro came to work at
5 a.m., whereas Achiro's uncontradicted testimony was
that he worked as a driver from 1 a.m. to 8 a.m.
As to union animus, the record shows that for several
years Respondent has had amicable bargaining rela-
tions with Teamsters Local 350, the same union that
Cornell and Zuniga signed up with. The record also
shows that, in an attempt to increase efficiency in the
shop, the shop employees were given a pay increase to
bring their wages even with the wages of the drivers in
the unit represented by the Union. In addition, Re-
spondent points out that, when Local 350 petitioned for
an election, Respondent unsuccessfully sought to have
the shop employees included in the unit. Thus, we have
a situation where 2 employees out of 40 elect to join the
same union that represents all of the other employees.
In such circumstances, particularly in view of the fact
that Cornell and Zuniga were receiving wages equal to
that of the unionized drivers, we are of the opinion that
the General Counsel has failed to establish any founda-
tion or support for a finding of an antiunion attitude on
the part of Respondent's partners.
In addition to the lack of any foundation supporting
union animus, the record shows that Respondent, in
December 1973, was faced with a very real problem in
the continuing operation of the repair shop. As noted
above, Gamache, the number one mechanic, had sub-
mitted his resignation in November effective the first
part of December. When the partners met for their
regular monthly meeting on December 6, 1973, they
again discussed the question of contracting out the re-
pair work and limiting the work in the shop to routine
work such as oil changes and truck washings.2 In the
course of their discussion, the partners considered the
fact that the actual cost of major repairs would in-
crease, but that there might very well be a saving in that
the "down" time of a truck needing repairs would be
less. Another factor considered was that if the repair
work was not done correctly (as had happened numer-
ous times in the shop) the contractor would carry the
2 The record shows that neither Cornell nor Zuniga had the necessary
skills or was otherwise capable of replacing Gamache
burden and expense of redoing his work. The partners
also considered the possibility of continuing to operate
the repair shop by hiring a new mechanic to replace
Gamache. Having taken all of these factors into consid-
eration, the partners voted to close the repair shop and
try contracting out the repair work. In the fact of these
very real and compelling circumstances, it is our opin-
ion that the General Counsel has failed to establish an
unlawful motivation on the part of Respondent in clos-
ing the repair shop.3
Notwithstanding this background, to accept Zuni-
ga's testimony at this time requires the incredible find-
ing that the Respondent, a company that has had ami-
cable relations with the Union that has represented all
of its drivers for several years, suddenly, and without
economic justification, closes its repair shop to frus-
trate the union activities of two of its employees in
joining this same union. The record in this case will not
support such a finding, and when Zuniga's testimony
is viewed in the light of the inconsistencies in his tes-
timony, it is clear that his testimony is contrived, con-
trary to the facts as they actually are, and is unworthy
of belief.
Without Zuniga's testimony which served as a foun-
dation for the Administrative Law Judge's finding that
Respondent unlawfully terminated Cornell and
Zuniga, there is nothing remaining in the record to
refute Respondent's defense and establish that Cornell
and Zuniga were terminated because of their union
activities. We therefore find that the General Counsel
has failed to prove by the required preponderance of
the evidence that Respondent violated Section 8(a)(3)
of the Act by terminating Cornell and Zuniga. We also
find that the General Counsel has failed to prove that
Respondent through any of its partners engaged in
conduct violative of Section 8(a)(1) of the Act. Accord-
ingly, we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
3 Although the General Counsel, through cross-examination of Respon-
dent's witnesses, attempted to establish that the problems in the shop were
seized on as a pretext and that consideration of the question of contracting
out did not arise until Cornell and Zuniga joined the Union, the uncon-
tradicted testimony of Stagnaro, the managing partner, was that just a few
months earlier the question of contracting out was discussed but rejected by
the partners in favor of giving the shop employees a pay increase in the hope
of increasing efficiency in the shop, and that when the employees were given
the pay increases they were each told that it was in the hope of gaining
efficiency and improvement in the shop
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge. This
case was tried before me in San Francisco, California, on
April 8 and 9, 1974. The charge was filed by Sanitary Truck
Drivers & Helpers Local Union No. 350, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, and served on the Respondent on Janu-
ary 18, 1974. The complaint which issued March 1, 1974,
alleges that the Respondent had violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended. Post-
trial briefs were filed by the General Counsel and by Re-
spondent on May 23, 1974.
