Bevaco Food Service

National Labor Relations Board - Board Decisions

Aug 27, 1996

321 N.L.R.B. 1313 (N.L.R.B. 1996)

1313
321 NLRB No. 170
BEVACO FOOD SERVICE
1 On March 6, 1996, Administrative Law Judge Richard H.
Beddow Jr. issued the attached decision. The General Counsel filed
exceptions and a supporting brief. The Respondent filed an answer-
ing brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
3 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144
(1996).
4 All dates are in 1994 unless otherwise indicated.
F.H. Bevevino & Co., Inc. d/b/a Bevaco Food Serv-
ice and Joseph J. Skwara. Case 4–CA–23382
August 27, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issues presented to the Board in this case are
whether the judge correctly limited the remedy for
Charging Party Joseph J. Skwara, based on the judge’s
finding that Skwara had conclusively indicated an in-
tent to resign from the Respondent before he was un-
lawfully discharged, and whether the judge correctly
dismissed the allegation that the Respondent violated
Section 8(a)(1) of the Act by creating the impression
among its employees that their protected concerted ac-
tivities were under surveillance.1
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
Contrary to our dissenting colleague, we agree with
the judge that the backpay of employee Skwara should
toll on January 1, 1995.
In June 1994,4 Skwara was hired under a limited
term employment agreement set to expire on December
31. In November, Skwara notified the Respondent that
he had problems at work which, if unresolved, would
result in his resignation. Thereafter, on November 22,
Skwara presented the Respondent with a proposed 2-
year personal employment contract for the period from
January 1, 1995, to January 1, 1997. When presenting
this proposal, Skwara stressed to the Respondent that
he needed a response by December 1. In the absence
of a response, Skwara said that he needed to be ready
to leave his job by January 1, 1995.
Consistent with his November 22, 1994 statements
to the Respondent, Skwara informed a fellow em-
ployee on November 25 that he would resign if the
Respondent’s response to his proposed employment
contract was not favorable.
On November 29, Skwara unequivocally informed
the Respondent that, because his November 22 pro-
posal had not yet been accepted, he was resigning.
Specifically, Skwara notified the Respondent that ‘‘I
haven’t heard from you, so I guess that means you’re
not accepting my proposal and that I resign.’’
Although we agree with the judge that the Respond-
ent unlawfully discharged Skwara on November 29,
1994, we disagree with the dissent that his backpay for
the unlawful discharge should not be tolled as of Janu-
ary 1, 1995. Thus, contrary to our colleague, we find
that Skwara clearly, repeatedly, and unequivocally in-
dicated that he would resign effective January 1, 1995,
unless his employment and contract demands were
met, or at least responded to within a specified period.
Further, prior to the agreed-upon time for response,
Skwara precipitously notified the Respondent that he
was resigning. Unlike the dissent, we do not find that
Skwara’s use of the word ‘‘guess’’ in his November
29 message somehow nullified the resignation or re-
quired the Respondent to treat it as mere posturing.
We recognize that the Respondent could have re-
jected the resignation on November 29 on the ground
that the Respondent had 2 more days in which to re-
spond. However, the fact is that the Respondent did
not do so. To the contrary, the Respondent discharged
Skwara on that day. Thus, the resignation announce-
ment still stood, albeit it was short circuited by a dis-
charge. Because Skwara’s resignation was short
circuited by a discharge, he is entitled to backpay from
the time of discharge to the time of the scheduled res-
ignation.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, F.H.
Bevevino & Co., Inc. d/b/a Bevaco Food Service,
Boothwyn, Pennsylvania, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraphs 2(b)–(e).
‘‘(b) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge, and within 3 days thereafter notify the em-
ployee in writing that this has been done and that the
discharge will not be used against him in any way.
