Thomas S. San Giacomo, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1961

130 N.L.R.B. 1588 (N.L.R.B. 1961)

1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was dissatisfied with her job , then decided Rhian was no friend of hers and signed
up for the Union because it could be no worse than Rhian . Rhian testified Bullock
volunteered to spy on the Union and when she did not call him , as she had promised,
he mentioned this to her . When Bullock stated she had not attended the meeting,
Rhian said he had heard otherwise . I am satisfied Bullock 's testimony was colored
by animosity toward Rhian and her account of the spy incident is not at all con-
vincing. Accordingly, I accept Rhian 's testimony and find he did not request her to
engage in any spy activities.
The second incident centers on statements by Rhian at the October meeting with
Liverett and Creel. During the meeting Creel said Rhian warned that rather than
have the Union he would give the business to his son and take to his yacht or burn
down the plant. Rhian denied these threats. Liverett made no mention of any
threats or warnings by Rhian at this meeting . In fact he quoted Rhian as telling them
he had to be careful what he said to them . In view of the conflicting, if not contra-
dictory, testimony of Liverett and Creel, plus Rhian' s denial , I find Rhian did not
utter any threats or warnings at the meeting as claimed by Creel.
It is undisputed that before the election the Company printed cards designed to
reveal whether the employees had signed union cards and requesting withdrawal if
they had, which were distributed among the employees by supervisors with the re-
quest that they sign the same. Most of the General Counsel 's witnesses signed the
cards, although nothing happened to the two or three who refused to sign up.
Granting this action constituted an illegal polling of the employees as,to their
union membership , the policies of the Act would not be effectuated by a remedial
order directed to this single violation, particularly since the Union has been certi-
fied as the statutory representative of the employees involved.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint , as amended, within the meaning of Section 8(a)(3) and (1) of the Act.
[Recommendations omitted from publication.]
Thomas S. San Giacomo , Inc., and Cornwall Paper Mills Com-
pany and Local Union No. 863, International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America. Case No. 22-CA-703. March 27, 1961
DECISION AND ORDER
On December 13, 1960, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter,, the Respondents
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
130 NLRB No. 153.
THOMAS S. SAN GIACOMO, INC., ETC. 1589
case,' and hereby adopts the findings, conclusions, and recommenda-
tions z of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Thomas S. San
Giacomo, Inc., and Cornwall Paper Mills Company, their officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging union activities of their employees or their mem-
bership in Local Union No. 863, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or in any
other labor organization of their own choosing, by discriminating in
regard to the hire or tenure or any term or condition of employment
of any of their employees.
(b) Interrogating their employees regarding the union activities,
affiliations, or sympathies of any of their employees, in a manner con-
stituting interference, restraint, or coercion in violation of Section
8(a) (1).
(c) Threatening their employees with loss of their jobs if they join
or assist Local Union No. 863, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Local Union No. 863, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to bargain col-
lectively through representatives of their own choosing and to engage
in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to William Duffy and Charles Farrell immediate and
full reinstatement to their former or substantially equivalent positions,
1 The Respondents ' request for oral argument is hereby denied as the record , exceptions,
and brief adequately present the issues and positions of the parties.
2 The Trial Examiner included Mark Rosset and Robert Cooke in his recommended
order of reinstatement . The record shows that these two discriminatees were rehired
prior to the close of the hearing herein . In the absence of any claim that they were not
rehired for their former or substantially equivalent positions , we have deleted their names
from the order of reinstatement , but have provided that they be made whole for any loss
of pay suffered because of the discriminations practiced against them.
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prejudice to their seniority or other rights and privileges
previously enjoyed, and make William Duffy, Charles Farrell, Mark
Anthony Rosset, and Robert Cooke whole for any loss of pay suffered
by them as a result of the discrimination against them, in the manner
described in the section of the Intermediate Report entiled "The
Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze and compute the amount of back-
pay due under the terms of this Order.
(c) Post at the main place of business and garage of Thomas S.
San Giacomo, Inc., Orange, New Jersey, and at the office and plant of
Cornwall Paper Mills Company, Cornwall, New York, copies of the
notice attached hereto marked "Appendix." 3 Copies of said notice,
to be furnished by the Regional Director for the Twenty-second
Region, shall, after being duly signed by the Respondents, be posted
by them immediately upon receipt thereof, and be maintained by them
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of this Order, what steps
have been taken to comply herewith.
CHAIRMAN MCCULLOCH and MEMBER JENKINS took no part in the
consideration of the above Decision and Order.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership, or activities of our em-
ployees, in Local Union No. 863, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers.of America,
or any other labor organization of the employees' own choosing,
by discriminating in regard to the hire or tenure or any term or
condition of employment of any of our employees.
THOMAS S. SAN GIACOMO, INC., ETC. 1591
WE WILL. NOT interrogate our employees regarding their union
activity, threaten them with loss of employment for engaging in
such activity, or request them to disavow said labor organization.
WE WILL NOT in any other matter interfere with, restrain, or
coerce our employees in the exercise of their right to self-organ-
ization, to form labor organizations, to join or assist Local Union
No. 863, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor organ-
ization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring mem-
berghip in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL offer William Duffy and Charles Farrell immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and will make William Duffy, Charles Farrell, Mark
Anthony Rosset, and Robert Cooke whole for any loss of wages
they may have suffered by reason of our discrimination against
them.
All our employees are free to become, or refrain from becoming,
members of the above-named Union, or any other labor organization
of their own choosing.
THOMAS S. SAN GIACOMO, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
CORNWALL PAPER MILLS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended, 61 Stat. 131; 73 Stat. 519, herein called the Act.
Upon a charge filed June 28, 1960, and a first amended charge filed August 3,
1960, by Local Union No. 863, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, hereinafter sometimes called Local No. 863
or the Union, the General Counsel of the National Labor Relations Board, on
behalf of the Board, by the Regional Director for the Twenty-second Region, on
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 12 , 1960 , issued a complaint and notice of hearing against Thomas S. San
Giacomo , Inc., and Cornwall Paper Mills Company, hereinafter sometimes called
San Giacomo and Cornwall , naming them Respondents herein.
