Brancato Iron Works, Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1968

170 N.L.R.B. 75 (N.L.R.B. 1968)

BRANCATO IRON WORKS, INC. 75
Brancato Iron Works , Inc. and Shopmen 's Local
Union No. 455, International Association of
Bridge , Structural and Ornamental Iron Workers,
AFL-CIO. Case 29-CA-696
of that part of the complaint alleging the unlawful discharge of Jesus
Machin
2 As we adopt the Trial Examiner 's conclusion with respect to the card of
Hernan E Caro, we find it unnecessary to pass upon the validity of the
cards of employees Pietro Russo, Salvatore Russo , Jose Bravo , and Manuel
Beltran
March 7, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 18, 1967, Trial Examiner Thomas
A. Ricci issued his decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affirm-
ative action, as set forth in the attached Trial Ex-
aminer's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other unfair labor practices. Thereafter, the Charg-
ing Party and the General Counsel filed exceptions
to the Trial Examiner's Decision and supporting
briefs.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions,2 and recommen-
dations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
Brancato Iron Works, Inc., Queens, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
The second sentence of paragraph 2(d) is
amended to read as follows:
"Copies of said notice, to be printed in Spanish,
Italian, and Portuguese, as well as English, on forms
provided by the ......
' In the absence of exceptions thereto, we adopt pro forina the Trial Ex-
aminer 's findings of violations of Section 8(a)(1) and ( 3), and his dismissal
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in
the above-entitled proceeding was held before me
at Brooklyn, New York, on April 11, 12, and 14,
and on May 23, 1967, on complaint of the General
Counsel against Brancato Iron Works Inc., herein
called the Respondent or the Company. The
original charge was filed on August 8, 1966, and
the complaint issued on October 31. The issues
litigated are whether the Respondent violated Sec-
tion 8(a)(1), (3), and (5) of the Act. A brief was
filed by the General Counsel after the close of the
hearing.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Brancato Iron Works, Inc., a New York State
corporation, is engaged in the fabrication, sale, and
installation of iron railings, cellar doors, folding
gates, grills, and related products, with its principal
office and place of business in the Borough of
Queens, New York City. During the past year, a
representative period, the Respondent purchased
and caused to be transported and delivered to its
New York City plant, iron, steel, and other goods
and materials valued in excess of $50,000, of which
goods and materials valued in excess of $50,000
were transported and delivered to its plant from en-
terprises located in the State of New York, but
each of which other enterprises had received the
said goods and materials in interstate commerce
directly from States other than the State in which
those enterprises are located.
I find no merit in the Respondent's contention
that this Company's operation is essentially a retail
business, and that therefore the volume of its busi-
ness excludes the Company from the reach of the
Board's jurisdictional standards,' I find that the
Respondent is engaged in commerce within the
meaning of the Act and that it will effectuate the
policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Shopmen's Local Union No. 455, International
Association of Bridge, Structural and Ornamental
' Compare Air Control Products, Inc of Tainpa, 132 NLRB 114,
170 NLRB No. 10
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iron Workers, AFL-CIO, herein called the Union,
is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
In the beginning of May 1966, the Company had
24 production workers . Of these 13 signed their
names on printed authorization cards in favor of
the Charging Union , 10 on May 2, 2 on May 8, and
1 on May 13 . On or about May 14 or 15, two union
agents spoke to Vincent Brancato , whose brother,
Joseph Brancato , is an owner of the Respondent
Company and its direct operating head . The union
representatives testified that they asked Vincent
Brancato for exclusive recognition but were
refused . The Union filed a representation petition
(Case 29-RC-471) on May 16, an agreement for
consent election was made on May 26, and an elec-
tion under Board supervision took place on June
10. Twenty-six persons cast ballots , 12 in favor of
the Union and 14 against . The Union filed timely
objections to the election , claiming the Respondent
had improperly interfered , and on July 27 the Re-
gional Director issued his report on objections, in
which he found merit in the objections and set
aside the results.
On June 17 the Respondent discharged four em-
ployees-Jesus Machin , Manuel Beltran, Jose
Bravo , and Nestor Bustamente-each of whom had
signed union cards , and on August 26 it discharged
Renato Martuffi , who had been an active solicitor
of union-card signatures in 'May and who acted as
union observer at the election . The complaint al-
leges that each of these discharges was made in
retaliation for the employees ' union activities, and
therefore constituted separate violations of Section
8(a)(3) of the Act. It also alleges that the Respon-
dent unlawfully refused to bargain with the Union
in May, and thereby violated Section 8(a)(5).
The Respondent denies the commission of any
unfair labor practices.
B. The Discharges
Joseph Brancato , an Italian , who has been in this
county only a few years, speaks English poorly; he
test if d through an interpreter . He owns the Com-
p ny together with his sister Christina and his
sister-in-law , Mimi Anza , whose husband, a com-
pany salesman , is also a supervisor inside the shop.
Brancato is the effective day-to-day chief of opera-
tions , sometimes in the factory overseeing produc-
tion work , and sometimes in the field checking on
the installation work of his men. He was opposed to
the idea of a union representing his employees. On
May 27 he asked employee Jose Bravo whether he
liked the Union . Bravo said no, although he` had in
fact signed a card , and Brancato then said "that
union was no good because you have to pay money
there ." He assembled the employees in the shop,
during working hours , 2 or 3 days before the elec-
tion and spoke about the imminent voting . Accord-
ing to him he told them it was right for him to
speak to the workmen about it, that the matter was
important, that they should think of what they were
doing , that some liked the Union and others did
not, and that they should know that for his part "I
am not interested ." In contrast , Bravo testified that
at this meeting Brancato also "promised to give us
a raise if we didn 't vote for the union ." I credit
Bravo because , for reasons that will appear below, I
find Brancato to have'been an unreliable witness.