‘‘(c) Preserve and, within 14 days of a request,
make available to the Board or its agents for examina-
tion and copying, all payroll records, social security
payment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The only credibility finding the judge made concerned this con-
versation. The judge implicitly discredited Skwara’s testimony deny-
ing that he referred to resigning in this conversation. But, as noted
above, I cannot agree that a statement of intention to resign if bar-
gaining is not successful is the same thing as a resignation.
2 My colleagues find that Skwara ‘‘clearly, repeatedly, and un-
equivocally’’ resigned. The judge did not even go this far; he found
only that Skwara ‘‘tendered a resignation.’’ As set forth above, even
this finding was based on an inference that I am not willing to make.
In any event, having made their own factual finding, the majority
then dismisses the Respondent’s unfair labor practice as simply a
‘‘short-circuiting’’ of Skwara’s resignation, by which they must
mean that they believe Skwara’s employment would have ended
even absent his firing. This is another inference in which I am not
willing to indulge, because it assumes that Skwara would have fol-
lowed through on what the judge characterized as his ‘‘plan to re-
sign’’ if he was not fired, and that assumption resolves uncertainty
in favor of the Respondent.
‘‘(d) Within 14 days after service by the Region,
post at its facility in Boothwyn, Pennsylvania, copies
of the attached notice marked ‘‘Appendix.’’4 Copies of
the notice, on forms provided by the Regional Director
for Region 4, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since December 28, 1994.
‘‘(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER BROWNING, dissenting in part.
Contrary to my colleagues, I would provide a rein-
statement order to remedy the 8(a)(1) discharge the
Respondent committed.
In mid-November 1994 the Respondent and em-
ployee Joseph Skwara began negotiations over renewal
of Skwara’s employment contract. In commencing ne-
gotiations, Administrative Law Judge Richard H.
Beddow Jr. credited testimony that Skwara stated that
if no agreement were reached ‘‘he was going to be re-
signing—it was either December 1st or January 1st.’’
On November 22, 1994, Skwara indicated that he
needed a response to his proposal by December 1,
1994, ‘‘because if I don’t hear by then I need to be
ready to go by January 1st. I got to plan some other
things, get some things in place.’’ On November 29,
1994, Skwara left a phone message with the Respond-
ent stating, ‘‘I haven’t heard from you, so I guess that
means you’re not accepting my proposal and that I re-
sign.’’
On November 29, 1994, after receiving the phone
message, the Respondent precipitously discharged
Skwara. The judge found that the discharge was in re-
taliation for Skwara’s protected concerted activity and
violated Section 8(a)(1), but the judge did not rec-
ommend a reinstatement order, on the grounds that
‘‘the record indicates that [Skwara] tendered a resigna-
tion to be effective January 1, 1995.’’
Although the judge credited testimony that Skwara,
during the course of bargaining, stated an intention to
resign if bargaining was not successful, I fail to see
how a finding that such statements were made is tanta-
mount to a credibility finding that Skwara irrevocably
resigned as of January 1, 1995. Rather, the judge has
drawn an inference that Skwara would have resigned
January 1, absent the Respondent’s unfair labor prac-
tice. Disagreeing with this inference would not require
setting aside a credibility determination.
In my view, the mid-November1 and November 22
statements were posturing at the beginning of bargain-
ing. Skwara’s November 29 phone message was a con-
tinuation of bargaining—‘‘I guess that means . . . I re-
sign’’ invites a response; it does not emphatically close
a door. Instead of precipitously discharging Skwara al-
most immediately after he left the phone message, the
Respondent could have responded to the message by
replying that it did not in fact accept his proposal to
resign, and making a counteroffer. The Respondent’s
unfair labor practice was a significant intervening act.
By drawing the inference that Skwara would have re-
signed in the absence of that unfair labor practice, the
judge has acted contrary to the well-established prin-
ciple that uncertainty must be resolved against the
wrongdoer. See Bakersfield Memorial Hospital, 305
NLRB 741, 748 (1991). I would resolve that uncer-
tainty by making the Respondent responsible for the
consequences of its illegal act, and ordering it to rein-
state Skwara.2
In all other respects, I agree with my colleagues’ de-
cision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
1315BEVACO FOOD SERVICE
1 The General Counsel’s unopposed motion to correct the tran-
script to reflect the correct number of the case as Case 4–CA–23382
is granted.
