ABC Specialty Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 25, 1978

234 N.L.R.B. 475 (N.L.R.B. 1978)

ABC SPECIALTY FOODS, INC.
ABC Specialty Foods, Inc. and Teamsters Local
Union No. 688, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and Rick Jones. Cases 14-
CA-10007 and 14-CA-10254
January 25, 1978
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND
TRUESDALE
On October 13, 1977, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 2 and
conclusions of the Administrative Law Judge, to
modify his recommended remedy,3 and to adopt his
recommended Order, as modified herein. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, ABC Specialty Foods, Inc., Hazelwood, Mis-
souri, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Rick Jones, William Hoffman, and Paul
Lint full and immediate reinstatement to their former
positions or, in the event their former positions no
longer exist, to substantially equivalent employment,
without prejudice to their seniority or other rights
which they formerly enjoyed."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent asserts in its exceptions and brief that the Regional
Director for Region 14 erred in refusing, after issuance of the attached
Decision, to allow new counsel for Respondent to examine statements
obtained during the investigation from persons who testified at the hearing.
Such statements are ordinarily made available only at the hearing after the
testimony of the witness so that counsel may use them for cross-examina-
tion, and then only if they are timely requested by counsel; see Sec.
102.118(a) of the Board's Rules and Regulations, Series 8, as amended;
Army Aviation Center, 216 NLRB 435 (1975). Respondent was represented
at the hearing by counsel, who did not request production of witnesses'
statements at the close of direct examination. Respondent's new counsel
could not use the statements at this point to cross-examine witnesses for the
234 NLRB No. 81
General Counsel. Counsel must therefore stand in the shoes of Respondent's
counsel at hearing and we hold that any right to examine any investigatory
statements was waived at the hearing. Accordingly, the Regional Director
did not err in denying posthearing access to the statements.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty 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 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his frndings.
Respondent further asserts in its brief that the Administrative Law Judge
erred in "ignoring" certain testimony which conflicted with his findings. As
the Board stated in Bishop and Malo, Inc., d/b/a Walker's, 159 NLRB 1159,
1161 (1966), 'The failure of [in Administrative Law Judge] to detail
completely all conflicts in the evidence does not mean . . . that this
conflicting evidence was not considered" Further, itlhe absence of a
statement of resolution of a conflict in specific testimony, or of an analysis
of such testimony, does not mean that such did not occur." Stanley Oil
Company, Inc., 213 NLRB 219, 221 (1974). Finally, as the Supreme Court
stated in N.LRB. v. Pittsburgh Steamship Company, 337 U.S. 656, 659
(1949), 'Tl'otal rejection of an opposed view cannot of itself impugn the
integrity or competence of a trier of fact." We have examined the record in
light of Respondent's contentions, and we find no merit in Respondent's
exceptions in this regard.
3 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). In
the remedy section of his Decision and in the notice attached thereto, the
Administrative Law Judge erroneously referred to a fixed 7-percent interest
rate and thereby failed to apply properly the Board's "adjusted prime
interest rate" formula, which may vary in the manner prescribed in Flonda
Steel Corporation. 231 NLRB 651 (1977). We therefore modify the remedy
so that interest will be computed in accordance with that Decision, and we
correct the notice accordingly.
4 Although the Administrative Law Judge found that employees Hoff-
man and Lint were reinstated following their discharge, it is unclear whether
the reinstatement completely restored them to their former positions.
Accordingly, we will modify the Administrative Law Judge's recommended
Order and notice to provide that the Respondent shall offer full and
immediate reinstatement to Hoffman and Lint.
The Administrative Law Judge inadvertently failed to conform his notice
to the recommended Order. We shall therefore correct the notice according-
ly.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees
concerning their union activities or the union
activities of other persons.
WE WILL NOT threaten employees with plant
closure if discharged employees are restored to
duty or if employees engage in union activities
and concerted protected activities.
WE WILL NOT grant wage increases to employ-
ees in order to persuade them to abandon their
support of the Union.
WE WILL NOT reduce wages of employees in
order to take reprisal against them for supporting
the Union.
WE WILL NOT tell employees that engaging in
union activities or in collective bargaining will be
an act of futility.
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT tell employees that utilizing the
processes of the Board could result in adverse
consequences.
WE WILL NOT reprimand employees because
they have engaged in union activities.
WE WILL NOT discourage membership in, or
activities on behalf of, Teamsters Local Union
No. 688, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor
organization, by discharging employees or other-
wise discriminating against them in their hire or
tenure.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed them by Section 7 of the Act.
