Country Epicure, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 436 (N.L.R.B. 1985)

436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
Country Epicure, Inc. and Anthony Astrologo. Case
2-CA-20837
24 September 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 27 June 1985 Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
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.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed. -
Mary_L. Bulls, Esq ., for the General Counsel.
Clifford R. Oviatt, Esq. and Jeffrey L. Snyder, Esq., for
the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was tried before me in New York, New York, on
May 1, 1985. The complaint and notice of hearing issued
on February 21, 1985, based on an unfair labor practice
charge filed on January 17, 1985, by Anthony Astrologo,
an individual. The complaint alleges that Country Epi-
cure, Inc. (Respondent) prepared and maintained docu-
mentation regarding Astrologo's attendance, worktime,
and tardiness to work, and discharged and thereafter re-
fused to reinstate him to employment due to his activities
on behalf of Teamsters, Local 456, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (the Union), in viola-
tion of Section 8(a)(1) and (3) of the Act. Respondent
denies knowledge of Astrologo's activities on behalf of
the Union, and alleges that he was discharged solely be-
cause he lied to them regarding an incident that occurred
on July 18, 1984.1 Upon the entire record, including my
observation of the demeanor of the witnesses, and after
consideration of the briefs filed by the parties, I make the
following
1 Unless indicated otherwise, all dates referred to are for the year 1984
FINDINGS OF FACT
1. JURISDICTION -
Respondent, .a New York corporation with its office
and-place of business in Katonah , New York (the facili-
ty), is engaged in the production and distribution. of
frozen baked goods. In the conduct of the business oper-
ation- Respondent annually purchases and receives at its
facility products, goods, and materials valued in excess of
$50,000 directly from points outside the State of New
York. Respondent admits , and I find , that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. r
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
III. FACTS AND ANALYSIS
Astrologo was employed by Respondent as its sole
mechanic from May 1983 until July 27, 1984. His princi-
pal responsibility was to maintain and repair 'the vehicles,
owned by Respondent; this included the trucks and the
salesmen's cars. In this regard, he.had a regular mainte-
nance schedule for the vehicles; in addition, he was
called on emergencies when one of these vehicles needed
repair. If this situation occurred on the road, Astrologo
drove to the locale involved and performed the repair.
In addition, when parts were needed for the maintenance
or repair of the vehicles, Astrologo drove to the dealer
to purchase the parts. When he left the facility for these
purposes, he was not required to sign out or notify
anyone that he was leaving. His regular work hours
were 8 a.m. to 4:30 p.m., although the nature of his work
often required some departure from this schedule. His su-
pervisor was Bob Grigas.
Grigas, at the time in question,2 was the evening su-
pervisor over the warehouse and freezer employees, as
well as the drivers. When necessary, he assisted the driv-
ers in loading and unloading their trucks. If there was a
need for Astrologo to repair a certain vehicle, it was
Grigas who informed him of it. When Astrologo per-
formed maintenance on Respondent's vehicles he was re-
quired to complete a form provided by Respondent; after
completing this form he gave it to Grigas.
Prior to mid-July, Astrologo was, admittedly, an ex-
cellent employee. In January, Respondent gave him a
$100 bonus and a certificate of performance; early in
1984 he was also given a raise. Prior to July he had re-
ceived no written warnings.
About June,'Astrologo told Grigas that he felt that a
union would improve the working conditions of the driv-
ers and warehouse employees,3 and Grigas agreed.
Grigas told Astrologo to speak to his brother, who was
an organizer for the Union. About that time , Astrologo
told some of the drivers and warehouse employees
2 Grigas later resigned his employment with Respondent
8 At the time, Respondent employed approximately 20 employees in
these job categories.
276 NLRB No. 48
COUNTRY EPICURE, INC.
(while at work) that he was thinking about contacting a
union . He contacted the Union and arranged for their
representative to meet the employees at his house and,
while at work, he informed- the warehouse employees
and drivers: "We're going to have a party this weekend
and you're invited." He.spoke to the drivers in the yard
when they returned to the.facility at the end of the day,
and to the warehousemen when they came to the garage
to get boxes that were stored there.
Approximately 15 employees (including Grigas) at-
tended this meeting at Astrologo's house; although he
could not testify precisely when this meeting occurred,
it, apparently, was in . about early to mid-June. Allen
Grigas, union organizer, spoke at the meeting and
handed out union authorization cards, which all emplpy-
ees present signed and returned to Allen Grigas.