The complaint alleges that the Respondents have engaged in and are engaging in
unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
and (3 ) and Section 2(6) and ( 7) of the Act. The unfair labor practices com-
plained of may be summarized as follows:
On or about June 13, 14 , 15, 16, and 17 , 1960 ,1 Respondent San Giacomo, by
certain of its officers and agents, interrogated its employees concerning their mem-
bership in, activities on behalf of , and sympathy for Local 863 ; on or about June 15
and 16, and on various unknown dates during the month of June, Respondent San
Giacomo , by certain of its officers and agents, and Respondent Cornwall, by certain
of its officers and agents, requested their employees to sign documents or statements
to the effect that said employees were terminating their membership in and affiliation
with Local 863; on or about June 15, 16, and 17, and on various unknown dates
during the month of June, the Respondents , by certain of their officers and agents,
threatened their employees with permanent loss of employment unless said employees
signed documents or statements to the effect that they were terminating their mem-
bership in and affiliation with Local 863; on or about June 16, the Respondents did
discharge Robert Cooke , Charles Farrell , and Mark Anthony Rosset, and on or about
June 20 did discharge William Duffy, employees ; the Respondents failed and re-
fused to reinstate Robert Cooke to his former or substantially equivalent position
of employment until on or about July 21; since the dates of discharge of Mark
Anthony Rosset, William Duffy , and Charles Farrell, the Respondents have failed
and refused , and continue to fail and refuse , to reinstate these three employees to
their former or substantially equivalent positions of employment ; and further alleges
that the Respondents discharged and refused to reinstate Cooke, Rosset , Duffy, and
Farrell because said employees refused to sign the documents or statements above
mentioned and because they engaged in other concerted activities for the purpose
of collective bargaining and mutual aid and protection . The Respondents filed
timely answer to the complaint , effectively denying having engaged in unfair labor
practices as alleged , and setting forth as an affirmative defense on behalf ^ of the
Respondent Cornwall that all employees referred to in the complaint are employees
of San Giacomo and not of Cornwall.
Pursuant to notice , this case came on to be heard before the duly designated Trial
Examiner at Newark, New Jersey. Sessions of the hearing were held on September
19, 20, 21 , 23, and 27, 1960, the hearing being closed on September 27. All parties
appeared at the hearing, were represented' by counsel , and were afforded full oppor-
tunity to be heard , to produce , examine, and cross-examine witnesses , to introduce
evidence material and pertinent to the issues , and were advised of their right to argue
orally upon the record and to file briefs and proposed findings and conclusions or
both. Oral argument was waived . Briefs were filed on behalf of the General Coun-
sel and the Respondents.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. BUSINESS OF THE RESPONDENTS
Thomas S. San Giacomo, Inc., is , and has been at all times material herein, a
corporation duly organized under, and existing by virtue of , the laws of the State
of New Jersey. During these times , said corporation has maintained its principal
office and place of business at 70-78 Collins Street, in the city of Orange, State of
New Jersey , and is now and has been continuously engaged at its said place of
business in the transportation and distribution of paper bales and rolls and related
products , and in the business of providing and performing transportation services
and related services . During the year immediately preceding the issuance of the
complaint herein, said corporation , in the course and conduct of its business opera-
tions, performed services for which it received gross revenue in excess of $325,000
of which revenue , an amount in excess of $300 ,000, was derived from interstate op-
erations between the States of New York and New Jersey.
At all times material herein Cornwall Paper Mills Company is and has been a
corporation duly organized under, and existing by virtue of, the laws of the State
of New Jersey. During these times, the said corporation has maintained its prin-
Unless otherwise noted, all dates hereinafter mentioned are for the year 1960.
THOMAS S. SAN GIACOMO, INC., ETC. 1593
.cipal offices and places of business in the city of Cornwall , State of New York, and
at 70-78 Collins Street , in the city of Orange , State of New Jersey, and is now and
has been continuously engaged at said places of business in the manufacture, sale,
and distribution of paper and related products . During the year immediately pre-
ceding the issuance of the complaint herein, said corporation , in the course and
conduct of its business operations , caused to be manufactured, sold, and distributed
at its Cornwall place of business products valued at and in excess of $3,000,000 of
which products valued in excess of $50,000 were shipped from said plant in inter-
state commerce directly to States of the United States other than the State of New
York.
Each of the Respondents are and have been , at all times material herein , engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 863, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. San Giacomo and Cornwall as a single integrated business enterprise
The General Counsel contends that the Respondents , San Giacomo and Cornwall,
are a single integrated business enterprise administering a common labor policy. If
this contention be upheld , the two corporations then would be jointly responsible for
any unfair labor practices found to have been engaged in according to the allega-
tions of the complaint.
Respondent San Giacomo is engaged in the business of transportation and distribu-
tion of paper bales and rolls and related products . Respondent Cornwall is engaged
in the manufacture , sale, and distribution of paper and related products.
Respondent Cornwall , as a manufacturer, engaged only the services of San Giacomo
as a trucker , San Giacomo transporting wastepaper to the premises of Cornwall and
carrying away manufactured paper goods . During the calendar year 1959, San
Giacomo also performed trucking services for San Giacomo Waste Company. Its
percentage of revenue derived from Cornwall amounted to approximately 90 percent
of its entire business
The officers of San Giacomo are Thomas S. San Giacomo , president ; Louis San
Giacomo , secretary ; and Edward S. San Giacomo , treasurer . These three also con-
stitute the board of directors of that corporation . Thomas S. San Giacomo, Louis
San Giacomo , Edward San Giacomo , Irene San Giacomo , and Vella San Giacomo
are the stockholders of San Giacomo.
Thomas S. San Giacomo is president of Cornwall , Louis San Giacomo is treasurer,
and Edward S . San Giacomo is vice president and secretary The same three con-
stitute the board of directors of Cornwall. The stockholders in Cornwall are Thomas
S. San Giacomo , Louis San Giacomo , Edward San Giacomo, Vella San Giacomo,
John San Giacomo , and Joseph San Giacomo . Thomas is the father of Louis, John,
Edward , and Joseph , and the other stockholders are members of the same family.
Insofar as the relation of these two corporations with labor problems and policy may
be concerned , Thomas S. San Giacomo makes almost all of the decisions of con-
sequence although Louis and Edward may be consulted at times. So far as the
record shows, Cornwall is entirely dependent upon San Giacomo for trucking serv-
ices, and, as above stated , San Giacomo derives most of its income from Cornwall.
Where, as here, corporations have interlocking officers and directors and are
subject to common control and a controlling ownership interest in both corpora-
tions held by the same group of individuals , it leads to the conclusion that Respond-
ents are a single employer within the meaning of the Act. Editorial "El Impartial,"
Inc., 123 NLRB 1585 ; H. N. Thayer Company, 99 NLRB at 1122; Thomas Morelli
et a!. d/b/a Morelli Brothers and Capital Transport Co., Inc., 123 NLRB 635, 638.
B. Interrogation ; refusal of work; discharges of Duffy, Farrell, Cooke,
and Rosset
Joseph and sometimes Edward San Giacomo instruct the drivers as to their duties
at San Giacomo in Orange ; and John gives truckdrivers orders in connection with
their duties at Cornwall. These three men patently are supervisors within the
meaning of Section 2(11) of the Act. Beside having direct supervision over the
truckdrivers , they engaged in other activities (discussed below ) which clearly in-
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dicate their responsibilities as supervisors . (William , another son of Thomas, works
at Cornwall.)