These rights include the right to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for
their mutual aid and protection.
WE WILL offer Rick Jones, William Hoffman,
and Paul Lint full and immediate reinstatement to
their former positions, or, in the event those
positions no longer exist, to substantially equiva-
lent employment, and WE WILL make whole Rick
Jones, William Hoffman, and Paul Lint for any
loss of pay they have suffered by reason of the
illegal discriminations which have been practiced
against them, with interest thereon.
WE WILL remove from the personnel records of
Rick Jones the written reprimand dated February
8, 1977, which was placed therein.
All of our employees are free to become or to
remain members of this labor organization or any
other labor organization.
ABC SPECIALTY FOODS,
INC.
DECISION
FrNDNGOS OF FACT
I. STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me on a consolidated
unfair labor practice complaint, 1 issued by the Regional
Director for Region 14, which alleges that the Respondent,
ABC Specialty Foods, Inc.,2 violated Section 8(a)(l) and
(3) of the National Labor Relations Act, as amended. More
particularly, the complaint alleges that Respondent on
several occasions unlawfully interrogated employees,
threatened employees with harm if they utilized the Board's
processes, threatened to close the plant if a discriminatee
were restored to duty and if the Union won the election,
unlawfully raised the wages of an employee as an induce-
ment to keep him from voting for the Union and later
reduced the wages of the same employee as a reprisal for
voting for the Union, unlawfully terminated employees
Paul Lint and William Hoffman because of their union
activities and gave employee Rick Jones a written repri-
mand because of his union activities, unlawfully terminat-
ed Hoffman a second time because of union consider-
ations, and terminated employee Rick Jones for discrimi-
natory reasons. After Hoffman and Lint were restored to
duty pursuant to an informal settlement agreement, the
Regional Director set aside the settlement agreement when
he issued a complaint which was prompted by activity
occurring subsequent to the settlement agreement. The
consolidated complaint includes both presettlement and
postsettlement conduct. Respondent makes no defense
respecting several individual allegations of 8(aX)(1) conduct
other than a general denial contained in the pleadings,
asserts that the discriminatees named in the complaint
were discharged for cause, and further claims that the
Regional Director had no basis for setting aside the
original settlement agreement in Case 14-CA-10007. On
these contentions the issues herein were joined. 3
II. THE UNFAIR LABOR PRACTICES ALLEGED
Respondent is a small family-owned business which
operates a grocery warehouse and distribution center in a
suburb of St. Louis. From this point, it sells and delivers
gourmet and specialty food items to various grocery stores
in southeast Missouri and southwest Illinois. Herbert Wilk
is the president of Respondent and his son, Sam Wilk, is
vice president. At this same location Herbert Wilk also
operates Arrow Brokerage, a grocery brokerage firm. He
I The principal docket entries in this case are as follows: Charge filed by
Teamsters Local Union No. 688, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(herein called the Union) in Case 14-CA-10007 on February 9, 1977;
amended charge filed on February 17, 1977; charge filed herein by Rick
Jones, an individual, on May 4, 1977, in Case 14-CA-10254; order revoking
settlement agreement issued by the Regional Director for Region 14, on
June 1, 1977, in Case 14-CA-10007; consolidated complaint issued in both
cases by the Regional Director for Region 14, on June 1, 1977; Respon-
dent's answer filed on June 7, 1977; hearing held before me in St. Louis,
Missouri, on June 23, 1977; briefs filed by the General Counsel and
Respondent on or before July 25, 1977.
2 Respondent admits, and I find, that it is a Missouri corporation which
maintains its principal place of business at Hazelwood, Missouri, where it is
engaged in the nonretail sale and distribution of specialty and gourmet
foods and related products. In the year ending April 30, 1977, a representa-
tive period, it sold and distributed from its Hazelwood, Missouri, place of
business directly to points located outside the State of Missouri goods and
merchandise valued in excess of $50,000. Accordingly, Respondent is an
employer engaged in commerce within the meaning of Sec. 2(2), (6), and (7)
of the Act. The Union is a labor organization within the meaning of Sec.
2(5) of the Act.
3 By motion, dated July 22, 1977, the General Counsel sought to correct
some 15 specified errors appearing in the transcript in this case. No response
to this motion was filed by Respondent. The General Counsel's motion to
correct the transcript is hereby granted.
476
ABC SPECIALTY FOODS, INC.
devotes most of his working time to the brokerage firm
while Sam Wilk spends most of his day operating Respon-
dent Company. During most of the period involved in this
proceeding, Respondent employed three full-time employ-
ees who did both warehouse and delivery work. They were
Paul Lint, William Hoffman, and Rick Jones. Respondent
also had two office employees and some part-time help.
