Caruso & Ciresi, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1984

269 N.L.R.B. 265 (N.L.R.B. 1984)

CARUSO & CIRESI, INC.
Caruso and Ciresi, Inc. and Patrick Lowe. Case 9-
CA-17670
19 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 14 January 1983 Administrative Law Judge
Hubert E. Lott issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in response to
Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.
The Respondent excepts, inter alia, to the judge's
conclusion that it violated the Act by discharging
Patrick Lowe for attempting to file a grievance,
contending that this issue was not properly before
the judge. Specifically, the Respondent asserts that
this violation was not alleged in the General Coun-
sel's complaint or in the amended complaint, and
therefore it cannot be a proper basis for an unfair
labor practice finding. We disagree, as this issue
was fully litigated at the hearing and the record
fully supports the finding of a violation.
The judge found, and we agree, that Lowe was
discharged for complaining to the Respondent that
he had not been assigned a 40-hour workweek, as
required by the collective-bargaining agreement,
and that he was called in to work for only 1 hour.
In so complaining, Lowe was implementing the
contract's grievance procedure.' The Respondent's
discharge of Lowe for engaging in this protected
activity is a violation of Section 8(a)(1) of the
Act. 2
t Sec. 24.03 of the agreement, which sets forth the grievance proce-
dure, states: "STEP ONE: If there is an employee (or employees) ag-
grieved he shall first attempt to settle the grievance with his foreman (or
supervisor) within three (3) working days after the occurrence thereof."
Lowe acted on instructions from the Union's business representative.
A 4d Art, Inc., 238 NLRB 1124, 1131 (1978), enfd. 645 F.2d 669 (9th
Cir. 1980). Bowman Transportation, 134 NLRB 1419, 1431 (1961), enfd. as
modified 314 F.2d 497 (5th Cir. 1963).
Chairman Dotson would find that this conduct violates Sec. 8(aX3) of
the Act. Hacienda Hotel d Casino, 254 NLRB 56 (1981), enfd. mem. 676
F.2d 709 (9th Cir. 1982); Bowman Transportation, supra. Although there is
no 8(aX3) allegation in the complaint and the General Counsel has not
filed exceptions to the judge's decision, the matter has been fully litigat-
ed, and the facts support the finding of a violation under Sec. 8(aX3). See
Vulcan-Hart Corp., 263 NLRB 477 (1982). The Chairman would not rely
on Interboro Contractors, 157 NLRB 1295 (1966), enfd. 338 F.2d 495 (2d
Cir. 1967), or its rationale to find a violation here. The Chairman would
rely on the fact that such activity is union activity.
269 NLRB No. 43
In light of this conclusion, we find it unnecessary
to pass, and we do not pass, on the judge's further
conclusion that Lowe was discharged for activity
protected under Interboro Contractors, supra, and its
progeny.
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 3.
"3. By discharging Patrick Lowe on August 11
for attempting to file a grievance, Respondent vio-
lated Section 8(a)(1) of the Act."
ORDER.
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Caruso and Ciresi, Inc., Cincinnati, Ohio,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph l(a).
"(a) Discharging employees or discriminating
against them with regard to hire, job tenure, or
terms and conditions of employment, for attempt-
ing to file grievances pursuant to the collective-bar-
gaining agreement with Union."
2. Substitute the following for paragraph 2(a).
"(a) Offer Patrick Lowe immediate and full rein-
statement to his former position or, if that position
no longer exists, to some substantially equivalent
position, and make him whole for any loss of pay
he may have suffered by reason of the discrimina-
tion practiced against him, with interest."
3. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs.
"(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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."
4. Substitute the attached notice for that of the
administrative law judge.
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge employees or discrimi-
nate against them with regard to hire, job tenure,
or terms and conditions of employment, for at-
tempting to file grievances pursuant to the collec-
tive-bargaining agreement with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Patrick Lowe immediate and full
reinstatement to his former position or, if that posi-
tion no longer exists, to some substantially equiva-
lent position, without prejudice to his seniority and
other rights and privileges previously enjoyed, and
make him whole for any loss of earnings he may
have suffered as a result of his discharge, with in-
terest.
WE WILL expunge from our files any reference
to the discharge of Patrick Lowe on 11 August
1981 and notify him in writing that this has been
done and that evidence of this unlawful discharge
will not be used as a basis for future personnel
action against him.
