Synergy Gas Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1992

309 N.L.R.B. 179 (N.L.R.B. 1992)

179
309 NLRB No. 18
SYNERGY GAS CORP.
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.
In agreeing with the judge that the Respondent failed to pay
DePolito for his overtime work in violation of the Act, we note that
DePolito had since at least March 1989 requested to be transferred
to hourly status from salary status, as part of his effort to receive
pay for the overtime work he was being required to do. The judge
found, and there are no exceptions, that ‘‘[a]ll the other servicemen
were getting overtime pay.’’ DePolito’s request was approved by
memo from Regional Manager Churchill on July 15, 1989. Two
days later, the Respondent withdrew its approval. We agree with the
judge that the Respondent’s argument that its actions toward
DePolito in this respect were in accordance with the Board’s Order
is without merit. The Board’s Order required the Respondent to rein-
state DePolito to his former job with backpay. The Order did not
mandate that he remain a salaried employee despite his requests to
become an hourly employee. Rather, we find in agreement with the
judge that the Respondent’s denial of DePolito’s requests were in re-
taliation for his protected activities.
In adopting the judge’s finding that the Respondent’s April 7,
1989 layoff of three employees, without first bargaining with the re-
cently certified collective-bargaining representative of its employees,
was in violation of Sec. 8(a)(5) of the Act, we find it unnecessary
to discuss the propriety of the judge’s citing Adair Standish Corp.,
292 NLRB 890 (1989), which relied on Lapeer Foundry & Machine,
289 NLRB 952 (1988). See Holmes & Narver/Morrison-Knudsen,
309 NLRB 146 fn. 3 (1992).
Synergy Gas Corp. and Stephen Brady, and Local
456, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Cases 2–CA–23558, 2–CA–
23640, 2–CA–23795, and 2–CA–23868
September 30, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On October 21, 1991, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Synergy Gas Corp., Cold
Spring, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Gail T. Auster, Esq. (Belinda Lerner, Esq. on the brief), for
the General Counsel.
Elliot J. Mandel, Esq., Peter A. Schneider, Esq., and Claire
E. Boland, Esq. (Kaufman, Maness, Schneider &
Rosensweig, P.C.), for the Respondent.
Dana L. Pomerantanz, Esq. (Roy Barnes, P.C.), of Hemp-
stead, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The com-
plaint, as amended, in these cases which were consolidated
for hearing, alleges that Synergy Gas Corp. (the Respondent)
has engaged in unfair labor practices within the meaning of
Section 8(a)(1), (3), (4), and (5) of the National Labor Rela-
tions Act (the Act). The Respondent’s answer, as amended,
denies the commission of any unfair labor practice.
The pleadings place in issue whether the Respondent, to
discourage its employees at its facility in Cold Spring, New
York, from supporting Local 456, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO (the Union) (a) threatened to rescind a
pay raise promised to an employee and (b) told employees
that it was futile for them to support the Union. Also in issue
are whether the Respondent unlawfully discriminated against
employees by (a) allegedly rescinding a promised pay raise
to an employee, (b) refusing to pay an employee for over-
time work performed, and (c) discharging an employee. The
amended complaint further alleges that the Respondent failed
to bargain collectively with the Union respecting the layoff
of three employees.
The hearing was held before me on various dates, begin-
ning June 26, 1990, and ending May 15, 1991. On the entire
record, including my observation of the demeanor of the wit-
nesses and after due consideration of the briefs filed by the
General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent sells bottled propane gas to commercial
businesses and to individual consumers. In its operations an-
nually, it meets the Board’s nonretail jurisdictional standard.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent has many branches throughout the coun-
try from which it distributes propane gas. The only one in-
volved in this case is its Cold Spring, New York facility. Its
approximately six employees there had been unrepresented
for purposes of collective bargaining until March 8, 1989,
when the Union was certified in Case 2–RC–20597.
B. The Pay Raise Allegation
The complaint alleges that, on or about February 28, 1989,
the Respondent, by its regional manager, John Churchill, un-
lawfully threatened to withhold a pay raise promised to an
180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employee and that, since that date, it has unlawfully failed
to pay its employee, Stephen Brady, a raise promised him.
