Cory Coffee Services

National Labor Relations Board - Board Decisions

May 29, 1979

242 N.L.R.B. 601 (N.L.R.B. 1979)

CORY COFFEE SERVICES
Cory Coffee Services, Division of Cory Food Services,
Inc. and Retail Delivery Drivers, Driver Salesmen,
Produce Workers & Helpers, Local No. 588, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America. Case 32-
CA-667
May 29, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On January 12, 1979, Administrative Law Judge
Harold A. Kennedy issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
' The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
In addition, we hereby correct the following inadvertent errors of the Ad-
ministrative Law Judge which are insufficient to affect the results of our
Decision. In the section of his Decision entitled "Rocco Costanza was a
supervisor," ninth paragraph, eighth and ninth lines, the Administrative Law
Judge inadvertently states that "Odom 'was late almost every day,'" when
obviously it was Costanza who was late. Then, in the last paragraph, third
line of this section, the Administrative Law Judge erroneously designates a
footnote number as "13," whereas the correct reference should be "14." All
subsequent footnotes should be renumbered accordingly. Thereafter, in th,
last line of the section referred to above, the Administrative Law Judge
inadvertently finds that employee Rocco Costanza "was questionably a su-
pervisor under the Act," when he obviously intended to use the word "un-
questionably." Finally, in the section of his Decision entitled "Findings on
the charges," third paragraph, second sentence, the Administrative Law
Judge states that employee Philip Heinemann testified that General Man-
ager Mark Wilton "asked if he would 'sign to help out' as 'they were running
in trouble.'" It is clear from an examination of the record, however, that
representatives of the Union, and not Wilton, asked Heinemann to sign the
authorization card.
2 In adopting the Administrative Law Judge's finding that Respondent did
not unlawfully discharge Rocco Costanza as he was a supervisor within the
meaning of the Act, we find it unnecessary to rely on those cases cited by the
Administrative Law Judge in fn. 13 of his Decision.
ders that the Respondent, Cory Coffee Services,
Division of Cory Food Services, Inc., Hayward, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
DECISION
HAROLD A. KENNEDY, Administrative Law Judge: This
proceeding was initiated by a charge filed by the Retail
Delivery Drivers, Driver Salesmen, Produce Workers &
Helpers, Local No. 588, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of Amer-
ica (Union), on January 24, 1978, and involves alleged vio-
lations of Section 8(a)(1) and (3) of the National Labor
Relations Act by Cory Coffee Services, Division of Cory
Food Services, Inc. The complaint was issued on March 21,
1978, and the case was heard at Oakland, California, on
June 5, August 10 and 11, 1978.' The General Counsel al-
leges that Respondent violated the Act as follows:
1. Respondent's Branch Manager Mark Wilton interro-
gated an employee at Respondent's Hayward, California,
facility concerning union activities on or about January 12,
1978. (Par. Vl(a)).
2. Wilton threatened an employee with termination of
employment because of his union membership or activities
in January, 1978. (Par. VI(b)).
3. A supervisor and agent of Respondent, Genny Odom,
in late December, 1977, interrogated an employee at its
Hayward facility concerning his union activities. (Par.
Vl(c)).
4. Wilton, in late December, 1977, at Respondent's Hay-
ward facility, interrogated employees concerning union ac-
tivities. (Par. Vl(d)).
5. Wilton, on or about December 18, 1977, gave an em-
ployee the impression that his and other employees' union
activities were under surveillance. (Par. Vl(e)).
6. Wilton, on or about January 13, 1978, interrogated
employees at Respondent's Hayward facility concerning
union activities. (Par. VI(f)).
7. Respondent discharged employee Rocco Frank Co-
stanza on or about January 23, 1978, because of his mem-
bership in the Union or other protected concerted activities
and has since that time failed and refused to reinstate him
for the same reason. (Pars. VII and VIII).'
A number of matters are not in dispute, including the
following:
I. At all times material, Respondent has been an em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of the Act. Respondent is a
California corporation engaged in the servicing and sale of
brewing equipment. It has a facility located in Hayward,
California. During the 12 months preceding the issuance of
a complaint, it purchased and received goods and materials
valued in excess of $50,000 from out-of-state.
2. The Charging Party is a labor organization as the term
is used in the Act.