Below Brancato in the management structure
there are two foremen, Dante Del Papa and
Amadeo Pedro. Pedro is in charge of the six or
seven men who make folding gates, and Del Papa
has like authority over seven or eight, men- who
work on rolling doors. The evidence shows clearly
they are both supervisors within the meaning of the
statute. Manuel Beltran testified that he was hired
directly by Pedro; that he answered a newspaper ad
and asked to see the foreman; that Pedro inter-
viewed him, took him to the office, and told the girl
to put him on the payroll; that Pedro assigned him
work then and there; and that he, Beltran , spoke to
no one else before starting as an employee. Pedro
appeared as a witness but did not contradict
Beltran. All he said was that while he has no
authority over employees who work in other de-
partments, as to the six or seven men who work
with him "I control the work." Arley Cano testified
that he was hired by Del Papa; that the first thing
he did was speak to Del Papa; that Del Papa went
to the office, returned, and said "okay"; and that,
as was true of Beltran, he (Cano) started work
forthwith without speaking to any other person. Del
Papa was not called as a witness . Both Beltran and
Cano, as well as Jose Bravo, testified that these two
foremen assign work regularly, instruct the men,
and directly shift them about as need requires.
There is also uncontradicted testimony by Bravo
that when he was discharged it was by Del Papa,
and only by Del Papa, and like testimony by Busta-
mente, that when he was laid off twice for short
periods and then finally dismissed, it was always by
Pedro alone.
The finding of supervisory status is supported by
the testimony of Joseph Brancato _ himself. He said
neither of these two men has authority to hire or
discharge employees , or to give raises, but the'
evidence that they in fact did hire ' and discharge
was not contradicted . Brancato also testified Pedro
is a "[w]orker . At the same time looking after , a
group of workers." "Q. Does he in anyway super-
vise the operations of the inside? A. Part of the
work.... [ flolding gates." Brancato then identified
seven men who worked for Pedro, and admitted the
foreman assigns particular tasks to these men,
watches them to see that they keep working, and
instructs them in their work duties. As for Del
Papa : "He works and he is a supervisor too ... only
BRANCATO IRON WORKS, INC. 77
to a number of men who work for him ... 6 or 7."
Brancato then added Del Papa "helps me to see
that this work is done correctly," chooses which
men are to perform particular jobs, sees that the
men stay at work when Brancato is absent , and re-
ports employees who do not obey him. "When I am
not there it's just that they have to listen to him
[Del Papa]."
I find,, contrary to the Respondent's contention,
that both Dante Del Papa and Amadeo Pedro are,
and were at the time of the events supervisors as
defined in the Act. There is also Joseph Anza, al-
leged in the complaint to be secretary- treasurer of
the Respondent corporation and its agent, a status
admitted in the answer.
Nestor Bustamente: Bustamente was hired in
January 1966 and discharged on June 17, 1967. He
worked on folding doors and did a certain amount
of painting . He signed a union card and distributed
some to other employees. He was scheduled to
work on June 10, when the election took place, but
the day before, Foreman Pedro told him "tomor-
row there is no work for you because of the elec-
tion ." Bustamente lost the day's work that Satur-
day. Towards the end of the workday the following
Monday, Pedro again told him to stay home: ".. .
he told me again that the following day I have no
work because of what happened the day of the
election." He lost another day and returned Wed-
nesday. On Friday, the 17th, Pedro said: "You are
fired because of that thing of the election." I credit
Bustamente ; the foreman was a witness for the
Respondent towards the end of the hearing and
ignored all this direct and clear testimony.
Bustamente had never before been laid off from
work for .any reason. Shortly before the election-
perhaps a week or two before the discharge-he
received a raise without having asked for it. He
learned of the raise when Brancato simply said: "I
put a little thing on your check." The discharge
came as a surprise, without warning.
At the hearing Brancato said this man was
released because he was not needed, there was no
more work for him because, the painting system had
been changed from spraying to dipping in a tank,
less people were needed. Another man, junior to
Bustamente, also did painting but was not
discharged. Brancato admitted no special skill is
required to learn dip-painting and it is a practice of
his to teach unskilled hands how to do the shop
work. His explanation of the sudden discharge is
unconvincing. Had this' been the reason, someone
would have told Bustamente . Instead the foreman,
necessarily speaking for Brancato, stated the unlaw-
ful reason explicitly more than once. I find that by
laying off Bustamente twice, each time for a single
day, and,then by discharging him outright on June
17, the Respondent violated Section 8(a)(3) of the
Act.
Jose Bravo: Bravo was a welder working under
Foreman Del Papa. He started in 1964 at $1.70 per
hour and received six raises =bringing him to the
$2.30 per hour he earned when discharged , the last
increase given him on June 1, 1967. On Monday,
June 13, Del Papa told him to stay home Tuesday
and Wednesday . On Friday , 5 minutes before
quitting time , the foreman discharged him.
