Cumberland Farms

National Labor Relations Board - Board Decisions

Jul 24, 1992

307 N.L.R.B. 1479 (N.L.R.B. 1992)

1479
307 NLRB No. 231
CUMBERLAND FARMS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In adopting the judge’s finding that the Respondent violated the
Act by threatening a union agent with arrest, we emphasize the
judge’s finding that the threat was directed at an individual who was
on public property. We shall modify the judge’s conclusions of law
and recommended Order to reflect more precisely this finding.
We find merit to the Charging Party’s request to make the notice
clearer to the employees to whom it is addressed. Accordingly, we
shall modify the recommended Order and notice by providing sepa-
rate paragraphs for the 8(a)(1) violations.
Cumberland Farms, Inc. and United Food and
Commercial Workers Local 1360, AFL–CIO.
Cases 4–CA–19139–1, 4–CA–19139–2, and 4–
CA–19171
July 24, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On October 29, 1991, Administrative Law Judge
Frank H. Itkin issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed a brief in support of the judge’s
decision, the Charging Party filed cross-exceptions and
a supporting brief, and the Respondent filed a brief in
answer to the cross-exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied below.2
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act when Maintenance Department
Foreman John Messner and Human Resources Director
Thomas Sweeney interrogated employees John
Mariano and John Bartosh. In Rossmore House, 269
NLRB 1176 (1984), enfd. sub nom. Hotel & Res-
taurant Employees Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985), the Board reaffirmed the ‘‘totality of
circumstances’’ test to determine whether interroga-
tions of employees who are known union activists are
unlawful. Applying that test, we agree with the judge
that the Respondent violated Section 8(a)(1).
During the summer of 1990, the Union attempted to
organize the Respondent’s employees at its Florence,
New Jersey facility. Sometime during the last week of
July, employees Mariano and Bartosh attended a union
meeting after which they immediately began distrib-
uting authorization cards at work. Mariano and Bartosh
worked in the maintenance department under the su-
pervision of Department Foreman John Messner.
Messner had at least two conversations with
Mariano about the Union. In one conversation, which
Messner initiated, he questioned Mariano about the at-
titude of other employees and asked how many author-
ization cards had been signed. Several days later,
Messner asked Mariano and Bartosh how many author-
ization cards had been signed.
Messner also discussed the Union with Bartosh. One
evening in the cafeteria, Bartosh, Messner, and other
employees were talking about problems on the job.
When Bartosh raised the subject of the Union, Messner
seemed ‘‘all for it,’’ but he declined to sign a card
when asked to do so. Later that evening, according to
Bartosh, when the employees were on a break,
Messner raised the subject of the Union, asking ‘‘how
was the support going for the Union and I [Bartosh]
told him that it was going pretty good.’’ In another
conversation, Messner pointedly questioned Bartosh
about how many employees in specific departments
had signed authorization cards. Bartosh deliberately re-
plied with misleading information.
Several days after Mariano started distributing cards,
Mariano, Bartosh, and Messner encountered Thomas
Sweeney, the Respondent’s human resources director,
in the plant parking lot. When Sweeney stopped his
car, Mariano walked over to him. Sweeney inquired of
Mariano, ‘‘Anything new I should know about around
here like the union?’’ When Mariano replied no,
Sweeney said, ‘‘Oh, John’’ and left.
The Respondent contends that the conversations de-
scribed above were not coercive. The Respondent as-
serts that Messner was a low-level supervisor who was
friendly with Mariano and Bartosh, that the two em-
ployees openly engaged in their union activities, that
they initiated conversations with Messner about the
Union, including asking him to sign an authorization
card, and that Messner and Sweeney did not threaten
Mariano or Bartosh.
We find that these possibly ameliorative factors are
outweighed by (1) the fact that the interrogators sought
information about other employees and the organizing
effort in general, not simply Mariano’s and Bartosh’s
attitude toward the Union; (2) the particularized nature
of the information sought as to which groups of em-
ployees and how many had signed cards; (3) the re-
peated, probing, and focused nature of Messner’s ques-
tioning; (4) Sweeney’s high level within the Respond-
ent’s management team; (5) Sweeney’s expressed ex-
asperation after Mariano attempted to avoid answering
Sweeney’s inquiry about the Union. In addition we
note that, within several days of these incidents, the
Respondent unlawfully fired Mariano and Bartosh for
1480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
their union activities, relying on a pretextual applica-
tion of a no-solicitation rule.
Considering all the circumstances, we find that the
Respondent’s questioning of Mariano and Bartosh had
a reasonable tendency to interfere with, restrain, and
coerce them in the exercise of their rights guaranteed
by Section 7 of the Act.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 2.
‘‘2. Respondent Employer violated Section 8(a)(1)
of the Act by coercively interrogating employees about
employee union sympathies and activities, and by
threatening to have a union agent arrested while he
was engaged in handbilling on public property near the
entrance to the Respondent’s Florence, New Jersey fa-
cility.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Cum-
berland Farms, Inc., Florence, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Coercively interrogating employees about em-
ployee union sympathies and activities.’’
2. Insert the following as paragraph 1(b) and reletter
the subsequent paragraphs.
‘‘(b) Threatening to have a union agent arrested
while he was engaged in handbilling on public prop-
erty near the entrance to the Respondent’s Florence,
New Jersey facility.’’
3. Substitute the attached notice for that of the ad-
ministrative 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 or-
dered us to post and abide by this notice.
WE WILL NOT coercively interrogate our employees
about employee union sympathies and activities.
WE WILL NOT threaten to have a union agent ar-
rested while he engages in handbilling on public prop-
erty near the entrance to our Florence, New Jersey fa-
cility.
WE WILL NOT discriminatorily discharge our em-
ployees because they support United Food and Com-
mercial Workers Local 1360, AFL–CIO, or any other
labor organization, or because they engage in other
protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them in Section 7 of the Act
WE WILL offer employees John Mariano and John
Bartosh immediate and full reinstatement to their
former jobs or, in the event their former jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges
previously enjoyed, and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of the decision.
WE WILL remove from our files any reference to the
disciplinary actions and firings of employees Mariano
and Bartosh and notify them in writing that this has
been done and that evidence of this unlawful discipli-
nary action will not be used as a basis for future per-
sonnel action against them.
CUMBERLAND FARMS, INC.
Richard P. Heller, Esq., for the General Counsel.
Philip J. Moss and Thomas H. Somers, Esqs., for the Re-
spondent.
Peter V. Marks Sr., Esq., for the Union.
DECISION
FRANK H. ITKIN, Administrative Law Judge. Unfair labor
practice charges were filed in the above cases on August 10
and 23, 1990. A consolidated complaint issued on November
28, 1990. The complaint alleges that Respondent Employer,
in opposing the Union’s attempt to organize and represent its
employees at Florence, New Jersey, violated Section 8(a)(1)
of the National Labor Relations Act by coercively interro-
gating employees about employee union sympathies and ac-
tivities, and by threatening to have a union agent arrested
while he was engaged in handbilling near the entrance to the
Employer’s Florence facility. The complaint further alleges
that Respondent Employer violated Section 8(a)(1) and (3) of
the Act by discriminatorily discharging employees John
Mariano and John Bartosh because they were active on be-
half of and supported the Union. Respondent Employer de-
nies violating the Act as alleged.
A hearing was held on the issues raised in Philadelphia,
Pennsylvania, on May 6, 7, and 8, 1991. On the entire
record, including my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Employer is engaged in the retail sale and dis-
tribution of dairy products, groceries, foodstuffs, and related
products in Florence, New Jersey, and is admittedly engaged
in commerce as alleged. Charging Party Union is admittedly
a labor organization as alleged. We are principally concerned
here with the Union’s attempt during the summer of 1990 to
1481CUMBERLAND FARMS
1 Counsel for Respondent, in his answer, denied the supervisory
status of Messner. At the hearing, counsel explained that he was dis-
puting Messner’s supervisory status ‘‘as to time.’’ (See Tr. 320.)
Messner, still employed by Respondent, did not testify in this pro-
ceeding.
organize and represent Respondent’s employees at its Flor-
ence facility, and Respondent’s conduct in opposition to that
organizational effort. The pertinent evidence is summarized
below .
I. ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events Culminating in the
Suspension and Firing of Employees Mariano and
Bartosh on August 3, 1990
John Mariano testified that he worked for Respondent Em-
ployer at its Florence facility from January 1987 until August
3, 1990, when he was summarily suspended and then fired;
that he was a maintenance mechanic working from about
4:30 p.m. until about 1:30 a.m. with four other maintenance
mechanics; and that John Messner was the shift supervisor.
Mariano recalled that Messner ‘‘assumed that job’’ about
March or April 1990, and that Head Plant Engineer Allen
Canney ‘‘introduced’’ Messner to the maintenance mechanics
in Canney’s office, explaining to them, ‘‘This is your new
night time supervisor, John Messner.’’1
Mariano explained that Messner assigned him his work;
‘‘that there would be various job assignments that had to be
done during the night and Messner would disseminate the
jobs to certain mechanics,’’ and that
some nights a mechanic or two were put on the produc-
tion line . . . if [the production machines] broke down
you had to fix them as fast as possible, and then there
were various other duties that Canney had left for
Messner to assign to the mechanics and he would as-
sign each mechanic, whether you get put on the produc-
tion floor or you have specific duties . . . .
Messner also ‘‘approved’’ Mariano’s overtime. In addition,
the night-shift maintenance mechanics did not have a ‘‘regu-
larly scheduled’’ lunch period; they were, however, given a
half-hour lunchbreak and two 15-minute breaks on each shift.
Messner would decide ‘‘most of the time’’ when the me-
chanics took their lunchbreak, although occasionally a me-
chanic could use his ‘‘own discretion’’ depending on the
time requirements of his particular job assignment that
evening. Messner would similarly decide when the mechan-
ics took their 15-minute breaks, and initialed employee time-
cards.
Mariano next testified that he ‘‘first became involved’’ in
the Union’s organizational effort during late July 1990; that
coworker John Bartosh had telephoned him and ‘‘said that
some Union representatives were coming over [to Bartosh’s
home] and if I [Mariano] wanted to come over and see what
they had to say’’; and that during the ‘‘last week of July
1990’’ Mariano attended this meeting. Mariano and Bartosh
were then given union authorization cards to distribute to the
Florence employees. Mariano, together with Bartosh, started
distributing the union authorization cards at the Florence fa-
cility the following day and continued for about 5 or 6 days
until they were both suspended and fired.
