C & D Transfer

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 586 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C & D Transfer and John Buscemi. Case 29-CA-
7453
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 3, 1981, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a brief and the General Counsel filed
an answering brief to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,t find-
ings,2 and conclusions3 of the Administrative Law
Judge and to adopt4 his recommended Order.5
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Respondent excepts to the Administrative Law Judge's finding that
Respondent had knowledge of employee Buscemi's union activities prior
to its discharge of Buscemi. First, while it is true that the General Coun-
sel did not produce Buscemi's application for union membership, which
the Administrative Law Judge concluded was Respondent's motive for
discharging Buscemi, Buscemi credibly testified that he filed such an ap-
plication. Second, while admittedly hearsay, Buscemi credibly testified,
without objection and without contradiction by either Respondent's part-
ner Dappio or employee Ramirez (both of whom testified herein), that
Ramirez told him (Buscemi) that Dappio had told Ramirez that Respond-
ent fired Buscemi because Buscemi filed an application for membership in
the Union. In these circumstances, hearsay testimony is competent.
American Spring Bed Manufacturing Co., d/b/a .4merican Chain Link
Fence Co., 255 NLRB 692, fn. 4 (1981). Further, Respondent's predis-
charge knowledge of Buscemi's application for union membership is evi-
denced by partner Fitapelli's testimony that the Ulion's business agent,
Moran, visted Fitapelli before Buscemi's discharge. Accordingly, we find
no merit in Respondent's exceptions on this point.
3 The Administrative Law Judge made no finding about Respondent's
termination of Scott Lowenthal, the person hired as a truckdriver follow-
ing Buscemi's discharge. Respondent contends that the Administrative
Law Judge ignores the "fact" that Lowenthal, allegedly like Buscemi,
was discharged because he did not have a class 3 driver's license as
shown by the payroll records. The copy of the payroll is not part of the
record herein, since Respondent never attempted to put it into evidence.
More significantly, the record shows and the Administrative Law Judge
found that Respondent has always been indifferent to whether its drivers
had a class 3 driver's license.
' Respondent argues that backpay should not be computed from the
date of discharge because approximately 2 years have elapsed from the
date the charge was filed until the date of the Administrative Law
Judge's Decision. Laches is not a defense to a backpay obligation. South-
eastern Envelope Co., Inc. & Southeastern Expandvelope. Inc. (Diversified
Assembly, Inc.), 246 NLRB 423 (1979). See also N..L.R.B. v. J. H. Rurrer-
Rex Manufacturing Co., Inc., e. al., 396 U.S. 258 (1969).
5 Member Jenkins would provide interest on the backpay award in ac-
cordance with his partial dissent in Olympic Medical Corporation, 250
NLRB 146 (1980).
258 NLRB No. 80
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, C & D Trans-
fer, Jamaica, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order.
DECISION
STATEMENT OF THE CASE
HERZEI. H. E. PLAINE, Administrative Law Judge:
The question presented is whether, in violation of Sec-
tion 8(a)(3) and (1) of the National Labor Relations Act
(the Act), Respondent, a freight transfer company, oper-
ating as a nonunionized company, discharged its employ-
ee John Buscemi in August 1979, because he applied for
membership in Teamsters Local 295 (the Union) in an at-
tempt to bring union representation into the employer-
employee relationship.'
At the hearing, Respondent offered a number of rea-
sons for the discharge in support of its denial of any
wrongdoing under the Act.
The case was heard by me in Brooklyn, New York, on
August 11, 1980. Both the General Counsel and Re-
spondent made oral argument after the taking of the evi-
dence. The General Counsel supplemented the oral argu-
ment with a letter memorandum and Respondent filed a
brief. 2
Upon the entire record, including my observation of
the witnesses and consideration of the oral and written
arguments, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a copartnership composed of partners
Frank Fitapelli and Constantine Dappio, doing business
under the trade name C & D Transfer. Respondent's
principal office and place of business is at 14715 183d
Street, Jamaica, New York, where it has been engaged in
the storage, handling, and transfer of air freight and in
related services.