CARUSO & CIRESI, INC.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This
case was tried at Cincinnati, Ohio, on September 17,
1982, on an unfair labor practice charge filed on Novem-
ber 13, 1981,1 by Patrick Lowe, an individual, against
Caruso & Ciresi, Inc. (Respondent), and on a complaint
issued by the General Counsel on December 15. The
issue in this case is whether or not Patrick Lowe was
discharged for unsatisfactory work performance or for
attempting to enforce a provision of the collective-bar-
gaining agreement in violation of Section 8(a)(1) of the
National Labor Relations Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
parties' initial briefs filed by the General Counsel and
Respondent, I make the following
All dates refer to 1981 unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
The Company, an Ohio corporation, is engaged in the
wholesale distribution of produce from its Cincinnati,
Ohio facility. It annually purchases and receives goods
and materials valued in excess of $50,000 directly from
points located outside the State of Ohio. The Company
admits, and I find, that it is an employer engaging in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. The Company further admits that the
Bakery, Crackers, Pie and Yeast Drivers and Chauffeurs,
Local Union No. 114, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called the Union), is a
labor organization within the meaning of Section 2(5) of
the Act, and I so find.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent and the Union have a collective-bargain-
ing agreement containing a grievance procedure which
provides under the first step that the aggrieved employee
attempt to settle the grievance with his supervisor. The
agreement also guarantees truckdrivers, loaders, and un-
loaders 40 hours of work per week. It further provides
that employees called to work shall be paid from the
time that employee reports for work and shall receive a
minimum of 5 consecutive hours or pay therefor.
The Union has no shop stewards in Respondent's facil-
ity. At the time of his discharge Patrick Lowe who,
among other things, did truckdriving and loading work,
was a member of the Union and was covered by the
terms of the collective-bargaining agreement.
B. The General Counsel's Position and Supportive
Evidence
Patrick Lowe testified that he began work for Re-
spondent on January 29 as a salaried mechanic. After 2
weeks Lowe was performing unit work so he asked Dan
Garrett, Respondent's president, if he could join the
Union because unit work paid more than he was earning.
Garrett agreed and Lowe entered his probationary
period which lasted 90 days. Lowe finished his proba-
tionary period around the end of May. At the end of his
probationary period Lowe talked to Steve Caruso, oper-
ations manager, about working a 40-hour week. In July
he again talked to Caruso about becoming a full-time em-
ployee.2 Caruso told Lowe that he would make arrange-
ments for Lowe to complete the union application card
and other forms to accomplish this. The next day Lowe
completed the required forms. Sometime after this, Lowe
noticed that employees having less seniority appeared to
be working more hours because they were at work when
he reported and they were working after he left work.
During this same period which was in July and August,
he spoke to Bill Dempsey, a stipulated employee, about
2 Lowe was a part-time, on-call employee apparently throughout his
term of employment.
266
CARUSO & CIRESI, INC.
his problem. Dempsey told him that under the contract,
he should be guaranteed 40 hours per week, and that he
should speak to Dan Garrett about it.3
On August 11 at 10:30 a.m., Lowe received a call from
Caruso to report to work. He arrived at Respondent's fa-
cility at 11 a.m.; however, Caruso told him not to punch
in because he did not need him just then. Lowe was
upset at this because Respondent normally closes at 1
p.m., and he noticed that employees with less seniority
were working when he arrived. While he was waiting to
punch in, Lowe called Roger Insprucker, the Union's
business representative, and explained his grievance to
him. Insprucker advised Lowe to take his grievance to
Caruso in an effort to resolve it and to report the out-
come to him. Lowe was allowed to punch in at 12 noon.
At that time he talked to Caruso alone at icebox 4 where
he told him that he did not think it was fair to call him
in at 11 a.m. and not let him punch in until 12 noon. He
further told Caruso that he thought it was unfair to
allow employees with less seniority to work more hours
than he was working. Caruso responded by saying,
"Well, you don't think it's fair?" When Lowe said no,
Caruso said, "Hit the fucking time clock and get your ass
off the premises." Lowe further testified that nothing
was said during this conversation about his work per-
formance and that he punched out about 12:05 p.m. and
called Insprucker and told him that, when he talked to
Caruso about his problem, Caruso got mad and fired
him.4
On August 12, Lowe filed a written grievance which
repeats Lowe's version of what transpired between him-
self and Caruso on August 11. This grievance was subse-
quently withdrawn by Insprucker who advised Lowe to
file a charge with the National Labor Relations Board.