Churchill is responsible for all branches on the east coast.
Various area managers report to him. Area managers are
each responsible for a group of branches and each branch is
supervised by a branch manager.
Brady began working for the Respondent on April 19,
1988. He started as a yardman at the Cold Spring branch,
earning $6 an hour. He also helped the then branch manager,
Wayne Bumstead, in performing some of the duties of a
serviceman, such as installing stoves and repairing hot water
heaters. As he was then not yet 21 years of age, he could
not qualify for a class III license which is required in order
to drive a propane truck. In August 1988, he secured a learn-
er’s permit as the first step in qualifying for a class III li-
cense. A month later, he was given a $1-an-hour raise. Brady
testified that Bumstead and also the area manager then, Tom
Corrigan, promised him then that, when he passed the class
III test, he would be assigned to drive a propane truck and
would then be paid at the same rate as the other drivers at
Cold Spring received, $10 per hour.
Brady attended the Union’s first organizational meeting on
December 8 and signed an authorization card then. On De-
cember 16, the Union filed its petition in Case 2–RC–20597.
In that same month, Brady became 21 years of age and thus
was eligible to take the class III driving test. He took it then
but failed. On January 28, 1989, he took the test again, using
a truck which the Union had arranged for him to drive. He
passed the test.
Brady testified that, shortly after he passed the test, he
asked Area Manager Corrigan when could he expect to get
the driver’s pay rate. He was then driving a propane truck.
Brady related that Corrigan’s reply was that he would have
to wait until the union election was held but that the outcome
of the election would have no bearing on whether he would
get the raise or not. The election was held on February 28,
1989. The Union won and, as noted above, was later cer-
tified.
Brady testified as to a conversation he had with Regional
Manager Churchill on the day of the election. He related that
he asked Churchill for the raise promised him and that
Churchill told him that, as the Union was voted in, the mat-
ter was in the hands of the lawyers and that he did not think
that Brady would get the raise. In fact, he never received it.
Bumstead, who had been branch manager at Cold Spring
but who was later discharged by the Respondent, did not tes-
tify. Corrigan, as area manager, was responsible from Feb-
ruary 1988 to February 1989 for the area which included the
Cold Spring branch; at the time of the hearing, he was an
area manager in New England. Corrigan’s testimony is that
Brady asked him, before he took the class III driving test,
when could he expect to earn the driver’s rate of pay and
that he told Brady that if he, Brady, really wanted to earn
some money he should go out and get the class III license.
Corrigan further testified that, when Brady did get the class
III license, he asked again about getting the raise. Corrigan’s
testimony was that he then told Brady that he could not talk
about the matter ‘‘because you are negotiating with the
Union [and you] had Union activity cards.’’ On being ques-
tioned further, Corrigan testified that all he said then, in re-
sponse to Brady’s request, was that ‘‘they should wait until
the Union vote and then we will proceed from there.’’
The Respondent’s regional manager, Churchill, did not tes-
tify.
I credit Brady’s testimony. For that matter, it is virtually
uncontroverted as neither Bumstead nor Churchill testified
and as Corrigan’s testimony in substance parallels Brady’s
account.
The credited testimony establishes that Brady had been
promised by the Respondent that he would drive a propane
truck and that he would be earning $10 per hour when he
passed his class III test, that Brady passed the test and drove
a propane truck for the Respondent, that he was then told
that he would not get the raise to $10 in view of the union
election, and that he never did get that raise. Churchill’s
statement to Brady on the day of the election unlawfully im-
plied that the Union had prevented employees, who were due
raises, from getting them. See Taylor Chair Co., 292 NLRB
658, 663, 669 (1989).