I Certain errors in ihe transcript are hereby noted and corrected.
2 The charges referred to in pars. 3, 4, 5, and 6 were added at the first day
of the heanng. The General Counsel's attorney at that time asserted that the
alleged violations referred to in pars. 1, 2, and 7 above occurred in January
1978 rather than in December, 1977.
242 NLRB No. 88
601
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent's Hayward facility serves customers in the
San Francisco Bay area. The facility's complement has in-
cluded a branch manager, an office manager, a service man-
ager, order desk and service desk clerks, a head warehouse-
men, two benchmen, who repair the equipment at
Respondent's facility, and two field service employees, who
visit and repair equipment at various locations.3 Service
calls are grouped each day into two groups according to
their geographical location; one service man is assigned to
do "all the work for the East Bay," and "all the work in San
Francisco and the Peninsula Area" is assigned "to the other
service man."
4. Mark A. Wilton was branch manager of Respondent's
Hayward facility from January 24, 1977, until approxi-
mately June 1, 1978. Wilton was a supervisor and an agent
of Respondent during such period. Virginia Lee Odom,
sometimes referred to as "Genny," has been a supervisor
and an agent since she was employed on August 23, 1977,
as the office manager of Respondent's Hayward facility.
Odom has supervised office personnel and "the running of
the office." She has authority to hire and fire employees.
5. Rocco Frank Costanza was employed by Respondent
as an "equipment serviceman" at Respondent's Hayward
facility on March 7, 1977, promoted to service manager of
that facility on May 22, 1977, and discharged on January
23, 1978. Wilton hired Costanza, recommended his promo-
tion to service manager, and recommended his discharge, as
branch manager Wilton did not have authority on his own
to either promote Costanza to service manager status or to
terminate him as the service manager.
6. Costanza was paid on an hourly basis as a serviceman
and frequently earned overtime pay. At the time of his pro-
motion to service manager he was being paid at the rate of
$6.30 per hour.4 On becoming service manager he was paid
a salary of $288.46 per week and received no overtime pay,
although he worked longer hours than before.
7. As a serviceman Costanza did bench repair of coffee
equipment, made deliveries and service calls in the field,
and helped out in the warehouse. On becoming service
manager, Costanza was placed in charge of the warehouse,
delivery, and service operations. In that capacity he routed
servicemen, working in collaboration with a service desk
clerk. He would check over the list of calls to be made on a
given day and undertake to have the required equipment
ready to go-either by obtaining it from the warehouse or
by having other equipment repaired.5 Shortly after being
promoted Costanza was made responsible for the parts de-
partment. In this connection he was called upon to take a
monthly inventory (usually with the help of another em-
ployee) in the form of a "closed package," which included
the amount of Cory coffee and "allied products" on hand.
'Branch Manager Wilton testified that in December, 1977, there were
only five employees eligible to sign union authorization cards in the bargain-
ing unit of service and warehouse employees. Resp. Exh. I lists the names,
positions, and pay scale of 16 of the persons employed at Hayward as of
January 23, 1978.
4 Costanza testified that at first he was paid on a "piece basis," being paid
"so much for a piece of equipment" installed. The G.C. Br. asserts that
"sljervicemen were independent contractors prior to April 7, 1977."
Costanza testified that after being promoted he continued to spend most
of his time (85 to 90 percent he claimed) in performing "field service and
bench repairs of equipment."
Parts on hand were also taken into account in taking inven-
tory. The inventory involved making a physical count and
entries on cards. The inventory was designed to show how
much material and parts were used each month. The inven-
tory would also indicate what additional items should be
ordered for future use. Costanza would prepare a "parts
list" and submit it to the branch manager for approval.
Costanza interviewed one applicant. Michael DeMore. who
was subsequently hired. He discussed possible employment
of others with the branch manager and office manager. As
service manager Costanza was also responsible for training
servicemen.
8. On December 13. 1977, the Charging Party Union
filed a petition with the Board seeking representation of
Respondent's service and warehouse employees. An elec-
tion was held on January 20, 1978. and the Union was
thereafter certified as the bargaining representative. Re-
spondent and the Union thereafter negotiated a collective-
bargaining agreement, which was signed by the parties on
April 24, 1978 (Resp. Exh. II).
