Vincent M. Ippolito, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 715 (N.L.R.B. 1994)

715
313 NLRB No. 119
VINCENT M. IPPOLITO, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent additionally argues in its exceptions that the judge
was biased against its position in this case. We have carefully re-
viewed the record and find no merit in this argument.
2 In finding that the Respondent’s mechanics would not constitute
a separate appropriate bargaining unit as a craft, the judge inadvert-
ently relied on Mallinckrodt Chemical Works, 162 NLRB 387
(1966), the case in which the Board defined the standard for sever-
ance of a craft unit from an existing bargaining unit. Inasmuch as
the instant case involves the initial establishment of an appropriate
unit, rather than a severance issue, the standard relevant here was
set forth in E. I. du Pont & Co., 162 NLRB 413 (1966), in which
the Board considered ‘‘the absence of a bargaining history on a more
comprehensive basis, [and] the separate identity of the functions,
skills, and supervision’’ to determine whether a craft unit limited to
electricians would be appropriate for bargaining. Based on these con-
siderations, we agree with the judge that the mechanics do not con-
stitute an appropriate craft unit.
The judge inadvertently erred in stating that the Respondent of-
fered no explanation for its unilateral changes in working conditions.
We agree with the judge, however, that the Respondent did not sat-
isfy its burden under Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), of
demonstrating that the unilateral changes were made for valid busi-
ness reasons. We note that the Respondent’s vice president, Jim
Ippolito, testified that the changes in working conditions were nec-
essary because employees Bob McQuade Jr. and Sr. turned in their
keys to the facility. The judge, however, discredited Jim Ippolito’s
testimony in its entirety.
3 Because the judge inadvertently omitted the standard narrow in-
junctive provisions from his recommended Order and notice to em-
ployees, we shall modify the recommended Order and substitute a
new notice to provide for such relief. Additionally, we shall modify
the reinstatement and make-whole paragraphs of the recommended
Order to conform to standard remedial language. Finally, we shall
modify the notice-posting paragraph of the recommended Order to
reflect the fact that the Respondent’s facility is located in Teaneck,
New Jersey, not Tenafly, New Jersey.
Vincent M. Ippolito, Inc. and Bergen Enterprises
Co. and 1ocal 825, International Union of Op-
erating Engineers, AFL–CIO. Cases 22–CA–
17521, 22–CA–17548, and 22–CA–17589
February 28, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On March 15, 1993, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions2 and to adopt the rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Vin-
cent M. Ippolito, Inc. and Bergen Enterprises Co., Tea-
neck, New Jersey, its officers, agents, successors, and
assigns, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(j).
‘‘(j) 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 following for paragraphs 2(b) and
(c) and reletter the subsequent paragraphs.
‘‘(b) Offer Ted Botsucos and Iva Newman imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of the
judge’s decision.’’
3. Substitute the following for newly relettered para-
graph 2(g).
‘‘(g) Post at its Teaneck, New Jersey office and fa-
cility copies of the attached notice marked ‘Appen-
dix.’2 Copies of the notice, on forms provided by the
Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to recognize and bar-
gain collectively with Local 825, International Union
of Operating Engineers, AFL–CIO with respect to
wages, hours, and other conditions of employment of
the employees in the unit set forth below:
All operators, welders, mechanics and painters
employed by Respondent at its New Jersey facil-
716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ity excluding all office clerical employees, truck
drivers, professional employees, guards, and su-
pervisors as defined by the Act.
WE WILL NOT withdraw recognition from the Union
as the exclusive collective-bargaining representative for
our employees in the unit described above.
WE WILL NOT unilaterally change our employees’
hours of work, and cease our practice of paying em-
ployees for lunch and breaktime, or remove a tele-
phone used by employees because of their membership
in and activities on behalf of the Union.
WE WILL NOT state to employees that it would be
futile to select the Union as their bargaining represent-
ative, or that we would never sign a collective-bargain-
ing agreement with the Union.
WE WILL NOT interrogate employees about their
membership in or activities on behalf of the Union.
WE WILL NOT threaten employees with loss of over-
time work because of their membership in or activities
on behalf of the Union.
WE WILL NOT threaten employees with plant closure
and other unspecified reprisals, because of their mem-
bership in or activities on behalf of the Union.
WE WILL NOT solicit grievances and promise em-
ployees improved working conditions because of their
membership in or activities on behalf of the Union.
WE WILL NOT discharge employees because of their
membership in or activities on behalf of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and bargain, on request, with the
Union in good faith as the exclusive bargaining rep-
resentative of the employees in the unit described
above and, if an agreement is reached, embody such
understanding in a signed agreement.
WE WILL offer Ted Botsucos and Iva Newman im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharge, less any
net interim earnings, plus interest.
WE WILL restore the terms and conditions that were
in effect when we changed our employees’ hours of
work and ceased paying them for lunch and breaktime
and WE WILL make them whole for such monetary
loss, plus interest.
WE WILL replace the telephone usually used by em-
ployees.
WE WILL remove from our files any reference to the
terminations of Ted Botsucos and Iva Newman and WE
WILL notify them in writing that we have done so and
that the terminations will not be used against them in
any way.
VINCENT M. IPPOLITO, INC. AND BER-
GEN ENTERPRISES CO.
Tracy Galligan, Esq., for the General Counsel.
Richard J. Delello, Esq. (Grotta, Glassman & Hoffman), for
the Respondent.
Gary Carlson, Esq. (Schneider, Cohen, Solomon, Leder &
Montalbano), for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on December 16, 17, 19, 20, and 30,
1991.
Upon charges filed by Local 825, International Union of
Operating Engineers, AFL–CIO (the Union) against Vincent
M. Ippolito, Inc. and Bergen Enterprises Co. (Respondent),
an order consolidating cases and complaint issued on No-
vember 14, 1991. The complaint alleged various violations of
Section 8(a)(1), (3), and (5).
On the entire record, including my observation of the de-
meanor of the witnesses and the posttrial briefs filed by
counsel for the General Counsel and counsel for Respondent,
I make the following
FINDINGS OF FACT
Respondent is composed of two interrelated corporations,
which are affiliated business enterprises with common offi-
cers, ownership, and supervision, and formulate a common
labor policy. These enterprises interchange personnel with
each other and hold themselves out to the public as a single
interrogated enterprise. The parties stipulated that Respondent
is a single employer within the meaning of the Act. Re-
spondent is incorporated in the State of New Jersey and op-
erates a single facility in Teaneck, New Jersey, where it op-
erates the business of a garbage disposal contractor. During
the course of such operation, Respondent annually derives
revenues in excess of $50,000 from the provision of such
services to various townships and commercial enterprises lo-
cated in the State of New Jersey and annually purchases and
receives at its New Jersey facility goods and materials valued
in excess of $50,000 directly from points located outside the
State of New Jersey. It is admitted, and I find, that Respond-
ent is an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
It is also admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
The supervision of Respondent’s operation is controlled by
the Ippolito family. Vincent, the father and president, used
to be in overall charge of the operation. Although he still
regularly works at the facility, the overall individual pres-
ently in charge of the facility is James or Jim Ippolito, Vin-
cent’s son, and vice president. The other supervisors and cor-
porate officers of Respondent are Steve Ippolito and Ricky
Ippolito, also vice presidents, Jim’s brothers, and Vincent’s
sons. Respondent is a family corporation. It is admitted that
the above-named Ippolitos are all supervisors within the
717VINCENT M. IPPOLITO, INC.
meaning of Section 2(11) of the Act. Roger Ippolito, another
son works for Respondent, essentially repairing tires. There
is no evidence that he should be excluded as an employee
under Section 2(3) of The Act, or as a close relative with
special circumstance. Cf. NLRB v. Action Automotive, supra.