Mariano had distributed some 30 union authorization cards
before his suspension and firing. He made these distributions
in the Florence cafeteria and locker room during his
lunchbreak and 15-minute breaks
because [Union Representative Roland] Priest and the
other representatives had told us . . . only to give them
out on your own time . . . between your lunch and
your break . . . because you would probably get into
severe trouble from the Company if you did anything
else.
Mariano recalled that Messner thereafter discussed the
Union with him ‘‘several’’ times before his suspension and
firing. Messner would ask about employee response to the
union membership solicitations by Mariano and Bartosh.
During the last such conversation, as Mariano testified,
John Messner had said . . . to us or me . . ., how are
you guys doing, have you got a lot of cards signed,
how’s the guys responding, I’m all for the Union. . . .
I [Mariano] . . . said to Messner, if you’re so much for
the Union . . . sign the card. He said, I can’t sign a
card, I’m a supervisor. I said, well, John, if you can’t
sign a card I don’t think this is any of your business,
and I walked away.
Mariano next testified that during this same period, when
he was distributing union membership cards to his cowork-
ers, Messner assigned Mariano and Bartosh ‘‘to go with him
and pull weeds from around the power transformer.’’ The
three then came upon Respondent’s human resources direc-
tor, Thomas Sweeney, in the parking lot area. Mariano re-
called:
Mr. Sweeney stopped his car and said, hey, John . . .
come here, and he said . . . hey, John, anything new
I should know about around here like the Union? I said,
no, Tom. . . . Sweeney said, oh, John . . . [and] went
in his car.
Thereafter, on August 3, 1990, the Employer distributed to
its Florence employees a letter signed by Plant Manager
Robert Wood and Dairy Operations Manager Emanuel
Cavaco, stating in part as follows (G.C. Exh. 10):
If it has not already occurred, you may soon be solic-
ited by the United Food And Commercial Workers
Union to sign an authorization card. . . . The Com-
pany does not believe that a Union will work in your
best interests, and urges you not to sign a Union au-
thorization card. The United Food And Commercial
Workers Union has tried to organize the Company’s
employees on two previous occasions. Both times the
Company’s employees voted ‘‘no’’ to the Union.
Later, about 5:30 p.m. on that same day, as Mariano testi-
fied, Plant Engineer Canney ‘‘brought’’ Mariano ‘‘to a con-
ference room in the front of the office area.’’ Present in the
conference room were Dairy Operations Manager Cavaco,
Plant Manager Wood, Human Resources Director Sweeney,
and Plant Engineer Canney. Mariano testified that during his
3-1/2 years of employment he had only seen Cavaco at Flor-
1482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Wood and Canney did not testify in this proceeding.
3 On cross-examination, Mariano was asked to identify the specific
employees solicited by him. He identified two of the solicited em-
ployees; however, he could not remember the names of the other
employees. He also acknowledged that Messner performed some
maintenance duties with other personnel. In addition, he acknowl-
edged receiving a written disciplinary report from the Employer on
March 30, 1987, for ‘‘taking too long for lunches’’ with a 1-day sus-
pension after having been ‘‘previously warned for this’’ (R. Exh. 4);
and a written disciplinary report on December 27, 1987, for ‘‘leav-
ing early’’ ‘‘without permission’’ with a 3-day suspension. These
1987 disciplinary actions were long before his having been made a
maintenance mechanic. On redirect examination, he explained that
Messner did ‘‘hands on’’ work in the plant about 3 to 4 hours each
night ‘‘according to whatever happens in the plant.’’
ence about six times. Cavaco then spoke. As Mariano re-
called,
He said, John, I’ve got some complaints that you’re
distributing Union authorization cards around here. . . .
Do you have anything to say for yourself? I said, Mr.
Cavaco, I have a half hour lunch and two 15 minute
breaks. He said, John, as many complaints as I’ve got-
ten that you’re passing out cards in areas of the plant,
you have to be doing it more than your 15 minute
breaks and half hour lunch. . . . After that, he said, do
you know we have a solicitation policy around here? I
said, what is it. Mr. Cavaco, termination? He said, in
some instances. I said, in that case, Mr. Cavaco, I’d
like you to produce the witnesses, the people that said
I’ve been passing out Union authorization cards. At that
point, Mr. Sweeney interjected and said, we don’t have
to show you anything. Again, Mr. Cavaco spoke and
said, John, do you have anything to say to redeem
yourself? I said, no, I have nothing to say at this time.
. . . Mr. Sweeney again responded with, John, you
know we have a cause and a purpose here also. I said,
I understand Tom. . . . Mr. Cavaco spoke again and he
said, John, we took you out of the cooler, we put you
in with maintenance to learn something, and this is how
you repay us. Do you have anything to say for your-
self? I said, no, Mr. Cavaco. He said, John, we’re sus-
pending you indefinitely.
Mariano was then told that he ‘‘wasn’t allowed to go back
to [his] locker’’ and ‘‘was escorted off the property’’ by
Wood and Canney.
A week earlier, Mariano had discussed a salary increase
with Wood, and Wood had then said, ‘‘he would see what
he could do for me.’’ Wood, as he escorted Mariano out of
the plant on August 3, said to Mariano,
John, didn’t we just speak about a week before about
this [the salary increase], and then you pull something
like this, do you have anything to say? I said, no.
Mariano was suspended without pay.
Wood wrote Mariano on August 10, 1990, apprising the
employee (G.C. Exh. 8):
Please be advised that after a comprehensive investiga-
tion concerning the no solicitation policies of Cum-
berland Farms, Inc., you are advised that you are termi-
nated as of August 10, 1990.2
During the time between the suspension and notification of
firing, only Messner had telephoned Mariano, and stated:
‘‘It’s a shame what happened to you. I’ll see what I can do
for you.’’ Mariano recalled that he had never been ‘‘warned
about soliciting’’ by management prior to his termination,
despite the Employer’s progressive discipline policy. (See
G.C. Exh. 7.) And, Mariano noted that the first time he had
been informed about the Employer’s no-solicitation, no-dis-
tribution policy was at his meeting on August 3 with Cavaco.
He had never seen a copy of General Counsel’s Exhibit 2,
the Employer’s no-solicitation, no-distribution policy, dis-
cussed in section B, infra.3
John Bartosh testified that he started working for the Em-
ployer in May 1988; that he worked in the maintenance de-
partment on the night shift with coworker Mariano prior to
his summary firing on August 3, 1990; and that he ‘‘re-
ported’’ to Messner. He explained that Messner ‘‘assigned’’
him his work; that Messner in turn reported to Engineering
Department Head Canney who was not present during the
night shift; and that Messner ‘‘couldn’t fire or terminate any-
body’’ ‘‘but he could write up people.’’ Bartosh had been
told by Day-Shift Supervisor Fred Brant that Messner ‘‘can’t
fire . . . all he can do is write up.’’ Messner in fact granted
Bartosh permission to leave work early.
Bartosh recalled that he had been on leave due to a work-
related disability from about April 30 to July 27, 1990; that
he became involved in the Union’s organizational effort and
attended a union meeting with coworker Mariano about late
July; and that on his return to work on July 27, he passed
out some 80 to 100 union authorization cards among the
Florence employees until his firing on August 3. He testified
that he passed out these cards in the cafeteria, the hallway
to the cafeteria, the maintenance shop, and the garage. He
explained, with respect to his distribution in the hallway, that
involved ‘‘people going to lunch or people coming off
lunch’’; with respect to his distribution in the garage, ‘‘the
mechanics were sitting down and taking their breaks’’ and he
had been granted permission from Messner to ‘‘take a
break’’; and, with respect to his distribution in the mainte-
nance shop, the employees involved were ‘‘off the clock’’
waiting to go home or on lunch and he had been granted per-
mission to ‘‘take a break’’ by Messner.
Bartosh repeatedly discussed the Union with Messner.
Bartosh recalled:
[W]e were talking about different problems we were
having on the job . . . [and] why don’t [we] have a
Union in here, so I brought it into the subject and
Messner seemed all for it.
Messner at first agreed to ‘‘help us out with this,’’ but when
‘‘we asked him to sign a card he said no.’’ Messner had
‘‘asked how was the support going for the Union’’ and
Bartosh responded. Bartosh explained:
[Messner asked] how’s the support going for the Union,
have you got the Indians to sign up, did you get the
truckers to sign up, did you get the garage people to
1483CUMBERLAND FARMS
4 On cross-examination, Bartosh acknowledged that Messner
‘‘punched a clock’’; was not ‘‘salaried’’ like Canney; and ‘‘used
tools’’ and ‘‘got his hands dirty.’’ Bartosh further testified that he,
Bartosh, would ‘‘sometimes’’ ‘‘work through lunch’’ and not
‘‘punch out’’ or ‘‘punch back,’’ without having anyone ‘‘initial’’ his
timecard. He also recalled missing lunch ‘‘entirely.’’ He was uncer-
tain whether or not he had worked through his lunchbreaks during
his last week of employment. He was uncertain as to when and
where he took lunchbreaks during his last week of employment. He
explained: ‘‘I’ve taken my lunch just about everywhere in the
plant,’’ namely, the cafeteria, the maintenance shop, the cooler, the
truck warehouse, the receiving bay, and outside on the ground;
‘‘every day it was something different.’’ He was also uncertain when
and where he took his 15-minute breaks during his last week of em-
ployment. His breaks lasted ‘‘as long as Messner told me that it
lasted.’’ He admittedly took some breaks in the cafeteria, the shop,
the mechanic’s garage, and ‘‘just walking around.’’ He noted that he
did not have the ‘‘same number of breaks every day’’ and some-
times was given more than two breaks. He further explained that
most of his union authorization cards were distributed by him in the
cafeteria.
Bartosh was then shown his Cumberland Farms employment appli-
cation form (R. Exh. 6), dated May 9, 1988. He acknowledged that
he had previously worked at Duracote and then had a ‘‘temporary
job’’ for ‘‘about two weeks’’ at Sherwatt. He testified that his job
‘‘was phased out’’ at Duracote and he was ‘‘laid off’’ at Sherwatt.
Bartosh was then shown his employment application form to
Sherwatt, dated March 12, 1988 (R. Exh. 7). He claimed that every-
thing in his application was true ‘‘to the best of my knowledge’’
with ‘‘whatever records I had.’’ Counsel for Respondent argued (Tr.
