Maspeth Trucking Service, Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1979

240 N.L.R.B. 1225 (N.L.R.B. 1979)

MASPETH TRUCKING SERVICE, INC. 1225
Maspeth Trucking Service, Inc. and Rene Aponte and
Michael Padro and Michale Lizotte, Angel Perez,
Johnny Carrillo, Jose Pedroza, Rene Aponte
Local 707, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica and Rene Aponte. Cases 29--CA 5569, 29-CA
5569 2, 29-CA 5569-3, and 29-CB-2855
March 7, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNIN AND MEMBERS PENELLO
AND TRUESDALE
On April 20, 1978, Administrative Law Judge Mi-
chael O. Miller issued a Decision in this proceeding,
finding that Respondent Company had engaged in
certain unfair labor practices and recommending
that it take specific action to remedy such unfair la-
bor practices, and refusing to find that Respondent
Company and Respondent Union had engaged in
other alleged unfair labor practices. Thereafter, the
General Counsel filed timely exceptions and a sup-
porting brief, and Respondent Union filed an an-
swering brief. Respondent Company filed untimely
exceptions and supporting arguments which were re-
jected by the Board on the grounds of untimeliness.
On September 1., 1978, the Board, after considering
the General Counsel's exceptions and the answering
brief, issued a Decision and Order ' adopting the rul-
ings, findings, and conclusions of the Administrative
Law Judge, except that it modified the Order to con-
form with The Remedy by ordering reimbursement
to two employees of lossess suffered by reason of the
discrimination against them.
On October 6, 1978, the Respondent Company
filed with the United States Court of Appeals for the
Second Circuit a petition for review of the Board's
Decision and Order. The Board filed a "Motion for
Summary Denial of the Petition for Review and a
Cross-Application for Summary Entry of Judgment"
enforcing its Order. The General Counsel contended
that since the Respondent's exceptions were untime-
ly, the Respondent Company had waived all objec-
tions to the Board's Order and that there was no con-
testable issue before the court. The Respondent
Company maintained that it was confused as to the
deadline for filing exceptions because the General
Counsel had led it to believe that the General Coun-
sel intended to seek a further extension of time.
The court, on November 29, 1978, denied sum-
mary enforcement of the Board's Order "without
prejudice." It further ordered the Board to consider
on remand the Respondent's June 15, 1978, excep-
240 NLRB No. 162
tions and argument in support "because of the excep-
tional circumstances in which respondent pro se ap-
parently was confused as to the due date." Accord-
ingly, the Respondent's exceptions to the
Administrative Law Judge's Decision and its sup-
porting argument are hereby accepted and made part
of the record in this proceeding.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Ad-
ministrative Law Judge's Decision in light of the ex-
ceptions and supporting arguments filed by all par-
ties and has decided to affirm the rulings.2 findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
herein, and hereby orders that the Respondent, Mas-
peth Trucking Service, Inc., Queens, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
I. Insert the following as paragraph 2(c) and relet-
ter consecutively the remaining paragraphs:
"(c) Make Rene Aponte and Jose Pedroza whole,
with interest, for any loss of earnings or benefits they
may have suffered by reason of the Respondent's dis-
criminatory layoff in the manner set forth in the sec-
tion of this Decision entitled The Remedy."
2. In paragraph 2(f), substitute for the designation
(f)" the phrase "IT IS FURlTHER ORDERED that."
3. Substitute the attached notice for that of the
Administrative Law Judge.
'237 NLRB 1531 (1978l.
2The Respondent Company has excepted to certain crediblit) 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 Dr) Wall Products.
Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge found that Rene Aponte and Jose Pe-
droza were discriminatoril) laid off and he recommended that they be made
whole: however he inadvertently failed to so order, We are modifying his
recommended Order accordingly and are attaching a revised notice to em-
ployees to conform to the recommended Order as so modified.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A PPENDIX
No 1rl(' To E %PI 'l.OY) [EilS
PosrI D BY ORDIR ()oF IlE
NA()ONAI LABOR RI AIIONS BXRD
An Agency of the United States Government
Wi Wi,.l No) condition your employment
upon your agreement not to join a union and W,
wUll.. Nol withhold contractual benefits because
you are not a member of the Union.
Wt. WIll NOT threaten you with discharge or
with harder working conditions because you
have filed unfair labor practice charges under
the National Labor Relations Act or because
you have engaged in other union or protected
concerted activities.
Wt: w,i. No( question you about unfair labor
practice charges which you have filed.
Wt. wiil NOV suggest that you quit simply be-
cause you ask for the benefits you have coming
under the contract.
Wl Wll. NOI discharge you, lay you off, put
you on another company's payroll, or make
your working conditions more difficult because
you have filed unfair labor practice charges or
engaged in other union or protected concerted
activities.
W: wiiL.. Not in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed employees in
the National Labor Relations Act, which are as
follows:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
All our employees are free, if they choose, to join
Local 707, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America.
or any other labor organization, except to the extent
that such right may be affected by an agreement re-
quiring membership in a labor organization as a con-
dition of employment as authorized in Section 8(a)(3}
of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE; wiit, offer Michael Padro and Johnny
Carrillo immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights or
privileges, and 'at wi, l make them whole for
any loss of earnings they suffered as a result of
our discrimination against them with interest.
Wtv WIlL make Michael Padro. Johnny Carril-
lo, Rene Aponte. Jose Pedroza, and all employ-
ees who were denied contractual benefits be-
cause they were not members of the Union.
whole for any loss of pay or benefits suffered as
a result of our discrimination against them.
WI: wll.l make Rene Aponte and Jose Pedro-
za whole, with interest, for any loss of pay or
benefits suffered as a result of our discrimina-
tory layoff of them.