2 All following dates will be in 1994, unless otherwise indicated.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against employees because they engage in concerted
activity protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make Joseph J. Skwara whole for any loss
of earnings and other benefits resulting from his dis-
charge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful discharge of Joseph J. Skwara, and WE
WILL, within 3 days thereafter, notify him in writing
that this has been done and that the discharge will not
be used against him in any way.
F.H. BEVEVINO & CO., INC. D/B/A
BEVACO FOOD SERVICE
Linda Rose Carlozzi, Esq., for the General Counsel.
David S. Fortney, Esq. and Eric Lemont, Esq., of Philadel-
phia, Pennsylvania, for the Respondent.
DECISION
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Philadelphia, Pennsylvania, on Decem-
ber 13 and 14, 1995. Subsequent to an extension in the filing
date briefs1 were due, briefs were filed by the Respondent
and the General Counsel. The proceeding was based on a
charge filed December 28, 1994,2 by Joseph J. Skwara, an
individual. The Regional Director’s complaint dated February
28, alleges that Respondent F.H. Bevevino & Co., Inc., d/b/a
Bevaco Food Service violated Section 8(a)(1) of the National
Labor Relation Act (the Act) by discharging Joseph Skwara
because of his protected concerted activity and by creating
the impression among its employees that their protected con-
certed activities were under surveillance by telling an em-
ployee that the Respondent had known for weeks about an
employee meeting.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Pennsylvania corporation, with its principal
place of business in Pittson, Pennsylvania, and with a facility
located in Boothwyn, Pennsylvania, is engaged in distribut-
ing food products, chemicals, and nonalcoholic beverages to
businesses located both within and outside the Common-
wealth of Pennsylvania and it annually purchases and re-
ceives goods and materials valued in excess of $50,000 di-
rectly from points outside Pennsylvania. It admits that at all
times material it has been an employer engaged in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The Respondent employs approximately 12 sales employ-
ees at its Boothwyn location who service sales territories in
both Pennsylvania and New Jersey. In the fall of 1994, Rob-
ert Schofield was Respondent’s president, Robert Reusche
was regional sales manager, Christopher Wanding was dis-
trict manager, and Lee Eckert was sales manager. All are ad-
mittedly statutory supervisors.
Joseph Skwara began working for the Respondent in its
Boothwyn office on June 17 and was responsible for devel-
oping business in his sales territory which included central
New Jersey and a few accounts in Philadelphia. He had pre-
viously worked for Woodhaven Foods and had enjoyed over
8 years of successful sales work when the Woodhaven Foods
division was sold to another company. He then contacted
Skip White, Respondent’s vice president of sales. Thereafter,
Respondent’s representatives (including Eckert, Reusche, and
Schofield) met with approximately 25 Woodhaven Foods’
employees and several people, including Barbara Elizabeth
Sweeney, began working for Respondent in June. Reusche
was actively involved in hiring Skwara and the employment
agreement reached was for a 6-month duration. Skwara was
paid a base salary of $2500 per week for the first 4 weeks
and thereafter, Skwara’s compensation was based on full
commission with commission based on actual sales. The sale
price minus the actual cost of the product to the Company
equals the gross profit on which commission is paid. Other
compensation was received through incentive programs such
as ‘‘dollars per drop,’’ which paid an incentive for large de-
liveries and ‘‘accounts receivable,’’ where an incentive was
paid for accounts which paid their accounts quickly, thus the
fewer days an account was listed as receivable, the more the
incentive to the sales representative.
Skwara testified that commission reports were received
weekly and that he soon noticed that these commission re-
ports did not correspond to his estimates. He raised this issue
initially with Reusche about the second week of July and
was told by Reusche that he would discuss it with Eckert and
take care of it.
