Buitoni Foods Corp.

National Labor Relations Board - Board Decisions

Feb 23, 1960

126 N.L.R.B. 767 (N.L.R.B. 1960)

BUITONI FOODS CORP. 767
Buitoni Foods Corp . and Martin Keating
Buitoni Foods Corp . and Margaret Calabrese
Local 102, Bakery and Confectionery Workers International
Union of America and Margaret Calabrese
Local 102, Bakery and Confectionery Workers International
Union of America and Martin Keating. Cases Nos. 22-CA-191,
22-CA-279, 22-CA-278, 22-CB-125, and 22-CB-126. Febru-
ary 23, 1960
DECISION AND ORDER
On August 31, 1959, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Buitoni Foods Corp. had engaged in and was engaging
in certain unfair labor practices and recormending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermediate Report attached hereto. He further
recommended that the complaint against both Respondents Buitoni
and Local 102, Bakery and Confectionery Workers International
Union of America be dismissed insofar as it related to the maintenance
of an illegal contract and to the assistance and support given the
Respondent Union thereby. The General Counsel and Respondent
Buitoni filed exceptions and supporting briefs and Local 102 filed a
memorandum of law.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, briefs, memorandum of law, and the
entire record in these cases, and hereby adopts the Trial Examiner's
findings , conclusions , and recommendations with the following
modifications :
We believe, contrary to the Trial Examiner, that it will effectuate
the policies of the Act to order the Respondents to cease and desist
from entering into, maintaining, or enforcing any contract which
contains a provision giving Local 102's members preferential treat-
ment with regard to holidays or similar matters. Accordingly, we
have included such a provision in the Order and hereby reverse the
Trial Examiner's dismissal of those allegations in the complaint re-
lating to the now revoked 1957 contract. We find that the Respond-
' As the record , exceptions , briefs, and memorandum adequately present the issues and
positions of the parties , the Respondent Buitoni 's request for oral argument is denied.
126 NLRB No. 94.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ents violated the Act by maintaining this contract and believe that
the violation must be properly remedied.
Moreover, as the record fails to reveal whether or not the employee
committee which the Respondent Buitoni illegally assisted is still in
existence, we have specifically provided in the Order for its disestab-
lishment in the event that it 'is.
SUPPLEMENTAL CONCLUSION OF LAW
By maintaining a contract which contained a provision giving Local
102's members preferential treatment with regard to holidays, the
Respondent Buitoni and the Respondent Union engaged in unfair
labor practices within the meaning of Section 8(a) (3), (2), and (1)
of the Act, and Section 8(b) (2) and 8(b) (1) (A), respectively.
ORDER
Upon the entire record in these cases and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Buitoni Foods Corp., officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Threatening its employees with economic reprisals to discour-
age membership in, or activity on behalf of, any labor organization.
(b) Discouraging membership in District 50, United Mine Work-
ers of America, or in any other labor organization, by laying off,
transferring, or discharging employees, or in any other manner dis-
criminating against them with regard to their hire, tenure of employ-
ment, or any other terms or coxidition of employment, except to the
extent permitted by Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
(c) Encouraging membership in Local 102, Bakery and Confec-
tionery Workers International Union of America, or any other labor
organization, by entering into, performing, maintaining, or enforcing
any contract, understanding, or arrangement whereby preference is
given to members of such organizations with regard to holidays, or
other terms or conditions of employment.
(d) Assisting, contributing support to, or interfering with the
formation or administration of, any committee of its employees con-
stituting a labor organization, or any other labor organization.
(e) Requiring any employee to withdraw any charge filed by him
with this Board as a condition of reinstatement, or in any other man-
ner interfering with the right of employees to file and prosecute
charges and to give testimony under the Act.
(f) In any manner interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form,
BUITONI FOODS CORP. 769
join, or assist any labor organiaztion, to bargain collectively through
representatives of their own choosing, and to engage in concerted ac-
tivities for the purposes of collective bargaining, or other mutual aid
and protection, or to refrain from any or all such activities, except
to the extent that such rights may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Disestablish the employee committee formed on or about June
13, 1958, or any successor thereto, as the representative of any of its
employees for the purpose of negotiating with it concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other terms or conditions of employment, if any such committee is
now in existence.
(b) Offer Martin Keating, Margaret Calabrese, Josephine Reyes,
Doris Hirsch, and Hugler MacDonald immediate and full reinstate-
ment to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges.
(c) Make whole the above-named individuals for any loss of pay
they may have suffered by reason of the Respondent Buitoni's dis-
crimination against them, in the manner set forth in the section of
the Intermediate Report entitled "The Remedy."
(d) Upon 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 or useful to an analysis of back pay due under the terms of
this Order.
(e) Post at its plant in South Hackensack, New Jersey, copies of
the notice attached hereto marked "Appendix A."' Copies of said
notice, to be furnished by the Regional Director for the Twenty-
second Region, shall, after being duly signed by a representative of
the Respondent Company, be posted by it immediately upon receipt
thereof and maintained by it for a period of 60 consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or covered by any
other material.
(f) Post at the same places and under the same conditions, as set
forth in (e) above, as soon as forwarded by the Regional Director,
copies of the notice attached hereto marked "Appendix B."
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
554461-60-vol. 126-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of the Order, what steps have
been taken to comply herewith.
B. Local 102, Bakery and Confectionery Workers International
Union of America, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Entering into, performing, maintaining, or enforcing any con-
tract, understanding, or arrangement with Buitoni Foods Corp. where-
by preference is given to Local 102's members with regard to holidays
or other terms or conditions of employment.
(b) In any like or related manner, restraining or coercing em-
ployees in the exercise of rights guaranteed in Section 7 of the Act,
except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of em-
ployment, as authorized by Section 8 (a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its business offices in New York, New York, copies of the
notice attached hereto marked "Appendix B." 9 Copies of said notice,
to be furnished by the Regional Director for the Twenty-second
Region, shall, after being signed by a representative of the Respondent
Union, be posted by it immediately upon receipt thereof and main-
tained by it for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Mail to the Regional Director signed copies of Appendix B for
posting by the Respondent Company at its South Hackensack, New
Jersey, plant, as provided above. Copies of said notice to be furnished
by the Regional Director, shall, after being signed by the Respondent
Union's representative, be forthwith returned to the Regional Director
for disposition by him.
(c) Notify the Regional Director for the Twenty-second Region,
in writing, within 10 days from the date of the Order, what steps have
been taken to comply herewith.