MASPIl Ii 'FRt ( KIN( SERVI(Cl. IN(C.
DECISION
STAIEMEN O IHE CASE
MICHAFL O MILLR. Administrative Law Judge: These
cases were heard in Brooklyn, New York, on November 28
through December 1, 1977,' upon charges filed 2 on April 8
and 20 and May 2. as amended, and a complaint issued by
the Regional Director for Region 29, National Labor Rela-
tions Board, on June 30, as amended.
At issue, generally, was whether Maspeth Trucking Ser-
vice, Inc., herein Respondent Employer or Maspeth, vio-
lated Section 8(a)( 1), (2), (3), and (4) of the National Labor
Relations Act, as amended, herein the Act, by interrogat-
ing and threatening its employees because of their union
activities and their filing of charges under the Act; by pre-
cluding certain employees from joining the Union which
represented all of its employees and denying those employ-
ees benefits which would accrue from union membership:
and by assigning employees to more arduous and less
agreeable work tasks and laying them off or discharging
them because of their union and charge filing activities.
The complaint further alleged that Local 707, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein the Union or Respondent
Union, violated Section 8(b)( )(A) and (2) of the Act by
maintaining an agreement with the Employer to exclude
certain employees from union membership and the bene-
fits attendant thereto: and by refusing to process griev-
ances of bargaining-unit employees because they were not
members of the Union or because they had filed charges
under the Act. The answers to both respondents denied the
commission of any unfair labor practices.
All parties were given full opportunity to participate. to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. The Union and the Em-
ployer submitted briefs which have been carefully consid-
ered. The General Counsel's oral argument was also ac-
corded due consideration.
Upon the entire record, I make the following:
All dates hereinafter are 1977 unless other ise specified.
I h charges Were filed h Ithe indiiduals as named in the caption here-
1",
MASPETH TRUCKING SERVICE, INC. 1227
FINDINGS OF FACT
1. THE EMPLOYER'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STAIlUS--CONCI.SIONS OF LAW
Maspeth is engaged in providing trucking and related
services to the garment industry in the New York, New
York, area, where its offices, garage, and terminals are lo-
cated. The complaint alleged, Respondents admitted, and I
find and conclude that Maspeth was at all times material
herein engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The complaint alleged, Respondents admitted, and I
find and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
It was stipulated that Robert Horowitz and Seymour
Horowitz have been at all material times the president and
secretary-treasurer of the Employer, respectively, and are
supervisors and agents within the meaning of Section 2(11)
and (13) of the Act.
It was further stipulated that Leo Schwartz was the rec-
ording secretary and a business agent of the Union, that
Nicholas Grancio was the Union's vice president, and that
both were its statutory agents.
II THE UNFAIR ABOR PRACTIC ES
A. Background
In December 1972. Maspeth recognized the Union as the
collective-bargaining representative of its drivers, ware-
housemen, and helpers. Maspeth and the Union agreed to
an "Appendix to New Jersey-New York Area General
Trucking Supplemental Agreement to the National Master
Freight Agreement" (herein the NMFA), which applied
the terms of that agreement to Maspeth's employees with
certain modifications. Respondent's employees received a
wage increase of $10 per week over their existing rates,
rather than the NFMA rates, a vacation plan different than
that of the NMFA, and the NMFA health and welfare
plans. but not its pension plan. A similar agreement was
entered into for the period from July 1, 1973, to March 31,
1976. On April 1, 1976, Maspeth and the Union executed
an interim agreement extending their earlier contract with
certain modifications, providing for wage increases on
April 1, 1977, and providing for wage increases at other
times, pending completion of negotiations on the new
NMFA. Maspeth's principals, Seymour and Robert Ho-
rowitz, are also the principals of the Horowitz Waste Com-
pany, which deals with the waste products of the garment
industry. The Union has made no claim to represent the
employees of that enterprise.
B. Exclusion of Employees from Union Membership
Notwithstanding that Maspeth's agreement with the
Union contained a clause requiring the acquisition or re-
tention of union membership as a condition of employ-
ment., i.e., union shop, Respondent Employer hired some
drivers and helpers with the express instruction and condi-
tion that they were not to join the Union. This practice was
credibly testified to by the employees involved and was
admitted by Seymour Horowitz. Pursuant to this practice,
Maspeth hired Angelo Perez and Wilfredo Torres, drivers,
during 1975; Johnny Carrillo, a helper, in July 1976; Mi-
chael Padro, a helper, around September-October 1976;
and Jose Pedroza, a driver, in November 1976. These em-
ployees and another nonmember driver, Rene Aponte,3 re-
ceived the contractual wage rates and vacations but were
not covered by the health and welfare plans agreed to in
the collective-bargaining agreement.4
It is axiomatic that to hire employees on the condition
they they refrain from joining a union interferes with the
employees' statutory rights in violation of Section 8(a)(1) of
the Act. Such was the case here, and I so find. It similarly
requires no citation of authority to establish that the denial
of contractual benefits to some unit employees because
they are not union members, while providing such benefits
for those who are members, is inherently discriminatory
and in violation of Section 8(a)(3) of the Act. Accordingly,
I find that, by the foregoing conduct, Respondent Em-
ployer violated Section 8(a)(1) and (3) of the Act.
The General Counsel contended that the exclusion of
these employees from union membership and from the
benefits of the contract was pursuant to an understanding,
arrangement, or practice between the Union and Maspeth
and that, by maintenance thereof. Maspeth and the Union
violated Section 8(a)(2) and 8(b)(l) and (2), respectively.