In October, Skwara again spoke to Reusche regarding
commissions during a meeting held in the Boothwyn office
with the sales force to discuss the Respondent’s commission
structure. Reusche explained the commission structure and
how they calculated gross profit. During a question-and-an-
swer period after Reusche’s presentation, questions and com-
1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plaints were raised about the compensation and Skwara
asked about the ‘‘dollars per drop’’ which was being affected
by internal procedures and operations. Skwara questioned
why one practice registered as a drop and asked for a solu-
tion or alternative way of doing it. Skwara also raised ques-
tions about ‘‘accounts receivable’’ where incentives were
paid on the time that accounts were paid. In response
Reusche said that he would look into it and get back to the
employees.
The record also shows that the Respondent held regular
monthly sales meetings to give employees product knowl-
edge, handle housekeeping, and to address problems. Meet-
ings usually were held in the Pittson, Pennsylvania area and
generally lasted a full day. Skwara generally attended the
sales meetings, but was unable to attend the November meet-
ing due to previously scheduled travel plans which Reusche
was aware of and had previously approved.
Sweeney attended the November meeting with approxi-
mately 60 other employees from various locations. The
evening before the sales meetings, Reusche held a branch
meeting with employees from the Boothwyn office. Sweeney
testified that she had learned that employees from the Syra-
cuse branch had left the Respondent and gone to another
company, that the Boothwyn employees were concerned
about the reason, and that she asked Reusche if the Syracuse
employees left because of the commission program. Reusche
replied no, but when asked why they left, no answer was
provided. Sweeney then told Reusche that if she were writing
the business she was currently writing with Respondent at
Woodhaven Foods, she would be making a considerable
amount more money and Reusche answered that she was not
working at Woodhaven Foods anymore.
Sweeney testified that the following morning a group of
about eight employees had breakfast together in the hotel’s
restaurant prior to the sales meeting and discussed the com-
mission program. She said employees were confused by the
reports because they were difficult to decipher and employ-
ees were not happy with the ‘‘bottom line.’’
After the November meeting Skwara and Sweeney spoke
on the phone and she discussed with him the issues which
were discussed at the meeting including her question about
the Syracuse employees as well as her comment to Reusche
about her commission. Sweeney told Skwara that Reusche
would put together a memo to summarize the issues. (This
was done and Reusche’s memo makes reference to several
issues which were of concern to employees which lead to
their protected concerted activity. In particular the memo re-
fers to the commission program not being strong enough and
further states, ‘‘Need happy people on the street.’’ The
memo also makes reference to the credit systems.)
Since management had often stressed that employees
should not just bring problems to management without solu-
tions, Sweeney and Skwara thought it would be beneficial to
ask employees to meet and to develop something to address
the problems. They agreed that Sweeney would call the em-
ployees in the Pennsylvania territory and Skwara would con-
tact those in New Jersey. During the week of November 14,
Skwara contacted about six employees about having an em-
ployee meeting (he spoke to personally while leaving mes-
sages for others). After Thanksgiving, Sweeney contacted
five or six employees and left voice mail messages. Some of
these employees called and left messages for Sweeney on the
following Monday. Skwara received some return calls and
decided to find a location for the meeting. On Monday, No-
vember 28, Skwara secured a location in Mt. Laurel, New
Jersey, and reserved it for meeting on Friday, December 2.
Sweeney then proceeded to call employees to inform them
of the meeting location and date.
During mid-November, Skwara initiated contact with
Reusche to discuss his employment agreement, which was
approaching the end of 6 months. When Skwara indicated
that if the Company did not get a handle on some of their
problems, he would not have a future with the Company,
Reusche encouraged Skwara to contact President Schofield
because Reusche felt that Skwara was a great sales performer
and a valued employee that they wanted to keep. In fact,
Skwara was writing approximately $60,000 in business a
week.