9. The Charging Party began its campaign to organize
Respondent's service and warehouse employees in Decem-
ber, 1977. A union meeting was held on December 12, the
day before the petition was filed, and Respondent first
learned of union activity on or about December 15 when
Union Official Edward Walling contacted Branch Manager
Wilton. 6
Rocco Costanza was a supenrvisor. The General Counsel
contends that Costanza was a nonsupervisory employee of
Respondent, and that he was terminated unlawfully be-
cause of his union activities. Respondent, on the other
hand, maintains that the discharge of Costanza was not
unlawful because (I) he was a "supervisor" and (2) his dis-
charge was for "consistent incompetence and insubordina-
tion." Having considered the whole record, I am con-
strained to find that Costanza was a supervisor and outside
of the protection of the Act.
Costanza's employment contract (Resp. Exh. 3) indicates
he became a supervisor in May 1977, thereafter being paid
a weekly salary. His job description (Resp. Exh. 10(b))
shows that he possessed the responsibility of a supervisor.
He was placed in charge of the service department with
authority to assign work, instruct, and oversee personnel.
He had authority to effectively recommend the hiring of
employees and other personnel actions. Shortly after being
made service manager he was also made responsible for the
parts department. Costanza not only had the authority of a
supervisor conferred upon him, he actually performed the
duties of a supervisor-although he often failed to perform
them in a satisfactory manner. In carrying out his duties he
was not merely concerned with routine or clerical matters
but was called upon to use "independent judgment."'
I This paragraph is based on the undisputed testimony of Walling, Wilton,
and Odom.
7 t is to be noted that in defining "supervisor" the Act indicates that
various supervisory powers are to be read in the disjunctive. Sec. 2(11) reads:
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.
602
CORY COFFEE SERVICES
A desk clerk would take service calls and process the
necessary paper work for servicing of equipment. The clerk
would assist in routing the servicemen, but Costanza was
responsible for making the "final decision" on when the
equipment would be repaired and by whom. He had re-
sponsibility for having the necessary parts and equipment
available so the repairs could be made. In doing so he su-
pervised warehouse personnel and order clerks as well as
servicemen and repairmen. s
Costanza was responsible for taking inventories and or-
dering parts, although he did not perform these functions
adequately. He was responsible for training servicemen-a
function which he evidently did perform in a satisfactory
manner.9
Costanza participated in the hiring of new employees,
although he sought to minimize the part he played in this
regard. He was the only one to interview DeMore before he
was hired. He was also consulted on the hiring of two ser-
vice clerks, Mary Lou Schmalenbach and Cheryl Gangloff.
Constanza was called upon to evaluate employees. He de-
nied actually making a performance review of Jean Mac-
Pherson's work, but the record satisfies me that he did so.
Mrs. MacPherson testified that her second evaluation was
performed by Constanza, and he signed the review form
indicating her performance had been "excellent."' 0
Costanza attended and participated in management
meetings. He met with Office Manager Odom or Branch
Manager Wilton or both on a number of occasions after the
Union's petition was filed and discussed its effect. Curiously
he offered suggestions on how the branch could continue its
operations in the face of a strike. Odom testified credibly
that Costanza came up with a "plan" whereby Costanza
would take parts and brewers to San Jose and carry on the
Cory service operation either from his home or the premises
of his father's business.
Costanza attended at least two meetings with Cory offi-
cials above the branch manager's level. He testified that he
met with Regional Manager Joe Schultz and Wilton on one
occasion and with District Representative Dave Lavendier
and Wilton on another. Costanza said he was asked to be
present at the meeting with Lavendier at which he voiced
"several complaints about Mr. Wilton" (at a time when
Wilton "stepped out").
Costanza had an office of his own and a set of keys to the
Hayward facility." He was responsible for parts inventory
control. He scheduled his own work and was responsible for
8 Jean MacPherson, who worked under Costanza as an order clerk, testi-
fled that she consulted Costanza whenever an emergency arose. Bench Re-
pairmen Michael DeMore and John Offield and Serviceman Philip Heine-
mann testified that they worked under the supervision of Costanza. It is also
apparent that Costanza supervised Head Warehouseman Joseph Simon as
well, although Simon, like Costanza, tried to minimize Costanza's supervi-
sory authonty. It is also clear from the record that Robert Hutchison worked
under the supervision of Costanza. Hutchison was subpoenaed as a witness
but failed to be present when called to testify by Respondent.
