Sunset Taxi Co.

National Labor Relations Board - Board Decisions

Dec 7, 1977

233 N.L.R.B. 987 (N.L.R.B. 1977)

SUNSET TAXI COMPANY, INC.
Sunset Taxi Company, Incorporated and Ronald
Boccio and Stanley Salanitri. Cases 29-CA-5306
and 29-CA-5331
December 7, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On July 13, 1977, Administrative Law Judge Bruce
C. Nasdor issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, to
modify his remedy so that interest is to be computed
in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977),2 and to adopt his recom-
mended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Sunset Taxi Company, Incorporated, Babylon,
New York, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. In paragraph 2(a), delete the words "at the rate
of 6 percent."
2. Substitute the following for paragraph 2(b):
"(b) Pay Ronald Boccio and Stanley Salanitri
interest on their accident bonds in the manner and at
the rate prescribed in Florida Steel Corporation, 231
NLRB 651 (1977). If either or both should decline
offers of reinstatement, return the money posted for
the accident bonds, plus interest as prescribed in
Florida Steel, supra."
3. Substitute the attached notice for that of the
Administrative Law Judge.
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
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 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent has also excepted to the Board's assertion ofjurisdiction over
its operations. We find no merit in the exception. In this regard we note that
233 NLRB No. 143
in addition to admitting to the paragraphs in the complaint relating to
jurisdiction and set forth by the Administrative Law Judge as a basis for
finding jurisdiction, Respondent amended its answer at the hearing and
admitted par. 4(c) of the complaint. That paragraph avers that in the past
year Respondent purchased goods, products, and materials valued in excess
of $30,000 from other enterprises located in the State of New York, each of
which enterprises had received said goods, products, and materials in
interstate commerce directly from States of the United States other than
New York.
2 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against our employees because of their union
or concerted activities.
WE WILL NOT coercively interrogate our em-
ployees concerning their union membership,
activities, and desires or those of their fellow
employees.
WE WILL NOT threaten employees with dis-
charge or other reprisals for engaging in union
activities or for engaging in protected concerted
activities, or for refusing to sign lease agreements.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed to them in Section 7
of the National Labor Relations Act.
WE WILL offer to Ronald Boccio and Stanley
Salanitri immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges, and WE WILL compensate them for any
loss of pay suffered by reason of their termina-
tions, with interest.
WE WILL pay interest on the accident bonds to
Ronald Boccio and Stanley Salanitri. If they or
either of them refuse reinstatement, WE WILL
return the money they posted for their accident
bonds, plus interest.
All our employees are free to become, remain, or
refrain from becoming or remaining members of
Local 707, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO, or any other labor organization.
SUNSET TAXI COMPANY,
INCORPORATED
987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge: This case
was heard at Brooklyn, New York, on April 18, 1977. The
charge in Case 29-CA-5306 was filed by Ronald Boccio on
November 12, 1976. The charge in Case 29-CA-5331 was
filed by Stanley Salanitri on November 22, 1976. The order
consolidating cases, complaint and notice of hearing issued
on January 26, 1977. The complaint alleges that the Sunset
Taxi Company, Incorporated (herein called Respondent or
Company), committed various independent violations of
Section 8(a)(l) of the National Labor Relations Act, as
amended (herein called the Act), and discriminatorily
discharged two active union adherents in violation of
Section 8(a)(3) of the Act. Respondent in its answer denies
each and every allegation.
Upon the entire record,' including my observation of the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
I. JURISDICTION
At the hearing Respondent moved to amend its answer
by admitting to those paragraphs in the complaint relating
to jurisdiction. The motion was granted. Accordingly, I
find that Respondent is a New York corporation engaged
in the business of operating taxicabs in the county of
Suffolk and State of New York. During the past year, a
representative period, Respondent in the course and
conduct of its business derived gross revenues therefrom in
excess of $500,000. During the same representative period,
Respondent, in the course and conduct of its business,
derived in excess of $35,000 for services rendered to the
Suffolk County Department of Social Services, an employ-
er that would be directly in interstate commerce, if it were
subject to the Act.
