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National Labor Relations Board v. Donald E. Hernly Inc.

decided: January 14, 1980.


Petition by the National Labor Relations Board for enforcement of an order holding that respondent employer engaged in unfair labor practices in violation of section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1976). Petition denied.

Before Meskill and Kearse, Circuit Judges, and Dooling, District Judge.*fn*

Author: Kearse

This is a petition by the National Labor Relations Board under section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. § 160(e) (1976), for enforcement of an order issued against Donald E. Hernly, Inc. ("Hernly"). The Board's decision and order, reported at 240 N.L.R.B. No. 104 (1979), held that Hernly had engaged in three unfair labor practices in violation of section 8(a)(1) of the Act:*fn1 (1) threatening to withhold from eight of its employees two hours' "show up" pay previously authorized, and to discharge or lay off the employees, if they supported their union, (2) rescinding a promise to pay the two hours' "show up" pay, and (3) interrogating two employees concerning certain charges filed with the Board. We hold that the Board's decision is not supported by substantial evidence on the record and we therefore deny enforcement of the order.


Hernly is a corporation engaged in construction contracting. In 1977 it was awarded a subcontract for the driving of steel sheet piling and other work on the Red Hook Sewer Project in Brooklyn, New York. From March to mid-November, 1977, Hernly employed on that job two crane operators, two oilers, and two crews, each consisting of a foreman and four dockbuilders. The crane operators, oilers, and foremen were guaranteed a forty-hour work week under their union contracts. The dockbuilders' contract contained no such guarantee and they were paid only for hours worked.

This proceeding arose out of a dispute over pay for the eight dockbuilders with respect to Friday, October 28, 1977, when all work on the Red Hook project was suspended for the day at the behest of the project's general contractor in observance of the death of one of its principals. On Thursday, October 27, Edwin Ortiz, the dockbuilders' shop steward, having learned that the employees having the 40 hours' guaranteed week would be paid for Friday, October 28, asked Hernly superintendent Gary Galimidi whether the dockbuilders too would be paid for Friday, October 28. Galimidi said that he would find out; he and Ortiz had several conversations on October 27 on this question. After consulting with Hernly's president, Galimidi told Ortiz that the dockbuilders would be paid for two hours; he then noted this on the employees' timecards and notified Hernly's office of the situation. Ortiz, however, responded that the dockbuilders thought they were entitled to a full day's pay, that he could not accept just two hours' pay, and that he would get the dockbuilders union's business representative, Arthur Harkin, to come to the jobsite to decide what to do. The matter remained unresolved until the union representative arrived, which was not until Monday, October 31.

On October 31 there was a conversation among Harkin, Ortiz and Galimidi, part of which was heard by Henry Bonne, one of the foremen. Harkin demanded that the dockbuilders be paid for eight hours for October 28. At the hearing before the Administrative Law Judge ("ALJ"), Galimidi testified that he told Harkin that the firm was willing to offer two hours' pay, but that eight hours would be a drastic economic blow. Galimidi tried to motion Harkin away from the dockbuilders, but Harkin refused to follow and said to the dockbuilders: "I'm going to get you the eight hours. Remember, you're working for me and you don't work for him." (Joint Appendix ("A.") at 204.) At this statement, Galimidi testified, "I blew my top on that because this is a very flagrant statement, especially when said in front of me. . . . I therefore told Mr. Harkin that if this is the case, I might as well shut the job down." (Id.) Galimidi testified that he felt the statement was "flagrant" in front of him because it implied to the employees that they did not have to heed instructions coming from him, the job superintendent. (A.205.) He told Harkin and Ortiz that he would call the office and have the two hours stricken from the timecards.