The evidence, to be detailed infra, shows, at most, that the
Union was less than agressive in pursuing the membership
status of Maspeth's employees. No evidence establishing
any illicit understanding was adduced. Indeed, in his affi-
davit given to the Board Seymour Horowitz admitted that
when he told the Union about the existence of these em-
ployees, he lead the Union to believe that they were em-
ployees of Horowitz Waste Company rather than Maspeth.
Accordingly, as there was no evidence to support these
allegations. I shall recommend that they be dismissed.
C. The April 4, 1977, Meeting
As of April I, 1977, the Maspeth employees were due a
contractual wage increase. However, Maspeth believed
that it could not pay the scheduled increase, and a meeting
between the Employer, the Union, and the employees was
arranged for the morning of April 4. The employees were
advised of the meeting by George Pacheco, the shop stew-
ard.
Leo Schwartz, the Union's business agent responsible for
policing the Maspeth contract, arrived at the Maspeth ter-
minal shortly before 8 a.m. on April 4. Initially, he spoke
with the union members on the platform while the non-
member employees stood by. He then took the members
into a separate room, indicating that the meeting was for
% hen Aponte was hired sometime around 1974. he was offered an op-
po)rtumn, to transfer his union membership to Respondent nion. It is
neither possible nor necessary. on the basis of this record, to determine
whether Respondent thereafter precluded Aponte from acquiring member-
ship inl the LUnion or whether he failed to do so because of sonme innocent
hreakdown in communlcation.
I hcs ere at least for at period starting around Februar' 1977. covered
h, a sep.rate medical insurance program prosided h, the limploer
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them alone. When nonmember employees sought to enter,
Pacheco and another employee, John Soehnel, told them
they were not allowed. During this meeting, Schwartz in-
formed the employees that the Horowitz brothers had told
them that they could not afford to give any wage increases
at that time. Pacheco suggested that, if they were not going
to get a raise, at least they should secure union membership
for those employees who were not in the Union.5 Schwartz
replied that he was not concerned with the nonunion men,
that his concern at that time was for the union members.
He suggested to the employees that they give Maspeth I
month to come up with the raises and told them that, if no
raises were forthcoming within that period, he would pre-
pare sanctions for a strike.6
One nonmember, Charles Caccio, managed to attend the
meeting. He testified without contradiction that during
that meeting he asked Schwartz to get them (the nonmem-
ber employees) into the Union. Schwartz replied that he
would work on it.
Following the meeting, Pacheco told the nonmember
employees of the discussions, as described above. Accord-
ing to employees Pedroza and Torres, who had been ex-
cluded from the meeting, Pacheco told them that Schwartz
had said that if they did not get their raises in I month, he
would give them permission to go out on strike (Torres'
recollection), or they would have to go on strike (as re-
called by Pedroza).7
D. The Filing of Unfair Labor Practices-Related Threats,
Interrogation, and Discrimination
On April 8 Rene Aponte filed the original unfair labor
practice charges in this proceeding. Case 29-CA-5569
charged Maspeth with violations of Section 8(a)(l), (2),
and (3) by denying Aponte, Padro, Pedroza, Torres, and
Perez the wages and benefits accorded employees who
were members of the Union. Case 29 CB-2855 charged the
Union with violations of Section 8(b)(1)(A) and (2) by its
The membership issue had previously been presented to Schwartz at the
conclusion of the unionwide meeting on contract ratification. in March
1976. At that time. Schwartz had promised to follow up on the employees
requests to join the Union. However, he failed to do so.
The foregoing description is derived from the testimony of George Pa-
checo. Pacheco impressed me as a candid witness. who possessed recol-
lective abilities superior to those of the other witnesses, and who endeavored
to truthfully relate the events ias he recalled them even though the, were
contrary to the interests of the Union. for which he was steward. or his
Employer. I was less favorably impressed with the testimony of alleged
discriminatee Michael L.izotte who testified that Schwartz authorized the
employees to strike in I month if they did not receive a raise. It is improba-
ble that Schwartz would have given such a blanket authorization. Moreover.
much of L.izotte's testimony in this and other areas appeared confused and
was based upon hearsay or inference rather than upon observed fact.
Rene Aponte testified that he heard Schwartz state. in reply to a request
to get the nonmembers into the Union. that he did not care about the
nonmembers and that the Employer could fire them whenever it wanted to.
Aponte also recalled Schwartz stating that he did not care whether the men
were union or nonunion, they could go on strike in I month if they did not
get the raise. As Aponte's testimony is essentially inconsistent with that of
Pacheco and Caccio (whom I credit), is not corroborated by the other non-
member employees whom Aponte claimed were present when these state-
ments were made, and noting that Aponte's less than complete familiarity
with the English language may have affected his perception of the state-
ments made by Schwartz. I place no reliance upon this testimony.
refusal to represent these same employees and by causing
Maspeth to discriminate agaisnt them because they were
not members of the Union. The charges were delivered to
both Respondents on April 13.
Pedroza was called into the Horowitz' office shortly after
the CA charge was served. Seymour Horowitz asked him
why they had filed the charges and what they expected to
gain by joining a union. Pedroza replied that they expected
to gain benefits and representation. Seymour told him that
Maspeth would do everything possible to get rid of all of
them and vowed that the employees would never get him
into court. He reminded Pedroza that Pedroza had accept-
ed his employment knowing that he was not to join the
Union. A virtually identical conversation was held between
the Horowitz brothers and Rene Aponte.
On the following day, according to the testimony of
Aponte as corroborated by Pedroza, Carrillo, and Lizotte,
Seymour Horowitz repeated his threat to discharge the em-
ployees named in the charge and told them that they were
no longer going to receive the kind of help that they had
had in moving the rolls of fabric through the garment cen-
ter. This latter threat was made repeatedly thereafter. Also,
Robert Horowitz questioned Perez as to his motivation for
going to the National Labor Relations Board.