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
Local 707, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL-CIO, herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent created the impression it was
engaging in the surveillance of union activities and meeting
places.
2. Whether Respondent interrogated and/or threat-
ened employees with discharge and other reprisals for
engaging in union activity.
I The parties waived the filing of briefs.
2 All dates are in 1976 unless otherwise stated.
3. Whether Charging Parties Ronald Boccio and
Stanley Salanitri quit their jobs or were fired for engaging
in union and concerted activities.
B. Union Activity of Ronald Boccio
Ronald Boccio began working for the Company, as a
driver, in early April 1976.2 He generally worked 6 days a
week on 12-hour shifts. The location of the taxistand which
is involved in this proceeding is the Babylon Railroad
Station, on Long Island, New York.
On November 7, Boccio and several of his coworkers
including Stanley Salanitri, the other alleged discriminatee,
were discussing various benefits which could derive from
having a union represent the drivers. Salanitri, a part-time
cab driver, was employed full time as a tractor-trailer
driver for the Reliance Plastic Corporation. Although the
drivers are unrepresented at Reliance, Salanitri had
become acquainted with one Ralph Alimena, a union
representative with Teamsters Local 707. Boccio requested
Salanitri to call Alimena. Salanitri placed the call which
resulted in a meeting that afternoon at the Babylon
Railroad Station between Alimena and Boccio. A general
discussion ensued relating to the employee complement
and what showing of interest might be forthcoming.
Alimena gave Boccio 15 or 20 union authorization cards. A
subsequent meeting was set for 7 o'clock that evening to
give Alimena an opportunity to speak with the other
drivers and get any cards that Boccio may have had signed
during the interim.
Between 3 and 7 p.m., Boccio procured 12 signatures.3
At 7 p.m. Boccio, Alimena, and several drivers, including
Salanitri, met at the same location. Union benefits were
discussed, and both Boccio and Salanitri turned over their
signed cards and the signed cards they had received as a
result of solicitations. Thereafter Boccio procured addition-
al signed cards.
On November 10, a petition was filed in Case 29-RC-
3647.
C. The Discharge of Boccio
On November 11, at approximately 11:30 a.m., while on
call, Boccio received a radio dispatch to report in, park his
cab and await a call from the president and owner of the
Company, Albert Tumbiolo. He reported in and received
the call from Tumbiolo who instructed him to report to
Tumbiolo's home, which also serves as his office. When he
arrived at the house, Harry Foley, vice president of the
Company, was also present.
According to Boccio's testimony, Tumbiolo asked him to
sit at the kitchen table. Tumbiolo proceeded to interrogate
Boccio regarding his past employment. He then asked him
what was going on, to which Boccio replied, "about what."
Tumbiolo told him not to play dumb, that they already
knew he had signed a union card. Tumbiolo then requested
that Boccio reveal the names of other drivers who had
signed cards. He read the drivers' names from a list,
requesting Boccio to indicate which drivers signed. Foley
then stated to Tumbiolo that he need not get the names
3 Boccio gave Salanitri five or six cards.
988
SUNSET TAXI COMPANY, INC.
from Boccio, because he. Foley, could get them on his own.
Tumbiolo then showed Boccio a lease agreement which he
ordered Boccio to sign. He stated that all of the drivers
must sign similiar agreements in order to attain indepen-
dent contractor status, thus avoiding the Union. Boccio
asked what would happen if he refused to sign the
agreement to which Tumbiolo replied, he would be fired.