On or about June 8, Mark Anthony Rosset, Charles T. Farrell, William Duffy, and
Robert Cooke , truckdrivers employed by San Giacomo, signed applications for
membership in Local No. 863.
On Sunday , June 12 , Duffy, Frank Opachinski , a truckdriver , Cooke, and Farrell
called at the house of a man identified only as "Chris," and there met Benjamin
High , business agent for Local 863. The men asked High if Local 863 would repre-
sent them in their dealings with their Employer and they handed High the signed
applications for membership in Local 863 . Ten truckdrivers were on San Gia-
como's payroll on or about June 13; Robert Cooke, William Duffy, Charles Farrell,
Al Foster, James La Maite, Frank Opachinski, Mark Rosset, Robert Scott, Willie
Walker, and Cliff Sokol . Sokol was employed by San Giacomo in August 1959,
leaving its employ in May " 1960 , and returned to work on June 13. All of these
drivers with the exception of Scott ordinarily report to work at Orange from where
truckloads of wastepaper are transported to the Cornwall mill, and then manu-
factured paper is transported by them from Cornwall to a designated point. Scott
reports to work at Cornwall.
On June 14, Duffy reported to work and was instructed to deliver a load of
manufactured paper to a paper box plant in Bayonne , New Jersey , and then take the
tractor or truck (No. 24) which he was driving to Mack Motor Company in Newark,
New Jersey, for a check. He did take the truck to Mack Motor where a super-
visor informed him as to what was wrong. Duffy talked to the San Giacomo office
on the telephone and told them what was wrong with the machine. Duffy left the
truck with Mack , was picked up by Opachinski , and taken back ' to the Orange plant.
He reported to Joseph and John San Giacomo, and Joseph told him he would not
work until the truck had been repaired ; that he (Joseph ) would get in touch with
him "when he wanted me ." On June 16 , Duffy received a message through his
wife to come to the plant ; on June 17 , which was his payday, he went in , was paid
by Joseph, and then , in the company of Opachinski , Rosset , and Cooke , went to a
nearby tavern . While they were there Joseph , who customarily gave him his orders
at Orange , came in, called him outside , and asked him to return to the San Giacomo
office. Duffy did return to the office with Joseph and found Edward and John
San Giacomo already there . Duffy was questioned about his union activities; he
admitted that he favored the Union . During or following this discussion , Joseph
San Giacomo said , "If you go ahead with this union business , you're going to be
out of a job. It 's been tried here before and we are never going to have a union in
the San Giacomo Company. " Edward San Giacomo , treasurer of San Giacomo
and vice president and secretary of Cornwall , asked him , "Don't you think if it was
possible to get a union here somebody would have done it before this?" Duffy was
then asked to sign a statement disavowing the Union , which he refused to do. Duffy
testified that after he had refused to sign the statement to the effect that he was satis-
fied with working conditions and definitely did not want a union , John San Giacomo
asked him:
"Well, what do you men want? What are you after?" I said I couldn't speak
for the other men, that I didn't know. So he said, "Well, then, why don't you
go down there and ask these men what they want, ask them to come in and sit
down with us and discuss with us what they are after and try and settle this
thing without making a big thing out of it and without the union."
Duffy then went out and spoke to the three men at the tavern. They rejected the
offer saying that they wished Local 863s delegates to do all their talking for them.
Duffy reported this back to the office and was then told by Joseph San Giacomo,
"If you are with them then you are not with us." Duffy asked him if this meant
that he was fired, to which Joseph replied, "No, you're not fired. But if you don't
sign that paper with us, why, then you're not going to take a truck out of here." At
this point, Duffy said, he walked out of the office.
On the following Monday morning, June 20, Duffy met Farrell, Rosset, Cooke,
Foster, and Opachinski and together they went to the San Giacomo office where
they met Business Agent High. Louis, Joseph, and Edward San Giacomo were in
the office. High asked Louis San Giacomo if he had work for any of the men.
Louis replied that he did not because of damage to the mill (he previously had said
that there was no work because some of the machinery at the mill had broken down)
and to three trucks. According to Duffy:
As we walked in the door, the first thing, Mr. Louis San Giacomo called Mr.
Opachinski and said "What are you doing there with them? You signed with
us." And I don 't recall any further comment on that . And the next thing I
THOMAS S. SAN GIACOMO, INC., ETC. 1595
remember was Mr . High asking Mr. Louis San Giacomo if he was going to put
any of his men to work that day. Mr. San Giacomo , Louis San Giacomo that
is, said no, that he didn't have any work for the men that day , that during the
night some machines had broken down at the paper mill plant in Cornwall,
New York, and he didn 't need the men that day . Mr. Benjamin High then
asked him how long the breakdown would be and Mr . Louis San Giacomo said
a couple of days. Mr. High then asked him would he when the repairs were
made put any of these men to work, and he said no , that he didn 't have any
trucks for them . At this point Mr . High pointed to the open door of the garage
and asked Mr. Louis San Giacomo about the trucks that could be seen from
the office . Mr. Louis San Giacomo said that three of the trucks were broken
down and that they had to be repaired and that there were a couple of trucks
in the garage being repaired and he didn't have enough trucks for the amount of
business that he was doing for the men . So, Mr . High asked him , "Would you
put any of these men to work ," and Mr. Louis San Giacomo answered that
the only one he has work for was Mr. Frank Opachinski . At that point Mr.
High asked the rest of the men to go out in the street . We went out in the
street and he told us to keep shaping up.
After that Duffy shaped up at the San Giacomo garage for about a week following
June 20 . He was not offered work on any of those days and on June 27 stopped
shaping up.2
Farrell . testified that on the afternoon of June 14 , while at Cornwall , he was asked
by William San Giacomo and later by Louis San Giacomo the names of those
men who had "signed for the union." He said that he had signed and he thought
everyone else had too . Later that same day, on Farrell 's return to the Orange
garage , Louis San Giacomo again interrogated him concerning the Union and on
the following day was questioned as to his union activities by Joseph and Edward
San Giacomo . Joseph asked him if he was not satisfied with the working conditions.
around there , to which he replied that he could not say yes or could not say no.
Farrell testified that on June 15 after completing his day 's work he returned to
Orange, and Joseph San Giacomo inquired about the Union "the same as the day
before" ; that later Joseph came out and called him and Frank Opachinski into the
office; that when they arrived there they found Robert Cooke and Al Foster and
also Edward , John , and Thomas San Giacomo . Walker came in during the meeting.
