D.H.L. Enterprises, Inc.

National Labor Relations Board - Board Decisions

Dec 26, 1978

239 N.L.R.B. 1037 (N.L.R.B. 1978)

D. H. 1. Enterprises, Inc. and Joaquim Clemente.
Case 2-CA- 14970
December 26, 1978
DECISION AND ORDER
BY MEMBERS PENELLO. MURPHY. ANt) TRL ESDAL
On July 26, 1978, Administrative Law Judge Irwin
Kaplan issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
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, findings.' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
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, D. H. I. Enterprises.
Inc., Yonkers, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
IRespondent has excepted to certain credibililt findings made hs the
Administrative Law Judge, It is the Board's established policy not Ito o-er-
rule an Administrative Law Judge's resolutions with respect to crediblht,
unless the clear preponderance of all oif the relevant es;dence cons lnres us
that the resolutions are incorrect Standard Dri .4all Prolduclt 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
In sec. Ill of his Decision. the Administrative LJ-a Judge referred io the
laborers as having complained to the shop steward aboul. inter a/la. hasing
received only one fringe benefit stamp per hour rather than two per hour as
provided for in the contract. The record discloses. however. that the con-
tract in fact provided for oine stamp per hour and that the laborers comp-
laints concerned Respondent's issuing one stamp for evert 2 hours vorked
This apparently inadvertent error is insufficient to affect our decision
Member Murphy agrees that it was proper to rely on the affidavit of
Respondent's secretary-treasurer. Martin Ginshurg. as an admission against
interest to establish that Ginsburg told Shop Steward Joaquim ('lementc to
come to him to work out employee complaints before going to the tinlin
Compare her dissent in Alvin J. Barn and Ca., Inc. 236 NLRB 242 (19781
Although Member Murphy finds Pertenmuln In, . 236 NI RB 8(4 119781
in which she dissented, is factually distinguishable, she Joins her colleaguels
in adopting the Administrative Iaaw Judge's finding that the lemente,
would have been recalled from layoff but for their union and protected
concerted activities.
D. H. I. ENTERPRISES, INC.
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN. Administrative Law Judge: This case was
heard before me in New York City, New York, on Novem-
ber 28 and 29. 1977. On June 13, 1977, Joaquim Clemente
filed charges alleging that D. 1. I. Enterprises, Inc.
(herein called the Respondent), and Local No. 55 of the
Laborers' District Council of Westchester and Putnam
Counties, New York, of the Laborers' International Union
of North America, AFL-CIO (herein called the Union)
violated Section 8(a)(3) and (I) and 8(b)(IXA) of the Na-
tional Labor Relations Act, as amended (herein called the
Act), respectively. The charges culminated in an order con-
solidating cases, consolidated complaint and notice of hear-
ing which issued on August 3, 1977. Thereafter, the allegations
against the Union were disposed of and on November I 5.
1977, an order severingcases and amending complaint issued.
The complaint against the Respondent was amended further
at the hearing.
In substance, it is alleged that Respondent threatened its
employees in violation of Section 8(aXI) of the Act with
layoffs if they continued to complain about not receiving
the proper wages and union fund stamps under the terms
of the collective-bargaining agreement. It is further alleged
that on May 27, 1977, Respondent violated Section 8(a)3)
and (I) of the Act by laying off Joaquim Clemente, Jose
Clemente, and Vincent Clemente for, inter alia, complain-
ing that they were not receiving full benefits under the
terms of the collective-bargaining agreement. Still further,
it is alleged that Respondent, since on or about May 27,
1977, violated Section 8(a)(3) and (I) of the Act by refusing
to recall Joaquim Clemente, Jose Clemente, and Vincent
Clemente because they engaged in protected concerted and
related union activities. In its answer (amended at the hear-
ing), the Respondent conceded, inter alia, certain facts with
respect to its business operations and the supervisory and
agency status of individuals as alleged, but it denied all
allegations that it committed any unfair labor practices.
FIN)itN(S (OF FA(-
I S RSI ICHON
Respondent, a New York corporation, is engaged in the
construction, rehabilitation, and sale of apartments and
condominiums. At all times material herein Respondent
has maintained its principal office and place of business in
the City of Yonkers, State of New York, and various con-
struction sites in the State of New York. During the past
year, Respondent, in the course and conduct of its business
operations, derived g'oss revenues therefrom in excess of
$500.000, Dunng the same period of time, Respondent pur-
chased building supplies and equipment and other goods
and materials valued in excess of $50,000 in connection
with the operations of its construction business which were
transported and delivered in interstate commerce directly
from States other than the State of New York. Resondent
admits, and I find, that the Respondent is an employer
1037
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,' I
make the following findings:
11I. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of Events
In September 1976, Respondent commenced construc-
tion work on a project called Village Green, which in-
volved a conversion of apartments into condominiums. By
the spring of 1977 2 Respondent had begun construction
work on a second project involving a townhouse devel-
opment called Waldon Wood. Both of the aforementioned
projects are located in the village of Dobbs Ferry in the
State of New York and are I mile apart. On May 6, Martin
Ginsburg, secretary-treasurer and a principal of Respon-
dent, executed a collective-bargaining agreement 3 with the
Union, subject to certain conditions expressed in corre-
spondence between Ginsburg and the union attorney.
4 The
agreement by its terms was effective from May 1, 1976,
until April 30, 1978, and covered laborers employed only at
the Waldon Wood location and new projects, not the Vil-
lage Green site. Prior thereto, Waldon Wood and Village
Green were nonunion projects. On Monday, May 9, Jack
Ferrara, the union business manager, appeared at the Wal-
don Wood location and informed the laborers that Gins-
burg had signed a contract which provided, inter alia, $7.90
hourly wages and one stamp per hour which represented
fringe benefits.5 The total hourly package of wages and
fringe benefits amounted to $10.76. Prior thereto, the la-
borers at both projects were paid approximately $6.25 per
hour. Ferrara informed the laborers on May 9, that, as of
that date, Waldon Wood was a union project and designat-
ed Joaquim (Jack) Clemente as shop steward. Joaquim
Clemente worked on the Waldon Wood's project with his
brother Vincent Clemente, his nephew Jose Clemente, An-
tonio Pedrosa, an in-law, and approximately three other
laborers. On May 13, some of the laborers, including Vin-
cent and Jose Clemente, complained to shop steward Joa-
quim Clemente that they had received only one stamp and
$7.07 per hour in their pay envelope rather than the con-
tractual hourly rate of $7.90 and 2 stamps. On or about
I The Board's Rules and Regulations do not contain any provision for the
filing of reply briefs. Accordingly, counsel for Respondent's request for
permission to file a reply brief is hereby denied.
P All dates hereinafter refer to 1977 unless otherwise indicated.
3G.C. Exh. 2.
4 G.C. Exhs. 3a, b, c, and d.
5 The fringe payment benefits on an hourly basis under the contract are
as follows: Wages, $7.90; Pension, .85: Welfare, .95; Vacation and Holiday,
.75; Ind. Imp. Fund, .07; Adm. dues, .24; and Total, 10.76.
May 18, at the Waldon Wood jobsite, Joaquim Clemente
reported the employees' complaints about the shortage in
wages and stamps to Union Business Manager Ferrara.
Ferrara then visited with Jimmy Connolly, acting superin-
tendent 6 at Waldon Wood, and told him that the men had
not received the proper amount of stamps. Connolly wrote
down the names of the seven or eight laborers and said that
he would transmit the information to Ginsburg. Later that
afternoon, Ferrara also phoned Ginsburg and told him di-
rectly about the shortage in the employees' pay envelopes.
Within a few days, Ginsburg met with Joaquim Clemente
at the Waldon Wood site and voiced his displeasure that
the laborers complained to the Union about the stamps.
Ginsburg told Clemente that if he or the other laborers had
any complaints that he, Clemente, as shop steward, should
come to Ginsburg to work out the problem before going to
the Union. However, Ginsburg cautioned Clemente that if
the laborers continued to complain, they faced a layoff.
7
Sometime during the week of May 23, Respondent antici-
pated a brief layoff. The laborers were involved in touching
up the landscaping for the preconstruction sales opening
which took place approximately I week later. On or about
Wednesday afternoon, May 25, the decision was made that
the layoff would occur that Friday. On Friday, May 27, at
about 4:30 p.m., Connolly gave Jose Clemente his pay-
check and declared "that there was going to be a layoff
because we (Respondent) more or less had everything
caught up" and that today was the last day. However, Con-
nolly took Jose's home telephone number and told him
that "[he] (Connolly) would most likely be in touch with
him as soon as we were able to resume any operations."
Connolly testified that he asked Jose to tell the other labor-
ers about the layoff and "menticn(ed] to Jose that it was
for some short period of time."
Within a week of the layoff, Respondent transferred four
laborers from the Village Green project to Waldon Wood.'
On or about June 6, three additional laborers were hired.
Ginsburg conceded that he did not want to rehire any of
the Clementes (the alleged discriminatees), although he was
asked by Union Business Manager Ferrara to take back
Shop Steward Joaquim Clemente.
9
6Connolly commenced working for Respondent on May 9. Two days
later, Superintendent Stanley Feinberg went into the hospital for an extend-
ed period and Connolly took over as acting superintendent at the Waldon
Wood location.
7 Ginsburg testified that he went to Joaquim Clemente at the Waldon
Wood site and told him that he had received a complaint from Union
Business Manager Ferrara and inquired of Clemente what he knew about it.
According to Ginsburg, Clemente denied discussing the stamp situation or
having any knowledge of the complaint. Ginsburg asserts that the foregoing
was the extent of the conversation and denies threatening any layoff. For
reasons discussed infra, I reject Ginsburg's version of the meeting and his
denial that he threattned to lay off the laborers if they continued to com-
plain.
8 It is noted that this period included the Memorial Day weekend. Thus,
less than 5 working days elapsed from the time of the layoff until Respon-
dent employed laborers again at Waldon Wood on June 2.
Art. XIV of the collective-bargaining agreement (G.C. Exh. 2) states, in
relevant part, as follows:
Any job steward who is discharged for upholding the terms of this
agreement or the rights of the Union shall be reinstated before any
employee shall be permitted to work for that employer except when he
is laid off for just cause. In the event of a dispute as to the cause of the
discharge, the matter shall be referred to arbitration and the job stew-
ard shall be reinstated pending the arbitration decision, except when he
is laid off for just cause.
1038
D. H. I. ENTERPRISES, INC.
Ginsburg testified that Jose Clemente and Assistant Su-
perintendent Adelio Felicissimo were not compatible. and
he did not want to risk losing Felicissimo, whom he, Gins-
burg, regarded as a key man. Ginsburg asserted that he
regarded the Clementes as a "family clique" and therefore
decided not to rehire any of the Clementes. The General
Counsel, on the other had, asserts that laborers did not
know that Felicissimo was the assistant superintendent and
that the layoff and/or refusal to recall was in whole or in
part due to the complaints made by the Clementes that
Respondent was not complying with the contract.
B. The Alleged 8(a)(1) Conduct
The counsel for the General Counsel contends that on
two occasions in mid-May, Respondent threatened em-
ployees with a layoff if they continued to complain about
Respondent not living up to the terms of the collective-
bargaining agreement. In support of this contention, Jose
Clemente testified to an alleged threat by Acting Superin-
tendent Connolly, and Joaquim Clemente testified to an-
other alleged threat by Martin Ginsburg. According to
Jose Clemente, on or about May 17, he ahd a conversation
with Connolly in the office, wherein he, Jose, volunteered
that the laborers were unhappy about getting paid less than
the union scale. However, Jose assertedly divorced himself
from the other laborers. Thus, he testified that he told Con-
nolly "its not (sic) really matter to me, its just that they
(laborers) still complain." Connolly assertedly responded,
"I think they better stop complainling]. Soon[er] or later
everybody gonna (sic) be off." Connolly denied that he
threatened to lay off the laborers. Jose Clemente provided
a affidavit in connection with the investigation of the un-
derlying unfair labor practice charges on July 19 without
any reference therein to the alleged threat by Connolly to
lay off the laborers.' ° Further, Jose appeared with his fa-
ther and uncle at the Board's Regional Office on October
31 to meet with counsel for the General Counsel, nearly 3
months after the initial complaint had issued herein, and
still made no reference to the alleged threat. It was not
until on or about November 16 that Jose Clemente in-
formed the General Counsel that Connolly assertedly
threatened to lay off the laborers if they continued to make
complaints, and the General Counsel thereon issued a no-
tice of motion to amend the complaint, 12 days before the
trial herein opened." On the other hand, it is noted that
Jose has substantial difficulty with the English language
and that his affidavit is not in his native tongue (Portu-
guese). In addition, counsel for the General Counsel cor-
rectly notes that it is not unusual for a witness to first recall
additional facts during pretrial preparation. On balance,
however, including my observation of Clemente's de-
meanor, I am not persuaded that on the basis of the credi-
ble testimony that Connolly made the threat as alleged.' 2
0o Reap. Exh. 2.
G.C. Exh. 10).
Jose Clemente's testimony was punctuated bN substantial vacillation.
Thus, he first testified that he told his uncle. Joaquim, about the alleged
threat the same day it was made. then testified that he told his uncle a
Accordingly. I shall recommend that this allegation be dis-
missed.
With regard to the other alleged threat, Shop Steu ard
Joaquim Clemente testified that during the third week in
May, Martin Ginsburg (Respondent's secretar'x- reasurer)
told him that there would be a layoff if the employees con-
tinued to complain about the wages and stamps. Ginsbuig
denied that he threatened any layoff. According to Gins-
burg, after he had received a complaint from Union Repre-
sentative Ferrara that the laborers were not receiving the
proper number of stamps, he asked Joaquim Clemente, as
shop steward, "if he had been making any complaints to
the Union." Clemente assertedly told Ginsburg that he did
not have any knowledge of the complaints and reminded
Ginsburg that he had worked for him for 9 months and
"would never . . . do anything hke that." Ginsburg then
told Clemente that "as shop steward, if the men had any
complaints, he [Clemente] should come to me [Ginsburg]
to work out a problem directly before going to the
Union." '3
Ginsburg's assertion that he merely inquired of Cle-
mente as to what he knew about the complaints to the
Union and that he (Clemente) claimed ignorance does not
smack of candor. First off, it is noted that in fact Clemente
was fully aware of the problems with the shortage in wages
and stamps, as other laborers had complained to him and
he, as shop steward, in turn complained to the I Jnion Rep-
resentative Ferrara. Further, Acting Superintendent Con-
nolly testified that Joaquim Clemente complained to him
about the shortage of stamps after the first shortage oc-
curred. Thus, it does not seem plausible for Clemente to
later deny any knowledge of such complaints to Ginsburg.
Moreover, as Ginsburg already knew about the comp-
laints, the situation begs for some explanation from Re-
spondent regarding the legitimacy of Ginsburg's further in-
quiry. As no reasonable explanation appears in the record
or in Respondent's brief, I find that its absence tends to
further militate against Ginsburg's credibility.t4 In addi-
tion, Ginsburg was evasive. equivocal, and inconsistent
with regard to how and when he learned about the short-
age in payment of stamps, which further casts doubt on his
credibility. Thus, the record in relevant part reads as fol-
low,:
Q. Between Max 9 and May 217, did you (Ginsburg)
have any discussion with Jack Ferrara about the pay-
ment of stamps?
A. I can't honestly say that I did. I don't recall hav-
ing a specific conversation with Jack Ferrara in that
time frame. I do know, however, that-I don't think
he ever called me specifically on that. I was aware that
couple of dlass later and finall bhacked off all together declaring that he was
nol sure whether he told hos uncle. In an, event. J.oaquim d!d not suppl%
danll crrobioration in support thereof. I he foregoing tends to further mili-
tate against giving credence to the alleged threat.
3 Ginsburg's affidavit tG C Exh.
7i While Ginsburg asserted at the
hearing that he could nit -"honestlv" recall lhierher he told Clemente to see
him before going to the Union. I credit the statement as expressed ir. thi
afladavit. See e g. 4liin .J Bart and Cn. Inc, 236 NLRR 242 1i197)
i4 In vieCw of other findings made helow and In the absence of an5 allega-
tion thereon, I find it unnecessary to find whether Ginsburg's statement to
Joaquim Clemente to come to him first to resolve problems before going
directll , io the Unioor Independentl? stiated Sec 8(a)tlt
1In0
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was a problem with the stamps and that came to
me indirectly. It did not come to me directly....
However, Ginsburg admitted earlier that, in mid-May,
Ferrara told him that he had not been providing the men
the proper amount of stamps. Further, Ginsburg stated in
his affidavit that "sometime in mid-May 1977, after Jack
Ferrera [sic] had spoken to me about the stamps I had a
conversation and asked him what he knew about it." (G.C.
Exh. 7).
In contrast to my negative impressions of Ginsburg as a
witness, I was impressed with Clemente's efforts to testify
truthfully. I attribute the several instances of confusion to
his difficulty in expressing himself in English. I further find
that his testimony was generally consistent. In these cir-
cumstances, I reject Ginsburg's assertion that he asked Cle-
mente what he knew of the Union's complaint, as it does
not appear that he had a valid reason to do so. Further, I
reject Ginsburg's denial that he threatened a layoff. Ac-
cordingly, I find that the General Counsel has established
by preponderance of the credible evidence that Respon-
dent threatened to lay off employees if they continued to
complain about wages and stamps, in violation of Section
8(a)(1) of the Act.
C. The Alleged 8(a)(3) Conduct
I. Layoffs
As previously noted, Respondent and the Union execu-
ted a collective-bargaining agreement in May which pro-
vided the laborers at Wa!don Wood, inter alia, $7.90 per
hour (wages) and one stamp per hour (representing $2.86
in fringe benefits) up to 35 hours per week. Prior thereto,
the laborers at both the Village Green and Waldon Wood
sites earned from $6 to $6.25 per hour. After the contract
was signed, Martin Ginsburg (Respondent's secretary-trea-
surer) began paying laborers at both sites the same $7.07
hourly pay rate 5 and provided one stamp for every 2
hours worked, although only the Waldon Wood laborers
were represented and had a contract. Jose Clemente, Vin-
cent Clemente, and other laborers complained to Shop
Steward Joaquinli Clemente in mid-May when they discov-
ered the shortages in their pIay envelopes. Shop Steward
Clemente passed on the laborers' complaints to Ilnion
Business Manager Ferrara, and he in turn passed on the
complaints first to Jimmy Connolly, acting superintendent.
and finally to Ginsburg."' Within a few days, Ginsburg
encountered Joaquim Clemente and cautioned him that
15 The new rate represented an average of the presvious nonunilonl ate ;nd
the new contractual rate. The record is devoid of anll evidence tending toi
show that the formula adopted by (;insbulg was agreed to In adalnce or
ratified thereafter hb the Unlion,
li While there is solme conflicting evidence as to whether the cniploy-ees
complained about wages and stamps or only stamps. I am persuaded that
both items were the subject oi employees' comilplaintts In any event, the
record clearly establishes that the laborers engaged in protected concerted
activitN and the Respondent had knowledge thereof. Thus, (inshurg coin-
ceded that Ferrara told him of the employees' complaints about not receil-
ing the proper number of stamps (under the contract) See Lnifduro l itau/
Produtis Co.. Inc., 160 NLRB 1411 (1966); IJnerhoro, ( otlratorus Incs. 157
Nl RB 1295, 1301 02 (1966).
the laborers faced a layoff if they continued to complain.'7
Approximately I week later, on May 27, all the laborers
were laid off. The General Counsel stresses, with some ap-
peal, a number of elements which tend to support a finding
that the layoffs were discriminatory and in violation of
Section 8(a)(3). Thus, the Clementes began complaining
that they were not receiving the proper amount of wages
and stamps under the terms of the contract in mid-May,
and the layoffs occurred soon after, on May 27. Further, as
previously found herein, Ginsburg threatened to lay off the
employees if the complaints continued. On the other hand,
the record discloses substantial uncontroverted testimony
tending to show that the layoffs were based solely on eco-
nomic or business considerations. In this regard, the record
reveals that on May 27 the laborers completed their phase
of work which involved landscaping and related beautifica-
tion in and around the clubhouse and pond area for the
sales opening that was held the following week. The record
further reveals that on or about the first working day fol-
lowing the layoffs, Bolino (sic) Construction Company be-
gan sewer line work and the final grading on the road. This
work principally closed the road to the other trades, includ-
ing the carpenters. As the laborers worked largely in a sup-
portive role to the carpenters, i.e., transporting lumber and
other materials and cleanup work, the fact that the carpen-
ters did not work is further evidence that a brief layoff was
in order. Another factor tending to support a finding that
the layoffs were based solely on legitimate or business rea-
sons is that all seven or eight laborers were laid off and not
merely the Clementes. The record discloses that Tony Ferr-
ara and Angelo Morganti were hired as laborers on May 19
and 23, respectively, and that they too were laid off on
May 27. It appears that Ferrara and Morganti were hired
because Respondent was determined to complete the land-
scaping and related beautification for the sales opening,
approximately 2 weeks away. Moreover, the Clementes
had been laid off previously and it is undisputed that on
those previous occasions it was for reasons unrelated to
union or protected concerted activity. Thus, Joaquim Cle-
mente, in 9 months of employment, had been laid off twice
prior to May 27. Vincent Clemente commenced working at
the Waldon Wood site in or around January 1977, and was
first laid off for a few weeks approximately 2 months later.
While Jose Clemente had not been laid off prior to May
27, he first began working for Respondent on February 22,
approximately 2 months before the alleged discriminatory
layoff. ' 8
On the basis of the foregoing and the entire record, not-
ing particularly that Joaquim Clemente and Vincent Cle-
mente had experienced other brief layoffs in the not too
distant past, I am not convinced that the General Counsel
has established by a preponderance of the credible evi-
7 I havse previously found (;insburg's threat to lav off the laborers to he
siolative of Sec 8(a) l) of the Acl.
s It appears that onl) a brief layoff was contemplated. Thus, as noted
earlier. Acting Superintendent ('onnolly asked Jose Clemente for his home
phone nunmbher and indicated to him that the lasoff would be for a short
period. iurther. Connoll, testified that he believed that he also told Joa-
quim ('lemente that the layoffs would he for a brief interval. However, for
reasons stated below,. I find that when Respondent needed the services of
laborers a short time after the layoffs, it refused to recall the Clementes for
discrinminatory reasons.
1040
D. H. I. ENTERPRISES, INC.
dence that the layoffs on May 27, were for reasons viola-
tive of Section 8(a)(3) of the Act. Accordingly. I shall rec-
ommend that this allegation be dismissed.
2. Recall
As found hereinabove, the layoffs which occurred on
Friday, May 27, were based on legitimate business consid-
erations."9 The General Counsel argues additionally, how-
ever, that even if the layoffs are not found to be discrini-
natory the failure to recall the Clementes less than I week
after the layoffs was discriminatorily motivated and viola-
tive of Section 8(a) 3) of the Act. The record discloses that
on Thursday, June 2, four laborers were transferred from
Respondent's Village Green site to Waldon Wood to clean
up and install extra bark chips around the clubhouse.20
This work was substantially the same as previously per-
formed by the Clementes and other laborers immediately
prior to the layoffs. Connolly testified that Ginsburg had
determined that the clubhouse area "needed a few extra
touches land] it was convenient that we had people on the
payroll at an adjacent jobsite (Village Green) and they
came over to help." However, the Respondent hired three
new laborers the following week and by June 10 employed
laborers on a regular basis at the Waldon Wood site. Ac-
cording to Respondent, the Clementes were not recalled
because Adelio Felicissimo, assistant superintendent and a
key man, threatened to quit if Jose Clemente was recalled.
Ginsburg viewed Joaquim and Vincent Clemente (Jose's
uncle and father, respectively) along with Jose as a family
clique. Thus, Respondent argues in its brief that the deci-
sion not to recall any of the Clementes was a "natural and
valid decision" because Jose's relatives would tend to side
with Jose in any conflict between him and Felicissimo,
which would further exacerbate such conflict. Finally, Re-
spondent argues that the refusal to rehire the Clementes
was really a refusal to rehire only Joaquim Clemente. Ac-
cording to Respondent the Union never requested that
Jose and Vincent Clemcnte be rehired, and since these in-
dividuals did not possess seniority rights under the collec-
tive-bargaining agreement, there was no requirement that
the employer hire them or give any explanation for his
refusal to do so.
Respondent's contention that it refused to recall any of
the Clementes because they were incompatible with Feli-
cissimo is not supported by the credible evidence. Thus,
there is no evidence tending to show that the Clementes
ever knew that Felicissimo was the assistant superinten-
19 The laborers laid off on May 27 were Joaquim (Clemente, Jose Cle-
mente. Vincent Clemente. Antonio Pedrosa. Guinro Venturine. Agnelo
Morganti, and Jose Ferrara.
20 Acting Supenntendent Connolly maintained a daily log (Resp Exh. 3).
However. the diary (log) is far from a complete record of events at the
Waldon Wood site following the layoffs. Thus. Connolly testified that he
was unable to determine from the log whether the laborers who worked on
June 2 also worked on June 3 Further while the log for Monday. June 6
contains. inter alia. the entry "Labor." Connolly was unable to determine
from said entry whether laborers worked on that day, and if so. how many
of them worked. Connolly asserted that he maintained the diary as a matter
of convenience and as such he forgot to make entries on a number of
occasions. In view of the foregoing, and as Connolly also conceded that the
diary was not an "'accurate record." I place little reliance on its contents
dent. Even Superintendent Connolly admitted that he did
not know that Felicissimo was the assistant superintendent
until I week after he commenced working for Respondent,
when he assertedly asked Ginsburg to clarify the relative
responsibilities of Jose Clemente and Felicissimo. While
Felicissimo became assistant superintendent approximate-
Iy I month before Connolly arrived, it apparently was a
well kept secret, as Superintendent Stanley Feinberg did
not know that Felicissimo served in the capacity of assis-
tant superintendent either.2 i Connolly's testimony regard-
ing his comments to Jose Clemente on the day of the layoff
further militates against a finding that the failure to recall
the Clementes was based on their inability to get along
with Felicissimo. Thus, Connolly testified that he asked
Jose Clemente for his home phone number so that he could
be reached, as only a short-term layoff was contemplated.22
While Connolly asserts that at the time the laborers were
laid off he intended to recall Jose Clemente, only a few
days later he was assertedly discouraging Ginsburg from
taking such action on the basis of an ostensible conflict
with Felicissimo. I reject such change of position as incon-
gruous and not worthy of belief. In view of the foregoing
and as Jose and Joaquim are admittedly good workers and
as Vincent Clemente is an adequate worker, I find that
Respondent's assertion that the Clementes were not rc-
called because of a so-called conflict with Felicissimo is
pretextual.
I further find that Respondent's additional contention
that the refusal to rehire the Clementes was really only a
refusal to rehire Joaquim Clemente is without merit. I am
unpersuaded by Respondent's assertion that the Union
never requested that Jose and Vincent Clemente be re-
called, as Respondent demonstrated that it was unalterably
opposed to reinstating any of the Clementes. This opposi-
tion was manifest when Respondent refused to employ
Joaquim Clemente, although admittedly Union Business
Manager Ferrara, during the month of June, requested
Ginsburg to recall Joaquim on several occasions. While
Respondent argues that it is not obligated under the terms
of the contract to rehire Jose and Vincent Clemente, Re-
I1 As presiousls noted. Feinberg s.as hospitalized in May. and Connoll,
thereupon became acting superintendent.
2I do not credit Felicissimo's assertion that he threatened to quit unless
the Respondent terminated Jose (Clemente. In this regard. I was not im-
pressed with the consistenc) or candor expressed by Felicissimo or the cor-
roboration supplied thereon bN Connolly or Ginsburg. Thus Feliclssimo
first testified that he only complained to Ginsburg about Jose and not to
Connolls and then. less than a minute later. asserted that he told ( onnollI
that "we could not get along together, me and him (Jose) and stay on the
same job." While (onnolls asserts that Felicis.simo threatened to quit. he
was vague as to the time frame and circumstances. Thus. Connolly testified.
"I can't remember exacti, when or how he (Felicissimo) said it hut .onme-
thing to the effect. I can't work under these conditions." With regard tI the
time frame. Connolly testified. "I don't recall the first time that I gel the
feeling that he was going to quit or whatever. I just don't remember." In an'
event. Felicissimio's asserted threat to quit did not have much impact on
Connolly because he contemplated recalling Jose Clemente as soon as work
became available Felihcissimo's testimony is rejected inter alia, that it wuas
inconsistent with his pretrial affidavit Felicissimo testified that he had a
conversation with (;insburg before the layoff. wherein he told Ginsburg that
"I did not like to work with (Jorse ('lemente I did not want the three of
them {Jose. Joaquim. and Vincent) hack " However. in his affidavit he stal-
ed "I had to liell] Mr Martin Ginsburg what was going on at the job with
the Clementes. but I never told him not to rehire any of them." See G('.
Exh 9. p 7
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent is conspicuously silent as to its obligation under
the contract vis-a-vis Shop Steward Joaquim Clemente. In
this regard, it is noted that the contract provides the shop
steward with super seniority. 23 In any event, Union Busi-
ness Manager Ferrara credibly testified that in September
he requested of Ginsburg that he rehire the other "com-
plainants" (Jose and Vincent).2 4
Having rejected Respondent's reasons for its refusal to
recall the Clementes, the principal question remaining is
whether the Clementes would have been recalled but for
their complaints that they were not receiving full benefits
under the terms of the collective-bargaining agreement.
While Respondent denied that it received complaints
about wages, it is not disputed that the Clementes com-
plained about not receiving the proper number of stamps
under the terms of the contract. 2 Respondent's owner
Ginsburg immediately showed his displeasure at employees
complaining to the Union by cautioning Shop Steward
Joaquim Clemente that the laborers faced layoffs if they
continued to complain. Further, he attempted to interfere
with the legitimate administration of Joaquim's duties as
shop steward by telling him to come to him with comp-
laints before going to the Union.2 6 In the circumstances of
this case, I find the evidence strong and convincing that
Respondent would have recalled the Clementes in early
June, but jor their protected concerted and related union
activities. Accordingly, I find that Respondent's refusal
to reemploy the Clementes is violative of Section 8(a)(3) of
the Act.8
23 Art. XIV of the contract (G.C. Exh. 2) in relevant part provides:
..The Business Manager of the Union shall designate a shop steward
on very job where an employee is employed and the shop steward shall
be the last emplovee to remain on the job. [Emphasis supplied.]
24 While Ferrara was called as a witness by the General Counsel, it does
not appear that his interests were closely aligned with the alleged discrimi-
natees. Thus it is noted, inter alia, that Joaquim Clemente filed charges on
June 13 against Respondent and the Union (G.C. Exh. I(c)), respectively.
which culminated in a consolidated complaint. The underlying dispute with
the Union was subsequently disposed of, and the allegations of union mis-
conduct were severed from the consolidated complaint approximately 2
weeks before the instant trial opened. See C.C Exh 1(h). While I was not
impressed with Ferrara's demeanor and note that his testimony did not
comport with the several affidavits he had given the Board agent, I believe
that he asked Ginsburg to reemploy the Clementes. "It is no reason for
refusing to accept everything that a witness says, because you do not believe
all of it: nothing is more common in all kinds of judicial decisions than to
believe some and not all." N.L.R.B. v Universal Camera Corp., 179 F.2d
749 754 (2d Cir. 1950), reversed on other grounds 340 U.S. 474 (1951).
I have previously determined that the Clementes engaged in protected
concerted activity and Respondent had knowledge thereof. See fn 16
above.
26 Art. XIV of the contract (G.C. Exh. 2) in pertinent part reads as fol-
lows:
. It shall be the duty of the shop steward to see that the provisions
of this agreement are being fully carried out on said job. In the case of
a breach of any of the above, it Mhall be the dur, of the shop steward to
immediately contact the office of the Union and the matter shall be re-
ferred to the business manager of the Union in order that the said
business manager of said union may first make an attempt to contact
the employer or the employer's representative . .. [Emphasis sup-
plied.l
27 It is noted that prior to the advent of the Union. Ginsburg had recalled
Joaquim and Vincent Clemente on several occasions from previous layoffs.
' Perrenou4 Inc. 236 NLRB 204 (1978): Enduro Metal Products Co.. Inta.
supra. Inierboro Contractors, Inc. supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section 11I,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening to lay off employees because they en-
gaged in protected concerted activities, Respondent has in-
terfered with, restrained, and coerced its employees in the
exercise of their Section 7 rights in violation of Section
8(a)(1) of the Act.
4. By refusing to reemploy Joaquim Clemente, Jose Cle-
mente, and Vincent Clemente because they engaged in pro-
tected concerted activities, Respondent has engaged in un-
fair labor practices affecting commerce within the meaning
of Section 8(a)(3) and (1) and Section 2(6) and (7) of the
Act.
5. Respondent did not engage in unfair labor practices
other than those found herein.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommended that Respon-
dent cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the Act.
It having been found that Respondent refused to recall
Joaquim Clemente, Jose Clemente, and Vincent Clemente
in violation of Section 8(a)(3) and (1) of the Act, I shall
recommend that Respondent be ordered to offer them full
and immediate reinstatement 29 to their former or substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make them whole
for any loss of earnings they may have suffered as a result
of the discrimination against them.
30 Backpay shall be
computed according to the Board's policy set forth in
F W. Woolworth Company, 90 NLRB 289 (1950). Payroll
and other records in possession of Respondent are to be
made available to the Board or its agents to assist in such
:~ While it cannot Xe determined from the record whether the Waldon
Wood project has been completed. it is noted that the collective-bargaining
relationship extends to "any other new projects we {Respondentl may start."
See G.C. Exh. 3A. In the event that the Waldon Wood Project has been
completed and "new projects" are not in progress, it is recommended that
copies of the attached notice marked "Appendix" be mailed to the discrim-
natees.
'o The record reveals that the discrimination practiced against the dis-
criminatees commenced on or about June 2. 1977, at which time Respon-
dent transferred laborers from its Village Green project to the Waldon
Wood Site. It is further recommended, as urged by the General Counsel,
that the precise date when each discriminatee would have returned to work
should be left for the compliance stage of this proceeding.
1042
D. H. I. ENTERPRISES, INC.
computation. Interest on backpay shall be computed in ac-
cordance with Florida Steel Corporation, 231 NLRB 651
(1977)."3
It will be further recommended, in view of the serious
unfair labor practices herein found, that Respondent be
ordered to cease and desist from in any other manner infr-
inging upon the rights guaranteed employees in Section 7
of the Act. See N.L.R.B. v. Entwistle Manufacturing Com-
pany, 120 F.2d 532, 536 (4th Cir. 1941).
On the basis of the above findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 32
The Respondent, D. H. I. Enterprises, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with layoffs and other acts of
interference in order to dissuade them from seeking com-
pliance with the terms of the collective-bargaining agree-
ment applicable between the said Respondent and Local
No. 55 of the Laborers' District Council of Westchester
and Putnam Counties, New York, of the Laborers' Interna-
tional Union of North America, AFL-CIO (hereinafter,
Local No. 55).
(b) Refusing to recall or reemploy or otherwise discrimi-
nating in respect to hire and tenure of Joaquim Clemente,
Jose Clemente, and Vincent Clemente for enforcing or
seeking to enforce compliance with the terms of the said
collective-bargaining agreement.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative actions which are nec-
essary to effectuate the policies of the Act:
(a) Offer Joaquim Clemente, Jose Clemente, and Vin-
cent Clemente immediate and full reinstatement to their
former positions or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights previously enjoyed, and make each
of them whole for any loss of pay due to the violation
against them, in accordance with the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its Waldon Wood, Dobbs Ferry, New York,
construction site or, if that project is no longer in progress,
at other projects covered by the collective-bargaining
agreement applicable between the said Respondent and
Local No. 55, copies of the attached notice marked "Ap-
pendix." 3 In the event that the Waldon Wood project has
been completed and the "new projects" as described herein
are not in progress, mail copies of the said notice to each of
the discriminatees. Copies of said notice on forms provided
by the Regional Director for Region 2, shall be signed by
an authorized representative of Respondent and posted im-
mediately upon receipt thereof and maintained for 60 con-
secutive days thereafter at all locations where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that the notices are not
altered. defaced, or covered by any other material.
(d) Notify said Regional Director, in wnting, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply therewith.
Sec. generally, Isis Plumhing & Heating o., 138 NL RB 716 (19621
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 findings,
conclusions. and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations, be adopted byv the Board and become
its findings, conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
3 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 Pursuant 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 La-
bor Relations Board has found that we have violated the
National Labor Relations Act and has ordered us to post
this notice and to carry out its provisions.
WE WILL NOT refuse to recall, reemploy, or otherwise
discriminate against employees for enforcing or seek-
ing to enforce compliance with the terms of the collec-
tive bargaining agreement between us and Local No.
55 of the Laborers' District Council of Westchester
and Putnam Counties, New York, of the Laborers'
International Union of North America, AFL-CIO.
WE WILL NOT threaten employees with layoffs and
other acts of interference in order to dissuade them
from seeking compliance with the terms of the collec-
tive-bargaining agreement applicable between us and
the Union named above.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7, of the National
Labor Relations Act, as amended.
WE WILL offer Joaquim Clemente, Jose Clemente,
and Vincent Clemente immediate and full reinstate-
ment to their former positions or, if those jobs no lon-
ger exist, to substantially equivalent positions, without
prejudice to their senionty or other rights and privi-
leges previously enjoyed. and make them whole for
any loss of earnings they may have suffered by reason
of our unlawful discrimination against them, together
with interest.
D H. I ENTERPRISES. INC
1043