The basic issue herein is whether Respondent unlawfully
discharged its employees Italo Zuniga and Timothy Cornell
and contracted out the unit work previously performed by
them, because of their union activities. Also at issue is
whether Respondent's alleged illegal activity has rendered
the conduct of a free, fair representation election impossible,
requiring the issuance of a bargaining order.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by the
General Counsel and the Respondent, I make the following:
FINDINGS OF FACT
I JURISDICTION
Respondent, a general partnership, with its principal office
and place of business located in South San Francisco, Cali-
fornia, is engaged in providing solid waste disposal services
for customers in San Mateo County, California. During the
year preceding the issuance of the complaint herein, Re-
spondent, in the course and conduct of its retail business
operations, received gross revenues in excess of $500,000 and
purchased and received goods and supplies valued in excess
of $10,000 directly from suppliers located outside the State of
California; and has provided services valued in excess of
$50,000 to companies located in the State of California, each
of which companies, in turn , meet one or more of the Board's
direct standards for the assertion of jurisdiction.
The complaint alleges, Respondent admits, and I find, that
Respondent is, and at all times material has been, an em-
ployer engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II LABOR ORGANIZATION
The parties stipulated, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharges, Threats, and Coercion
Respondent has, for a number of years, maintained a me-
chanical shop, hereafter referred to as the shop, for the pur-
pose of keeping its garbage trucks, equipment, and other
vehicles in repair. In the latter part of 1973, four to five
persons, including Zuniga' and Coinell,2 were employed in
the shop. Zuniga installed transmissions and helped with
repairs but mostly performed service and maintenance work.
Cornell worked as a welder and as a mechanic's helper when
needed. Ed Gamache, who quit in the middle or end of Octo-
ber, and Silvio Ernest Bortoli did the repair work and tune-
ups. Val Fornest, son of Partner Aldo Fornesi and cousin of
Partner Richard Fornesi, greased and lubricated equipment,
changed lightbulbs, fuses, and flat tires, and picked up parts
and drivers whose equipment broke down on the route. Three
school-age sons of partners worked part-time washing trucks,
washing and steaming equipment, sweeping floors, and gen-
erally cleaning the yard and shop. In 1972 Respondent began
to contract out a portion of the repair work to San Francisco
Engines and T & J Garage, mostly the fabrication of boxes,
transmission jobs, and rebuilding of engines. The engines sent
out for repair were pulled and reinstalled by shop employees.
In the latter part of 1973 Respondent also employed approxi-
mately 37 drivers and helpers who have been represented by
the Union since 1967. The shop employees are excluded from
that bargaining unit.
On November 27, 1973,3 Cornell discussed with Augie
Pignont, shop steward for the drivers, the possibility of the
mechanics being covered by the drivers' contract with the
Teamsters. Thereafter Pignont discussed possible union rep-
resentation with both Cornell and Zuniga° and on Decem-
ber 5 gave Cornell three union authorization cards' to be
distributed to shop employees. Cornell gave one of the cards
to Zuniga and one to Val Fornesi. Both Zuniga and Cornell
signed the cards that same day at work. Val Fornesi never
returned a signed card to Cornell. On several occasions he
said he would but kept giving Cornell various excuses why he
had not.
On December 6, in a partnership meeting, Respondent
made the decision to contract out all mechanical work and
to terminate Cornell and Zuniga. It was decided to retain Val
Fornesi as a personal accommodation to his father.6 On Fri-
day, December 7, Partner Renato Achiro told Zuniga "You
sign this card for Union. The Company give me layoff. The
Company don't like Union."' .