Approximately I week later a grievance meeting was
held between Insprucker, Lowe, Caruso, and Garrett.
Insprucker and Lowe testified that, when Insprucker
asked Garrett why Lowe was discharged, Garrett
handed Insprucker a written reprimand dated June 19
(G.C. Exh. 3) and Lowe's attendance record. Lowe ex-
plained that, when he received the written reprimand, he
told Caruso that some of the complaints on the repri-
mand were not his fault and Caruso agreed and told him
not to worry about it. Lowe also explained that, because
he was never given his regular hours but was always on
call, he was sometimes late in reporting to work after re-
ceiving a telephone call. Garrett also stated that Lowe
had an attitude change. When Insprucker asked what
had happened on August 11 that caused Lowe's dis-
charge, Garrett and Caruso stated that business was slow
and they were trying to keep 27 employees working and
did not need Lowe complaining about his hours, that his
action on August 11 was the last straw, and that other
employees were complaining about him. Lowe testified
on rebuttal that nothing was mentioned in this meeting
about him refusing to bag potatoes on August 11. He fur-
' Dempsey corroborates Lowe's testimony. He further testified that
they had several conversations about Lowe's problems during the
summer and that Dempsey brought Lowe's problem to the attention of
Caruso during this same time period.
4Roger Insprucker corroborated the testimony of Lowe concerning
both telephone conversations.
ther admitted that when he registered his complaints
concerning hours worked during all times material
herein, he was acting strictly for himself and in his own
behalf.
The General Counsel argues in brief that Lowe was
discharged for attempting to enforce the terms of the
collective-bargaining agreement citing Interboro Contrac-
tors, 157 NLRB 1295 (1966). She argues that Lowe was
attempting to enforce the 40-hour guarantee established
for full-time employees, which necessarily would be a
concern of all employees. The General Counsel also
stresses the point that an employee need not refer to the
applicable contract provision or have the correct inter-
pretation of any provision of the agreement but only
have an honest belief that his interpretation is correct. It
is the General Counsel's contention that Lowe honestly
believed that he should receive the 40-hour guarantee
provided by the contract after he completed his proba-
tionary period and that he was discharged in violation of
Section 8(aXl) of the Act for attempting to secure this
contractual right.
The General Counsel further argues that Lowe was
pursuing the first step of the grievance procedure when
he addressed Caruso about his hours and the Act pro-
tects an employee engaged in such activity. The General
Counsel disputes Respondent's reasons for discharging
Lowe claiming that they are pretextual. In support of
this argument she claims that Caruso's testimony should
not be credited over that of her witnesses. Also in sup-
port of this argument she points to the evidence offered
by her that several employees who received more warn-
ings than Lowe are still employed by Respondent.
C. Respondent's Position and Supportive Evidence
Steve Caruso testified initially that Lowe was dis-
charged for unsatisfactory work performance and that he
could not recall whether he told Lowe the reasons for
his discharge. Later, he testified that he did give Lowe
the reasons for being discharged. He further testified that
Lowe never complained to him about his hours and that
he first became aware of Lowe's dissatisfaction at his
grievance meeting.
Caruso testified that, on August 11II, he asked Lowe to
bag some potatoes in refrigerator box 4. When Lowe
asked why he had to do that kind of work, Caruso dis-
charged him.6 Caruso stated that this incident combined
with his poor work record were the reasons for Lowe's
discharge. According to Caruso, Lowe had a poor work
record. His personnel file contained a truck damage
report dated May 14 which reported some minor damage
to one of Respondent's trucks. There was also a fuel
ticket signed by Lowe dated May 29 that had no truck
number on it. His file also contained an incorrect receiv-
ing report signed by Lowe and dated June 8 and a trip
report dated June 12 that did not indicate time of return.
His file also contained a written warning report dated
June 19 wherein Lowe was reprimanded for: not inspect-
ing the quality of peaches, loading a truck with wrong
produce, delivering seven items to the wrong customer,
6 Lowe placed this incident some 2 to 3 weeks prior to his discharge.
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and leaving merchandise and equipment on a truck.
Lowe had another warning report in his file dated
August 6 for failing to return both copies of a sales ticket
to Respondent. 6
Caruso admitted that other employees such as Robert
Craddock, Bill Dempsey, John Jefferson, and Toby
Stollers had received more warning reports than Lowe
and were still employed by Respondent. Caruso testified
at one point that he did not tell Insprucker at the griev-
ance meeting that the contents, i.e., Lowe was dis-
charged for complaining about his hours, of Lowe's
grievance were untrue. Later, he testified that he did
state that it was untrue although he could not remember
what he said or anything else that was stated at the
grievance meeting.