471–472) that these application forms show entries of prior employ-
ers in ‘‘reverse order’’ and Bartosh ‘‘has contradicted himself in the
two application forms . . . about the reasons why his employment
terminated; . . . on the Cumberland Farm application he said he was
laid off from Duracote; . . . on his application to Sherwatt . . . he
gave a different reason . . . dead end job with no chance of advanc-
ing.’’ Counsel for Respondent acknowledged (Tr. p. 476) that he
was not claiming that Bartosh ‘‘was in any way disciplined in this
proceeding because of anything contained in these applications.’’
Later, counsel for Respondent argued (Tr. 595–600) that R. Exhs. 6
and 7 were ‘‘submitted for impeachment purposes’’ because they as-
sertedly show that Bartosh ‘‘misrepresented facts on his employment
application’’ to Cumberland Farms; R. Exh. 6 shows he was laid off
at Sherwatt and Duracote whereas R. Exh. 7 states ‘‘his reason for
leaving Duracote was deadend job’’; and ‘‘he said on his application
to Cumberland Farms [R. Exh. 6] [that] he was laid off from
Sherwatt.’’ Counsel for Respondent subsequently argued that, in ad-
dition, this evidence ‘‘affects the remedy’’ because assertedly
Bartosh would have been fired ‘‘if this had come to light.’’ See also
the testimony of James Chapman (Tr. 665–674), employed by
Sherwatt, to the effect that Bartosh was ‘‘terminated’’ by Sherwatt
because he did not ‘‘report for work’’ after working there some 10
days.
To the extent the above evidence pertaining to Bartosh’s prior em-
ployment and application forms bear on his credibility, I have con-
sidered this evidence with the remaining evidence on this full record.
To the extent the above evidence pertains to remedy or reinstate-
ment, this is more properly an issue for compliance. See Escada
(USA), Inc., 304 NLRB 845 (1991).
sign up . . . what’s the percentages . . . [and] I gave
him some really out of the ball park figures.
Bartosh next testified that about August 1 or 2, he wit-
nessed the following exchange with Human Resources Direc-
tor Sweeney:
Mr. Sweeney came up toward us in his car and he goes,
hi guys, what’s happening . . . anything I should know
about . . . and after I shrugged my shoulders . . . he
turned toward Mariano and says, hi John, how’s every-
thing going, anything happening that I should know
about, maybe like a Union starting, and Mariano like
brushed it off.
Subsequently, on August 3, as Bartosh ‘‘was just coming
into the shop,’’ Plant Engineer Canney handed Bartosh a
copy of the Employer’s letter to its employees in opposition
to the Union’s drive (G.C. Exh. 10). Bartosh was later
‘‘brought to the office’’ and there, like Mariano, met with
Cavaco, Sweeney, Wood, and Canney. Bartosh testified:
[Cavaco] says, John we’ve been hearing that you’ve
been soliciting on Company grounds, and I denied it
. . . and then he goes, do you know what the penalty
is for solicitation, and I said no, and he pulled out a
three ring binder and he showed me the solicitation
policies [G.C. Exh. 2] . . . . I looked at them for a
minute, and he says, we’ve had a lot of complaints that
you’ve been soliciting, you’ve bother[ed] people on
their lunch times, . . . in the passageway to the cafe-
teria. He said, what do you say, and I said, they’re
wrong. He says, well are you telling me all these peo-
ple are liar[s]. I said, just about . . . and I said, well
it’s obvious then if I was soliciting and you’ve got all
these numerous complaints you can go ahead and show
me some evidence you’ve got against me, and he said,
we don’t have to show you anything. . . . [Cavaco]
told me . . . how they sent me to school, how they
transferred me to maintenance and how I owed them,
and I turned around and slapped them in the face like
this, and he said, he had no choice but to let me go,
. . . and, I ain’t sure if it was Sweeney or [Cavaco]
said, don’t try to take any action against us because if
you do [we’ll] only prove you were guilty.
Management then ‘‘escorted’’ Bartosh out. Bartosh, fol-
lowing his discharge, asked Plant Manager Wood if he
‘‘could get something in writing’’ stating the ‘‘reason’’ for
his discharge, and Wood then responded: ‘‘You know you
were fired for soliciting on Company property,’’ and ‘‘that
was the end of that.’’
Bartosh explained that he had never seen a copy of the
Employer’s no-solicitation, no-distribution policy (G.C. Exh.
2) before this meeting; and that he had never previously re-
ceived a written or verbal ‘‘warning’’ or ‘‘discipline’’ or
‘‘suspension’’ from the Employer. Bartosh, however, recalled
having been told earlier by Day Supervisor Fred Brant when
Bartosh once asked ‘‘why doesn’t this place have a union?’’
You’ve got to watch about saying stuff like that around
here because it’s the quickest way to go out the door.4
Foster Macrides, the Employer’s vice president of human
resources, testified that the ‘‘decision’’ to ‘‘terminate’’
Bartosh and Mariano was made by Cavaco after ‘‘some con-
sultation’’ with him. Cavaco telephoned him midmorning on
August 2,
1484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
indicating he [Cavaco] had reports from supervisors
. . . that there were solicitations occurring at the Flor-
ence plant . . . to sign union authorization cards.
Macrides directed Cavaco ‘‘to verify that our no solicitation
policy was posted as it was supposed to be’’ and ‘‘to be sure
that there were no violations of that policy.’’ Macrides ac-
knowledged that as of this date he had ‘‘no knowledge’’ of
‘‘any violation of the no solicitation rule’’ at the plant.
Macrides next testified that he spoke to Cavaco on the
telephone during the morning of August 3. Cavaco then dis-
closed that Bartosh and Mariano ‘‘had been identified as
people who had been involved in the solicitation process’’;
that Bartosh and Mariano were conducting solicitations ‘‘in
several different areas of the plant’’ ‘‘while they were on
working time’’ and the ‘‘other employees’’ were ‘‘at work’’;
and that neither Bartosh nor Mariano ‘‘had been punching
out for their lunch break’’ in ‘‘an attempt to, perhaps, cam-
ouflage their activities.’’ Cavaco intended ‘‘to interview’’
Bartosh and Mariano that evening to determine his ‘‘course
of action.’’
Macrides next testified that Cavaco telephoned him on the
evening of August 3 at home during dinnertime and related
that Cavaco ‘‘had decided that it was appropriate . . . to ter-
minate Bartosh based upon his violation of the no solicitation
rule, the violations being numerous in nature,’’ and ‘‘to sus-
pend’’ Mariano ‘‘because’’ Cavaco ‘‘wanted to reflect on the
information he had received.’’ Macrides acknowledged that
he knew of no other instances where the Employer had ter-
minated or disciplined an employee for violating its no-solic-
itation, no-distribution policy. Macrides also acknowledged
that he did not conduct any independent investigation here,
and that he was unaware of any warnings, writeups, or simi-
lar papers in the files of Bartosh and Mariano ‘‘faulting them
for not punching out at lunch time.’’ Macrides denied, inter
alia, that the Employer’s letter to its employees dated August
3, 1990, opposing the Union’s organizational drive (G.C.
Exh. 10), had ‘‘any connection with’’ the terminations of
Bartosh and Mariano.
On cross-examination, Macrides testified that Cavaco told
him during their initial August 2 conversation that ‘‘it ap-
peared . . . there was solicitation during working hours.’’
Macrides later testified that during their second conversation
on August 3 ‘‘there was mention of . . . several instances.’’
Macrides claimed that during this second conversation
Macrides and Cavaco discussed that ‘‘there was perhaps a
need here to consider prior to the interview of these two gen-
tlemen . . . some form of discipline up to and including per-
haps suspension or discharge.’’ Macrides elsewhere testified
that there was no ‘‘discussion’’ about ‘‘whether a lesser pun-
ishment other than discharge would be administered’’ ‘‘be-
cause I considered it to be serious.’’ Macrides admittedly had
not checked on ‘‘any prior violations’’ by the two employ-
ees; did not conduct ‘‘any other investigation’’; and was
somewhat unclear about the specifics which Cavaco had re-
lated from his investigation.
Macrides next recalled that during his third conversation
with Cavaco he was informed that Cavaco decided to ‘‘ter-
minate’’ Bartosh and ‘‘suspend’’ Mariano. The reason for
this distinction was assertedly that Mariano ‘‘knew’’ of the
Employer’s no-solicitation, no-distribution policy but denied
violating the policy, whereas Bartosh denied knowledge of
the policy and violating it. Macrides and Cavaco would ‘‘dis-
cuss Mariano’s situation the following week.’’ Elsewhere,
Macrides testified that he considered both employees’ con-
duct a ‘‘blatant attempt’’ to violate the Employer’s ‘‘policy.’’
He emphasized the failure of both employees to ‘‘punch
out.’’ Mariano admittedly was ‘‘terminated’’ the following
week apparently without any further investigation, and the
‘‘reason’’ given to both employees for their ‘‘termination’’
was a violation of the Employer’s no-solicitation rule and
‘‘not their failure to punch out.’’ Macrides later added: ‘‘they
were being terminated for a violation of the no solicitation
rule’’; not for ‘‘failure to punch their timecards’’; ‘‘why ter-
minate them twice.’’
Macrides acknowledged that the Employer has a ‘‘progres-
sive discipline’’ policy. (See G.C. Exh. 3.) Macrides asserted
that he was unaware of ‘‘any exceptions’’ to the Employer’s
no-solicitation, no-distribution policy at the Florence facility,
as discussed in section B, infra. When asked what he would
have done in one or more of those ‘‘exceptions’’ and wheth-
er he would have terminated or invoked a lesser discipline,
Macrides responded ‘‘I don’t know what I would have
done.’’ Moreover, although the Employer also has a ‘‘pol-
icy’’ against ‘‘sexual harassment,’’ a recent complaint by a
female employee against a male employee for a ‘‘very seri-
ous’’ violation of this ‘‘policy’’ resulted only in a ‘‘written
warning.’’ As noted, Macrides knew of no other instances
where the Employer had terminated or disciplined an em-
ployee for violating its no-solicitation, no-distribution policy.
Emanuel Cavaco, director of dairy operations for the Em-
ployer at its four dairy plants, testified that he arrived at the
Florence plant on August 1 ‘‘to spend the rest of the week
reviewing the operations’’ and that Supervisor Gene McGee
apprised him later that same day that an hourly employee
had ‘‘said that he was approached and given a union author-
ization card.’’ Cavaco telephoned Macrides the following
morning August 2, and
told Foster [Macrides] what Gene McGee had told me
the prior night. Both [Macrides] and [Cavaco] agreed
that there was a possibility that the no solicitation rule
might be violated and since [Cavaco] was there [he]
should look into it.