About 4 days later, Allen Grigas went to the facility
and informed Astrologo that the cards the employees ex-
ecuted were not valid because someone from manage-
ment (Grigas) was present at the meeting, and that they
had to get, another set of cards.signed, without a man-
agement representative being present. Astrologo then in-
formed the drivers and warehouse employees of the diffi-
culty with the authorization cards and arranged for them
to come to his house again to execute new cards. This
second meeting occurred no more than 2 weeks after the
first meeting and was attended by approximately. the
same number of employees. All those present executed
authorization cards for the Union and gave them to As-
trologo. Shortly thereafter, Astrologo left work early
and brought these authorization cards to the Union.
On July 3 Respondent received the following telegram
(first by phone and then-in writing) from the Union:
A majority of your company's drivers ware-
housemen [sic] and mechanics have authorized
Teamsters Local 456 to serve as .their collective
bargaining. representative. Please contact me at 914-
592-9500 to arrange to meet for the, purpose of ne-
gotiating. a collective-bargaining agreement cover-
ing this unit of employees.
By letter, dated July 6, Respondent wrote to the
Union:
We have a good faith doubt that you represent a
majority of our employees in an appropriate bar-
gaining unit.
If your interest continues in representing our em-
ployees, you should file a petition with the National
Labor Relations Board.
Respondent received -no- further communication from
the Union until- about September 1, when it received a
copy of the petition filed by the Union.
On the morning of July. 18 Astrologo left Respond-
ent's facility to pick up parts' at Mt. Kisco Datsun. On
the way to the dealer he observed Respondent's driver
John Krell in his truck at a gas station . Astrologo knew
that Krell's route required that he take 684, so he parked
his car on the entrance ramp to the highway where he
waited for Krell's truck. When he arrived, Krell stopped
his truck on the side of the ramp and Astrologo got into
437
the truck with Krell. He testified that they spoke about
the condition of the trucks and how they could be im-
proved, and the number of flat tires they were experienc-
ing. After about 20 minutes, Astrologo returned to his
car and went to pick up the parts. He testified that he
was absent from the facility for no more than an hour.
On that same morning, Respondent's attorneys, Clif-
ford Oviatt and Vern Hill, flew from Washington to
New York to meet with -Respondent's representatives.
Shortly after 9 a.m., as they were driving north on 1-684
toward Respondent's facility, they observed one of Re-
spondent's trucks stopped on the ramp on the other side
of the highway. Thinking that it "was a little strange that
it was sitting there on the side of the road" they drove
to the ramp and when they passed they noticed that two
people were sitting in the truck and a car was parked
behind the truck. They drove around again, this time
writing down the truck number, as well as description of
the car and its license number. They then drove directly
to Respondent's facility. When they arrived, they asked
E. Lee Schneider, Respondent's vice president and gen-
eral manager, if he was having a problem with one of
the Company's trucks; he said that he was not aware of
any and they told him of what they observed on the
ramp at 1-684; he said that he would check into it.
Schneider then called Tony D'Aquanni, Respondent's
plant manager, and informed him of what Oviatt and
Hill had said and instructed him to see if any problem
had been reported. D'Aquanni called him back a few
minutes later and identified Krell as the driver of the
truck and said that the checkout sheet showed that he
left the facility at 9:10 for the Long Island route and that
the description of the car sounded like Astrologo's car.
-Schneider then told him to go to the ramp to see if there
was a problem; shortly thereafter D'Aquanni told
Schneider that the truck and the car were no longer on
the ramp. On a number of occasions that morning
Schneider looked out his window and saw that the
garage office door (where Astrologo worked while at
the facility) was closed. Between that time and about
noon, D'Aquanni called and visited the garage on a
number of occasions; Astrologo was not present. Later,
D'Aquanni told Schneider that he saw Astrologo in the
cafeteria around 12:30 that day. D'Aquanni testified that
after this incident he asked Respondent's employee who
handles accounts payable to check if they had any bills
for parts for that date, and she told him that Respondent
had no bills for parts from that day.
Sometime later that day Schneider reported this inci-
dent to Stern and he decided that they should speak to
Krel14 about the incident. When he returned to the facili-
ty that evening Stern and Schneider called him into the
office; Schneider asked him what he was doing on the
ramp at 1-684 that morning and Krell said that he was
flagged down by Astrologo, who came into his truck.