It has been found that, as stipulated to by the parties:
(a) In the year prior to the filing of the complaint, a
representative period, in the course of its business oper-
ations within the State of New York, Respondent de-
rived gross revenues in excess of $50,000 for the transfer
of freight and commodities in interstate commerce pursu-
'The complaint was filed on October 31, 1979, on a charge filed by
Buscemi on September 7, 1979
2 The General Counsel moved for a few corrections in the transcript of
her oral argument, but, because they are typographical errors (which
typify the whole transcript) and the sense of the text can nevertheless be
understood, I felt it unnecessary, and perhaps misleading, to select these
few for correction without going through the whole transcript and order-
ing total correction. Hence I have not ordered any correction of the tran-
script
586
C & D TRANSFER
ant to arrangements with and as agent for export bro-
kers, including Marquis Transport, Dumont Shipping,
Scallop Material, Hagman and Baxt, and Mohigan Inter-
national, each of whom operates between and among
various States of the United States.
(b) By virtue of the operations described in paragraph
(a), Respondent functioned and functions as an essential
link in the transportation of freight and commodities in
interstate commerce.
(c) In the same representative period described in para-
graph (a), Respondent in the course of its business oper-
ations performed services for Marquis Transport,
Dumont Shipping, Scallop Material, Hagman and Baxt,
and Mohigan International, each of which enterprises an-
nually performs services valued in excess of $50,000 out-
side the State of New York and for other enterprises lo-
cated outside the State of New York.
(d) Respondent has been at all material times and is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
As the parties also agree, Local 295, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, has been at all material times
and is a labor organization within the meaning of Section
2(5) of the Act.
11. RESPONDENT'S BUSINESS OPERATIONS
Respondent is a company that has engaged for the past
5 or 6 years in the storage and transfer of merchandise
from domestic sources to air carriers at John F. Kennedy
International Airport in New York, for delivery to for-
eign destinations.
Respondent's place of business is about 1-1/2 miles
from the Kennedy Airport. The merchandise intended
for transshipment by air was delivered to Respondent's
warehouse awaiting orders from the brokers with whom
Respondent dealt. Upon receipt of the orders, Respond-
ent loaded the identified merchandise on its trucks and
delivered the orders and merchandise to the designated
air carriers at the airport.
For this purpose, Respondent made daily truck runs,
with regularity on Mondays through Fridays, between
its warehouse and the airport.
In July and August 1979 (which embraced the period
in which John Buscemi was employed by Respondent)
and for a considerable period before and after, Respond-
ent operated two trucks for the transfer of the intended
air freight from warehouse to airport. One was a blue
color, flatbed or rollerbed type truck, that was rated as
having a maximum gross weight of over 18,000 pounds.
This truck was owned by Respondent, and, as described
by employee Buscemi, handled "consolidations" or "con-
solidation loads" destined for more than one customer.
The second truck was a yellow color, smaller truck,
with a maximum gross weight rating of under 18,000
pounds. This truck was rented by Respondent from the
Hertz Corporation. Because Respondent used the truck
to carry loads called "straight" shipments, destined for a
single customer, the truck was known as the "straight"
job.
The owners arid operators of Respondent have been
partners Frank Fitapelli and Constantine Dappio. Both
had been employees in a similar storage and transfer
business, who joined in forming their own Company-
Respondent C & D Transfer. The Company had two em-
ployees, each of whom drove one of the two trucks,
stored merchandise, pulled merchandise to fill orders,
and loaded the trucks for the airport deliveries. Fitapelli
(known as Chi Chi) and Dappio (known as Dappy) par-
ticipated in the physical handling of merchandise for fill-
ing orders and loading trucks. For such work, there was
a forklift and handcart available.
The two truckdrivers in July and August 1979 were
Blas Ramirez and John Buscemi.
Employee Ramirez came to work for Respondent in
March 1978 and remained until the end of March 1980,
when he left. Hence he was in the continuous employ-
ment of Respondent before, during, and after Buscemi's
employment by Respondent.
Ramirez initially drove the small rental truck or
"straight" job for the first year of his employment. He
then switched to driving the larger truck, the company
owned flatbed or rollerbed truck, starting in the second
year of his employment. When Buscemi was hired in
July 1979, Ramirez was driving the company-owned flat-
bed. Ramirez continued to be the flatbed driver during
Buscemi's employment and after Buscemi was fired, until
October 1979, when the company-owned flatbed was re-
placed by a flatbed or rollerbed truck rented from the
Hertz Corporation (G.C. Exh. 4), and Ramirez drove
that until he departed Respondent's employment in 1980.