They were requested by John to sign a statement somewhat to the effect that the
undersigned was "satisfied with the working conditions in this garage and -do not
want a union" and that Thomas wanted to know why they were not satisfied with
the pay they were getting . None of the men signed the statement . Then, according
to Farrell:
Mr. Thomas San Giacomo asked what the boys wanted and one of the boys
said we'd like to have some benefits , such as hospitalization and insurance, and
Mr. Thomas San Giacomo claimed that we'd have to pay for our own insurance
and hospitalization . At that point we walked off.
Cooke , Opachinski , Foster, and Farrell then left ; Walker stayed in the office. The
men who had left the office went back into the garage and while they were there
talking Walker came out and then Louis San Giacomo came out and asked Frank
Opachinski to go to the office , which Opachinski did. Farrell went home; the next
day, June 16, he was told to see Louis San Giacomo in the office , where Louis ex-
plained that three trucks had broken down and that he did not have a truck for
Farrell but as soon as one was ready he would call him back . After his conversa-
tion with Louis , he went outside and, while talking to Joseph San Giacomo , La Maite
came out with the tractor Farrell had been driving. Farrell asked Joseph why La
Maite had his tractor because it was not broken down , to which Joseph replied,
"After all, Jim is the first man in the garage and you are the last one." The truck
referred to was No. 15.3
2 The term "shaping up" as used by Duffy and other witnesses simply meant that the
men reported for work and waited for an assignment . On warm days, it was said, they
waited at the door to the office, but in cold weather went into the garage and waited to
be told what to do.
8 At the hearing considerable significance was attached by the parties to the assignment
of trucks to the various truckdrivers . In this connection, it was shown that truck
No. 24 . brought in to the Mack Truck Company 's Newark garage on June 14 , was driven
there by Duffy ; that the last day repair work was performed on it was June 20; and
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 20 Farrell met Duffy, Opachinski , Cooke , Rosset , and Foster at the
parking lot near the plant and called at the office of San Giacomo where they met
Business Agent High , Louis, Joseph , and Edward San Giacomo , and "an uncle called
Mr. San Giacomo ." Farrell 's testimony with respect to this meeting substantiates
the testimony of Duffy. For the remainder of the week of June 20 Farrell "shaped
up" at the San Giacomo office; at no time during that week was he offered work;
and finally, upon reliance of Louis San Giacomo 's statement that he would be called
when work was available , he stopped shaping up . He was never recalled to work?
Robert Cooke was called into the San Giacomo office on his return to the Orange
garage on June 15. John and Thomas San Giacomo were there; Thomas San Gia-
como asked Cooke if he was satisfied with his job and questioned him about trying
to get a union in the plant; Thomas then asked Cooke to sign a statement disavow-
ing the Union which Cooke refused to sign ; and upon Cooke asking if he was fired
Thomas replied , "You can take it the way you want to." It was during this con-
versation that Opachinski , Walker, Farrell , and Foster came into the office. Later
that day , at his home, Cooke was asked by Louis and Joseph San Giacomo to sign
the statement which he had refused to sign earlier in the day. On the following day
Cooke reported to work at the Orange garage and was instructed to see Louis San
Giacomo in the office. He called at the office, where Louis again asked him to sign
the statement ; Cooke refused , saying "I can't sign it ." According to Cooke, Louis
had said , "Look, sign it, take the truck and go on"; after Louis had said he was sorry
and Cooke had replied that he was sorry too , he started for the door. Farrell came
in and asked Louis if he could go to work "or something like that" to which Louis
replied , "Look , all I have for you to drive is my wheelbarrow at my house." On
Friday, June 17, Cooke went back to the garage, asked Joseph San Giacomo if he
could get his personal belongings out of the truck , saying "I know I am fired. I am
going to get my things out of the truck ." According to Cooke, Joseph San Giacomo
said "Look, you don 't want to sign the paper , you may as well get your things out."
The testimony of Cooke substantiates that of Duffy regarding what happened at
the tavern on June 17 and the meeting in the office on June 20.
On June 13, after Rosset 's truck had engine trouble, he was instructed to take
the truck to Newburgh , New York , to have it looked at by a mechanic; he did so,
left the truck at Newburgh , and returned to the San Giacomo garage in Orange
where he reported to Joseph San Giacomo that he thought the truck would be ready
the following day. The parties stipulated that the truck driven by Rosset at the
time was truck No. 38 and that he brought the truck to the Mack Truck Company
garage in Newburgh on June 13, at 1 p .m.; that the truck repair was completed on
June 15, at 5 p .m.; and that the date the truck was picked up by San Giacomo was
not precisely known by anyone connected with Mack Truck Company. On June 14,
when Rosset reported to work, he was told by Joseph San Giacomo that his truck
was still in the garage and would not be ready for a long time. Thereafter Rosset-
reported for work but was not assigned to work . On June 20 , Rosset met Cooke,
Opachinski , Foster , Duffy, and Farrell and his testimony as to meeting at the San
Giacomo garage on that day corroborates the testimony of Farrell , Cooke, and Duffy.
He shaped up from June 20 to 27, but was not put to work . Rosset was rehired
during the course of this hearing on September 26. He was given a check drawn on
the personal account of Louis San Giacomo which was, according to him, for 2
months' rent so that he would not get evicted . According to Louis, the amount of
the check was a loan to be repaid out of Rosset's future earnings.
Frank Opachinski , a truckdriver , testified with respect to the meeting in the office
of San Giacomo on June 15 . His testimony substantiates that of Cooke, Duffy. and
Farrell . He said that after being requested to sign a statement to the effect "I am
satisfied with my job and I do not wish to have the union ," he did not then sign it;
that after leaving the office he hung around the garage for a short time talking to
Farrell and prepared to pick up his belongings and leave when he was asked by Louis
San Giacomo to go back into the office . He returned to the office. Louis and
Thomas San Giacomo questioned him as to whether he was satisfied with his job;
Louis said , "You have a big family to feed . How would you feed your family if
that the truck was picked up by Edward San Giacomo on June 22 . No other San Giacomo
trucks were in the Mack Company's Newark garage during the month of June subsequent
to June 14. Duffy was available for work from June 22 to 27.
'The record shows that Sokol had returned to work on June 13, only 3 days prior to
the time Farrell saw La Maite driving his truck. Sokol worked continuously during the
week of June 13. La Maite , a nephew of Thomas San Giacomo and a first cousin of his
sons, on the basis of his testimony , was not a regular full-time truckdriver . He said
that his duties "are a little bit irregular from the other duties inasmuch as one day I may
be in the garage , the next day I may be local . The next day I may be up at the mill."