This issue is more fully discussed below.
Respondent’s operation employs approximately 20 drivers
and 13 helper lifters on its trucks. These employees are rep-
resented by Local 945, International Brotherhood of Team-
sters (Local 945). Respondent’s facility is essentially divided
into three areas. One area is the transfer area where the gar-
bage trucks enter through open overhang doors. Here the gar-
bage is dumped, sorted and processed. Respondent employs
two regular full-time and one regular part-time employees
called transfer station or station employees. There is an issue
as to whether the regular part-time employee is includable in
an appropriate unit. Another station employee was on layoff
with a questionable expectancy of return. There is an issue
as to whether he is includable in an appropriate unit. Another
area is the shop area. The shop area is separated from the
station area by a common wall. There is a doorway that con-
nects the two areas. The shop area employs six shop employ-
ees, two welders, and four mechanics. In addition to the
above production and maintenance employees, Respondent
employs Roger Ippolito who repairs tires and performs other
miscellaneous type functions. Roger Ippolito, as set forth
above, is part of the Ippolito family. He is the brother of
Vincent. There is an issue as to whether he is part of in ap-
propriate unit. A summary of the alleged appropriate unit is
as follows:
Bob McQuade Jr., mechanic (Respondent contends
he is a supervisor).
Bob McQuade Sr. shop mechanic.
Iva Newman, shop mechanic-welder.
Des Moines Chaney, welder
Roger Ippolito, tire room employee. (General Coun-
sel contends he should be excluded.)
Bernie Hammer, mechanic. (Charging Party and
General Counsel contend that as a member of Local
945, he should be excluded from the unit.)
Charlie Billings, helper general all-round man.
(Charging Party contends Billings is not a regular part-
time employee.)
Gerard Gansel, station employee.
Ted Botsucos, station employee.
Billy Kelleher (Respondent contends he was not em-
ployed at time of alleged recognition).
Respondent also employs approximately five clerical em-
ployees who work in a separate area of Respondent’s facility.
The shop employees, station employees and clerical employ-
ees are unrepresented by any labor organization. General
Counsel contends that an appropriate unit consists of the sta-
tion and shop employees. Respondent contends that the ap-
propriate unit consists of the shop employees only.
The transfer station could accurately be called the produc-
tion end of Respondent’s facility. The garbage trucks pick up
their loads at Respondent’s customers location and unload
them when they return from their routes at the transfer sta-
tion. The garbage is simply dumped on the floor of the trans-
fer station. It is then processed and sorted for eventual deliv-
ery elsewhere. To perform these functions, the station em-
ployees use a conveyor belt, bobcat, bulldozer, buckloader,
and forklift. The shop employees essentially maintain this
equipment and trucks. When transfer station equipment needs
repair, a transfer station employee walks into the shop and
announces what piece of equipment has broken down. Most
of the repairs that occur are what could usually be described
as routine, and any available mechanic or welder will repair
the equipment. Welders are usually capable of making most
repairs. This repair work is not especially complex work. If
a particular repair is reasonably complicated or it involves a
knowledge of hydraulics, the station employee would go to
McQuade Jr., only because he is the best mechanic, and the
only shop employee with knowledge of hydraulics. McQuade
Jr. is classified by Respondent as a shop foreman and has
worked for Respondent continually for 10 years. In addition
to repairing the shop equipment the shop employees also re-
pair and maintain Respondent’s trucks. Often, transfer em-
ployees would assist the shop employee in making a repair.
For example, a transfer employee might fetch a particular
tool for a mechanic, hold a wrench, or other tool and provide
physical assistance when needed.
Shop and transfer employees share a common breakroom
where they would take morning breaks and have their lunch
together. Both groups of employees are hourly paid employ-
ees, including McQuade Jr. The transfer room employees
generally receive less of an hourly rate then the shop em-
ployees. This is presumably because of the different degree
of skill involved. McQuade Jr., a senior employee with the
most knowledge and experience, is the highest hourly paid
employee. All employees receive time and a half for over-
time worked after 40 hours, except McQuade Jr., who re-
ceives double time. Both the shop and transfer employees re-
ceive the same health insurance benefits. There is no evi-
dence that shop employees receive any benefits nor received
by transfer room employees.
General Counsel contends that an appropriate unit for bar-
gaining is a unit consisting essentially of all Respondent’s
production and maintenance employees, and excluding the
drivers, who are already represented by another labor organi-
zation, and the office clerical employees, who are unrepre-
sented. The Act does not require the only appropriate or the
most appropriate unit; the Act requires only that the unit be
an appropriate unit. Morand Bros. Beverage Co., 91 NLRB
409 (1950), enfd. 190 F.2d 576 (7th Cir. 1951); Federal
Electric Corp., 157 NLRB 1130 (1966); Capital Bakers, 168
NLRB 904, 905 (1967). Moreover, the Board has held the
presumption of a single plantwide unit to be an appropriate
unit. Frisch’s Big Boy Ill-Mar, 147 NLRB 551 (1964). The
fundamental factor in determining an appropriate unit is the
community of interest among the employees. NLRB v. Action
Automotive, supra. Factors used by the Board in determining
such community of interest include the method of wages;
hours of work; employment benefits; nature of supervision;
difference in training and skills; interchange of employees,
functional integration; and history of bargaining and extent
of organization. Kalamazoo Paper Box Corp., 136 NLRB
134 (1962).
Applying these considerations to Respondent’s facility, the
credible evidence establishes a high degree of functional in-
tegration. In this regard, when the trucks are unloaded at the
Respondent’s facility, the garbage is processed by the trans-
fer station employees. The trucks and transfer station equip-
718 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment is maintained by the mechanics and Roger Ippolito, a
tire maintenance employee. All maintenance and transfer sta-
tion employees are hourly paid, work the same workdays,
and approximately the same hours. They are commonly su-
pervised by the Ippolitoes, particularly Jimmy and Ricky
Ippolito, receive the same employee benefits, share a com-
mon breakroom and take their lunch and coffeebreaks to-
gether. Their work rooms are adjacent to one another sepa-
rated by a wall with an open entrance. There is some inter-
change of employees. Transfer employees often assist the
mechanics in the repair of equipment performing physical,
nonskilled functions. At other times transfer station employ-
ees clean the maintenance shop area. At other times the
transfer station employees would pick up ordered parts for
the maintenance employees. These factors clearly establish
that a production and maintenance unit is an appropriate unit.