Cavaco claimed that when he left the plant on August 2 he
observed that the Employer’s no-solicitation, no-distribution
policy was posted near the timeclock.
Cavaco next testified that on August 2 he conducted a
meeting of the plant supervisors and related to them
McGee’s ‘‘information’’ and ‘‘reminded them again of the
no solicitation rule.’’ Cavaco told the supervisors: ‘‘Keep an
eye out, your ears [open], if you should hear anything, let
me know, take no action on your own.’’ Cavaco did not
‘‘have any knowledge at all that there had been any prior
violations of the no solicitation policy at Florence.’’ ‘‘Shortly
after’’ this meeting, as Cavaco further recalled, ‘‘several em-
ployees’’ related ‘‘information’’ to Cavaco identifying
Mariano and Bartosh as the persons engaged in ‘‘soliciting
employees to sign Union cards.’’
Cavaco recalled that the first person ‘‘to inform’’ him after
this meeting was Frank Rollence. Rollence was the ‘‘driver
supervisor.’’ Cavaco related his conversation with Rollence,
as follows:
1485CUMBERLAND FARMS
5 McGee, Rollence, Spencer, and Johnson did not testify in this
proceeding.
6 Pcsolar, Noel, and Beck did not testify in this proceeding.
7 Atkinson did not testify in this proceeding. Stiling’s testimony is
summarized below.
Frank [Rollence] said . . . yesterday a couple of my
delivery drivers informed me, first Bruce Spencer, . . .
that he had been approached by Bartosh and handed a
bunch . . . of Union cards and asked to sign and dis-
tribute the rest throughout the drivers. . . . [A]nother
driver, Al Johnson, . . . was in the plant cafeteria get-
ting a drink and . . . he was approached by Bartosh
and given a Union authorization card and [asked] to
sign.
Cavaco admittedly did not know what Spencer was ‘‘doing’’
at the time of the above ‘‘encounter’’ or whether in fact he
was on a ‘‘break.’’ Johnson apparently was on ‘‘break’’ in
the cafeteria.5
Cavaco next recalled that Laboratory Manager John
Pcsolar came to him after the meeting, and said:
[Pcsolar] on July 31 . . . around 7 p.m.. . . was walk-
ing into the cafeteria to grab a quick smoke and there
were some employees leaving the cafeteria and Bartosh
and Mariano were in the cafeteria, and Mariano said to
the various employees . . . don’t worry about it . . .
it only costs $5.00 a month or something like that
. . . . [T]he same evening . . . about 9:30 [Pcsolar]
went back to the cafeteria to get a drink . . . Bartosh
and Mariano were in there with a group of employees
. . . and Mariano [said] hey everybody be quiet here
comes John.
Cavaco similarly recalled that cooler employee Andy Noel
‘‘came to me and said that on the night of August 1 he was
in the cafeteria around 8:15 p.m.’’ and, together with other
employees in the cafeteria, was urged to sign a Union card
by Bartosh and Mariano. Cooler employee Kyle Beck also
related that he too was ‘‘approached’’ by Bartosh and
Mariano in the cafeteria about 10 p.m. that same evening.
Beck assertedly was again ‘‘approached’’ by Mariano the
following afternoon—around 5:30 p.m. ‘‘in the hallway’’
‘‘on his way to work.’’6
Finally, Cavaco recalled being told, after his supervisors’
meeting, by Truck Mechanic Foreman Ron Stiling that on
August 1 [Stiling] was going into the truck garage . . .
around 10:45 . . . another mechanic Russ Atkinson was
coming out of the garage break room [with] Mariano
and Bartosh . . . they walked away from him . . . out
into the garage [and] talked for another 10 or 15 min-
utes . . . . [Atkinson’s] break was over and he defi-
nitely was on work duty.
Stiling assertedly heard the word ‘‘organize’’ used.7
Cavaco did not speak with anyone else. He then called for
Mariano’s and Bartosh’s timecards. Cavaco testified that
these cards for the week ending August 4 show that ‘‘there’s
no punching out for their lunch breaks’’ in violation of the
Employer’s ‘‘lunch and rest breaks’’ policy. (See R. Exhs.
13 and 14.) Cavaco asserted that, ‘‘reviewing both [of] their
timecards going back quite some time . . . for the most part
they were all punched out for lunch’’
in looking at a lot of timecards for a long period of
time they were consistently doing it [punching out]. All
of a sudden, I go to August 4 to see when they’re on
lunch and I don’t see anything punched out. . . . Well,
my conclusion, putting it all together, is that they were
purposefully and knowingly not punching out for lunch
that week and breaking one rule as an excuse to break
another.
On the following morning of August 3, Cavaco telephoned
Macrides and related to him Cavaco’s ‘‘conclusion’’ that
Mariano and Bartosh were engaged in a ‘‘deliberate violation
and . . . it was grounds for termination.’’ Cavaco inter-
viewed Mariano and Bartosh later that same day. Mariano
assertedly admitted being aware of the Employer’s no-solici-
tation, no-distribution policy but denied violating this policy.
Mariano requested to confront those who accused him of
such violations. Cavaco refuged. Cavaco denied, inter alia,
various other statements attributed to him by Mariano.
Cavaco ‘‘suspended’’ Mariano and said ‘‘we would get back
to him.’’ Cavaco then interviewed Bartosh. Bartosh denied
being aware of the Employer’s no-solicitation, no-distribution
policy and violating this policy. Cavaco concluded that
Bartosh was ‘‘lying.’’ Bartosh also wanted to confront his
accusers and was refused this request. Cavaco ‘‘fired’’
Bartosh. Cavaco also denied, inter alia, statements attributed
to him by Bartosh. Cavaco telephoned Macrides to report on
the interviews. Mariano was later notified of his ‘‘termi-
nation.’’
Cavaco claimed that Mariano and Bartosh were in fact
‘‘stealing Company time.’’ He acknowledged, however, that
‘‘no effort was made to adjust the timecards of Bartosh and
Mariano for their [last] week of work.’’ He further explained
that, regardless of whether or not Mariano and Bartosh
punched out for lunch, management ‘‘would have deducted
the half hour lunch from their pay for those days.’’ More-
over, the timecards for Mariano and Bartosh show that they
frequently had failed to punch out for lunch between January
1 and July 30 without any apparent penalty or disciplinary
action by management despite the fact that management au-
dited these cards at the end of the pay periods involved.
Thus, Mariano did not punch out for lunch during the entire
month of July (R. Exhs. 21(b)–21(f)); the entire week ending
June 30 (R. Exh. 21(f)); 3 days during the week ending May
5 (R. Exh. 21(n)); and 1 day during the week ending January
27 (R. Exh. 21(aa)). Bartosh did not punch out for lunch 1
day during the week ending April 14 (R. Exh. 22(p)); 1 day
during the week ending March 31 (R. Exh. 22(r)); 1 day dur-
ing the week ending March 24 (R. Exh. 22(s)); 1 day during
week ending March 10 (R. Exh. 22(u)); 1 day during the
week ending March 3 (R. Exh. 22(u)); 2 days during the
week ending February 24 (R. Exh. 22(w)); 1 day during the
week ending February 17 (R. Exh. 22(x)); 1 day during the
week ending February 10 (R. Exh. 22(y)); 1 day during the
week ending February 3 (R. Exh. 22(z)); 1 day during the
week ending January 27 (R. Exh. 22 (aa)); 1 day during the
week ending January 13 (R. Exh. 22(cc)); 2 days during the
1486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Cavaco elsewhere claimed, apparently with reference to Bartosh’s
1988 job application forms (fn. 4, supra), that ‘‘falsification of the
information on an employee’s application [is] formal grounds for im-
mediate termination.’’ He later added, apparently referring to testi-
mony by foreman Ron Stiling (fn. 10, infra), the ‘‘use of abusive
or intimidating language to other employees [is also] grounds for im-
mediate discharge.’’
9 Plant Human Resources Manager Thomas Sweeney denied, inter
alia, asking Mariano ‘‘whether there was any organizing going on,’’
although he admitted that he had exchanged greetings with Mariano
on the particular occasion in the plant parking lot. Sweeney also de-
nied any ‘‘participation’’ in the ‘‘decision’’ to fire Mariano and
Bartosh .
10 Stiling, during his direct testimony, also claimed that, ‘‘while
waiting outside in the lobby . . . to be called as a witness’’ in this
proceeding, he heard Bartosh say: ‘‘There is one of the fucking back
stabbers. That Company is going under in a year anyway.’’
11 As counsel noted at the hearing, Cavaco apparently did not rely
on this incident in determining to terminate Bartosh. See Tr. 829–
830.
12 This incident was also apparently not relied on by Cavaco in de-
ciding to terminate Bartosh. See fn. 11, supra.
week ending January 20 (R. Exh. 22(bb)); and 2 days during
the week ending January 6 (R. Exh. 22(dd)).8
On cross-examination, Cavaco acknowledged that he is not
ordinarily involved in the discharge of employees ‘‘on a day
to day basis’’—‘‘it depends on the circumstances.’’ He also
acknowledged that when he first spoke to Supervisor McGee
on August 1, McGee did not ‘‘tell him whether the employ-
ees were soliciting on their breaks or work time.’’ Neverthe-
less, ‘‘based solely on that conversation’’ with McGee he in-
formed Macrides the next morning, August 2, that ‘‘there
was a possibility . . . the no-solicitation rule was violated.’’
He claimed that he based this conclusion upon ‘‘common
sense’’ and did not ‘‘investigate that possibility at all at that
time.’’ Cavaco further acknowledged that at the meeting of
supervisors on August 2 ‘‘no one said that they were aware
of any unlawful solicitation’’; it was not until later when
Rollence followed by the others first spoke to him. Cavaco
also acknowledged that, with respect to the driver employees
assertedly involved in the above solicitations, ‘‘drivers don’t
clock in’’; they do not ‘‘get paid by the hour’’; they ‘‘nor-
mally’’ will take ‘‘breaks’’ on the road; ‘‘when they come
back they’re on relief’’; and they do not ‘‘need to get per-
mission to take a break when they are in the yard’’ at Flor-
ence. In addition, Cavaco admittedly would not ‘‘know’’
whether a supervisor or foreman ‘‘tells employees to take
extra breaks.’’