Skwara testified that he called Schofield and said he want-
ed to discuss his future with the Company. Reusche testified
that Schofield played back Skwara’s voice mail message for
him and that Skwara’s message said
. . . that he was having problems, that weren’t getting
fixed, and that he was going to be resigning—it was ei-
ther December 1st or January 1st and he wanted to get
together with Bob and discuss it.
On November 22, Skwara met with Schofield, Eckert, and
Reusche and the group then went to dinner at the Sheraton
in New Jersey. Skwara gave a contract proposal to Schofield
and he testified that Schofield said he would get back to him
on November 28. When Skwara did not hear from Schofield
when he expected, he left a voice mail message for Schofield
on November 29, at approximately 6 a.m. and ‘‘voiced his
disappointment’’ that Schofield did not get back to him.
Reusche testified that he heard Skwara’s message to
Schofield when it was played for him on Schofield’s voice
mail and that the message said:
Bob, hi this is Joe Skwara. It’s six something in the
morning. It’s Tuesday, I haven’t heard from you, so I
guess that means you’re not accepting my proposal and
that I resign. In addition, I want to tell you how dis-
appointed I am in you personally as a President and
chief officer of the company, something of that nature.
And not getting back to me and living up to your word.
It’s a real disappointment to me.
Reusche testified that at the dinner meeting Skwara said:
I need to hear, you know, before December 1st because
if I don’t hear by then I need to be ready to go by Jan-
uary 1st. I got to plan some other things, get some
things in place.
And Bob said, okay. So then I’ll get back to you
next Friday then, or if—whatever. Yes, it was next Fri-
day, which was actually December 2nd.
Joe said that he needed to hear by Monday. Bob ex-
plained then that he was going away for the Thanks-
giving holidays. We were meeting on a Tuesday
evening. Bob said he was leaving on a Wednesday,
going to Chicago to visit relatives. That he wouldn’t be
back until Monday. That he may have a chance to look
1317BEVACO FOOD SERVICE
at it on the plane. But he would not be able to get back
to him by Monday.
He said when do you really, really need to know by.
And Joe said December 1st. Bob said okay.
At approximately 3:30 to 4 p.m. on November 29, Skwara
was paged by Office Manager Pat Cooke and an immediate
arrangement was made for Reusche to meet Skwara in the
parking lot of a retail liquor store in Moorestown, New Jer-
sey, that afternoon.
Skwara testified that Reusche asked Skwara to get into his
car and told him that they had ‘‘decided not to accept
Skwara’s proposal,’’ they were not going to give him a
buyout, and that they were letting him go. Skwara then asked
why he was being fired and Reusche replied because he re-
quired ‘‘too much administrative work.’’ Skwara then pro-
ceeded to his car and Reusche held the car door and asked
for the company equipment back. Skwara handed Reusche
the company equipment and then said the ‘‘meeting is still
going on Friday’’ and Reusche replied he had known about
the meeting for 2 weeks. Skwara then called Schofield and
asked why he was being fired. Schofield replied that after
looking at the territory and the way it was developing, they
realized it was not a good fit; shocked by this, Skwara re-
plied, ‘‘What do you mean, not a good fit, I am your second
top salesman in six months.’’ Schofield responded by saying,
‘‘Oh Well.’’
At approximately 4 p.m. the same day, November 29, Bar-
bara Sweeney also was terminated by the district manager.
The employee meeting scheduled for December 2 did not
take place. Reusche confirmed that Skwara made a remark
about the meeting, that he was suprised by the comment and
that he just gave a ‘‘kind of uh-huh reaction.’’ Reusche con-
firmed that he had been told about the employee meeting by
two sales representatives, Mike Wirtshafter and Dan Malton,
either the Wednesday before Thanksgiving or the Friday
after Thanksgiving. Reusche testified that Wirtshafter came
to Reusche’s office and asked if he was aware of a meeting
in New Jersey that Skwara was planning. Reusche replied no
and Wirtshafter said he thought Reusche should know and
that it was about commissions and Skwara was getting peo-
ple together.