Employee Buscemi was hired on July 5, 1979, by
Dappio. In joining Respondent, Buscemi was switching
from trucking work with Parisi, who was also in the
business of handling air freight and was an operator
known to the two operators of Respondent. Buscemi was
a replacement for Respondent's former second employee
who had been driving the smaller of the two trucks, and
Buscemi was assigned to drive and drove the smaller
truck.
Ramirez worked a shift that started earlier than and
overlapped Buscemi's shift, which started at 1 p.m. and
ran to 9 p.m., 5 days per week, Monday through Friday.
Buscemi's pay was $250 per week. Ramirez' pay was
higher and amounted to $325 per week when he left in
1980. The employees were paid on Friday of each week
in cash, and not by check.
Buscemi usually found his truck loaded for its first de-
livery when he arrived at the warehouse at his starting
time of I p.m. The drive to the airport was brief-10
minutes-but a delivery generally took several hours be-
cause of the time spent in the lines of trucks at the con-
gested airport receiving docks, each truck waiting its
turn to unload. Apart from the loading of his first daily
delivery, Buscemi shared the work of storage and of
loading trucks with employee Ramirez, also participated
in by the two partners Fitapelli and Dappio.
II1. BUSCEMI'S APPROACH TO THE UNION AND
DISCHARGE
Fitapelli and Dappio were members of the Union from
their days as fellow employees of the air freight transfer
business that operated as a union shop. Individually, they
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were beneficiaries, at the time of the hearing and earlier,
of union benefits related to a union health plan, accord-
ing to Fitapelli. However, their partnership operation of
Respondent was not unionized. Fitapelli testified that to
hire an employee, as Respondent hired Buscemi at $250
per week, on the union scale would cost Respondent 20
percent or $50 per week more for health coverage and
other benefit payments, or a total of $300 per week,
which he and his partner, said Fitapelli, were not about
to pay.
The union local office was just around the corner from
Respondent's place of business, and the union agent in
charge in August 1979 (and earlier) was Jack Moran,
whom Fitapelli and Dappio knew, said Fitapelli, from
Moran's days as union delegate to the air freight shop in
which the two partners had worked as employees.
In the seventh week of his employment, on Tuesday,
August 21, 1979, according to Buscemi, he walked into
the Union's local office at noon, before reporting to
work for the 1 p.m. start of his shift. Buscemi met, and
introduced himself to, Union Agent Moran as an em-
ployee of C & D Transfer, and asked if the Company
were a union shop. Buscemi testified that Moran checked
some record and told him that C & D Transfer was a
union shop, and asked did Buscemi want to apply for
union membership. Buscemi said yes, and filled out a
union card application for membership. Moran asked
him, said Buscemi, if he realized the consequences of his
action. When Buscemi answered no, Moran told him he
was taking the chance of either being hired as a union
driver or of being fired. Buscemi replied that he would
take his chances. Moran then informed Buscemi that he
(Moran) would stop by Respondent's place of business
and let Respondent know that Buscemi had applied for
union membership, and, further, that he (Moran) would
see that Buscemi was put into the Union.
According to Buscemi, he then reported to work, as
usual, at p.m. and took his first truck run to Kennedy
Airport that required about 3 hours to complete. On
Buscemi's return to the warehouse around 4 p.m., Fita-
pelli asked Buscemi for his social security number,
which, Buscemi testified, he had previously given Fita-
pelli when he started his employment. After reloading
his truck, Buscemi took his second run to the airport,
and returned to the warehouse at night.
The next day, Wednesday, August 22, upon reporting
for work at his usual I p.m. start, Buscemi was asked by
Fitapelli to come with him for a talk in an office of the
warehouse. Buscemi testified that Fitapelli told him he
would have to lay Buscemi off because business had
become slow, and asked for Buscemi's keys. Fitapelli
added that the layoff would be temporary.
Buscemi asked Fitapelli if the layoff had been brought
on because he went to the Union, and Fitapelli replied
that he knew nothing of the Union. Buscemi persisted
that if the shop were a union shop then the drivers
would have to be union. Fitapelli answered that this was
not true and that he knew nothing about the Union.