The General Counsel’s evidence establishes a prima facie
case that the Respondent denied Brady a promised wage in-
crease to $10 an hour, on his passing the class III test, be-
cause the Union sought to represent the Cold Spring employ-
ees. Under Wright Line, 251 NLRB 1083 (1980), the Re-
spondent then had the burden of proving that, notwithstand-
ing the appearance of the Union, Brady would not have re-
ceived the raise to $10 an hour. The Respondent offered evi-
dence to show and, in its brief has argued, that it does not
automatically grant raises. I find that this is not sufficient to
prove that Brady would not have received the $10 raise he
was promised. Respondent has not rebutted the General
Counsel’s prima facie showing and thus find that the Re-
spondent, in order to discourage its employees from support-
ing the Union, has withheld from Brady his promised raise
to $10 per hour from the date he passed the class III test.
See Delta Gas, 283 NLRB 391, 401–406 (1987).
C. The Layoffs
The complaint alleges that the Respondent has failed to
bargain collectively with the certified Union by having uni-
laterally revised its practice of not laying off employees at
Cold Spring when it laid off three unit employees on April
7, 1989. As noted earlier, the Union had been certified in
March 1989.
General Counsel’s witnesses testified credibly that, prior to
the advent of the Union, employees at the Cold Spring
branch were never laid off but that, when the busy winter
season was over, the employees were assigned to yardwork
until the cold weather returned. Their testimony also estab-
lished that they were told by the Respondent that it was its
policy not to lay off employees. Further, the Respondent’s
regional manager, Churchill, had urged them, shortly before
the election in Case 2–RC–20597 to give the Respondent a
year without the Union. It is reasonable to infer from that
comment that the Respondent led them to believe that they
would enjoy a good year. Instead, the Respondent laid off
drivers Robert Battaglia, Edward Cronk, and Roger Demerest
on April 7, 1989, a month after the Union’s certification. The
Respondent did not send any notice of these layoffs to the
Union’s office.
The evidence proffered by the General Counsel supports
the complaint allegation that the Respondent failed in its ob-
ligation to bargain collectively with the Union as to the lay-
181SYNERGY GAS CORP.
1 See Synergy Gas Corp., 290 NLRB 900 (1988).
off, a mandatory bargaining subject. See Adair Standish
Corp., 292 NLRB 890 (1989).
The Respondent asserts that it gave the Union’s ‘‘acting
shop steward’’ at Cold Spring a week’s notice of the pro-
posed layoffs and that, as the Union did not request bargain-
ing thereon, it thereby waived its right to bargain as to the
layoffs. The Respondent had given a week’s notice to the
three laid-off employees of their layoff and, at the same time,
also informed Frank DePolito, a driver at Cold Spring, of
those layoffs. It contends that DePolito was the Union’s
‘‘acting shop steward’’ at the Cold Springs branch and that,
as it thereby gave notice of the impending layoffs to the
Union and as the Union did not request bargaining thereon,
the Union has thus waived its bargaining rights, respecting
the layoffs. The bases asserted by the Respondent for naming
DePolito as the Union’s ‘‘acting shop steward’’ are its view-
ing him as the most active of the Cold Spring employees in
supporting the Union and his having served as the Union’s
observer at the election conducted in Case 2–RC–20597.
DePolito, as found by the Board,1 had previously been dis-
charged by the Respondent because of his union activities.
It is axiomatic that a party asserting a waiver must prove
it by clear evidence. The Respondent’s designation of
DePolito as a union representative might be an attempt to
interfere with the administration of the Union’s business but
would hardly prove a waiver. To establish a waiver, the Re-
spondent would have had to show that the Union was aware
of the pending layoff of about half the personnel in the cer-
tified unit, that it was cognizant of the Respondent’s prior
policy of not laying off employees at the Cold Spring
branch, and that it remained silent respecting the layoffs such
that the clear inference would be that the Union opted to
consent to the change and to the layoffs. It is highly unlikely
that the Union so consented and there is no probative evi-
dence that it did. I therefore find that the Respondent has
failed to bargain collectively with the Union as to the layoff
of these three unit employees.
D. DePolito’s Overtime Pay Claim
The complaint alleges that the Respondent has engaged in
an unfair labor practice within the meaning of Section
8(a)(1), (3), and (4) of the Act by having refused to pay its
employee, Frank DePolito, for overtime he worked since
April 1989.