About 2 years ago, the employees in the warehouse and
driver unit considered organizing and selecting a union to
represent them. This effort did not go anywhere. In late
January 1977, Jones secured some designation cards from
Bobo Chrostowski, an organizer for the Union, and gave
them to Lint and Hoffman at the warehouse. All three
signed cards and mailed them in.
On the morning of February 8, a union representative
called the warehouse and spoke with H. Wilk. A few
minutes after he completed the call, H. Wilk went into the
warehouse and spoke with Jones. He asked Jones if he had
requested Local 688 to represent him and Jones replied
that he had done so. H. Wilk then asked Jones if the Union
had come to the Company's premises to organize the
employees. Jones replied that it had not done so. H. Wilk
then asked him if someone at the warehouse had initiated
this effort and Jones replied in the affirmative, whereupon
H. Wilk said, "This is a federal matter. It is not to be
played with."
On the afternoon of the same day, H. Wilk dictated three
letters, addressed to each of its driver-warehousemen. The
letter to Lint, dated February 8, stated:
This is to notify you that you will be discharged from
this company as of this date for reasons of refusing to
accept night runs or deliveries, which we feel and I'm
sure you will agree can not be made in one day.
Contrary to procedures which has [sic] been in effect
with our company a long time before.
The letter to Hoffman contained identical language. The
letter to Jones stated as follows:
As you have known in the past, you do not combine
several items into one box.
Also, you do not put heavy merchandise on fragile,
such as canned product on taco shells.
If this continues, we will have to take what ever
action is necessary to correct the above.
About 5:30 p.m., when Hoffman and Lint came in from
their regular runs, H. Wilk called them both into the office.
He asked Lint, who had previously refused to make
overnight runs, to take an overnight run. Lint refused, so
Wilk fired him. Wilk then asked Hoffman, who had
previously agreed to take overnight runs only upon
advance notice, to take the run which Lint refused.
Hoffman refused, so Wilk fired him as well. Wilk then
4 The reprimand letter was placed in Jones' personnel file. One of the
stipulations in the February 23 settlement agreement called for the removal
of the letter. Some time after this agreement had been concluded, Jones
asked to see his personnel file. Both of the Wilks declined to give him
permission to see it, saying that his personnel file was confidential.
s On the afternoon of February 8, S. Wilk interviewed James Poll for a
job. Poll had advertised in a local paper for work and started to work at
presented each of them the previously typed letters of
dismissal and asked them to sign, saying that he could not
release their final paychecks until they did so. Both refused
to sign the respective letters. Hoffman stated that he would
check up and see if he had to do so and would return the
following day for his check. Apparently H. Wilk relented
on his insistence that Hoffman and Lint sign their letters.
As H. Wilk began to write out their checks, he stated that
"this had nothing to do with your union activities." 4 The
following day, when Jones reported to work, he asked S.
Wilk why Lint and Hoffman were fired. S. Wilk replied
that they refused to drive overnight runs. He also said that
the Company had hired a new driver and might need yet an
additional one.5 Jones volunteered to drive a truck. A few
days later, Jones met H. Wilk in the warehouse. H. Wilk
told him, "We are going to court over Bill and Paul. They
are not coming back. I'll close the doors if they do." H.
Wilk also told Jones that he had better watch what he said
to Brinker (the Board's investigating attorney) or he could
go to jail for perjury. Jones replied that he would not lie to
the Federal Government.
On February 23, the Regional Director approved a
settlement agreement by terms of which Lint and Hoffman
were restored to duty. The Respondent did not close its
doors. Instead, it was faced with a representation election
which took place on March 15. The Union won that
election 3 to 0 and was certified.
Just before Lint and Hoffman were restored to duty in
mid-February, H. Wilk had another private conversation
with Jones. He asked Jones why he wanted a union. Jones
explained that he had not gotten any raises, had no
insurance, and no job security. H. Wilk promised him a
raise in his next paycheck but no additional money
appeared in the check. When Jones asked him about it, H.
Wilk pulled out a $10 bill and handed it to him. Thereafter,
H. Wilk gave Jones $10 in cash each payday until the
election. After the election, at which each of the three
voters demonstrated their support for the Union, H. Wilk
stopped supplementing Jones' paycheck. On another occa-
sion before the election, H. Wilk said to Lint that if the
Union came in, he would close the plant.