On December 8, Cornell and Zuniga were called into the
I Zuniga has been employed by Respondent as a mechanic since 1966 or
1967
2 Cornell has been employed by Respondent as a mechanic and welder
since February 1972
3 Unless otherwise stated, all dates are-in 1973
This was the second time in 1973 the shop employees had discussed the
possibility of union representation The first time was in mid-summer when
Bortoli, then shop foreman, suggested to Cornell and employee Ed Gam-
ache the possibility of seeking representation by the Machinist Union for job
security Bortoli said Respondent might be sold They did talk to someone
from the Machinist Union but later Bortoli said he was not sure if Respond-
ent was going to be sold and since he did not want any hardships with the
partners, they should cease their efforts toward union representation, which
they did
5 The cards are also application for membership in the Union
6 Aldo Fornesi requested that Val's employment be continued and offered
to pay Val's wages However, Respondent continues to pay Val's wages
' This is from the credited testimony of Zuniga It is clear from the record
that Zumga is referring to himself when he utilized the pronoun "me" in his
account of what Achiro told him Both Zuniga and Achiro have some
language difficulty which is reflected in the use of pronouns, verbs, and
sentence structure generally However, both of them express themselves
adequately insofar as substantive ideas are concerned I do not credit
Achiro's denial that he made this statement
SOUTH SAN FRANCISCO SCAVENGER COMPANY 697
office where George Stagnaro, Respondent's managing part-
ner, in the presence of Partner Dan Bertoldi, gave them let-
ters of termination dated December 8 and signed by Stagnaro.
The body of the letters read:
In reviewing our very high shop expenses, we have de-
cided to try sending most of our work out. Therefore, we
find it necessary to cut back our shop.
We are very sorry, but this is a notification of termina-
tion of your employment with us as of December 14,
1973.
Stagnaro explained the letters. Cornell said he was already
considering taking another fob.' Stagnaro also said he
would give them letters of recommendation upon request On
December 11, Cornell requested and was given such a letter,
signed by Stagnaro, which states:
To Whom It May Concern:
Due to the closing of our shop, we have to release our
mechanics.
This will introduce Timothy A. Cornell. Cornell has
worked for our company since February 7, 1972. He has
been a valuable and reliable employee We recommend
him highly. Please feel free to call me, if you have any
questions.
On December 14, Zuniga was given an identical letter dated
December 11 except that it set forth his name and hire date.
Since December 14, all major mechanical work and most
servicing and maintenance work has been performed by in-
dependent contractors,' and only Bortoli, Val Fornesi, and
the part-time students have been employed in the shop. For-
nest and the part-time employees continue to perform the
same work as before. Bortoli does some minor tuneups and
some are contracted out. Bortoli also lines up the work to be
contracted out.
B. Discussion
1. Respondent's defense
Respondent contends that its decision to contract out the
mechanical work was an economic one, that there was a need
both to decrease costs of the mechanical work and to decrease
the amount of time it took to keep the equipment in good
repair. Allegedly, this second reason was the most important
one; however, Stagnaro admits that the cost of contracting
out all of the mechanical work probably exceeds the cost of
maintaining the shop. Respondent contends that the decrease
in downtime10 more than justifies the decision to contract
out the work and, in fact, is more important than the cost
factor." Notwithstanding that this was the critical portion
of its defense , Respondent offered no documentation of its
contention or even specific testimony as to the cost of me-
chanical work before and after December 14 nor as to the
specific kind of work performed . Although poor recordkeep-
ing could arguably be the reason for not offering complete
documentation as to the specific kind of work done prior to
December 14, such an argument would not be valid subse-
quent to December 14, since Bortoli testified that Respondent
did have expense sheets and invoices for mechanical work
performed by independent contractors . Furthermore , Bortoli
also testified that he did keep unofficial records of work
performed in the shop for some period of time prior to
December 14. These records were not offered into evidence
nor was any explanation given to negate their presumed rele-
vancy . As to total cost it must be assumed that records exist
since there was testimony that Respondent 's accountant had
discussed the cost of operating the shop at one of the 1973
partnership meetings . In these circumstances , the conclusion
is inescapable that the documentation would not support
Respondent 's contention . International Union, United Au-
tomobile, Aerospace & Agricultural Implement Workers of
America, (UAW) v. N.L.R.B., 459 F.2d 1329 (C.A.D.C.,
1972), and cases cited therein . As to downtime , Bortoli's
testimony was rather confusing . He consistently testified that
in 1973 the average monthly downtime was 4 days, but his
testimony as to 1974 was shifting . First he testified that in
March 1974 , downtime was 1-1/2 days , and that January and
February 1974 were "really good months" with less than a
week downtime (five 8 -hour days). Then he said as of Janu-
ary , February , and March , 1974, there was 1 week a month
downtime . Whereupon he next testified that in January and
February 1974 there were 8 hours or 1 day a month down-
time. This lack of consistency makes his testimony totally
unreliable as a source of comparison of downtime before and
after December 14. Furthermore , without any information as
to the specific nature of the work performed any comparison
would be meaningless . I therefore find that the record does
not support Respondent 's contention that the use of in-
dependent contractors resulted in a decrease in downtime.