The foregoing evidence, credibly offered, is uncontra-
dicted. Based upon that evidence, I find, as alleged in the
complaint, that Respondent threatened its employees with
more onerous working conditions and/or discharge be-
cause they' had filed charges under the Act, thereby inter-
fering with, restraining, and coercing them in the exercise
of their statutory rights. Noting the coercive context in
which the questions, were asked and the absence of any
justification for asking such questions, I further find that
Maspeth's interrogations of Pedroza, Perez, and Aponte
concerning the filing of the charges similarly interfered
with their statutory rights. By all such conduct, I find that
Respondent Employer has violated Section 8(a)(1) of the
Act.
As was threatened, the employees received less assis-
tance in loading and unloading the trucks and in moving
the hand carts of goods through the garment district after
the charges were filed. Employees Aponte, Pedroza, Tor-
res, and Carrillo so testified, credibly.8 They also testified
that the rolls of material they were required to handle be-
came larger and heavier. This may be so, or it may have
been only the result of having less help to move said rolls.
At any rate, it would appear from the record that while
Maspeth had control over the amount of help its employ-
ees received, it had no control over the size of the goods it
was paid to transport.
Based upon the credited and essentially uncontradicted
evidence, I conclude that Maspeth, in retaliation for em-
ployee charge filing activities, began to deny its employees
the assistance they had formerly received in performing
their work. Such conduct violated Section 8(a)(4) and (I) of
the Act, and I so find. As that charge filing activity was
directed toward securing the benefits of union member-
ship, and as Maspeth's conduct would naturally tend to
X Harvey Horowitz, an empllyee and a brother of Seymour and Robert.
testified that generally the work got n heavier. Perhaps for him it did not.
Maspeth did not otherwise refute their testimonies.
MASPETH TRUCKING SERVICE. INC. 1229
discourage such membership, that conduct further violated
Section 8(a)(3) and (I) of the Act, and I so find.
E. The Discharge of Michael Padro
At the conclusion of the workday on April 13, Michael
Padro was taken into the office by Robert Horowitz, where
he was told that he "didn't have to come to work the fol-
lowing day ... as a matter of fact, [Maspeth] did not need
[him] anymore because [he] went to the Labor Board." As
a result, he did not report for work on the following day.
After telling Padro that his services were no longer need-
ed, either Seymour or Robert Horowitz told Pacheco to
"tell [Padro] if he wants his job back for him to drop the
charges and he could work there as long as he wanted to."
Pacheco relayed this message to Padro, and Padro rejected
the offer. On the following day, one of the Horowitz broth-
ers asked Pacheco what Padro's response had been and
Pacheco told him.
On April 15, Padro called Robert Horowitz. He related
to Robert what Pacheco had told him, asked if it was true,
and asked whether he was still employed by Maspeth.
Robert told him "that as far as he was concerned, [Padro]
was still working for the company . . . but the work was
slow." Robert then asked, "off the record," whether Padro
was going to drop the charges. Padro said, "No." Horowitz
repeated that Padro could have his job back if he would
drop his charge.9 Padro called two more times, and each
time he was told that work was slow. He had no prior
warning that he might be laid off and had observed no
lessening of work.
About May 4, Padro received a letter from Maspeth,
directing him to report to work. He reported as soon as he
received the letter and worked I full day. Thereafter, he
reported for work for 3 consecutive workdays and, on each
day, Seymour told him that there was no work. He was
sent home, receiving neither work nor pay. After 3 such
days, Padro asked Seymour whether he could telephone to
find out if there was going to be work. Seymour told him
that it was a "shape" job, and that they could not guaran-
tee him work. Padro has not worked for Maspeth since
May 5.
As stated to Padro, Respondent Employer contended
that these were "shape" jobs, i.e.. jobs requiring that pro-
spective employees offer themselves for selection for daily
employment.' ° Therefore, Respondent would have us be-
lieve that Padro had to show up at the terminal and had no
right to expect to be employed. The record, while indicat-
ing that employees were occasionally sent home for lack of
work, contains no support for the contention that these
were "shape" jobs. Neither Pacheco, who was the steward,
nor Padro had ever heard the job referred to in such a
manner. The employees punched a timeclock and generally
reported directly to their duties, which were known to
them. There was no daily selection. The same employees
worked day after day and week after week for Maspeth.
The foregoing credible testimony of Padro and Pacheco is unconira-
dicted.
10 See "Webster's Third New International Dictionary." (;. & C. Merriam
Co.. Springfield, Massachusetts. 1968
Indeed, their pay was generally referred to on a weekly,
rather than either a daily or hourly basis. Thus, I find that
this defense is a total sham and utterly without merit.
Moreover, the record establishes that there was work
available for Padro from May 13 until at least the date of
the hearing herein. Maspeth's payroll records show that an
employee named Padillo began working, as a helper and
mechanic, on April 6, and continued thereafter working 40
or more hours each week. Similarly, Juan Tirado was hired
the week of April 13, also worked 40 or more hours each
week thereafter, and did the same work that Padro had
been doing. Also, those records show that beginning in the
week of April 6, Maspeth indirectly employed at least one
individual, Jack Darden, from a temporary employment
service known as MTES.