8 See footnote 2, supra.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
BUITONI FOODS CORP. 771
WE WILL NOT threaten our employees with economic reprisals
to discourage membership in, or activity on behalf of, any labor
organization.
WE WILL NOT discourage membership in District 50, United
Mine Workers of America, or in any other labor organization, by
laying off, transferring, or discharging employees, or in any other
manner discriminating against them with regard to their hire,
tenure of employment, or any other term or condition of employ-
ment, except to the extent permitted by Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL NOT encourage membership in Local 102, Bakery and
Confectionery Workers International Union of America, or any
other labor organization, by entering into, performing, main-
taining, or enforcing any contract, understanding or arrange-
ment whereby perference is given to members of such organiza-
tions with regard to holidays, or other terms or conditions of
employment.
WE WILL NOT assist, contribute support to, or interfere with the
formation or administration of any committee of our employees
constituting a labor organization, or any other labor organization.
WE WILL NOT require any employee to withdraw any charge
filed by him with the National Labor Relations Board as a con-
dition of reinstatement, or in any other manner interfere with the
right of employees to file and prosecute charges and to give testi-
mony under the National Labor Relations Act.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes
of collective bargaining, or other mutual aid and protection, or to
refrain from any or all such activities, except to the extent that
such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL disestablish the employee committee formed on or
about June 13, 1958, or any successor thereto, as the representa-
tive of any of our employees for the purpose of negotiating with
us concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other terms or conditions of employ-
ment, if any such committee is now in existence.
WE WILL offer Martin Keating, Margaret Calabrese, Josephine
Reyes, Doris Hirsch, and Hugler MacDonald immediate and full
reinstatement to their former or substantially equivalent posi-
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions without prejudice to their seniority or other rights and
privileges.
WE WILL make whole the above-named individuals for any loss
of pay they may have suffered by reason of our discrimination
against them.
All our employees are free to become, remain, or refrain from be-
coming members of any labor organization, except to the extent that
such right may be affected by an agreement conforming to the ap-
plicable provisions of Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
BUITONI FOODS CORP.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
APPENDIX B
NOTICE TO ALL EMPLOYEES OF BUITONI FOODS CORP. AND TO ALL
MEMBERS OF LOCAL 102, BAKERY AND CONFECTIONERY WORKERS IN-
TERNATIONAL UNION OF AMERICA
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT enter into, perform, maintain, or enforce any
contract, understanding, or arrangement with Buitoni Foods
Corp. whereby preference is given to our members with regard to
holidays, or other terms or conditions of employment.
WE WILL NOT, in any like or related manner, restrain, or coerce
employees in the exercise of rights guaranteed in Section 7 of the
Act, except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
LOCAL 102, BAKERY AND CONFECTIONERY
WORKERS INTERNATIONAL UNION OF
AMERICA,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
BUITONI FOODS CORP.
INTERMEDIATE REPORT
773
STATEMENT OF THE CASE
Charges having been filed and served in each of the above -entitled cases; an order
consolidating said cases, a consolidated complaint and a notice of hearing thereon
having been duly issued and served by the General Counsel of the National Labor
Relations Board; and answers having been filed by the Respondents , a hearing
involving allegations of unfair labor practices in violation of Section 8(a)(1), (2),
(3) and (4) and Section 8(b)1(l) (A ) and (2) of the National Labor Relations Act,
as amended , was held in Hackensack , New Jersey , on April 28, 29, 30, and May 1,
5, and 6, 1959 , before the duly designated Trial Examiner.
General Counsel and each of the Respondents were represented by counsel,
participated in the hearing, and were afforded full opportunity to be heard, to
examine and cross -examine witnesses , to introduce evidence pertinent to the issues,
to argue orally and to file briefs. Briefs have been received from all parties.
Ruling was reserved at the conclusion of the hearing upon a motion to dismiss
the complaint . Said motion is disposed of by the following findings, conclusions,
and recommendations.
Upon the entire record in the case , and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
Buitoni Foods Corp . is a New York corporation , having its principal office, plant,
and place of business in South Hackensack , New Jersey, where it is engaged in the
manufacture , sale, and distribution of packaged food products and related products.
During the year preceding the issuance of the complaint it manufactured , sold, and
distributed products valued at more than $250 ,000 which were shipped in interstate
commerce directly to States of the United States outside the State of New Jersey.
The Respondent Company is engaged in commerce within the meaning of the Act.'
II. THE LABOR ORGANIZATIONS INVOLVED
Local 102, Bakery and Confectionery Workers International Union of America;
District 50, United Mine Workers of America; and Local 165, American Bakery
and Confectionery Workers International Union , AFL-CIO, are labor organizations
admitting to membership employees of the Respondent Company.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
In substance , the major question to be resolved here is whether or not an employer
and a labor organization may without violating the Act enter into an exclusive
representative contract , following a card check which in and of itself is conceded
to be authentic , if during a preceding period other labor organizations demanded
recognition and claimed majority representative status but failed to offer cards for
checking , to seek an election , or to file charges of refusal to bargain.
An outline of background facts relevant to this major issue is as follows:
1. After an unbroken contractual relationship between Local 102 and Buitoni
of nearly 15 years, and after a Board -conducted election , in April 1958 , this local
was decertified as the exclusive representative of the employees.
2. Shortly before the decertification election Local 165 came into the picture,
obtained signatures to authorization cards and shortly after the election , through
a representative , orally claimed majority representation . Local 165 's representa-
tive made a number of unsuccessful efforts to obtain a meeting with management,
but did not file a petition with the Board for an election , did not file a charge of
refusal to bargain , and did not ask management to agree to a third-party card check.
3. Although it appears that Local 165 did represent a majority of the employees
at the time of its demand for recognition , because this organization "gave no
action," as an emloyee leader testified , the employees turned to District 50, which
in the latter part of May and early June obtained authorization cards. By mid-June
i In its answer the Respondent Company admitted the commerce allegations of the
complaint At the hearing the Respondent Union, through its counsel , stated that it did
not contest the Board ' s jurisdiction.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
District 50 had signed a majority and on June 16 wrote to the Employer claiming
majority representation, requesting recognition, and stating:
Should you entertain any bona fide doubt as to our union having been chosen
by the majority of your aforementioned personnel, we propose an immediate
conference for the purpose of resolving that doubt and will submit to any
unbiased canvass of the situation. You know, of course, that we do not present
petitions to the National Labor Relations Board.