Brancato testified this man was released because
"there wasn 't too much work .... he was not
obedient to the person that was giving him work
[presumably Foreman Del Papa ], he did not know
how to do completely his work ." Later he added,
Bravo "was never qualified ." In view of the long
record of raises given the man over a 2-year period,
the last only 2 weeks before the discharge , but be-
fore the election , and the inconsistent reasons for
discharge voiced at the hearing-not enough work:
he didn 't do it well-it would be difficult to believe
Brancato 's explanation even if there were no other
pertinent facts to be considered . It was stipulated
that the Company hired three new employees
within 12 days of these discharges , and four men in
the month of July. The question is put at rest quite
definitively , however , by Bravo 's further clear
testimony that when Del Papa discharged him the
foreman said the reason was "because Joe [Bran-
cato] was angry because of the election we had ...
Mr. Brancato was angry because of the election
we had-we were supposed not to vote and we
have voted ." The Respondent chose not to produce
Del Papa at the hearing , and the stated reason was
in keeping with what Foreman Pedro told Busta-
mente that same day. I credit Bravo , and I find that
by laying this employee off for 2 days and then by
discharging him on June 17, 1967, the Respondent
violated Section 8(a)(3) of the Act.
Manuel Beltran : Beltran was a driver-helper who
assisted the mechanic in installing products at
customer locations. He started in February 1965
and was also released without advance notice
precisely 1 week after the election . He, too, signed
a union card , distributed some, and spoke to others
in favor of the Union . Joseph Anza, familiarly
called Pipo, the secretary -treasurer , supervisor, and
brother-in-law of owner Brancato , acts for Bran-
cato in the shop in the latter 's absence, giving or-
ders to the men. His agency status on behalf of the
Respondent is conceded in the answer to the com-
plaint . When Beltran was giving union cards to
other employees, Anza one day said to' him, "what
for are you giving out the cards ." Beltran answered
he was "searching for welfare of the people." Anza
then "told me that after the election I shouldn't
think or believe that we are going to win and that if
we lose, we would be going out. 'We would be
thrown out." "To this," as Beltran continued to tes-
tify, "I didn 't answer anything." Counsel for
Respondent asked on cross-examination: "Did
Pedro [the foreman] promise you that if you would
not join the union , you would get an increase?" and
Beltran 's answer was "Yes." Beltran also testified
unequivocally that after the election Anza asked
him how he had voted , and when the employee
inquired why the Company "needed' to know," An-
za's response was "Oh , just want to know."
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I credit the testimony of Beltran. It stands entire-
ly uncontradicted. Anza did not appear as a witness
and Pedro, who did, said nothing about it. On the
17th Anza discharged Beltran, saying only that he
was no longer needed. He gave the man no other
reason.
All that Brancato said in defense about this man
is that he was discharged because a mechanic who
worked with him reported "it was not possible to
make him do anything," and that the man "wanted
to hit me [the mechanic]." Addolorato Bertone, a
mechanic, testified Beltran had worked as his
helper "for some little bit time," and there was dif-
ficulty "because he didn't want to be order about.
He said, `The only person that orders me is my
father."' Bertone added he then told Brancato,
"when you give him orders, he looks ugly- at you
and he doesn't like it. He makes gestures." The
mechanic then said Brancato assigned another man
to him, and there was much changing of helpers on
his jobs.
Some irritation between these two men there
may have been over the 16 months Beltran worked
for the Company., It was never deemed cause for
discharge, nor even, so far as appears , for warning,
until he showed his independence in matters of the
Union and crossed the path of Brancato 's brother-
in-law . He received three pay raises instead. I do
not believe Beltran was discharged for the reason
given by Brancato at the hearing . Indeed, in the
light of the clear evidence the supervisor told him
in advance he would be released if the Union lost
the election, and then inquired how he had voted,
the conclusion is inescapable that he was sent away,
together with Bravo and Bustamente, because of his
activities on behalf of the Union. I find that by the
discharge of Beltran on June 17, 1967, the Respon-
dent violated Section 8(a)(3) of the Act.
Jesus Machin: Machin too was discharged on
June 17, and the complaint alleges this was another
violation of the statute. There is proof he signed an
authorization card, but he did not appear at the
hearing and there is no indication of pinpointed
animus against him grounded on union concern.
Brancato said simply he was released because there
"was not too much work," and "he did not know
how to do completely his work." The General
Counsel argues that an inference of illegal motiva-
tion. may be based upon the unlawful discharges the
same day of three other employees and the failure
of the Company to prove convincingly the lack of
work at the time. There must also be considered, in
fairness, a stipulation that apart from the 5 men
listed in the complaint, 34 others left the Company
in 1966 in circumstances not shown. The facts may
give rise to a suspicion of proscribed motivation,
but the affirmative burden to prove an unfair labor
practice by substantial evidence still remains upon
the General Counsel. I find that in this instance the
evidence as a whole does not support the com-
plaint, and I shall therefore recommend dismissal as
to Jesus Machin.
Renato Martuffi: Martuffi was a mechanic who
went out in a truck to install gates at customer
premises with a helper. He worked 8 months in
1962 and returned in 1964, to remain continuously
until -his discharge on August 26, 1967. He signed a
union card and gave another to an employee inside
the factory. On the sidewalk in front of the plant,
early in May, he explained what the card read to
three Italian-speaking workmen and encouraged
them to sign. He acted as observer-for the Union at
the June 10 election.