Respondent also contends that the decision to contract out
substantially all of the mechanical work was one that Re-
spondent has been considering for at least a year and that the
actual decision was triggered not by union activities but by
the loss of Ed Gamache . The major decisions as to Respon-
dent 's operation are made by the 14 partners in partnership
meetings which are held on the first Thursday and Friday of
every month . Stagnaro is the managing partner . The other
partners drive trucks , except for Bortoli , 12 who works in the
shop. Renato Achiro also gives Stagnaro some assistance in
the office . According to the partners who testified , the subject
of the mechanics and complaints about the work not being
done properly or timely has been discussed many times at the
partnership meetings. However , there is great variation in the
testimony as to when the subject of contracting out all or
most of the mechanical work was first discussed in partner-
9 i credit Cornell's testimony that this statement was a "face-saving" one
and he did not, in fact, have any definite plans to take another job More-
over, the statement was made after his discharge and is irrelevant thereto.
9 There are no written contracts or agreements with these independent
contractors
10 The time a vehicle is unavailable for service because of repairs
11 Respondent also attaches some importance to the fact that the in-
dependent contractors guarantee their work, whereas if a repair job is done
improperly in Respondent's shop, Respondent has to absorb the cost of
redoing the work
12 Bortoli became a partner in January 1974
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship meetings." Stagnaro stated that it was early in 1972
and that thereafter it was discussed at practically every part-
nership meeting. Partner Daniel Bertoldi first testified that
the question of the utilization of independent contractors first
came up in March 1973 and then again in August or Septem-
ber. When he was recalled on the second day of the hearing,
he testified that there were some suggestions in 1972 to farm
the work out. Carlo Franco testified that contracting out the
mechanical work was first discussed in August or September.
Partners Richard Fornesi, Richard Gotelli, and Renato
Achiro testified that the subject had been discussed in part-
nership meetings throughout 1973. However, Achiro's tes-
timony differed from an affidavit previously given during the
investigation of the charge herein in which he stated that
contracting out had been discussed by the partners for 3 or
4 years But there is nothing in the record to specifically
indicate that the question of contracting out substantially all
repair and maintenance work was ever discussed prior to the
December 6 partnership meeting , nor was there any tes-
timony as to what was specifically said about the use of
independent contractors in partnership meetings prior to Oc-
tober 1973. Stagnaro testified that, at the October partnership
meeting during a discussion regarding the mechanical shop,
he suggested that a wage increase might inspire the shop
employees to greater productivity if he informed them that
the increase was intended to encourage such productivity.
His idea was , according to Stagnaro , that perhaps if the me-
chanical shop employees were paid the same pay rates as the
union drivers working for Respondent it would alleviate any
feeling shop employees might have that they were not being
treated fairly. The partners agreed to give the employees the
$2 or $3 a day raise that would bring them up to the drivers'
rates. Thereafter, Stagnaro spoke to Cornell, Zuniga, and
another employee, Ed Gamache, individually, and informed
them of the increase and told them that Respondent was
dissatisfied with the work being performed in the shop and
that they were giving the employees this wage increase in the
hope that things would improve. However, according to Stag-
naro, the work did not get any better. At the partnership
meeting on December 6, the shop problem was discussed and
it was unanimously decided to contract the work out and
discharge the shop employees. Respondent partners contend
that the question of the union activity of the mechanical shop
employees was never raised during these meetings, and that,
in fact, they did not know that the employees were engaging
in any union activity . They specifically denied that Aldo
Fornesi, Val's father, mentioned union activity in the partner-
ship meeting of December 6. However, neither Val Fornesi
nor Aldo Fornesi testified. According to Stagnaro, the reason
the decision was made to contract out the mechanical work
at this particular time was because Ed Gamache had left in
November. "We felt Ed Gamache was our best
mechanic-that there was no way to replace him-that the
best and only way for us to keep our trucks on the road was
to subcontract."