THOMAS S. SAN GIACOMO, INC., ETC. 1597
you didn't work"; that Louis said, ,If you sign the paper you can go to work tomor-
row morning"; and that after being in the office for about half an hour, "I got a little
nervous and fidgety and I signed the paper." Opachinski did not work on June 20.
His testimony corroborates that of Farrell, Duffy, Cooke, and Rosset as to the meet-
ing in the office of San Giacomo on that day. On the following day, Opachinski
returned to work and has worked continuously since June 21. He testified that after
June 20, he observed new employees driving San Giacomo trucks, including Whitey
Harnacker, another, "some fellow they hired up in the mill in Cornwall," another
driver "hired up there but I don't know his name," a driver named Richy who drove
No. 15, and a man named Tony.5
Clifford Sokol, a truckdriver, was called as a witness on behalf of the Respondent.
He did not join the Union, and continued at work at all times up until at least the
time of the hearing herein. Sokol testified that on one Friday during the early part
of June, Opachinski, Duffy, and Rosset called at Sokol's home and solicited his
membership in the Union. Sokol refused, saying he wanted no part of the Union
and, he said, he was told by Duffy that "if the Union gets in there, I guess you know
you will be out of a job." Sokol said that he was asked by Joseph San Giacomo to
get in touch with Frank Opachinski, the one who first signed the statement requested
by the San Giacomos and later tore it up, to tell Opachinski to return to work on
Tuesday or Wednesday, June 21 or 22. He said that he did not see Opachinski and
made no effort to reach him .6 Sokol said that he saw certain trucks mentioned in
the testimony as being at the garage and inferentially ready for use during the week
of June 13.
Willie B. Walker, a truckdriver for San Giacomo, was called as a witness for the
Respondent. He testified that he had heard the men in the garage discussing the
Union and the possible benefits to be derived from membership therein (this between
June 13 and 27) ; and that he had given Attorney Casini a statement on August 11
concerning the facts he was testifying to. In response to a question by counsel for
the Respondent, "Did management threaten to fire you if you engaged in any union
activities, Mr. Walker?," Walker testified that about June 17 he was informed by
Joseph San Giacomo that Thomas San Giacomo wanted to see him in the office;
that he reported to the office and Thomas asked whether or not he was satisfied with
his job. He replied that working conditions were fine, talked about the tractor that
Walker was driving, and Thomas asked him if he wanted to continue working and
he said yes. Thomas said, "Which side are you on, the union side or are you with
the Company?" Walker hesitated before answering and finally said, "Well, I don't
know what to say about that. I want to be neutral," whereupon, he said, Thomas
said he had a piece of paper" . . . he asked me would I sign it, so I signed it." He
testified concerning the request made by Joseph San Giacomo to Duffy that the men
return to work and Duffy's report to Joseph after talking to the men, to the effect
that the men wanted the Union. The testimony of Opachinski and Walker, two of
the truckdrivers who remained continuously at work after June 13, is not in any
respect in conflict and in great part corroborates the testimony given by Duffy, Cooke,
Farrell, and Rosset. In response to a question put to him by counsel for the Re-
spondents, Walker testified that he ". . . signed the paper to stay on the side of the
San Giacomos, Mr. Thomas S. San Giacomo." In response to another question by
the same attorney, whether he wassatisfied with the working conditions of the San
Giacomo Company, he replied, "The working conditions, fine; and the men that I
work with, fine; but the salary with the hours I've put in, no. I want the union."
Counsel inquired further, and the witness replied:
Q. All right, now. When you signed that paper for the San Giacomo Com-
pany, did you sign that under any coercion or any kind of threats of losing your
job?
A. Well, there was no threats.
Q. All right.
A. But-
Q. But what?
A. I will put it this way: Mr. T. S. didn't say-
5 As of June 13, San Giacomo had 11 trucks and a truck called a donkey- used to
move trailers around the yard. The trucks were numbered 15, 24, 28, 30 (the donkey),
32, 34, 20, 38, 26, 40, 42, and 18.
9 Sokol gave a written statement to Mr. Casini, attorney for the Respondents, on
August 14. Over objection of the General Counsel and upon the insistence of counsel for
the Respondents, and after examining this statement, the Trial Examiner permitted it to
be introduced into evidence. There is nothing in the statement that conflicts with the
testimony of Sokol given at the hearing.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Mister who?
A. Mr. Thomas S. San Giacomo didn't say this. But Mr. Joseph San Gia-
como told me if I sign up with the company I continue to work. If I didn't
sign with the company, for no union, then I would catch up with the wagon
train in the street with the rest of the boys.
He explained that he understood the use of the phrase "catch the wagon train" to
mean that he would be out in the street, "just walking around looking for a job."
Under continued questioning by counsel, the witness testified:
Q. (By Mr. BRODIE.) What did you think him to mean when he said that?
A. I understand this: if I didn't sign with the company then I wouldn't have
no job.
Q. Is that what you felt that that meant?
A. That's right.
Q. And do you still feel that way?
A. It doesn't make any difference any more.
Q. You don't care if you don't work for them?
A. It doesn't make any difference.
Q. Are you still working for them?
A. Yes.
Q. What led you, Mr. Walker, to believe that when he said it means wagon
train to you that it meant that you have no more job?
A. Because I know how Mark, Charlie, Bill-
Q. Know what?
A. And Cookie came up the other morning and didn't work. They didn't
sign with the company and they didn't work.
Q. Did he say this to them, "you got no wagon trains?"
A. He didn't say it. They just didn't work.
The Respondents deny violations of Section 8(a)(1) and (3) of the Act and
assert that Farrell, Duffy, Cooke, and Rosset were not discharged but voluntarily
left the employment of San Giacomo. Thomas San Giacomo, although subpenaed
by the General Counsel, did not appear to testify at the hearing. William, Joseph,
and Edward San Giacomo did not testify. Louis San Giacomo testified to the effect
that although he is in almost complete charge of the operations of San Giacomo, he
very seldom visited the San Giacomo office at Orange, New Jersey; that he did not
authorize any of his brothers to threaten the drivers with loss of work if they did
not sign a statement disavowing the Union; that he did not know whether any of his
drivers were called in to the San Giacomo office during the week of June 13; and
that he did not authorize his brother, Joseph, or anyone else to threaten to fire or
to fire any of the drivers. The lack of knowledge of events attributed to Louis
San Giacomo by himself, and his failure to deny the activities at Orange, both in the
office-for example in connection with his alleged appearance in the office of San
Giacomo on June 20-together with his lack of explanation of his statements to
Farrell, the lack of explanation or answer to the reported conversation between him
and Cooke on June 16, led me to find the testimony of Louis San Giacomo was not
helpful to either the denials or the affirmative defense set up in the complaint. This,
especially, in view of the close family relationship between him and Joseph, John,
Edward, and William, and his responsibility as general manager of the whole
enterprise.