Respondent contends the mechanics constitute a craft and
should be represented as a separate unit. Whether a particular
group of employees constitutes a separate craft status to war-
rant their exclusion from a plantwide unit is determined by
the standards set forth in Mallinckrodt Chemical Works, 162
NLRB 387 (1966). The cases following Mallinckrodt have
almost uniformly rejected craft severance. It is very difficult
to establish a craft unit under Mallinckrodt. For example in
Dow Chemical Co., 202 NLRB 17 (1973), the Board denied
petitions for severance of five separate groups of craftsmen
(electrical workers, pipe fitters, painters, sheet metal workers,
and carpenters) on the ground that they shared substantially
common working conditions and benefits with production
employees, and that their work was highly integrated with
the employers entire process. In La-Z-Boy Chair Co., 235
NLRB 77 (1978), the Board refused to sever tool-and-die
employees from a production and maintenance unit because
among other considerations there was a high degree of func-
tional integration and common supervision.
I conclude that in view of the high degree of functional
integration, the common supervision, common working con-
ditions, and benefits, Respondent has failed to establish that
its maintenance mechanics constitute a craft unit. Moreover
under Mallinckrodt, I conclude Respondent has failed to es-
tablish that its mechanics have the skills necessary to even
qualify them as a craft. In this connection McQuade Jr. is
the most skilled mechanic. The other employees all have
skills well below those of McQuade Jr. The evidence estab-
lished that McQuade has to help them with much of their re-
pair work because they lack the skill.
Considering the eligible employees in the above appro-
priate unit, Respondent contends that McQuade Jr. is a super-
visor within the meaning of Section 2(11) of the Act. Gen-
eral Counsel contends that although he is the most knowl-
edgeable mechanic with long seniority, he is at best a
leadman, notwithstanding his title as shop foreman, and an
employee within the meaning of Section 2(3) of the Act.
During the first day of this trial when McQuade Jr. was
testifying, I asked Respondent counsel whether Respondent
was contending that McQuade Jr. was a supervisor. Jim
Ippolito, who acted in the function as general manager and
was sitting at Respondent’s counsel table, conferred for sev-
eral minutes with his attorney who stated that Respondent
was not contending that McQuade Jr. was a supervisor with-
in the meaning of the Act. McQuade Jr. completed his direct
and cross-examination the first day of the trial. His testimony
if credited established the validity of his union card and the
cards of other employees, that he was the employee most re-
sponsible for the employees seeking union representation,
and the employee to whom all alleged unlawful interroga-
tions were directed. It is interesting that the following trial
day Respondent amended its position through its attorney to
first contend that McQuade Jr. was a supervisor. I find such
amendment highly suspicious, and made in bad faith, with an
intention to establish supervisory interference with the entire
union organization and a disqualification of all the union
cards as being unlawfully solicited by a supervisor as well
finding that all alleged unlawful interrogations were made to
a supervisor, and thus not unlawful. Thereafter, when Jim
Ippolito testified several days later concerning his business
operation, he repeatedly began every sentence relating to
McQuade Jr. as ‘‘my supervisor’’ and ‘‘my boss.’’ This con-
stant reference to McQuade Jr. was so repeated and exagger-
ated that one could conclude, if Jim Ippolito were credited,
that before Jim Ippolito went to the bank, or took his lunch,
or went to the men’s room, he asked McQuade Jr. whether
it was alright. Further, in connection with the discharge of
Newman, discussed below, Respondent, in its position paper
submitted by its attorney, who presumably drew it up pursu-
ant to conversations with the four Ippolitoes, set forth in con-
nection with Newman’s discharge that during the meeting
with Newman and McQuade Jr. which led to his discharge,
Newman ‘‘lost control and screamed ‘I don’t have to listen
to this shit’ and began to leave.’’ It was at this point that
Newman was fired for insubordination. Yet the testimony of
the Ippolitoes on this significant issue failed to establish that
Newman used any vulgar or curse words, as alleged in Re-
spondent’s position statement, but rather left the meeting
when no one said anything further, and was fired because he
left the meeting without permission. I conclude this con-
tradiction seriously and adversely affects the credibility of all
the Ippolitoes. Moreover, throughout the testimony of the
Ippolitoes, their testimony impressed me at times as vague,
at other times as not responsive, and at frequent times gross-
ly exaggerated in support of their position. I was most unfa-
vorably impressed with their demeanor, and where their testi-
mony is in conflict with that of General Counsel’s witness,
I credit General Counsel’s witness.
Additionally, I was generally impressed with the demeanor
of General Counsel’s witness. They had a good recollection
of the facts and were forthright during both direct and cross-
examination. Any contradictory testimony by General Coun-
sel’s witnesses was insignificant, in my opinion, and the type
of contradiction that one might expect from a truthful wit-
ness.
The credible testimony of McQuade Jr. establishes that, al-
though he is classified as the shop foreman, he has no inde-
pendent authority to hire, fire, promote, transfer, discipline,
or effectively recommend such action. The credible evidence
also establishes that he does not assign work to employees
using independent discretion. Rather, he would handle the
most difficult jobs himself since he is the most experienced
worker. As to other employees, he often explains to them
how to do a job, or works with them on certain jobs because
he is the most experienced worker.
There is no evidence that the employees consider
McQuade Jr. to be a supervisor. Moreover, Respondent did
not consider McQuade Jr. to be a supervisor until the second
719VINCENT M. IPPOLITO, INC.
day of the trial when they heard his testimony as to his par-
ticipation in the organization campaign and the independent
8(a)(1) allegations. In this connection, I find it significant
that in connection with the incident involving employee
Chaney’s tools, described below, McQuade and Newman, an
admitted employee, were reprimanded together. Supervisors
are not usually reprimanded in the presence of rank-and-file
employees.
In addition McQuade Jr. is an hourly paid employee who
receives the same benefits as the other employees. He re-
ceives the highest rate of pay only because he is the most
experienced mechanic.
Further, there are only six mechanics and five transfer sta-
tion employees including McQuade Jr. Excluding the
clericals, these are the only employees working at Respond-
ent’s facility. The other employees are drivers who spend
most of their time on the road and are supervised over the
phone by a dispatcher. Thus it appears that the 4 Ippolitoes
are available to supervise the 11 shop employees, which are
the transfer station employees and maintenance mechanics,
including Roger Ippolito, the tire maintenance mechanic.
Thus it appears that the ratio of 4 owner supervisors to 11
employees is such that McQuade Jr.’s supervisory status is
doubtful. This doubt is magnified by Jimmy Ippolito’s in-
credible testimony that he supervised the whole shop by him-
self until about 7 years ago when he hired McQuade Jr. who
was an experienced mechanic. According to Jimmy,
McQuade Jr. ‘‘just kind of took over’’ as supervisor. At this
time Respondent employed only one other mechanic. Thus,
if Jimmy is to be believed, this mechanic had his personal
full-time supervisor.
Additionally, McQuade Jr. spends almost all of his time
performing manual mechanical work.
Respondent contends that McQuade Jr. recommends the
hiring of other employees. In this connection Respondent
specifically contends that he recommended hiring his father
McQuade Sr. and that by giving work tests to employee ap-
plicants, he effectively recommends their hire. I conclude
that the giving of routine mechanical tests and reporting his
impression of the results of such test is insufficient to estab-
lish that he effectively recommends hiring within the mean-
ing of the Act. The same is true as to his recommendation
of his father which probably came about in response to
Jimmy Ippolito’s asking him if he knew any experienced me-
chanics and his response that his father was an experienced
mechanic.