' Bench Repairman Offield, a defense witness, testified that Costanza "did
a pretty good job of training."
0 Costanza began evaluations of Phil Heinemann and Dean Compton.
According to Costanza, Wilton told him not to finish with the evaluations.
Wilton testified credibly, however, that Costanza simply never got around to
finishing review of Compton's work.
1t Costanza ndicated that he did not have a key to the front door of the
warehouse and was missing possibly one or two other keys
scheduling the work of the servicemen. In short, he had the
authority of a supervisor and functioned as one. 2 Since Co-
stanza was a supervisor, his termination did not violate the
Act.'3
I need not reach the issue whether Costanza's discharge
would have been unlawful had he not been a supervisor.
The record does indicate that Branch Manager Wilton con-
sidered Constanza's performance as a service manager in-
adequate and, beginning around November 1, 1977, had
sought permission from higher authority to terminate him.
Jean MacPherson, who quit her job as desk clerk in mid-
November, 1977, testified that Costanza failed to provide
her with the necessary "decision making" assistance. Office
Manager Odom, who began documenting Costanza's activi-
ties on November I, stated that Odom "was late almost
every day," sometimes because "he made service calls on
the way in," sometimes "because he overslept," and "some-
times it was because he was taking his wife to college." She
said his parts inventory had been "totally wrong," and "the
service department was a total wreck, a mess."
Costanza failed to keep promised deadlines on repairs,
and there were complaints from customers (including Sears,
California Actors Theatre, and Mt. Diablo) concerning ser-
vice furnished under Costanza's supervision. There were
two clear instances of insubordination on Costanza's part.
The first occurred in mid-November, 1977, when Costanza
was asked by Branch Manager Wilton to repair a brewer.
Costanza refused to do so. With the office staff watching
Costanza "blew up," threw papers at Wilton and "went
storming out of the office." The other occasion was in mid-
December, 1977, when Costanza disregarded Wilton's spe-
cific instruction not to take another serviceman, Robert
Hutchison (the subpoenaed former Cory employee who
failed to appear when called by Respondent), with him on a
four-hour service call to Mt. Diablo to repair equipment
there. It is apparent from the record that Costanza did take
Hutchison with him and thereafter misrepresented the fact
that he did, falsely claiming that Hutchison had gone to see
an attorney.
12 Branch Manager Wilton became aware of Costanza's inadequate per-
formance as a supervisor in late summer or fall of 1977. Wilton took inven-
tory himself in late October with the help of Office Manager Odom and
discovered that Costarza had failed to properly charge off the use of Sl10000
in parts during the prior 3-month period, an error which nearly caused Wil-
ton to lose his job. On or about November 1, Wilton advised Costanza he
had 30 days to "straighten up" as service manager. On that day. according to
Costanza, Wilton told him that "all he wanted me to do was assist in routing,
train, bench and field repair, and handle the parts; that was it." Thereafter
his activities were monitored closely. His comings and goings were noted by
Office Manager Odom, but he continued to perform as a supervisor until
January 23, 1978, when Wilton received "verbal" authority to terminate
him. As Wilton testified, Costanza was a manager "in the eyes of Cory" and
in his own eyes. It is also clear that he was so regarded in the eyes of other
Cory employees at Hayward. Serviceman Phil Heinemann, a witness for the
General Counsel, testified that when asked about the Union just before the
election, "I had the impression then he was part of management." Heine-
mann said his routes were so "spread out" he was running up "unbelievable"
mileage and then spoke to management about it--Costanza. Wilton and
Odom. Eventually, with the personal intervention of Wilton and help of
Costanza and Odom he said a "decent route" was worked out.
m3 It is of course possible for an employer to violate the Act by discharging
a supervisor for failing to commit an unfair labor practice, such as by failing
to thwart union activities. See, for example, Buddies Super Markers. 223
NLRB 950 (1976); also Belcher Towing Company, 238 NLRB 446 (1978). But
Costanza was not discharged for this reason.
603
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is apparent from the testimony of Simon, Heinemann,
and Costanza that in January, 1978 Wilton suspected Co-
stanza was involved in union activities and was very con-
cerned about that fact." The timing of Costanza's dis-
charge-coming only shortly after Wilton had spoken to
Costanza about his union activities but being sometime af-
ter Wilton had become aware of Costanza's deficiencies as a
supervisor-does point toward an improper motivation.