Schneider asked if anything was wrong with his truck
and he said no. "We were just shooting the breeze."
Schneider warned him about a repetition of such actions
when he had goods to deliver. The meeting lasted ap-
4 Krell did not testify
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proximately 10 minutes. Stern was leaving the following
morning on a business trip, not to return until -Monday
morning (July 23) and he told Schneider to: investigate
the matter further in his absence to determine what had
occurred that morning.
The next morning, Schneider called D'Aquanni and
told him-to, come to his office with Astrologo.when he
arrived 'for work. At 11:30 that mornings D'Aquanni and
Astrologo came to his office. Schneider asked him where
he-was the previous morning as; they were looking for
him. Astrologo said that he, was at the Mt. Kisco Datsun
dealer picking up spare parts: Schneider asked him when
he was there and Astrologo said that he punched in that
morning a little after 9 o'clock and arrived at the dealer
about 9:20. Schneider asked him when he left the dealer
and he said about 10 o'clock. He asked him who he saw
and he said that he did not remember. He asked him if
he got the parts he needed and he said that he did not,
he had to go elsewhere. He asked when he returned to
the facility and Astrologo said about 10:30 or 11. Schnei-
der said that they tried to contact him, but nobody saw
him. Schneider then told Astrologo that his car,.wasseen
on the ramp of 1-684. Astrologo said that he has lent his
car to his brother the,, prior day because his brother
worked nearby and appeared at work out of uniform; he
lent him -the car to, drive home- to get his , uniform.
Schneider asked him if he were sure he was at the dealer
in Mt. Kisco and he said that he was, that he took the
truck there. D'Aquanni then told Astrologo that Krell
had said that he had flagged him down and spoken to
him on the ramp the pnor day. Astrologo did not
answer. Schneider asked him if it was him and Astrologo
said , "It was ' me, I lied ." Because he was' suspicious
about missing -products Schneider asked him what was
going on; Astrologo said, "Well you know it was all that
Union shit."6 Schneider told him, "Look, if it_had,a'ny-
thing to do 'with the union, I don't wan t to hear about
it."7 Astrologo asked if he was going to be speaking `to
Stem about it the following Monday. On Monday, when
Stem returned, Schneider told him of this conversation
with Astrologo.
On the following day, ' Stem and Schneider again met
with Krell after he rettinied from his run; ' neither Stern
nor Schneider could remember much about this meeting
other than Stem's testimony that he asked Krell what he
and Astrologo were talking about on July 18, and Krell
said , "He was ,lust shooting the, breeze." Stern testified
-that- they had this meeting -with "the hope, maybe, of
coming up with something that would help us make up
our minds on the . matter of Mr. Astrologo."
On July 25, as Stern was walking outside the ' facility,
Astrologo approached him and asked if he could speak
to ' him. When Stem said that he could as long as he
.walked with him, Astrologo,said that he was afraid of
6 Schneider wrote a • "Memo. to File" the next day stating that Astro-
logo had called in at 10 15, and reported to work at 11.30 that morning
No disciplinary action 'was taken against him due to this lateness'
6 Astrologo testified that his words were :' "It wasn 't anything to do
with the Union." , '
' He testified that , based on his pnor management experience, and in-
structions from counsel for Respondent , he knew to avoid any discus-
sions of the Union - '
losing his job; Stern said that they had not yet made any
decision, but would do so by the end of the week. Astro-
logo said that, if he lost. the job he would be in a lot of
trouble because at his previous place of employment, on
leaving work one day, he threatened to run down some
pickets. A fight ensued- and he was placed on probation,
conditioned on his remaining employed: Stern said that,
although he sympathized, that could not be: a factor in
the decision. Later that day Stern informed Schneider of
his conversation with Astrologo. On either that after-
noon or the following day, Thursday, July 26, Stern and
Schneider met to make a decision regarding Astrologo.
Because of the -earlier demand for recognition, they
called counsel, -and asked him if they could fire an em-
ployee during a union organizing 'drive. He told them to
do what is best for the Company. Stern and Schneider
decided that "there was no -other alternative," because
Asirologo lied, he • would 'have to be terminated: Stern
'testified that when Schneider informed him that Astro-
logo initially lied about his whereabouts on the morning
of July 18, thatis when "the clock really started running.