Shortly after the election, Hoffman was selected as shop
steward and member of the negotiating committee. On
April 9, discussions leading to a contract began and
Hoffman took part in these discussions. On April 14,
Hoffman experienced a breakdown in his private vehicle
on the way to work. The water pump went out and he had
to take his pickup truck home to have it worked on. Jones
noticed that Hoffman had not reported for work and
suggested to Debbie Guenzberger, the company secretary,
that she call Hoffman's home to find out what had
happened. She did so. Hoffman told her that he had a
problem with his truck and could not report to work. Jones
asked Miss Guenzberger if he could speak with Hoffman.
He did so and Hoffman told Jones the same story.
ABC the following day. S. Wilk testified that he had no intention of hiring
Poll that afternoon when he interviewed him, because he expected that
Hoffman or Lint would take the overnight run which was offered to them a
few hours after the interview was completed. S. Wilk stated that he merely
wanted to interview Poll in order to build up a reserve list of qualified job
applicants in his files. I discredit his explanation.
477
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guenzberger told H. Wilk that she had called Hoffman
and that he said that he had truck problems and would not
be able to come to work. H. Wilk then asked Jones if he
had talked with Hoffman. Jones said that he had not done
so. 6 H. Wilk then called Joe Dino, a union representative,
and complained to Dino that Hoffman had not come to
work and had not called in sick. Dino called Hoffman and
found out that Hoffman had told the company secretary
about the problem he had experienced with his truck.
Guenzberger later repeated to H. Wilk during the course of
the morning that she had spoken with Hoffman and that he
had indicated to her that he had a problem with his truck.
H. Wilk then called his attorney, Raymond Harris, and
asked him what should be done concerning Hoffman.
Harris advised that Hoffman should either be fired or given
a written reprimand. He was fired. 7
The following Monday, H. Wilk had a private conversa-
tion with Guenzberger, in which he asked her to review
once more the events which took place on April 14, before
Hoffman was discharged. Guenzberger again told him that
Jones had suggested that she call Hoffman at his home,
that she had done so, and that Hoffman told her that he
could not report to work because of trouble with his truck.
H. Wilk acted as if he had not heard this story before and
told Guenzberger that her account had now placed a
different light on the entire matter. He told her that the
Company might have to hire Hoffman back and then
would close the plant. Hoffman was restored to duty on
April 19 after H. Wilk called Joe Dino to inform Dino of
the decision.
On April 19, H. Wilk had occasion to talk to Jones and
asked him if he had talked with Hoffman on the day when
Hoffman had failed to report. Jones finally admitted that
he had talked with Hoffman but that he had denied doing
so because he did not want to get into trouble about using
the telephone. H. Wilk said to Hoffman that Guenzberger
had told him that Hoffman had not called in. An argument
ensued over who had called whom and Guenzberger was
drawn into the argument. At this point, H. Wilk told
Guenzberger she would have to apologize to Hoffman and
to Joe Dino about the misunderstanding. Jones then stated
that Hoffman was getting another paid vacation. Both
Wilks followed Jones back into the warehouse. S. Wilk told
Jones not to speak to his father as he had done. Jones
replied that he was only speaking as he had been spoken to,
at which point, H. Wilk told him that if he did not like his
job he should leave. He accused Jones of being the source
of the trouble about Hoffman's discharge and threatened
to fire him if he opened his mouth again. He also told Jones
not to expect the Union or anyone else to back him up
because he (H. Wilk) was not sure there was going to be a
business. He stated that he was the owner of the Company
and could close his doors anytime he wanted.
e Jones admitted on the stand that he had lied to H. Wilk. His excuse for
doing so was that he was afraid of getting into trouble for unauthorized use
of the telephone. H. Wilk sent Hoffman a letter, dated April 15, which read:
This letter is to notify you that you are being discharged for failure to
report to work on April 14, 1977, as scheduled, without notifying the
office. In view of the fact that you were available to report to work and
that a phone was at your disposal, there was no excuse for you not
contacting this Company but were able to speak with Mr. Joe Dino, Jr.,
of Local 688. Therefor, you leave this company no alternative but to
dismiss you as of this day, April 15, 1977.
H. Wilk also called Hoffman, Lint, and Jones together
and told them that henceforth some new rules would be in
effect at the Company. He instructed them to wear
hardhats at all times in the warehouses. He also said that
anyone who was going to be absent because of sickness
would be required to call the Company 10 minutes before
his reporting time to give notice of his absence. Jones asked
H. Wilk how he could call in ahead of his reporting time
when nobody was ordinarily at the plant to take the call. H.