In August 1985, DePolito began working for the Respond-
ent as a serviceman at the Cold Spring branch, earning
$10.50 an hour. In December of that year, he was paid a sal-
ary of $25,000 per annum. In January 1987, he began to dis-
cuss with other employees there the benefits of bringing in
a union and was discharged a month later. As noted above
at footnote 1, the Board has found that the Respondent dis-
charged him then because of his union activities.
He was reinstated in November 1988 at a salary of $444
per week, instead of $481, the equivalent of the $25,000 per
annum salary he was earning prior to his discharge in Feb-
ruary 1987. In May 16, 1989, the Respondent resumed pay-
ing him $25,000 per annum.
On December 30, 1988, a backpay specification issued in
the prior case for losses incurred by DePolito from his dis-
charge in February 1987 to his reinstatement in November
1988 and for the $37 difference each week in his paycheck
for the period November 1988 to May 16, 1989. On March
30, 1991, the Board awarded him $41,549 plus interest as
backpay. (302 NLRB 130.)
The issue before me is whether the Respondent, for dis-
criminatory reasons, failed to pay DePolito for overtime
worked from April to October 1989 when he left the Re-
spondent’s employ. The Respondent contends that DePolito
was not entitled to overtime pay as he was a salaried em-
ployee and that the Respondent was not motivated by union
animus in not paying him for overtime hours worked inas-
much as, in its view, the Board had ordered DePolito’s rein-
statement on the same basis that he had worked in 1987, i.e.,
as a salaried employee.
On his reinstatement in November 1988, DePolito ar-
ranged a meeting between a union business agent and the
Cold Spring employees. Based on authorization cards signed
then, the Union filed a petition and in February 1989 won
the election, leading to its certification—all as recounted
above.
DePolito testified before me as follows concerning the
amount of overtime he had worked for the Respondent.
When he began in 1987, he was earning $10.50 an hour and
working a 40-hour week. With the birth then of his daughter,
he had hospital bills to pay. The then area manager of the
Respondent assigned him considerable overtime work so that
he could pay those bills. The area manager, in December
1985, recommended and obtained for DePolito a raise to
$25,000 per annum. He was paid on that basis until his un-
lawful discharge in February 1987. His workweek then had
generally consisted of 40 hours, with an ‘‘occasional’’ week
where he worked but ‘‘a few hours’’ overtime.
As noted above, when he was reinstated in November
1988, he was paid a weekly salary of $444 (equivalent to
$23,000 per annum) instead of the correct amount, $481
(equivalent to $25,000 per annum). The Respondent attrib-
uted to ‘‘clerical oversight’’ its failure to pay DePolito the
correct sum for the period November 1988 to May 1989. The
backpay specification that noted the discrepancy had issued
in December 1988. There is no explanation before me as to
why it took the Respondent at least 5 months to rectify it.
DePolito made several efforts with his immediate super-
visors to get compensation for his overtime work. All the
other servicemen were getting overtime pay. The Respond-
ent’s area manager submitted DePolito’s request to the Re-
spondent’s headquarters to be paid for overtime but he expe-
rienced ‘‘a hard time’’ getting an answer. Finally, the area
manager was informed by the head office that DePolito
would be paid only his salary as, ‘‘per a court order’’ and
was told that was how it would be done.
The evidence before me discloses that the Respondent con-
tinued to harbor an animus toward DePolito when it rein-
stated him in November 1988 after having unlawfully dis-
charged him in February 1987. It paid him, on his return,
$37 a week less than it had paid him in February 1987 and
did so for a 6-month period. I find it difficult to accept the
Respondent’s explanation for that discrepancy as the result of
a mere clerical oversight on its part. I find equally untenable
the Respondent’s explanation for not paying overtime to
DePolito that it was acting ‘‘per a court order.’’ Rather, I
find that the Respondent had refused to pay DePolito for his
overtime hours because he brought the Union in with him on
182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
his reinstatement and supported it thereafter and because the
Respondent harbored animus against him because he had
pursued with the Board the matter of his unlawful discharge
in February 1987. Based on the record before me, the Gen-
eral Counsel has made out a prima facie case establishing
these reasons for the Respondent’s failure to pay DePolito
overtime pay. The Respondent has not offered any persuasive
evidence to show that, nonetheless, it would still not have
paid him for his overtime assignments. Accordingly, I find
merit to this allegation of the complaint.