There was no other single piece of information that was
more - instrumental in making that decision." Concerning
why Krell was not disciplined in any manner, Stem testi-
fied: "the issue was not the fact -that he 'was talking on
the job. The issue ,was strictly that he lied to us about his
whereabouts." He testified further:'
In a-in a key position where you have to depend,
you have good faith in that individual in that posi-
tion. I , mean; the mechanic . can - do anything he
wants to and we have no way of second-guessing
what his job is. Once you catch him lying, there's
you know, you can't have any trust-in that-in that
job.
On the afternoon of Friday, July 27, Stern called D'A-
quanni 'and told him to pick up Astrologo, and come to
his office with him. When they were all present, Stem
told Astrologo that, although it was a difficult decision,
they felt they had no choice except-to terminate him for
lying to them about his whereabouts because that was
the kind of behavior that, if tolerated, ' cold put Respond-
ent out of business. D'Aquanni testified that, at that
point, Astrologo asked if he could be considered for em-
ployment in the future; he does not. believe Stern an-
swered. Astrologo testified that after Stern told him that
he was being terminated for lying, he asked Stern if he
would consider hiring him back after "This whole busi-
ness"-"the Union" was over.
Stem testified that in about 1982.. Respondent dis-
charged another employee, Bob . Gladman; for lying
about his whereabouts when somebody had seen him
sleeping in his truck on a highway. -Respondent could
produce no personnel records regarding this discharge.
On January 22, 1985, Astrologo came to the facility
and asked Stern if he could- speak to him and he said that
he could. He told Stem that, shortly after the discharge,
he was involved-in a serious accident that resulted- in a
serious head injury with memory lapses . He also said
that the story he told Stem about being on probation due
to an altercation with strikers was not true and that he
COUNTRY EPICURE , INC 439
felt Respondent fired him because of his union activity.
He said , "Well, you knew that I was the organizer for
the Union" and Stern' said that they did not know who
was involved and they thought that he was not involved
because of the story he told him of his being a "union
buster." Astrologo then said that he was the front for
Grigas, who really started the union organizing drive.
Astrologo then told him that he was advised to sue Re-
spondent -for backpay; Stern said that ,he could not
advise him on the matter.
There is no. evidence indicating that Respondent was
aware of Astrologo's (or Grigas') union activity. Stern,
Schneider, and D'Aquinni each testified that they were
unaware of Astrologo's activities on behalf of the Union;
in fact, Stern and Schneider testified that-, based on As-
trologo's conversation with Stern on July 25, they as-
sumed that he was antiunion. Stern also testified that,
prior to January 22, 1985, he had no idea that Grigas
was involved in the Union; Grigas never said anything to
him about the Union and never identified any of the
union supporters. Stern and Schneider testified. that be-
tween July 3, when they received the Union's request for
recognition and about September 1, when they received
the Union's petition, they thought that the union drive
had expired. As Schneider testified, during this period,
"there was nothing. There were no rumors, there were
no facts, we never saw a card or evidence of a card, we
never saw a posting .. . .
In addition to alleging that, Astrologo was discharged
in retaliation . for activities on behalf of the Union, the
General Counsel alleges that during this period Respond-
ent prepared and maintained documentation regarding
his worktime and tardiness, due to his union activities.
D'Aquanni prepared the following note , dated July 25,
for Astrologo's personnel file:
7/24/84-Tony A. did not report for work at his
scheduled starting time-8 :00 a.m . He called in to
the department manager to advise that he would
not be in due to illness. This call was made at 10:45.
Tony's scheduled starting time is 8 :00 a.m. Compa-
ny policy states that sick calls are to be made at
least one -(1) hour prior to scheduled starting time.
7/25/84-Tony did not report for work at his
scheduled starting time again today. He did not call
to notify anyone that he would either be late or not
in. Tony finally arrived at work at 10:30 a.m. 2 1/2
hours after his scheduled starting time. When asked
why he did not call he said that since - he was
coming in anyway he didn't feel it was necessary.
His only reason given was that he was running
late-no specifics were given.
The following • was prepared by D'Aquanni dated July
26, and placed in Astrologo's personnel file:
Tony A. reported for work @ 11:57 a.m. nearly 4
hours after his scheduled starting time. No explana-
tion was given for his late arrival and no; call was
made to warn the department of the late arrival. He
also left at 7.00 p.m. (6 1/2 hr. day) stating that he
things to do.[sic].