Buscemi handed his keys to Fitapelli and left. As Bus-
cemi left, Fitapelli told him to call back in a couple of
days and Respondent would see if there were any work
for him. Nevertheless, Fitapelli handed Buscemi a check
paying him off for the prior 2 days he had worked that
week. This was the only time Respondent paid Buscemi
by check. All previous pay was in cash, as was Respond-
ent's usual custom in paying its employees.
The reality that the so-called layoff was a discharge
was confirmed by two events, other than the unusual
payment of wages by check.
On the Friday of that week, August 24, when Buscemi
called to inquire about work as Fitapelli had suggested
he do, Dappio took the call and told Buscemi that Re-
spondent had no work for him.
In the same week or the week following discharge,
Respondent hired Scott Lowenthal as Buscemi's replace-
ment to drive the smaller, yellow, straight truck that
Buscemi had driven.
In that connection, Fitapelli first testified that it was 2
or 3 weeks after Buscemi's employment was terminated
that Lowenthal was hired to replace Buscemi. On being
pressed, concerning his earlier statement to a Board
agent, Fitapelli changed his testimony to say it was I or
2 weeks after Buscemi's discharge that replacement em-
ployee Lowenthal was hired.
Respondent's bookkeeper, Richard Calta, referring to a
payroll ledger book in which he said he made entries
from slips of paper provided him, by Fitapelli, identified
Lowenthal's start as August 30 (a Thursday) which, if
accurate, would have been 8 days after Buscemi's dis-
charge. However, on a page marked week ending
August 24, 1979 (a Friday), in which final payment in
dollars to Buscemi was accurately shown for the first 2
days of the week (which were August 20 and 21), pay-
ment in dollars to Lowenthal for the last 2 days of the
week was recorded after "started August 30," but the
"30" was written over another date that appeared to be
in the "20's" though not clear enough to decipher. Al-
though the exhibit was identified as General Counsel's
Exhibit 3, Respondent declined to relinquish the original
for inclusion in the record.
Nevertheless the described circumstances indicate that
Buscemi's replacement was almost immediate, probably
on August 23, the day after he was fired, but in no event
later than August 30.
After an initial denial, Fitapelli admitted at the hearing
that Union Agent Jack Moran had telephoned him and
had come to see him before the discharge of Buscemi. Of
the telephone conversation, all he could remember, said
Fitapelli, was that Moran asked him if John Buscemi
were an employee of Respondent's, to which Fitaeplli re-
plied yes. Of Moran's visit to the office, Fitapelli said he
could remember none of the conversation.3
However, Buscemi testified that in September 1979,
shortly after his discharge and filing with the Board of
the unfair labor practice charge of September 7 against
Respondent, he went back to the warehouse and visited
with employee Ramirez (nickname Richie). According to
Buscemi, Ramirez told him that the partners knew that a
Labor Board case was going on, and that Dappio told
3 Union Agent Moran did not testify. Buscemi testified that Moran re-
tired from the Union and was living in California.
588
C & D TRANSFER
him that John Buscemi had gone to the Union and had
to be fired because of it. 4
Again, after some preliminary hedging and denials, Fi-
tapelli admitted at the hearing that, "in laying off" em-
ployee Buscemi, the only reason he gave Buscemi was
that business was slow (the expression used was, "work
was slow"), and that he gave Buscemi no other reasons;
and Fitapelli further admitted that the reason he gave
Buscemi was not true, that business (work) was not slow.
IV. RESPONDENT'S DEFENSES
Respondent's counsel listed at the start of the hearing
a number of alleged reasons for the discharge of Bus-
cemi, none of which had to do with a slowdown in Re-
spondent's business.
Nevertheless, as set out in heading III, above, after a
preliminary attempt at obfuscation, Respondent's witness,
Fitapelli, made obvious in his testimony that the only
reason given to Buscemi for his discharge on August 22,
1979, was that business was slow, notwithstanding the
fact that business was not slow. Fitapelli admitted that he
had repeated this same reason for discharge, as well as
the confession that the reason was not true, to the inves-
tigating Board agent on October 2, 1979. Hence it would
appear that whatever other reasons Respondent sought
to attribute at the hearing as the causes for discharge
were afterthoughts offered in an attempt to cover over
the false reason given to the discharged employee and
later to the Board agent.
However, apart from being afterthoughts, these new
reasons given at the hearing were themselves specious, as
analyzed below.