Tumbiolo asked Boccio what he would do for the
Thanksgiving and Christmas holidays. Boccio asked to be
refunded the $95 he had advanced as bond. Tumbiolo
feigned ignorance of any bond and stated that there would
never be a union in his place, he would, "lock and close
down my place before the Union steps on my grounds." He
further stated to Boccio, "The representative of your union,
you tell him under the rail (railroad station) I'll f-- him
or anyplace he wants to be f--ed." Tumbiolo told Boccio
he would make sure that Boccio never would be able to get
a job any place.
Boccio testified that this was the first he had ever heard
of any lease agreement. Throughout the conversation he
continued to refuse to sign the lease agreement or reveal
the names of card signers. At the conclusion of the
discussion, Boccio asked whether signing the lease agree-
ment and revealing the names would serve as a basis for
Tumbiolo to reinstate him. Tumbiolo responded affirma-
tively. Boccio then left the premises.
D. The Discharge of Stanley Salanitri
Salanitri was hired as a part-time driver on July 12, 1976.
As set forth heretofore, he was the individual who made the
initial contact with the union representative on November
7. He also procured signatures on union authorization
cards and attended the meeting at the railroad station on
the evening of November 7. The essence of his testimony
regarding the meeting parallels in detail Boccio's version,
and will not be reiterated here.
On November I , when Salanitri returned home from his
job at Reliance Plastic Corporation, he was informed by
his wife that Tumbiolo had called and informed her that
Salanitri was not to go to work at 6 o'clock that night,
rather he was to call Tumbiolo at home. At 7 p.m., Salanitri
reached Tumbiolo by telephone. According to Salanitri,
Tumbiolo's first words were, "Oh Skip (Salanitri's nick-
name), the big organizer. You and Ronnie (Boccio), what
are you trying to do? Are you trying to ruin me?" Salanitri
asked what Tumbiolo meant. Tumbiolo responded, "You
know what you did for all the fellows at the cab station
now with Christmas coming up, Thanksgiving coming up,
they'll never be a union in here. I'll lock the door first." He
then asked Salanitri what cards he signed, to which
Salanitri responded that 90 percent of the men signed-not
just him. Tumbiolo told Salanitri not to work, to stay away
from the cabstand until Tumbiolo could speak to him
again. Tumbiolo then asked Salanitri to come to his home.
Salanitri replied that he had to take his pregnant wife to the
doctor. Tumbiolo told him to call back after he, Salanitri,
returned from the doctor's office.
At or about 10:30 p.m., Salanitri again called Tumbiolo.
Tumbiolo asked Salanitri to come to his home, and
Salanitri refused. Tumbiolo stated, "Well I guess you quit."
Salanitri responded he had not quit and Tumbiolo stated
that Salanitri was refusing to come to his home so he,
Salanitri, quit. Salanitri asked about his $50 bond,
Tumbiolo said they would talk about that later.
On November 12, Salanitri again called Tumbiolo at 4 or
5 p.m. He asked Tumbiolo if he could come in to work.
Tumbiolo responded, "No you quit." Tumbiolo again
asked Salanitri to come to his home to sign the lease
agreement. Salanitri stated he would if his wife could
accompany him. Tumbiolo said that he would not allow
Salanitri's wife into the house. Tumbiolo asked him, "why
did you call in a union?" Salanitri answered that he did not
bring in the Union, Tumbiolo's own men did. Tumbiolo's
rejoinder was that his men would not go against him.
On November 17, Salanitri stopped at the cabstand to
recover money he had loaned to Tumbiolo's son, Richard
Tumbiolo. He asked Richard Tumbiolo for his money and
commented that he was going to appear before the
National Labor Relations Board as a witness in an unfair
labor practice hearing. Richard Tumbiolo then asked
Salanitri why he did not sign the rental agreement.