On Friday afternoon, August 26, without a word
of warning or advance notice, Joseph Anza,' the su-
pervisor-salesman , told him he was discharged.
Martuffi's testimony, perfectly credible, as to what
Anza said then', is uncontradicted because Anza did
not testify. Martuffi 'asked why he' was being
released, and Anza, answered that "the boss ... was
not satisfied with my work and they could use more
working hours from me . . . . " Martuffi explained
he went to school, and that while he at times did
overtime work to complete a job that might other-
wise be dangerous if left unfinished, he could not
commit himself to a regular workday longer than 8
hours . Anza wanted him to work from 8 a.m. to
5:30 p.m. on a fixed schedule. Ariza then added
there had been 'complaints by customers not
satisfied with Martuffi's work, and mentioned a
"guy in the Bronx which the day before I installed
the job." At the hearing Martuffi said this was a
reference to work he had performed the day be-
fore. He answered Anza this was a " lie," and that
the customer had been in fact satisfied. Martuffi
then asked for a letter of reference and Miss
LaMonica, the, office girl, wrote such a letter, say-
ing, among other things, that he was discharged
"for lack of work." Martuffi refused to accept the
letter because, as he said at the moment, this was
not the reason Anza had given. At this point Vin-
cent Brancato , the owner's brother, entered and
joined in the conversation. When Anza explained
the question of the letter, Vincent Brancato told
him there was no need to give any letter, and none
was given to Martuffi. He left. LaMonica, as a wit-
ness, first said she wrote such a letter but that it was
a form letter stating only the details of Martuffi's
employment. She then added: "I may have put
down some of his capabilities." She then vacillated
again, saying she really did not recall, and now felt
she had not written anything about Martuffi's per-
formance: "... the usual procedure is that I 'do put
down that they are capable, experienced men in
their fields."
Martuffi was back the next day to see Joseph
Brancato. He wanted his pay for the split week and
a better explanation of why he had been released.
At this point of the story there is a conflict in the
testimony. Martuffi testified he asked for a reason
and repeated what Anza had told him, and that
Brancato answered "forget about what my brother-
in-law told you because that is not the reason I am
firing you." Brancato then told Martuffi "that he
BRANCATO IRON WORKS, INC.
see me not happy working there ," but Martuffi
protested he had been happy: "I don't have to be
dancing to be happy. I just like my work there."
Again Martuffi insisted on knowing why he had
been released . Now Brancato said , still according to
Martuffi : " I cannot give you any reason because if I
could, I would tell you what 's the reason."
Somewhere along in the conversation, as Martuf-
fi continued to relate , Vincent Brancato, the
brother, came into the office; he asked Martuffi:
.. if you were happy, why did you go to the union."
To him Martuffi said : "I didn 't call no union. The
union was outside the shop , which they were giving
the cards ." To this Vincent responded: "if you
didn't call the union , why did they make you the
observer of the union ." Martuffi 's final statement
was he did not care about Vincent 's opinion,
because he was not the boss.
In the course of his explanation of the discharge,
Brancato did recall that Martuffi returned the next
day and asked why he had been discharged, but
that his only' response was: "[I ] t's not necessary
that you ask me why. You know why." Vincent
Brancato was not a witness.
Resolution of this question of what was said on
Saturday, August 27, in the office, bears a relation-
ship to a more serious credibility issue arising from
Brancato 's affirmative defense of discharge for
cause . He said he discharged Martuffi because a
few days earlier he had learned that the employee
had insulted a lady customer . Salvator Meli is a
contractor who collaborates with Brancato , in that
they sometimes perform work on the same project
for a single customer . There had been a cement
patio job for some people in Long Island, New
York, where Meli did the concrete and Brancato
the iron railing . Brancato testified that Meli came
to,him and said Mrs. Haggerty , the customer, had
told him she was very upset because a worker had
insulted her . Brancato said the lady had made clear
to Meli she was referring to Martuffi . He continued
to quote Meli, as reporting to him that the lady had
"said what types of men,do you have, what sort of
guys do you have ," and that "Martuffi told the lady
while he was working that he would like to take her
out. "
Meli is an old friend of Brancato . He testified
too, and he said he went to Mrs . Haggerty's house
to collect for the job and that she said "The job is
beautiful but the man wasn't too good .... the man
that put up the railing ...." Meli quoted Mrs. Hag-
gerty as saying "he [Martuffi ] asked her a lot of
questions ... he asked , you beautiful , I would like
to take you out. I would like to do this. I am sin-
gle." Meli also testified the lady told him she was
embarrassed , and' had turned away from the work-
man into her house . Meli added that he had re-
ported all of this to Brancato.
In rebuttal the General Counsel presented Mr.
and Mrs . Dennis Haggerty . They recalled that Meli
came for his pay one Saturday , when they invited
him to have coffee with them . Each denied flatly
79
that the lady voiced any complaint or dissatisfac-
tion with any of the men who had worked at their
home. Mrs . Haggerty even said she told Meli she
had found all the men to be pleasant.
I credit Mrs. Haggerty and her husband; they
were strangers to the proceeding , completely objec-
tive, and most respectable in demeanor . Meli ap-
peared at the hearing to lie. It is simply not true
that Martuffi , a married man, misbehaved. The
Respondent did not file a brief, but presumably its
position would be that whether or not Meli spoke
the truth to Brancato is beside the point , if in fact
he reported such an incident-real or fancied-to
Martuffi 's employer . If Meli said such a thing of
Martuffi , he imagined it, but no reason has been
suggested as to why he should so behave . He stands
so discredited that he cannot be believed in
anything that came out of his mouth.