Alleged Insufficient Driver's License
Respondent's counsel contended that Buscemi had an
insufficient driving license, meaning that Buscemi had a
class of driver's license that would not permit Buscemi
to drive a truck having a maximum gross weight in
excess of 18,000 pounds.
Under New York law, the vehicle and traffic law as it
existed in 1979 and 1980,5 there were five classes of driv-
ers' licenses issuable to persons age 18 and over for the
operation of passenger vehicles and specified commercial
vehicles. Classes 2, 4, and 5 licenses limited the driver,
4 Buscemi's testimony, as to what Ramirez told him Dappio said was
the cause of Buscemi's discharge, was hearsay but was unobjected to at
the hearing. Moreover the testimony was given in the presence of both
Ramirez and Dappio. Both testified at the call of Respondent (Ramirez
also testified at the call of the General Counsel), and neither witness
denied the alleged conversation between them nor did Dappio deny what
was attributed to him in the conversation. These circumstances lend
trustworthiness to the hearsay statement, which may be used for its pro-
bative value, compare Plumbers, Steamfitters, and Refrigeration Local 469
(Precisionaire Inc.. d/b/oa Mechanical Balancing Company), 195 NLRB 700,
702, fn. 8 (1972); and see Alvin J. Bart and Co.. Inc., 236 NLRB 242
(1978). However, I have used the statement for its corroborative effect
regarding facts established by other than hearsay evidence.
s McKinneys Consolidated Laws of New York, book 62A, art. 19, sec.
501, entitled "Licensing of Drivers" and subtitled "Drivers' Licenses and
Learners' Permits." Counsel for the General Counsel attached the perti-
nent provisions to her post-trial memorandum. The excerpt provided by
the counsel for Respondent with his brief was an outdated version of sec.
501 prior to April , 1973, dealing with operators and chauffeurs licenses,
replaced by N.Y. Laws 1972, Chapter 780, sec. 7, effective April 1, 1973,
substituting the current licensing of drivers.
insofar as a truck was concerned, to "any truck having a
maximum gross weight of eighteen thousand pounds or
less." Classes I and 3 licenses had no such limitation and
permitted the driving of "any truck," therefore imposing
no weight limitation.
However, as Fitapelli (and Buscemi and Ramirez) tes-
tified, Buscemi was hired to drive and drove the small
rented truck, rated at maximum gross weight of less than
18,000 pounds, and Buscemi did not need a class 3 (or
class 1) license to lawfully perform his work. Anyone of
the five classes of drivers' licenses was sufficient. As Fi-
tapelli (and Buscemi and Ramirez) also testified, Ramirez
was the driver of and drove the larger, over 18,000-
pound truck, owned by Respondent. 6
Fitapelli, in describing his discussion with Buscemi, on
August 22, when Fitapelli fired Buscemi, initially
claimed he might have told Buscemi, in addition to tell-
ing him that business was slow, that Respondent was
about to acquire a second over 18,000-pound truck re-
quiring the driver to have a class 3 license, and that Bus-
cemi could not work there without a class 3 license. This
would, of course, have been quite inconsistent with tell-
ing the employee whom he was discharging that he was
being discharged because business was slow-and later in
his testimony Fitapelli backed off from the inconsistent
claim and testified (as already recorded above) that he
told Buscemi only that business was slow.
Besides, there was no pending deal for a second larger
truck. It was not until October 23, 1979, 2 months after
the discharge, that Respondent rented an over 18,000-
pound flatbed or rollerbed truck (see G.C. Exh. 4) to re-
place and not to supplement the flatbed or rollerbed
truck that Respondent had owned; and, as employee Ra-
mirez testified, he drove that truck and was the only
driver of the one flatbed operated by Respondent right
into early 1980 when Ramirez left Respondent's employ-
ment.
An even more significant indication that the alleged in-
sufficiency of driver's license was not involved in the
discharge was the fact that the new driver, who was
almost immediately hired to replace the discharged Bus-
cemi, Scott Lowenthal, did not have a class 3 license (or
equivalent) to operate the flatbed truck and never ob-
tained one, said Fitapelli, and was hired to drive and
drove the smaller truck, as his predecessor Buscemi had
done.