Respondent also contends that McQuade orders in excess
of $100,000 worth of routine replacement parts as necessary
in the course of a year. However, he cannot order equipment,
and if it becomes a question of whether to repair a piece of
equipment or replace it Jimmy Ippolito would make that de-
termination. Moreover, such alleged purchase duties are rou-
tinely performed by management employees, who are not su-
pervisors within the meaning of the Act.
On the basis of the above facts and discussion, I conclude
that McQuade is not a supervisor within the meaning of Sec-
tion 2(11) of the Act.
The undisputed evidence established that Bill Kelleher was
employed by Respondent as a mechanic on August 16 when
he signed a union card. The evidence also established that
he was not employed by Respondent on October 25, the al-
leged date of recognition. Counsel for General Counsel con-
tends that Kelleher was on a leave of absence with a reason-
able expectancy of recall. Respondent contends that he had
extended his leave of absence for an indefinite period of time
and had no reasonable expectation of returning. The record
establishes that he was given a leave of absence because he
wanted to be with his father who was dying. There is no evi-
dence as to the specific length of time of such leave, if any.
However, Kelleher admitted that he extended his leave of ab-
sence when after his father passed away, he failed to make
a timely return. Rather, he did not return for an additional
period of time because he became involved in another mat-
ter, unrelated to the death of his father. His total absence was
approximately 3 weeks. Kelleher further admits that he real-
ized that by extending his return he had in effect lost his job.
In this regard he candidly testified: ‘‘I really needed a job
and I had to come back and I asked them for my, you know,
for my job back.’’
Respondent’s counsel correctly contends, in my opinion,
that such testimony cannot be twisted into an expectation of
recall by Kelleher. Moreover, Kelleher’s past record estab-
lishes that over his 8- to 9-year period of employment he had
left Respondent’s employ a number of times and then re-
turned seeking employment. Accordingly, I conclude that
Kelleher had no reasonable expectation of recall. The Board
has held that where an employee’s leave is indefinitely ex-
tended, there can be no expectation of recall. Yawman Erbe
of California, 232 NLRB 935 (1977). Accordingly, I con-
clude that Kelleher was not an employee in the unit found
appropriate for bargaining.
The Charging Party’s counsel contends that Roger
Ippolito, Vincent Ippolito’s brother, should not be included
in any unit found to be appropriate because of a close rela-
tionship with Respondent. Roger Ippolito did not sign an au-
thorization card. The uncontradicted evidence established that
Roger was a full-time tire man in the shop. His terms and
conditions of employment were similar to the other shop em-
ployees. Roger performed the work of replacing worn out or
damaged tires exclusively. At one point in time Roger’s
work was unsatisfactory and he was terminated. He was sub-
sequently rehired. He was subject to the same supervision as
the shop and transfer station employees. No evidence was
submitted to establish that Roger received any special or fa-
vored treatment or any other reason why he should be ex-
cluded. The Board has held that in determining whether a
relative of management should be included in a bargaining
unit, the Board examines whether the individual shares a
community of interest with the other employees. The specific
criteria considered include level of pay, work load, and spe-
cial treatment regarding attendance or punctuality. and the
authority of supervisors to exercise authority over the indi-
vidual. NLRB v. Action Automotive, 469 U.S. 490 (1985);
United Artists Theater, 277 NLRB 115 (1985).
Based on the discussion and authorities described above,
I conclude that Roger Ippolito should be included in any unit
found appropriate.
The Charging Party contends that Charles Billings is not
a regular part-time employee. Billings did not sign an author-
ization card. The evidence disclosed that during the period
of August 16 and October 25 1990, Billings was working 3
to 5 days per week, performing unit work for Respondent.
Although there is some evidence that Billings once per-
formed personal work for the Ippolitoes, there is no evidence
720 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
submitted that the recent work he performed for Respondent
was anything but unit work. Oxford Chemicals, 286 NLRB
187 (1987).
Accordingly based on the the discussion and authority de-
scribed above, I conclude that Billings should be included in
any unit found appropriate for bargaining.
Counsel for General Counsel and counsel for Charging
Party contend that Bernie Hammer did not sign a union card
because he was a member of Local 945, the labor organiza-
tion representing Respondent’s drivers, and that he is covered
by the Local 945 contract with Respondent. However, no
evidence was submitted that Hammer was a member of any
labor organization. Hammer was a member and was covered
by Local 945 when he was a driver for Respondent. How-
ever, sometime before the critical period in this case, Ham-
mer transferred to the shop as a mechanic. There was no evi-
dence that Hammer was thereafter a member of Local 945,
or that his terms and conditions of employment were covered
by the contract between Local 945 and Respondent. Follow-
ing his transfer to the shop, Hammer performed mechanic’s
work exclusively.
Accordingly, based on the discussion above, I conclude
that Hammer should be included in any unit found appro-
priate for bargaining.
In July 1990, Respondent’s shop and station employees,
dissatisfied with their working conditions, discussed among
themselves the possibility of obtaining union representation.
Among the employees involved in these discussions was
McQuade Jr. As a result of these discussions, the employees
decided to seek union representation and in response to this
decision, McQuade Jr. met with several union representatives
at the union office. The union representatives explained to
McQuade Jr. the advantages of union membership and gave
him various materials to distribute to the employees. A sec-
ond meeting was scheduled for August 16 at the Union’s
hall.
On August 16 the second union meeting was held as
planned. Respondent’s employees attending this meeting
were McQuade Jr., Bernie Hammer, Billy Kelleher,
DesMoines Chaney, Ted Botsucos, and Gerard Gansel.
Union representatives present were Les McCurrie and Ed
Zarnock. During the course of this meeting the union rep-
resentatives distributed union cards to the attending employ-
ees. McCurrie explained to the employees that by signing
these cards, the employees were choosing the Union as their
collective-bargaining representative. All the above-named
employees, except Hammer, read and signed their union
cards. Hammer apparently did not sign a card because he is
still a member of Local 945, who represents the drivers, al-
though there is no evidence that Hammer is covered by this
agreement. The five signed cards were then returned to
McCurrie. McCurrie then gave McQuade Jr. a few extra
union cards for interested employees who did not attend the
meeting.
Thereafter, on August 17, McQuade Jr. obtained a signed
union card from Iva Newman and sometime before August
22 turned the signed card over to McCurrie.
On August 22, the Union sent Respondent a telegram ad-
vising them that they represented Respondent’s station and
shop employees, and requested that a meeting be scheduled
to commence negotiations for a collective-bargaining agree-
ment covering these employees. On August 23, Jim Ippolito,
Respondent vice president, sent the Union a responding letter
that Respondent would meet with the Union. A meeting was
thereafter scheduled by telephone for Respondent to meet
with the Union on September 12, at Respondent’s facility.
The same day Respondent received the Union’s demand
telegram Jim Ippolito called McQuade Jr. into his office and
asked him if the employees had signed up for the Union.