Respondent also contends that its decision to close the
shop was motivated in part by the poor quality of work
13 It is clear from the record that at various times since at least 1972 the
subject of contracting out a particular major, and costly, job has been dis-
cussed in partnership meetings
produced by Cornell and Zuniga. The record contains pages
of testimony reflecting the partners' dissatisfaction with their
work-mostly Zuniga's. The essence of the complaints as
reflected in the testimony was that Zuniga was not properly
performing preventive maintenance which resulted in an
inexcusable frequency of breakdowns of trucks and equip-
ment . One or two instances of poor work by Cornell was
mentioned, yet Bortoli admitted that this was insufficient to
cause his discharge. As to Zuniga's work, the testimony of
Respondent 's witnesses establish that his faults as an em-
ployee had been apparent for a long period of time; Bortoli
had for at least a year requested that he be discharged, and
his shortcomings, including sleeping on the job, were dis-
cussed at partnership meetings and among the partners out-
side the meetings. Nevertheless Respondent never discharged
him.
2. Conclusions as to the discharges and independent
8(a)(1) conduct
The record establishes that Respondent's partners had ex-
pressed dissatisfaction with the operation of its mechanical
shop for a period in excess of a year prior to December 14,
1973. However, I conclude that such discussions, prior to
December 6, assumed the continued operation of the shop
and were often nothing more than the expression of concern
by individual partners regarding cost and downtime. There is
no evidence, other than a bare assertion, that Respondent
ever seriously considered or even discussed the closing of the
shop. Rather the question was how to increase productivity
and whether additional work should be contracted
out-never whether substantially all work should be con-
tracted out Bortoli complained monthly to Stagnaro, asking
for some ideas as to how to increase productivity. Each time
Stagnaro told him to let it ride. In April or May 1973, a
company solicited Respondent's general repair work, to no
avail. In June or July when Arthur Salume of San Francisco
Engine attempted to convince Stagnaro to contract more
work to his company, Stagnaro said Respondent would con-
sider it but never contacted San Francisco Engine nor any
other potential contractor until after December 6. Stagnaro's
general inaction in this regard belies Respondent's contention
that it was giving serious consideration to contracting out
most of its mechanical work, prior to any union activity by
shop employees. Even if one credits the testimony of Respon-
dent's witnesses, it establishes only that there exist some busi-
ness reasons favoring contracting out its repair and service
work, that Respondent's partners were dissatisfied with the
operation of the shop and had begun to discuss the extent to
which certain work should be contracted out to other compa-
nies and the methods that might be utilized to increase pro-
ductivity in the shop . Harper Truck Service, Inc., 196 NLRB
262 (1972).
I similarly reject Respondent's contention that Cornell and
Zuniga were discharged in part because of unsatisfactory
work performance. Whatever the quality of their work, it had
remained unchanged and had been known to Respondent's
partners throughout 1973 and before, yet Respondent never
discharged them until after they signed union authorization
cards. In these circumstances, citing poor work as a reason
for the discharge is an obvious self-serving afterthought and
Respondent cannot now rely on something that it heretofore
SOUTH SAN FRANCISCO SCAVENGER COMPANY 699
considered as insufficient reason for discharge Volkswagen
South Atlantic Distributor, Inc., 202 NLRB 485 (1973). Fur-
thermore, both Cornell and Zuniga were given raises in Octo-
ber, and Stagnaro volunteered to give them letters of recom-
mendation. Both actions are inconsistent with a contention
that the quality of their work was poor enough to justify their
discharge. Respondent apparently recognized this inconsist-
ency and attempted to place the unsatisfactory work conten-
tion in the context of the effect it had on cost and downtime.
However, even viewed in this context, Respondent's defense
is suspect. The record reveals other factors contributing to
downtime. Bortoli admits that Respondent never stocked
parts to the extent stocked by the independent contractors
Cornell's undenied testimony is that when Bortoli discussed
with him the state of repair of the equipment it was in terms
of the age of the equipment, not the quality of the work by
the employees. Furthermore, neither Cornell nor Zuniga was
ever told that he might be discharged because of poor work
performance.