Cavaco further acknowledged on cross-examination that he
had observed from the timecards that Mariano ‘‘was not
punching out’’ long before the Union’s organizational effort.
He made no effort to ‘‘find out why’’ before ‘‘suspending’’
the employee. He also did not examine the timecards of
other mechanics ‘‘to see whether they were punching out
during that time.’’ And, although Cavaco denied knowledge
of any ‘‘exceptions’’ to the Employer’s no-solicitation, no-
distribution policy at Florence, he had heard about the collec-
tion held at the plant for a supervisor whose house had
burned down; he had made no effort to determine if that col-
lection was on worktime; and, had he discovered that such
a collection was in fact on worktime, ‘‘what he would have
done’’ is ‘‘a tough one to answer.’’ Cavaco admittedly re-
fused to ‘‘bring forward’’ the employees who had assertedly
identified Mariano and Bartosh as violating the no-solicita-
tion rule although requested to do so at the August 3 inter-
views; and he also did not then ‘‘mention their timecards’’
to Mariano and Bartosh.9
Ron Stiling is employed by Respondent as a foreman in
its Florence garage. Stiling claimed that on August 1, 1990,
he observed Bartosh and Mariano ‘‘in the garage area’’
‘‘near the break room’’ ‘‘talking to’’ employee Russ Atkin-
son. Stiling added that he was ‘‘in charge of the shift that
evening’’; Bartosh and Mariano ‘‘were around there in the
break room talking to employee Atkinson’’; Atkinson ‘‘was
on the clock and we had work to do’’; and, when Stiling
asked Atkinson ‘‘what was going on,’’ they ‘‘took the con-
versation outside’’ the break area. Later, Stiling ‘‘noticed a
Union application on’’ Atkinson’s tool box and ‘‘left it at
that.’’ Stiling insisted that Atkinson was not on ‘‘break’’ at
the time. Stiling further claimed that this conversation or
meeting took 15 to 20 minutes. In addition, Stiling asserted
at one point that he was aware of the Employer’s no-solicita-
tion, no-distribution policy because it had been ‘‘posted’’
‘‘on the employee bulletin board in the garage’’ and in the
‘‘lunchroom.’’ On cross-examination, Stiling acknowledged
that he first mentioned the above incident to ‘‘Company offi-
cials,’’ including the plant manager, ‘‘two days’’ after the in-
cident; he ‘‘waited’’ because he ‘‘didn’t think it was a seri-
ous issue’’; and, although he was ‘‘in charge of Atkinson’’
and had ‘‘some authority to tell Atkinson where to be at the
time,’’ he did not attempt to prevent Atkinson from con-
tinuing his conversation with Bartosh and Mariano. Stiling
then acknowledged:
Q. Did you know whether it violated any Company
policy?
A. No. I was not aware of it at the time . . . no,
I wasn’t aware of it.
Atkinson was never disciplined for this conduct.10
Darrell Cleaves, also a foreman at Florence, claimed that
on August 1 he met Bartosh while ‘‘going to lunch’’;
Cleaves ‘‘was going to lunch’’ and Bartosh ‘‘was coming
from out the other way’’; and Bartosh
came up to me and he said here’s a Union card; fill it
out; so I went to the time [clock and] punched out. . . .
Cleaves was some 15 feet from the timeclock at the time. He
later gave this card to his supervisor because he ‘‘didn’t want
to have anything to do with it.’’ Cleaves admittedly was also
not ‘‘aware of a Company policy regarding solicitation’’ at
that time.11
Jason Kerezsi, a mechanic in the Florence garage, recalled
that on July 31, Bartosh came to the garage to pick up a
forklift; that Bartosh then spoke to him about ‘‘joining the
Union’’; that he could not ‘‘remember any details of the con-
versation’’; that he was offered a union card; that Bartosh
‘‘drove off’’; that he was not on break; and that the incident
took ‘‘about ten minutes.’’12
1487CUMBERLAND FARMS
13 On cross-examination, Morris acknowledged that she had been
‘‘fired’’ by the Employer. She generally denied that her ‘‘termi-
nation’’ was because she had refused to perform a job assignment.
She had, however, filed a claim for unemployment compensation.
The State division of unemployment and disability insurance ruled
that her discharge was due to her refusal to perform assigned work
and denied her claim. See R. Exh. 1; Tr. 292–297.
14 Plant Human Resources Manager Thomas Sweeney testified that
he too was unaware of any solicitations at Florence in violation of
the Employer’s no-solicitation, no-distribution policy before August
l. He also attempted to show inconsistencies in the testimony of
Morris and other employee witnesses. See Tr. 835–837.
B. The Employer’s No-Solicitation, No-Distribution
Policy, and Evidence Pertaining to its Posting,
Enforcement, and Application
General Counsel’s Exhibit 2, dated April 23, 1990, states
the Employer’s no-solicitation, no-distribution policy, in per-
tinent part as follows:
[T]he Company wishes to remind all employees of the
existing policy regarding solicitations. The Company
understands that employees may wish at times to solicit
fellow employees with respect to certain charities,
boy/girl scouts and the like. This can only be done
within the framework of the Company’s policy which
is stated below. Infractions of the policy will cause the
initiation of disciplinary action to those employees in-
volved in any infraction.
5.3 Employees may not engage in solicitation for any
purpose of another employee during that employee’s
working time, or during their own working time, or in
any customer or selling area of the store.
5.4 Employees may not distribute literature to another
employee during that employee’s working time, or dur-
ing their own working time, or in any work area.
5.5 Violations of these policies will result in discipli-
nary action.
Stephanie Morris, employed by Respondent as a ‘‘special
picker’’ in the cooler section at the Employer’s Florence fa-
cility from late 1987 until her termination in May 1990, testi-
fied that the Employer had bulletin boards near the timeclock
and lunchroom; that she examined the bulletin board near the
timeclock frequently during her last few weeks of employ-
ment; and that she never saw a copy of General Counsel’s
Exhibit 2 posted on the bulletin board. She also denied being
told by the Employer ‘‘about any rules regarding solicitation
and/or distribution of literature.’’
Morris then related repeated attempts by supervisors and
employees to solicit her at work during 1989 and 1990. Pam
Griffin, her supervisor in the cooler section, repeatedly asked
her and her coworkers while working to purchase items like
Christmas bulbs and candy. These solicitations consumed on
occasion up to 10 or 15 minutes. Employee Steve Peaker at-
tempted to sell her and her coworkers while working raffle
tickets. These solicitations consumed on occasion up to 5
minutes. Employee Terri Pruden attempted to sell her and
her coworkers while working, including Supervisor Venu
Patell, plants, plant hangers, and related merchandise. Em-
ployee Pam Davis attempted to sell her and her coworkers
while working ‘‘all different kinds of stuff like different
food.’’ Employee Darryl Emery attempted to sell her and her
coworkers while working ‘‘something to do with his
church.’’ This transaction took about 5 minutes. Employee
George Conliff repeatedly attempted to sell her candy while
working and then engage in extended nonwork-related con-
versations. Supervisor Gene McGee, in charge of the cooler
section, solicited donations from her while working for a per-
son whose home had caught fire. This solicitation took about
15 minutes. Foreman Ron Hopkins solicited her for money
while working for an employee who had had a heart attack.
Morris noted that the Employer had no rules ‘‘prohib-
iting’’ employees from ‘‘speaking to other employees at
work’’ and it was ‘‘common to see people talk’’ ‘‘all day
long.’’ During the above-enumerated solicitations and con-
versations, supervisors were generally positioned in the
‘‘penthouse’’ overlooking the cooler ‘‘so they can see what’s
going on.’’ Morris was terminated by the Employer before
the onset of the Union’s organizational campaign.13
Employee Mariano also testified that he too had been simi-
larly solicited at work. Employee George Conliff attempted
to sell him candy in the maintenance area while working.
Employee Rick Willits attempted to sell him cookies in the
cooler while working. And, a supervisor identified as Free-
man solicited a donation from him while working in the bat-
tery charging area for another supervisor whose house had
‘‘burned down.’’ See also the testimony of employee Bartosh
relating the same and similar solicitations while working.
(See Tr. 435–438.)
The Employer’s vice president of human resources Foster
Macrides testified that General Councel’s Exhibit 2 is the
Employer’s no-solicitation, no-distribution policy; that he di-
rected that it be ‘‘posted’’ at all Company facilities about
April 23, 1990; that he also spoke to the plant supervisors
at the various facilities about this policy; and that General
Counsel’s Exhibit 2 was a ‘‘revision’’ of the prior policy.
According to Macrides, General Counsel’s Exhibit 2 was in-
tended to ‘‘clarify the policy’’ so that ‘‘employees would un-
derstand that there are certain solicitations within the no so-
licitation rule which are permitted.’’ Elsewhere, Macrides
testified that the Employer ‘‘will rarely permit solicitations to
occur.’’ The ‘‘prior posted’’ policy of the Employer was not
made available. In addition, Macrides denied, inter alia, any
knowledge of the various solicitations at the Florence facility
as detailed above. And, as stated, Macrides was unaware of
any other instances where the Employer had terminated or
disciplined an employee for violating this policy.14
George Beren, office manager at Florence, testified that
there are four bulletin boards at the Florence facility; one in
the security guard shack, one in the office area, one in the
cafeteria, and one in the garage area. Beren referred to Re-
spondent’s Exhibit 12, the multipage revised no-solicitation,
no-distribution policy of the Employer. He generally asserted
that this ‘‘policy’’ was ‘‘posted’’ on the ‘‘bulletin boards’’
during the pertinent time period and that he ‘‘posted it.’’ He
explained that he only ‘‘posted the one in the transportation
area’’ and ‘‘assisted in posting the one in the cafeteria.’’
When asked about ‘‘the bulletin board near the time clock,’’
as testified to above, he testified, inter alia, that he did not
‘‘know’’ about that; that in fact he ‘‘did post it above the
time clock’’; and that he ‘‘believe[s] there was’’ one posted
there. When asked: ‘‘It is your testimony that such notices
you have in front of you were posted above the time clock,’’
1488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Compare the testimony of Cavaco, Gleaves, and Stiling summa-
rized supra.
16 The literature included copies of the unfair labor practice charge
filed herein and union authorization cards.
17 Priest, on cross-examination, identified R. Exh. 2 as another
photograph taken by him, showing generally where he stood in the
spot designated ‘‘y’’ on G.C. Exh. 4. Priest was then some 20 to
25 feet away from the individual shown in R. Exh. 2. Counsel for
Respondent, when asked to explain the Employer’s position with re-
spect to this alleged violation, stated at the hearing that Priest ‘‘may
have been on private property’’—‘‘it’s not clear to me at this
point.’’ See Tr. 98–99. Cf. G.C. Exh. 16, fn. 18, discussed below.