4. This letter was received by the Employer on June 17. The same day a District
SO representative called the Employer's counsel and demanded immediate recog-
nition. Counsel informed this representative that he had received word from his
client of the receipt of the written demand and had scheduled an appointment to
discuss the matter with company officials for the next day, June 18. District 50's
representative thereupon declared, according to counsel's undisputed testimony, that
he would wait for no such meeting, and that if recognition were not granted at
once there would be a picket line at the plant the next morning. Counsel then
advised him that he would be unable to arrange a conference earlier than the next
day but could not prevent him from taking any direct action he decided upon.
5. District 50 called a strike at once. About 80 percent of the Employer's more
than 100 employees did not report for work on June 18, 19, and 20. During the
afternoon of Friday, June 20, employees abandoned the stnke.
6. The last communication between District 50 and the Employer was during
the course of the strike, on June 19. The same union representative called the
company counsel and offered to withdraw the picket line if the Employer would
sign the same contract which had previously existed between it and Local 102.
Counsel replied that under the circumstances--including the precipitous action of
District in calling the employees out before he had had an opportunity to consult
with company officials, he would not recommend the signing of such a contract.
7. With cessation of the strike District 50, like Local 165,2 faded from the picture.
At no time did District 50 propose, specifically, a card check.
8. Early in July still another labor organization put in an appearance, claiming
to represent the Company's employees: Local 413, Production, Maintenance and
Allied Workers, International Jewelry Workers Union, AFL-CIO. It appears that
Local 413 filed a petition for an election and certification with the Regional Office,
but within the few days the Employer was notified that this petition was withdrawn.
Shortly thereafter, according to company counsel, the Employer was notified that
Local 413 had filed a charge alleging refusal to bargain, and then had withdrawn it.3
9. On July 10 counsel for Local 102 wrote the Employer, claiming to represent
a majority of the employees and requesting recognition. The same letter added:
This is to further advise you that proof of representation is based upon ap-
plication cards signed since recent National Labor Relations Board's proceedings,
and that the Union requests recognition and a collective bargaining agreement
based upon valid interest of its majority representation.
The following day counsel for the Employer replied by letter, in which he reviewed
at length many of the events above described-especially the demands made by
various labor organizations since the decertification proceedings, and further stated:
My client is disturbed by these numerous claims of representation and de-
mands for recognition, and has instructed me to adopt all proper legal means
to resolve this question speedily and permanently. We are aware that under
the law the National Labor Relations Board will not conduct a representation
election for a period of twelve months from the date of the decertification elec-
2 Company counsel also testified that sometime during the 2- or 3-day strike be was
called by a representative of Local 165, who offered to "eliminate the picket line" if the
Company would sign a contract with his organization Counsel pointed out that it
appeared to him that the employees were then striking for recognition of District 50,
and at the moment he did not "think they knew their own minds."
3 The complaint named this labor organization, along with Local 165 and District 50,
as having been deprived of equal treatment with Local 102, in the matter of extending
the privilege of a card check At the opening of the hearing General Counsel withdrew
from the complaint all reference to it, but raised no objection to testimony given by the
Employer's counsel concerning the abortive claims of Local 413 Such facts as are in the
record, the Trial Examiner believes, are relevant to the major issue raised by the com-
plaint, as well as to the Employer's defense.
BUITONI FOODS CORP. 775
tion. According to my records, such date will not occur until April 1959.
However, I wish to inform you that there is a New Jersey State agency available
which will , upon proper request made and proof of interest demonstrated, and
with the consent of the company , conduct an election for the purpose of deter-
mining representation rights. This agency , the New Jersey State Board of
Mediation with offices at 1100 Raymond Boulevard, Newark, will alternately
designate an impartial observer to investigate proof of union interest, and
certify, upon the basis of a sufficient number of signed authorization cards, that
a union represents a majority of the company 's employees and is therefore en-
titled to be designated as collective bargaining agent.
I therefore take the liberty of informing you that the company's present policy
toward any union legitimatedy claiming representation rights, is to refer such
claim to the New Jersey State Board of Mediation. No claim for representa-
tion by any union , including your client, will be honored except through the
procedures of the New Jersey State Board of Mediation, and any such pro-
cedure adopted by the Board for the purpose of legally and properly determin-
ing the representation question, will be satisfactory to my client.
10. It appears that the New Jersey State Board declined Local 102's request to
conduct either an election or a card check. Counsel for Local 102 then proposed
some "impartial arbitrator or public figure," and both parties eventually agreed to
the selection of the Mayor of South Hackensack, New Jersey. On August 13, the
Mayor conducted the check, and the same day issued a written certification of his
tally. Documents in evidence show that of 109 employees on an eligibility list,
Local 102 possessed authorization cards, all signed since the strike of June 18, 19,
and 20, of 77 employees.
11. Thereafter, in October 1958, the Respondent Company and the Respondent
Union entered into a contract , the agreement containing a union -security provision
and checkoff of union dues.
Stemming from the above-described course of events, which depict a somewhat
unusual series of representation claims, are other matters formed as issues by the
complaint:
1. The alleged discriminatory discharges of five employees at the termination of
the strike-two of whom were active and known leaders in the decertification move-
ment as well as in the organization of both Local 165 and District 50.
2. The alleged illegal assistance of the Respondent Buitoni to a "labor organiza-
tion" in mid-June by instigating and directing the formation of an employees'
"grievance committee" for the purpose of collective bargaining.
3. The alleged illegal refusal to rehire, in December 1958, one of the individuals
fired after the strike, because he declined to withdraw charges he had filed with
the Board.
Also included in the complaint is an allegation that both the Respondents were
in violation of the Act, during the period of the decertification proceedings, by
maintaining a contract which provided that certain benefits were to be accorded
only to members of Local 102.
It appears appropriate to determine first the merits of the chief issue presented by
the complaint.
B. The question of illegal assistance to Local 102 and resulting illegal agreement
The basic events leading up to the card check and agreement have been described
in the section above. The question for resolution is whether or not they are properly
to be construed, as General Counsel urges, as unlawful "disparity of treatment" on
the part of the Employer, and of a nature which taints with illegality the resultant
contract.
It is General Counsel's position that the Midwest Piping & Supply Co., Inc. (63
NLRB 1060) doctrine is not only applicable but governing. The Trial Examiner
is not persuaded that this contention is valid. The Respondent's recognition of Local
102 came-not "during the heat of rival organizing campaigns," as in the cited
case, but at a time when, as General Counsel seems to concede,4 a majority of the
employees had again changed their minds, and by signing new authorization cards
had chosen Local 102 again to be their exclusive representative.