Ortiz and Harkin gave a somewhat different version of the conversation. Ortiz testified that Galimidi said that he was going to take away the promised two hours' pay and lay the men off because the union had been brought in. (A.47-48.) Harkin supported this version. He testified that Galimidi said: " "You went to the union on me.' He says, "I give you that two hours out of the goodness of my heart. I'm taking it away from you right now.' . . . "I'll shut this job down any time I want. You're not telling me how to run the job. I could lay it off, I might stop it and shut the job down and lay these men off.' " (A.148-49.) Harkin denied that he had said, in words or in effect, that the men worked for him and not for Galimidi. Ortiz testified that he did not recall that Harkin had made such a statement, although he allowed that he himself might have said that they work "under union policy." (A.75.)

Galimidi denied having made any mention of the union. Bonne, who was present or nearby during the conversation among Harkin, Ortiz and Galimidi, apparently did not hear Galimidi say anything about the union. He could not recall definitely whether or not Harkin had stated that the dockbuilders worked for the union and not for Galimidi, but did recall that Galimidi said something about "taking away my powers." (A.103-04.)

Galimidi did in fact have the two hours stricken from the dockbuilders' timecards and the dockbuilders were paid nothing for October 28. The dockbuilders' union thereafter filed a grievance, which was denied by a labor-management panel at the first step of the grievance procedure.

On November 14, 1977, some two weeks after the pay incident, the dockbuilders were laid off for lack of work. On November 16 their union filed an unfair labor practice charge with the Board, alleging that the layoff was because of the employees' protected union activities. Around Thanksgiving, Edward Gaidon, Hernly's president, telephoned two of the dockbuilders, Donald Carman and Aldo Delu, at their homes to ask them about the charge. Each conversation was informal and quite short. Carman testified that he recognized Gaidon's voice, having previously spoken on the telephone with him quite often. Gaidon asked Carman only whether he knew anything about the charge filed by the union, and, according to Carman's affidavit although Carman had no recollection of it by the time of the hearing, whether Carman personally had made the charge. Carman replied that he had not made the charge personally and did not know much about it. Carman stated that Gaidon made no threats or requests to drop the charge, and seemed in a normal, calm mood.*fn2 The conversation lasted less than one minute. The other Gaidon call, to Delu, apparently was even shorter. Delu, who also recognized Gaidon's voice, testified that he was asked only whether he knew anything about the charge, and that he replied that he did not.*fn3

Eventually a complaint was filed by the Board. The charge that the layoff was an unfair labor practice was dropped, and a hearing was held before the ALJ on three other claims that the Act had been violated: (1) by Galimidi's remarks during the October 31 conversation, (2) by the withdrawal of the promised two hours' pay, and (3) by Gaidon's interrogation of the employees.*fn4

The Decision of the Administrative Law Judge

In a written opinion, the ALJ dismissed the complaint in its entirety. After describing the testimony given at the hearing, the ALJ first addressed himself to the question of which version of the October 31 conversation to accept in determining the motivation for Galimidi's statements. He made specific assessments of the respective credibilities of the principal witnesses, based in large part on his observation of them at the hearing. The ALJ expressly discredited Ortiz' testimony, finding him a "cautious, defensive witness whose memory was so poor" that he had to be led, and whose testimony at times was "contradictory" and "less than forthright." (A.275.) Harkin was found to be "evasive on cross-examination," and the ALJ stated, "I specifically do not credit his denial that he said something to the effect that the men worked for him and not for Galimidi." (Id.) He also expressly "discredited the testimony of Ortiz and Harkin on the question of (Galimidi's alleged reference to) bringing the Union in." (A.278.) Galimidi, on the other hand, was found by the ALJ to be "a forthright and candid witness" whose extensive examination did not reveal any contradictions or inconsistencies. The ALJ concluded, "I therefore find his testimony with respect to disputed points to be credible." (A.275.) The ALJ found Galimidi's testimony further supported by that of Bonne.

Based on these evaluations, and as well on the fact that Ortiz had told Galimidi on October 27 that he was bringing the union in, the ALJ concluded that Galimidi's statements on October 31 were not motivated by hostility toward the union. He found that the statements were not intended as threats, were not perceived by the employees as threats, and ...

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