John San Giacomo is employed by Cornwall, of which he is a stockholder. He
testified first as a witness called by the General Counsel and was examined under
Rule 43(b) of the Federal Rules of Civil Procedure and later was called and recalled
by the Respondents.
He minimized his duties, saying that he answered the telephone-"that's about
all"; that he worked in the office and worked on the payrolls. He described himself
as a bookkeeper and said that he is "more or less a relief on the switchboard when
the other boys go out to lunch." I have no difficulty in finding that his duties were
such as to make him an agent or a supervisor. He gave orders to truckdrivers, among
other acts, instructing them concerning deliveries of manufactured goods; he and
a brother were in charge of the Cornwall plant in the absence of Louis San Giacomo,
who was most frequently at Orange. John San Giacomo took an active part in the
discussions with truckdrivers (together with other members of his family) concerning
the interest of these employees in the Union, as shown by the testimony of Louis
San Giacomo and witnesses called by the\General Counsel. There is nothing of
substance in the testimony of this witness to support the denials made by the Re-
spondents concerning their having engaged in unfair labor practices, or that the men
alleged to have left the employ of the Company did so voluntarily.
THOMAS S. SAN GIACOMO, INC., ETC. 1599
The demeanor of this witness on the stand was far from impressive . He displayed
resentment at questions put to him, he was evasive and equivocal, and suffered at
times from an almost incomprehensible lack of memory.
During the investigtaion of the charges filed herein, John San Giacomo gave three
pretrial statements in the form of affidavits to an agent of the Board, one such state-
ment being given on July 14, and two on July 19. When confronted with these
statements at the hearing, he reluctantly agreed that his signature appeared on each
one of the statements together with his initials on each page of each statement. He
.denied having read the statements before signing them; he said that he had not read
any of the statements before affixing his signature thereto; he testified in response
to a question put to him by Mr. Hanlon, trial attorney for the Board and the Board
agent who took the statements from San Giacomo, that "I don't remember what I
told you"; he said that Hanlon had asked him, "Will you give me some casual state-
ments" regarding the charges made by the Union to the Board; and he said further,
referring to Mr. Hanlon, he "told me he wanted some casual statements as to this
case," and that Hanlon told him further he wanted to help him. The statements
made by John San Giacomo are in evidence herein. Notwithstanding the efforts
made by counsel for the Respondent to explain away these statements as not being
what San Giacomo had said to Hanlon, or that he did not remember making such
statements, I accept the substance of these statements as being statements recorded
by Hanlon according to what John San Giacomo told him. In his statement or
affidavit of July 14, John San Giacomo stated in part that he was the general manager
and traffic manager of Thomas S. San Giacomo, Inc., and that the corporation had
received a copy of the unfair labor practice charges filed with the National Labor
Relations Board in Case No. 22-CA-703; that in the beginning of June 1960, two
union organizers, whose names he did not know, came around trying to organize
the men; that they informed him that some of his drivers had signed cards for the
Union and asked him what his disagreements with the men were; and then said that
he had better try and work things out with the men and that if he needed them
"they'd come around and talk to us about it."
This statement further says that the following week, on the night of June 17, a
meeting was held at San Giacomo's office at 72 Collins Street; that present at the
meeting were Cooke, Foster, Duffy, Farrell, Rosset, Frank Opachinski, Cliff Sokol,
James La Maite, "all drivers, myself, brother Joe, my brother Louis, my brother
Edward and my father Thomas San Giacomo." Continuing, he said that his father,
Thomas San Giacomo, conducted the meeting; that he asked the men what their
complaints were; whether they had any complaints about wages or working conditions.
The affiant said that the men just ",hemmed and hawed" and gave no answers or
said what their complaints were and that the meeting broke up shortly as they had
nothing to say; that nothing was said at the meeting about the men being fired or laid
off. He said further that on Monday, June 20, Cooke, Duffy, Farrell, and Rosset
did not show up for work. In fact he said none of these men has shown up since
then except Cooke, who dropped in to get separation papers so that he could "collect
unemployment." He said Foster did show up the week of Monday, June 20, and
worked a full week; that Foster has not missed a day's work since June 20; that the
week of June 12 to 17, Foster missed 1 day's work because his truck was being fixed;
that Cooke missed 1 day that he just took off as the men sometimes do; that Duffy
and Rosset each missed 3 days- and Farrell 1 day during the same week because
repairs were being made on their trucks; that they knew this was the reason they
missed some days because they had taken the trucks into the Mack repair shop in
Newark themselves. He said that the week of June 6 to 10 nobody worked at all;
that the entire place was closed down for the whole week because of the death of
his mother on June 3; that the funeral was held on June 9; that despite the fact that
none of the men worked they all received half pay for the week of June 6 to 10.
He said that at no time did he or to the best of his knowledge any of the representa-
tives of the Company tell any one of the above-mentioned drivers that they were
fired or laid off for their union activities or for any other reason. He said that in
fact when Cooke came back to get his papers for unemployment "I thought he was
coming back to work and I asked him if I could do anything for him. He didn't
reply. Cooke was a good worker and I would hire him back tomorrow. If Cooke,
Duffy or Farrell came in looking for work and we had work for them I would put
them on." Continuing, he said he did not know if he could use these men now
because the mill in Cornwall was closed for alterations and most of the box plants
with which the Company did business were shut down that month and the things
were so slow that he had had some of his drivers doing some painting around the
place just to keep them busy. He said further that the meeting on the night of
June 17 when the men said they had no complaints:
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I myself and my father Thomas asked the men if they were willing to endorse
a statement to the effect that they were satisfied and had no complaints. We
typed up a statement that read something like this. "We the employees of
Thomas S. San Giacomo, Inc., are satisfied with working conditions and hours.
of service and wages and we are not interested in unionizing here." All the
men had the statement read to them and read it themselves. My father Thomas
San Giacomo told them that they didn't have to sign it and that they would have
their jobs whether they signed it or not. Some of the men signed the paper and
some did not. I don't know where the paper is at this time. It didn't make any
difference to us whether they signed it or not we just wanted to see what their
complaints were.
Continuing, San Giacomo said he did not ask any of the men to sign the paper after
that night nor did he know if any of his brothers had asked any of the men to sign
up after that night. He said that his brother, Louis, had called Cooke on Saturday,.
June 18, and asked him if he was coming in on Monday and his brother, Joseph,.
also visited Cooke at his home to see if he was coming in on Monday and that he
did not know if either Louis or Joseph asked Cooke to sign the above-mentione&
paper when they spoke to him. He said that Cooke said on the night of the meeting
that he would sign if Foster would sign; that Foster came in the next day, Saturday,
to get his pay and he signed the paper; that Cooke never did sign although he knew
Foster had signed.