The crowning point, establishing that at the time of
Buscemi's discharge Respondent was totally indifferent
to, if not unaware of, the need for a class 3 (or class 1)
driver's license in operating the over 18,000-pound flat-
bed or rollerbed truck, was that both before, during, and
after Buscemi's employment Ramirez operated the flat-
bed with only a class 4 license that had the 18,000-pound
weight limitation, and never obtained a class 3 (or equiv-
alent) license, and he so testified, without contradiction.
6 Buscemi testified that when hired he was asked no questions about his
driver's license nor was anything said to him about a license thereafter.
Partner Dappio claimed he told Buscemi he needed a class 3 license but
lamely added that he did not recall what Buscemi answered. In view of
the total testimony herein concerning the driving situation, I find Dap-
pio's claim incredible
589
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was not until the end of October 1979, 2 months after
Buscemi's discharge, when Respondent rented from
Hertz Corporation the flatbed truck to replace the flat-
bed Respondent had owned, that Respondent suggested
to Ramirez that he acquire a class 3 license. He went
through the preliminary motions of acquiring a class 3
driver's license by getting the learner's permit for class 3,
but never took the required road test and never obtained
the class 3 license. His use of the learner's permit in driv-
ing the flatbed by himself, as he did, without the pres-
ence in the truck, and immediate supervision and control,
of a person with a class 3 or class 1 license, was, of
course, invalid in violation of section 501.5(a) of the stat-
ute, see fn. 5, supra.
Respondent's contention that a cause for discharge of
Buscemi was that he lacked a sufficient driver's license
was wholly unfounded.
Alleged Failings in Performance
Fitapelli testified, at an early point, that his real reason
for discharging Buscemi was that Buscemi could not
handle the work and that Fitapelli told Buscemi so when
he fired him. However, Fitapelli changed his testimony
and said he did not tell this to Buscemi when he dis-
charged him because it would hurt Buscemi's chances of
getting another job.
Fitapelli almost immediately changed his reason to say,
he did not tell Buscemi he could not handle the work be-
cause he did not want to embarrass Buscemi by telling
him so. Parenthetically, Fitapelli recognized that telling
Buscemi that he could not do the work would not
jeopardize his getting another job. So, continued Fita-
pelli, he did not tell Buscemi he could not do the work
but instead told him that he could not work for Re-
spondent any more because he did not have a class 3
driver's license, and added that he might also have said
because business was slow.
Finally, Fitapelli changed his testimony again, this
time to say that the sole reason he gave Buscemi for the
discharge was that business was slow. And, concededly,
business was not slow.
The only alleged reason behind Fitapelli's belief that
Buscemi could not handle the job was the claimed recol-
lection of one incident when, in loading a truck, Buscemi
supposedly complained that the lifting was too heavy.
Fitapelli could not remember when this incident took
place or the kind or weight of the packages, and conced-
ed that he never told Buscemi he was a complainer or
that he was not doing his job competently. Correlatively,
Buscemi testified that there was no criticism of his work
or reprimands or warnings by the partners, and they tes-
tified to none, even including the one time in July that
Buscemi drove the truck to his home, nearby the ware-
house, around 6 p.m. for a bite to eat. Dappio testified
that he questioned Buscemi as to where he had taken the
truck, and when Buscemi replied, home in order to eat,
nothing more was said, as both Dappio and Buscemi tes-
tified. Respondent never told Buscemi not to take the
truck home, and had no written work rules on this or
any other subject.
In addition, Buscemi testified that he never complained
about material being too heavy to lift, or that there was
anything wrong with his back (as Respondent's counsel
claimed, without any supporting testimony from the
partners); and Ramirez corroborated this testimony,
saying he had never heard Buscemi complain about his
back or that material was too heavy to lift or carry.
There appears to have been no basis in fact for Re-
spondent's claim at the hearing that employee Buscemi
was unable to perform, or had not performed, his work
competently.
v. UNFAIR LABOR PRACTICE FINDINGS
As set out under headings III and IV, above, the
reason given by Respondent to Buscemi for his dis-
charge, and repeated to the investigating Board agent,
that business was slow, was false; and the additional rea-
sons, asserted by Respondent for the first time at the
hearing, that Buscemi had an insufficient driver's license,
and that Buscemi was not competent to handle the job,
were equally false. They proved to be so largely by ad-
missions of Respondent, coupled with contradictory and
shifting testimony and afterthoughts on Respondent's
part.