At the dinner meeting Skwara had given the Respondent
a proposal that outlined his desires concerning his employ-
ment and compensation terms. Subsequent to that dinner
meeting, several members of Bevaco management discussed
potential responses to Skwara’s proposal. On November 28,
the Monday following Thanksgiving weekend, Eckert and
Reusche discussed how to respond to the proposal which
called for guaranteed compensation and other benefits that
Eckert described as ‘‘far above and beyond our normal com-
pensation programs even for extremely good sales people’’
and ‘‘ridiculous’’ and clearly ‘‘excessive.’’ Eckert and
Reusche discussed the alternatives of accepting Skwara’s
proposal in whole, agreeing to a modified version of the pro-
posal or rejecting the proposal and buying out Skwara’s busi-
ness (which would terminate any employment relationship)
without reaching any conclusion.
Eckert testified that the next day after listening to the
phone message from Skwara Schofield went ‘‘ballistic.’’
Schofield discussed the matter with Eckert and Reusche and
they concluded that they would resolve the matter by accept-
ing Skwara’s asserted ‘‘resignation’’ and Reusche was in-
structed to handle the situation. Reusche specifically testified
that:
When I called back Bob said, did you get the message.
I said yes, I did, and he said, what do you think. And
I said well I guess he resigned. He said, well what do
you want to do. I said, I guess accept his resignation.
And he said, okay, and today’s the day. We’ll set the
date. And I said, okay.
Reusche specifically asserted that at no time in discussing
how to respond to Skwara’s message did he ever mention to
Schofield, or anyone else, Skwara’s planned employee meet-
ing.
III. DISCUSSION
This proceeding arose after several employees discussed
together and voiced concern to management about certain
terms and conditions of employment and two of them set up
a meeting for employees to further discuss these concerns. At
the same time, one of the employees engaged in these dis-
cussions and in setting up the meeting also independently
presented management with a 2-year proposal of terms and
conditions for his continued employment on and after Janu-
ary 1, 1995, to supersede the terms and conditions set forth
in his original employment agreement (which was considered
to be essentially a 6-month agreement). Then, a few days
prior to the planned meeting both of the organizers were ter-
minated.
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden presenting
sufficient evidence to support an inference that the employ-
ee’s decision to terminate him. Here, the record shows that
the Respondent’s management was well aware that Skwara,
as well as Sweeney, were raising questions at meetings with
management that expressed employee concerns over its com-
pensation practices and management noted these concerns in
management generated memos and it admitted that it was at-
tempting to address these concerns. Reusche also specifically
testified that he was told by two employees, of the employee
meeting that Skwara was planning. Although Reusche denied
that he mentioned this meeting when he was discussing how
to respond Skwara call to President Schofield, Schofield in
an affidavit dated February 13, 1995, said that he had re-
ceived a phone call from another salesman in the Philadel-
phia area and had been informed of Skwara’s planned meet-
ing but not its subject matter (he then asserted that ‘‘the con-
tent of the meeting had no factor in my decision’’).
It is well settled, however, that a supervisor’s knowledge
of an employee’s activities is imputed to the employer by
law, see Pinkrtyon’s, Inc., 295 NLRB 538 fn. 2 (1989), cited
by the General Counsel. Here, I conclude that Skwara and
Sweeney engaged not only in the concerted activity of plan-
ning the meeting but also in the separate concerted activities
of engaging in discussions about the employer’s compensa-
tion practices with other employees and therefore I find that
the Respondent was aware of and potentially motivated by
at least two separate occasions of protected concerted activity
by the Charging Party.
Moreover, Skwara’s activities in speaking to management
about how such things as commissions and cost are cal-
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Schofield was not available to testify, however, his affidavit was
accepted into evidence.
culated were issues not only of personal interest but were
issues related to general conditions of all employees.