18 I note that ‘‘Hank’’ the ‘‘supervisor’’ never testified. Further,
counsel for Respondent, in his pretrial letter to the counsel for Gen-
eral Counsel (G.C. Exh. 16), stated, inter alia:
While Gordon was standing in front of the guard shack wait-
ing for the police to arrive, one of the Union representatives
came up to him (on Company property) and took his picture.
Gordon informed him that he was on Company property and
asked him to leave.
See also the testimony of Plant Human Resources Manager Thom-
as Sweeney. Tr. 840–842.
he responded: ‘‘No. I couldn’t say for sure.’’ When asked if
he had any ‘‘personal knowledge prior to August 3’’ of any-
body violating the no-solicitation, no-distribution policy, he
responded: ‘‘To my knowledge no, not really.’’ He later re-
called being solicited for a contribution for a supervisor
whose house had burned down.15
C. The Events Attending the Union’s Handbilling on
August 16, 1990
Roland Priest, the Union’s director of organizing, testified
that on August 16, 1990, he accompanied employees
Bartosh, Mariano and others to the Employer’s Florence fa-
cility in an attempt to distribute union literature at or near
the entrance to the plant.16 There is one main entrance to the
Employer’s Florence plant at the end of Cumberland Boule-
vard, a public road. (See G.C. Exh. 4.) Cumberland Boule-
vard runs from U.S. Route 130, a four-lane interstate high-
way, a distance of some 200 to 400 feet to the entrance of
the Employer’s plant.
Priest and his group arrived about 10 a.m. and parked their
vehicles in the parking lot adjoining a vacant building off
Cumberland Boulevard. Priest immediately notified the local
police that his group would be bandbilling ‘‘25 or 30 feet
off of Route 130.’’ Priest then ‘‘started toward the guard
area’’ of the Employer’s premises although the ‘‘rest of the
people [in his group] just scattered on Cumberland Boule-
vard,’’ ‘‘standing close to the curb passing out literature,’’
and remained further distant from the entrance to the Em-
ployer’s premises. Priest took photographs as he moved ‘‘to-
ward the guard area.’’ (See, for example, G.C. Exhs. 5(a)
and 5(b).) Priest recalled that he was some 20 to 30 feet
from the the Employer’s ‘‘security building’’ when he took
the above pictures and some 35 feet from a ‘‘no soliciting
sign’’ attached to a fence, as depicted on General Counsel’s
Exhibit 5(b).
Priest next recalled:
I was standing . . . where I marked the ‘‘x’’ [on G.C.
Exh. 4] and an elderly gentlemen dressed in a security
uniform and another gentleman with a tie and shirt
[were] walking toward me talking. . . . At that time I
couldn’t hear them, so I started toward them [and we
met] in the middle of the street [as depicted by the ‘‘y’’
on G.C. Exh. 4]. . . . The elderly guard told me that
I was on Cumberland Farms property and if I didn’t re-
move myself . . . he would have us arrested.
The ‘‘guard’’ did not ‘‘indicate where the property line start-
ed.’’ The local police arrived shortly thereafter, but made
clear that Priest and his group were ‘‘not doing anything
wrong’’ and ‘‘drove away.’’ Priest then returned to the spot
designated ‘‘x’’ on General Counsel’s Exhibit 4, and re-
sumed handbilling and distribution activities for the remain-
der of the day.17
Employee Mariano testified that he was present during the
August 16 handbilling along Cumberland Boulevard, and that
I [Mariano] happened to look down toward the guard
shack and Priest was standing there with two individ-
uals. I recognized one as old Hank, he’s the supervisor
of security for the guards of the Florence plant.
Mariano placed Priest some 10 to 15 feet ‘‘from the property
line,’’ the fence and guard shack, of the Employer. Mariano,
however, did not hear the conversation between Priest and
the security personnel.
Arthur Gordon, admittedly an agent of Respondent Em-
ployer, was in charge of ‘‘security operations’’ at the Flor-
ence plant prior to his retirement in late 1990. He recalled
that on August 16 he observed ‘‘individuals in the middle of
Cumberland Boulevard stopping traffic and passing out leaf-
lets.’’ He claimed that he was concerned that ‘‘one of these
people could be injured by our vehicles’’ and therefore tele-
phoned the police. He then ‘‘went outside to meet them’’
standing ‘‘a little right next’’ to the guard shack. One of the
‘‘people’’ from the Union ‘‘came down towards’’ Gordon,
and
in [Gordon’s] understanding, [that person] was either on
our property line or very close to our property line.
Elsewhere, Gordon claimed that the ‘‘person’’ was in fact on
the Employer’s property line even though the ‘‘person’’ was
‘‘not past the entrance fence.’’ Elsewhere, Gordon claimed
that he told this person: ‘‘if he crossed onto our property
. . . I would have him arrested.’’ Gordon assertedly did not
ask the police to arrest this ‘‘person.’’
On cross-examination, Gordon acknowledged that the Em-
ployer’s property line is not ‘‘marked in any way as being
the property line’’; that the Union ‘‘person’’ was ‘‘standing’’
at the time at a point ‘‘where the Company ordinarily stops
visitors’’; that he did not say to the Union ‘‘person’’ ‘‘you
are on Company property’’; that he did not tell the Union
‘‘person’’ ‘‘where the property line is’’; and that, ‘‘if he was
on Company property it was only by a foot or so.’’ Gordon
insisted that he was alone at the time wearing civilian clothes
and a ‘‘supervisor’’ named ‘‘Hank’’ ‘‘remained in the guard
shack.’’ Gordon acknowledged that he never went to the
union ‘‘people’’ and attempted to ‘‘explain to them’’ his
concern that they might be ‘‘knocked down by a truck’’.18
I credit the testimony of Mariano, Bartosh, Morris, and
Priest as detailed supra. Their testimony, as demonstrated
above, is in significant part mutually corroborative and
1489CUMBERLAND FARMS
uncontroverted. Their testimony also withstood the test of ex-
tensive cross-examination. And, on this full record, they im-
pressed me as trustworthy and reliable witnesses. On the
other hand, I do not credit the testimony of Cavaco,
Macrides, and Sweeney. The testimony of Cavaco, Macrides,
and Sweeney, as demonstrated above, was at times vague,
unclear, incomplete, contradictory, unsubstantiated, and shift-
ing. They did not impress me as credible and trustworthy
witnesses.
Thus, for example, Mariano and Bartosh testified at length
about their organizational activities and Messner’s repeated
interrogation of the two employees as well as related con-
duct. They also detailed Messner’s indicia of supervisory sta-
tus. Although counsel for Respondent was only disputing
Messner’s supervisory status ‘‘as to time’’ (Tr. 320),
Messner, still employed by the Company, was never called
as a witness to deny or explain the statements and conduct
attributed to or witnessed by him.
In addition, Mariano and Bartosh testified at length about
their final August 3 interviews with management. Their de-
tailed testimony was mutually corroborative as to the Em-
ployer’s treatment of these two union protagonists. The re-
sponsive testimony of Cavaco, Macrides, and Sweeney was
at time, vague, unclear, incomplete, contradictory, unsubstan-
tiated, and shifting. Sweeney, the Employer’s plant human
resources director, generally denied ‘‘participation’’ in the
‘‘decision’’ to fire Mariano and Bartosh. The other represent-
atives of management present during these interviews did not
testify. Sweeney also generally denied interrogating Mariano
earlier in the plant parking lot in the presence of Bartosh and
Messner, although he admitted having a conversation with
Mariano on the particular occasion. Messner, who was
present during this conversation in the parking lot, did not
testify.
Likewise, the testimony of Cavaco and Macrides does not
withstand close scrutiny in this and related respects. Cavaco
and Macrides asserted that Mariano and Bartosh were fired
because they had engaged in a ‘‘blatant’’ and ‘‘deliberate’’
violation of the Employer’s no-solicitation policy. Macrides
conducted no independent investigation of this alleged ‘‘bla-
tant’’ and ‘‘deliberate’’ violation. Cavaco’s asserted inves-
tigation was at best cursory and, as demonstrated above, is
essentially unsubstantiated in this record. In short, this record
does not support management’s assertion that Mariano and
Bartosh engaged in a ‘‘blatant’’ and ‘‘deliberate’’ violation
of the Enployer’s no-solicitation policy. In fact, the testi-
mony of Respondent’s witnesses shows that by and large
Mariano and Bartosh complied with the Union’s admonition
that they conduct their organizational activities in break areas
during breaktimes. And, the mutually corroborative testimony
of Mariano, Bartosh, and Morris carefully documents man-
agement’s repeated tolerances in the past of exceptions to its
no-solicitation, no-distribution policy.
Cavaco and Macrides elsewhere shifted to the failure of
Mariano and Bartosh to punch out for meal breaks in an at-
tempt to justify their terminations. However, the undisputed
evidence of record shows that the two employees, on many
occasions before their organizational efforts, had failed to
punch out without discipline. Cavaco did not even mention
to or fault the two employees for failing to punch out during
his final interviews with them. Cavaco elsewhere shifted to
the unsubstantiated claim that Bartosh was ‘‘lying’’ in order
to justify his summary firing of Bartosh on August 3 while
then only suspending coworker Mariano. The record does not
support this assertion and Bartosh admittedly was not fired
for ‘‘lying.’’ Cavaco elsewhere shifted to the claim that
Bartosh had ‘‘falsified’’ years earlier his job applications and
had used ‘‘abusive and intimidating language’’ in order to
justify the discharge and denial of reinstatement of this em-
ployee. I do not credit these assertions. And, in like vein,
counsel for Respondent now belatedly attempts to justify
Mariano’s firing and denial of reinstatement by citing two
1987 disciplinary actions given to Mariano long before man-
agement had elevated the employee to maintenance me-
chanic. It is undisputed that Mariano was being considered
for a pay raise shortly before the organizational effort in-
volved here.
On this record, I reject as incredible and pretextual the es-
sentially unsubstantiated and shifting claims advanced by the
Employer to justify the firing and denial of reinstatement of
Mariano and Bartosh and, as discussed below, find instead
that the weaknesses of these shifting assertions only serve to
bolster further the inference that management in fact fired the
two employees because of their protected union activities.