Based upon all of the foregoing, and particularly noting
the uncontradicted statements attributed to the Horowitz
brothers by Padro and Pacheco, the animus toward the
exercise of protected rights demonstrated thereby, and the
absence of any valid explanation for Maspeth's treatment
of Padro, I conclude that Maspeth laid off and refused to
reinstate Michael Padro because he had filed unfair labor
practice charges and sought his statutory rights and the
protections of union representation. and thereby discrimi-
nated against him in violation of Section 8(a)(3), (4) and (I)
of the Act. I further find that the questions and statements
directed at Padro, both directly and through Pacheco, un-
lawfully coerced both Padro and Pacheco, conditioned
Padro's reemployment on the withdrawal of unfair labor
practice charges, and constituted threats and interrogation
in violation of Section 8(aH1) of the Act.
F. Padro Seeks Union Assistance
Padro called Union Business Representative Schwartz
around April 20 or 21, shortly after he had filed the unfair
labor practice charge in Case 29-CA-5569-2 alleging his
discriminatory discharge. As Schwartz recalled the conver-
sation, Padro said that he had worked at Maspeth and had
been fired. Schwartz told him that as far as he [Schwartz]
knew, Padro had only been laid off. When Padro told him
that someone else was working in his place, Schwartz said
that if Padro could prove that, he would go to the job and
straighten the matter out. Padro made a reference to the
Board and Schwartz told him that if he wanted to go to the
Board it was his perogative, and there was nothing he
[Schwartz] could do about it. Padro did not call him
again.''
General Counsel contended that Schwartz had refused
to process Padro's grievance because he was not a member
1 In Padro's ersion on cross-examination. he told Schwartz that he
wanted to file a grievance against Maspeth for lasing him off without rea-
son Schwartz asked if he was a union member. When he said that he was
not. Schwartz told him that. "If I was not in the union and ... since I went
to the l.abor Board. that the l.abor Board would have to take care of it."
This ersiln is somewhat different from his testimon' on direct examina-
tion. wherein he had testified that Schwartz told him that he wanted no part
of him and could do nothing for him since he was not a union member and
had gone to the National Labor Relations Board. Based upon this inconsis-
tencS and an InconsitencN between his pretrial affidavit and his testimony.
Indicalling either an nimosit toward Schwartz or a faults memory
. and
considering the comparatise demeanors of the witnesses, I credit Schwartz
discourage such membership. that conduct further violated
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Union and because he had participated in the filing
of charges in violation of Section 8(b)(I)(A) of the Act.
Schwartz' testimony, which I have credited, does not sup-
port this allegation. Accordingly, I shall recommend that it
be dismissed.
G. The Strike
During the week prior to May 2, the employees dis-
cussed the likelihood of receiving the contractual wage in-
creases and their intent to strike if denied those increases.
When no raises were forthcoming, some of them began a
strike on Monday morning, May 2. Participating in the
strike were Michael Lizotte, Jose Pedroza, Wilfredo Torres,
Angel Perez, Rene Aponte. and John Carrillo. Of these,
only Lizotte was a union member.
Union steward Pacheco did not join the men on strike as
some of them had expected him to do. When Pacheco ar-
rived at the terminal, he learned what was going on, called
business representaive Schwartz, and at Schwartz' instruc-
tion, told the men to go back to work, that they risked
discharge as the strike was not authorized. None of the
above-named employees complied. The current collective-
bargaining agreement (NMFA) provides, in part:
Section. (a) WORK STOPPA(I.S The parties agree that all
grievances and questions of interpretation arising
from the provisions of this Agreement shall be submit-
ted to the grievance procedure for determination. Ac-
cordingly, except as specifically provided in other Ar-
ticles of the National Master Freight Agreement, no
work stoppage, slowdown, walkout or lockout shall be
deemed to be permitted or authorized by this Agree-
ment except:
John Soehnel drove a truck into the terminal at or about
7:30 a.m, without difficulty. He returned shortly thereafter
with a second truck, and found that he could not back it in
as there was broken glass on the roadway. He then ob-
served Michael Lizotte throw a bottle in the direction of
the truck; it landed and broke in front of the truck. The
same of a similar incident was observed by Charles Caccio
and Harvey Horowitz.'2 Lizotte also asked Soehnel not to
cross the picket line. Lizotte's conduct was reported to
Robert Horowitz by both Harvey and Caccio.
Between 9 and 9:30 a.m., Robert Horowitz came out to
the picket line and spoke to Lizotte. After insulting
Lizotte's intelligence, he told Lizotte that he was going to
get a baseball bat, break the windows of Lizotte's car, and
"bash [Lizotte's] head in with it." 13
Later that afternoon, Lizotte, Carrillo, Perez, Torres,
Corra, Pedroza and Aponte filed additional unfair labor
practice charges, Case 29-CA 5569 3, against Maspeth, al-
leging further violations of Section 8(a)(1), (3), and (4).
That charge was served on the Employer on May 6.
On May 3 Maspeth sent letters to all of the striking em-
I Lizotte denied throwing bottles into the roadway. contending that he
onl) picked up one bottle and threw it awa, from the road. It broke, he said.
at the side of the road. I find the credibly toffered. essentially disinterested.
and mutuallN corroborative testimonies of Soehnel, (Caccio. and I1. torow-
itz to be more worthy of belief than that of Lizotte.
m this undenied testimony was corroborated by (arrillo.
ployees reciting the fact that the employees went on strike
on May 2, contrary to the directions of the steward and
without giving any reason therefore. The letters state that
from this conduct the Employer had concluded that the
employees had quit and had removed their names from the
Maspeth seniority list. In addition, the letter to Lizotte stat-
ed that Lizotte "also instructed other drivers and helpers to
do the same [refuse to work]." No reference was made in
that letter to the bottle-throwing incident.