Tumbiolo stated that he was surprised that Salanitri and
another employee, John Kane, had signed union cards, his
father would shut down the cab station, and the Union will
never come into this taxistand. Richard Tumbiolo, al-
though present at the hearing, was not called upon to
testify. He then called his father at this point and related
his conversation with Salanitri. He gave Salanitri the
phone. Albert Tumbiolo told Salanitri not to appear at the
Labor Board hearing. He then asked Salanitri if there was a
union where he, Salanitri, was working, to which Salanitri
responded in the negative. Tumbiolo said, "Unionize your
place." Salanitri asked Tumbiolo if he was trying to get him
fired. Tumbiolo responded that he would "throw up
pickets."
On November 18, Salanitri was terminated from his job
at Reliance Plastic Corporation.
Salanitri believes that he was observed by Sunset
management in a Reliance truck bearing the name and
phone number of that company. He feels that Tumbiolo is
responsible for having him discharged from Reliance.
Theresa Salanitri, the wife of Stanley Salanitri, corrobo-
rates her husband regarding the first phone call from
Tumbiolo on November 11.
On November 17, Tumbiolo called Salanitri's house at
12:30 in the afternoon. Theresa Salanitri answered the
phone. Tumbiolo told her to tell her husband to stay away
from the cab station or he would be locked up for
trespassing. She asked if her husband was fired and he
answered that Salanitri had quit. Tumbiolo stated that
Salanitri was an instigator and an organizer, that he would
never have a union, and he could afford to "shut down and
still eat good." Furthermore, according to her testimony,
Tumbiolo stated that the other men who signed cards did
so because they were painted a picture of paradise, and no
one has ever bugged him before but her husband. In
addition, Tumbiolo stated that she should try to control her
husband because he was on probation and Tumbiolo did
not want to have to do anything to have it revoked. She
stated that the probation officer was well aware of what
was going on. He said that she may not have much money
for the holidays, but it would be nice to have her husband
989
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
around. He stated that if she had any influence over her
husband to "curb him." She responded that her husband
was not a dog. Tumbiolo said, that when you let dogs loose
in the street, the dogcatcher picks them up. He then
questioned her about Salanitri's job at Reliance-whether
it was unionized. She asked how he handled the other men
who had signed union cards. He responded that some were
reprimanded and put back on the job, others were put on
probation and others were let go.
E. Respondent's Defense
Albert Tumbiolo, Respondent's president and owner,
was the principal witness testifying on behalf of Respon-
dent. Throughout his testimony, Tumbiolo characterized
himself as being embarrassed because of his poor memory,
confused and unrehearsed. At other times, he refused to
answer questions on cross-examination stating, "I really
can't answer a question that I think I'm going to lie about."
Tumbiolo maintains that Boccio quit because he was not
furnished with a new taxicab, and Salanitri quit because
"the job was too much for him." Much of his testimony
was devoted to establishing that Boccio had been involved
in several automobile accidents. The relevance of Boccio's
driving record escapes me in view of Respondent's defense.
Tumbiolo could not, or would not remember why he
insisted that Salanitri come to his house. He agreed that
Salanitri was a good employee, and he had no trouble with
him in any way. He also acknowledged his hurt and
displeasure upon learning of Salanitri's union activity.
Tumbiolo's attitude when asked whether he would be
willing for Salanitri to return to work is as follows:
Q. If he came back to work today, would you use
him?
A. No, I wouldn't.
Q. Why?
A. There's no need for me to have him back to
work for me. Why should I have him back to work for
me for?
Q. .... Do you have animosity which would keep
him from returning?
A. To be perfectly honest, I'm not happy about it,
no.... I've got to be an idiot to turn around and be
happy about somebody trying to go against me.
Tumbiolo testified that Boccio worked long hours,
sometimes, 7 days a week, and was the Company's top
earner. According to Tumbiolo, Boccio requested to see
him at Tumbiolo's home on November 11. Furthermore,
Tumbiolo avers that the "list" Boccio referred to in his
testimony is a figment of Boccio's imagination.