McQuade Jr. responded that all the employees had signed up.
Jim Ippolito testified that he called McQuade Jr. to find out
about the Union because McQuade was the ‘‘boss,’’ the shop
employees’ supervisor, the man in complete charge.
On the day Respondent received the Union’s demand let-
ter, Jim Ippolito confronted McQuade Jr. privately and said,
‘‘You guys signed up for the Union?’’ McQuade replied that
all the employees had signed up. I conclude such interroga-
tion was unlawful and in violation of Section 8(a)(1).
Rossmore House, 269 NLRB 1176 (1984).
The credible testimony of Newman established that on the
same day as the unlawful interrogation of McQuade Jr., set
forth above, took place, Vincent Ippolito came over to Iva
Newman and told him that if the employees had a Union,
they would no longer receive overtime work. I conclude such
statement to be a threat of a loss of overtime work oppor-
tunity and a violation of Section 8(a)(1). NLRB v. Okun
Bros. Shoe Store, 825 F.2d 102 (6th Cir. 1987).
Later, also on that same day, McQuade Jr. was again sum-
moned to Jim Ippolito’s office. Present were Vincent and
Steven Ippolito. Jim Ippolito asked McQuade Jr. what was
going on and how the Union came about. McQuade Jr. re-
sponded that there was a union guy outside. One of the
Ippolitoes asked whether McQuade had met with this union
representative. McQuade replied that he had met with him
during his lunch period. I conclude such conduct to be an
unlawful interrogation in violation of Section 8(a)(1).
Rossmore House, supra.
The evidence submitted by counsel for General Counsel
established that McQuade Jr., Newman, Chaney, Gansel,
Botsucos, and Kelleher signed valid union cards. Ona Corp.,
261 NLRB 1378 (1982). Accordingly, based on the facts and
analysis set forth in the paragraphs above, I conclude that
McQuade Jr., McQuade Sr., Newman, Chaney, Hammer, and
Roger Ippolito were the shop employees (welders and me-
chanics) employed by Respondent during the critical period
herein and that Billings, Gansel, and Botsucos were transfer
station employees employed by Respondent during the same
critical period. There were a total of nine employees em-
ployed by Respondent in the unit found appropriate for bar-
gaining. Of these employees, five signed valid union cards.
Accordingly, I conclude that the Union represented a major-
ity of Respondent’s employees in an appropriate unit for bar-
gaining at all times material herein.
I also conclude that based on Respondent’s unlawful inter-
rogations, described above, Respondent was aware that the
Union represented a majority of its employees.
Sometime, during the last week in August 1990, the Union
contacted Jim Ippolito. A meeting was scheduled for Septem-
ber 12 at Respondent’s facility. Respondent’s lawyer, Drew
Bauman, was supposed to be present.
On September 12, McCurrie and Zarnock arrived at Re-
spondent’s facility to meet with Jim Ippolito and his lawyer
as previously scheduled. Jim Ippolito told them that his law-
yer was not available so that they could not proceed as
721VINCENT M. IPPOLITO, INC.
planned. Zarnock told Ippolito that if there was any question
that the Union represented a majority of the employees he
had the membership cards with him to prove majority status
and took the cards from his pocket and fanned them like a
deck of cards for Ippolito to look at. Ippolito was seated at
his desk about 5 feet away from Zarnock at this time. There
is no question in my mind that Ippolito was unable to read
the cards or verify the signatures from this distance as Gen-
eral Counsel apparently contends. However, based on Re-
spondent’s interrogation of McQuade Jr., there is absolutely
no doubt that Respondent was aware that the Union rep-
resented a majority of its employees. Consistent with this
conclusion, Ippolito responded that he knew the Union rep-
resented the employees and that would be no problem. The
parties agreed to meet at a later date.
Following this meeting Jim Ippolito called his attorney,
Drew Bauman, and asked him what steps should be taken.
Bauman told Ippolito that he knew a labor lawyer with
whom he was friendly, Richard Delello, and would contact
him. Bauman contacted Delello and briefed him on the facts.
Delello suggested that it would be a good idea to take a look
at the Union’s proposed contract as a first step. Thereafter,
pursuant to arrangements between the parties McCurrie faxed
its contract to Delello. Delello thereafter contacted the Union
and arranged to meet with their representatives on October
25 at an agreed-upon restaurant.
On October 25, the parties met as scheduled. Present for
the Union was McCurrie and Zarnock. Present for Respond-
ent was Bauman and Dellelo. The parties had lunch and
made small talk unrelated to collective bargaining. Following
lunch, copies of the Union’s proposed collective-bargaining
agreement were passed out to Delello and Bauman. Both at-
torneys looked over the proposed agreement and at various
points asked the union representatives various questions
which were answered. Respondent’s attorneys commented
that the Union’s proposed wage was similar to the wages Re-
spondent’s employees were presently receiving. Respondent’s
attorneys then asked whether the Union’s health and welfare
plans were negotiable. Zarnock explained the Union’s benefit
package, its costs, and how Respondent could contain these
costs so as to benefit from the plans. The meeting lasted
about 2 hours. The parties agreed to meet again at some later
mutually agreeable date.
On November 1, Bauman, by letter, advised McCurrie that
he had mailed a copy of the Union’s proposed contract to
Jim Ippolito for his review. The letter stated as follows:
I have mailed a copy of the proposed contract to Mr.
Ippolito for his review. As per our conversation and
discussion, we are aware that the Welfare Fund issue
in Article VIII is non negotiable, but that other issues
such as salary and annuity fund are negotiable. Since
I will not be back from my vacation until November
14, 1990, please be advised that you will not hear from
us until after that time. I will then contact you to give
our proposal to the contract.
Thereafter, the Union made several attempts to arrange for
another meeting, but was unsuccessful. On January 28, 1991,
the Union sent a telegram to Respondent stating that if the
Union did not receive a response to its proposals within 5
days, it would be forced to file unfair labor practice charges
with the NLRB. On February 4, 1991, Dellelo, by letter, ad-
vised the Union that Respondent doubted the Union’s major-
ity status.
The facts establish that Respondent met, recognized, and
thereafter bargained with the Union and later withdrew rec-
ognition. The Union’s August 22 letter to Respondent,
claimed that it represented a majority of Respondent’s pro-
duction and maintenance employees and demanded recogni-
tion. As set forth and discussed above, the Union did rep-
resent a majority of Respondent’s employees in an appro-
priate unit for bargaining. Shortly thereafter union representa-
tives met with Jim Ippolito. At this meeting, the union rep-
resentatives reiterated that they represented a majority of Re-
spondents employees and would gladly show him the signed
union cards if there was any doubt. Ippolito conceded that
the Union represented a majority. He knew this as a result
of his unlawful interrogation. Thereafter an arrangement was
made for Respondent’s attorneys to meet with the union rep-
resentatives. I also conclude that Ippolito must have informed
its attorneys that the Union represented a majority of its em-
ployees otherwise there would have been no further meet-
ings, and because in preparation for the meeting between Re-
spondent’s attorneys and the union representatives, one of
Respondent’s attorneys requested that the Union fax them a
copy of their proposed contract. I conclude such action was
taken so that Respondent would be able to bargain intel-
ligently by becoming familiar with the Union’s demands.