Wilton testified, however, that he was not authorized to fire
Costanza until January 23. But, in any event, I need not
determine what the motivation was in the discharge of Co-
stanza as he was questionably a supervisor under the Act.
Findings on the charges. Paragraphs VII and VIII of the
complaint, which allege the unlawful discharge, will be dis-
missed as Costanza, the alleged discriminatee, was a super-
visor of Respondent. Likewise, Paragraph VI(a) and (b) will
be dismissed since the alleged interrogations and threats
attributed to Wilton involved only Costanza. Further, Para-
graph Vl(e), which alleged that Wilton gave the impression
that employees' union activities were under surveillance,
will be dismissed as it was not supported by probative evi-
dence. The General Counsel relies on Employee Simon's
testimony, which was not at all impressive (see footnote
15), especially the testimony cited and relied on by the Gen-
eral Counsel: "If I recall correctly he asked, or he told me
he had a list of names of who signed a card" (emphasis
supplied). Such equivocal testimony does not support the
allegation.
Paragraphs Vl(d) and (f) were sustained by the testi-
mony of Philip Heinemann and, to a limited extent, by the
evidence given by Joe Simon. Simon claimed to have talked
with Branch Manager Wilton about the Union "numerous
times," but he gave little detail about such conversations.
He said Wilton inquired of him around December 10 fol-
lowing the 1977 Christmas party if he had heard "any rum-
blings about union organizing." Shortly thereafter Simon
stated that Wilton asked "if I had signed, or if a union
representative had been around."'"
Philip Heinemann testified that in December, 1977, he
was asked by Branch Manager Wilton who was behind the
Union and why he had signed a union card. He said Wilton
asked if he would "sign to help out" as "[tJhey were running
in trouble." Heinemann said the meeting had lasted 40 min-
utes and had made him feel "uncomfortable." Ten or so
days later Heinemann was called into Wilton's office and
was again asked if he had heard who was behind the Union.
14 Heinemann, the General Counsel's most impressive witness, testified
that Wilton had stated to him in early January, "I think Rocco is behind it."
Odom testified that she had recorded the fact that Cory's employee Jerry
Fitzsimmons had reported to Wilton that Costanza had introduced him to a
union representative, but she did not remember when that had occurred. Her
notes (Resp. Exh. 12) indicated that "Jerry told this to Mark on -I 1-78."
'5 Wilton testified that he talked to Costanza about the Union at Terrel
Restaurant on January 12, 1978: "1 had discussed the union with him in
detail prior and I asked him his knowledge of it; I asked if he could be of
some assistance; that if he was involved, that it should be noted he was my
manager..." Wilton said he was advised verbally-not in writing-that he
could fire Costanza. He said his requests for permission to terminate Costan-
za were also made in "verbal" form.
16 Simon's testimony alone would hardly have supported any of the
charges. He appeared to be a biased witness eager to minimize Costanza's
supervisory authority. He acknowledged discussing with others the subject of
how to respond to questions concerning Costanza's supervisory status. He
maintained that there was "no agreement" to say Costanza was not a super-
visor.
Heinemann testified that in early January, 1978, Wilton
asked him whether Costanza was behind the Union. And
later, just before the election, he said Wilton asked him
again who was behind the Union and how he was going to
vote.
The testimony of Heinemann also sustained the allega-
tions of Paragraph Vl(c) which alleges that Office Manager
Odom interrogated an employee in late December 1977.
Heinemann testified that in either late December or early
January Odom asked him who was behind the Union.
Procedural issues. Respondent argues that all of the un-
fair labor practice charges should be dismissed or, in the
alternative, that the testimony of witnesses Joseph Simon
and Rocco Costanza should be stricken on procedural
grounds. Respondent maintains that both of these witnesses
"participated in thefts" of documents belonging to Respon-
dent, and that there was "unlawful complicity of Board
agents in the theft of conversion of Respondent's docu-
ments."
The documents include a page, with several dated entries
thereon, from a spiral notebook kept by Respondent's Of-
fice Manager Genny Odom and 195 "purchase orders"
identified by Respondent's Head Warehouseman Simon."