_ And the following memo to Astrologo's personnel file
was prepared by D'Aquanni and dated July 27:
On 7/26/84 p.m. I spoke with Tony and informed
him that we needed a basic tune-up on one of our
company autos for early Friday so that a salesper-
son could make a call to Philadelphia. ' He assured
me that this could be accomplished by 1:00 p.m.
On 7/27/84 I called- the mechanic's shop @ 11:00
a.m. and got no answer. In checking his time card I
found that he had not punched in yet. He is sched-
uled to start @ 8:00 a.m.
This instance along with all the other incidents of
nonperformance and tardiness can no longer be ac-
cepted. I feel that this leaves us no choice but to
terminate Tony Astrologo's employment with
Country Epicure. This is to [sic] -critical a position
to the company to be able to accept such lack of
responsibility.
D'Aquanni testified that he prepared these memos "to
indicate" that Astrologo reported late for work and left
early; he never discussed the memos with Astrologo, nor
did he -discuss them with Stern or Schneider; he sent
them to the personnel office where they would be placed
in ' the file. Stern and Schneider testifed that they were
not aware of these memos at the time they decided to
discharge Astrologo.
In Wright Line, 251 NLRB 1083, 1089 (1980), the
Board set forth the rule it will henceforth apply in dis-
crimination cases such as the instant matter: "First, we
shall require that the General Counsel make a prima facie
showing sufficient to support the inference that protected
conduct was a `motivating factor' in the employer's deci-
sion . Once this is established, the burden will shift to the
employer to demonstrate that the same action would
have taken place even in the absence of the protected
conduct."
Based on the entire record, I find that the ' General
Counsel has not sustained her initial burden, Allbritton
Communications, 271 NLRB 201 (1984). The General
Counsel's allegation that Astrologo's discharge is con-
nected to his union activities has timing for support, but
nothing more. There is no evidence whatsoever that
Stem, Schneider, or D'Aquanni was aware of the fact
that Astrologo was one of" the instigators and prime
movers of the union movement:,The General Counsel, in
her brief, alleges that the post-July 18 memos prepared
by D'Aquanni and Schneider create an inference that
Respondent was attempting to build a case for discharg-
ing Astrologo. Although they create some suspicion, as
discussed below, this inference is not enough to support
the General Counsel's burden under. Wright Line. This is
especially true herein where Respondent had good
reason to believe that Astrologo was, in fact , antiunion;
in his meeting with Schneider and D'Aquanni on July
19, Astrologo made reference to "that Union shit" and in
his discussion with Stern on July 25 he said that he was
on probation as a result of a fight he was involved in
while crossing a picket line going to work. The General
Counsel also refers to Astrologo' s excellent work record
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior to July 18 as evidence of an improper motive in his
discharge Respondents explanation however is a valid
one the nature of Astrologo s job gave him a wide lati
tude of freedom requiring a high degree of trust When
Astrologo lied about where he was on July 18 that trust
was broken
Finally the General Counsel in her brief also refers to
the fact that no action was taken against Krell for his ac
tions on July 18 However when he was questioned by
Stern and Schneider on July 18 he immediately told the
truth while Astrologo did not The Board in Allbritton
supra stated that it was improper for an admunstrative
law judge to intrude more than slightly into an area of
managerial authority reserved to the Respondents and
not intended to be subject to second guessing by the
Board To sustain the General Counsels position herein
would require me to intrude substantially on managerial
authority which I decline to do This allegation is there
fore dismissed
The General Counsel also alleges that Schneider and
D Aquanni s memos violate Section 8(a)(1) and (3) of the
Act I disagree D Aquanni s memos were never commu
nicated to nor considered by Stern and Schneider prior
to their decision to discharge Astrologo Schneider s
memo (written 1 month after he commenced his employ
ment with Respondent) also appears to have had no
effect on the decision to discharge Astrologo In addi
tion these memos were not without reason after Astro
logo lied to Schneider and D Aquanm on JLIy 19 they
no longer trusted him as they had previously In this sit
nation it is not unreasonable for Respondent to record
Astrologo s subsequent substantial tardiness This allega
tion is therefore also dismissed
CONCLUSIONS OF LAW
1 Respondent is an employer within the meaning of
Section 2(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 Respondent has not engaged in any conduct in vio
lation of the Act as alleged herein
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed8
ORDER
It is recommended that the complaint be dismissed in
its entirety
a If ro 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