At various times during the course of the strike the em-
ployees called or went to the Union's office, seeking sup-
port or advice. No union representative showed up at the
site at any time during the strike. On May 4 Torres and
Perez went to the union office where they spoke with
Schwartz and Nicholas Grancio, the Union's vice presi-
dent. According to Torres, they told Schwartz and Grancio
that they had been on strike for 3 days, had been unable to
do anything, and wanted to join the Union. Schwartz alleg-
edly told them that they would have to withdraw their
charges against the Union in order to join, and also said, at
the conclusion of the meeting, that he would call the Com-
pan)y and tell their Employer to put them back to work.t4
Schwartz and Grancio denied that there was any discus-
sion of the unfair labor practices charges in this conversa-
tion with Torres and Perez. There was, they said, discus-
sion of their employee and membership status to determine
why these employees had not acquired membership, and
there was discussion of the current strike activity. The em-
ployees were advised to return to work, and Schwartz
promised to get matters straightened out. After the em-
ployees left, Grancio called the Employer and told it to
take the employees back. In late May or early June,
Schwartz came to the Maspeth premises, distributed mem-
bership applications, and those employees who had not
been members acquired membership.
While the matter is not. entirely free from doubt, I find
that the testimonies offered by Schwartz and Grancio more
accurately reflect the conversations of May 4 than those of
Torres and Perez. In so concluding, I note the testimonial
inconsistencies between Perez and Torres, the internal in-
consistencies in Perez' testimony, and the Union's conduct
in securing reinstatement of employees and admitting them
to membership, both done without withdrawal of the pend-
ing charges. Such action, albeit belatedly taken, is some-
what inconsistent with the allegations of coercion.
On May 5, shortly before 8 a.m., the striking employees
attempted to return to work. They met with Robert and
Seymour Horowitz. Robert told Michael Lizotte that he
was discharged and ordered him from the platform; Li-
zotte left. Thereafter, Lizotte received a letter from Mas-
peth, dated May 5, attributing his termination to the fol-
lowing:
. . . [on May 31, you threw glass on the pavement
outside of MASPETH FRUCKING SFRVIC, INUC You threat-
t4 Perez' ersion of this conversation was, in some wass. corroborative of,
aid in others inciinsistent t ith that ofI torres. Perez recalled the discussion
regarding the dropping of charges hut testified that it was a condition for
the UInlson's to secure their reinstatement He further testified that
Schw;rti had said that the Uinion was not interested in additional members.
Also, according to Perez. Grancio suggested that the nion close Maspeth
dowi) uniless the' put him in to the nion.
MASPETH TRUCKING SERVICE, INC. 1231
ened the drivers and helpers as they bagan their work-
day, telling them not to go to work. You put up signs
saying MASPETH TRUCKING SERVICE. INC is on strike. You
used profanity . . . The shop steward also told you
that MASPETH TRUCKING SERVICE, INC. is not on strike.
After discharging Lizotte, Robert told the employees
that they would be in the Union but that there would be no
raise and that they should not expect to have helpers with
their work.
Drivers Aponte and Pedroza were then taken into the
office by Robert and Seymour Horowitz and shown a letter
from the Employer's insurance agent. That letter, dated
May 2, announced a 70-percent increase in Maspeth's in-
surance premium and directed Maspeth to take steps to
implement immediate safety and loss control procedures.
Among the steps required was a review of the licenses held
by its drivers to make sure that they were licensed to drive
the equipment to which they were assigned. Since they be-
gan their employment with Maspeth. both Aponte and Pe-
droza had driven vehicles of gross weights in excess of 18,
000 pounds. However, while both were licensed to drive
vehicles up to that weight, neither was licensed to drive
larger vehicles. Respondent had been aware of the defi-
ciencies in their licenses throughout their employment.
They were told that there were no vehicles for them to
drive on their current licenses and were told to take time
off and return to work when properly licensed.
Aponte and Pedroza left, but they returned the following
week to pick up their vacation pay. While there, one of the
Horowitz brothers asked them whether they had dropped
their unfair labor practice charges yet or when they were
going to do so.
On May 13 Pedroza and Aponte were both sent letters
by Maspeth stating that their names were being perma-
nently removed from the Maspeth seniority list because
they had not reported for work since May 2, and had been
told on May 5 that they did not possess valid licenses.
Upon receipt of this letter they returned to Maspeth to
deny that they had quit and to clarify their status. Once
again, according to Pedroza, they were asked whether they
had dropped their unfair labor practice charges. When
they said that they had not, they were called liars for hav-
ing failed to fulfill their promises to do so.
Aponte and Pedroza returned to work with the appropn-
ate licenses in late May. On his return, Aponte asked
whether he was going to be paid for the Memorial Day
holiday. One of the Horowitz brothers told him that he was
not and that if he did not like it he could quit.
Respondent Employer contended that it had to lay off
Aponte and Pedroza until they secured the proper licenses
because the two vehicles it owned which they could lawful-
ly have driven were undergoing repairs at that time. Rauel
Puerto, a Maspeth driver and mechanic, testified that one
of the two trucks was in the repair shop from May 3 to
May 18, and that the other went into the repair shop when
the first came out. They were completely out of service
during the period of their repairs.
Based upon the foregoing events, General Counsel con-
tends that Maspeth has violated Section 8(a)(I). (3), and (4)
of the Act by threatening and interrogating its employees;
by suggesting to an employee that he should quit: by dis-
charging all of the employees who went on strike; by refus-
ing to reinstate Lizotte, Aponte, and Pedroza; and by con-
ditioning reinstatement upon the withdrawal of charges
filed with the Board.