Wilk replied by telling Jones to be quiet. Hoffman and Lint
normally reported at 7:30 a.m., and were out on the road
making local deliveries by about 9 a.m. Jones normally
reported at 7 a.m., and S. Wilk was usually the only
supervisor present during that period of time. It was he
who unlocked the warehouse to permit Jones and other
employees to enter.
On Monday, April 25, Jones felt too ill to report to work.
He called the Company office twice.8 On the first call the
phone was not answered. On the second call he told S.
Wilk that he was not coming in. S. Wilk asked him if he
was so sick that he could not call in at starting time. Jones
replied that he had called earlier but no one answered the
phone. S. Wilk then told Jones to call him if he was not
coming in on Tuesday.
Jones still felt sick on Tuesday morning but thought he
would make the effort to come to work because he was
running low on money. He arrived about 6:50 a.m., and
was sitting in his truck in the parking lot when S. Wilk
arrived and walked over to him. S. Wilk said he did not
need Jones that day and did not think he would be coming
in. Jones then asked S. Wilk if his fingers were broke and
asked him why he had not called him to let him know. He
then gave S. Wilk his phone number. S. Wilk asked Jones
how he felt and asked him to call him if he was not coming
in on Wednesday. On Wednesday, April 27, Jones felt ill
and asked his wife to call the Company for him to say that
he would not be in. Jones' wife worked a sufficient distance
from the plant that a toll call would have to be made from
her place of employment to the Respondent's office. Mrs.
Jones phoned the Respondent from her place of employ-
ment and had the charges billed to her home phone. A long
distance bill in evidence indicates a call to the Respondent
from Mrs. Jones' place of employment in Antonia, Missou-
ri, at 7:23 a.m. S. Wilk acknowledged receiving a call from
Mrs. Jones at or about this time notifying him that Jones
was ill and would not come to work that day.
Sometime early in the afternoon, S. Wilk phoned Jones
at his house and asked him how he was feeling. Jones said
he was feeling horrible. S. Wilk said that he did not want
him to come in Thursday if he was sick and Jones agreed.
S. Wilk then conferred by telephone with his father, who
was at home recuperating from a heart attack. They both
agreed that Jones should be fired and collaborated on the
7 In discussing this matter with Hoffman, H. Wilk said he would have
Guenzberger sign an affidavit that he had not called in to report his absence.
s On this occasion, Jones was at his mother's house, which is located far
enough from the plant that a toll call was required to phone the plant. Long
distance toll slips in evidence indicate calls from Jones' mother's house to
the Company at 7:08 a.m., and 8:34 a.m., on April 25. Jones testified that he
preferred to make toll calls in matters concerning absences so that there
would be some written documentation that calls had in fact been made.
478
ABC SPECIALTY FOODS, INC.
text of a letter which was sent by certified mail to Jones on
the same afternoon. The letter read:
In reviewing your past work record it is apparent you
no longer desire to be employed with our company,
therefore, this letter is to inform you that you are being
terminated as of this date for failure to report to work
at proper time, or to report sick within a reasonable
time. After reporting sick there was no further commu-
nication as to when you would be able to return to
work. In view of the above we have no other alternative
than to take this action. All work tools, or equipment
that you have in your possession must be returned
before final check will be issued.
On May 4, Jones filed an individual charge with the
Board claiming that his discharge was discriminatorily
motivated.
II1. ANALYSIS AND CONCLUSIONS
A. Individual Acts of Interference, Restraint, or
Coercion
Based on credited evidence in the record, I conclude that
Respondent violated Section 8(a)(1) of the Act by the
following acts and conduct:
(a) H. Wilk questioned Jones on February 8, immediate-
ly after learning of the Union's interest in obtaining
recognition. He asked Jones if Jones had requested Local
688 to represent him, whether the Union had come on
company property to organize, and whether someone at the
warehouse had initiated the effort. These questions consti-
tute coercive interrogation in violation of the Act.
(b) In discussing the initial discharges of Lint and
Hoffman with Jones, H. Wilk told Jones that these two
employees were not coming back to work and that he
would close the doors if they did. This threat of plant
closure in the event that employees successfully exercised
their statutory right of redress is coercive and a violation of
the Act.
(c) H. Wilk's further statement to Jones, on this occasion,
warning him about giving false testimony or evidence to a
Board investigator was, under the circumstances herein, an
attempt to coerce Jones into silence during the investiga-
tion of an unfair labor practice charge. It constitutes a
violation of the Act.