In the opinion of the Trial Examiner "disparate treatment" accurately describes,
as a term, Buitoni's prompt submission to Local 102's demand after turning a deaf
4 General Counsel opens the section in his brief on "Disparate treatment" by stating :
"Employees have the right to change their minds about unions as often as they choose."
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ear to previous demands by Local 165 and District 50. But was this disparate treat-
ment, under the circumstances, illegal? The evidence reveals these simple facts:
1. The Respondent Buitoni effectively , if not illegally ( since no charge was filed
or hearing held) refused to bargain in violation of Section 8(a)(5) when it failed
to meet and negotiate with Local 165, shortly after the decertification of Local 102.
For at that time it is clear that a majority of the employees had signed cards for
Local 165.
2. The same Respondent similarly violated the spirit of the same section of the
Act when-particularly through Buitoni's open refusal-it declined to deal with
District 50. For at this time a majority of the employees had turned from Local
165 and had selected District 50 as their representative. But here again no charge
was filed (indeed, no charge could have been entertained by the Board if filed by
this labor organization , not in compliance).
Thus, at the time the Respondent Buitoni did recognize Local 102, there was
pending before the Board neither charge nor petition. May it logically be urged
that to comply with its obligations under the Act, Buitoni should have given equal
treatment to Local 102 by also refusing to bargain with it, at a time when it clearly
represented a majority? 5
Yet it appears that this is the end now sought by General Counsel: to have the
Trial Examiner recommend and the Board order withdrawal of recognition from
Local 102. To do so, would be to leave the employees precisely where they were
from April to October 1958-without representation by any labor organization-
and would continue, by this Agency's action, a course of nonrecognition which the
Respondent Company had effectively been pursuing since the decertification.
In short, the Trial Examiner is unable to conclude that the Respondent Employer
engaged in that type of "disparate treatment" which, under the law, taints its final
recognition of Local 102 as illegal.
General Counsel also contends that a "question concerning representation " existed
at the time Local 102 was recognized. In the broad sense of the term, clearly such
a question did exist, and it was resolved by a card check which General Counsel
concedes was authentic. That question was whether or not at the time of the card
check Local 102 actually represented a majority. As the term is customarily con-
sidered by the Board, however, it describes a situation which warrants a Board-
ordered election. Such a situation did not and could not exist, under Board policy,
until the end of the decertification year. (Under Service Products Corporation,
92 NLRB 1747, no election may be held within 1 year of decertification.)
The Trial Examiner doubts if the Board would hold that this 1-year policy is to
be interpreted as barring employees from enjoying the services of some exclusive
bargaining agent, if it actually represents a majority of them, during that period.6
To hold this would, in effect, under decertification circumstances relieve employers
of their obligations under Section 8(a)(5) for that length of time.
In summary, for the following reasons the Trial Examiner concludes and finds
that the evidence does not sustain the allegations on this point:
1. General Counsel during the hearing conceded that he does not claim collusion
on the part of the Respondents.
2. He conceded the authenticity of the card check.
3. The claims of majority and demands for recognition were not made "in the
heat of rival organization campaigns ," but separately and in series.
4. To set aside the current contract would, in effect, deprive the employees of the
benefits of representation by the latest bargaining agent of their choice , and leave
them precisely where they were when Buitoni ignored Local 65 and later District 50.
5. The so-called "disparate treatment" clearly did not occur until after Local 102
had obtained new card signatures. There is no evidence that the Employer, until
after a majority was obtained by Local 102 and a demand made, offered to submit
to a card check. Thus it may not reasonably be argued that Local 102's latest
majority was coerced, induced , or even influenced by the Employer.
s Having run two red lights without being caught, to avoid conviction of a traffic
violation should the Respondent have run a tbird9
e Indeed in a case cited by General Counsel ( Shea Chemical Corporation, 121 NLRB
1027 ) the Board appears to have foreseen this sort of a situation, among others. For
it said
We wish to make it clear that the Midwest Piping doctrine does not apply in situa-
tions where , because of contract bar or certification year or inappropriate unit or
any other established reason, the rival claim and petition does not raise a real
representation question
BUITONI FOODS CORP. 777
C. The question relative to the earlier contract
As to the pertinent facts there is no dispute. Article VIII of the contract in effect
between the Respondents until the employees' repudiation of Local 102 in April
1958, contained the following provisions, among others:
HOLIDAYS:
Employees shall be granted time off with pay for eight (8) hours, on the
following named days during the year irrespective as to whether or not
such holidays occur on a working or non-working day, to wit:
[There follows the listing of 11 such holidays]
(a) Employees who had been members of the Union for a period of
six (6) months, may observe with pay, any four (4) holidays which shall
occur thereafter;
(b) Employees who had been members of the Union for a period of
twelve (12) months, may observe with pay, any additional four (4) holi-
days which shall occur thereafter;
(c) Employees who had been members of the Union for a period of
eighteen (18) months, may observe with pay, any additional three (3)
holidays which shall occur thereafter;
(f) The Union hereby agrees to notify the Employer of the fact that
an employee had become a member of the Union, which notice shall be
the basis of paid holiday eligibility, hereinabove provided.
Despite a degree of ambiguity created by the fact that the opening paragraph
above refers to the granting of holiday pay to "employees-unqualified-the follow-
ing subparagraphs clearly limit the schedule of such eligibility to members of
Local 102.
And although the only credible evidence on the point in the record is to the
effect that this provision was not carried out in practice-but on the contrary that
all employees received equal privileges-the contract provision was plainly illegal?
So long as it remained in the contract it continued to be an instrument of illegal
assistance to Local 102 by tending to encourage membership therein.8
Under the circumstances of this case, however, the Trial Examiner does not
believe that it would effectuate the policies of the Act to require the posting of a
"cease and desist" order. No reasonable recommendation occurs to the Trial
Examiner which, by being invoked, would serve either as a requisite remedy for
past conduct or as a prevention of similar conduct in the future. The nature of the
offense was not overt conduct, for the provision was not carried out in practice.
Its existence in a contract was effectively remedied, it seems to the Trial Examiner,
by the forthright action of a majority of the employees in repudiating Local 102 as
their bargaining agent and cancellation of the offending contract. No similarly
illegal clause appears in the current agreement.