Respondent offered evidence that Lowe was at all
times material a part-time employee, working an average
of 36.36 hours per week.
Respondent's counsel argues in brief that the activities
of Lowe in this case are similar to those of Chandler in
Comet Fast Freight, 262 NLRB 430 (1982). He further
argues that Lowe was a part-time employee not covered
by the scheduling provisions of the contract and, since
he admitted acting alone, he should be denied protection
under the Act. He also argues that the General Counsel
did not satisfy its Wright Line burden of proving that
Lowe would not have been discharged but for his pro-
tected concerted activities and that Respondent satisfied
its burden of demonstrating that Lowe would have been
discharged even in the absence of his protected activity.
D. Analysis and Conclusions
In deciding the credibility issues in this case I have
credited corroborated testimony of the General Coun-
sel's witnesses over the uncorroborated evasive and con-
tradictory testimony of Caruso.
The evidence is clear that Lowe from the very begin-
ning of his employment wanted to become a full-time
employee, covered by the collective-bargaining agree-
ment. He took, with the aid of management, all the nec-
essary steps to accomplish this goal. After fulfilling all
the requirements for full-time employment, there is
ample evidence that he believed he was entitled to a 40-
hour week guarantee. There is also evidence that, al-
though he was unaware of the contract provision, he felt
he was being treated unfairly with respect to reporting
to work and not being allowed to begin work. With facts
established as background, there is little doubt that, on
August 11, Lowe complained about these things to
Caruso after checking with his business representative.
Aside from Caruso's lack of credibility over the events
of that day, it is also important to note that the potato
bagging incident was never mentioned as the reason for
Lowe's discharge at any time other than at the trial. It
was never mentioned in Respondent's position statement
to the Board during investigation nor was it mentioned
to Lowe at the time of his discharge or at the grievance
6 The evidence indicates that, with the exception of the June 19 warn-
ing report, none of the other documents were ever shown to Lowe. His
attendance record was never discussed with him and he was never told
that his job was in jeopardy if he did not improve.
meeting. To the contrary, I find that at the grievance
meeting all parties present agreed that Lowe was dis-
charged for complaining about his hours of work and the
reporting procedure.
After having made these findings, I conclude that
Lowe was discharged for legitimately attempting to en-
force the terms of the collective-bargaining agreement
and for attempting to file a grievance in accordance with
the contract. The first right is protected under Interboro
Contractors, supra, and Adams Delivery Service, 237
NLRB 1411 (1978). The latter right has been protected
under longstanding Board law.
Having found that Respondent's reasons for discharg-
ing Lowe were pretextual, I find that the General Coun-
sel has satisfied its Wright Line burden and Respondent
has not.
Accordingly, I find that Patrick Lowe was discharged
for engaging in protected concerted activity in violation
of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Patrick Lowe on August 11, for en-
gaging in protected concerted activities, Respondent has
violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Except as found above, Respondent has not engaged
in other unfair labor practices.
THE REMEDY
Having found that the Company has engaged in and is
engaging in unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and take
the affirmative action necessary to effectuate the pur-
poses of the Act. Said backpay is to be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), and Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB 716
(1962).
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended 7
ORDER
The Respondent, Caruso & Ciresi, Inc., Cincinnati,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees or discriminating in any
like or related manner with regard to their hire, job
tenure, or the terms and conditions of their employment,
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
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 pur-
poses.
268
CARUSO & CIRESI, INC.
because of their determination to press complaints or
grievances based on provisions in their union collective-
bargaining contract or because of their participation in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
(b) Interfering with, restraining, or coercing its em-
ployees in any like or related manner, with respect to
their exercise of rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer Patrick Lowe immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position and make
him whole for any loss of pay he may have suffered by
reason of the discrimination against him.
(b) Expunge from its files any reference to the dis-
charge of Patrick Lowe on August 11, and notify him in
writing that this has been done and that evidence of this
unlawful discharge will not be used as a basis for future
personnel action against him,
(c) Post at its Cincinnati, Ohio facility copies of the at-
tached notice marked "Appendix." s Copies of said notice
on forms provided by the Regional Director for Region
9, after being signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
upon receipt and maintained by the Respondent for 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
' 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 Na-
tional Labor Relations Board" shall read "Posted Pursuani to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
269
-