With respect to the leasing agreements, Tumbiolo
testified that normally all employees execute leasing
agreements, but the Company has been "lax" and "slip-
shod" in this area. Moreover, according to Tumbiolo's
testimony, Boccio signed a leasing agreement prior to any
union activity,4 although Tumbiolo did not deem it
necessary to require that Salanitri sign an agreement.
4 The agreement was never produced.
5 Case 29-RC-3647.
With regard to the point in time in which Tumbiolo first
became aware of any union activity, he responded early in
his testimony that he did speak to drivers as to whether or
not they were interested in the Union and whether or not
they had signed union cards. He acknowledged that these
conversations occurred after the petition5 was filed,
because he only became aware of union activity after the
filing of said petition. This witness also acknowledged that
after the petition was filed, but prior to when the alleged
discriminatees left the Respondent's employ (throughout
his testimony Tumbiolo made references to when they were
fired), he had heard rumors from other drivers that Boccio
and Salanitri were involved in the Union's organizational
activities. Tumbiolo commenced to change and contradict
his prior testimony. For example, on redirect examination,
he testified that he acquired knowledge through rumor,
"after" Boccio and Salanitri were 'fired" (emphasis
supplied). Indeed, he began to argue with his own counsel
who acknowledged the timing of his conversations with the
alleged discriminatees.
Q. (By Mr. Passalaqua) .... You were aware that
the union had filed a Petition at the time you had a
conversation with Mr. Boccio?
A. No I wasn't. How would I be aware of it?
Q. This is the day after you got the papers?6 This is
the day that you met at your house?
A. And the day we met at my house was prior to
this here piece of paper or after?
Q. (Mr. Passalaqua) After.
A. So then I knew about the .... so then I knew
about the piece of paper. This puts us one day before
the meeting that I had with him at my home? Is this
what you're saying?
Q. I'm saying?
A. I doubt that very, very much. I think everybody
is wrong there. I don't think that he came to my house
before the . . . after the piece of paper. What do you
think of that?
Edward Joseph Ihne, a driver, testified that he was told
by Salanitri, that Salanitri was quitting due to strain from
his full-time job. In addition, this witness testified that he
was present during a part of a conversation between Boccio
and Tumbiolo, when he overheard Boccio refuse to work.
Ihne had no idea of when the alleged conversation between
himself and Salanitri occurred.
Thomas J. Pasquale, a driver, testified that he heard
Boccio tell another driver that he, Boccio, had quit. He also
testified that Salanitri told him that he had to give up his
job because he was working too many hours.
Both Boccio and Salanitri deny so much as suggesting
that they in any way communicated to anyone that they
were quitting.
Record testimony regarding Richard Tumbiolo, Albert's
son, reveals that as a dispatcher he will, on occasion, make
employment applications available to prospective employ-
ees, although there is nothing in the record to indicate that
he does the actual hiring, or makes effective recommenda-
6 Petition.
990
SUNSET TAXI COMPANY, INC.
tions. Nor is there any evidence that he has the authority to
fire employees. Basically, he directs the drivers to pick up
the passengers at various locations depending upon when
the passenger has placed the phone call requesting service.
The dispatchers, including Richard Tumbiolo, also serve as
drivers.
F. Analysis and Conclusions
In view of Albert Tumbiolo's admissions that he spoke to
drivers as to whether or not they were interested in the
Union or signed cards, and from my observation of the
witnesses, I credit the testimony of Boccio and Salanitri
that Respondent interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed in
Section 7 of the Act by engaging in the following:
1. On November 11, Harry Foley, vice president of
Respondent, 7 and Albert Tumbiolo, created the impression
of surveillance when Foley stated in the presence of
Tumbiolo and Boccio, that he, Foley, was in a position to
obtain the names of union adherents through his own
sources.
2. On November 11 and 12, Albert Tumbiolo interro-
gated Boccio and Salanitri concerning their membership
in, activities on behalf of, and sympathy for Local 707, and
the sympathy and activities of other employees.