It will therefore be recommended that the relevant allegation of the complaint
be dismissed.
D. The discharges
The complaint alleges that the Respondent Employer discharged Martin Keating,
Margaret Calabrese, Josephine Reyes, Doris Hirsch, and Hugler MacDonald on
July 9, 1958, because they joined District 50 and engaged in the strike or other
concerted activities. Except in the case of Hirsch and Reyes, these dismissals, which
are admitted, will be considered separately.
1. Martin Keating
Keating is a maintenance electrician who was employed by Buitoni in 1954. On
June 21, the day after the strike terminated, Keating and all other strikers were
sent the following wire:
Do not report to work until notified. Production reschedule necessary.
a See Rockaway News Supply Company, Inc, 94 NLRB 1056 at 1058.
s This would be so at least during the 30-day period employees had under the union-
security clause to refrain from joining the local, since the provision tended to encourage
an employee to join before being required to in order to obtain higher seniority on the
holiday eligibility list.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 9, Keating received the following wire:
You are hereby notified that your services with this company have been
terminated.
General Counsel contends that Keating was thus summarily fired because of his
leadership in District 50 activities and in the strike. Counsel for the Respondent
Buitom claimed at the hearing: "This witness [Keating] was discharged because of
his inability to handle the Italian equipment."
General Counsel's prima facie case has substantial support in the following un-
disputed or admitted facts:
1. Keating was well known by management to have been an active leader in
obtaining decertification of Local 102, and in organizing both Local 165 and District
50. (Vice President C. A. Cuneo, as a witness, admitted knowledge of Keating's
leadership in the decertification proceedings and in organizing Local 165. Keating's
testimony is uncontradicted that on June 5, during the period when he was obtaining
signatures to District 50 cards during coffee breaks, at lunch hours, and after working
hours, he was warned by Plant Manager Davis that Production Manager Mari was
complaining about the signing of such cards, and that he had better be careful
"because it doesn't take very much for you to lose your job in a thing like this.")
2. Keating actively participated, after this warning, in picketing at the front of
the plant on June 18, 19, and 20.
The Respondent's contention, however, finds small support in the inconsistent
testimony and claims of various witnesses and counsel for the Respondent. For
example:
1. Although at first claiming, as noted above, that Keating was discharged because
of his inability to maintain the Italian equipment, counsel for the Respondent later
added two other reasons: (a) "his [union] activities prevented him from doing
what he should have done, as a result of which we were compelled to hire outside
help," and (b) "he was not a competent maintenance electrician." There is a
notable lack of evidence in the record supporting either of these two apparent after-
thoughts by counsel.
2. There is no evidence or claim of "inability" on the part of Keating until
July 1957, nearly 3 years after his employment. It is obvious that counsel's claim
of general incompetence as a maintenance electrician is without merit.
3. It is clear that at least some 20 percent of the Respondent's equipment was of
Italian make when Keating was hired, and that he maintained it without any major
difficulty thereafter, although he could not read the Italian markings.
4. In July 1957, the Company obtained from Italy a certain piece of equipment
referred to in the record as the "Braibanti." There is no dispute that Keating, his
superiors, and even the engineer from the Italian plant had difficulty, both in
installing this equipment and in getting it in running order. It became necessary
for both management and Keating to visit and inspect similar equipment at another
plant before installation was completed. Since in this matter Keating's supervisors
were no more competent than he, it appears obvious that there can be no merit to
the claim that he was fired in July 1958, for an inability shared with management
in July 1957.
5. The testimony of Assistant Plant Superintendent Casseta makes it clear that
these "operating difficulties" with the new equipment lasted only to about "the
end of the year" (1957)-"practically the end of November." Yet Keating was not
fired until at least 7 months later.
6. Insofar as the testimony of Keating's immediate superior, Angelo Maneri, is
concerned, it appears that he had no part in the decision to discharge Keating.
(Maneri is unable to speak English. As the record indicates, there was difficulty
in obtaining even an interpreter who could understand this witness.) 9 Since Cuneo,
vice president, said that it was not until after the strike that he "found" Keating's
services were no longer needed, the fact that the employee's direct supervisor appar-
ently was not even consulted throws serious doubt upon Cuneo's testimony.
7. The essence of all testimony of management witnesses is to the effect that
whatever difficulties Keating may have had were caused by his inability to read the
foreign language on imported machinery. In May 1958 management hired an
Italian electrician, who had worked at the Italian Braibanti plant. This employee,
at the hearing, was still unable to speak English, and through an interpreter admitted
that he was unable to read the markings or manuals for the American-made machin-
9 The Trail Examiner can place no reliance upon Manerl's later testimony, in response
to a leading question as the record shows, that "I had to let Mr. Keating go because he
was not able to do the work I recommended."
BUITONI FOODS CORP. 779
ery. Cuneo's claim that this individual-Sicari-was hired to take Keating's place
fails to be convincing in the light of this obvious fact: according to Sicari's own
testimony, there is in the plant much more American machinery, as to which he
needs help in translation, than there is Italian machinery which gave Keating trouble
in translation. Furthermore, Sicari does not even hold an electrician's license and
according to his own testimony does not perform much of the work which was
performed by, and required of, Keating,'° who besides being a maintenance electri-
cian of many years' experience is also a licensed stationary engineer.
In short, on the basis of credible evidence in the record, the Trial Examiner is
convinced and finds that there is no merit in any of the multiple claims made by
counsel for the Respondent as to why Keating was fired. The Trial Examiner is
persuaded that Sicari was actually hired in May 1958 for the sole purpose of being
Keating's assistant. Keating's testimony that he had previously asked for an assistant,
in view of the many responsibilities being placed upon him, is corroborated by the
assistant plant superintendent, Casseta.
The reasonable inference to be drawn from circumstances revealed in the record,
including the undisputed fact that the plant superintendent warned Keating that his
activity on behalf of District 50 might bring about his discharge, is the following
conclusion, here made: Sicari was hired to assist Keating, but after Keating's activity
in organizing District 50 and thereafter on the picket line, the Respondent's resent-
ment motivated a decision which Cuneo's own testimony establishes was not made
until after the strike, and he was for such activity "terminated."