Nor do I find persuasive Respondent's contention that its
decision to contract out substantially all of its mechanical
work was triggered by Ed Gamache's•departure. Gamache
quit in October. However, there is no evidence that the im-
pact of his departure was discussed at the November partner-
ship meeting. Bortoli recommended hiring another mechanic
to replace Gamache. Stagnaro's response was that the part-
ners would have to decide whether to hire another mechanic
or contract out more work. There is no evidence that Stag-
naro and Bortoli discussed the possibility of discharging Cor-
nell and Zuniga and contracting out substantially all of the
mechanical work Nor is there any evidence that this was
discussed in the November partnership meeting, or that Cor-
nell and Zuniga were ever told that the shop might be closed
or that work performed by them might be contracted out to
other companies.
In all of the circumstances, I find the reasons given by
Respondent for the discharge of Cornell and Zuniga to be
pretextual . Respondent 's true motivation can be seen in the
timing and the statement made by Achiro to Zuniga on
December 7. In the light of the decision made at the partner-
ship meeting the day before, it is apparent that Achiro was
relating to Zuniga a fait accompli-he was being discharged
because he signed a union card Respondent admits that Cor-
nell and Zuniga were discharged as a package so the motiva-
tion for Cornell's discharge can be inferred as being the same
as that for Zuniga. Furthermore, in view of the fact that the
cards were signed on Respondent's premises, the small size
of Respondent's shop, the direct evidence that Respondent
knew Zuniga signed a union card, the timing of the discharge
decision the day after the cards were signed, and the pretex-
tual nature of the reasons given by Respondent for the dis-
charges, it can be inferred that Respondent had knowledge
that Cornell, as well as Zuniga, had signed a union card and
they both were discharged because they had signed the cards
in violation of Section 8(a)(1) and (3) of the Act. Krebs and
King Toyota, Inc., 197 NLRB 462 (1972); Harper Truck
Service, Inc., supra.
I further find that Achiro's December 7 statement to
Zuniga was violative of Section 8(a)(1) of the Act, Tennessee
Leather Products, Inc., 200 NLRB 495 (1972); Bru-Sand,
Inc., 197 NLRB 431 (1972), but that Stagnaro 's giving as a
reason for the discharges the decision to contract out most of
the mechanical repair work did not constitute an independent
violation of Section 8(a)(1) of the Act.
,3. The Union' s majority status
General Counsel's request for a bargaining order remedy
necessitates a finding as to the Union's majority status. The
complaint alleges, Respondent admits, and I find that the
appropriate unit is:
All full-time employees employed by Respondent in its
mechanical repair shop, excluding owners and those in
the immediate families of owners who enjoy a special
status, all other employees, guards and supervisors as
defined in the Act.
Respondent contends, however, that no relatives of partners
employed in the shop enjoy a special status. On December 5,
1973, and at all times thereafter until Cornell and Zuniga left
Respondent's employ on December 14, there were four full-
time employees in Respondent's mechanical repair shop.
They were Bortoli, Cornell, Zuniga, and Val Fornesi
General Counsel contends, and Respondent denies, that
Bortoli should be excluded from the unit as a supervisor.
Bortoli spent only about 50 percent of his time performing
physical labor. Stagnaro admits that Bortoli was in charge of
the shop and had the responsibility for its day-to-day opera-
tion. He assigned the work, decided the order in which work
would be performed, and within limits set by the partners
decided which work should be done in the shop and which
should be contracted out. He also decided which employees
would work overtime and made random checks as to the
adequacy of the progress of a particular repair job and in-
spected it upon completion. He interviewed Cornell for em-
ployment and Cornell was hired on Bortoli's recommenda-
tion. Bortoli did not have the authority to discharge
employees but Stagnaro considered it to be Bortoli's responsi-
bility to report to Stagnaro if any employee was not perform-
ing satisfactorily. Stagnaro summarized Bortoli's responsibil-
ity as being to get the work done with the employees he had
available to him. It is apparent from the above that Bortoli
had the authority to effectively recommend the hiring of
employees, that he directed the work of the shop employees
and that such direction required the use of independent judg-
ment . Thus, he was a supervisor within the meaning of Sec-
tion 2(11) of the Act and must be excluded from the unit.
Georgia-Pacific Corporation, 204 NLRB 47 (1973); Asheville
Steel Company, 202 NLRB 146 (1973); Penco Enterprises,
Inc., 201 NLRB 29 (1973); Monroe Manufacturing Company,
Inc., 200 NLRB 62 (1972); Walker-Roemer Dairies, Inc., 186
NLRB 430 (1970).