Although Sweeney’s discharge is not an issue in this pro-
ceeding (a settlement was reached in Case 4–CA–23416 and
the matter was severed from this formerly consolidated case),
the fact that she was a co-activist in concerted activity may
be considered as well as the fact that she also was terminated
on the same day that Skwara was, despite the further fact
that she was not involved in any other behavior similar to
that attributed to Skwara by the Respondent in its attempt to
justify his termination. Otherwise, I find below that the Re-
spondent’s rationalizations concerning Skwara’s demands for
a new personnel agreement and his alleged resignation are
pretextual. I conclude that all these factors and especially the
timing of both of the terminations’ within a few days after
the time the Respondent learned of the employees’
concertedly planned meetings and a few days before the
meeting was to occur, all show that the General Counsel
clearly has met the threshold requirements for showing pro-
tected concerted activity and motivation for the Respondent’s
sudden decision to terminate one of its top sales representa-
tives only a few days after it had entered into negotiations
with him about a new employment agreement: See Circle K
Corp., 305 NLRB 932 (1991), enf. 989 F.2d 498 (1993);
Monongahela Power Co., 314 NLRB 65 (1995); and
Compuware Corp., 320 NLRB 101 (1995), all following the
broad definition accepted by the Board in Meyers Industries,
281 NLRB 882 (1986).
Accordingly, the testimony will be discussed and the
record evaluated, keeping with the criteria set forth in Wright
Line, 251 NLRB 1083 (1980); see NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), to consider the Re-
spondent’s defense and, in the light thereof, whether the
General Counsel has carried his overall burden.
The Respondent’s principal defense is based on its conten-
tion that Skwara resigned his employment with the Respond-
ent in his phone call to President Schofield on Tuesday, No-
vember 29.
Employee Patricia Cooke credibly testified that on Friday,
November 25, Skwara told her about his meeting with
Schofield and said he expected an answer by Wednesday and
that if the answer was not good or in his favor he would be
leaving but did not say when (Cooke was former Woodhaven
employee who had moved to the Respondent in June, on
Skwara’s recommendation).
It appears likely that Skwara was confused or forgot about
when Schofield would have a response to his proposal and
he precipitously called before the Company had reached a
decision on what course of action to take and that in that call
he may have implicity reiterated his previously announced
plan to resign.
Otherwise, however, a review of the Respondent’s per-
sonal records and its regularly used form entitled ‘‘Notice of
Personnel Change’’ shows an entry of ‘‘voluntary resigna-
tion’’ for one employee yet on the forms for both Skwara
and Sweeney shows ‘‘termination.’’
Here, my review of the overall record lead me to conclude
that the Respondent, acting through both Reusche (who rec-
ommended his departure) and Schofield (who endorsed that
recommendation), made their own precipitous reaction to
Skwara’s phone call, one based not on Skwara’s announced
plan to resign but based on their annoyance with his engage-
ment in concerted activities which cumulated in their appar-
ently independently acquired awareness that he (and
Sweeney) were arranging a meeting with other employees.
Eckert’s testimony that he was concerned over the inordi-
nate amount of time Reusche was spending with Skwara is
testimony that is consistent with Skwara’s testimony that
Reusche told him he was being fired because he required
‘‘too much administrative work.’’ This testimony also sup-
ports the inference that this ‘‘administrative work’’ was deal-
ing with Skwara’s protected concerted activity in voicing
concerns about the Employer’s method of implementing it
for all of the sales representatives.
Schofield (in his affidavit)3 also said:
Since Mr. Skwara had previously indicated that should
I not accept his contract, he would quit in January, I
decided that his negativism did not belong in the Com-
pany and made the decision to accept his resignation ef-
fective immediately. This information was further com-
municated to Mr. Reusche and then to Mr. Skwara
through Mr. Reusche.
Here, I find that ‘‘negativism’’ is a mere euphemism for
Skwara’s protected activity.