Brancato's testimony , in turn , viewed in its en-
tirety , is unpersuasive for additional reasons. He
listed a number of incidents that occurred during
Martuffi 's employment which would indicate an un-
desirable employee, although he did not directly at-
tribute the discharge to any past failings. Ap-
parently the purpose here was simply to place the
employee in a poor light . What is significant is that
Brancato did not tell Martuffi , either on the day of
discharge or when he returned for the very purpose
of inquiring, that he was released because of any of
these errors ; nor did Brancato mention the alleged
report of misconduct by Meli. Indeed , according to
his own testimony, he deliberately avoided saying
anything at all. But if in fact he was not concealing
an improper motive , he had no reason to be eva-
sive , particularly were it true , he had a very defensi-
ble one , as he finally asserted at the hearing. Nor
did Meli have reason to lie to him back in August.
Unless, of course, what really happened , and what I
find to be a fact , is that the two of them, Meli and
Brancato-old intimates of 1 I years ' standing both
in business and socially-fabricated the story out of
whole cloth for the express purpose of defeating
this complaint.
Moreover , there is a strong indication that while
Martuffi was testifying , 2 days earlier than Bran-
cato , the employer had not yet finally decided
within his own mind what testimony he would give
in defense . In his effort to discredit Martuffi, coun-
sel for the Respondent asked him on cross-ex-
amination:
Q. Mr. Martuffi , now think very carefully
because you are under oath now . When you
were fired, weren't you told by Mr. Brancato
the reason you were fired was because of the
complaints of Mr. Salvator Meli that you were
insulting customers?
A. No.
Q. Weren 't you also told that part of the rea-
son you were fired was because you were care-
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less, you left equipment and you didn't take care
of it, you lost an expensive piece of equipment?
A. No.
Q. Weren't you also told one of the reasons
you were fired was because you caused direct
damage to a pipe that ended up in an expen-
sive repair job to your employer?
' A. No, I swear again, no, he didn't tell me
that.
With Brancato later admitting he never said a
word to Martuffi about the Haggerty story, nor
gave him any reason for discharge at all, this may
also mean he lied to his own lawyer. Considering
the entire record, and his demeanor at the hearing,
I do not credit Brancato where he testified in con-
flict with other witnesses in the case.
Martuffi did recall that on one job, while he and
another workman were digging a hole for a railing,
one or the other of them broke a hidden un-
derground water pipe, and work had to be stopped.
Brancato said this happened 20 days or a month be-
fore the discharge. A hammer drill was once stolen
from Martuffi's truck because of his carelessness in
not keeping the toolbox locked, as he was supposed
to do. This happened a month or 6 weeks earlier,
according to Brancato. The Employer even told of
an incident when Martuffi lost his way and arrived
at a jobsite 3 hours late; Brancato just told him then
"to forget about it."
Martuffi was a truthful witness. I credit him and
find that . when pressed to say why he had
discharged the employee, Brancato. said he could
not reveal his real reason, and rested on the state-
ment that Martuffi was "not happy" with,the Com-
pany. When Martuffi ridiculed the idea dancing was
a necessary part of work, Brancato's brother, Vin-
cent, clarified the phrase by explaining that un-
happiness was revealed by resorting to a union. As
Martuffi sought to avoid this too, the brother
brought out the matter of having been the union
observer.
Joseph Brancato cannot escape the clear implica-
tion arising from his brother's participation in the
conversation at that moment. He did not tell Mar-
tuffi to pay no attention to the brother; he did not
tell his brother to refrain. Whatever Vincent's true
relationship with the Respondent Company may
have been-authorized agent, or self-styled ad-
visor-Joseph Brancato at least permitted his
brother to create the impression among the em-
ployees that he spoke for the Company.2 Only the
day before Vincent-had overruled Joseph Anza on
the question of the separation letter and instructed
the office girl not to give one to Martuffi. With
Joseph Brancato holding back on whatever his basis
for discharge was, Vincent was filling a void at the
critical moment. In the context of the total conver-
sation and of the relationship , among the partici-
pants , the net effect was adoption , by Joseph, of his
brother 's revealing words, or at least agreement
with them as a message to Martuffi.
I find that the Respondent did not discharge Mar-
tuffi because of any dissatisfaction with his work
performance , that in truth the motivation was to
punish him for his prounion activities , and that by
such discrimination in employment the Respondent
violated Section 8(a)(3) of the Act.
C. Violations of Section 8(a)(1)
As stated, there were 24 production employees in
late May and early June. The final decision to hold
an election on June 10 was reached on May 26,
when the consent agreement was signed. On May
25 the Respondent raised two employees 10 cents
per hour, on June 1 it raised nine others 10 cents
also, and on June 8 it gave like raises to five more
workmen. Never in its history were so great, a
number of employees- 16 out of 24-granted wage
raises in so short a period. There is virtually no
evidence indicating the employees asked for these
raises at that time. Instead, Pietro Russo, Salvatore
Russo, Jose Bravo, Nestor Bustamente, and Arley
Cano, all of whom received increases, said they did
not ask for them. There is also the uncontradicted
testimony of Bravo that at a May 27 meeting of em-
ployees Joseph Brancato promised to give them
raises. Bravo's raise came 4 days later.