In one of the two statements given to Attorney Hanlon on July. 19,. John San
Giacomo repeated the fact he was the general manager and traffic manager of San
Giacomo and was in charge of dispatching trucks from the San Giacomo garage;.
"when the men call in I tell them where to make their deliveries or pickups. I do,
not relay these orders from anyone else, I give them at my own discretion. I am
the person who is in charge of the garage and warehouse at Collins Ave.,,Orange,.
N.J." He stated further that at that time San Giacomo employed seven drivers who,
worked out of the Orange garage and warehouse; he named them as La Maite,
Walker, Sokol, Opachinski, Foster, Richard Harnecker, and Robert Scott. He said'
the first five of these men had been with the Company for many years; that Har-
necker was an old employee who was just recently rehired on July 5; and that Robert'
Scott, who is paid out of the Orange office but who lives in Cornwall, had worked
for them for about 5 years. He said "all of these seven drivers signed the statement
I referred to in my previous affidavit which said that they were satisfied with con-
ditions at San Giacomo and did not want a union here. Cooke, Duffy, Farrell and
Rosset did not sign the statement mentioned above."' He noted the length of time.
that Duffy, Farrell, Rosset, and Cooke had worked for the Company. In this state--
ment he referred to his previous affidavit dated July 14 referring to a meeting as
being held on July 17 and said that the meeting could have been July 15 and that he
knew that it was held sometime during that week. Continuing, he stated that he also
remembered that one evening after the men were paid, they all went down to a
tavern on the corner and that later Duffy acted as the spokesman for the men at the
office where he had a conversation with Joseph-"I do not remember exactly what
was said but I know that Joe asked him what the men's complaints were and he
didn't give a clear answer, he just said he wanted a union in here. Joe also told. him
that the men who were working had signed the statement saying that they didn't
want the Union and he asked why Duffy, Farrell, Cooke and Rosset wouldn't sign
the statement." He said he did not recall Duffy, Farrell, or Rosset "hanging around'
here" during the weeks of June 20 and 27; that his brother, Joe, said they showed up
one morning and then never appeared again ; that the last' time he, John, remembered'
seeing Duffy, Farrell, or Rosset was at the meeting when "we asked them to sign the'
statement saying they didn't want a union ." In this statement he referred again to,
the slack season and gave the shutdown of the mill in Cornwall as one reason to-
gether with the off-seasonal business , as not requiring the service of all of the,
truckdrivers.
Sgt. Pasquale Messano of the Orange Police Department was called by the Re-
spondent. He was called apparently to refute the testimony of the drivers that-
Duffy, Farrell, Cooke, and Rosset shaped up regularly during the times when' their-
trucks allegedly were not available as being under repair or they were not needed-
for lack of work. Messano testified that every day from June 20 through 27 he
worked for the police department from 4 until 12 p.m., went home and got about 41
hours sleep, and then each morning went down to the San Giacomo garage; that he
arrived at the garage every morning of that particular week before 6 a.m., even-
though he did not expect to be nor was he paid for this work. He said that during-,
THOMAS S. SAN GIACOMO, INC., ETC. 1601
this week none of the four men mentioned showed up except on June 20 and 21.
Messano testified further that on some of the mornings he was at the San Giacomo
office he cleaned or repaired his car for about an hour but that during this time he
was not in a position to see whether or not there was anyone shaping up in front of
the office . His testimony regarding the nonappearance of the four men is, of
course, directly in conflict with their testimony . Messano did not know whether or
not the trucks were in the repair shop during this week nor did he see any of the
trucks being brought back from the repair shop. Messano, who said he was a close
friend of the San Giacomo family , was asked by counsel for the General Counsel
whether . at any time since June 13 had he been employed by San Giacomo. He
answered "I don 't know whether you called it employed . I received , I think, a
total of $30 for helping at one time when they were short of men. . . . The only
other compensation I got was $100 from Louis . $50 when his brother . was buried
and $50 when his mother died . I was in charge of the funeral details." In re-
sponse to a question as to whether there was any other employment having to do
with the actual work at the San Giacomo garage, he replied in the negative.
The testimony of the drivers as to the several incidents of interrogation, when
more than one was interrogated at a time, generally is consistent , as is their testi-
mony regarding the request to sign a statement or statements to the effect that these
employees did not want the Union , and threats of loss of employment if they did
not sign such a statement . In these respects , I credit the testimony of Duffy, Far-
rell, Rosset , Opachinski , Cooke, and also the testimony of Business Agent High. I
have in mind the testimony of Walker concerning the incident when he was asked
to sign a statement disavowing the Union . The testimony of each of these witnesses
in individual respect, I expressly find to be credible as opposed to the testimony of
John San Giacomo . I believe Duffy, Farrell , and Rosset when they say they
"shaped up" for work after June 20. I do not credit the testimony of Messano for
two reasons-first, because it is not conclusive , and second , it is in direct conflict
with the credible testimony of the drivers . The record adequately reflects the fact
that at least three trucks , ordinarily driven by these men (Duffy, Farrell , Rosset,
and Cooke ), were not laid up for repairs during all of the time from June 20
through 27, and at least two of them were operated by other drivers , including
La Maite and Sokol, during this time.
Further, in . respect to the question of credibility of John San Giacomo, his
equivocation as to facts I think he knew, and which are set forth in the affidavits
sworn to by him and given to a Board agent, contain admissions against interest and
support allegations within the complaint concerning interrogation of and threats
made to employees , and interference with their rights to mutual aid and protection.?
Louis San Giacomo , as a witness called by the Respondents , testified that he did
not know whether Duffy, Farrell, Rosset, or Opachinski were called into the office
during the week of June 13; that he did not know whether any of those men had been
discriminated against because of their union activities ; and that he did not authorize
7 On the question of the admissibility of pretrial statements or affidavits as admissions
in Interest , see Grove Shepherd Wilson & ILruge , Inc., at at ., 109 NLRB 209, 212-213,
where the Board wrote :
During his examination , Mattson averred that he had never been instructed to hire
only those carpenters who had obtained a referral from the Union. Meinertz, the
Union's business agent, testified that the.Union did not maintain a practice of re-
ferring'members for jobs, although he furnished " leads" to union members. How-
ever, the General Counsel introduced into evidence , as an admission against interest,
a signed, sworn statement by Mattson which was made to a Board field examiner In
January 1953. . . . The Trial Examiner properly accepted Mattson's admission as
positive evidence respecting the manner in which carpenters were employed at the
project. In appraising the probative value of the admission , however, the Trial
Examiner concluded that while be was "not quite satisfied with his (Mattson's]
attempt to avoid responsibility for the statement, which he signed , it stands alone
in contradiction to other reliable evidence concerning hiring practices" at the project.