The first question to be resolved is whether the strike of
May 2 through May 4 was a protected concerted activity or
was unprotected because it was in violation of the contrac-
tual no-strike provision. I am constrained to conclude that
it was unprotected. There was, in fact, a collective-bar-
gaining agreement covering these employees. That agree-
ment contained a no-strike clause and a grievance proce-
dure, and, although the employees had never seen the
contract, they were advised at the start of the strike that the
strike was improper. General Counsel would have their
conduct excused because the Employer was, he contended,
in violation of that contract by failing to pay agreed-to
wage increases and pension fund contributions. However,
all such deviations from the terms of the contract were by
agreement with the Union. There was, therefore, no abro-
gation of the agreement such as might excuse a breach of
the no-strike clause. Further, upon the facts as I have
found them, the employees could not reasonably have as-
sumed that their strike activity was authorized or sanc-
tioned by the Union, even assuming that such an erroneous
assumption would have insulated them from the
Employer's disciplinary action. Accordingly. I must con-
clude that Respondent Employer did not violate Section
8(a)( I) or (3) of the Act when it notified all of the striking
employees that it had removed their names from the se-
niority list. I further find that the discharge of Lizotte, oc-
casioned both by his breach of the no-strike clause and by
his serious picket line misconduct (e.g., the breaking of
glass in front of the trucks, posing a risk of damage to
property and injuries to persons), was not unlawful. Moore
Business Forms, Inc., 224 NLRB 393 (1976) (Williams, Er-
vin, and Parker); Otsego Ski Club-Hidden Valley. Inc.. 217
NLRB 408 (1975)(C. Prusakiewicz and Koronka).
In regard to Aponte and Pedroza, I conclude initially
that Respondent Employer condoned their participation in
the strike when it reinstated them along with the remaining
strikers. It then laid them off, immediately upon reinstate-
ment. ostensibly because they were not properly licensed to
drive Respondent's larger vehicles. Although they had
been employed for considerable periods of time with the
Employer's knowledge that their licenses were inadequate,
the record herein does not warrant a conclusion that this
new licensing requirement was imposed upon them be-
cause of their union activities. It appears to have been en-
tirely fortuitous that Respondent Employer was notified of
the increased insurance premiums and more stringent re-
quirements for its drivers at the same time that the employ-
ees were on strike. Accordingly, I find no discrimination in
Maspeth's insistence that Aponte and Pedroza secure li-
censes appropriate to the weights of the vehicles they were
expected to drive. Nonetheless, although I find such a re-
quirement to have been nondiscriminatory, I cannot reach
the same conclusion as to Respondent Employer's layoff of
Aponte and Pedroza until they secured the necessary licen-
ses. Respondent owned two vehicles which they could law-
fully drive and, while those vehicles were being repaired
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the period of their layoffs, it appears that only one
vehicle was undergoing repair at a time, thus leaving the
other available to be driven by one of the two employees.
Moreover, as pointed out in section II(E) hereof, Maspeth
had hired and retained new employees during and after
April. The record contains no explanation of why either
Aponte or Pedroza could not have been retained to per-
form the work of such employees or the work of such em-
ployees as Maspeth hired from the temporary employment
service, MTES. Further, as previously described, both
Aponte and Pedroza had engaged in both union and
charge filing activity, and the Horowitz brothers had dis-
played substantial animus against such activity and those
who would engage in it. Accordingly, I must conclude that
Respondent Employer laid off Rene Aponte and Jose Pe-
droza because they had engaged in such protected activity
and that, by such conduct, it has violated Section 8(a)(l),
(3), and (4) of the Act.
I further find, in agreement with the General Counsel,
that Respondent Employer unlawfully threatened and in-
terrogated employees in violation of Section 8(a)(l) of the
Act when it told the employees upon reinstatement that
they would get no raises and no help in their work and
when it questioned Aponte and Pedroza as to whether they
had dropped thier unfair labor practice charges. I further
find that Respondent Employer unlawfully threatened
Aponte upon his return to work when it suggested that he
quit because he sought the holiday pay to which he be-
lieved himself entitled pursuant to the collective-bargaining
agreement. Contrary to General Counsel's contention, I do
not find that Respondent Employer violated Section
8(a)(1) when Robert Horowitz threatened to do physical
harm to Lizotte and his automobile. As reprehensible as
that threat was, it did not occur in the context of any law-
ful union or protected concerted activity and therefore
could not be said to have interfered with, restrained, or
coerced employees in the exercise of Section 7 rights.
H. Johnny Carrillo
Johnny Carrillo began working for Maspeth on July 5,
1976, as a helper. He never became a member of Local 707
and was never covered by the Union's health benefits plan.
Carrillo participated in the strike of May 2 through 4.
Upon his return to work, Robert Horowitz repeatedly
asked him whether he was going to drop the unfair labor
practice charges. Robert Horowitz further told Carrillo
that he was "going to do everything humanly possible to
fire" the employees.
As of May 25 Carrillo found that he was no longer being
paid by Maspeth or Horowitz Waste Company. He had
been placed on the payroll of MTES. He continued per-
forming the same work, working for Maspeth every day, at
the same rate of pay. However, he worked fewer hours per
day than he had when on the Maspeth payroll. He also
found that his vacation entitlement was reduced from the 8
days he had been promised to 6 days.'
General Counsel contended that by the foregoing con-
is Carrillo's testimony is uncontradicled.
duct, Respondent discriminated against Carrillo in order to
prevent Carrillo from being covered by, and receiving the
benefits of, the collective-bargaining contract. I agree. As
previously noted, Respondent had displayed substantial
animus toward those who sought union membership and
contractual coverage, and it sought to prevent its employ-
ees from achieving those goals by various means. Its trans-
fer of Carrillo to the MTES payroll at the same time that
the Union was extending membership to those who had
previously been excluded was, I find, just another attempt
to exclude an employee from union membership and atten-
dant contractual benefits. Accordingly, I find that, by re-
moving Carrillo from its payroll, the Respondent Employer
has discriminated against him in violation of Section
8(a)(l), (3), and (4) of the Act. I further find that by inter-
rogating Carrillo in regard to the withdrawal of the unfair
labor practice charges, and by threatening to discharge all
of the employees involved in the various activities, Respon-
dent Employer has violated Section 8(a)( 1) of the Act.