Odom began to keep a record on Costanza on November I,
1977, after Branch Manager Wilton had counseled Costan-
za concerning his "absenteeism and his poor performance"
as a service manager. Odom documented a number of
events involving Costanza from that time up through Janu-
ary 12, 1978. Wilton took the notebook with him on the
morning of January 13 when he met Costanza at the Terrell
Restaurant. On that day Wilton showed Costanza the note-
book and told him that he had enough information on him
to have him terminated." Wilton gave Costanza an ultima-
tum-resign or be fired.' Wilton returned the notebook to
Odom after his restaurant meeting with Costanza, but the
next day Odom was unable to locate it. Odom never saw
her spiral notebook again but she observed, while testifying,
one page from it (bearing entries from December 9, 1977, to
January 11, 1978) lying on the table where the General
Counsel's attorney and Costanza sat. When shown the
page, Odom readily identified the page as being from her
notebook (and received as Resp. Exh. 12).
As for the other documents, the record discloses that
Warehouseman Simon took the so-called purchase orders
from Respondent's Hayward facility and brought them to
the hearing without proper authorizations The Board's at-
17 Respondent contends that the so-called purchase orders were more
properly referred to as "receipts."
's Wilton also kept a record of his own on Costanza on a yellow tablet
paper (part of which was received as Resp. Exh. 14).
'1 After considering the matter a couple of days Costanza declined to re-
sign, and he was terminated about 10 days later. Costanza testified that
Wilton told him at the restaurant meeting on January 13 that he was not to
vote in the coming election and that Wilton tried to send him on an emer-
gency call at the time of the election on January 20. Costanza did cast a
ballot at the election which Respondent challenged.
0 This is especially true of the yellow and white copies produced by Si-
mon. Simon was called upon, in connection with his employment, to retain
only the pink copy of a purchase order for his warehouse office file. Simon
testified that he would advise the branch manager what needed to be pur-
chased, and the branch manager would then approve, "the majority of the
time." According to Simon: "The branch manager hands me the original of
the purchase order]; I fill it out and return it-their two copies, and keep the
others."
604
CORY COFFEE SERVICES
torney said she was calling for the production of the pur-
chase orders on the supervisory issue-on the basis that
Simon. a nonsupervisory employee, ordered supplies and
disbursed monies of the Company just as Service Manager
Costanza had. Such evidence was of little moment, how-
ever, and, in fact, the documents were turned over to Re-
spondent's counsel without ever being offered.
As Respondent asserts in its brief, the record gives a
"strong implication and only logical inference" that Co-
stanza stole the spiral notebook. Costanza was called to
testify on rebuttal after Wilton and Odom testified about
the disappearance of the notebook on defense, but he was
never asked whether he had taken it. Odom testified that
Costanza had denied to her knowing anything about the
missing notebook. Wilton testified that when he asked Co-
stanza "point blank" whether he took the notebook he re-
ceived "a smirk-type laugh and a quiet denial, like 'ha-ha, it
is missing.'"
Respondent mischaracterizes Simon's taking of the pur-
chase orders as a "theft," however. since he took them from
his employer's files for use in the proceeding with the inten-
tion of returning them to Respondent's premises. Also. the
record does not establish on the part of Board agents an
"unlawful complicity" in the "theft" of documents as Re-
spondent claims. Simon told the General Counsel's attor-
ney that he had purchase orders in his "possession." To be
sure, the General Counsel's attorney should have made a
specific request therefor. either in the form of a suhpoena
duces tecum or a direct request of Respondent's counsel. It
is to be noted that the General Counsel's attorney main-
tained that she had subpoenaed such documents. It seems
doubtful, however, that such documents would fall within
the category of the subpoena referred to (Specification = 3),
calling for authorizations of "materials and supplies." with-
out more detail being given. In any event, it can hardly be
fairly stated that the General Counsel's attorney, or her
supervisor," knew and approved of any plan to steal pur-
chase orders from Respondent.
According to statements of attorneys for the General
Counsel made at the trial, one page of Odom's spiral note-
book came to Board agents "in the course of [its] investiga-
tion," and "no agent of the National Labor Relations
Board obtained it from Respondent's office." The record
does not establish, therefore, that the General Counsel's at-
torney or other Board agents knew that Respondent's Ex-
hibit 12 had been stolen from Respondent's offices. Nor
does it allow me to infer that any Board agent was involved
in taking of the spiral notebook from Respondent's offices.