This conclusion finds further reasonable and substantial support in the admitted
fact that in December 1958, after Keating had filed charges with the Board and
before the complaint was issued, Personnel Manager Blum went to visit Keating at
his home. There is some dispute as to what Blum said when he got there. Accord-
ing to Keating's testimony, Blum told him he could come back to work if he would
"bury the hatchet" and when Keating asked if by this expression he meant dropping
his charge with the Board the personnel manager said "yes." Keating, however,
would not agree to this when Blum declined to make him whole for backpay. Blum
denied flatly that he offered Keating his job back, but admitted that he said, "we
would consider him for employment if we had an opening in the future." He also
admitted, "I suggested that he ought to drop his charges with the Board." Blum's
claim that he went there only at Cuneo's request for the purpose of explaining to
Keating why he had been terminated-"he was replaced by an Italian electrician"-
denied reasonable belief. As the wire quoted above reveals, no reason is given
therein. No explanation appears in the record for such unusual conduct on the
part of a personnel manager in a plant of this size. Had he wished to give explana-
tion of a past event which was already a matter before the Board, it is reasonable to
believe that it would have been placed in writing and forwarded to Keating. There
then could have arisen no dispute as to what the message was. Under the circum-
stances, and in view of Blum's admissions, noted above, the Trial Examiner is
convinced and finds that Keating's testimony as to this interview is the more
credible, and that Blum did offer him reemployment if he would abandon his
charges before the Board.
In summary, the Trial Examiner concludes and finds that Keating was discrimi-
natorily discharged on July 9, 1958, because of his union activity and was refused
reemployment in December 1958, because be declined to withdraw charges filed with
the Board. Such conduct not only violated Section 8(a) (3) and (4) of the Act, but
also Section 8(a)(1), since it interfered with, restrained, and coerced employees in
the exercise of rights guaranteed by the Act.
2. Margaret Calabrese
Until her receipt of the same succinct dismissal of July 9 as that sent to Keating,
stating without reason that her services were "terminated," Calabrese had been
employed by Buitoni for a period of more than 5 years. For more than 31 years
she had been in a minor supervisory job, as assistant section head of the label
department.
There is no dispute as to the fact that Calabrese and Keating were the two chief
leaders in the decertification proceedings and the subsequent abortive organizational
efforts of both Local 165 and District 50. Calabrese was also elected, on June 13.
as one of the three members of a "grievance committee" set up at the direction of
Personnel Manager Blum, as described more fully in a later section. She engaged in
the strike and was summarily fired. As subsequent findings fully establish there
10 Such as the macaroni packaging machine, or the handling of the plant boilers
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can be no question that management was aware of Calabrese 's continuing activities
on behalf of her fellow employees from the fall of 1957 until the strike and her
discharge.
As in the case of Keating, General Counsel claims that Calabrese was fired at the
conclusion of the strike because of her participation in it and her activities on
behalf of District 50. Early in the hearing, as an adverse witness called by General
Counsel, Vice President Cuneo answered as follows when asked why Calabrese was
discharged:
It was based on, A, seniority, B, ability to get along, that is, if the job was
essential, and C, the individual's performance of that job. Those three things
were considered when it was decided we no longer required her services.
As to her conduct or performance, the only specific point claimed by Cuneo when
a witness the first day was: "We had a number of complaints about mislabelling."
The following findings, based in the main upon Calabrese's credible testimony,
support General Counsel's claim that her union activities were the cause of her
dismissal:
1. Shortly after she signed the decertification petition at the Board office in the
fall of 1957, Calabrese was called into the office of Production Manager Elia Mari,
and warned against "sticking her neck out." When Mari said she was a good
worker and "I don't want to lose you . . because of 102," Calabrese replied that
she was elected "by the people, and . . . I'll fight for the people, whether it means
my job or not.""
2. About April 20, when Calabrese was taking an active part in organizing Local
165, Mari criticized her for "sending cards around to be signed" when the employees
had "just got rid of one union." Mari added that Buitoni "does not want another
union in that shop."
3. On June 12, while Calabrese was helping organize District 50, Farina suggested
that she and one or two others go in to talk to Mari about getting some union to
represent them. Calabrese did so, and asked Mari if there was not something she
could do about getting Buitoni to recognize one union or the other-that the em-
ployees wanted such representation. Mari became angry, and again declared that
Buitoni did not want another union in the shop.
4. The next day, June 13, as described more fully below, Personnel Manager Blum
arranged an election for the employees to set up their own "grievance committee."
After he had assembled the employees, and told them of the election to be held,
Man came to Calabrese and asked her what she thought of the idea, and added,
"It's my idea, this way whoever is picked will do the fighting for the people."
Calabrese replied that she would "go along with whatever the people wanted
to do."
Calabrese and two other employees were elected to this committee during the
afternoon of Friday, June 13. Early Monday morning, June 16, Blum and an
office employee counted the ballots, while Calabrese observed the counting. Blum
had the election results noted on a piece of paper, and gave it to Calabrese, telling
her she could report the results to Mari. She did so. Mari congratulated her, told
her she was a good worker, and "now . . . we could straighten out the difficulties in
the shop."
6. That noon, June 16, Calabrese and the other committee members were called
to Buitoni's office. There the president congratulated the committee members and
said he believed that "we could try to iron out the difficulties in the shop." He told
the committee members they could take grievances to Blum at any time during
working hours. Buitoni said further that he did not want a union in the shop and
that he would close the plant before recognizing District 50. He then asked if any
n The Trial Examiner cannot credit Mari's denial of this incident or of others set out
above, although her denials are, in some instances, somewhat supported by her assistant,
Victor Farina. As the record shows, both Mari and Farina were present at all sessions of
the hearing As a witness Farina admited he did not understand all the testimony and
the transcript reveals his inability to speak English clearly Not only because of the
probabilities inherent in the entire course of events, as to which there is no dispute, and
because of the uncontroverted fact that Plant Manager Davis gave Keating similar warn-
ings, but also because of his observation of Calabrese and Mari during the several days
of hearing, both when witnesses and when facing him in the audience, the Trial Examiner
believes Calabrese the more credible witness. Calabrese testified clearly and straight-
forwardly. As the record shows, Mari was an evasive, discursive witness It became
necessary, also as revealed by the record, for her own counsel to caution her : "bliss
Mari. Miss Mari, please Only answer my question, otherwise do not speak."
BUITONI FOODS CORP. 781
committee member had anything to say. Calabrese spoke up, and declared that she
was "talking for the people, and they want a union in the shop." Buitoni replied that
he would have "no union in the shop." Calabrese informed him that District 50 was
sending a registered letter asking to be recognized to bargain for the people."