3. On November II11, Albert Tumbiolo threatened
Salanitri and Boccio with discharge and other reprisals if
they became or remained members of Local 707 or if they
rendered any assistance and support to it.
4. On November 11, 12, and 17, Albert Tumbiolo and
Richard Tumbiolo, as an agent 8 of Respondent, threatened
employees that the Company would go out of business if
they became or remained members of Local 707 or if they
rendered any assistance and support to it.
5. On November 17, Albert Tumbiolo threatened to
cause Salanitri's parole status to be revoked if he continued
to remain active on behalf of Local 707.
6. On November 11 and 12, Albert Tumbiolo threat-
ened to discharge Boccio and Salanitri if they did not sign
the lease agreements.
In this regard, the record reveals that from the inception
of the Union's organizational campaign, Tumbiolo has
attempted by artifice to create independent contractors of
the drivers, rather than employees. Indeed, he maintained
at the hearing in Case 29-RC-3647, that the drivers were
independent contractors, although footnote 11 of the
Decision and Direction of Election (G.C. Exh. 2) reflects
that employer representatives left the hearing room after
refusing to provide information as to jurisdiction or related
matters.
In any event the record herein is clear that Tumbiolo
attempted to force Boccio and Salanitri into signing the
agreements at threat of discharge. Although he seemed
unsure, Tumbiolo testified that Boccio signed an agree-
7 He did not testify. thus the testimony of Boccio in this regard stands
unrefuted.
s I find that Richard Tumbiolo does not possess the authonty to affect
the employment status of employees. Moreover. as a dispatcher, his
direction of employees is of a routine nature, and I find that in performing
his functions he does not exercise sufficient independent judgment to meet
the statutory definition of a supervisor. Nevertheless, I conclude that his
ment prior to any union activity. The agreement was never
produced. Furthermore, by his own admission, Tumbiolo
was lax and slipshod in getting the agreements executed.
7. On November 11, Albert Tumbiolo refused to return
accident bonds to Boccio and Salanitri in retaliation for
their union activities.
The testimony in this regard stands unrefuted by
Tumbiolo.
As to the allegation in the complaint that Albert
Tumbiolo threatened employees that he would cause them
to be discharged from jobs which they held with other
employers, the only reference in the record to other
employers are the telephone conversations between Albert
Tumbiolo and Salanitri on November 17, and between
Tumbiolo and Theresa Salanitri on the same date. During
both conversations Tumbiolo asked Salanitri and his wife if
there was a union where Salanitri was employed full time.
When Salanitri asked Tumbiolo if he was trying to get him
fired, Tumbiolo responded that he would "throw up
pickets." On the basis of these conversations, I cannot
conclude that Respondent, by Tumbiolo, engaged in the
threat as alleged. I will recommend that this allegation of
the complaint be dismissed. In reaching this conclusion, I
am not unmindful of the fact that the day after the
conversations referred to above, Salanitri was terminated
from his full-time job.
Nor am I able to conclude from the evidence before me
that Tumbiolo effected or caused Salanitri to be discharged
from his job at Reliance Plastic Corporation. Although the
timing of Salanitri's discharge raises considerable suspi-
cion, the General Counsel has not established by evidence
of preponderant weight that Tumbiolo caused Salanitri's
discharge from Reliance. The nexus relating to Salanitri's
union activities at Sunset Taxi and his discharge from
Reliance is not present, thus leaving room in the record for
substantial doubt. Although Tumbiolo's various conversa-
tions amount to flagrant violations of the Act, I find that
they are not tantamount to a threat to cause Salanitri to be
fired from his job at Reliance. Accordingly, I will
recommend that the allegation in the complaint that
Tumbiolo caused Salanitri's discharge at Reliance be
dismissed.
Turning now to the terminations of Boccio and Salanitri,
both individuals impressed me as being frank and forth-
right witnesses. They testified in detailed specificity enough
to convince me that their testimony was not fabricated.