In the comparable period of 1965-May and
June-only five employees received raises, when
the size of the whole group was no smaller. The
Respondent came forth with no explanation for this
extraordinary largesse immediately before the elec-
tion. I find, as alleged in the complaint, that the
Respondent gave these raises in order to influence
the employees to vote against union representation,
and thereby violated Section 8(a)(1) of the Act.
The, conclusion is further supported by the simul-
taneous threat of discharge voiced by Joseph Anza
to Beltran, Foreman Pedro's promise of a raise to
Beltran if he did not join the Union, and the unlaw-
ful discrimination in employment following im-
mediately after the election. I also find that Anza's
threat to discharge Beltran, Joseph Brancato's
promise of raises to a group of employees, and
Pedro's promise of a raise to Beltran constituted
separate violations of the statute chargeable to the
Respondent.
D. Alleged Illegal Refusal To Bargain
There are certain essential facts that must be
proved by the General Counsel to support a finding
that an employer violated Section 8(a)(5) of the
' The complaint alleges "Vincent Brancato is, and has been at all times
material herein , an agent of Respondent, acting on its behalf " The Com-
pany's answer , dated December 7, 1966, does not deny, and therefore ad-
mits, the truth of the statement It was not until April 12, 1966, after Mar-
tuffs had related Vincent's contributions to the discharge conversation, that
counsel for the Respondent moved to retract his admission and first as-
serted Vincent was not a spokesman of management
BRANCATO IRON WORKS , INC. 81
Act. Among these are the appropriateness of a bar-
gaining unit, demand for exclusive recognition and
refusal'by the employer, clear authorization to bar-
gain by a majority of the employees in the unit, and
the bad faith of the employer in his rejection of the
request for negotiations. The first and the last of
these components are clear in this case . The ap-
propriateness of an, overall unit of production em-
ployee" is not disputed. That the Respondent was
determined to avoid dealing with the Union if at all
possible is shown persuasively by the raises it gave
just before the election, the threat by Joseph Anza
to discharge ' Beltran if he should vote as he pleased,
the promise by Foreman Pedro to Beltran to in-
fluence his vote , and, of course , the multiple illegal
discharges which followed so quickly upon the
Union's defeat in the balloting.
The fact of there having been a demand and
refusal is established by a stipulation that at the
May 26 Labor Board conference on the Union's
representation petition, which had been filed 10
days earlier, the Union demanded recognition and
Brancato said he wanted an election first, he knew
nothing about cards. It was a curious time to de-
mand immediate bargaining, so soon before the
scheduled election. Of the 13 authorization cards in
evidence, 10 are dated May 2, and the latest May
13. There is something wanting in the oral
testimony of Meyer Tessler, the business agent, and
Louis Vigessi, his organizer, that on about "May 14
or 15," immediately after the 13th card was signed,
they demanded recognition of Vincent Brancato,
and were refused. Vincent has his own business
next door to the Brancato Iron Works, has not been
associated with the Company for some years, and is
in no sense-at least so far as affirmatively shown
on the record-its employee. There is a hollow ring
in the stories of these two men, and their details of
a momentary demand and refusal, at the sidewalk
driveway early one morning, while Vincent Bran-
cato was going to work, are -not in real accord.
Tessler testified that early one morning Vincent
stopped his car in the driveway and asked if the
union agent was "still trying to organize my shop,"
and that he, Tessler,' answered ". . . yes ... but this
time ... I think I have a majority of the cards," and
then invited Vincent to "sit down with us and talk
-to us," and to have an impartial person judge the
cards.
0. Did he make any reply?
A. No, he just drove off and entered the
shop.
Vigessi followed Tessler on the stand and em-
bellished the story. He said it was he who did most
of the talking. "[W]e told Mr. Brancato that we
had achieved a majority of the men in the shop
signing cards indicating that they wanted to be
represented by Local 455 of the Iron Workers. The
only response we got was a negative one.... He
said I don't think you got it. He said not my men.
They are not going to sign up so easy.... He in-
dicated to me that he had these guys under the
muscle." Vigessi then explained he-formed this im-
pression because of Vincent Brancato 's "sneering
attitude and his lack of respect for workers in
general ." Vigessi was a pugnacious , argumentative,
and angry witness, and his demeanor at the hearing
greatly-impaired his credibility. Were the fact of de-
mand and refusal to depend upon his testimony and
that of Tessler, I doubt the finding would stand.
Moreover, in his attempt to prove that Vincent
occupied a desk in Joseph Brancato's office, Viges-
si testified =he saw him there one day while visiting
the real owner, later, but before the election.
Joseph Brancato denied Vigessi was ever in his of-
fice, and the organizer offered no explanation of
what he was doing there, or what he and the com-
pany owner talked about. If the Union's position,
before the election was mutually agreed upon, had
been to obtain immediate recognition , it seems this
office meeting would have been the time to suggest
it to the Respondent. Apparently the union agent
did not ask for bargaining then.
Be that as it may, there is a more serious weak-
ness in the proof of adequate and authentic
authorization by the employees. Virtually none of
them speak English ; they are almost all Italian-or
Spanish-speaking people, and testified through in-
terpreters, as did Joseph Brancato himself. The
union cards are printed in English, using standard
phraseology:
hereby authorize and designate Shopmen's
Local Union No. 455 of the International As-
sociation of Bridge, Structual and Ornamental
Iron Workers (affiliated with the A.F. of L ) to
act as my sole and exclusive agent and
representative for all purposes of collective
bargaining , whether under the operation of the
National Labor Relations Act or otherwise.