E. Alleged Threat by Branch Manager Bollick
The complaint alleges that, on about April 13, 1989, the
Respondent, by its Cold Spring branch manager, Reid
Bollick, threatened its employees that it would be futile for
them to support the Union.
Thomas Nastasi, a serviceman at Cold Spring testified
that, during a conversation he had with Bollick in April
1989, Bollick stated that the Respondent ‘‘would not allow
the Union to get into that branch under any circumstances at
all.’’ Bollick did not testify. I credit Nastasi’s account and
find that the Respondent thereby interfered with, restrained,
and coerced its employees in the exercise of their rights
under Section 7 of the Act.
F. Nastasi’s Discharge
The Respondent is alleged to have discharged Thomas
Nastasi because of his activities on behalf of the Union. The
Respondent contends that he was discharged because of his
negligence in driving his truck which resulted in an accident.
Nastasi was hired on June 21, 1988, by the Respondent
and worked at the Cold Spring branch, principally as a driver
delivering propane gas.
As earlier noted, five of the six Cold Spring employees
signed union authorization cards in December 1988. Nastasi
was one of those five. The only employee who did not sign
a union authorization card was Robert Crissey who made it
known to the Respondent’s branch manager shortly before
the election in Case 2–RC–20597 on February 28, 1989, in
language that was quite vivid, that he did not want to have
anything to do with the Union. The Union won that election
by a 5 to 1 vote.
In April 1989 the Cold Spring branch manager, Reid
Bollick, said to Nastasi that he hoped Nastasi would cross
the picket line if the Union called a strike; Nastasi told him
that he would not cross a picket line. Bollick, as earlier
noted, then stated that the Respondent would not allow the
Union to get into the Cold Spring branch under any cir-
cumstance.
On September 20, 1989, a hurricane had passed through
the Cold Spring area, bringing heavy rains. It was still rain-
ing somewhat on September 21. Nastasi was operating a six-
wheel bobtail truck that day delivering in a hilly area on
roads which one driver had characterized as ‘‘goat trails.’’
Nastasi had made about eight deliveries and then drove up
a steep, narrow dirt road to make another delivery. On the
way back, as he was guiding his truck down at about 1 to
2 miles per hour, it suddenly dropped into a washout. His
head hit the door jamb and he lost consciousness. He woke
up to find out that the truck had gone down an embankment
and was resting against two trees. He shut the ignition off,
checked for leaks, found none, and walked to a nearby resi-
dence where he called his office. He returned to the scene
of the accident. An ambulance arrived and took him to a
hospital where he was examined and released. He was driven
back to the accident scene and observed that the front fender
and a door were dented and the fiberglass nose of the cab
had been cracked. Later, Nastasi filled out an accident report
describing the incident as related.
On the next day, Nastasi reported for work. He asked
Branch Manager Bollick what would happen to him. Bollick
told him that, as far as he (Bollick) was concerned, nothing
would happen as he (Nastasi) was a good employee with a
good record. He was told to go home and rest.
On the next scheduled workday, Monday, September 25,
Bollick told Nastasi, when he arrived at the Cold Spring fa-
cility, that he (Bollick) was waiting for a phone call and that
he thought that ‘‘they wanted to fire [Nastasi].’’ At lunch-
time, Nastasi went to the office. Bollick was on the tele-
phone. Bollick made a gesture to Nastasi, indicating that
Nastasi was being fired. Later that day, Bollick handed
Nastasi a notice which stated that he was terminated for
gross negligence which caused the accident on September 20.