Nor was there any significant variance in their testimony
on cross-examination. Accordingly, I find that they are
entitled to full credence.
On the other hand, I place no reliance on the testimony
of Albert Tumbiolo, who was vague, confused, self-contra-
dictory, and his recollection was faulty.
I find the testimony of Edward Joseph Ihne and Thomas
J. Pasquale unconvincing and too "pat." As set forth
previously, Ihne had no recollection of when his alleged
statements are imputable to Respondent although there is no direct evidence
that said statements were authorized. Broyhill Company, 210 NLRB 288
(1974). Furthermore, Richard Tumbiolo's family relationship was well
known to all of the employees who could have reasonably attnbuted the
statements to his father. Cf. Federal Prescription Service, Inc., and Drivex Co.,
203 NLRB 975 (1973).
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation with Salanitri occurred. Nor was he present
during the entire conversation between Boccio and Albert
Tumbiolo. Furthermore, Ihne's testimony is not necessarily
inconsistent with Boccio's testimony regarding Tumbiolo's
ultimatum-sign the lease agreement or do not go to work.
Pasquale, who admitted being antiunion, testified that
Salanitri told him, he, Salanitri, had "packed it in," because
of working too many hours. He testified further that he
overheard Boccio telling one out of a group of nine diivers
that he, Boccio, had quit.
I specifically discredit the testimony of Ihne and
Pasquale, but even if their testimony were to be given any
weight, it would be minimal. The factors marshalled below
make out a conclusive case that Boccio and Salanitri were
discharged because of their union activity, regardless of
what they may have told their coworkers.
The record reflects that the taxicab industry on Long
Island is unorganized. Tumbiolo recognized that the
advent of a union would cost him money or, in the
alternative, he would have to cut back on service. The
record is replete with Tumbiolo's union animus, and his
particular displeasure and disenchantment with Salanitri.
Respondent's affirmative case is overwhelmed by these
cumulative factors. Tumbiolo, in headlong haste, called in
the two leading union adherents, on the day he received the
petition. He then engaged in serious violative conduct
motivated by his desire to restrain and coerce his
employees from engaging in union activities, and by firing
the leaders to discourage union membership.
Tumbiolo, during his testimony, frequently lapsed into
characterizing the "quits" as "firings." The preponderance
of the evidence and the record in its entirety leave no doubt
in my mind that the discriminatees were fired for engaging
in union activity, and I so find. Salanitri originally sought
the job as a part-time venture to defray additional expenses
resulting from his wife's pregnancy. There is no evidence in
the record that the extra hours spent driving part time
placed a burden on Salanitri, or that he ever complained to
management, requesting shorter shifts. Boccio, by Respon-
dent's own admission, worked long hours and was the
Company's top earner. According to Tumbiolo, Boccio
quit because he was not furnished a new vehicle. I reject
this defense, in my view it is inherently incredible.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 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. By coercive interrogation of employees and threats
of reprisals for union and concerted activity, found above,
Respondent has committed unfair labor practices in
violation of Section 8(a)(1) of the Act.
4. By creating the impression of surveillance Respon-
dent has committed unfair labor practices in violation of
Section 8(a)(I) of the Act.
5. By refusing to return accident bonds to employees,
as a retaliatory act because of their union activities,
Respondent has committed unfair labor practices in
violation of Section 8(a)(l) and (3) of the Act.
6. By discriminating in regard to the tenure of employ-
ment of Ronald Boccio and Stanley Salanitri because of
their concerted and union activities, Respondent has
violated Section 8(aX 1) and (3) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Respondent did not threaten employees that he
would cause them to be discharged from jobs which they
held with other employers.