He therefore did "not rely on Mattson 's statement as proof of the violation
alleged." . . . An analysis of all the evidence convinces us that the Trial Examiner
failed to accord proper weight to Mattson's admission in resolving the issue as to
whether a practice was maintained at the Calverton project respecting union
referrals. . . .
597254-61-vol. 130-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of his brothers to tell any of these employees that if they did not sign a slip
of paper they would lose their jobs. He testified that the only time he ever talked
to Business Agent High was at 6 a.m. on June 16 when he had a few words with
High who was introduced to him by his brother, that they exchanged a few words,
that shortly after that "my drivers came up to the front door. Ben went out to the
front-previously I said, `what do they want, Ben' and he went outside with the
men, with my drivers, rather, and he came back in and [said] `they don't know
what the hell they want"'; that "we waited around a few minutes. The men walked
out. Ben told the men across the street and he left and I left and that was the extent
of my conversation with Benny High." Louis San Giacomo identified a company
record identified as a log for June 20 showing that Opachinski did work on that
date; this to refute testimony that Opachinski was present at the June 20 meeting.
This latter piece of evidence, I think, is not conclusive of the fact that Opachinski
was not at the June 20 meeting. Louis San Giacomo's report of his conversation
with High on June 16 has no real weight if intended to show that the conversations
or statements made at that meeting by the various participants were not in fact made.
As to the other part of his testimony, I find no impact one way or the other as to
the effect on the alleged violations claimed by the General Counsel to have been
committed by the Respondents.
Company records showing the days and identifying the trucks driven by La Maite
and Sokol for the period June 20 to 27, promised by counsel for the Respondent
to be produced for the examination of counsel for the General Counsel, were not
produced and therefore were not available.
Concluding Findings
The record herein establishes that Respondents San Giacomo, on the day after
some of its employees had requested the business agent of Local 863 to represent
them, took steps to coerce these employees to repudiate the Union and continued
those efforts through the time material herein. I find that the Respondents engaged
in coercive interrogation of employees as to their union membership and solicitation
of these employees to abandon the Union and disavow membership in it. That the
use of such tactics by an employer constitutes interference with, restraint, and co-
ercion of employees in the exercise of the rights guaranteed them under Section 7
of the Act, and therefore a violation of Section 8(a)(1), is well established.8
Substantial evidence herein established that William Duffy, Charles Farrell, Robert
Cooke, and Mark Anthony Rosset were discharged by the Respondents because of
their activity in behalf of Local 863 and other protected activity, and that their dis-
charges constitute violations of Section 8(a)(3) and (1) of the Act as interference
with, restraint, and coercion of themselves and other employees in the exercise of the
rights guaranteed them under Section 7 of the Act and by reason of the discrimina-
tion practiced against them because of their union membership and adherence thereto.
I agree with the General Counsel that the whole circumstances of the case, includ-
ing the flagrant violations of Section 8(a)( I) by the Respondents, the plain animus
against the Union as demonstrated by the threats made to these men, and the timing
of the discharges show clearly that the men were discharged for their activity in be-
half of Local 863. Motive on the part of the Employer, as to these discharges, is
found on the basis of the facts above related. It is permissible to find motive as a
result of inference "where the encouragement or discouragement can be reasonably
inferred from the nature of the discrimination." The Radio Officers' Union etc. v.
N.L.R.B., 347 U.S. 17, 51, 55-56. The motive of the Respondents here behind the
firing of the individuals above named is twofold: first, it could reasonably be ex-
pected to result in the discouragement of union membership, and second, to get rid
of known members of the Union. It was not necessary for the Employer to say to
one or all of these men "you are discharged"; the circumstances show a pretext in-
tended to establish the claim of the Respondents that they could not work because
the trucks were not running or because no work was available because of seasonal
slackness. The fact is that the trucks did run within the time the men were shaping
s N.L.R.B. v. Wagner Iron Works, et at ., 220 F. 2d 126, 139 (C.A. 7), cert. denied
350 U.S. 981; N.L.R.B. v. Popeil Brothers, Inc., 216 F. 2d 66, 67-68 (C.A. 7) ; Indiana
Metal Products Corporation v. N.L.R.B., 202 F. 2d 613, 619-620 (C.A. 7). See also
N.L.R.B. v. Economy Furniture, 284 F. 2d 339 (C.A. 5), enfg. 126 NLRB 90.
THOMAS S. SAN GIACOMO, INC., ETC. 1603
up for but not being given work and that new men were hired subsequent to the
time the four men were laid off.
I find that the Respondents and each of them have engaged in and are engaging in
unfair labor practices within the meaning of Section 8(a)(1) and ( 3) and Section
2(6) and (7) of the Act, as set forth in the complaint. The allegations of unfair
labor practices contained in the complaint , I find , are proven by the preponderence
of the evidence herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III , above, occurring in con-
nection with the operations of the Respondents described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in numerous unfair labor prac-
tices, it will be recommended that they cease and desist therefrom and that they take
certain affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondents discriminated in regard to the hire and
tenure of William Duffy, Charles Farrell, Mark Rosset, and Robert Cooke, by dis-
charging each of them, I will recommend that the Respondents jointly and severally
offer to each of them immediate and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or other rights and privileges
and make each of them whole for any loss of pay he may have suffered by reason
of said discrimination by payment to him of a sum of money equal to that which
he would have earned as wages from the date of the discrimination against him to
the date of the offer of reinstatement , less his net earnings during such period in
accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289.
Because of the nature of the unfair labor practices engaged in by the Respondents,
including interrogation of employees and requests directed to them to disavow the
Union , the Trial Examiner deems it necessary to recommend that the Board order
that the Respondents cease and desist from in any manner infringing upon the
rights guaranteed in Section 7 of the Act.
Upon the basis of the findings of fact set forth above , and upon the whole record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Thomas ' S. San Giacomo , Inc., and Cornwall Paper Mills Company , are and,
at all times material herein , have been affiliated businesses with common officers,
ownership , directors , and operators , and constitute a single integrated business enter-
prise; and each of said Respondents is and has been, at all times material herein, en-
gaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Local Union No. 863 , International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging employees William Duffy , Charles Farrell , Mark Rosset,- and
Robert Cooke , thereby discriminating in regard to tneir hire and tenure of employ-
ment, and discouraging union activities among their employees , the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act, including interrogating them
with respect to their . union membership and activities , threatening them with loss
of their jobs if they did not leave the Union , and asking them to sign a statement
disavowing the Union , the Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a) (1.) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]