(d) I credit Jones' testimony that H. Wilk gave him $10 a
week in cash every payday to supplement his regular
earnings after learning that one of the main reasons for
Jones' unhappiness with the Company and his support for
the Union was the fact that.he had not received a raise. H.
Wilk's action was clearly an attempt to persuade an
employee to abandon his support for the Union by offering
a financial inducement and is an obvious violation of the
Act. On March 15, all of the employees who voted in the
election indicated their support for the Union. After this
occurred, H. Wilk discontinued making these supplementa-
ry payments to Jones. His act of discontinuing a benefit,
even though it was illegally granted in the first place, was
taken in reprisal for Jones' action in voting for the Union
and violates Section 8(a)(1) of the Act.
(e) Prior to the election, H. Wilk told Lint that if the
Union came into the plant, the plant would be closed. This
statement is a threat which violates Section 8(a)(1) of the
Act.
(f) In an argument which took place between H. Wilk
and Jones, and which occurred on or about the time of
Hoffman's second discharge, H. Wilk told Jones not to
expect the Union or anyone else to back him up because he
was not sure there was going to be a business. At this time
the Union had been certified. H. Wilk also told Jones that
he was still the boss and could close his doors anytime he
wanted to. These statements by H. Wilk constitute a threat
to close the plant in the event that employees pursued
collective bargaining and continued to seek the assistance
of a union. They are also an interference with union and
protected activities, in that they are designed to impress
upon an employee the futility of taking such a course of
action. As such, these statements violate Section 8(aXI) of
the Act.
B. The Events of February 8, 1977
All of the discharges which occurred in the time period of
February 8 to April 27, 1977, took place against a
background of demonstrated and articulated animus
against the Union, as evidenced by the statements of
Respondent's owner and his son outlined above. Respon-
dent argues that despite these statements there is no basis
for a finding of union animus because Respondent negoti-
ated a contract with the Union following the March 15
election which is now in force and effect. There is no
allegation in the complaint that Respondent violated
Section 8(aX5) of the Act by bad-faith bargaining. The
allegations in the complaint claim that Respondent com-
mitted certain per se violations of the Act, the illegality of
which do not involve motive. The complaint also states
that Respondent discriminatorily discharged all three of its
unit employees. The fact that an employer did not violate
Section 8(aX5) can hardly support an inference that it did
not violate other sections of the Act, nor can it demonstrate
lack of union animus when such animus has been so clearly
manisfested by other words and conduct, some of which is
not even denied by the Company's witnesses.
In addition to collateral evidence of animus, the Febru-
ary 8 discharges and reprimand to Jones are events
surrounded by suspicious timing. They all took place on
the same day the Union made its initial contact with
Respondent. Before acting against Hoffman and Lint, the
Wilks had obtained information from Jones concerning the
current organizational effort. I credit record testimony that
H. Wilk stated, with reference to Lint, that he had "done
this to him" before, the reference being to Lint's role in the
abortive organizational effort which took place in 1975.
The pretext under which Respondent sought to execute the
February 8 discharges is little short of preposterous. The
Wilks knew that both drivers had a distinct aversion to
overnight runs, especially ones which were assigned on
short notice, and that they had refused such runs with
impunity in the past. In advance of offering such a run,
Respondent already had letters of discharge typed out and
had taken the further precaution of hiring a replacement
who came to work the following morning. Accordingly, it is
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear that Respondent did not discharge Lint and Hoffman
on February 8 for the reasons indicated on their respective
discharge letters but created a situation which would
provide it with a basis for discharge. Its motive was an
attempt to eliminate union activists from its business. The
letter of reprimand, placed in Jones' file on the same day, is
a lesser form of discipline meted out to a known adherent
who had just declared his affinity for the union cause. The
discharges in question violate Section 8(aX1) and (3) of the
Act, while the letter of reprimand violates Section 8(a)(1). I
so find and conclude.
C. The April 15 Discharge of Hoffman
By April 15, Hoffman had already been the subject of
one discriminatory discharge after which he obtained
reinstatement. He had demonstrated his continued adher-
ence to the union effort by voting in an election which the
Union won unanimously. Hoffman had just been appoint-
ed to the negotiating committee and had just been elected
shop steward. On April 9, he participated in a bargaining
session. Even H. Wilk realized the baselessness of the
grounds for which he fired Hoffman the second time.