All of these reasons were given as pretext to cloak the
real reason for the discharge; namely, that Buscemi had
applied to the Union for membership. The falsity of the
alleged reasons for the discharge, coupled with Respond-
ent's admission that it knew that Buscemi had gone to
the Union and that Respondent would not tolerate em-
ploying him as a union member or maintaining a union-
ized shop, makes inevitable the inference and conclusion
that the only and real reason for the discharge of Bus-
cemi was retaliation for his having applied for union
membership and to discourage union membership of Re-
spondent's employees. Indeed, Respondent advised re-
maining employee Ramirez that discharge was the conse-
quence of applying to the Union for membership, in itself
a violation of Section 8(a)(l) of the Act.'
Respondent's discharge of Buscemi violated Section
8(a)(3) and () of the Act. See N.L.R.B. v. Ulbrich Stain-
less Steels, Inc., 393 F.2d 871, 872 (2d Cir. 1968), holding
that the stated ground was not the real ground for the
discharge; Shattuck Denn Mining Corporation (Iron King
Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir. 1966),
holding that the stated ground was designed to conceal
the unlawful moti ve; and note, Limestone Apparel Corp.,
255 NLRB 722 (1981), on the meaning of a finding of
pretext in analysis of motive.
CONCLUSIONS OF LAW
I. By discharging John Buscemi on August 22, 1979,
because he applied for union membership, and in order
to discourage union membership of its employees, Re-
spondent engaged in an unfair labor practice within the
meaning of Section 8(a)(3) and (1) of the Act.
i Contrary to Respondent's contention, the fact that the General Coun-
sel did not produce Buscemi's application for membership in the Union
does not detract from the finding of an unlawful discharge. The unlaw-
fulness was sufficiently made out on the showing that Respondent dis-
charged Buscemi either on its knowledge or belief that Buscemi had gone
to the Union seeking membership.
590
C & D TRANSFER
2. By informing its employee Bias Ramirez that dis-
charge was the consequence of an employee applying for
membership in the Union, Respondent interfered with
the Section 7 rights of its employees, and thereby en-
gaged in an unfair labor practice within the meaning of
Section 8(a)(1) of the Act.
3. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It will be recommended that Respondent:
(1) Cease and desist from its unfair labor practices.
(2) Offer to reinstate John Buscemi, with backpay
from the time of discharge on August 22, 1979, said
backpay to be computed on a quarterly basis as set forth
in F. W. Woolworth Company, 90 NLRB 289 (1950), ap-
proved in N.L.R.B. v. Seven-Up Bottling Company of
Miami, Inc., 344 U.S. 344 (1953), with interest as pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).8
(3) Post the notice provided for herein.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issued the following recommended:
ORDER 9
The Respondent, C & D Transfer, Jamaica, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or threatening to discharge an employ-
ee because he has applied or applies for union member-
ship.
(b) Informing an employee that discharge is the conse-
quence of applying for union membership.
(c) Discouraging employees from support of or mem-
bership in the Union or other labor organization by dis-
charge or other discrimination affecting their tenure or
condition of employment.
(d) In any like manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer John Buscemi immediate and full reinstate-
ment to his former job, or, if that job no longer exists, to
a substantially equivalent position, withouy prejudice to
his seniority or other rights and privileges.
(b) Make John Buscemi whole, in the manner set forth
in the section of this Decision entitled "The Remedy,"
See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
g In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
for any loss of earnings incurred by him as a result of his
discharge on August 22, 1979.
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to ascertain the backpay due under the
terms of this Order.
(d) Post in its warehouse at Jamaica, New York,
copies of the attached notice marked "Appendix."'° Im-
mediately upon receipt of said notice, on forms provided
by the Regional Director for Region 29, Respondent
shall cause the copies to be signed by one of its author-
ized representatives and posted, the posted copies to be
maintained for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
J In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE WILL NOT discharge or threaten to discharge
employees, or inform employees that discharge will
result if they have applied or apply for union mem-
bership.
WE WILL NOT discourage employees from sup-
port of or membership in the Union or other labor
organization by discharge or other discrimination
affecting tenure or conditions of employment.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the National Labor Relations Act.
WE WILL offer John Bucemi his former or like
job, and WE WILL give him backpay with interest
from the time of discharge on August 22, 1979.
C & D TRANSFER
591