I am unable to conclude that the proceedings should be
dismissed outright on the basis that Respondent has been
denied due process of law or that its rights have been "seri-
ously prejudiced by the Region's clandestine use of this pur-
loined evidence" as Respondent claims. '2 None of the viola-
21 Respondent is cntical of the General Counsel's trial attorney and her
supervising attorney, who appeared briefly during the trial.
22 Respondent argues that its rights under the Fourth Amendment were
violated, but it has been held that the Board's proceedings are not subject to
that standard. See . L R B . South Bas Dail) Breeze. 415 F.2d 360 (9th
Cir. 1969).
tions found herein are based on the "purloined evidence."
Respondent offered the page from the spiral notebook, and
its counsel took possession of the purchase orders-without
objection of the General Counsel and without any offer into
evidence being made with respect to them. I agree with
Respondent that Costanza's testimony was undermined,
and his claim of being a nonsupervisory employee was thor-
oughly discredited. Also, as noted previously. Simon's testi-
mony was neither impressive nor essential to any findings of
violations on Respondent's part. Thus, the evidence pre-
sented through Costanza and Simon. whose testimony Re-
spondent seeks to have stricken, worked no prejudice to
Respondent."
Based on the foregoing. and the whole record, I enter the
following:
CON(CI.USIO(NS () L\w
I. 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 meaning
of Section 2(5) of the Act.
3. B interrogating employees with respect to their union
sympathies and activities Respondent deprived employees
of their statutory rights in iolation of Section 8(a)( 1 ) of the
Act.
4. Respondent did not engage in other conduct violative
of the Act as alleged.
Til RlMI:I)Y
Having found that Respondent engaged in unfair labor
practices I shall recommend that it be ordered to cease and
desist therefrom and to take affirmative action in order to
effectuate the policies of the Act.
Based on the foregoing findings of fact, conclusions of
law, and upon the entire record and pursuant to Section
10(c) of the Act. I hereby issue the fbllowing recommended:
"2 Initially the Board appears to have taken a strict. exclusionarD rule with
respect to the use of any questionably obtained evidence. In Hoosier ('ardl-
nal Corporation, 67 NLRB 49 (1946). a case in which a Board agent obtained
records from an officer of a cited union organization who was secretly a
member of a rival union, the charging parts. the Board indicated it Aould
not consider the evidence in order "to refrain from an) appearance of sur-
reptitious dealing with one of these parties." Subsequently. the Board indi-
cated it would consider unlawfully obtained evidence so long as government
agents were not involved in the taking. See Air Line Pilors Associaio, 97
NLRB 929 (1951) and General Engineering. Inc, 123 NLRB 586 (1959).
According to the Ninth Circuit's decision in V L.R B v South Bay Daily
Breeze, supra at 365. 415, which treated the issue at some length. the Board
applies the correct rule: "where the Board merely accepts and makes use of
evidence illegally obtained by private individuals. exclusion of such e idence
is not required by the Act."
The Court in South Bay, supra, discussed the Seventh Circuit's decision in
Knoll Associates, Inc. v. Federal Trade Commission FTC, 397 F.2d 530 7th
Cir. 1968), the authority on which Respondent primarily relies, pointing out
that in Knoll .4ssociates "the actions of the government and the thief were so
related as to make :,ie thief a government agent . . " It is to be further
noted that the Seventh Circuit has recently pointed out that Its Knoll Asoci-
ares decision has been "effectively distinguished " See 'nirted Stares v. New.
Ion and Stakes. 510 F.2d 1149 (7th Cir 1975); also L ned Siates v. Bilhngs-
les, Friend and Jaeger, 440 F.2d 823 (7th Cilr 1971 )
605
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER24
The Respondent, Cory Coffee Services, Division of Cory
Food Services, Inc., Hayward, California, its officers.
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Interrogating employees concerning their union
membership and activities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the purposes and policies of the Act:
24 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(a) Post at its Hayward, California, facility copies of the
attached notice marked "Appendix."25 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 32, after being duly signed by Respondent's authorized
representative, shall be posted by it immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Company to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 32, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply therewith.
2s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Entbrcing an Order of the Na-
tional Labor Relations Board."
606