Storto Sons Construction Co.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1360 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Storto Sons Construction Co., Inc. and Bricklayers,
Masons and Plasterers' Local Union No. 43 of the
Finger Lakes Region. Case 3-CA-8448
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On May 1, 1979, Administrative Law Judge Walter
H. Maloney, Jr., issued the attached Decision in this
proceeding. Following a Board Order dated May 25,
1979, remanding the case, the Administrative Law
Judge issued the attached Supplemental Decision on
June 28, 1979. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Charging Party
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 Decisions in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that Respondent, Storto Sons
Construction Co., Inc., Rochester, New York, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph I(e):
"(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibilit\ findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 We find the broad cease-and-desist order recommended by the Adminis-
trative Law Judge is not warranted in this case and that a narrow order is
sufficient to remedy the violations found. See Hickmort Foods, Inc.. 242
NLRB 1357 (1979).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an op-
portunity to present evidence and cross-examine wit-
nesses, the National Labor Relations Board has
found that we violated the National Labor Relations
Act, as amended, and has ordered us to post this no-
tice. We intend to abide by the following:
WE WILL NOT coercively interrogate applicants
for employment concerning their union member-
ship.
WE WIILL NOT tell applicants for employment
that they will not be hired because they are
union members.
WE WILL NOT ask applicants for employment
to withdraw their union membership in order to
obtain employment.
WE WILL NOT discourage membership in
Bricklayers, Masons and Plasterers Local No. 43
of the Finger Lakes Region, or Laborers Local
103, or any other labor organization, by refusing
to hire members of those organizations or by
otherwise discriminating against them in regard
to their hire or tenure or any other term or con-
dition of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL make Phillip DeSain, Herman Da-
vis, Stephen Corcoran, Dominick Vedora, John
Woznick, and Harry Serrett, Jr., whole for any
loss of pay and benefits which they have suffered
by reason of our discrimination against them,
with interest.
STORTO SONS CONSTRUCTION Co., INC.
SUPPLEMENTAL DECISION
WALTER H. MALONEY, JR.. Administrative Law Judge:
On February 28. 1978, and March 1, 1978, a hearing was
held before me in the above-entitled case, at the conclusion
of which I stated to all present:
... 1'I set April the 2nd. Monday, April the 2nd. as the
date on which briefs are due. and by "due," I mean
their actual receipt in the Office of the National Labor
Relations Board, 1717 Pennsylvania Avenue, North-
west, before the close of business on that day.
Under cover of a letter, dated March 30, 1978, counsel for
Respondent forwarded a brief addressed to me at 1229 25th
Street, Northwest, Washington, D.C. As the brief was sent
to the wrong address, it is not surprising that it was not
245 NLRB No. 177
1360
STORTO SONS CONSTRUCTION CO.
received by the due date. In fact, it was not received until 5
weeks after the due date, during which time I had prepared
and issued a Decision in this case, dated May 1, 1978. As a
result of the issuance of the Decision, the case was auto-
matically transferred to the Board.
By order dated May 25, 1979, the Board remanded the
case to me, with instructions that I read the brief which
arrived 5 weeks late and that I prepare and serve on the
parties a supplemental decision "containing such resolu-
tions, findings, conclusions and recommendations as (I find)
necessary having given due consideration to the Respon-
dent's brief." I have read Respondent's brief and given it
due consideration. I herehby affirm all of the resolutions,
findings, conclusions, and recommendations contained in
my original decision, and restate them here as fully as if
they were repeated verbatim in this supplemental decision.
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