Hoffman was fired for not reporting for work and for
failing to call in to notify the Company of his impending
absence. Hoffman in fact had car trouble. He discussed his
problem in detail with the company secretary, who had
called him and later reported this fact to the Wilks prior to
the time Respondent issued a letter of discharge. The
timing, the knowledge of Hoffman's leadership role in
union activities, the demonstrated animus of Respondent
noted above, and the complete emptiness of its asserted
reason for the discharge make it clear beyond any doubt
that Hoffman was discharged a second time for the same
reason he was discharged the first time. The second
discharge also violates Section 8(aX1) and (3) of the Act.
D. The Discharge of Jones
By the time Respondent focused its principal attention
on Jones, it had demonstrated not only animus in general,
but also its proclivity for engaging in discriminatory
discharges to achieve its ends. Not more than a week
before Jones was fired, he was involved in an acrimonious
argument with both Wilks concerning the discharge and
reinstatement of Hoffman, in the course of which H. Wilk
suggested to Jones that if he did not like working for the
Company he should go elsewhere. I must credit Jones'
version of his final days on Respondent's payroll since S.
Wilk's testimony on these points is replete with so many
inconsistencies and contradictions that it is simply beyond
belief.
Jones was ill with the flu on Monday (April 25) and
called in sick. On Tuesday, he came to work and was told
to go home because he had failed to notify the Company
that he was coming in. S. Wilk said that he did not put
Jones to work on Tuesday when he arrived because he had
already notified a part-time employee, Sally Lynch, to
come in as a substitute. However, S. Wilk admits that he
was still short-handed, even with Lynch at work in the
warehouse, a fact indicating that S. Wilk was acting
punitively toward Jones on Tuesday when he sent him
home. Jones asked his wife to call in the following morning
to report his inability to report because of a continuing
bout with the flu. The receipt of this call is acknowledged.
Early in the afternoon, S. Wilk called Jones at home and
asked him how he felt. Jones replied that he felt horrible. It
was after this call that Jones was fired for failing to report
or to report sick within a reasonable time. As a makeweight
reason, S. Wilk also wrote in the discharge letter that, after
reporting sick, there had been no further communication as
to when Jones would be able to return to work.
The asserted reasons contained in the discharge letter are
clearly pretextual and, for the most part, false in fact. Jones
did notify the Company, through the efforts of his wife,
within 23 minutes after the start of his shift that he would
not come to work on April 27 because of illness. There is
no question that this call was received. Inasmuch as a
phone call at an earlier hour which was made by Jones on
Monday to give notice of his Monday absence was not
answered, Respondent can hardly be heard to contend that
a call at 7:23 a.m. on Wednesday was not reasonable
notice of an impending absence. Both S. Wilk and Jones
spoke later that day, at which time Jones told S. Wilk that
he still felt bad. There was no way that he could say with
any degree of certainty during the afternoon conversation
when he would be able to return to work. Most significant-
ly, S. Wilk did not even ask him this question. S. Wilk
testified at the hearing that he thought Jones was lying on
Wednesday about being sick, so he fired him, in effect, for
malingering. What basis S. Wilk had for his telephone
diagnosis of Jones' condition does not appear from the
record. He admits he thought Jones was sick on the
preceding days, and this was one of the reasons for sending
him home on Tuesday. I credit Jones' testimony that S.
Wilk told him in the course of the telephone conversation
on Wednesday afternoon that he did not want Jones to
come to work on Thursday because he did not want Jones
to be working in the warehouse while he was sick. In light
of this credited testimony, Respondent's excuse for firing
Jones becomes all the more incomprehensible. According-
ly, I conclude that Respondent's excuse for firing Jones
was, like its excuses for firing Hoffman and Lint, wholly
pretextual, that its real reason for firing Jones was to take
reprisal against him for his union adherence and activities,
and that the discharge violated Section 8(aXl) and (3).
E. The Setting Aside of the Settlement Agreement
in Case 14-CA-10007
On February 23, 1977, the parties to this case entered
into an approved settlement agreement disposing of the
discharges of Hoffman and Lint, the warning letter to
Jones, and the attendant conduct of Respondent which
independently violated Section 8(aXl) of the Act. Respon-
dent urges as a defense that no finding or order should be
made concerning these allegations in the consolidated
complaint because they were amicably resolved by the
parties and the terms of the resolution have been embodied
in a settlement agreement which should be deemed to
dispose of them with finality. One of the elements of any
Board settlement agreement which disposes of unfair labor
practices is an undertaking by Respondent not to engage in
any unfair labor practices in the future. This undertaking
480
ABC SPECIALTY FOODS, INC.
was not honored by Respondent in this case. The findings
above demonstrate beyond peradventure that Respondent
herein continued to act during the period following the
settlement agreement in the same unlawful manner that it
did before the agreement was concluded. Under such
circumstances, the Regional Director had ample justifica-
tion to set aside the agreement, as he did on June 1, and to
prosecute the underlying unfair labor practices as if no
agreement had ever been signed.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, ABC Specialty Foods, Inc., is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Teamsters Local Union 688, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging Paul Lint and William Hoffman on
February 8, 1977, by discharging William Hoffman on
April 15, 1977, and by discharging Rick Jones on April 27,
1977, as found above, Respondent herein violated Section
8(a)(3) of the Act.