Val Fornesi, the 19-year-old son of Partner Aldo Fornesi
who resides with his father, is excluded from the unit in
accordance with Section 2(3) of the Act since he is an in-
dividual employed by his parent. Joe Gold and Newell Smith
d/b/a City Tire Company, 117 NLRB 753 (1957); Robert W.
Johnson and Clifford W. Johnson, Co-partners d/b/a Johnson
Metal Products Co., 161 NLRB 844 (1967) Accordingly, as
of December 5, 1973, the Union represented all of the em-
ployees in the appropriate unit.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent by informing an employee that he was being
laid off because of his union activities has interfered with,
restrained, and coerced employees in violation of Section
8(a)(1) of the Act
4. Respondent by contracting out its mechanical repair and
maintenance work in order to eliminate the jobs of Timothy
Cornell and Italo Zuniga because of their union activities and
by discharging Cornell and Zuniga because of said union
activities has discriminated in regard to hire or tenure or
terms and conditions of employment of its employees,
thereby discouraging membership in the Union in violation
of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. On Decmeber 5, 1973, the Union was designated as the
majority representative for purposes of collective bargaining
of Respondent's employees in the unit described as follows:
All full-time employees employed by Respondent in its
mechanical repair shop, excluding owners and those in
the immediate families of owners who enjoy a special
status, all other employees, guards and supervisors as
defined in the Act.
The aforesaid unit is a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
7. By the unfair labor practices found to have been commit-
ted, Respondent has undermined the Union's majority and
the likelihood of the conduct of a free and fair representation
election has been impaired.
8. Respondent has not violated Section 8(a)(1) of the Act
in certain respects as set forth above.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
cease and desist therefrom and take certain affirmative action
in order to effectuate the policies of the Act. Since I find that
Respondent's decision to contract out substantially all of its
mechanical work was motivated by an intent to eliminate the
jobs of Cornell and Zuniga because of their union activity and
that they were discharged because of such union activity, I
shall recommend that Respondent be ordered to offer Timo-
thy Cornell and Italo Zuniga reinstatement and make them
whole for any loss of pay they may have suffered by reason
of their discriminatory discharge on December 8, 1973. Back-
pay shall be computed in accordance with the formula pre-
scribed by the Board in F. W. Woolworth Company, 90 NLRB
289 (1950), together with 6-percent interest per annum to be
computed in accordance with Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). I shall also recommend that Respond-
ent be ordered to curtail its practice of contracting out its
mechanical work, and to resume the performance of such
work to the extent necessary to effectuate the reinstatement
of Cornell and Zuniga if they, or either of them, desire rein-
statement. Krebs and King Toyota, Inc., 197 NLRB 462
(1972); Larry Barnes Chevrolet Company, 174 NLRB 818,
822 (1969).
Since I have found that Respondent's violations of Section
8(a)(1) and (3) of the Act have undermined the Union's
majority and rendered doubtful or impossible the holding of
a free and fair election, I recommend that Respondent be
ordered to recognize and bargain with the Union as the exclu-
sive bargaining representative of its employees in the unit
found appropriate, and upon request embody in a signed
agreement any understanding reached. N.L.R.B. v. Gissel
Packing Company, Inc., 395 U.S 575 (1969). In evaluating
the seriousness of unfair labor practices in terms of their
lingering effect upon the possibility of holding a free and fair
election, the Board has considered discriminatory layoffs and
discharges to be particularly devastating Here, Respondent
unlawfully discharged the two employees who constitute the
entire bargaining unit . Nothing can be more pervasive, ag-
gravated, and serious or have a more far-reaching and linger-
ing effect upon the employees' opportunity for exercising a
free choice as to union representation than this total removal
of all eligible employees from the unit. Petrolane Alaska Gas'
Service, Inc., 205 NLRB 68 (1973) Joseph J. Lachniet d/b/a
Honda of Haslett, 201 NLRB 855 (1973) General Stencils,
Inc., 195 NLRB 1109 (1972). Nothing herein should be con-
strued as precluding Respondent from bargaining with the
Union about any proposal to contract out Respondent's me-
chanical repair and maintenance work for nondiscriminatory
reasons.
[Recommended Order omitted from publication.]