Such request for the Union’s proposals implies to me that
recognition had already been extended. When the parties met
on October 25, there was in fact negotiation on the Union’s
proposals. In fact Respondent’s attorneys asked the union
representatives whether their welfare and health plan was ne-
gotiable, after expressing no problems with the Union’s pro-
posed wages. Respondent’s attorney’s letter of November 1
further establishes that recognition and bargaining had in fact
taken place by setting forth that a copy of the Union’s pro-
posals had been mailed to the Ippolitoes with his comments
on what proposals were negotiable and which were not nego-
tiable, and a promise to contact the Union and submit its
counterproposals.
The Board has consistently held that where an employer
concedes that a union represents a majority of its employees
and thereafter makes a commitment to bargain, a unilateral
withdrawal from further bargaining violates Section 8(a)(5)
of the Act. Jerr-Dan Corp., 237 NLRB 302 (1978); Jem
Mfg., 156 NLRB 643 (1966). As set forth above, although
Respondent did not actually check the Union’s cards, it con-
ceded their majority. Certainly Respondent’s future action
was predicated on an assumption of a majority. Clearly, not
only was a commitment to bargain made by Respondent, but
actual bargaining took place, and Respondent’s representa-
tives were prepared to submit counterproposals to the
Union’s proposals which were discussed when Respondent
suddenly withdrew recognition. Under these circumstances, I
conclude that Respondent recognized the Union as the col-
lective-bargaining representative of its production and main-
tenance employees and engaged in collective-bargaining ne-
gotiations. I further conclude that by withdrawing recogni-
tion, Respondent violated Section 8(a)(5) of the Act.
On or about September 1990, McQuade Jr. was called into
Jim Ippolito’s office. All the Ippolitoes were present. They
asked McQuade Jr. what was bothering him and the other
722 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees. McQuade Jr. replied that there was dust in the
garage, no heat in the winter, and that Respondent never pro-
vided tool insurance. I conclude such conduct was an unlaw-
ful solicitation of grievances in violation of Section 8(a)(1).
DBM, Inc., 304 NLRB 145 (1991). Jim Ippolito made a list
of McQuade’s complaints and then promised him he would
take care of the tool insurance and give him and his father
$2000 per year for an IRA. I find such conduct to be a
promise of benefits in violation of Section 8(a)(1). Pony Ex-
press Courier Corp., 283 NLRB 868 (1987).
Sometime in early November, McQuade Jr. was sum-
moned into Jim Ippolito’s office. All four Ippolitoes were
present. Jim Ippolito waved what McQuade Jr. perceived to
be a union contract in his hand and said that he wasn’t sign-
ing any union contract and he didn’t give a damn if everyone
walked out. I conclude such statement constitutes a threat to
refuse to bargain with the Union in violation of Section
8(a)(1). Kona 60 Minute Photo, 277 NLRB 867 (1985).
Several days later Vincent Ippolito came into the parts
room where several employees, including McQuade Jr., were
present. Ippolito stated that he knew the guys in the shop
were stealing from him and that it was happening at night.
McQuade Jr. stated that this was not true. Ippolito then spe-
cifically accused McQuade Jr. of stealing. McQuade Jr. and
Sr. both had keys to Respondent’s facility.
Shortly afterward McQuade Jr. and Sr. met with Jim
Ippolito in his office. Both McQuades turned in their keys
to Ippolito. McQuade Jr. told Jim Ippolito that if Respondent
thought he was stealing, he could have his keys. Ippolito
took the keys and stated that he was changing the working
hours for the shop employees and if they didn’t like it they
could leave. Ippolito told the McQuades that from now on
all shop employees would work from 7:30 a.m. to 4:30 p.m.
Monday through Friday. Previously the shop employees
worked a schedule which allowed them to work from 8 a.m.
to 4 p.m., Monday through Saturday 1 week and then work
from 8 a.m. to 6 p.m. the following Monday through Thurs-
day, from 8 a.m. to 4 p.m. on that Friday and have Saturday
off. Ippolito then stated that also from now on the lunch pe-
riod would be split, with half the crew taking an early lunch
and the other half taking a later lunch. Further, the employ-
ees would no longer be paid for their lunch period, or their
15-minute break period. Previously the entire crew took their
lunch period at the same time, and were paid for this half-
hour lunch period, and the 15-minute break. Ippolito further
stated that there would no longer be any overtime work.
These changes went into effect the following day. Moreover,
Respondent failed to advise the Union concerning these uni-
lateral changes. As a result of the change in hours some em-
ployees had their working hours reduced from 48 to 40
hours.
General Counsel contends that the above changes con-
stitute a violation of Section 8(a)(1) and (3). General Counsel
has the burden of proving that the employees union activities
were a motivating factor in such alleged discrimination. Once
such motivating factor is established, the burden of proof
shifts to Respondent to establish that the same action would
have taken place in the absence of the employees protected
activities. NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); Wright Line, 251 NLRB 1080 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982).
General Counsel has established a very strong prima facie
case that the above unilateral changes were discriminatory.
This is established by the 8(a)(1) activities of Respondent,
the unlawful withdrawal of recognition, and its refusal there-
after to bargain with the Union as the lawfully designated
and recognized bargaining representative of Respondent’s
employees in violation of Section 8(a)(1) and (5) of the Act
as set forth and described above. Respondent, in its brief
submitted no reasons for any of the changes described above.
Accordingly, I conclude that Respondent has failed to meet
its Wright Line burden and further conclude that by such uni-
lateral changes, Respondent violated Section 8(a)(1) and (3)
of the Act. Further, since the Union was at the time the rec-
ognized bargaining agent of Respondent’s employees, such
unilateral changes constitute a violation of Section 8(a)(1)
and (5) of the Act. NLRB v. Katz, 369 U.S. 736 (1962).
On January 31, 1991, the four Ippolitoes met with their
transfer and shop employees. Jim Ippolito led the meeting.
He told the assembled employees that they gave him more
problems then anyone in Respondent’s entire facility, and if
they didn’t watch out he would close his facility like
Benedetto, a customer from whom Respondent purchased
supplies. Ricky Ippolito then told the employees that ‘‘[t]his
is a blue collar job and if you don’t like it you can leave.’’
I conclude that such conduct constitutes a threat to close the
shop and an implied threat of discharge because his employ-
ees had engaged in activities on behalf of the Union is in
violation of Section 8(a)(1).
Ted Botsucos was employed by Respondent as a transfer
station employee for a period of 12 years. During this period
of employment Botsucos was terminated or quit about eight
times. However, each time Botsucos applied for his job, Re-
spondent rehired him.
Some time during the latter part of January 1991, Botsucos
was working on a bobcat in the transfer station. Vincent
Ippolito came into the transfer station and on observing
Botsucos working, Ippolito told Botsucos to work faster.