Buitoni turned to Vice President Cuneo and said "I won't touch that letter, it will
probably be up to you."
7. About 2 hours after this meeting in Buitoni's office, where Calabrese had
made it clear to top management that despite her election to the company-sponsored
grievance committee she still adhered to District 50, she was called to Mari's office,
where she was reprimanded for a mistake in a production report for the previous
Saturday. Calabrese protested that all was in order when she left at noon that
day, with Farina's permission. (Farina corroborated Calabrese on this point.) No
other action except the reprimand was taken by Mari at that time.
8. At 4:30 the same afternoon, at the close of the shift and with Blum's permis-
sion , employees gathered in the plant cafeteria. Calabrese reported to them what
Buitoni had said at the noon meeting. The employees, apparently incensed at
Buitoni's reported threat to go back to Italy before he would have a union in the
plant, promptly voted to strike.
9. The next day Mari called her to her office, and told her she was to be demoted,
since she had disclaimed responsibility for the Saturday error, and that another em-
ployee would be put in her place. Calabrese accepted this demotion without protest.
(Farina corroborated Calabrese on this point.)
10. That night the District 50 strike committee met at Calabrese's home, and
arrangements were made to begin the strike the next morning. Calabrese partici-
pated in the picketing.
11. While picketing, Farina came by and declared that she would "lose every-
thing because Buitoni will not recognize this union." 12
12. On July 9 Calabrese was summarily discharged, no reason being given her in
the dismissal wire.
The testimony of the Respondent 's witnesses, in regard to Cuneo's claimed reasons
for terminating Calabrese's employment, is noteworthy for its confusion and incon-
sistency , specifically in the following respects:
1. Although the wire of July 9 definitely stated that her services were "termi-
nated," Mari flatly denied that any decision was made to "terminate Mrs. Calabrese,"
when questioned by her own counsel. She stated as definitely that "she's supposed to
come back if I have a job for her," and that it was she who made the decision not
to call her back at the time. She insisted, despite counsel's persistence, that the
"sole" reason for not recalling Mrs. Calabrese was because "there was two people
over her [in] seniority in that line."
2. Although Cuneo gave "union activities"-apparently on company time-as
another reason for the discharge, Mari flatly denied this claim.
3. And although Cuneo gave "mislabeling" as another reason for discharging
Calabrese, Farina, her immediate supervisor, said he could recall no complaints
about her in this respect. Farina also denied that any mention was made about
Calabrese at management conferences after the strike.
4. Despite the fact that as an adverse witness for General Counsel, Cuneo gave
specific reasons for the decision to discharge Calabrese, a week later, as a witness
for the Respondent, he said he could not "honestly recall" whether he was present
when the decision was made to discharge her, and finally that the only reason was
"economy."
The Trial Examiner considers it unnecessary to devote further space here to
point out the inconsistencies in the testimony of the Respondent's witnesses concern-
ing Calabrese. He is convinced, and finds, that there is no merit in any of the
various reasons variously advanced by them.
The Trial Examiner further concludes and finds that Calabrese, like Keating, was
discharged because of her activity on behalf of District 50, and because she engaged
in the strike. Such discriminatory discharge interfered with, restrained, and coerced
employees in the exercise of rights guaranteed by the Act.
Furthermore, it is specifically concluded and found that by Buitoni's threat to the
employee committee to close the plant before he would recognize District 50 the
Respondent interfered with, restrained, and coerced employees in the exercise of
rights guaranteed by the Act.
12 Farina admitted talking to Calabrese on this occasion, and denied only that he told
her Buitoni would not recognize this union. He did not deny telling her she "would
lose everything."
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Doris Hirsch and Josephine Reyes
These two employees were also summarily discharged, by similar wires which
stated no reasons, on July 9. General Counsel contends that they were discharged
because they engaged in concerted activities, on behalf of District 50, while the Re-
spondent claims that they were dismissed because of an "act of violence" on the
picket line.
The question thus comes down to the point of determining whether or not the two
employees did engage in violence of a nature and degree outside the "protected
activity" area and warranting summary dismissal.
As to the act of alleged "violence," the Respondent's claim obviously finds scant
support in the unprompted testimony its own chief witness, the "victim" of the vio-
lence, Vincent Ventura, an employee who had been picketing but who apparently
decided to abandon the strike:
I got the car parked after I got to Buitoni. I go and open the car. I have a
number to park. After I go inside. When I go inside, the lady, I don't remem-
ber the name, they stopped me. And they told me why I want to go inside. I
told her I want to go inside, I don't want to know nothing. I want to go inside
to go to work, and they stopped me the second time and they grabbed me, just
one arm , and they talked to me.
The Trial Examiner can place no reliance upon the testimony of Sergeant Fred
Stevens, of the Fairlawn Detective Agency, or that of Louis Lozzi, manager of that
agency. Stevens claimed he was "right along side of" Ventura, "the entire time" of
the incident. Ventura denied this, testifying that Stevens was not beside him, but
came up later. Lozzi's testimony is self-contradictory. At one point he testified:
Q. Did you see them before they were separated?
A. No, sir.
And later, on cross-examination:
Q. So ,then you did not actually see them holding?
A. Oh, it depends on how you look at it.
TRIAL EXAMINER: You were the one who was looking. What did you see?
A. The WrrNESS: There is one on each side of him. One had him by the
arm and the other one had him on the front here.
TRIAL EXAMINER : Did you see it?
A. Yes.
TRIAL EXAMINER: I thought you said a minute ago you didn't.
A. Could I demonstrate on somebody?
TRIAL EXAMINER: No, just answer the questions.
In a document placed in evidence, which Lozzi said was his report made sometime
later to management and which bears his signature, appears the following:
Doris Hirsch and Jose Reyes were pulling [one on each arm] on Vincent
Ventura to keep him from coming in. They had him near the garage doors.
I broke it up.
According to his testimony, "At the time of this incident, I was in the lobby and
talking to a few people. And the telephone operator drew my attention to the
scuffle out in front of the plant." He said further he looked out through the glass
doors to the front of the plant and:
I saw Fred Stevens, guard, and Doris Hirsch and Josephine Reyes and Ventura.
Fred Stevens had separated them and was making motions that they should
return to their picket line away from the plant.