At least 10 of the 13 who signed these cards did
not understand a word of print. In an ordinary case
the employee's signature placed on a standard
union card presumptively establishes his intent to
authorize a union to represent him forthwith-for
the card so states clearly. When the card is
completely unintelligible to the employee, there
can be no presumption-a sort of prima facie case
in favor of the complaint, as it were--that he meant
this or that. It would seem that in such a case
something more is required, either by the employee
of what was said to him at the time and his un-
derstanding of the purpose for signing, or by fellow
employees or solicitors of how they translated or
explained the card to him before its acceptance in
writing.
Moreover, with oral testimony of concurrent
conversations-in foreign languages-virtually a
requirement to prove authorization by non-English
speaking workmen, a strong argument can be-'made
that the testimony of the employees themselves
must take precedence over that of the solicitors. In
the end, it is the intent, and therefore the then un-
derstanding of the employee, that is of moment and
not the thinking of any person who may have un-
350-999 0 - 71 - 7
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
derstood English and could read the card. If the sol-
icitor thought he was making himself clear, but the
employee did not get the point, the proof of
authorization in fact becomes very doubtful.
Such was the case of Pietro Russo. He could not
read or write either English or Italian. He was with
his father, Antonio, and his brother, Salvatore, both
employees, in front of-the plant early in May, and
there was a general conversation with Martuffi, the
active instigator. They spoke Italian. The only
testimony by this man Pietro about the purpose of
the card he signed is:
0. Did anybody tell you what that card was
about?
A. I don't remember.
His brother Salvatore, who also knows no English,
first testified Martuffi said to him, when he signed:
"That by signing this card, going to become a union
member." He then added this was "not exactly"
what he understood, but that:
Q. Well, when you signed this card, what
exactly did it mean to you?
A. That having signed so many cards, that
the union would come to the factory and there
would be an election.
He then repeated this is what Martuffi told him.
Two other employees also testified ambiguously.
Jose Bravo:
0. When you signed this, did you believe
you were joining a union?
A. Yes. That there was going to be an elec-
tion afterward.
Manuel Beltran said his wife read the card to him in
both English and Spanish. He then added: "I un-
derstood that by signing the card we were signing in
order to have an election. "3
It is highly doubtful the cards of these four em-
ployees-Pietro Russo, Salvatore Russo, Jose
Bravo, and Manuel Beltran-would support a
definitive finding that all of them had authorized
the Union by their signature to the cards they did
not understand. It is not necessary to answer this
question in this case because another card, that of
Hernan Caro, certainly is not reliable on the record
as it stands, and without counting it, proof of
majority representation in May 1966 fails.
It was stipulated that there were 23 employees at
work at the time. The Company argues for addition
of one Paul Brancato, a cousin of Joseph Brancato.
At the hearing, the General Counsel disputed his
inclusion, but in his brief ignores the question. The
record shows Pau[ Brancato was an hourly paid
mechanic; he is not an owner or officer of the Com-
pany and: there is no evidence he exercised super-
visory authority. His pay was comparable to that of
other production workers performing the same du-
ties. He roust be counted in the bargaining unit and
the total complement thus becomes 24. Thirteen
cards were placed in evidence.
Caro speaks Spanish and knows no English. He
testified that Louis Vigessi, acting as union or-
ganizer, "was after me for 3 days for me to sign the
card, which I refused to sign because I don't know
English and I didn't know what the card con-
tained." He said flatly Vigessi did not speak
Spanish to him. "He spoke to me at the time he
gave me the card but I did not understand what he
told me." I recalled Caro to the witness stand to
remove all doubt as to his testimony. Asked again
whether he had had any conversation with Vigessi,
he replied, through the interpreter: "No, I didn't
have any conversation with him because I only
spoke Spanish. I don't speak English. ... I didn't
understand anything he said."
Vigessi is an Italian. He said he studied Spanish
in school and that his wife was born in Ecuador.
Vigessi testified he solicited the employees in
Spanish and that Caro did not indicate he did not
understand.
I spoke to him about the benefits that might
be gained by joining our organization.
I told him that by signing this card he would
indicate that he would have us negotiate for
him and that he had nothing to loose [sic] and
everything to gain.
Q. In the course of the conversation did
Caro speak to you at all?
Was he responsive in any way?
A. He was responsive to the extent he spoke
with a companion who was with him.
In other words, he didn't speak to me
directly but he spoke to his companion.
I am unable to make an affirmative finding that
Caro intended to authorize the Union to bargain
immediately on his behalf when he signed the card
he could not read. The General Counsel's contrary
contention is not aided by the fact the Union at the
time distributed a leaflet written in three languages,
including Spanish. Caro said he never saw it and I
have no reason not to believe him. No doubt Viges-
si knows some Spanish, probably like the high
school French most Americans boast of before
visiting Paris. He did not even succeed in drawing a
response from Caro, who turned instead to the
Spanish-speaking person standing next to him. In
view of the testimony about planned elections,
much more was said during these solicitation activi-
ties. The question here is a precise one-authoriza-
tion to bargain now-a concept in itself requiring
very exact knowledge of a language before it can be
articulated. Caro said he did not understand the
3 Bravo and Beltran were at the hearing to support the complaint, they
had been wrongfully discharged . There can be no suggestion here , there-
fore, that their testimony of what happened when the cards were signed
was affected adversely to the complaint by intervening coercive conduct of
the Respondent Compare, Liz of Rutland, Inc , 156 NLRB 121.