Botsucos replied that he was working as fast as he could, but
that they were short staffed since some employees were ab-
sent. Ippolito replied that if he didn’t like his job he could
leave. Botsucos responded that if he didn’t like his job he
wouldn’t have come to work. About an hour later, Vincent
Ippolito returned to the transfer station and told Botsucos
that he was being laid off effective immediately because
business was slow. Botsucos testified that at the time of his
layoff, the transfer station was busy.
Jim Ippolito testified that with the beginning of winter,
business usually slows down. On top of the usual slowdown,
Respondent recently lost one of their contracts. Thus they did
not have enough work and they laid off about five employ-
ees. Botsucos had the least seniority. However, there is no
evidence as to the classifications of the employees who were
laid off. Moreover, within 3 weeks two new employees were
hired to work in the transfer station, and a short time later,
an additional employee was hired to work in the transfer sta-
tion. Botsucos was never recalled. Respondent contends that
Botsucos was not recalled because he had falsified an insur-
ance claim in 1990. In this connection, Botsucos in filing a
claim for alcohol treatment indicated that he had not filed a
similar claim before. Respondent’s health plan allowed one
claim for such treatment during the employee’s lifetime. In
fact Botsucos’ claim filed in 1990 was the second claim filed
723VINCENT M. IPPOLITO, INC.
by him for an alcohol rehabilitation program. Botsucos con-
tends that he mentioned this fact to Jim Ippolito and Ippolito
told him to file it anyway, and acting on Ippolito’s advice
he indicated in the application that he had not been in such
program before. In view of my unfavorable impression of
Jimmy Ippolito’s credibility I credit Botsucos’ testimony. On
February 14, 1991, Respondent’s insurance carrier sent Re-
spondent a letter which states as follows:
During the course of our routine claims investigation on
the above employee/dependent information was ob-
tained which had it been disclosed at the time of appli-
cation, would have precluded coverage.
The letter is ambiguous as to whether the insurance carrier
merely disallowed the claim, or refused to cover Botsucos
further. In any event Respondent contends that it refused to
recall Botsucos because he was uninsurable.
General Counsel contends that Botsucos was dis-
criminatorily laid off on January 10, 1991. The evidence es-
tablished that notwithstanding the passage of time from on
or about August 16 through on or about November 7, 1990,
Respondent engaged in a systematic commission of unfair
labor practices. On or about November 7, 1991, Respondent
made a number of discriminatory unilateral changes involv-
ing the working conditions of employment of its unit em-
ployees. Thus, union animus is established, and I conclude
that it logically extended into January 1991. The evidence
further established that Botsucos signed a union card and was
one of the employees who attended the union meeting. More-
over, Respondent’s knowledge of Botsucos union activity can
reasonably be inferred from Respondent’s unlawful interroga-
tion of McQuade Jr. wherein McQuade Jr. stated that all the
employees had signed union cards. Moreover, the credible
evidence established that Botsucos was informed of his lay-
off in the middle of a workday and following his altercation
with Vincent Ippolito. I find such timing to be highly sus-
picious and strongly suggestive that the layoff was for dis-
criminatory reasons. Smedberg Machine & Tool, 249 NLRB
534 (1980). Moreover, although Respondent admittedly lost
one of its customers, Botsucos credibly testified that at the
time of his layoff, the transfer station was busy. Further, the
failure to recall Botsucos strongly supports that his layoff
was discriminatory. In this connection, notwithstanding the
loss of one of its customers, Respondent within a few weeks
hired two new replacement transfer station employees and a
short time later, a third employee. Botsucos was a long-time
employee of Respondent who had quit or been terminated by
Respondent during his 12-year employment, but had always
been allowed to return.
Respondent contends that Botsucos was not recalled be-
cause he was not insurable under Respondent’s health plan.
During the period shortly after his layoff Respondent had re-
ceived notification from the insurance carrier who covered
Respondent’s employee health plan that Botsucos could not
be covered on Respondent’s health plan for an alcohol reha-
bilitation program he had recently completed because he had
previously been covered for such a program and the terms
of their policy limited such coverage to one such program
per employee during the life of such coverage. Botsucos had
indicated on his application for insurance coverage that he
had received no prior coverage for an alcohol rehabilitation
program. However, the letter received by Respondent from
the insurance carrier is ambiguous as to whether Botsucos
was totally uninsurable or whether the insurance carrier
merely was refusing to cover this particular claim. In either
case, I know of no reason why Botsucos’ uninsurability, if
in fact he was uninsurable, would preclude his employment.
Thus, I find Respondent’s defense without merit. Rather, it
reinforces my conclusion that his discharge was
discriminatorily motivated. Accordingly, I conclude Botsucos
was discriminatorily discharged in violation of Section
8(a)(1) and (3).
Iva Newman was employed by Respondent as a welder for
about 5 years. On or about the first week in February 1991,
McQuade Jr. and Newman decided to play a joke on
DesMoines Chaney, because he owed them money and had
not repaid his loan. In this connection they hid his tools.
When Chaney came to work the following day and he was
unable to find his tools he reported his tools as stolen to Vin-
cent Ippolito who searched the work area with Chaney before
reporting the matter to the police. A short time afterward,
Newman told Ippolito that he and McQuade Jr. had hid
Chaney’s tools, why they had done so, and where the tools
were hidden. The tools were reclaimed by Chaney, and noth-
ing further was said nor was any action taken against
McQuade Jr. or Newman. The following morning McQuade
and Newman were called into the office where they met with
the four Ippolitoes. Notwithstanding Newman’s credible testi-
mony that he told Vincent Ippolito of the joke, the Ippolitoes
accused both employees of stealing Chaney’s tools and told
them they should have handled Chaney’s debt outside the
shop. Vincent Ippolito then told the employees that if they
didn’t like their job they could leave. Newman protested in
a loud voice that they didn’t steal anything. The Ippolitoes
said nothing further, and Newman believing the meeting was
over started to leave. At this point Vincent Ippolito told
Newman to get his things and leave. McQuade Jr. was not
disciplined. Respondent’s version of the events is not signifi-
cantly different, except that Vincent Ippolito testified that
when Newman left he went after him and told Newman to
come back to the office and when Newman kept on going,
Vincent told him to get his things and get out. In view of
my credibility resolutions concerning the Ippolitoes and my
extremely favorable impression concerning Newman’s credi-
bility I credit Newman’s testimony. Moreover, Respondent’s
statement of position letter described above significantly con-
tradicts their testimony at trial.
There is no evidence that either McQuade Jr. or Newman
had ever been disciplined before. Respondent admitted that
both employees were excellent employees.
General Counsel contends that Newman was dis-
criminatorily discharged on February 4, 1991. Newman’s ac-
tivities were that he signed a union card. For the same rea-
sons I concluded Respondent had knowledge of Botsucos’
union activity and general union animus, I similarly conclude
as to Newman. Moreover Newman was a long-time em-
ployee of 5 years, without a break in his employment. New-
man was also an exceptional worker with no criticism or
warnings of any kind in his work record. As set forth above,
Newman and McQuade Jr. were summoned to Respondent’s
office the morning following their joke of hiding Chaney’s
tools. That the Ippolitoes were aware that the act of hiding
Chaney’s tools was intended to be a joke is established by
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
the credible testimony of Newman who told Vincent Ippolito
about it shortly after Chaney was unable to find his tools.