Nastasi testified that several Cold Spring servicemen,
whom he named, had been in truck accidents but had not
been discharged therefor. He related further that Robert
Crissey, who as noted above had made it clear to the Re-
spondent that he opposed the Union, had once pulled a
wrong lever while operating a hydraulic lift and that resulted
in a 500-gallon propane tank crashing through a windshield.
Crissey was not discharged.
The foregoing evidence establishes that Nastasi supported
the Union and the overall circumstances compel a finding
that the Respondent was aware that he did. Further, the Re-
spondent, on more than one occasion, has exhibited its union
animus. The suddenness of Nastasi’s termination, despite the
stated belief by the Cold Spring branch manager that nothing
would happen to him and as no one from the Respondent
pointed out to him the basis for its assertion that he was
guilty of gross negligence in making deliveries right after a
hurricane and while driving on treacherous roads, indicates
that the Respondent seized on the incident as a pretext to
conceal a discriminatory reason to discharge him. Based on
the foregoing factors, I find that the General Counsel has es-
tablished, prima facie, that Nastasi’s support of the Union
was a factor in the Respondent’s decision to discharge him.
Under Wright Line, supra, the Respondent has the burden
of proving that, absent the Union, it would still have dis-
charged Nastasi. To that end, the Respondent asserted that
the extent of the damage done by Nastasi to the truck on
September 20 was a major factor in the Respondent’s deci-
sion to discharge him. At one point in the course of the hear-
ing, the Respondent indicated that the extent of the damage,
costing $5000 for repairs, was the sole reason for his dis-
charge. The Respondent’s corporate administrator, Kevin
Mitchell, testified that he made the decision to discharge
Nastasi. However, he also testified that the extent of the
damage to Nastasi’s truck was not a factor in his decision.
He related too that he was not aware, when he made the de-
cision, of the extent of the damage that had been done to the
truck. These conflicting positions do little to enhance the Re-
spondent’s efforts to meet its Wright Line burden.
183SYNERGY GAS CORP.
2 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.
For that matter, Mitchell’s testimony that he made the de-
cision to discharge Nastasi was not persuasive. He works at
the Respondent’s corporate headquarters in Farmingdale,
New York, and is in charge of processing insurance claims,
maintaining personnel records, and overseeing safety pro-
grams and related administrative matters. Also at the cor-
porate headquarters are the members of the Vogel family,
owners of the Respondent. Sherman Vogel is president. His
three sons are the vice presidents. John Vogel is vice presi-
dent in charge of operations.
In an effort to demonstrate that Nastasi’s discharge was
consistent with the Respondent’s past practice, Mitchell testi-
fied that he discharged Nastasi because he viewed the Sep-
tember 20 accident as avoidable and attributable to Nastasi’s
gross negligence and further he identified various corporate
documents as ones which contained records of instances
where he discharged drivers under similar circumstances. On
further questioning, it became apparent that Mitchell had no
independent recollection of the events recounted in these
records as to the reasons stated there for the discharges.
More significantly, some of these records reflected that
Mitchell did not make the discharge decision but that he
made recommendations to John Vogel. On a few, his rec-
ommendations were overruled. Other records indicated that
various managers in the Respondent’s operations section had
discharged drivers and later notified Mitchell’s section of
those discharges.
The circumstances which Mitchell recounted as the basis
for his decision to discharge Nastasi also do not persuasively
support his account. He related that he decided to discharge
Nastasi during the course of a telephone conversation with
Regional Manager Churchill when the matter was first re-
ported to him. There is no evidence that Churchill himself
had questioned Nastasi as to the accident. Mitchell acknowl-
edged that he never sought Nastasi’s version of the incident.
Mitchell related that the Respondent has no set guidelines to
be applied in discharging employees.
The Respondent has failed to meet its burden, under
Wright Line, to show that, absent Nastasi’s support for the
Union, it would still have discharged him. I therefore find
that its discharge of Nastasi was motivated by union animus.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by having:
(a) Threatened to withhold a pay raise promised an em-
ployee in order to discourage support for the Union.