4. By the acts and conduct set forth above; by threaten-
ing to close the plant if discharged employees are restored
to duty or if employees engage in union activities or in
concerted, protected activities; by coercively interrogating
employees concerning their union activities and the union
activities of other persons; by telling employees that
engaging in collective bargaining would be an act of
futility; by granting employees wage increases in order to
discourage their support for the Union and by reducing
wages in reprisal for union activities; by reprimanding
employees because they have engaged in union activities;
and by threatening employees that the use of the Board's
processes would result in adverse consequences, Respon-
dent herein violated Section 8(a)( I) of the Act.
5. The unfair labor practices found herein affect com-
merce between the several States within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent herein has committed
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take other
actions designed to effectuate the purposes and policies of
the Act. Since the violations of Section 8(a)(1) which have
been found herein are repeated and pervasive and involve
discriminatory discharges, I will recommend the issuance
of a so-called broad 8(a)(1) order designed to suppress any
and all violations of that section of the Act. J. C. Penney
Co., 172 NLRB 1279, fn. 1 (1968); Adam & Eve Cosmetics,
Inc., 218 NLRB 1317 (1975); Thermo-Electric Company,
Inc., 222 NLRB 358 (1976). In view of the fact that
9 F. W. Woolworth Company, 90 NLRB 289 (1950).
10 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.
Hoffman and Lint have been reinstated and are now
working, I will recommend that Respondent be required to
offer full and immediate reinstatement to his former or
substantially equivalent employment only in the case of
Rick Jones, but I will require Respondent to make whole
each of these three employees for any loss of pay they have
suffered by reason of the discrimination practiced against
them, in accordance with the Woolworth formula,9 with
interest thereon computed at 7 percent per annum as
required by the Board's recent decision in Florida Steel
Corporation, 231 NLRB 651 (1977). I will also recommend
that Respondent be required to post the usual notice,
notifying its employees of their rights and of the results of
this case.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole,
and pursuant to Section 10(c) of the Act, I make the
following recommended:
ORDER 10
The Respondent, ABC Specialty Foods, Inc., Hazel-
wood, Missouri, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities and the union activities of other persons.
(b) Threatening employees with plant closure if dis-
charged employees are restored to duty or if employees
engage in union activities and concerted protected activi-
ties.
(c) Granting employees wage increases in order to
persuade them to abandon support of a union; provided
that, nothing herein shall be construed as requiring Re-
spondent to reduce any wage increase which has been
granted to any employee.
(d) Reducing wages in order to take reprisal against
employees for supporting a union.
(e) Telling employees that engaging in union activities or
in collective bargaining would be an act of futility.
(f) Telling employees that utilizing the processes of the
Board could result in adverse consequences.
(g) Reprimanding employees because they have engaged
in union activities.
(h) Discouraging membership in or activities on behalf of
Teamsters Local Union No. 688, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organiza-
tion, by discharging employees or otherwise discriminating
against them in their hire or tenure.
(i) By any other means interfering with, coercing, or
restraining employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Offer to Rick Jones full and immediate reinstatement
to his former position, or, in the event his former position
no longer exists, to substantially equivalent employment,
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.
481
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without prejudice to his seniority or other rights which he
formerly enjoyed.
(b) Make whole Rick Jones, William Hoffman, and Paul
Lint for any loss of pay they may have suffered by reason
of the discriminations found herein, in the manner de-
scribed above in the section entitled "Remedy."
(c) Remove from the personnel records of Rick Jones the
written reprimand dated February 8, 1977, which was
placed therein.
(d) Post at its Hazelwood, Missouri, plant copies of the
attached notice marked "Appendix." 1 Copies of said
notice on forms to be provided by the Regional Director
for Region 14 and duly signed by a representative of the
Respondent, shall be posted by the Respondent immedi-
It In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
ately upon receipt thereof, and shall be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that such notices are not altered, defaced, or covered
by any other material.
(e) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
and other records necessary to analyze the amount of
backpay due under the terms of this Order.
(f) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
482