CONCLUSIONS OF LAW
I. By conditioning employment upon agreement to re-
frain from joining a union or claiming benefits under a
collective-bargaining agreement or upon the withdrawal of
unfair labor practice charges; by threatening employees
with more onerous working conditions or discharge be-
cause they engage in union activity or filed charges under
the Act; by interrogating employees in regard to their filing
or withdrawal of unfair labor practice charges; and by sug-
gesting than an employee should quit because that employ-
ee sought contractual benefits, Respondent Employer has
violated Section 8(a)(1) of the Act.
2. By withholding contractual benefits from unit em-
ployees who were not members of the Union, Respondent
Employer has discriminated against employees on the basis
of their union membership, in violation of Section 8(a)(3)
and () of the Act.
3. By making the working conditions of its employees
more onerous; and by discharging Michael Padro, laying
off Rene Aponte and Jose Pedroza, and transferring John-
ny Carrillo from its payroll, all because these employees
had filed unfair labor practice charges under the Act and
had engaged in other union and protected concerted activi-
ties, Respondent Employer has violated Section 8(a)(l), (3),
and (4) of the Act.
4. The unfair labor practices enumerated above are un-
fair labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
5. Respondent Employer has not engaged in any unfair
labor practices not specifically found herein.
6. Respondent Union has not engaged in any of the un-
fair labor practices which were alleged in the complaint, as
amended.
THE REMEDY
It having been found that Respondent Employer has en-
gaged in unfair labor practices in violation Section 8(a)(),
(3), and (4), it will be recommended that Respondent Em-
ployer be required to cease and desist therefrom and take
MASPETH TRUCKING SERVICE, INC. 1233
certain affirmative action designed to effectuate the poli-
cies of the Act.
It having been found that Respondent discriminatorily
discharged Michael Padro and discrimintorily transferred
Johnny Carillo from its payroll, Respondent shall offer
them immediate and full reinstatement to their former or
substantially equivalent positions. without prejudice to
their seniority or other rights and privileges, and shall
make them whole for any loss of pay they may have suf-
fered by reason of the discrimination against them. It hav-
ing been further found that Respondent discriminatorily
laid off Rene Aponte and Jose Pedroza, and denied unit
employees the benefits of the collective-bargaining agree-
ment because they were not union members. Respondent
shall also make them whole for any loss of pay or benefits
they may have suffered because of the discrimination
against them. Any backpay found to be due shall be com-
puted, with interest, in the manner prescribed in F. W1.
Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation, 231 NLRB 651 (1977))16
"A violation of Section 8(a)(3) goes to the very heart of
the Act." It therefore warrants that Respondent be further
required to cease and desist from infringing in an,' other
manner upon the rights guaranteed employees by Section 7
of the Act. Pan American Exterminating Co., Inc., 206
NLRB 298 footnote 1 (1973); Entwistle Manufacturing
Company, 23 NLRB 1058 (1940), enfd. as modified 120
F.2d 532 (4th Cir. 1941).
Upon the basis of the entire record, the findings of fact
and the conclusions of law, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 7
The Respondent Employer, Maspeth Trucking Service,
Inc., Queens, New York, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(1) Conditioning employment upon the employees'
agreement to refrain from joining a union or claiming ben-
efits under a collective-bargaining agreement, or upon their
agreement to withdraw unfair labor practice charges filed
under the Act.
(b) Threatening employees with more onerous working
conditions or discharge because they engage in union ac-
tivities or file unfair labor practice charges under the Act.
(c) Interrogating employees concerning unfair labor
practice charges which they filed under the Act.
(d) Suggesting that employees who claim contractual
benefits should quit their employment.
(e) Withholding contractual benefits from bargaining-
unit employees because they are not members of the
Union.
(f) Making the working conditions of its employees
See, generally. Is.s Plumbing & lteating Co.. 138 NLRB 716 1962
| In the event no exceptions are filed as prosided hb 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 b? the Board and hecomen
its findings. conclusions, and Order. and all hjection, theretlo shll he
deemed waised for all purposes
more onerous because they had filed unfair labor practice
charges under the Act or because they had engaged in
other union or protected concerted activities.
(g) Discharging, laying off, or transferring from its pay-
roll employees because those employees filed unfair labor
practice charges under the Act or engaged in other union
or protected concerted activities.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist Local 707, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes
of collective bargaining or mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Michael Padro and Johnny Carrillo immediate
and full reinstatement to their former positions or, if that is
not possible, to substantially equivalent positions. without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered by reason of the discrimination against them,
in the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Make Rene Aponte, Jose Pedroza, and all employees
who were denied benefits under the collective-bargaining
agreement because of their lack of union membership
whole for any loss of earnings or benefits they may have
suffered by reason of the discrimination against them, in
the manner set forth in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records, reports, and all other documents neces-
sary and relevant to analyze and compute the amount of
backpay due under this recommended Order.
(d) Post at its offices, terminals, and warehouses copies
of the attached notice marked "Appendix." 18 Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by the Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
The complaint insofar as it alleges unfair labor practices
by Local 707, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is
dismissed.
19 In the event that this Order is enforced bh a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted bh Order
of the Natlional l.ahbor Relations Board" shall read "Piosed Pursuant to a
Judgment of he U nited States (ourt of Appeals Enforcing an Order of the
National I.abhor Relations Board."