When Skwara asked Schofield if he was being fired,
Schofield did not mention anything about a resignation but
lamely offered a pretextual platitude about the development
of his sales territory ‘‘not being a good fit.’’
Reusche also failed to mention his purported resignation to
Skwara and, as noted, his company records were endorsed as
a termination rather than a resignation.
There is no indication that Skwara volunteered or agreed
to resign immediately or at a date earlier than January 1. The
terms of Skwara’s proposed new agreement specifically bear
the dates of January 1, 1995, through January 1, 1997, and
otherwise the preponderance of the evidence shows that the
Respondent (including both President Schofield and Regional
Sales Manager Reusche), shows that they considered
Skwara’s expression of a plan to resign (if they did not reach
a new agreement) to be effective January 1, 1995.
As pointed out by the Court in Transportation Manage-
ment Corp., supra:
[A]n employer cannot simply present a legitimate rea-
son for its action but must persuade by a preponderance
of the evidence that the same action would have taken
place even in the absence of the protected concerted ac-
tivity conduct.
Here, I am not persuaded that the Respondent has met its
burden and I conclude that the Respondent has not shown
that it would have prematurely ‘‘accepted’’ a proposal res-
ignation by a top sales representative were it not for their
motivation triggered by his involvement in several protected
concerted activities. Under these circumstances, I find that
the Respondent has not overcome the strong prima facie
showing by the General Counsel and I conclude that the
General Counsel has met its overall burden of proof. Accord-
ingly, I further conclude that Respondent’s termination of
this employee 32 days prior to the date of his proffered offer
1319BEVACO FOOD SERVICE
4 Under New Horizons, interest is computed at the short-term Fed-
eral rate for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621. Interest accrued before January 1, 1987
(the effective date of the amendment), shall be computed as in Flor-
ida Steel Corp, 231 NLRB 651 (1977).
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
to resign is shown to have been in violation of Section
8(a)(1) of the Act, as alleged. Otherwise, however, I find that
Reusche’s bare comment after Skwara was terminated is in-
sufficient to show a separate violation of the Act and, ac-
cordingly, this allegation is dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By discharging Joseph J. Skwara on November 29,
1994, Respondent engaged in unfair labor practices in viola-
tion of Section 8(a)(1) of the Act.
3. The Respondent is not shown to have otherwise violated
the Act.
THE REMEDY
Having found that the Respondent has engaged in an un-
fair labor practice it is recommended that the Respondent be
ordered to cease and desist therefrom and to take the affirma-
tive action described below which is designed to effectuate
the policies of the Act.
With respect to the necessary affirmative action, it will not
be recommended that the Respondent be ordered to reinstate
the Charging Party because the record indicates that he ten-
dered a resignation to be effective January 1, 1995. However,
because the Respondent illegally terminated him prior to that
date it is recommended that the Respondent be ordered to
make him whole for any loss of earnings he may have suf-
fered because of the discrimination practiced against him by
payment to him of a sum of money equal to that which he
normally would have earned from the date of the discharge
to January 1, 1995, in accordance with the method set forth
in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).4 and that the Respondent remove from its files
any reference to the termination and notify him in writing
that this has been done and that evidence of this unlawful
discipline will not be used as a basis for future personnel ac-
tion regarding his past employment history.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, F.H. Bevevino & Co., Inc., d/b/a Bevaco
Food Service, Boothwyn, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Terminating any employee for engaging in concerted
activities protected by Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Joseph J. Skwara whole for the losses he in-
curred as a result of the discrimination against him in the
manner specified in the remedy section of the decision.
(b) Remove from its files any reference to his termination
on November 29, 1994, and notify him in writing that this
has been done and that evidence of the unlawful termination
will not be used as a basis for future personnel action regard-
ing his employment history.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Boothwyn, Pennsylvania facility copies of
the attached notice marked ‘‘Appendix.’’6 Copies of the no-
tice, on forms provided by the Regional Director for Region
4, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.