(b) Told its Cold Spring employees that it would not allow
the Union to get into that branch under any circumstances.
(c) Engaged in the conduct described in paragraphs 4, 5,
and 6 below.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) of the Act by having:
(a) Withheld from its employee, Stephen Brady, a pay
raise promised him in order to discourage support for the
Union.
(b) Failed to pay its employee, Frank DePolito, for over-
time work performed because he supported the Union.
(c) Discharged its employee, Thomas Nastasi, because of
his support of the Union.
5. The Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(4) of the Act by having
failed to pay its employee, Frank DePolito, for overtime
work because he had filed an unfair labor practice charge
against the Respondent under the Act and gave testimony in
connection with it.
6. The Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(5) of the Act by having
laid off three of its Cold Spring employees without bargain-
ing collectively thereon with the Union as the exclusive rep-
resentative for such purposes of a unit comprised of the Cold
Spring employees of the Respondent.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order the Re-
spondent to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
The Respondent, having unlawfully discharged one em-
ployee and laid off three others, I find it necessary to order
it to offer them reinstatement to their former jobs or, if they
no longer exist, to substantially equivalent jobs, without prej-
udice to their seniority or their other rights and privileges
and make each of them whole for any losses of earnings or
other compensation that they suffered as a result of the un-
lawful action against them. Backpay shall be computed in ac-
cordance with the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). The Re-
spondent shall also make whole Frank DePolito for all over-
time worked, with interest as computed in New Horizons for
the Retarded, supra, and also Stephen Brady for its failure
to pay him a wage rate of $10 per hour since the date of
his class III license, with interest therein as computed in New
Horizons, supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Synergy Gas Corp., Cold Spring, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to withhold or withholding a pay raise due
any employee in order to discourage support for Local 456,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO.
(b) Telling its employees that it will not allow the Union
to represent its employees at its Cold Spring, New York
branch.
(c) Failing to pay any employee for overtime work in
order to discourage support for the Union or because an em-
ployee files an unfair labor practice charge with the Board
or gives testimony under the Act.
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 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.’’
(d) Discharging employees in order to discourage member-
ship in the Union.
(e) Failing to bargain collectively with the Union as the
exclusive representative of the unit comprised of Cold Spring
employees by unilaterally laying off employees in that unit.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Thomas Nastasi, Roger Demerest, Edward
Cronk, and Robert Battaglia immediate and full reinstatement
to their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make them whole
for their lost earnings in the manner set forth in the remedy
section above.
(b) Make whole Stephen Brady and Frank DePolito for
failing to pay them, respectively, a pay raise and overtime
pay, with interest thereon as set forth in the remedy section.
(c) Remove from its files all references to the discharge
of Thomas Nastasi and notify him in writing that this has
been done and that the discharge will not be used against
him in any way.
(d) 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.
(e) Post at its Cold Spring, New York branch copies of
the attached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for Region
2, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten to withhold or withhold a pay raise
due an employee to discourage support for Local 456, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO.
WE WILL NOT tell any of our employees at our Cold
Spring, New York branch that we will not allow the Union
to represent them for purpose of bargaining collectively with
us respecting their hours of work, rates of pay, and other
terms and conditions of employment.
WE WILL NOT pay any employee for overtime work in
order to discourage support for the Union or because an em-
ployee files an unfair labor practice charge with the Board
or gives testimony under the Act.
WE WILL NOT discharge any employee in order to discour-
age membership in the Union.
WE WILL NOT fail to bargain collectively with the Union
by laying off employees without notice.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Thomas Nastasi, Roger Demerest, Edward
Cronk, and Robert Battaglia their jobs back and make them
whole, with interest, for all earnings they lost as a result of
our unlawful acts.
WE WILL make whole and with interest Stephen Brady for
our failure to pay him the pay raise due him as a class III
driver and also Stephen DePolito for not having paid him for
the overtime hours he worked, both because they supported
the Union.
WE WILL notify Thomas Nastasi that we have removed all
references to his discharge from our files that it will not be
used against him in any way.
SYNERGY GAS CORP.