Even had Hirsch flatly not denied, as a witness, engaging in any violence, the
above-quoted contradictory and confused testimony fails to establish any sub-
stantial grounds for a finding of violence. The Trial Examiner concludes and finds
that no act of violence took place on this occasion.13
>s Additional discredit upon the merit of the Respondent's claim is found in the self-
contradictory testimony of Vice President Cuneo. As a witness called by General Counsel,
Cuneo testified that in March 1959 he offered to reemploy Hirsch if she would "apologize
for her acts. She said she would do it orally but she would not sign any apology and so
that was it " A week later Cuneo flatly denied telling Hirsch that she must apologize In
writing, as a condition of reemployment.
BUITONI FOODS CORP. 783
The Trial Examiner further concludes and finds that both employees were
actually and discriminatorily discharged for engaging in protected activities on
behalf of District 50, and that the Respondent thereby interfered with , restrained,
and coerced employees in the exercise of rights guaranteed by the Act.
4. Hugler MacDonald
This employee , a cripple, also participated in the strike . Cuneo testified that he
was sent the termination wire on July 9 because "he fell under the category of
an act of violence , having committed an act of violence."
Truckdriver Frank Gentile was the only witness to testify about the one incident
upon which the Respondent apparently relies. Accepting Gentile's testimony at its
face value , the event was trivial and inconsequential . It appears that Gentile
stopped his car near a group of pickets , and they asked him why the truckdrivers
would not join in the strike . It is undisputed that Gentile told them they were
crazy to strike. Apparently at this point MacDonald swung lus rain jacket and
some part of it hit him on the left cheek. "I wouldn't say I was hurt," testified the
truckdriver, "but I think the car took most of the blow of the jacket when it grazed
me here. . . . It was more of a surprise to me than anything."
Having observed both the truckdriver and the crippled MacDonald, the Trial
Examiner considers the characterization of his reaction as being only a "surprise"
to be fair and without exaggeration . It is clearly an exaggeration , however, to
term the incident an "act of violence."
As to this trivial event, the Trial Examiner believes that Standard Oil of California,
91 NLRB 783, is governing . There the Board said:
In our opinion , Ottino 's conduct under the circumstances hereinabove set
forth . . . was not of such a serious nature as to pass the limits of protected
activity.
Plainly MacDonald made no physical effort to prevent the truckdriver from
working. The Trial Examiner finds no merit in the Respondent 's contention,
but concludes and finds that MacDonald was discriminatorily discharged because
he engaged in protected activities on behalf of District 50, discouraging membership
therein and interfering with , restraining , and coercing employees in the exercise
of rights guaranteed by the Act.
E. Assistance in formation of Grievance Committee
Brief reference has been made in preceding sections to the Respondent 's forma-
tion of a "grievance committee" on June 13 , 1958 . Credible testimony , much of it
undisputed , establishes and it is here found that on that date the Respondent Buitoni
instigated , sponsored , and assisted in the formation of a committee of three employ-
ees for the purpose, as admitted by Vice President Cuneo, of handling and disposing
of problems arising from wages, hours, and conditions of employment , thereby
coming within the definition of a labor organization.
Although at one point in his testimony Cuneo flatly denied that the Company
had "anything to do with the selection of the committee ," he later admitted that
company officials "decided" which departments should be represented . And although
both Cuneo and Blum said they thought the "idea" for the committee originated
among the employees , Cuneo said he was told about it by Blum and Blum said he
could not recall who, if anyone, did make the suggestion.
It is undisputed that Plant Manager Davis, at noon on June 13 , assembled all
of the maintenance employees and informed them that "Mr. Buitoni wanted the
people to get together and elect a grievance committee of the people. " Credible
testimony establishes that Blum made a similar announcement to other employees
the same noon.
At about 2:30 the same afternoon , under Blum 's supervision , an election of three
committee members was held, and on the following Monday, June 16 , also under
Blum's supervision , the votes were counted.
The foregoing management conduct clearly rendered illegal assistance to a labor
organization , and interfered with, restrained , and coerced employees in the exer-
cise of their right , under the Act, to select their own bargaining representative.14
14 See Pacemaker Corporation, 120 NLRB 987.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain of the activities of the Respondent Buitoni, set forth in section III, above,
occurring in connection with its operations described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent Buitoni has engaged in certain unfair labor
practices, the Trial Examiner will recommend that it cease and desist therefrom
and take action to effectuate the policies of the Act.
It will be recommended that the Respondent Buitoni offer Martin Keating,
Margaret Calabrese, Josephine Reyes, Doris Hirsch, and Hugler MacDonald imme-
diate and full reinstatement to their former or substantially equivalent positions,
without loss of seniority or other rights and privileges, and make them whole for
any loss of pay they may have suffered by payment to each of them a sum of money
he or she would normally have earned from the date of the discrimination to the
date of the Respondent's offer of reinstatement, less his or her net earnings during
said period, and in a manner consistent with Board policy as set out in F. W.
Woolworth Company, 90 NLRB 289 and Crossett Lumber Company, 8 NLRB 440.
It will further be recommended that the Respondent, upon reasonable request, make
available to the Board and its agents all payroll and other records pertinent to the
analysis of the amounts due as backpay.
Since the violations of the Act which the Respondent Buitoni has committed are
related to other unfair labor practices proscribed by the Act, and the danger of
their commission in the future is reasonably to be anticipated from its past conduct,
the preventive purposes of the Act may be thwarted unless the recommendations
are coextensive with the threat. To effectuate the policies of the Act, therefore, it
will be recommended that the Respondent cease and desist from in any manner
infringing upon the rights of employees guaranteed by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 102, Bakery and Confectionery Workers International Union of America;
District 50, United Mine Workers of America; and Local 165, American Bakery
and Confectionery Workers International Union, AFL-CIO, are labor organizations
within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Martin
Keating, Margaret Calabrese, Josephine Reyes, Doris Hirsch, and Hugler
MacDonald, thereby discouraging membership in a labor organization, the Respond-
ent Buitoni has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
3. By requiring that Martin Keating withdraw unfair labor practice charge filed
with the Board as a condition precedent to rehire, the Respondent Buitoni has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a),(4) of the Act.15
4. By dominating, assisting, and interfering with the formation of a grievance
committee, a labor organization of its employees, the Respondent Buitoni has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a) (2) of the Act.
5. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent Buitoni has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. By maintaining the contract expiring in April 1958, and/or by entering into
the contract in October 1958, the Respondents Buitoni and Local 102 have not
violated the Act.
[Recommendations omitted from publication.]
1 Lewis Karlton, d/b/a Consolidated Frame Company, 91 NLRB 1295, at 1299.