9. Respondent did not cause Stanley Salanitri to be
discharged from a job that he held with Reliance Plastic
Corporation.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent illegally discriminated
against Ronald Boccio and Stanley Salanitri in violation of
Section 8(aX)) and (3) of the Act, I shall recommend that
Respondent be ordered to offer them immediate and full
reinstatement to their former positions or, if such positions
no longer exist, to ones which are substantially equivalent
thereto, without prejudice to any seniority or other rights
and privileges, and that they be compensated for any loss
of earnings they may have suffered by reason of the
discrimination against them. Backpay shall be computed in
accordance with the formula and methods prescribed by
the Board in F. W. Woolworth Company, 90 NLRB 289
(1950), and payment of 6-percent interest per annum shall
be computed in the manner prescribed by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). In view of
the nature of the unfair labor practices herein found which
clearly demonstrate a proclivity to violate the Act,
Respondent shall be further ordered to cease and desist
from "in any manner" infringing upon the rights guaran-
teed to its employees by Section 7 of the Act.
In view of my recommendation that Boccio and Salanitri
be offered full reinstatement, I will not require that
Respondent return the amounts of money they posted for
their accident bonds. I will recommend that they be paid at
the rate of 6-percent interest compounded quarterly for the
period beginning from the date of their discharges until the
date Respondent makes unconditional offers to return
them to work.
In the event that either or both of the discriminatees
refuse reinstatement, Respondent is ordered to immediate-
ly reimburse to them the money they posted for their
accident bonds plus interest at 6 percent, compounded
quarterly.
The alleged discriminatees took money out of their own
pockets, so to speak, to comply with Respondent's
requirement that a bond be posted before they were
allowed to drive. In my opinion, this is money which
should not be reimbursed based upon computations as
prescribed in F. W. Woolworth Company, and Isis Plumbing
& Heating Co., supra. This is not backpay which the
discriminatees would have earned but for the discharges.
Rather it is money advanced by the discriminatees to
992
SUNSET TAXI COMPANY, INC.
protect Respondent and limit its liability in the event of an
accident. I therefore conclude that under these circum-
stances compound interest is warranted to effectively
remedy the aforesaid unfair labor practices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER9
Respondent Sunset Taxi Company, Incorporated, Baby-
lon, New York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Creating the impression that it is engaging in
surveillance of its employees' union activities.
(b) Coercively interrogating employees concerning their
union membership, activities, and desires or those of fellow
employees.
(c) Threatening employees with discharge and other
reprisals for engaging in union and/or concerted activities.
(d) Threatening to cause employees' parole status to be
revoked if said employees remain active on behalf of the
Union.
(e) Threatening to discharge employees who do not sign
lease agreements.
(f) Refusing to return employees' accident bonds in
retaliation for their union activities.
(g) Discouraging membership in the Union by discharg-
ing employees or otherwise discriminating in any manner
in respect to their tenure of employment or any term or
condition of employment for engaging in protected
concerted activity or union activity.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
9 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 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 be
deemed waived for all purposes.
(a) Offer Ronald Boccio and Stanley Salanitri immediate
and full reinstatement to their former positions or, if such
positions no longer exist, to positions which are substan-
tially equivalent thereto, without prejudice to any seniority
or other rights and privileges, and make them whole for
any loss of pay they may have suffered by reason of the
discrimination against them with interest at the rate of 6
percent as provided in the section above entitled "The
Remedy."
(b) Pay Ronald Boccio and Stanley Salanitri interest on
their accident bonds in the manner set forth in "The
Remedy" section of this Decision. If either or both should
decline offers of reinstatement, return the money posted for
the accident bonds, plus interest as set forth in the section
above entitled, "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examining and copying, all payroll
records and reports and all other records necessary to
ascertain and compute the amount, if any, of backpay due
under the terms of this recommended Order.
(d) Post at its premises at The Babylon Railroad Station,
Babylon, New York, copies of the notice marked "Appen-
dix."' 0 Copies of said notice, on forms provided by the
Regional Director for Region 29, after being duly signed by
an authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Respondent shall take
reasonable steps to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS ALSO RECOMMENDED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
to In the event that the Board's 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 Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
993