BRANCATO IRON WORKS, INC.
man, and in the circumstances I believe him. It fol;
lows the General Counsel has not proven he knew
what he was signing , or that he in fact authorized
the Union to represent him then and there . I cannot
deem his card a valid authorization . Without it, the
most favorable view of the case , even assuming all
the other cards could be considered valid , is that
there were 12 cards out of a total 24 employees, in-
sufficient to prove majority . The complaint allega-
tion of illegal refusal to bargain must therefore be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III , above, occurring in connection with its
operations set forth in section I, above, have a
close, intimate , and substantial relation to trade,
traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , I will recommend
that it be ordered to cease and desist therefrom and
take certain affirmative action designed to effectu-
ate the policies of the Act. As it has been found
that the Respondent laid off and then discrimina-
torily discharged four employees , it must be or-
dered to reinstate them, without prejudice to their
seniority or other rights and privileges previously
enjoyed , to their former or substantially equivalent
positions, and make them whole for any loss of pay
they may have suffered by reason of the discrimina-
tory layoffs and discharges . Backpay shall be com-
puted on a quarterly basis in the manner prescribed
by the Board in F . W. Woolworth Company, 90
NLRB 289, and shall include interest at 6 percent
per annum , as provided in Isis Plumbing & Heating
Co., 138 NLRB 716. ' As the nature and extent of
the unfair labor practices committed indicates the
Respondent may hereafter resort to other and like
unfair labor practices , it must also be ordered to
cease and desist from in any other manner infring-
ing upon the rights of its employees as guaranteed
in the statute.
Upon the basis of the above findings of fact, and
upon the entire record in the case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Brancato Iron Works, Inc., is engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Shopmen's Local Union No. 455, Interna-
tional Association of Bridge , Structural and Orna-
83
mental Iron Workers, AFL-CIO, is a labor or-
ganization as defined in Section 2(5) of the Act
3. By discriminatorily laying off Nestor Busta-
mente and Jose Bravo, and by discriminatorily
discharging these two employees and Manuel
Beltran and Renato Martuffi, to discourage mem-
bership in or activities on behalf of the Union, the
Respondent has engaged in and is engaging in un-
fair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By the foregoing conduct, by the threat of Su-
pervisor Joseph Anza to discharge employees
because of their union activities , by the promise of
Supervisor Amadeo Pedro to give raises as induce-
ment to discontinue union activities , and by Joseph
Brancato 's grant of raises to a large number of em-
ployees for the purpose of inducing them to vote
against the Union, the Respondent has engaged in
and is engaging in unfair labor practices in violation
of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, and pursuant to Section
10(c) of the Act, I recommend that the Respon-
dent , Brancato Iron Works, Inc., Queens, New
York City, its officers, agents , successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging or laying off its employees for
having engaged in concerted activities for the pur-
poses of collective bargaining or other mutual aid
or protection.
(b) Threatening to discharge its employees
because of their union activities, promising them
raises in order to curtail their union activities,
granting them raises as inducement to reject a
union , or in any other manner interfering with,
restraining , or coercing its employees in the exer-
cise of the right guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I
find will effectuate the policies of the Act:
(a) Offer Nestor Bustamente , Jose Bravo,
Manuel Beltran , and Renato Martuffi immediate
and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to
their seniority and other rights and privileges, and
make them whole for any loss of pay they may have
suffered as a result of the discrimination against
them, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Notify each of these employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
(c) Preserve and, upon request , make available
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Recommended Order.
(d) Post at its plant in Queens, New York City,
copies of the attached notice marked "Appendix. "4
Copies of said notice, on forms provided by the Re-
gional Director for Region 29, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 29,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.5
IT IS FURTHER RECOMMENDED that the complaint
be dismissed insofar as it alleges illegal discrimina-
tion in the discharge of Jesus Machin and unlawful
refusal to bargain with the Union in violation of
Section 8(a)(5) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT lay off or discharge our em-
ployees for engaging in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection.
WE WILL offer Nestor Bustamente, Jose
Bravo, Manuel Beltran, and Renato Martuffi
immediate and full reinstatement to their
former or substantially equivalent positions,
without prejudice to their seniority and other
rights and privileges, and make them whole for
any loss of pay which they may have suffered
as a result of the discrimination against them.
WE WILL NOT threaten our employees with
discharge, promise them raises, or grant them
raises in order to coerce and induce them into
abandoning collective bargaining or union ac-
tivities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to
form, join, or assist any labor organization, to
join Shopmen's Local Union No. 455, Interna-
tional Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, to bar-
gain collectively through -representatives of
their own choosing, to engage in concerted ac-
tivities-for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
All our employees are free to become or remain,
or to refrain from becoming or remaining, members
of any labor organization.
Dated By
BRANCATO IRON WORKS,
INC.
(Employer)
(Representative) (Title)
Note: We will notify the above-named em-
ployees if presently serving in the Armed Forces of
the United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Fourth Floor, 16 Court Street, Brooklyn,
New York 11201, Telephone 596-3535.
In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 29, in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "