Pace Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1395 (N.L.R.B. 1982)

PACE MOTOR LINES, INC.
Pace Motor Lines, Inc. and Local Union No. 191,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America and John Dilella and Frank
Zamfino and Daniel Streit. Cases 2-CA-16104,
2-CA-16124, 2-CA-16134, 2-CA-16253, 2-
RC-18202, 2-CA-16159, 2-CA-16405, and 2-
CA- 16539
March 31, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On November 13, 1980, Administrative Law
Judge Frank H. Itkin issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed an answering brief.
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, find-
ings,' and conclusions 2 of the Administrative Law
'Respondent asserts that the Administrative Law Judge's resolutions
of credibility, findings of fact, and conclusions of law are the result of
bias. After a careful examination of the entire record, we are satisfied that
this allegation is without merit. There is no basis for finding that bias and
partiality existed merely because the Administrative Lasw Judge resolved
important factual conflicts in favor of the General Counsel's witnesses.
As the Supreme Court stated in NL.R..B v. Pittsburgh Steamship Compa-
ny, 337 U.S 656, 659 (1949), "[T]otal rejection of an opposed view
cannot of itself impugn the integrity or competence of a trier of fact"
Furthermore, it is the Board's established policy not to overrule an ad-
ministrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We find no basis for reversing
his findings.
' The Board has repeatedly held that, to constitute a valid offer of rein-
statement which would toll backpay, the communication must be specific,
unequivocal, and unconditional. Jimmy Dean wear Company, Inc of
Texas, 227 NLRB 1012, 1034 (1977); Standard Aggregate Corp, 213
NLRB 154 (1974); Controlled Alloy, Inc. and Harlin Precision Sheet Metal
Fabrication Co.. Inc., 208 NLRB 882, 883 (1974); The Masonic and East-
ern Star Home of the District of Columbia, 206 NLRB 789. 791 (1973).
The Administrative Law Judge found with respect to employee Birdsall
that Respondent's official, William Pacelli, asked if Birdsall was working
and stated that he had some work available. In the context of other inval-
id offers of reinstatement, we find that Pacelli's communication was not
sufficiently specific, unequivocal, and unconditional so as to constitute a
valid offer. The Administrative Law Judge found with respect to em-
ployee Streit that Respondent sent a telegram to him stating that there
was "a possibility" there may be a job, giving him only 2 days to re-
spond. We do not find such an offer sufficiently unequivocal and uncon-
ditional.
Although the Administrative Law Judge appropriately relied, in part,
on Alleluia Cushion Co., Inc., 221 NLRB 999 (1975), to find that Zam-
fino's discharge violated the Act, we note that the record evidence dem-
onstrates that Zamfino was engaged in actual concerted activity, that Re-
spondent had knowledge of such activity, and that Respondent violated
the Act by discharging him because of such activity As noted by the
Administrative Law Judge, the record reflects that complaints about
260 NLRB No. 189
Judge and to adopt his recommended Order,
except as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Pace Motor Lines, Inc., Stratford, Connecticut, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, as so modified:
1. In paragraphs 2(a) and (b), after the words "to
their former jobs, or," insert the phrase "if those
jobs no longer exist."
2. Substitute the attached notice for that of the
Administrative Law Judge.
unsafe equipment were a dominant part of the ongoing organizational
campaign as evidenced by the December 19, 1978, meeting between Re-
spondent's representative, Patrick Pacelli, and several employees, at
which the employees made complaints about unsafe equipment and Pa-
celli promised to remedy them. Moreover, in March 1979, Zamfino, him-
self, was involved in an accident as a result of unsafe equipment-a fact
of which Respondent was undoubtedly aware. Moreover, when Zamfino
told his fellow employees that he had been discharged because of his re-
fusal to operate unsafe vehicles, the employees commenced a strike to
protest Respondent's action Thus, under these circumstances, Zamfino's
April 3 protest was merely a further manifestation of the employees' con-
tinuing protests about unsafe equipment, and, although different in form
from prior and subsequent employee actions, it nonetheless constituted
group action. Respondent was well aware when it discharged Zamfino
for such protest that unsafe equipment was a group complaint and part of
the impetus for unionization. We thus find that Respondent was chargea-
ble with knowledge of the concerted nature of Zamfino's conduct We
therefore agree with the Administrative Law Judge's finding that Zam-
fino was discharged because of his protected concerted activities Carbet
Corporation, 191 NLRB 892 (1971), enfd 80 LRRM 3054, 68 LC ¢12,845
(6th Cir. 1972); Hlugh H Wilson Corporation, 171 NLRB 1040 (1968).
enfd 414 F 2d 1345 (3d Cir 1969): Guernsey-Muskingham Electric Cooper-
ative, Inc.. 124 NLRB 618 (1959). Additionally, we find Ontario Knife
Company v. NL.R.B, 637 F.2d 840 (2d Cir 1980), to be inapposite
There, the court found that the employee was discharged because she
walked off her job, not as part of a group protest against working condi-
lions, but as part of an individual protest against her supervisor's use of
vulgar language Here. Zamfino's action was clearly part of the group
protest against unsafe equipment
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 opportu-
nity 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 ordered us to post this notice.
WE WIl.. NOT coercively interrogate our
employees about their union activities.
1395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with
loss of employment or any other reprisals if
they engage in union activities.
WE WILL NOT promise our employees wage
increases and other improvements in their
terms and conditions of employment in order
to discourage their union activities.
WE WILL NOT instigate or solicit employees
to sign a petition to revoke their designations
of Local Union No. 191, affiliated with the In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or any other labor organization, as their bar-
gaining agent.
WE WILL NOT engage in surveillance or
create the impression of engaging in surveil-
lance of employees' union activities.
WE WILL NOT inflict property damage or
personal injury on union representatives.
WE WILL NOT discharge employees because
they have engaged in protected activities for
the purpose of mutual aid and protection, or
discourage membership in said Union, or any
other labor organization, by discriminatorily
reducing the hours of work of employees; as-
signing employees less desirable work; discri-
minatorily discharging employees; and discri-
minatorily requiring employees to remove CB
equipment from their vehicles.
WE WILI. NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them in Sec-
tion 7 of the Act.
WE WIL.L offer the following employees im-
mediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, and WE WIl L make them whole for
any losses sustained as a result of our discrimi-
natory and unlawful action, with interest:
Gerald Marron
William Marron
DiLella
Zamfino
Canganelly
Knapp
Majowski
Fulton
Verdi
Streit
Tyler
Rynich
P. Birdsall
A. Smith
DeSanto
Harvey
Glinsky
WE WILL rescind and revoke our rule re-
quiring drivers to remove from their vehicles
all CB equipment.
PACE MOTOR LINES, INC.
DECISION
FRANK H. ITKIN, Administrative Law Judge: Unfair
labor practice charges were filed against Respondent in
the above cases on December 26, 1978, and on January
8, 15, and 22, and March 1, April 24, and June 22, 1979.
Unfair labor practice complaints and amendments thereto
were issued on February 12, April 5, May 22, July 3, and
September 11, 1979. The complaints were also amended
at the hearing. In addition, the Board's Regional Direc-
tor conducted a representation election in a unit of Re-
spondent's employees on August 16, 1979. Various bal-
lots were challenged and objections to the election were
filed. On November 8, 1979, the Regional Director or-
dered that a hearing be held on both the challenged bal-
lots and objections and, further, that the above unfair
labor practice cases be consolidated with the representa-
tion proceeding.
Briefly, the General Counsel alleges in the unfair labor
practice cases that Respondent, in resisting the Charging
Party Union's organizational effort, violated Section
8(a)(1) and (3) of the National Labor Relations Act by,
inter alia, coercively interrogating and threatening em-
ployees; offering and promising employees wage in-
creases and other improvements in terms and conditions
of employment; soliciting employees to sign a petition to
revoke their designations of the Union as their bargain-
ing agent; engaging in and creating the impression of en-
gaging in surveillance of employee union activities; in-
flicting bodily injury upon a union representative and an
employee; causing property damage to an employee's ve-
hicle; discharging employee Frank Zamfino; transferring
to less desirable work and later discharging employees
Gerald and William Marron; providing employee John
DiLella with reduced hours of work and later discharg-
ing him; imposing more onerous working conditions
upon employees; discharging employees who were en-
gaged in an unfair labor practice strike; and failing and
refusing to reinstate striking employees upon their un-
conditional applications to return to work. Respondent
Employer denies that it has violated the Act as alleged.
Upon the entire record in this consolidated proceed-
ing, including my observation of the witnesses, and after
due consideration of the briefs of all counsel, I make the
following findings of fact and conclusions of law:
FINDINGS OF FACT
1. THE UNFAIR A.ABOR PRACTICE PROCEEDING
Respondent maintains offices and terminal facilities in
Stratford, Connecticut, where it is engaged as a motor
carrier in the interstate and intrastate transportation of
freight and other goods. The Company is admittedly an
employer engaged in commerce as alleged. Local Union
No. 191 is admittedly a labor organization as alleged.
Commencing during late 1978, the Company's employees
initiated a campaign to obtain union representation. On
December 19, 1978, Local Union No. 191 filed a repre-
sentation petition with the Regional Director. Thereafter,
on June 25, 1979, following a 30-day strike, the Compa-
ny and Local Union No. 191 entered into a Stipulation
for Certification Upon a Consent Election for a unit of
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PACE MOTOR LINES. INC.
employees, including "all full-time and regular part-time
truckdrivers, truckdrivers/dispatchers, platform men,
yardmen, maintenance men, and mechanics" employed
by the Company at 1425 Honeyspot Road Extension in
Stratford, and excluding "all other employees, including
dispatchers, sales employees, office clerical employees,
professionals, guards and supervisors." The Regional Di-
rector approved the stipulation on June 27, 1979, and an
election by secret ballot was conducted on August 16,
1979. There were approximately 65 eligible voters. Five
ballots were cast for Local Union No. 191; 23 ballots
were cast against the participating labor organization;
and there were 47 challenged ballots. On August 23,
1979, Local Union No. 191 filed timely objections to the
election.
The evidence pertaining to the Union's organizational
drive and management's opposition to this campaign is
summarized below.
A. Employee DiLella Seeks Organizational 4ssistance:
the Employees' Christmas Part i, DiLella Encounters
Difficulty in Obtaining Work Prom the Company and
Is Laid Off
John DiLella testified that he started working for the
Company as a truckdriver during October 1977; that,
during November 1978, he spoke to Local Union No.
191's business agent, Anthony Rossetti, "about organiz-
ing Pace Motor Lines"; and that Rossetti thereafter
mailed to him blank union "authorization cards." DiLella
further testified that subsequently, on Saturday Decem-
ber 16, 1978, he attended a Christmas party for the em-
ployees of Pace Motor Lines. This party had been ar-
ranged by coworkers Gerald and William Marron and
was held at the Bridgeport American Legion Hall. Ros-
setti also attended the party.
During the party, as DiLella testified:
[W]e had all the employees in the hallway [and] I
started discussing about organizing.... I began
passing out the cards and everybody started signing
them.
See General Counsel's Exhibits 3(a), (b), (c), and (d)
(union authorization cards signed by employees William
Marron, Daniel Streit, James Canganelly, and John Di-
Lella). DiLella recalled that he passed out some 25 au-
thorization cards at the party. And, "at the end of the
meeting in the hall," DiLella "took all the cards and . . .
gave them to Tony Rossetti."
DiLella next recalled that on Monday, December 18,
1978, he drove his automobile to the Company's Strat-
ford terminal and parked it in the "employees' parking
lot"; that he "locked" his vehicle; that subsequently,
upon completing his work that day, he asked Company
Representative Robert Pacelli "for a starting time" for
the following day and Pacelli responded; "[C]all back in
the morning"; and that when he then returned to his ve-
hicle in the parking lot he discovered that "it was un-
locked" and "a manilla envelope" containing blank union
authorization cards was missing. On the next morning,
Tuesday, December 19, DiLella telephoned Company
Dispatcher Anthony DeSanto for a "starting time." He
was told "to call back later because it was slow." During
the prior 3-to-4 month period, DiLella had worked
"every day." After December 19, however, he only
worked some 3 days in December; some 13 days in Janu-
ary; and no days in February. DiLella explained how he
repeatedly "called in" for starting times and was repeat-
edly told that none were available.
On or about February 9, 1979, DiLella asked Compa-
ny Representative Robert Pacelli "about a pink slip" so
that he could "collect unemployment benefits." Pacelli,
in turn, asked DiLella to return his Connecticut Turn-
pike charge card or toll plate. Pacelli also instructed Di-
Lella that he had to "wait" for the "pink slip." Later
that evening, when DiLella again "called in," he was
again apprised by Company Dispatcher Jack Smith that
there was still no work available and Smith also told
him:
[Y]ou [DiLella] don't have to bother calling back
.... They got you marked down as laid off
Anthony DeSanto testified that he first started work-
ing for Respondent as a driver in 1975 and that he was
later made driver-dispatcher during the summer of 1978.2
On the morning of Monday December 18, 1978, De-
Santo "walked into the office and [Company Representa-
tive] Patrick Pacelli was going over a sheet of paper
with all the drivers names on it .... " According to
DeSanto, Patrick Pacelli:
. . . said they had a party and everybody voted to
go Union, and I'm just trying to figure out who
went to the party and who voted Union, and who I
think didn't vote Union.
DeSanto further testified that about 10 a.m. on or
about December 18 or 19, 1978, he "observed [Company
Representative] William Pacelli force entry into John Di-
Lella's car" in the terminal parking lot. DeSanto ex-
plained:
From where I was sitting, I could see him [William
Pacelli] bend over in the car like he was looking
under the seats, and he came walking back into the
office about 10 minutes later and he was carrying an
envelope. . . . He showed the envelope to [Compa-
ny Representative] Patrick [Pacelli]. It was ad-
dressed to John DiLella's father. They took the en-
The Company sent DiLella a mailgram. dated May 24, 1979. follow-
ing the strike (discussed infro). notifying him that "Pace has work availa-
ble ill your job classification . ." See G.C Exh B
Z DeSanto's driver-dispatcher duties included "making sure" that the
employees drive their "assigned trucks" with the "proper loads". that the
"necessary paper work" was done, and that "empty trucks" stop "'to pick
up freight." DeSanto also answered the telephones in the terminal. De-
Santo noted that drivers "would call in" during the day "if they had any
problems" and speak with him He would also receive calls from custom-
ers On cross-examinatiion, DeSanto explained that he would drive only
one or two loads daily to nearby local areas "and he spent the rest of the
time in the office dispatching": he would spend, at most, "an hour a day
driving": he would assign local orders to himself for delivery if there
were no drivers available; and he "would help ith the assigning of driv-
ers" In general
1397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
velope and went down in the downstairs office with
it. It was full of Union cards, unsigned Union cards.
DeSanto saw "a photostat" of the envelope some 5 days
later, with the writing: "Pat, this is your rat."
DeSanto further testified that prior to December 18,
1978, DiLella "worked every day." After December 18,
DiLella "worked one day and they would lay him off
for a week, and he would work one or two days and
they would lay him off again." There was, as DeSanto
noted, "work available for" DiLella; however, DeSanto
was instructed by Company Officials William, Patrick,
and Robert Pacelli "not to" dispatch DiLella. In addi-
tion, DeSanto recalled that on or about December 18 or
19 "there was a notice on the board that said no more
CB radios in the trucks." DeSanto was unaware of any
prior company rules pertaining to the use by drivers of
CB radios.3
B. Management Meets With the Employees; the
Employees Sign a Petition To Revoke Their Union
Designations
Driver-dispatcher DeSanto testified that during the
evening of December 19, 1978, Patrick Pacelli "instruct-
ed" him "to stick around" because Patrick Pacelli "was
going to have a meeting with some of the drivers."4 The
meeting was held that evening in the terminal conference
room. Present were Company Representatives Patrick,
William, and Robert Pacelli and some 12 drivers. De-
Santo recalled that Patrick Pacelli stated to the drivers:
This is a non-union Company. It has always been a
non-union Company. It will remain a non-union
Company as long as we own it. He considered it
like his house. Nobody was going to fuck up his
house. He'd die at the fence first.
DeSanto also recalled that Patrick Pacelli had "instruct-
ed" DeSanto "to tell the drivers that [management]
could give them higher wages, better vacations, [and]
better medical plans .... [Patrick Pacelli] couldn't
speak about [these subjects] because he would be in vio-
lation of the National Labor Relations Law .... " Fur-
ther, DeSanto testified that William Pacelli discussed at
this meeting "trimming down the operation, parking the
straight-jobs, cancellation of the meat operation, the re-
frigerated operation, and trimming it down to 10 or 12
trucks, and the rest of the guys wouldn't work."5 And
members of management at this meeting "brought out all
the records of the drivers that had worked there as far as
overages, shortages and damages .... They brought
the files up and they said if you worked for a Union . . .
you wouldn't be working there. We tolerate these
records. We're trying to help you stick with us ... ."
'DeSanto overheard Torino Pacelli, father of Company Officials Pat-
rick, Robert, and William Pacelli, telling Patrick Pacelli in the terminal
dispatch room that the drivers "shouldn't have the CB radios in the
trucks because other drivers would harass them on the road and tell them
to go Union."
' As noted supra, a representation petition was filed with the Regional
Director on December 19, 1978.
' A "straight-job" is a small six-wheel truck as distinguished from a
larger "tractor-trailer" which consists of two units.
On or about the following day, December 20, DeSanto
observed driver James Canganelly speaking with Patrick
Pacelli in the dispatch room. According to DeSanto:
James [Canganelly] asked Patrick [Pacelli], when I
walked into the conversation, if we do sign this pe-
tition and I get all the drivers to sign it, what would
this do for the guys, and Patrick said, it's going to
save everybody's job, and there wouldn't be any
hard feelings towards the drivers and that everyone
would be working again. He said it would just save
everybody's job and save a lot of hassle and the
Union wouldn't be able to bother us.
Thereafter, on or about December 21, DeSanto ob-
served driver Canganelly show Patrick Pacelli at the dis-
patch window three copies of a typewritten petition. The
petition (G.C. Exh. 11) states:
We the employees of Pace Motor Lines, of our own
free will, are asking to withdraw our applications
for Union admittance, which we signed on Decem-
ber 16, 1978, at an employees Christmas party. The
reason for this action is that we feel we were under
the influence of alcohol which would have affected
our judgment at that time.
There were some four signatures on this petition at the
time, including the signature of Canganelly. This docu-
ment now purportedly contains some 18 employee signa-
tures.
James Canganelly testified that he was employed by
the Company from July 1976 to May 1979 as a tractor-
trailer driver; that he signed a union authorization card
at the December 16 Christmas party; and that earlier,
about Thanksgiving, he had the following conversation
in the dispatch area with Company Representative Pat-
rick Pacelli:
He [Patrick Pacelli] came up to me and said he had
heard the Marrons were going to have this Christ-
mas party and they were going to pass out Union
cards at that time .... I told him I didn't know
anything about anybody passing out Union cards at
this party. .... He came back and said if in fact we
did sign Union cards they would reduce the force
in the shop, cut down the drivers, and he said to
me, no matter whatever happened Pace would
never become Union, because he considered it like
his house, and he said nobody was going to fuck up
his house. He'd die on the fence first.
Canganelly later attended the December 16 party
where he signed a union card. (See G.C. Exh. 3(c).) He
denied that he drank any alcohol at this party because he
has "traces of sugar in [his] blood." Subsequently, on
Monday, December 18, he was questioned at work by
Patrick Pacelli, as follows:
[Patrick Pacelli] wanted to know if I in fact had
signed a card and I said yes. .. . He asked me if I
knew what I had done and I told him I read it and
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PACE MOTOR LINES, INC.
I knew I would get some bargaining power with
the Union....
A few days later, as Canganelly further testified, Patrick
Pacelli approached Canganelly at work and stated: ". ..
if we continued on the course we were going, that [he]
would cut the routes down, eliminate the Massachusetts
run . . . and all the refer work [refrigerated service] that
we were doing."
Canganelly recalled that on the following day Patrick
Pacelli again approached him at work. Canganelly testi-
fied:
He [Patrick Pacelli] handed me a piece of paper,
small notebook paper, and it had a format that I
was going to have typed up, and have it circulated.
He said what I should put on it.... I took the
piece of paper . . . home and had my wife type it.
General Counsel's Exhibit 11 is the petition typed by
Canganelly's wife from this "small piece of notebook
paper." Canganelly caused this petition to be circulated
among the drivers. Canganelly told his coworkers, when
he solicited their signatures on this petition:
. . . are you interested in signing this to withdraw
our Union cards to save the jobs of the guys that
are going down the road.
Patrick Pacelli later telephoned Canganelly's wife and
asked her "to please have the thing [the petition with sig-
natures] brought over because they had to mail it."6
Driver Thomas Elcyzk also attended the December 19
meeting at the Employer's terminal. Elcyzk recalled that
Patrick Pacelli "wanted to know our bitch; he wanted to
know better ways we could straighten out the place
without a Union and work things out; better benefits
.... " The drivers, in response to Pacelli's questions,
indicated that they wanted "better equipment, less hours
. . . more money." Elcyzk, at this meeting, complained
to management about having to drive from Boston "with
no lights on [his] truck." William Pacelli responded: "[I]t
would be straightened out"-"we wouldn't have to go
through that no more." Patrick Pacelli also stated: "[W]e
want to try to work it out without the Union . . . we
would get profit sharing . . . better equipment; more
money; better insurance with dental . . . and stuff like
that." Patrick Pacelli warned that "if the Union did
come in . . . he would close the doors . . . he was going
to get rid of all of the 102 [straight-job] drivers ... ."'
Driver Frank Zamfino signed a union authorization card at the De-
cember 16 Christmas party. Zamfino was present at the meeting in the
terminal during the evening of December 19 Zamfino recalled that Pat-
rick Pacelli stated to the drivers: " . . this is not a Union shop . .. if
you want a Union shop go work someplace else"; "he said he was
making up extra loads to keep the straight-job drivers working"; and he
referred to "lost and damaged freight."
Driver Paul Birdsall attended this meeting. He recalled that Patrick
Pacelli also stated:
They wanted to offer us more money. They wanted to offer us profit
sharing. They couldn't do nothing at the moment because of the
Union. They had to wait until that was over. They'd never be a
Union barn, they would close the doors and start over again on Cen-
tral Ave. if they had to.
Driver Elcyzk also attended an office Christmas party
which was sponsored by the Employer. This party was
on or about December 22, 1978. Elcyzk observed co-
worker Canganelly passing around his "petition" at this
party (G.C. Exh. 11). Elcyzk noted: "All the Pacelli
brothers were there." And, as Elcyzk further recalled:
[Patrick Pacelli] called me [and dispatcher DeSanto]
into a storage room . . and showed me a photo-
static copy of an envelope with Johnny DiLella's
name on it . . . and a circle with a line pointing to
Johnny's name. It says, "Here's your rat .... " Pat
told me he got it from somebody in the Union.
Patrick Pacelli, at the time, asked Elcyzk: "I thought
you didn't know who . . . was passing out the Union
cards ... " Elcyzk claimed: "I didn't know. "8
C. The Marron Brothers Participate in the
Organizational Drive,; They Are Assigned Different
Routes and Later Asked To Surrender Their Toll
Plates
William Marron testified that he was employed by the
Company as a driver from November 1974 until Decem-
ber 1978; that he organized the 1978 Christmas party for
the Company's employees with the assistance of his
brother Gerald Marron and coworkers John DiLella,
Thomas Elcyzk, and Robert Fulton; and that at the party
on December 16 DiLella solicited drivers to sign union
authorization cards. William Marron signed a union card
that evening. William Marron explained that, in the past,
his "usual assignment" from the Company was "around
the Boston, Massachusetts, area"-he would go to
Boston "95 to 98 percent of the time." However, on
Monday, December 18, 1978, the Company assigned
William Marron "to go to . . . Connecticut, and then
they dispatched [him] to the New York-New Jersey
area." Further, according to William Marron, prior to
Monday, December 18, the Company had no rules per-
taining to the use of CB radios. However, as William
Marron explained:
When I came to work on Monday the 18th, there
was a sign in the window . . . saying that all radios
and radio equipment would be removed from the
trucks effective immediately.
Later on that same day, Monday, December 18, Wil-
liam Marron decided to "book off" or "take time off."
William Marron returned to the terminal and apprised
Company Night Foreman Jack Smith that he "was going
to book off." Subsequently, on Friday, December 22,
William Marron and his brother Gerald Marron again
' Driver Neil Stroomer testified that on or about December 20, 1978.
William Pacelli approached him at work and "asked how the [employee]
Christmas party was .. " and "if anybody signed a Union authorization
card." Stroomer admitted to Pacelli that he had signed a card. Pacelli re-
plied
they would never have a Union in this place .. he would
close the doors and lay everybody off before a Union got in
there... He also said, if you wanted a Union job, you should go
across the street to the McOueen's to get a Union job
1399
0DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went to the terminal "to book on" and get their
"checks." There, they asked Company Representative
William Pacelli for "our checks" for the previous work-
week. Pacelli, in turn, asked the two employees for their
charge or toll plates. The Marron brothers returned their
toll plates. Gerald Marron was also given his personal
property-i.e., "a box of CB equipment and gloves and
cleaning fluid that were in the truck at the time." Wil-
liam Marron explained that, in the past, drivers were
asked to return their charge cards or toll plates "only
when they were leaving or when the Company dis-
charged them."
Gerald Marron corroborated his brother's testimony,
as summarized above. Gerald Marron also recalled that
prior to the Christmas party, during early December
1978, he had discussed the party with Company Repre-
sentative Patrick Pacelli and Patrick Pacelli's father,
Torino Pacelli, at the terminal. Gerald Marron testified
that Patrick Pacelli then "told me that he had heard a
rumor going on that union cards were going to be passed
out at the Christmas party." Gerald Marron "denied"
any knowledge of this rumor. Gerald Marron further re-
called that, in the past, his "usual assignment" from the
Employer was in Massachusetts and Rhode Island. How-
ever, "during the week preceding the Christmas party,"
he was assigned to New York and New Jersey. In addi-
tion, Gerald Marron was also present with his brother on
Friday, December 22, when "William Pacelli asked for
our toll plates." About 1 week later, during late Decem-
ber, Gerald Marron "called in" and had the following
conversation with William Pacelli:
I [Marron] started to explain to him [Pacelli] about
what me and m) brother had to do with the Union
cards, that we had nothing to do with it as far as
passing them out, or getting, or anything else, and I
did call to try to get my job back, but he answered,
"What's done is done and I guess we have to live
with it," and then he hung up on me.
D. The Mace Incident
Union Shop Steward Ralph Manente testified that
during the early morning of January 10, 1979, he "was
handing out literature to the Pace drivers . . . about a
quarter of a mile from the entrance to Pace Motor Lines
. . ."; that Union Representatives Joe Roberto and Tony
Rossetti were also present; that two trucks then left the
Pace terminal followed by a Jaguar automobile; and that
William Pacelli was driving the Jaguar. Manente re-
called:
[A]bout the same time, Tony Rossetti crossed over
the street, and stood to my right, and exchanged
pleasantries with Mr. [William] Pacelli .... [Ros-
setti] said "good morning" and [Pacelli] said
"what's so fucking good about it .... " About this
time, I [Manente] noticed a small can with a red dot
with a spray nozzle, and I felt some wetness on my
face, and I tried to tell Tony that he [Pacelli] had
mace; I was sprayed in the face ....
William Pacelli, seated in the driver's seat of the Jaguar,
was "holding the can." Both Rossetti and Manente were
sprayed with this chemical.
Driver-dispatcher DeSanto testified that he was a pas-
senger in the Pacelli automobile at the time of the above
incident. He recalled:
We were coming down the street and when we got
by where the people from the Union were standing,
Billy Pacelli pulled up and rolled down his window.
Tony Rossetti walked over to talk, and he was a
few feet from the car, and he said, "Good morn-
ing." Patrick answered, "what's so fucking good
about it." I remember Anthony Rossetti saying,
"It's as good as you want it to be." The car started
to move. William Pacelli and his brother Bobby Pa-
celli started squirting mace out of the window . . .
and I seen Anthony Rossetti and Ralph Manente
grab their eyes and fall down . . . .
E. Management Terminates Employee Zamfino; the
Employees Decide To Strike
James Canganelly testified that on or about April 7,
1979, he signed a "second" union authorization card.
(See G.G. Exh. 14.) Coworker Frank Zamfino had solic-
ited his signature. According to Canganelly, Zamfino,
when he solicited Canganelly's signature:
. . .asked me [Canganelly] if I wanted to sign an-
other Union card because he just had some prob-
lems, and he had been fired from Pace. He didn't
want to drive some pieces of equipment that he
deemed unsafe .... He said . . . it's about time
we got some protection, institute some safety meth-
ods there. We're having a lot of problems with
unsafe vehicles. I signed the card because it was
true.
Subsequently, as Canganelly further testified, about I
day before the commencement of the strike at the Em-
ployer's terminal, Zamfino telephoned Canganelly and
stated:
Everyone was going to meet at the Honeyspot
Diner at 4 o'clock in the morning. We were all
going to go to Pace, all the drivers that signed the
second set of Union cards; we were going to set up
an effective picket line and picket and go on strike.
Canganelly met with the other drivers at the Honeyspot
Diner "and went down and set up our picket line." The
strike, as discussed below, started on or about April 27,
1979, and lasted about I month.
Alfred Smith testified that he worked for the Compa-
ny as a straight-truck driver from October 1976 until
April 27, 1979; that he signed a union authorization card
on or about April 25, 1979; and that coworker Elcyzk
had solicited his signature in the parking lot at the Em-
plover's terminal. Smith explained:
We were inside the terminal when he [Elcyzk]
asked me to talk to him. We went out to my car in
1400
PACE MOTOR LINES, INC.
the employees' parking area and he asked me to
sign the card, that he thought about going on strike,
so I signed the card and participated in a strike.
(See G.C. Exh. 16.) While the two drivers were "talk-
ing," Patrick Pacelli "drove his car over ... " and
stated: "[W]hy don't you go home."
Later, as Smith further recalled, coworker Zamfino
telephoned him stating that "there would probably be a
strike that following morning." Smith informed Zamfino
that he "would participate in that strike." On the morn-
ing of the strike, Patrick Pacelli telephoned Smith and
had the following conversation:
He [Patrick Pacelli] told me [Smith], they went and
did it, and I said who did what. He said they are
outside the terminal picketing . . .. He said I know
you can come in. If you come in and a number of
other guys come in, we can break this thing. He
said I also want you to know that if all these guys
don't come in, they're fired.
Smith joined the strike that morning. He related to his
coworkers that Patrick Pacelli had "called" him earlier
that morning.9
Driver Frank Zamfino testified that, during mid-
March 1979, he had been involved in an accident while
driving a company vehicle and the cause of this accident
was, in his view, the faulty brakes on his vehicle. Later,
on or about April 3, 1979, Company Dispatcher Robert
Shine assigned Zamfino "tractor 132." Zamfino discov-
ered that after he "started it up ... smoke filled the cab
and there was no safety equipment." Zamfino informed
Shine that the "truck was unsafe." Shine then assigned
Zamfino "tractor 116." Zamfino, after inspecting this ve-
hicle, discovered that "the seat was too low" and it
could not be adjusted. Also, there was a 90-degree play
in the steering wheel before the front wheels would turn.
Zamfino again notified Shine that this equipment was
"unsafe." Shine replied: "I don't have anything else for
you to drive." Zamfino turned in his assignment and
went home. Zamfino subsequently telephoned William
Shine for a "starting time." William Shine apprised Zam-
fino: ". . . you're all done" and then "hung up." See
General Counsel's Exhibit 24, a letter from Patrick Pa-
celli to Zamfino, dated April 3, 1979, stating, inter alia,
"[T]his is the last time we will tolerate your childish atti-
9 Smith acknowledged receiving during the strike the following letter
from Patrick Pacelli, dated May 11, 1979 (Resp Exh 2)
We have recently been informed that the Union and/or individual
employees are claiming that Pace employees who are on strike have
been fired because of their support of the Union This claim is com-
pletely false. You are still a Pace employee.
We have maintained and continue to maintain that our employees
have a legal right to come to work and a legal right to strike The
choice is up to the individual employee
If any of you feel that someone from the Company had made any
statement to that effect, please be advised that we totally disavow
any such statement. We have work available for you and again ask
all employees on strike to return to work
Also see GC Exh. 18
Driver Carmine Verdi also testified that coworker Smith, when he ar-
rived at the picket line at the inception of the strike, "told us he got a
phone call from Pat Pacelli saying that if we don't report to work we're
all terminated"
tude. As far as I am concerned you quit your job and
you no longer work at Pace ... ."
Zamfino further testified that, after the above incident,
he spoke with Union Representative Rossetti. Rossetti
gave Zamfino blank union authorization cards. Zamfino
signed a card on April 5, 1979. Zamfino also solicited the
signatures of his coworkers. Zamfino later returned the
signed cards to Rossetti on or about April 26. Zamfino
then apprised Rossetti: ". . . all the drivers wanted to
have a strike." Rossetti, in turn, instructed Zamfino to
"contact all the drivers and have them meet at the Hon-
eyspot Diner . . ." the following morning. Zamfino re-
called that "[i]t wasn't really a meeting. Everybody met
and went down to Pace and set up our picket lines."' °
F. The Strike
The record shows that on or about April 27, 1979,
some 18 employees of Respondent commenced a strike
against the Employer which lasted approximately I
month." At the inception of the strike, Dispatcher De-
Santo, as he testified, was instructed by William and Pat-
rick Pacelli:
to tell our customers that we're having temporary
labor problems, and we hope to have them settled
within a few days, and we'll be back to work again
to pick up their freight.
Some 4 days later, DeSanto was instructed by Robert
Pacelli "to tell the customers if the shipment was 10,000
pounds or better . . . he would pick it up." There was
no restriction set as to any geographical area. Subse-
quently, some 10 days after the strike had started, De-
Santo was instructed by William and Patrick Pacelli "to
tell the customers we're giving up our Massachusetts and
"' Driver Daniel Streit testified that he signed a union authorization
card on April 7. 1979, at the request ,f coworker Zamfino Zamfino
stated to Streit at the time "that he was going to organize the Union so
that he could get his job back." Streit joined the strike
" The General Counsel, in Appendix A to his amended consolidated
complaint. lists 20 striking employees (including dispatcher-driver De-
Santo. who later joined Ihe strike). as follows:
1I P. Birdsall
2 Canganelly
3. DeSanto
4. Fulton
5 Glinsky
6 Knapp
7 Harvey
II Strelt
12 Tyler
13 Verdi
14 Yarmosh
15. Zientek
16 Majowski
17 G Marron
K Moreo 18 W. Marron
9 Rynich 19 Elcyzk
10. A Smith 20. Semion
The General Counsel, in listing the striking employees in his post-hearing
brief, also includes the names of employees Toppe, Torres, Stroomer, and
G Birdsall The General Counsel later notes that on June 13. 1979. these
four employees were discharged for strike misconduct They are not in-
cluded in Appendix A of the complaint or named as discriminatees Fur-
ther, the General Counsel cites in his brief the testimony of William Pa-
celli to the effect that employees Zientek, Moreo, and Semion "quit
during the strike" And. I note that employees Gerald and William
Marron. 7amfino. and Dil.ella were terminated lefiore the strike com-
menced
1401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rhode Island operation, and we're not handling refriger-
ated merchandise any more"-"we won't be handling re-
frigerated products any longer." DeSanto apprised cus-
tomers of this, as instructed.
There were, according to DeSanto, pickets present in
front of the terminal 24 hours each day during the strike.
DeSanto observed the following incident on or about
May 8, 1979:
I remember Bobby Pacelli . . . was going out with
a load and we were standing in the window watch-
ing. He came down the driveway and there was a
man standing on the corner, later identified as Mag-
lione .... Bobby Pacelli went down the right-of-
way, made the right turn onto Honeyspot Road,
and then I saw the man, Maglione, flying out from
behind the truck laying on the ground. Approxi-
mately an hour later, Bobby Pacelli came back,
laying on the floor of his father's car. [Robert Pa-
celli] said, "Hey, I really made that bastard jump
when I rounded the corner, didn't I."12
DeSanto joined the strike about 5 days later on May 13,
1979.
Bernard Boden is employed by Midtown Packing
Company, Inc. Midtown is engaged in the wholesale
meat business. Boden recalled that "for many years" Re-
spondent "carried [Midtown's] merchandise." Respond-
ent transported Midtown's product about five times a
week and Boden was pleased with Respondent's service.
According to Boden, Patrick Pacelli "or his brother"
telephoned him during the strike and "said he [Pacelli] is
no longer picking up freight because he had labor prob-
lems." Boden has never been contacted by Pacelli to
resume the performance of their services.
G. The Strike Ends; Employees Apply for
Reinstatement
The strike ended about May 24, 1979. Driver Cangan-
elly recalled that at the end of the strike, when "we
broke down the picket line," he was instructed by Union
Business Agent Rossetti to "call Pace and make our-
selves available for work"; that he in fact made such a
call to William Pacelli "when the strike ended" and
"told him I was available for work"; and that William
Pacelli replied: "he would get back to me but right now
things were a little bit slow because of the strike." See
General Counsel's Exhibit 15, a mailgram from the Em-
ployer to Canganelly, dated May 26, 1979. Canganelly
noted that he received later communications from the
Employer concerning work. Canganelly-in response to
communications from the Employer concerning his
'" Joseph Maglione, a picket, was not an employee of the Company.
There were, however, employees present at the picket line during this in-
cident. Maglione, as he testified, was injured and hospitalized as a result
of being struck by the Pacelli truck.
And, as picket Joseph Bennetta testified, Robert Pacelli later backed a
tractor-trailer some 15 feet into Bennetta's automobile while Bennetta
was waiting for a traffic light signal to change near the terminal. Pacelli
claimed that he "didn't know [he] had the thing in reverse." Pacelli also
remarked to Bennetta: "It sure was a nice car."
availability-would notify the Employer that he was
available; however, nothing "happened." 3
DeSanto, as noted supra, joined the strike on or about
May 13, 1979. DeSanto testified that on or about May
26, 1979, shortly after the strike ended, he sent a mail-
gram (G.C. Exh. 12) to the Company notifying it that he
would be "available for work as soon as released from
doctor's care .... " DeSanto explained that he had been
injured on the picket line by a vehicle driven by the wife
of a nonstriking employee. (There is no claim made here
that Respondent is responsible for this injury or con-
duct.) Some 10 days after sending the mailgram, De-
Santo also telephoned the terminal and asked William
Shine, the dispatcher, "to give" Patrick or William Pa-
celli "a message that [DeSanto] was available for work."
Stephen Knapp, a driver for Respondent who partici-
pated in the strike, also telephoned William Pacelli when
"the strike was over" and stated that he "wanted to
come back to work." William Pacelli said that there is
"no work available at the time." (See G.C. Exh. 19.)
Knapp later received a mailgram from William Pacelli,
dated August 28, 1979 (G.C. Exh. 21), indicating "there
is a possibility there may be a job available." Knapp tele-
phoned William Pacelli as instructed. Knapp testified:
He [William Pacelli] said that there was a possibility
of a job but he wasn't sure. Everything was sort of
mixed up at the time. He said it might have been
night work at the same rate of pay.
Knapp had been working "days" before the strike.
Shortly thereafter, Knapp received another mailgram
from William Pacelli, dated August 31, stating:
This will acknowledge our request to you to return
to work which we have available at the same salary
and benefits as before, however, you have refused
our offer to return to work.
Mark Majowski testified that he started working for
the Company as a driver on or about January 2, 1979.
Majowski became 21 years of age on November 28,
1979. Majowski, when he first applied for work, apprised
management of his correct age. Majowski later joined
the strike. When the strike ended, Majowski telephoned
Dispatcher Tony Gore to notify the Employer that he
was available for work. Gore said that "there's not that
much work available . .. if there is, we'll call." Ma-
jowski later spoke with Wiilliam Pacelli and "he said ba-
sically the same thing." (Also see G.C. Exh. 28.) About I
month later, Majowski visited the terminal, asked for an
unemployment "pink slip," and was told that there was
"still no work." Thereafter, by letter dated August 16,
1979 (G.C. Exh. 29), William Pacelli requested Majowski
to return his toll plate.
Driver Carmine Verdi joined the strike. When the
strike ended, Verdi "called in for work" speaking to Dis-
patcher William Shine. Shine apprised Verdi, "[W]e
"3 Canganelly noted that he telephoned William Pacelli in response to
one such mailgram and stated that he "was available for work." Pacelli
"said it was a night position" Canganelly had been working "days"
before the strike Cf. Resp. Exhs 17 and 18
1402
PACE MOTOR LINES, INC.
don't have nothing right now, but we'll give you a call."
(Also see G.C. Exh. 32.) Thereafter, by mailgram dated
August 22, 1979 (G.C. Exh. 33) William Pacelli notified
Verdi:
There is a possibility there may be a job available
with the Company. Please advise if you are interest-
ed in working for the Company by Friday August
24, 1979, at 9 a.m. direct to William Pacelli.
Verdi later notified Pacelli by telegram that he "needed
sufficient time for the recall" because he had "another
job" and wanted to give some notice to the employer in-
volved. Thereafter, Verdi's wife received a telephone
call from Respondent to the effect that, "if he [Verdi]
didn't report Monday . . . at 5 o'clock at night, [he] was
terminated." The call was made on Monday and Verdi
was "still working at that other job." Subsequently, by
mailgram dated August 31, 1979 (Resp. Exh. 6), Verdi
was notified by William Pacelli: "By not showing up at
the designated assignment time or calling in, we are
taking you off our preferential recall list.""
Driver Paul Birdsall joined the strike. In late May,
when the strike ended, he "asked for [his] job back" and
William Pacelli advised him that there was no work
available at the time. See William Pacelli's mailgram to
Birdsall, dated May 26, 1979 (G.C. Exh. 39), wherein Pa-
celli acknowledged Birdsall's "verbal request" and stated
that there is no work available "at this time." However,
William Pacelli, when he testified before the Connecticut
unemployment agency (See G.C. Exhs. 40 and 43), as-
serted that there "was work available" for Birdsall at the
end of the strike. 15 As a result of William Pacelli's testi-
mony, the unemployment agency hearing officer found:
[T]he Employer notified the claimant by mail to
return to work on May 25, 1979, June 6, 1979, and
June 27, 1979, and the claimant never responded to
any of the correspondence.
The Employer had work available to the claimant
immediately after the labor dispute settled . . . .
William Pacelli, when confronted with this earlier con-
tradictory testimony, claimed: "I got my days mixed
up." 16
'" Driver Robert Fulton joined the strike. At the end of the strike, he
too asked to be reinstated and was told that "there was no work availa-
ble." See GC Exh. 34. A few weeks later, Fulton spoke with William
Pacelli and was again told that "there was no work available." And, 2
weeks later. William Pacelli again apprised Fulton that "there was no
work available." Also see GC Exh. 36, the Company's notification to
striking employee Ronald Tyler on May 26, 1979, that there was "no
work available."
Driver Jerry Rynich joined the strike. At the end of the strike, he txoo
asked for reinstatement and was told that nothing was avallable See G C
Exh. 37. Later, by mailgram dated August 28, 1979, Rynich was advised
that "there is a possibility there may be a job available . ." See G C
Exh. 38. He contacted the Employer and was informed that the "job"
was not "full-time." He apprised the Employer that he "was interested in
returning to work only on a full-time basis."
'" Birdsall was not present at the unemployment agency hearing.
'' Paul Birdsall testified that during August, some 3 months after the
strinke ended, William Pacelli asked "if I [Birdsall] was working" Birdsall
said, "Yes" Pacelli replied that "he had some work available
Birdsall responded: "I was already working " See G.C Exh 39
H. Management Denies That It Engaged in the
Coercive and Discriminatory Conduct as Alleged,' the
Testimony of William, Patrick, and Robert Pacelli
William Pacelli, vice president of Respondent and in
charge of its "overall operations," denied, inter alia, that
he entered driver DiLella's vehicle and removed an en-
velope containing union authorization cards; that he had
"any knowledge whatsoever of any Union activity" on
December 18, 19, or 20, 1978; that the "word Union
[was] ever mentioned" during a meeting with the drivers
on the evening of December 19 at the terminal or that
any threats or promises of benefits were uttered at this
meeting; and that he otherwise coercively interrogated
or threatened employees as alleged. William Pacelli
claimed that he had posted a notice forbidding the use of
CB radios during the first week of December 1978; he
was, however, unable to locate a copy of this notice. He
further claimed that drivers had been warned earlier
"not to divulge any Company information on the air
. ."; that the drivers persisted in this conduct thereby
exposing the Employer to excessive "weight fines" by
state police; and that he therefore required the removal
of all CB radios.
William Pacelli further testified that he attended the
Employer's Christmas party on December 22. He denied
witnessing driver Canganelly circulating a "petition" at
this party. He also claimed that on this same day the
Marron brothers quit and voluntarily surrendered to him
their toll plates. He denied that he had any knowledge of
union activities on their behalf. He admitted shooting
mace at Union Representatives Rossetti and Manente on
January 10, 1979. He claimed that he was being threat-
ened at the time and that Rossetti, while making alleged
threats and vulgar statements, "pulled out" a revolver
and "had it fully extended" toward the three Pacelli
brothers and DeSanto, who were then seated in his
Jaguar vehicle. He admittedly did not call the police fol-
lowing this incident.
William Pacelli denied giving Dispatcher DeSanto any
instructions concerning customer pickups after the strike
started. He denied instructing DeSanto to limit pickups
to a certain poundage or later telling DeSanto that the
Employer was "going to give up" certain refrigerated
and nonrefrigerated work. He claimed that "we had
always considered going back . . we just assumed it
was a temporary labor problem .. . ." He claimed that,
after the 30-day strike ceased, he attempted to resume his
refrigerated operations without success. He also claimed
that the refrigerated vehicles or equipment required "ex-
tensive maintenance" because there had been "vandal-
In addition, driver Streit testified that he too informed management
that he was "available for work" during late May and was told that
"there was nothing available at this time .... " See GC. Exh 31 Also
see Resp Exh. 4, a telegram to Streit dated August 28 concerning "a pos-
sibilht) there may be a job" Streit denied receiving this telegram And,
driver Al Smith testified that he too applied for work at the end of the
strike and was told that none was available See G C Exh. 17
1The General Counsel, in his post-hearing brief, states that employee
Elcy;k "quit" Pace's employment shortly after the strike ended; employ-
ee Yarmosh was not reinstated and he quit about mid-June. and, as noted
,upro, drivers Stroomer, Toppe. Torres. and Gary Birdsall were dis-
charged in June for strike misconduct See Resp Exhs 22 and 23
1403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ism" during the strike. William Pacelli was shown a list
of some 100 meat customers of Pace Motor Lines (G.C.
Exh. 44). He was asked "what individual called you or
what individual you called . . . who told you they
would not use your trucking anymore because . . . they
are using other trucks .... " He responded, "I couldn't
give that. I can't remember all that information." He
later named a meat company who assertedly gave their
business "to another trucker."
In addition, William Pacelli claimed that after the
strike ended, during early September 1979, he offered
driver Canganelly over the telephone a "full-time job"
and instructed him "to call . . . at 2 o'clock in the after-
noon for a starting time." Pacelli claimed that Canganel-
ly "never called . . . back." (See Resp. Exhs. 15, 16, 17,
and 18.) William Pacelli claimed that driver Knapp tele-
phoned Pacelli during late August and, after being of-
fered "a full-time job," said he was "not interested in re-
turning." (See G.C. Exhs. 21 and 22.) William Pacelli
claimed that driver Rynich was offered "a full-time job"
during a telephone conversation in late August and
Rynich said "he had no intention of returning." William
Pacelli claimed that he sent a telegram to driver Streit
"telling him of a job available" during late August and
never heard from Streit. (See G.C. Exh. 31 and Resp.
Exhs. 4 and 5.) (I note, as discussed above, that Resp.
Exh. 4 only refers to "a possibility there may be a job
available.") William Pacelli claimed that he telephoned
driver Verdi's wife during August and "told her . . .
that I have a job available" and Verdi never telephoned
him. (See G.C. Exhs. 32, 33, and 35 and Resp. Exh. 6.) (I
note again that G.C. Exh. 33 only refers to "a possibility
of a job being available.") William Pacelli claimed that
driver Majowski was under 21 years of age while work-
ing for Respondent and, consequently, after the strike, in
compliance with the pertinent Federal regulations, Pa-
celli told Majowski "that he wasn't 21 and we weren't
allowed under DOT regulations to work him." Pacelli
placed this conversation in June 1979. (See Resp. Exh.
24.) And, William Pacelli's testimony concerning driver
Paul Birdsall and his related testimony before the Con-
necticut unemployment agency is summarized supra. (See
G.C. Exh. 43.)
Elsewhere, William Pacelli testified that on or about
April 27, when the month-long strike started, and again
on or about May 4, he personally requested some 11 or
12 striking employees to return to work. Also see Re-
spondent's Exhibit 2, a letter from Patrick Pacelli to the
strikers, dated May 11, reciting: ". . . we have work
available for you and again ask all employees on strike to
return to work."
Patrick Pacelli, president of Respondent, denied the
coercive and discriminatory conduct attributed to him.
Patrick Pacelli denied, inter alia, any conversation with
Canganelly during Thanksgiving week in 1978 or that he
ever threatened Gerald Marron; that he was "aware" of
any union activities of either Gerald or William Marron
during December 1978; that his brother William broke
into DiLella's vehicle and he later saw an envelope con-
taining blank union cards; that he was aware of any
union activity at the terminal on December 18 or 19; and
that the Union was mentioned at his meeting with the
drivers on the evening of December 19. Patrick Pacelli
generally denied that he "ever" spoke to Canganelly in
December 1978 "concerning his Union activities." Else-
where, Patrick Pacelli testified to the following conver-
sation with Canganelly on December 21:
[H]e [Canganelly] told me that he and some of the
drivers had signed cards at the Christmas party
. . . that they thought they had made a mistake
* . . that [he wanted] to draw up a petition . . . to
get our cards back ....
Patrick Pacelli assertedly responded, "[T]hat's your
problem; I don't want nothing to do with it."
Patrick Pacelli recalled the January 10 mace incident,
as follows:
Well, we stopped the car and they [the union
people] proceeded over to the car. And he [Rosset-
ti] said, I got you this time . .. . Mother fuck you.
Your mother-he proceeded to pull out his gun,
pointed it. And then we just, Billy sprayed him
with the mace and we took off. And that was
it . . .
Patrick Pacelli also claimed that the Marron brothers
quit on December 22 and denied that he had any knowl-
edge of their union activities. He also denied talking to
employee Elcyzk in the storage room on that day or
later talking to driver Al Smith at the inception of the
strike. He further claimed that the incident involving
driver Zamfino, as related above, in fact occurred on
April 3, not April 2, and that the Employer's letter to
Zamfino (G.C. Exh. 24) mistakenly refers to April 2 and
is mistakenly dated April 4.
Patrick Pacelli also claimed that "our straight-job units
were vandalized" during the strike; it would cost "in
excess of $100,000 or whatever to have these vehicles
fixed"; and "we didn't feel that . we could make it
.... " Elsewhere, Patrick Pacelli recalled that on April
27, when the strike started, and again on May 4, he
"asked" some 12 to 14 striking employees "to come back
to work." And, later, on May 11, Patrick Pacelli wrote
the strikers (Resp. Exh. 2): ". . . we have work available
for you and again ask all employees to return to work
Robert Pacelli, secretary-treasurer of Respondent, also
denied the coercive and discriminatory conduct attribut-
ed to him. Robert Pacelli denied, inter alia, any knowl-
edge of union activities on December 18 through 20,
1978. Robert Pacelli claimed that management conducted
a meeting with its drivers on the evening of December
19 at the request of employee Paul Courchene and
"nothing" was mentioned "about any Union activity that
was taking place." Robert Pacelli acknowledged that the
subjects discussed at this meeting included "more
money"; "improve the medical insurance"; "more vaca-
tions"; and "overages, shortages and damages." Robert
Pacelli claimed that no threats or promises of benefit
were made to the employees at this meeting.
Further, Robert Pacelli claimed that employee DiLel-
la's "hours were cut back" commencing during late De-
1404
PACE MOTOR LINES, INC
cember "because we didn't have a great volume of
freight coming in at that time" and DiLella "was the last
man of hire on the straight-jobs." Robert Pacelli claimed
that thereafter, on February 9, DiLella requested "a
layoff slip" because he could not "survive on this kind of
pay...." Robert Pacelli then requested DiLella to sur-
render his toll plate. In addition, Robert Pacelli claimed
that Gerald Marron informed him during early Decem-
ber that both Gerald and William Marron would be ter-
minating their employment at the end of December to
open up a "truck stop"; that Pacelli therefore started
breaking in new drivers on their runs; and that the Mar-
rons in fact quit on December 22, 1978. Robert Pacelli
denied any knowledge of their union activities prior to
December 22, 1978.
Robert Pacelli was a passenger in William Pacelli's car
on January 10 when William Pacelli shot mace at Union
Representatives Rossetti and Manente. Robert Pacelli
claimed that Rossetti, and his group, cursed and threat-
ened the Pacellis, kicked their car, extended his hand
with a revolver pointed at William Pacelli, and then Wil-
liam Pacelli "squirted him with the mace and we just-
then we left." Robert Pacelli next denied hitting any
pickets with a truck during the strike. Robert Pacelli
claimed that a vehicle, which later did have an accident
with a truck driven by him, ran into the rear of his truck
while stopped at a traffic light. Robert Pacelli also
claimed that driver Zamfino "was supposed to come in
and see me" and "he never did." Zamfino assertedly
"had a problem . . ."; "we wanted to bring him into the
office to speak to him to see if we could straighten it
out"; "he never called me and he never called in that
night." 7
I have quoted and summarized in sections A through
G above the testimony of Anthony DeSanto, John Di-
Lella, James Canganelly, Frank Zamfino, Thomas
7 Robert Shine testified that he was a passenger in the truck driven by
Robert Pacelli during the strike when it was assertedly struck in the rear
by a passenger car. Robert Shine claimed that "we were just about to
[come] to a complete stop when we got hit in the back . . Robert
Shine also denied that there was "any" conversation between William Pa-
celli and drver Stroomer on December 20 because Stroomer had "left"
the terminal earlier that day. Elsewhere in his testimony, Robert Shine
became uncertain and vague about the sequence of events on December
20.
Robert Shine also testified that he gave Zamfino his "paperwork" and
assignment on April 3 and "about 5 minutes later he [Zamfino] pulled the
truck up front, came in, dropped his paperwork down and said. 'that
truck smokes I'm going home' . ." Nothing else was said And. Wil-
liam Shine claimed that he later told Zamfino on April 3 to "call Bobby
in the morning."
Paul Courchene testified that the December 19 meeting was called at
his behest and "the word Union never came up in the meeting." He
denied hearing any promises of benefit or threats He also claimed that
coworker Canganelly's wife prepared the "petition" and there was no
"small piece of paper . .. in Mr. Canganelly's possession." He acknowAl-
edged that-although the "petition" refers to the employees being "under
the influence of alcohol"--in fact "nobody was really under the influence
or intoxicated at the time we signed
Michael Brooks, warehouse manager for William B. Meyers, operators
of a warehouse and distribution center, testified that before the strike Re-
spondent was a prime carrier for Meyers. that Respondent no longer does
any work for Meyers; that the Charging Party Union represents Meyers'
employees; that Meyers' employees have refused to handle Respondent's
goods; and that Meyers, in his view, would refuse to service Respondent
if they made a delivery to the warehouse Respondent, before the strke,
handled about 6 or 7 truckloads of goods at Meyers daily
Elcyzk, Paul Birdsall, Neil Stroomer, William and
Gerald Marron, Ralph Manente, Alfred Smith, Carmine
Verdi, Daniel Streit, Joseph Maglione, Joseph Bennetta,
Stephen Knapp, Mark Majowski, Robert Fulton, and
Jerry Rynich. The testimony of these 19 witnesses clear-
ly establishes Respondent's widespread pattern of threats,
coercion, interference, and discrimination in an attempt
to defeat the employees' organizational effort. The testi-
mony of these 19 witnesses, as detailed above, is in sig-
nificant part mutually corroborative of management's
widespread pattern of coercive opposition to the employ-
ees' attempt to obtain union representation. Further, the
testimony of these 19 witnesses withstood the test of
thorough cross-examination. And, relying also upon de-
meanor, I am persuaded here that this testimony, as
quoted above, is complete, reliable, and trustworthy. 1
On the other hand, I find the conclusionary and often
summary denials by William, Patrick, and Robert Pacelli
of unlawful conduct attributed to them, as summarized in
section H above, to be incredible and unreliable. Their
testimony was at times vague, evasive, incomplete, and
contradictory. An example of the unreliability of the tes-
timony of the Pacellis is found in the testimony of Wil-
liam Pacelli. He, in my view, gave untrue testimony
before the Connecticut unemployment agency in an
effort to defeat employee Birdsall's claim. When con-
fronted with this conflict at this hearing, he attempted to
brush it aside as a mistake of dates. The testimony of
Patrick and Robert Pacelli contain similar and related in-
consistencies and infirmities.
In sum, as discussed below, I find and conclude here
that Respondent, by William, Patrick, and Robert Pa-
celli, threatened, coerced, restrained, and discriminated
against its employees as alleged. Their acts of miscon-
duct included coercive interrogations, threats, promises
of benefits, surveillance, impression of surveillance,
bodily injury and property damage, solicitation of em-
ployees to disavow the Union, and the discharge of
union supporters and, later, unfair labor practice strik-
ers. '9
7' In crediting the testimony of the above witnesses, I note particularly
the detailed and complete testimony of driver-dispatcher DeSanto. De-
Santo initially worked with management until the middle of the strike in
May 1979 His close observations of management's coercive conduct are
trustworthy and reliable.
9 1 also do not credit the testimony of Robert and William Shine or
the testimony of Paul Courchene, as quoted above in sec. H. In particu-
lar. I find the testimony of Bennetta (see sec F above) to be more reli-
able and trustworthy concerning the damage done to his vehicle by
Robert Pacelli than the assertions of Robert Shine I also do not credit
Robert Shine's attempt to contradict Stroomer's testimony concerning a
conversation with William Pacelli on December 20; William and Robert
Shine's attempt to contradict Zamfino's testimony concerning the events
attending his discharge; and Paul Courchene's attempt to substantiate in
part Respondent's denials of certain coercive conduct at the December
19 meeting or its later involvement in circulating the antiunion disavowal
petition. Robert and William Shine and Paul Courchene did not, on this
record, impress me as reliable and truthworthy witnesses.
I would, however, credit both Bernard Bodin and Michael Brooks con-
cerning their prestrike and poststrike business relationships with Respond-
ent, as recited above.
1405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. DISCUSSION
Section 8(a)(1) of the Act makes it an unfair labor
practice for an employer "to interfere with, restrain, or
coerce employees in the exercise of" the rights guaran-
teed them in Section 7 of the Act. The latter section pro-
vides that employees "shall have the right to self-organi-
zation, to form, join, or assist labor organizations, to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection, and shall have the right to refrain from
any or all such activities .... " The credited testimony,
summarized supra, establishes that the Employer, in re-
sponse to the Union's organizational drive, embarked
upon an extensive antiunion effort calculated to deprive
the employees of "the complete and unhampered free-
dom of choice" guaranteed them in Section 7 of the Act.
N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 588 (1941).
A. Coercive Interrogations, Threats, Promises of
Benefit
The employees initiated their search for union repre-
sentation during late 1978. Management immediately re-
sponded with threats and coercive interrogations. Thus,
employee Canganelly credibly recalled how Company
Representative Patrick Pacelli confronted him at work
with the rumor that the Marron brothers "were going to
pass out Union cards" at the employees' Christmas party.
Canganelly claimed that he knew nothing "about any-
body passing out Union cards .... " Patrick Pacelli
threatened Canganelly that if "in fact [the employees]
did sign Union cards, they would reduce the force in the
shop . ... Pace would never become Union . . . . He'd
die at the fence first .... " Following the employees'
Christmas party, Patrick Pacelli again quizzed Canganel-
ly at work, "if' the employee "in fact had signed a card
.... " Canganelly acknowledged to Patrick Pacelli that
he had joined the Union. Shortly thereafter, Patrick Pa-
celli approached Canganelly at work and threatened that
"if [the employees] continued on the course we were
going . . . he would cut the routes down, eliminate the
Massachusetts run . . . and all the [refrigerated service]
work . . . ."
Employees William and Gerald Marron organized the
employees' Christmas party which was held on Decem-
ber 16, 1978. At this party, workers were solicited to
sign union membership cards. Gerald Marron credibly
recalled how Company Representative Patrick Pacelli
confronted him during early December with the "rumor
going on that Union cards were going to be passed out
at the Christmas Party." Gerald Marron denied any
knowledge of the "rumor." As discussed below, both
Gerald and William Marron were later discriminatorily
discharged by Respondent. And, when Gerald Marron
telephoned Company Representative William Pacelli in
an attempt "to try to get [his] job back," William Pacelli
responded, "What's done is done," and then "hung up."
In like vein, as employee Stroomer credibly testified,
William Pacelli confronted Stroomer at work and "asked
how the Christmas party was . . ." and "if anybody
signed a Union authorization card." Stroomer admitted
that he had signed a card. William Pacelli warned that
"they would never have a Union in this place"-"he
would close the doors and lay everybody off before a
Union got in there . . . ."
I find and conclude that Company Representatives
Patrick and William Pacelli, by the foregoing conduct,
violated Section 8(a)(l) of the Act. The Pacellis' repeat-
ed unwarranted attempts to discover which employees
were involved in the union campaign and to pry into
protected union activities, coupled with management's
stated opposition to unionization and threats of reprisal
and retaliation, constitute the kind of coercive interroga-
tion proscribed by Section 8(a)(1). See N.L.R.B. v. Glad-
ding Keystone Corporation, 435 F.2d 129, 132-133 (2d Cir.
1970); and N.L.R.B. v. Novelty Products Co., 424 F.2d
748, 751 (2d Cir. 1970). Moreover, management's warn-
ings to these interrogated employees that the Employer
"would never become Union," "would reduce the
force," "would cut the routes," "elminate" work, "would
close the doors," and "lay everybody off' are unlawful
threats in violation of Section 8(a)(1). These statements
by top management were not "carefully phrased on the
basis of objective fact to convey an Employer's belief as
to demonstrably probable consequences beyond his con-
trol . . . ." See N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575, 616-620 (1969).
The credited evidence of record also shows that upper
management, on the evening of December 19, 1978,
made promises of benefit to its assembled employees,
"with the express purpose of impinging upon their free-
dom of choice for or against unionization, and . . . rea-
sonably calculated to have that effect," in violation of
Section 8(a)(1) of the Act. See N.L.R.B. v. Exchange
Parts Company, 375 U.S. 405, 408-410 (1964); N.L.R.B.
v. Orleans Mfg. Co., Inc., 412 F.2d 94, 96-97 (2d Cir.
1969). Thus, as dispatcher-driver DeSanto credibly re-
called, Company Representative Patrick Pacelli made
clear to the assembled employees at the December 19
meeting that Respondent "will remain a non-Union Com-
pany as long as we own it"-"he'd die at the fence
first."20 William Pacelli warned the assembled employees
about "trimming down the operation, parking the
straight-jobs, cancellation of the meat operation ....
and the rest of the guys wouldn't work." Representatives
of management then "brought out" driver "overage,
shortage and damage" records. The assembled drivers
were admonished: "[W]e tolerate these records . . . if
you worked for a Union . . . you wouldn't be working
there . . . ."
Further, as employee Zamfino credibly recalled, Pat-
rick Pacelli threatened the drivers on December 19:
". .. this is not a Union shop . . . if you want a Union
shop go work someplace else .... " Employee Elcyzk
credibly recalled how, at this meeting, Patrick Pacelli so-
licited employee complaints-"he wanted to know better
ways we could straighten out the place without a Union
and work things out .... " Elcyzk was assured by Wil-
liam Pacelli that his complaints "would be straightened
z0 DeSanto credibly recalled how Patrick had instructed him "to tell
the drivers that [management] could give them higher wages, better va-
cations [and] better medical plans . . ."
1406
PACE MOTOR L INES, INC
out." Elcyzk also witnessed Patrick Pacelli make clear to
the employees:
We want to try to work it out without a Union . . .
we would get profit sharing .... better equip-
ment, more money, better insurance with dental
. . . and stuff like that.
If the Union did come in . . . he would close the
doors .. . . he was going to get rid of the [straight-
job] drivers. 21
In sum, upper management, at this December 19 meet-
ing, resorted to unlawful promises of benefit and threats
of reprisal and retaliation in a further attempt to stop the
Union's organizational campaign. Management's threats
and promises, on this record, are not privileged "free
speech" under Section 8(c) of the Act. See Irving Air
Chute Company, Inc. v. A.:L.R.B., 350 F.2d 176, 180-181
(2d Cir. 1965); N.L.R.B. v. Gissel Packing Co., Inc., supra
at 616-620.
B. Surveillance and Creating the Impression of
Surveillance, Instigating a Disavowal Petition, Violence
"The law is clear that an employer's surveillance of
union activity can unlawfully inhibit the exercise of
rights to engage in concerted activity" in violation of
Section 8(a)(1). Cf. .L.R.B. v. Aero Corporation, 581
F.2d 511 (5th Cir. 1978). An employer may also violate
this statutory proscription by "creating an impression of
surveillance" of employee union activity. Cf. N.L.R.B. v.
Redwing Carriers, Inc., 586 F.2d 1066 (5th Cir. 1978).
The credited evidence of record here makes it plain that
management violated Section 8(a)(1) when it broke into
employee DiLella's automobile and removed an envelope
containing blank union cards and, in addition, when it
later disclosed to its employees that it was aware of their
protected union activities.
Thus, as driver-dispatcher DeSanto credibly testified,
Company Representative William Pacelli broke into em-
ployee DiLella's automobile while it was parked in the
Employer's lot shortly after the employees' Christmas
party; removed an envelope containing blank union au-
thorization cards; and then showed the envelope to his
brother, Patrick Pacelli.22 Further, DeSanto credibly re-
called how, later that same week, he saw a copy of the
envelope removed from the DiLella car, with the writ-
ing: "Pat, this is your rat." And, employee Elcyzk credi-
bly testified how Patrick Pacelli "called" him and De-
Santo into a storage room at the terminal that same week
and then showed "a photostatic copy of an envelope
with Johnny DiLella's name on it" and the writing
"Here's your rat." Patrick Pacelli stated that he got the
envelope "from somebody in the Union."
William and Patrick Pacelli, by the foregoing conduct,
had engaged in surveillance of employee protected activ-
'' Employee Birdsall credibly recalled how Patrick Pacelli warned:
"They'd never be a Union barn; they would close the doors and start
over again .. .
22 As discussed below, DiLella was thereafter discriminatorily denied
work and ultimately discharged.
ities and had also created the impression that they were
engaging in such surveillance. And, as employee Gerald
Marron credibly testified, Patrick Pacelli stated to
Marron that "he had heard a rumor going on that Union
cards were going to be passed out at the Ghristmas party
.... " Likewise, as employee Canganelly credibly testi-
fied, Patrick Pacelli stated to Canganelly that "he had
heard the Marrons were going to have this Christmas
party and they were going to pass out Union cards
.... " Respondent, by this conduct, further impinged
upon employee Section 7 rights.
In addition, as the court restated in V.L.R.B. v. Pope
.Maintenance Corporation, 573 F.2d 898 (5th Cir. 1978),
"It is a violation of 8(a)(1) for an employer to 'induce
employees to sign any . . . form of union repudiating
document, particularly where the solicitation is strength-
ened by express or implied threats of reprisal or promises
of economic benefit."' The credited evidence of record
here establishes that Respondent violated Section 8(a)(1)
by threatening and coercing employee Canganelly and
thereby instigating him to prepare and circulate a peti-
tion whereby the employees disavowed their previously
executed union designations.
Thus, Canganelly was coercively interrogated by Pat-
rick Pacelli about employee union activities. He was, at
the same time, threatened with the elimination of jobs
and other reprisals. 2 Later, Patrick Pacelli again coer-
cively interrogated Canganelly and again threatened him.
Patrick Pacelli thereafter prepared the basic format for a
petition to be prepared by Canganelly and circulated
among the employees in order "to save the jobs." The
petition, signed by some 18 employees, attempted "to
withdraw our applications for Union admittance" be-
cause the employees assertedly were "under the influ-
ence of alcohol" at the time they signed. Canganelly and
other employees acknowledged that the petition's recitals
were untrue. This petition was circulated at the Employ-
er's Christmas party and later turned over to Patrick Pa-
celli for mailing. Such conduct plainly tended to inter-
fere with employee Section 7 rights.
Moreover, as the court stated in Heavenly Valley Ski
Area v. N.L.R.B., 552 F.2d 269 (9th Cir. 1977), "It is set-
tled that employer assaults upon union agents in the pres-
ence of employees constitute a restraint and coercion of
employees in the exercise of their rights under Section 7
.... " Dispatcher-driver DeSanto credibly testified how
William Pacelli, without provocation, sprayed mace on
union representatives who were attempting to handbill
and solicit employee support. Indeed, later, during the
30-day strike, Robert Pacelli drove a truck over picket
Maglione in the presence of striking employees. As De-
Santo recalled, Robert Pacelli subsequently commented,
"I really made that bastard jump when I rounded the
corner, didn't I." Robert Pacelli similarly backed his
truck into a picket's automobile, and then commented,
"It sure was a nice car." I find and conclude that upper
management intentionally engaged in the above acts of
violence and property damage as part of its continuing
2" Management. as noted above, also held a meeting of the drivers
where threats and promises of benefit were made
1407
DECISIONS O()F NATIONALI I.ABOR RELATIONS HOARD
opposition to the employees' organizational effort in vio-
lation of Section 8(a)(1).24
C. The Discriminatory Discharges of Employees
DiLella and Gerald and William Marron
1. DiLella
As found supra, employee DiLella solicited the union
membership of his coworkers at the employees' Decem-
ber 16 Christmas party. On the following Monday, De-
cember 18, as driver-dispatcher DeSanto credibly testi-
fied, William Pacelli broke into DiLella's automobile and
removed from the automobile an envelope containing
blank union cards. And, later that same week, as employ-
ee Elcyzk credibly testifiei:
Patrick Pacelli . . . showed me a photostatic copy
of an envelope with Johnny DiLella's name on it
. . . and a circle and a line pointing to Johnny's
name. It says, "Here's your rat .... " Patrick Pa-
celli told [Elcyzk] he got it from somebody in the
Union.
In addition, as found above, management was also en-
gaging in extensive coercive interrogations and threats.
During the prior 3-to-4 month period, DiLella worked
"every day" for the Employer. Following December 18,
he worked some 3 days in December, some 13 days in
January, and no days in February. DeSanto credibly ex-
plained that there was in fact work available for DiLella
during this period; however, upper management instruct-
ed DeSanto not to give this work to DiLella. Ultimately,
on February 9, DiLella was laid off.
Robert Pacelli asserted that DiLella's "hours were cut
back" commencing during late December "because we
didn't have a great volume of freight coming in at that
time." I do not credit this unsubstantiated assertion on
the part of upper management. I find and conclude in-
stead that the real reason for management's reducing Di-
Lella's hours of work and later laying him off was his
known union activities. Respondent, by this conduct,
violated Section 8(a)(1) and (3) of the Act.
2. The Marron brothers
The Marron brothers, like DiLella, also played a
prominent role in initiating the employees' organizational
campaign. The Marron brothers were chiefly responsible
for arranging the December 16 Christmas party where
24 Counsel for Respondent, in his post-hearing brief, renews his motion
to dismiss par. 6(a) of the amended consolidated complaint as niot sup-
ported by the record. The motion is granted. The record does not estab-
lish this particular incident of alleged coercion. Counsel for Respondent,
in his brief, also seeks to dismiss other allegations relying upon. inter alia.
variances between the credible testimony and the allegations of the com-
plaint. These variances, often concerning dates, are not material or sig-
nificant. The coercive conduct found above was sufficiently pleaded and,
in any event, fully litigated on this record
Counsel for Respondent also renews his motion to dismiss the General
Counsel's amended allegation that Torrino Pacelli, father of William,
Robert, and Patrick Pacelli (admitted supervisors and agents of Respond-
ent), was also a supervisor and/or agent of Respondent. It is unnecessary
for me to resolve this dispute. All unfair labor practice conduct involving
Torrino, as found supra, occurred in the presence of one or more of his
sons at Respondent's terminal.
the employees signed union membership cards. Gerald
Marron credibly recalled that, during early December,
Patrick Pacelli questioned him at work about a "rumor
going on that Union cards were going to be passed out
at the Christmas party." Canganelly also credibly testi-
fied that, about Thanksgiving week, Patrick Pacelli ques-
tioned him about a rumor that "the Marrons were going
to have this Christmas party and they were going to pass
out Union cards at that time ... ."
In the past, the Marron brothers were usually assigned
runs in the Massachusetts area. They regarded these runs
as more desirable. However, as Gerald Marron credibly
recalled, following his interrogation by Patrick Pacelli,
during the week preceding the Christmas party, he was
assigned to the New Jersey-New York area. Likewise, as
William Marron credibly recalled, on the Monday fol-
lowing the Christmas party, he too was assigned to the
Connecticut and New Jersey-New York area. The
Marron brothers decided to "book off' or take time off
the week of December 18. When they returned to the
terminal on December 22 to "book on" and get their
paychecks for the prior week, they were instructed by
William Pacelli to surrender their toll or charge plates.
Gerald Marron was given his personal property which
he had left in his truck. About I week later, during late
December, Gerald Marron telephoned William Pacelli
"to explain" that they were not responsible for "passing"
out the cards at the December 16 Christmas party and to
get their "job[s] back." William Pacelli responded:
"What's done is done." He then "hung up."
The Pacellis claim that the Marron brothers "quit" on
December 22. I discredit this assertion. As recited above,
I find the testimony of the Pacellis to be unreliable and
untrustworthy. Instead, I find on this record that man-
agement discharged the Marrons on December 22, after
giving them less desirable job assignments, because man-
agement held them responsible for the union activity at
the December 16 Christmas party. The elimination of the
Marron brothers, like the reduction in work and firing of
DiLella, was in retaliation for employee Section 7 activi-
ties in violation of Section 8(a)(1) and (3) of the Act.
3. The elimination of CB radios
The credited testimony of DeSanto and William
Marron, as recited above, shows that, on or about De-
cember 18, management posted a notice banning the use
by its drivers of CB equipment. DeSanto recalled that he
then overheard Torrino Pacelli, father of Company Rep-
resentatives Patrick, William, and Robert Pacelli, telling
Patrick in the terminal dispatch room that employees
"shouldn't have the CB radios in the trucks because
other drivers would harass them on the road and tell
them to go Union."
William Pacelli asserted that the notice forbidding the
use by drivers of CB equipment was posted during the
first week of December. He also asserted that the reason
for this notice was that the drivers, by their conversa-
tions on their CB radios, were exposing the Employer to
fines by the state police for excessive weight violations.
As recited above, I do not find William Pacelli to be a
reliable or trusthworthy witness. I do not credit his as-
1408
PACE MOTOR LINES, INC.
sertions that he posted the above notice before the union
campaign or that the reason for the posting was exces-
sive weight fines. Instead, I find and conclude that this
rule change was summarily posted on December 18, at
the inception of the Union's campaign, and that the real
reason for the posting was, as discussed between Torrino
and Company Representative Patrick Pacelli, to discour-
age union activities on the part of the drivers. Respond-
ent, by promulgating this rule change for this antiunion
reason, violated Section 8(a)(1) and (3) of the Act. Cf.
N.L.R.B. v. Johnson's Industrial Caterers, 478 F.2d 1208
(6th Cir. 1973); Capital Electric Power Association, 171
NLRB 262, 270 (1968).
D. The Firing of Employee Zamfino
As found supra, the employees initiated their organiza-
tional drive during late 1978. A representation petition
was filed on December 19, 1978. On that same day, man-
agement met with its employees and, as employee
Elcyzk credibly recalled, "they wanted to know our
bitch" and "better ways we could straighten out the
place without a Union .... " The employees asked for,
inter alia, "better equipment." Elcyzk complained to
management how he had to drive a truck "without
lights." Elcyzk was assured that "we [the employees]
wouldn't have to go through that no more," and the em-
ployees were promised "better equipment." During the
ensuing months, management, in resisting the Union's
continuing campaign, engaged in widespread 8(a)(1) and
(3) violations, as fourn above.
Employee Zamfino credibly testified that, during
March 1979, he had been involved in an accident as a
result of faulty brakes on his truck. Thereafter, on or
about April 3, 1979, after he reported for work, Dis-
patcher Robert Shine assigned him an unsafe vehicle.
Zamfino credibly explained: ". . . smoke filled the cab
and there was no safety equipment." Zamfino declined to
operate this unsafe equipment. He was then assigned an-
other vehicle which was also unsafe. Zamfino credibly
explained: "[T]he seat was too low," it could not be ad-
justed, and there was a 90-degree play in the steering
wheel. He declined to operate this vehicle and was sent
home. Later, by letter dated April 3 (see G.C. Exh. 24),
Zamfino was notified by Patrick Pacelli:
On April 2, 1979 [sic], you reported to work and
were assigned a truck, you refused to take it. You
then were assigned another truck, you also refused
to take it. You went home in a laughing attitude,
not caring about your job or the customers that will
not be getting their freight.
This is the last time we will tolerate your childish
attitude. As far as I am concerned you quit your job
and you no longer work at Pace Motor Lines, Inc.
Zamfino credibly testified that, when he subsequently
telephoned the Employer and asked Dispatcher William
Shine for a "starting time," he was told "you're all
done."
Zamfino thereupon contacted Union Representative
Rossetti and assisted in renewing the Union's organiza-
tional drive. Zamfino explained his discharge to his co-
workers; he secured new union authorization cards from
them; and he urged his coworkers to strike the Employ-
er. The strike, as noted, started on April 27, 1979. Em-
ployee Canganelly credibly recalled how Zamfino, in so-
liciting Canganelly's signature to a second union card on
or about April 7, explained how he had been fired for
refusing to drive unsafe equipment, and stated "[l]t's
about time we got some protection." Canganelly added:
"We're having a lot of problems with unsafe vehicles. I
signed the card because it was true."
I find and conclude, on this record, that Zamfino was
discharged because he refused to operate vehicles which
were in fact dangerous and unsafe. I reject as pretextual
Respondent's assertion that Zamfino was fired because
he failed "to call in" after the April 3 incident. Indeed,
Respondent's letter to the employee, quoted above,
makes no reference to this alleged reason.
Respondent Employer, by discharging employee Zam-
fino for refusing to operate dangerous and unsafe equip-
ment, on the credible evidence of record here, interfered
with employee protected concerted activities in violation
of Section 8(a)(l) of the Act. Thus, in Wheeling-Pitts-
burgh Steel Corporation, 241 NLRB 1214, 1221 (1979),
the Administrative Law Judge, whose findings and con-
clusions were adopted by the Board, stated:
It is well established that an employee engages in
protected concerted activity when he undertakes to
exercise a right provided for in a collective-bargain-
ing agreement .... Unquestionably, this applies to
a contractual right involving safe and healthy con-
ditions of employment ....
The Administrative Laws Judge added (at fn. 29):
Indeed, even in the absence of a contractual provi-
sion, an employee acting alone in protesting lack of
safety precautions in a plant, may, under certain cir-
cumstances, be engaging in concerted activities
guaranteed by Sec. 7 . . . with respect to a matter
of "continuing concern for all within the work
force." Alleluia Cushion Co., Inc., 221 NLRB 999,
1000 (1975); Pink Moody, Inc., 237 NLRB 39 (1978)
25
Also see Allen M. Campbell Company General Contrac-
tors, 245 NLRB 1002, 1006 (1979), where the Adminis-
trative Law Judge, whose findings and conclusions were
adopted by the Board, noted: "The Board has long held
that even lacking union representation or a collective-
bargaining agreement individual action is protected ac-
tivity under the Act if the employee is complaining
about a matter of common concern to other employees
in the same circumstances .... "
In the instant case, employee complaints about unsafe
equipment were a part of the ongoing organizational
2" The court of appeals modified the Board's decision in Wheeling-Pirs-
hurgh noting. minter alia. "Because there is ample evidence in the record to
support the finding that the refusals to operate the crane were not soli-
tary acts by Individual employees, we need not reach the issue of con-
strucltic concerted actisity Wheeling-Pittshurgh Steel Corporation
,VI.R B . hl8 F 2d (100 (3d Cir 19I)), and cases cited Cf .4RO Inc
v . L. RB, 59() F 2d 713 (Ith Cir 1970i
1409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign. Zamfino himself previously had experienced
an accident as a result of unsafe equipment. His cowork-
ers shared his concern in this respect. Under the circum-
stances, Zamfino's refusals to operate the dangerous and
unsafe trucks on or about April 3 were not solitary acts
by an individual employee. His complaints were of con-
tinuing concern to his coworkers and his complaints
would inure to the improvement of their working condi-
tions. Indeed, Zamfino, after being fired because he re-
fused to operate this dangerous and unsafe equipment, re-
lated his complaints and discharge to his coworkers, re-
newed the ongoing organizational effort, and exhorted
with success his coworkers to strike the Employer. In
sum, Zamfino was discharged because he was engaging
in protected concerted activities. Further, I perceive no
reason here why Zamfino-having attempted to get man-
agement to fulfill its oral promises of better and safer
equipment made earlier in an effort to discourage em-
ployees from getting union representation-should be
any less protected than an employee whose safety com-
plaint is embodied in a union contract.
E. The Strike
The employees commenced a strike against Respond-
ent on or about April 27, 1979. The General Counsel
argues that Respondent "fired" the strikers on April 27
when Patrick Pacelli told employee Al Smith on the
telephone:
If you [Smith] come in and a number of other guys
come in, we can break this thing . .. . He [Pacelli]
said, I also want you to know that if all these guys
don't come in, they're fired ....
Smith joined the strike and related Pacelli's telephone
conversation to various costrikers.
I have credited Smith's testimony as quoted above and
I find and conclude that Pacelli's warning to the employ-
ee constitutes an unlawful "threat designed merely to dis-
suade the employees from persisting in their course of
conduct .... " Cf. Crookston Times, 125 NLRB 304
(1959) (". .. you men must realize that if you leave your
jobs in this manner you can no longer be in the employ
of this Company"). However, I do not find and conclude
that Pacelli's statement constitutes a firing. I note, in this
respect, that management, by letters dated May 2 and
May 11 (Resp. Exhs. I and 2), "ask[ed] all employees to
continue working and/or return to work."
The General Counsel further contends that Respond-
ent "fired" the strikers during the second week of May
"by voluntarily curtailing the business operations of Re-
spondent." I have credited the testimony of driver-dis-
patcher DeSanto that Patrick Pacelli instructed him
some 10 days into the month-long strike "to tell the cus-
tomers we're giving up our Massachusetts and Rhode
Island operation, and we're not handling refrigerated
merchandise any more .... " And, as discussed below, I
find and conclude that, when the month-long strike
ended, Respondent did not make a good-faith effort to
recoup its prestrike business in order to delay or block
the return of striking employees and thus further discour-
age their union activities. However, although the issue is
not free from doubt, this record does not sufficiently
show that Respondent in fact discharged any of the strik-
ers during the strike. Again, I note that Respondent, by
letters dated May 2 and May II, "ask[ed] all employees
to continue working and/or return to work." I cannot
reasonably find here that Respondent, had striking em-
ployees attempted to return before the strike's end,
would not have accepted their applications. This uncer-
tainty becomes even more apparent when assessed in the
context of an Employer whose operations were being
disrupted to some extent by a strike and who was at-
tempting at least in part to continue the operations. In
sum, the General Counsel has not proven that Respond-
ent fired the strikers during the strike or, alternatively,
reasonably led the strikers to believe that they were
fired.
The question remains as to the nature of the strike
which commenced on or about April 27 and ended on or
about May 24, 1979. Under settled principles, where an
employer's unfair labor practice conduct constitutes "one
of the causes of [a] strike . . . the strike is an unfair labor
practice strike and the strikers [are] protected against re-
placement during the period of the strike.
N.L.R.B. v. Milco, Inc., 388 F.2d 133, 139 (2d Cir. 1968).
In N.L.R.B. v. Southland Cork Company, 342 F.2d 702,
707-708 (4th Cir. 1965), the Board found that the em-
ployer's unfair labor practices were "a principal cause of
the strike .... " The court stated:
Agreement of the parties that the touring episode
"triggered" the strike still fails to provide the
answer as to the cause and nature of the strike. The
triggering event did not displace all that had gone
before, as the company argues and the Examiner
seemed to think. On the other hand, it would not
necessarily constitute an independent threat viola-
tive of Section 8(a)(1), as the Board held. In the
view we take of the case we find it unnecessary to
characterize with precision the touring of applicants
through the plant. It is sufficient to say that the
Board was well warranted in holding that the un-
derlying cause, as distinguished from the immediate
cause of the strike, was the intransigence of the em-
ployer and its dilatory tactics in respect to bargain-
ing sessions. The aphorism concerning "the straw
that broke the camel's back" expresses less than the
truth if it is understood to attribute to the final
straw sole responsibility while exonerating the
much heavier burden imposed by the many straws
that preceded it. Even if the parading through the
plant was the exasperating "last straw," it did not
outweigh the persistent accumulation of earlier vio-
lations, and it would be an unjustifiable perversion
of the record to conclude that they had no bearing
on the union's decision to strike.
The court concluded that "the strike was the fruit of full
grown seeds earlier sown" by the employer, and that:
. . . [b]ecause this was an unfair labor practice
strike, the strikers were entitled to immediate rein-
statement to their jobs, and Southland's delay in re-
1410
PACE MOTOR LINES, INC.
instating them was violative of [S]ection 8(a)(3) and
(I) of the Act. Mastro Plastics Corp. v. N.L.R.B.,
350 U.S. 270, 278, 76 S.Ct. 349, 100 L.Ed. 309
(1956).26
The credited evidence of record here shows that the
unlawful discharge of Zamfino was the immediate cause
or triggering event of the strike. Thus, Zamfino, follow-
ing his firing, renewed the Union's organizational drive,
signed up his coworkers, explained his complaints per-
taining to safer and better working conditions, and urged
his coworkers to strike. As employee Streit credibly tes-
tified, Zamfino stated to him, while soliciting him to sign
a union card on April 7, "that [Zamfino] was going to
organize the Union so that he could get his job back."
Streit joined the strike which commenced some 3 weeks
later. Further, as Canganelly credibly recalled, Zamfino
wanted Canganelly "to sign another Union card because
he [Zamfino] just had some problems, and he had been
fired from Pace. He didn't want to drive some pieces of
equipment that he deemed unsafe . . . . He said . . . it's
about time we got some protection, institute some safety
methods .... " Zamfino thereafter arranged for the
drivers to meet and commence their strike on the morn-
ing of April 27.
I find and conclude that the unlawful firing of Zam-
fino was a cause of the strike and the strike was there-
fore an unfair labor practice strike. However, Zamfino's
firing cannot be viewed in a vacuum. While perhaps
Zamfino's firing was the"last straw," it "did not
outweigh the persistent accumulation of earlier viola-
tions," and "it would be an unjustifiable perversion of
the record to conclude that they had no bearing on the
Union's decision to strike." This strike was also "fruit of
the full grown seeds earlier sown" by the Employer.
Southland Cork, supra. In sum, I find and conclude here
that management's earlier threats, coercive interroga-
tions, promises of benefit, discriminatory discharges,
macing of the Union's business agent, and related unlaw-
ful conduct were also causes of this strike. 27
As found supra, on or about May 24, 1979, at the
strike's end, 10 striking employees made unconditional
applications to return to work. 2 s Management rejected
their applications. A few days later, DeSanto similarly
applied for reinstatement and, as he credibly testified,
management did not offer him reinstatement. Counsel for
Respondent, in attempting to justify the rejection of em-
ployee applications to return to work at the strike's end,
argues "that its involuntary curtailment of business was
due to business necessity and not for the purpose of chill-
ing unionism." I reject this contention as not supported
by the credible evidence of record and, instead, find and
" Moreover, even where a strike has been held not to be an unfair
labor practice strike at its inception, an employer's unlawful actions
which prolong the strike may convert the strike into an unfair labor prac-
tice strike See NL.R.B v. Plastilite Corporation, 375 F 2d 243, 248 (8th
Cir. 1967).
27 Alternatively, management, during this stnke, threatened employee
Smith with discharge if employees "didn't come in" and later ran over a
picket on the picket line during the strike and caused property damage to
another picket's automobile. Such coercive conduct clearly prolonged the
strike and would therefore convert it into an unfair labor practice strike
:" Canganelly, A. Smith, Knapp. Majowski, Streit. Fulton, Verdi.
Tyler, Rynich, and P. Birdsall
conclude here that Respondent, at the strike's end, vol-
untarily curtailed its business operations and did not in
good faith attempt to recoup its prestrike customers in
order to further discourage or block employee union ac-
tivities.
Thus, Patrick Pacelli asserted that "our straight-job
units were vandalized" during the strike; "it would cost
in excess of $100,000 or whatever to have these vehicles
fixed"; and "we didn't feel that we could . . . make
it...." However, no documentary evidence (such as,
for example, police reports or insurance estimates) was
adduced to support this claim of widespread vandalism.
Indeed, by letter dated May 11, Patrick Pacelli wrote the
strikers: "We have work available for you and ask all
employees on strike to return to work." William Pacelli,
along the same lines, asserted later before the state unem-
ployment agency that there was in fact work available
for the strikers at the strike's end. In addition, I note the
credible testimony of DeSanto that the Pacellis had in-
structed him during the strike "to tell the customers
we're giving up our Massachusetts and Rhode Island op-
eration, and we're not handling refrigerated merchandise
any more. .. .`29 Further, salesman Boden of Midtown
Packing credibly recalled that the Pacellis never contact-
ed him after the strike to recover its prestrike business.
And, William Pacelli, when asked to identify from a list
of some 100 customers, "what individual called you or
what individual you called . . . who told you they
would not use your trucking any more" became vague
and evasive claiming: "I couldn't give that. I can't re-
member all that information."
In sum, on this record, Respondent's claim that strik-
ing employees "were not offered reinstatement for legiti-
mate and substantial business reasons" is not supported
by the credible evidence of record and is without merit.
Management had threatened its employees earlier that it
would reduce its operations in this manner if they per-
sisted in their union activities and, at the strike's end,
management was making clear to the strikers that it
meant what it had said. Respondent, by thus rejecting
the applications of the above 11 striking employees, vio-
lated Section 8(a)(1) and (3) of the Act. 30
Respondent further claims, inter alia, that it subse-
quently made valid offers of reinstatement to employees
Canganelly, Knapp, Rynich, Verdi, and Streit. However,
as the credible evidence of record summarized in section
9 This would account for the loss of approximately 15 unit jobs
10 The General Counsel, in his brief, lists the above I I strinking employ-
ees as unlawfully denied reinstatement during late May and early June.
The General Counsel further states that "the record does not make clear
whether [strikers] Glinsky and Harvey sought reinstatement" and argues
that, in any event, "such attempts would have no doubt been futile under
the circumstances," citing B. A' Beard Company, 248 NLRB 198 (1980). I
agree The credible proof here amply shows that, even if Glinsky and
Harvey had requested such reinstatement at the strike's end, they too
would have been denied reinstatement as a consequence of Respondent's
had-faith curtailment of operations.
In addition, although the cited Federal regulations prohibited Ma-
joswski from driving until he reached 21 years of age, the credible evi-
dence of record shows here that management, in the past, was fully
aware of Majowski's age and belatedly asserted this disability in an at-
tempt to justify its refusal to offer reinstatement to this unfair labor prac-
tice striker I note that Majowski became 21 years of age in November
1979 Cf AIL.R.B v Sure-Tan, Inc., 583 F 2d 355, 359 (7th Cir 1978).
1411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G shows, management did not in fact make valid or
good-faith offers of reinstatement to these unfair labor
practice strikers. Thus, management's alleged offers of
reinstatement to Canganelly and Knapp were with refer-
ence to possible "night work" and not to "day work"
previously performed by the employees. Cf. Trinity
Valley Iron and Steel Company, 158 NLRB 890, 895-896
(1966); Trailmobile Division, Pullman Incorporated, 168
NLRB 230 (1967). Likewise, management's alleged offer
of reinstatement to Rynich was for possible part-time
work. Rynich had been working full time before the
strike. And, management clearly did not afford Verdi
sufficient or reasonable time to reply to its alleged offer.
Moreover, on this record, I do not find that management
made a sufficient good-faith effort to communicate an al-
leged offer of reinstatement to Streit, as alleged. Cf. J. H.
Rutter Rex Management Company, Inc., 158 NLRB 1414,
1524 (1965).
In sum, I find and conclude here that Respondent vio-
lated Section 8(a)(1) and (3) of the Act by coercive inter-
rogations, threats, promises of benefits, the inducement
of a disavowal petition, the reduction in the hours of and
discharge of employee DiLella, surveillance and the im-
pression of surveillance, personal injury and property
damages, the discharge of employees Gerald and William
Marron after giving them less desirable work, the dis-
charge of employee Zamfino, the causing of an unfair
labor practice strike, and the failure to reinstate unfair
labor practice strikers upon their unconditional applica-
tions to return to work.
Ill. THE REPRESENTATION PROCEEDINGS
A. The Union's Challenges
The Union initially challenged six voters as supervi-
sors;31 two voters as salesmen excluded from the unit;32
and three voters as not employees. 33 The Union chal-
lenged 15 other voters as possibly ineligible to vote.3 4
Thereafter, at the hearing, the Union withdrew 13 of its
challenges,3" and it was stipulated that the challenge of
Harrison should be sustained. Counsel for Respondent
further agrees that the challenges of Kernecky and Derr
should be sustained. The pertinent evidence adduced in
support of the Union's remaining challenges, and discus-
sion, is stated below:
The Union argues that W. Shine, R. Phillips, R. Ber-
nard, D. Newton, and J. Smith are supervisors. A super-
visor is defined in Section 2(11) of the Act as:
. . .any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or disci-
pline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively
" R. Phillips, R. Bernard, D. Newton, J. Smith, W. Shine, and R.
Trotta (Trotto).
":J. Kernecky and S. Derr (Denn).
" A. DeJulio, B. Campofiore, and P. Murolo.
" D. Churchill, F. Ouellette, D. Bittner, E. Dains (Davis), J.
Sobkowitch, C. Shattuck, J. Kenny, E. Harrison, E. Bernard, A. Guar-
ino, V. Stillwell, S. Zdanowicz, W. Harray, R. Pettit, and Rogers.
" Trotta (Trotto), Churchill, Ouellette, Bittner, Sobkowich, Shattuck,
Kenny, Bernard, Guarino, Stillwell, Harray, Pettit, and Rogers.
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
Actual existence of true supervisory power is to be dis-
tinguished from abstract, theoretical, or rule-book au-
thority. It is well settled that a rank-and-file employee
cannot be transformed into a supervisor merely by in-
vesting him or her with a "title and theoretical power to
perform one or more of the enumerated functions."
N.L.R.B. v. Southern Bleachery & Print Works, 257 F.2d
235, 239 (4th Cir. 1958), cert. denied 359 U.S. 911. What
is relevant is the actual authority possessed and not the
conclusory assertions of a company's officials. And while
the enumerated powers listed in Section 2(11) of the Act
are to be read in the disjunctive, the section also "states
the requirement of independence of judgment in the con-
junctive with what goes before." Poultry Enterprises, Inc.
v. N.L.R.B., 216 F.2d 798, 802 (5th Cir. 1954). Thus, the
individual must consistently display true independent
judgment in performing one of the functions in Section
2(11) of the Act. The exercise of some supervisory tasks
in a merely "routine," "clerical," "perfunctory," or "spo-
radic" manner does not elevate a rank-and-file employee
into the supervisory ranks. N.L.R.B. v. Security Guard
Service, Inc., 384 F.29 143, 146-149 (5th Cir. 1967). Nor
will the existence of independent judgment alone suffice;
for "the decisive question is whether [the individual in-
volved has] been found to possess authority to use [his or
her] independent judgment with respect to the exercise
by [him or her] of some one or more of the specific au-
thorities listed in Section 2(11) of the Act." N.L.R.B. v.
Brown & Sharpe Mfg. Co., 169 F.2d 331, 334 (Ist Cir.
1948).
DeSanto credibly testified that W. Shine was a pier
dispatcher who also drove a vehicle about two percent
of his workday. Shine's duties included calling customers
at piers to determine if ships had been unloaded; distrib-
uting tickets to drivers to pick up goods at piers; and
working at his desk in the dispatch office. Upper man-
agement also had their desks in this office. Shine would
on occasion reassign work. He did dock work about 10
to 15 minutes a day. And, DeSanto acknowledged that
Shine "did the same work for the pier workers that [De-
Santo] did for the regular drivers." Neither the Union,
nor the Employer, nor the Board claim that DeSanto is a
supervisor, although the Union generally asserts that De-
Santo did "substantially more driving than Shine."" s
DeSanto credibly recalled that R. Fhillips:
. . would come off the platform to the dispatch,
and he would pick up all the breakdown sheets for
what was on each and every trailer that came in
that night. He would take these sheets out onto the
36 Employee Elcyzk testified that he witnessed William Shine tell em-
ployee Torres that he was "fired" in 1978 and Torres did not return to
work until 3 or 4 months later. The record is not entirely clear as to the
nature of this alleged firing incident and, in addition, the testimony of W.
and R. Shine indicates that W. Shine may not have been involved in this
incident. At best, the above incident, as recalled by Elcyzk, was an isolat-
ed occurrence involving W Shine
1412
PACE MOTOR LINES, INC.
platform . . . make sure that those trucks that had
to be unloaded were unloaded, and the ones that
had to be loaded w ere loaded. He told people to
work on which truck.
The employees to whom he gave such instructions were
"dock workers." Phillips had a "make-shift office on the
platform." Jack Smith also used this "office." And, Phil-
lips did "physical work" 10 percent of the time. DeSanto
acknowledged that Phillips would be given "breakdown
sheets" with loading instructions which had been pre-
pared by Robert Pacelli. Further, DeSanto "sometimes"
prepared these or similar documents himself.
DeSanto credibly testified that R. Bernard was a
"driver-dispatcher," who "would check airfreight drivers
when they came in at night"; "would help with the set-
ting up of the loads"; and "more or less kept everything
together." Bernard "dispatched" only half of his work-
day. He drove the remaining portion of the day.
DeSanto next testified that D. Newton was "a driver"
before DeSanto "left" the Employer on May 13, 1979,
and, later, Newton assertedly became a "garage man-
ager." DiLella explained that, when he returned to work
after the strike, Newton "was running the garage." Di-
Lella credibly recalled:
When I would come in, if I had a problem, or
something, I'd have to speak to [Newton]. He'd
come out either himself or he'd send somebody to
fix the lights.
He was in charge, he was the foreman of the shop.
In addition, DeSanto credibly testified that Jack or
Joseph Smith "would run the office in the evening";
"would make sure that Bob Phillips did all his work on
the dock"; he "would make sure that all the paper work
in the office was put in its proper place and all the loads
were written down for the next day"; and he too worked
"in the dispatch office."
The Charging Party Union has failed to sufficiently
prove that R. Phillips, R. Bernard, D. Newton, J. Smith,
and W. Shine were supervisors ineligible to vote. There-
fore, these challenges are rejected. It is true that Phillips,
Bernard, Smith, and Shine performed dispatcher duties.
Their duties, in this respect, were not significantly differ-
ent from the duties performed by dispatcher DeSanto,
who was admittedly an employee. Phillips, Bernard,
Shine, and Smith have not been shown here to have con-
sistently displayed independent judgment in performing
any statutory indicia of supervisory status. At best, they
were permitted by upper management to exercise some
routine, clerical, and perfunctory supervisory tasks often
on a sporadic basis. Likewise, this record does not suffi-
ciently show that Newton, as a so-called garage "fore-
man," exercised the requisite indicia of supervisory
status. N.L.R.B. v. Security Guard Service, Inc., supra.
The Union next argues that DeJulio was William Pa-
celli's part-time gardener and not an employee of Re-
spondent; that Murolo "quit at the end of the strike";
that Campofiore is an office clerical not within the unit;
and that Zdanowicz was not an employee.
DeSanto credibly recalled that Campofiore was "an-
other night worker" at the office. Campofiore would
"type" bills-"He spent his entire shift in the office at his
desk." DeSanto also acknowledged, however, that Cam-
pofiore did some "dispatching," although "very slight."
He is an excluded office clerical.
DeSanto next recalled that Murolo worked for the
Company as a dockworker and, "at the time of the
strike," went to "work at Sikorsky Aircraft." And, De-
Santo further recalled that Zdanowicz "suffered a stroke
while he was employed .... " DeSanto was notified
that Zdanowicz "had a slight stroke, he wasn't going to
be able to work for awhile." This was 3 or 4 weeks
before the strike.
Elcyzk further testified that he observed DeJulio
during June 1979 employed as "a special police officer"
at the local railroad or bus stations and also "cutting the
grass" on one occasion at Patrick Pacelli's home.
In my view, the Union has failed to sustain its chal-
lenges of DeJulio, Zdanowicz, and Murolo. These chal-
lenges are also dismissed.37
B. The Board's Challenges
The Board agent challenged, inter alia, Toppe, Torres,
Stroomer, and G. Birdsall. As recited in section I, supra,
they had been discharged by the Employer for strike
misconduct. They are not alleged here by the General
Counsel to be employees or discriminatees. These chal-
lenges are therefore sustained.
C. The Company's Challenges
Counsel for Respondent argues in his brief that the
challenges of six employees 38 "should be sustained in
view of the fact that each of these employees had ac-
cepted permanent employment elsewhere and thereby
had abandoned his interest in his former job with Re-
spondent .... " Except with respect to Yarmosh,39 this
contention is rejected as contrary to the credible evi-
dence of record summarized above. These unfair labor
practice strikers were unlawfully denied reinstatement
prior to the election. They did not reject valid, good-
faith offers of reinstatement.
Counsel for Respondent next argues that, "as to An-
thony DeSanto's ballot, Respondent's challenge should
be sustained in view of the evidence that he voluntarily
left Respondent's employ during the strike .... " This
contention is contrary to the credible evidence of record.
DeSanto, an unfair labor practice striker, was unlawfully
denied reinstatement before the election. In addition,
counsel for Respondent asserts that Elcyzk and Semion
"both resigned" before the election. As noted, the Gen-
eral Counsel acknowledges this evidence. Accordingly,
these challenges are sustained.
Counsel for Respondent asserts:
" I would also dismiss the challenge to Dain (Davis) as not supporled
by sufficient evidence on this record
a" P. Birdsall, Verdi, Canganelly, Knapp, Rynich, and Yarmosh
39 The General Counsel acknowleges that Elcyzk, Semion, and Yar-
mosh "quit before the election."
1413
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As for Harvey he resigned on the day prior to the
commencement of the strike.....
I do not credit this assertion. Harvey was observed on
the picket line during the strike and, as found supra, he
would not have been offered reinstatement even if he
had applied.
Next, counsel for Respondent argues that Tyler was
"discharged for cause prior [to] the election." I reject
this assertion. Tyler, as found supra, was an unfair labor
practice striker unlawfully denied reinstatement. He too
was not offered reinstatement. Respondent's assertion
that Tyler "forfeited his right to vote in the election" be-
cause he assertedly used his company toll plate without
authority on May 13 to pay one toll on the Connecticut
Turnpike is rejected. Assuming that Tyler engaged in
this cited act of misconduct, I do not believe that Re-
spondent fired him for this reason; this assigned reason is
plainly an afterthought asserted in an attempt to deny the
employee reinstatement; and, in any event, in the context
of management's pervasive unfair labor practice conduct,
this cited act is not sufficient to deny the employee of his
right to reinstatement under Section 7.40
Finally, counsel for Respondent argues that Fulton
and Smith "had no expectation of recall at the time of
the election." This assertion is rejected. These unfair
labor practice strikers, as found, were unlawfully denied
reinstatement and were not later offered reinstatement. 41
In sum, I sustain the challenges of voters Harrison,
Kernecky, Derr, Toppe, Torres, Stroomer, G. Birdsall,
Yarmosh, Campofiore, Elcyzk, and Semion. All others
have not been sufficiently established by credible proofs
on this record.
D. The Objections
The Union filed timely objections to Respondent's
preelection misconduct. Its sixth objection includes the
unfair labor practice conduct of Respondent from De-
cember 19, 1978 (when the petition was filed), to August
16, 1979 (the date of the election). As detailed above,
management engaged in extensive and flagrant coercive
conduct during this preelection period. In the event the
Union (after the ballots are counted as recommended
here) does not obtain sufficient votes for a certification,
it is because of Respondent's flagrant and extensive acts
of misconduct which have interfered with the holding of
a fair and free election. Therefore, in the event the
Union is not certified after the ballots are counted, the
August 16 election will be set aside and a new election
will be directed.42
' Also without merit is Respondent's challenge against Majowski He
was, as found supra, an unfair labor practice striker unlawfully denied re-
instatement. He too was not offered reinstatement. His age disability, on
this record, does not deprive him of his employee status and Sec. 7
rights.
"1 Also without merit are Respondent's challenges to the votes of the
Marron brothers. They were, as found, discriminatorily discharged before
the strike.
" II is unnecessary for me, under these circumstances, to deal with the
Union's remaining objections.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as
alleged.
2. The Charging Party is a labor organization as al-
leged.
3. Respondent, as found supra, violated Section 8(a)(l)
and (3) of the Act by coercively interrogating and
threatening employees with respect to their union activi-
ties; offering and promising employees wage increases
and other improvements in terms and conditions of em-
ployment; instigating and soliciting employees to sign a
petition to revoke their designations of the Union as their
bargaining agent; engaging in surveillance and creating
the impression of engaging in surveillance of union activ-
ities; inflicting bodily injury and property damage upon
union representatives; discriminatorily transferring to less
desirable work and later discharging employees Gerald
and William Marron; discriminatorily providing employ-
ee DiLella with reduced hours of work and later dis-
charging him; discharging employee Zamfino because he
had engaged in protected concerted activity; discrimina-
torily requiring employees to remove CB equipment
from their vehicles; and discriminatorily failing and re-
fusing to reinstate unfair labor practice strikers upon
their unconditional applications to return to work. 43
4. Respondent's employees engaged in a strike from on
or about April 27 to May 24, 1979, which was caused
and/or prolonged by Respondent's unfair labor practices
and was therefore an unfair labor practice strike.
5. Those allegations of the consolidated complaint not
specifically found herein are dismissed as not proven by
the preponderance of the evidence.
6. The unfair labor practices found herein affect com-
merce as alleged.
7. The challenges to the ballots cast by Harrison, Ker-
necky, Derr, Toppe, Torres, Stroomer, G. Birdsall, Yar-
mosh, Elcyzk, Campofiore, and Semion are sustained.
All others are dismissed as not sufficiently proven here.
8. Objection 6 to the August 16, 1979, election, as re-
cited above, is sustained. Respondent thereby prevented
and interfered with the holding of a fair and free elec-
tion.
REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. And, as the
unfair labor practices committed by Respondent are fla-
grant and widespread, I recommend that Respondent
cease and desist from in any other manner infringing
upon rights guaranteed employees in Section 7 of the
Act.
It has been found that Respondent, in violation of Sec-
tion 8(a)(1) and (3) of the Act, transferred Gerald and
"4 As stated supra, the following strikers, found to be unfair labor prac-
tice strikers, made unconditional applications to return to work and were
unlawfully denied reinstatement Canganelly, Knapp, Majowski, Sireiti
Smith, Verdi, Tyler, Rynich, P Birdsall, Fulton, and DeSanto. And, as
found supra, had strikers Glinsky and Harvey also sought such reinstate-
ment, their applications, on this record, would have been rejected
1414
PACE MOTOR LINES, INC.
William Marron to less desirable work and later dis-
charged them; provided employee DiLella with less
hours of work and later discharged him; discharged em-
ployee Zamfino; and required employees to remove from
their vehicles all CB equipment. It will therefore be rec-
ommended that Respondent offer to the above employ-
ees immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for all losses suffered by reason of Respond-
ent's discriminatory and unlawful conduct, by making
payment to them of a sum of money equal to that which
they normally would have earned from the date of Re-
spondent's discriminatory and unlawful conduct to the
date of Resnondent's offer of reinstatement, less net earn-
ings during such period, with backpay and interest there-
on to be computed as provided in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977). 44 It will also be recommended
that Respondent rescind and revoke its rule requiring
drivers to remove from their vehicles all CB equipment.
It has also been found that Respondent, in violation of
Section 8(a)(l) and (3) of the Act, unlawfully denied un-
conditional applications for reinstatement from employ-
ees who were unfair labor practice strikers. 45 It will
therefore be recommended that Respondent offer them
immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them
whole for any losses sustained by reason of Respondent's
unlawful and discriminatory conduct, with interest, as
provided above.
It will further be recommended that Respondent pre-
serve and make available to the Board, or its agents,
upon request, all payroll records and reports and all
other records necessary and useful to determine the
amount of backpay due and rights of reinstatement under
the terms of this Decision and Order. In addition, Re-
spondent will be directed to post the attached notice.
ORDER 46
The Respondent, Pace Motor Lines, Inc., Stratford,
Connecticut, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees about their
union activities.
(b) Threatening employees with loss of employment
and other reprisals if they engage in union activities.
(c) Promising employees wage increases and other im-
provements in their terms and conditions of employment
in order to discourage their union activities.
(d) Instigating and soliciting employees to sign a peti-
tion to revoke their designations of Local Union No.
" See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)
" They are: Canganelly, Knapp, Majowski, Fulton, Verdi, Streit,
Tyler, Rynich, P. Birdsall, A. Smith. DeSanto, Harvey, and Glinsky
" 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 by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
191, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, as their bar-
gaining agent.
(e) Engaging in surveillance of or creating the impres-
sion of engaging in surveillance of employee union activ-
ities.
(f) Inflicting property damage and personal injury
upon union representatives.
(g) Discharging employees because they have engaged
in protected activities for the purpose of mutual aid and
protection, and discouraging membership in said Union,
or any other labor organization, by discriminatorily re-
ducing the hours of work of employees; discriminatorily
assigning employees less desirable work; discriminatorily
discharging employees; and discriminatorily requiring
them to remove CB equipment from their vehicles.
(h) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes and policies of the Act:
(a) Offer employees Gerald and William Marron, John
DiLella, and Frank Zamfino immediate and full reinstate-
ment to their former jobs or to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any
losses sustained as a result of its discriminatory and un-
lawful action in the manner set forth in this Decision.
(b) Offer the following employees immediate and full
reinstatement to their former jobs or to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for
any losses sustained as a result of its discriminatory and
unlawful action, in the manner set forth in this Decision:
Canganelly, Knapp, Majowski, Fulton, Verdi, Streit,
Tyler, Rynich, P. Birdsall, A. Smith, DeSanto, Harvey,
and Glinsky.
(c) Rescind and revoke its discriminatorily promulgat-
ed rule requiring employees to remove all CB equipment
from their vehicles.
(d) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set
forth in this Decision.
(e) Post at its facilities in Stratford, Connecticut,
copies of the attached notice marked "Appendix."' 7
Copies of said notice, on forms provided by the Regional
Director for Region 2, shall, after being duly signed by
Respondent, be posted immediately upon receipt thereof,
in conspicuous places, and be maintained for 60 consecu-
tive days. Reasonable steps shall be taken to insure that
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
4 In the event 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."
1415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that Case 2-RC-18202 be re-
manded to the Regional Director for the opening of all
ballots challenged except with respect to those 11 chal-
lenged ballots as sustained herein. Thereafter, the Direc-
tor shall issue a revised tally of ballots to the parties and,
if said tally indicates that the Petitioner Union was desig-
nated by a majority, she shall issue a certification of rep-
resentative. Should such revised tally fail to disclose that
the Petitioner Union has been designated by a majority,
the election conducted on August 16, 1979, shall be set
aside and the Director shall conduct a rerun election at
such time as she deems the circumstances permit a free
choice on the issue of representation.
IT IS FURTHER ORDERED that allegations in the consol-
idated complaint not specifically found herein be dis-
1416