Notwithstanding the Ippolitoes’ knowledge of the joke, they
proceeded to accuse the two employees of stealing Chaney’s
tools. They protested that they hadn’t stolen anything and
when the Ippolitos said nothing, Newman left, thinking the
meeting to be over. Respondent contends in its brief that it
was Newman’s act of leaving the meeting without permis-
sion that triggered his discharge. The Board has held that the
discharge of an excellent worker for minimal insubordination
is evidence of a discriminatory motive. Hinky Dinky Super
Markets, 247 NLRB 1176 (1980). Moreover, I would con-
clude that Respondent provoked Newman’s response even if
I credited the Ippolitoes’ testimony as to what took place at
the meeting. Thus, I conclude that General Counsel has es-
tablished a strong prima facie case.
As set forth above, Respondent’s defense is that Newman
was discharged because he left the meeting without permis-
sion. However, Respondent’s statement of position in defense
of the charge states that Newman was discharged because
during the meeting he began screaming and cursing at the
Ippolitoes. No such evidence was established at the trial of
this case. I conclude Respondent’s conflicting defenses fail
to meet their Wright Line burden and further conclude that
Respondent discriminatorily discharged Newman in violation
of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material, an
employer within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
3. An appropriate unit for bargaining is:
All operators, welders, mechanics and painters em-
ployed by Respondent at its New Jersey facility exclud-
ing all office clerical employees, truck drivers profes-
sional employees, guards, and supervisors as defined by
the Act.
4. Since October 25, 1990, the Union has been, and is the
exclusive collective-bargaining representative of the unit de-
scribed above, for purposes of collective bargaining with re-
spect to wages, hours, and other conditions of employment.
5. By interrogating their employees about their member-
ship in, or activities on behalf of the Union, Respondent has
violated Section 8(a)(1) of the Act.
6. By threatening its employees with a loss of overtime
work because of said employees’ membership in or activities
on behalf of the Union, Respondent has violated Section
8(a)(1) of the Act.
7. By soliciting grievances and promising its employees
improved working conditions because of the employees’
membership in or activities on behalf of the Union, Respond-
ent has violated Section 8(a)(1) of the Act.
8. By stating to its employees that it would be futile to
select the Union as their bargaining representative, and that
Respondent would never sign a collective-bargaining agree-
ment with the Union, Respondent violated Section 8(a)(1) of
the Act.
9. By threatening its employees with plant closure and
other unspecified reprisals because of their membership in
and activities on behalf of the Union, Respondent violated
Section 8(a)(1) of the Act.
10. By changing its employees’ hours of work, and ceas-
ing its practice of paying its employees for lunch and break
time, and by removing a telephone used for employees be-
cause of the employees’ membership in and activities on be-
half of the Union, Respondent has violated Section 8(a)(1),
(3), and (5) of the Act.
11. By withdrawing recognition from the Union, as the
collective-bargaining representative for the employees de-
scribed in the unit above, Respondent violated Section
8(a)(1) and (5) of the Act.
12. By discharging its employees, Ted Botsucos and Iva
Newman, because of their membership in and activities on
behalf of the Union, Respondent has violated Section 8(a)(1)
and (3) of the Act.
THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices, I shall recommend it be ordered to cease and
desist therefrom and take certain affirmative action to effec-
tuate the policies of the Act.
Respondent shall be required to bargain with the Union in
good faith as the exclusive representative of the unit of em-
ployees described above concerning terms and conditions of
employment and, if an agreement is reached, embody such
understanding in a signed agreement. Respondent shall also
be required to restore the terms and conditions of employ-
ment. Respondent shall also be required to make whole the
employees for any loss of wages or other benefits suffered
by Respondent’s implementation of its November 1990 uni-
lateral changes in accordance with the formula approved in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
set forth and computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
Since I have also found that Respondent discriminatorily
discharged its employees Botsucos and Newman, I shall rec-
ommend Respondent make whole the employees together
with interest as set forth above from the date of their termi-
nation until their reinstatement or valid offer of reinstate-
ment.
I shall also recommend that Respondent expunge from its
records any reference to the discharges of the above-named
employees, and to provide written notice of such expunction
to those employees, and to inform them that Respondent’s
unlawful conduct will not be used in personnel action con-
cerning them. Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Vincent M. Ippolito, Inc. and Bergen En-
terprises Co., Teaneck, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
725VINCENT M. IPPOLITO, INC.
2 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1. Cease and desist from
(a) Failing and refusing to recognize and bargain collec-
tively with Local 825, International Union of Operating En-
gineers, AFL–CIO (the Union) with respect to wages, hours,
and other terms and conditions of employment of the em-
ployees in the unit set forth below:
All operators, welders, mechanics and painters em-
ployed by Respondent at its New Jerseyfacility exclud-
ing all office clerical employees, truck drivers profes-
sional employees, guards, and supervisors as defined by
the Act.
(b) Withdrawing recognition from the Union as the exclu-
sive collective-bargaining representative for its employees in
the unit described above.
(c) Unilaterally changing its employees’ hours of work,
and ceasing its practice of paying its employees for lunch
and break time, and removing a telephone used for employ-
ees because of the employees’ membership in and activities
on behalf of the Union.
(d) Stating to its employees that it would be futile to select
the Union as their bargaining representative, and that Re-
spondent would never sign a collective-bargaining agreement
with the Union.
(e) Interrogating their employees about their membership
in, or activities on behalf of, the Union.
(f) Threatening its employees with a loss of overtime work
because of the employees’ membership in or activities on be-
half of the Union.
(g) Threatening its employees with plant closure and other
unspecified reprisals, because of their membership in, and ac-
tivities on behalf of the Union.
(h) Soliciting grievances and promising its employees im-
proved working conditions because of the employees’ mem-
bership in or activities on behalf of the Union.
(i) Discharging its employees because of their membership
in and activities on behalf of the Union.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and bargain on request with the Union in
good faith as the exclusive bargaining representative of the
employees in the unit described above concerning terms and
conditions of employment and, if an agreement is reached,
embody such understanding in a signed agreement.
(b) Offer to Ted Botsucos and Iva Newman full and im-
mediate reinstatement to their former or substantially equiva-
lent position of employment, without prejudice to their se-
niority or other rights and privileges previously enjoyed.
(c) Make the above employees whole for any loss of earn-
ings they may have suffered by reason of the discrimination
against them in the manner set forth in the remedy section
of this decision.
(d) Restore the terms and conditions that were in effect
when Respondent changed its employees’ hours of work and
ceased its practice of paying its employees for lunch and
break time and make the employees whole for such monetary
loss in the manner set forth in the remedy section of this de-
cision.
(e) Replace the telephone usually used by employees at
Respondent’s facility.
(f) Remove from its files any reference to the terminations
of Botsucos and Newman and notify them in writing that this
has been done and that evidence of their unlawful termi-
nations will not be used as a basis for future personnel ac-
tions against them.
(g) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(h) Post at its Tenafly, New Jersey office and facility cop-
ies of the attached notice marked ‘‘Appendix.’’2 Copies of
the notice, on forms provided by the Regional Director for
Region 22, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(i) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.