The testimony of Gordon concerning the Union’s subse-
quent handbilling at the entrance to the Employer’s facility
is similarly incredible. Priest testified at length with photo-
graphs explaining his conduct that day. His testimony was
also substantiated in part by Mariano. On the other hand,
Gordon’s testimony, as demonstrated above, was confusing,
unclear, vague, contradictory, evasive, and unsubstantiated.
In addition, the testimony of Foreman Stiling summarized
above was at times unclear, confusing, and contradictory.
Foreman Stiling claimed that he observed and tolerated
Bartosh and Mariano extend a break area discussion about
the Union with garage employee Atkinson for some 15 to 20
minutes. Stiling asserted at one point that he was aware of
the Employer’s no-solicitation, no-distribution policy because
it had been ‘‘posted’’ ‘‘on the employee bulletin board in the
garage’’ and in the ‘‘lunchroom.’’ Elsewhere, Stiling ac-
knowledged that he first mentioned the above incident to
‘‘Company officials,’’ including the plant manager, ‘‘two
days’’ after the incident; he ‘‘waited’’ because he ‘‘didn’t
think it was a serious issue’’; and, although he as foreman
was ‘‘in charge of Atkinson’’ and had ‘‘some authority to
tell Atkinson where to be at the time,’’ he did not attempt
to prevent Atkinson from continuing his conversation with
Bartosh and Mariano. Stiling elsewhere acknowledged:
Q. Did you know whether it violated any Company
policy?
A. No. I was not aware of it at the time . . . no,
I wasn’t aware of it.
Atkinson, as noted, was never disciplined for this conduct
and did not testify. And, further, Stiling, in his testimony,
also attributed to Bartosh a vulgar statement overheard in the
lobby while waiting to testify here, now cited by manage-
ment in an effort to block reinstatement of Bartosh. On this
record, I do not not find the testimony of Stiling to be trust-
worthy or reliable.
Likewise, I find the testimony of Office Manager Beren
pertaining to the posting by the Employer of its no-solicita-
tion, no-distribution policy unclear and confusing. As noted,
1490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Foreman Cleaves, as noted, testified that he met Bartosh while
‘‘going to lunch’’ one day; Cleaves ‘‘was going to lunch’’ and
Bartosh ‘‘was coming from out the other way’’; and Bartosh ‘‘came
up to me and be said here’s a Union card; fill it out; so I went to
the time [clock and] punched out.’’ Cleaves was some 15 feet from
the timeclock at the time. He later gave this card to his supervisor
because he ‘‘didn’t want to have anything to do with it.’’ Cleaves
admittedly was not ‘‘aware of a Company policy regarding solicita-
tion’’ at that time. Cavaco concededly did not rely on this incident
in deciding to fire Bartosh. As for Kerezsi’s related testimony per-
taining to another Bartosh solicitation, Kerezsi could not ‘‘remember
any details of the conversation,’’ and apparently Cavaco did not rely
upon this incident in deciding to terminate Bartosh. To the extent
the testimony of Gleaves and Kerezsi contradicts the testimony of
Bartosh and Mariano, I credit the latter as more complete and reli-
able.
when asked about ‘‘the bulletin board near the time clock,’’
he testified, inter alia, that he did not ‘‘know’’ about that;
that in fact he ‘‘did post it above the time clock’’; and that
he ‘‘believe[s] there was’’ one posted there. When asked: ‘‘It
is your testimony that such notices you have in front of you
were posted above the time clock,’’ he responded: ‘‘No. I
couldn’t say for sure.’’ When asked if he had any ‘‘personal
knowledge prior to August 3’’ of anybody violating the no-
solicitation, no-distribution policy, he responded: ‘‘To my
knowledge no, not really.’’ He later recalled being solicited
for a contribution for a supervisor whose house had burned
down.19
Discussion
Section 7 of the National Labor Relations Act guarantees
employees ‘‘the right to self-organization, to form, join or
assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection,’’ as well as ‘‘the right to
refrain from any or all such activities.’’ Section 8(a)(1) of
the Act makes it an unfair labor practice ‘‘to interfere with,
restrain or coerce employees in the exercise of the rights
guaranteed in Section 7.’’ Section 8(a)(3) forbids ‘‘discrimi-
nation in regard to hire or tenure of employment or any term
or condition of employment to encourage or discourage
membership in any labor organization.’’
The credited evidence of record shows and I find and con-
clude that Respondent Employer, in opposing the Union’s at-
tempt to organize and represent its employees at Florence,
New Jersey, violated Section 8(a)(1) of the Act by coercively
interrogating employees about employee union sympathies
and activities, and by threatening to have a union agent ar-
rested while he was engaged in handbilling near the entrance
to the Employer’s Florence facility. The credited evidence of
record also shows and I find and conclude that Respondent
Employer violated Section 8(a)(1) and (3) of the Act by
discriminatorily discharging employees John Mariano and
John Bartosh because they were active on behalf of and sup-
ported the Union.
Respondent Employer had for some time prior to the
Union’s 1990 organizational drive a no-solicitation, no-dis-
tribution policy at its Florence plant. The credited evidence
of record makes it clear that employees and supervisors vio-
lated this policy without any disciplinary action being taken
by the Employer. Thus, employees repeatedly solicited their
coworkers at Florence during worktime and in work areas to
purchase ‘‘Christmas bulbs and candy’’; ‘‘raffle tickets’’;
‘‘plants and related merchandise’’; ‘‘cookies’’; ‘‘different
food’’; and ‘‘church’’ products; and to make various ‘‘dona-
tions.’’ These repeated solicitations consumed up to a quarter
of an hour and were made within plain view of and on occa-
sion with the participation of supervisory personnel. Cavaco
and Macrides were unaware of any employees previously
disciplined for violations of the Employer’s no-solicitation,
no-distribution policy. And, although Cavaco and Macrides
denied knowledge of any ‘‘exceptions’’ to the Employer’s
no-solicitation, no-distribution policy at Florence, Cavaco
had heard about the collection held at the plant for a super-
visor whose house had burned down; he had made no effort
to determine if that collection was on worktime; and, had he
discovered that such a collection was in fact on worktime,
‘‘what he would have done’’ is ‘‘a tough one to answer.’’
Moreover, although the Employer also has a ‘‘policy’’
against ‘‘sexual harassment,’’ a recent complaint by a female
employee against a male employee for a ‘‘very serious’’ vio-
lation of this ‘‘policy’’ resulted only in a ‘‘written warning.’’
Significantly, the Employer also had in operation at the time
a ‘‘progressive discipline’’ policy. (See G.C. Exh. 3.)
In addition, the Employer also had a ‘‘lunch and rest
breaks’’ policy, requiring employees, inter alia, to ‘‘punch
out and in’’ during lunch. The credited evidence of record
makes it clear that employees frequently did not comply with
this policy without any disciplinary action taken by manage-
ment. Cavaco even acknowledged on cross-examination that
he had observed from the timecards that Mariano ‘‘was not
punching out’’ long before the Union’s organizational effort.
He made no effort to ‘‘find out why’’ before ‘‘suspending’’
and then ‘‘firing’’ the employee. He also did not examine the
timecards of other mechanics ‘‘to see whether they were
punching out during that time.’’ And, as noted, undisputed
evidence summarized above documents how extensive the
breach of this policy was.
Employee Mariano was hired by the Employer in early
1987. He worked his way up over the years into the trained
position of mechanic. His 1987 disciplinary actions were of
no consequence to the Employer and, in fact, he was, prior
to the events in issue here, being considered for a pay raise.
Employee Bartosh was hired in 1988. He too worked his
way up into the trained position of mechanic. Management
was not concerned with the failure of these employees to
‘‘punch out and in’’ during lunch. Management did not find
it necessary to conduct an investigation to ascertain whether
or not there were any variations in the 1987 or 1988 job ap-
plications of these two employees.
However, lightning suddenly struck when Mariano and
Bartosh raised the Union’s organizational flag at the Florence
plant during the summer of 1990. Supervisor Messner repeat-
edly questioned the two employees during their 1 week of
organizational activities. Messner wanted to know: ‘‘have
you got a lot of cards signed’’; ‘‘how’s the guys respond-
ing’’; ‘‘how’s the support going for the Union’’; ‘‘have you
got the Indians to sign up’’; ‘‘did you get the truckers to sign
up’’; ‘‘did you get the garage people to sign up’’; ‘‘what’s
the percentages.’’ Mariano told Messner that since he could
not sign a card as a ‘‘supervisor,’’ ‘‘I don’t think this is any
of your business.’’ Human Resources Director Sweeney simi-
larly interrogated the employees: ‘‘anything new I should
1491CUMBERLAND FARMS
know about around here like the Union?’’ When Mariano
said ‘‘no,’’ Sweeney commented, ‘‘[O]h, John,’’ and left the
area. Shortly thereafter, management distributed to its Flor-
ence employees a letter stating its strong opposition to the
Union’s organizational drive. And, on the same day, manage-
ment called in Mariano and Bartosh to the ‘‘office’’ and
summarily suspended and fired them.
Mariano credibly recalled that Cavaco, manager of the
Employer’s four dairy plants, conducted his final interview,
as follows:
John, I’ve got some complaints that you’re distributing
Union authorization cards around here. . . . Do you
have anything to say for yourself? I said, Mr. Cavaco,
I have a half hour lunch and two 15 minute breaks. He
said, John, as many complaints as I’ve gotten that
you’re passing out cards in areas of the plant, you have
to be doing it more than your 15 minute breaks and
half hour lunch. . . . After that, he said, do you know
we have a solicitation policy around here? I said, what
is it, Mr. Cavaco, termination? He said, in some in-
stances. I said, in that case, Mr. Cavaco, I’d like you
to produce the witnesses, the people that said I’ve been
passing out union authorization cards. At that point, Mr.
Sweeney interjected and said, we don’t have to show
you anything. Again, Mr. Cavaco spoke and said, John,
do you have anything to say to redeem yourself? I said,
no, I have nothing to say at this time. . . . Mr. Cavaco
spoke again and he said, John, we took you out of the
cooler, we put you in with maintenance to learn some-
thing, and this is how you repay us. Do you have any-
thing to say for yourself? said, no, Mr. Cavaco. He
said, John, we’re suspending you indefinitely.
Mariano was then told that he ‘‘wasn’t allowed to go back
to [his] locker’’ and ‘‘was escorted off the property.’’ A
week earlier, Mariano had discussed a salary increase with
plant manager Wood, and Wood had then said, ‘‘he would
see what he could do for me.’’ Wood, as he escorted
Mariano out of the plant on August 3, said to Mariano,
John, didn’t we just speak about a week before about
this [the salary increase], and then you pull something
like this, do you have anything to say? I said, no.
Mariano was suspended without pay. Wood later wrote
Mariano formally apprising the employee that he was ‘‘ter-
minated.’’
Management’s treatment of Bartosh that same day closely
parallels its treatment of Mariano. Bartosh credibly recalled:
[Cavaco] says, John we’ve been hearing that you’ve
been soliciting on Company grounds, and I denied it
. . . and then he goes, do you know what the penalty
is for solicitation, and I said no, and he pulled out a
three ring binder and he showed me the solicitation
policies [G.C. Exh. 2] . . . . I looked at them for a
minute, and he says, we’ve had a lot of complaints that
you’ve been soliciting, you’ve bother[ed] people on
their lunch times . . . in the passageway to the cafe-
teria. He said, what do you say, and I said, they’re
wrong. He says, well are you telling me all these peo-
ple are liar[s]. I said, just about . . . and I said, well
it’s obvious then if I was soliciting and you’ve got all
these numerous complaints you can go ahead and show
me some evidence you’ve got against me, and he said,
we don’t have to show you anything. . . . [Cavaco]
told me . . . how they sent me to school, how they
transferred me to maintenance and how I owed them,
and I turned around and slapped them in the face like
this, and he said, he had no choice but to let me go,
. . . and, I aint sure if it was Sweeney or [Cavaco],
said, don’t try to take any action against us because if
you do [we’ll] only prove you were guilty.
Management ‘‘escorted’’ Bartosh out. Bartosh, following his
discharge, asked Plant Manager Wood if he ‘‘could get
something in writing’’ stating the ‘‘reason’’ for his dis-
charge, and Wood then responded: ‘‘You know you were
fired for soliciting on Company property,’’ and ‘‘that was the
end of that.’’
As recited supra, Cavaco and Macrides asserted that
Mariano and Bartosh were fired because they had engaged
in a ‘‘blatant’’ and ‘‘deliberate’’ violation of the Employer’s
no-solicitation policy. Macrides conducted no independent in-
vestigation of this alleged ‘‘blatant’’ and ‘‘deliberate’’ viola-
tion. Cavaco’s asserted investigation was at best cursory and,
as demonstrated above, is essen tially unsubstantiated in this
record. In short, this record does not support management’s
assertion that Mariano and Bartosh engaged in a ‘‘blatant’’
and ‘‘deliberate’’ violation of the Employer’s no-solicitation
policy. In fact, the testimony of Respondent’s witnesses
shows that by and large Mariano and Bartosh complied with
the Union’s admonition that they conduct their organizational
activities in break areas during break times. And, the mutu-
ally corroborative testimony of Mariano, Bartosh, and Morris
carefully documents management’s repeated tolerances in the
past of exceptions to its no-solicitation, no-distribution pol-
icy.
Cavaco and Macrides shifted to the failure of Mariano and
Bartosh to punch out for mealbreaks in an attempt to justify
their terminations. However, the undisputed evidence of
record shows that the two employees, on many occasions be-
fore their organizational efforts, had failed to punch out with-
out discipline. Cavaco did not even mention to or fault the
two employees for failing to punch out during his final inter-
view with them. Cavaco shifted to the unsubstantiated claim
that Bartosh was ‘‘lying’’ in order to justify his summary fir-
ing of Bartosh on August 3 while then only suspending co-
worker Mariano. The record does not support this assertion
and Bartosh admittedly was not fired for ‘‘lying.’’ Cavaco
shifted to the claim that Bartosh had ‘‘falsified’’ years earlier
his job applications and had used ‘‘abusive and intimidating
language’’ in order to justify the discharge and denial of re-
instatement of this employee. I do not credit these assertions.
I find on this record that management would not have fired
Bartosh for the cited variations in job applications filed years
earlier or for the alleged crude language cited by Foreman
Stiling. Counsel for Respondent now belatedly attempts to
justify Mariano’s firing and denial of reinstatement by citing
two 1987 disciplinary actions given to Mariano long before
management had elevated the employee to maintenance me-
chanic. Mariano was being considered for a pay raise shortly
before the Union’s organizational effort involved here and
management apparently did not even consider the employ-
1492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment records of these two employees before terminating
them.
I find and conclude here that Respondent Employer fired
employees Mariano and Bartosh because they alone were at-
tempting to organize their coworkers at Florence, in an effort
to discourage further employee support of the Union, and
thus in violation of Section 8(a)(1) and (3) of the Act. I re-
ject as incredible and pretextual the essentially unsubstan-
tiated and shifting claims advanced by the Employer to jus-
tify the firing and denial of reinstatement of Mariano and
Bartosh and find instead that the weaknesses of these shifting
assertions only serve to bolster further the inference that
management in fact fired the two employees because of their
protected union activities. I similarly reject the Employer’s
related assertion that it would have fired these two employ-
ees for nondiscriminatory reasons as contrary to the credited
evidence of record. Moreover, I find and conclude that the
repeated efforts by Supervisor Messner and Human Re-
sources Director Sweeney to pry into employee protected
union activities constitute on this record proscribed coercive
interrogation, in violation of Section 8(a)(1) of the Act.
Counsel for Respondent Employer argues that Messner
was not a ‘‘supervisor’’ as alleged. A ‘‘supervisor’’ is de-
fined in Section 2(11) of the Act as
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 em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively recommend such action, if in
connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
Actual existence of true supervisory power is to be distin-
guished from abstract, theoretical, or rule book authority. It
is well established that a rank-and-file employee cannot be
transformed into a supervisor merely by investing him or her
with a ‘‘title and theoretical power to perform one or more
of the enumerated functions.’’ Southern Bleachery & Print
Works, 257 F.2d 235, 239 (4th Cir. 1958), cert. denied 359
U.S. 911 (1959). What is relevant is the actual authority pos-
sessed and not the conclusory assertions of witnesses. And
while the enumerated powers listed in Section 2(11) of the
Act are to be read in the disjunctive, Section 2(11) also
‘‘states the requirement of independence of judgment in the
conjunctive with what goes before.’’ Poultry Enterprises v.
NLRB, 216 F.2d 798, 802 (5th Cir. 1954). Thus, the indi-
vidual must consistently display true independent judgment
in performing one or more of the enumerated functions in
Section 2(11) of the Act. The performance of some super-
visory tasks in a merely ‘‘routine,’’ ‘‘clerical,’’ ‘‘perfunc-
tory,’’ or ‘‘sporadic’’ manner does not elevate a rank-and-file
employee into the supervisory ranks. NLRB v. Security
Guard Service, 384 F.2d 143, 146–149 (5th Cir. 1967). Nor
will the existence of independent judgment alone suffice; for
‘‘the decisive question is whether [the individual involved]
has been found to possess authority to use [his or her] inde-
pendent judgment with respect to the exercise [by him or
her] of some one or more of the specific authorities listed
in Section 2(11) of the Act.’’ See NLRB v. Brown & Sharpe
Mfg. Co., 169 F.2d 331, 334 (1st Cir. 1948).
Applying these principles of law to the credited evidence
of record, I find and conclude that Messner was a ‘‘super-
visor’’ as alleged. He exercised independent judgment in as-
signing various jobs to the four or five mechanics on the
night shift; he determined when they took breaks; he ap-
proved their overtime; he allowed them to leave work early;
he initialed their timecards; he had the authority to rec-
ommend disciplinary action; he was apparently the only per-
son in charge of the night-shift mechanics during all or most
of their shift; he, unlike the rank-and-file night-shift mechan-
ics, did not work with tools during most of the shift; and he
was held out by management as the ‘‘supervisor’’ on the
night shift. Counsel for Respondent only disputed Messner’s
supervisory status ‘‘as to time.’’ Messner never testified and
no attempt was made to explain what ‘‘time’’ he was a ‘‘su-
pervisor.’’ Under all the circumstances, I find that Messner
had the authority to effectively recommend the discipline of
employees; he could responsibly assign work to and direct
other employees; and the exercise of such authority by him
was not merely of a clerical, sporadic, or routine nature but
required the use of his independent judgment.
Finally, I find and conclude that Respondent Employer
also violated Section 8(a)(1) of the Act when it threatened
Union Representative Priest with arrest while he was en-
gaged in handbilling in a public place near the entrance to
the Employer’s Florence plant. Cf. Gainseville Mfg. Co., 271
NLRB 1186 (1984). As recited above, Priest was standing at
the time some distance from what appeared to be the Em-
ployer’s fence and property line the Employer made no at-
tempt to explain to Priest where it believed its property line
was located; the Employer instead told Priest that he was on
the Employer’s property and would be arrested ‘‘if [he]
didn’t remove [himself]’’; the police were summoned but
made no arrest; and no effort was made at this hearing to
demonstrate reliably where in fact the Employer’s property
line ended. The credited evidence shows that Priest stood
upon what appeared to be and was regarded as the public
land and engaged in protected activity; was then threatened
with arrest by an agent of Respondent: and no credible dem-
onstration to the contrary has been made here. I am per-
suaded that the Employer’s conduct in this instance was part
and parcel of its effort to chill protected Section 7 activities
at its Florence plant.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce as al-
leged, and Charging Party Union is a labor organization as
alleged.
2. Respondent Employer violated Section 8(a)(1) of the
Act by coercively interrogating employees about employee
union sympathies and activities, and by threatening to have
a union agent arrested while he was engaged in handbilling
near the entrance to the Employer’s Florence facility.
3. Respondent Employer violated Section 8(a)(1) and (3)
of the Act by discriminatorily discharging employees John
Mariano and John Bartosh because they were active on be-
half of and supported the Union.
4. The unfair labor practices found above affect commerce
as alleged.
1493CUMBERLAND FARMS
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
21 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employer will be directed to cease and desist from
engaging in such conduct and like or related conduct and to
post the attached notice. Respondent Employer has been
found to have violated Section 8(a)(3) of the Act by
discriminatorily discharging employees Mariano and Bartosh.
Respondent Employer will therefore be directed to offer em-
ployees Mariano and Bartosh immediate and full reinstate-
ment to their former jobs or in the event their former jobs
no longer exist to substantially equivalent jobs without preju-
dice to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may have
suffered by reason of their unlawful firings by making pay-
ment to them of a sum of money equal to that which they
normally would have earned from the date of Respondent’s
discrimination to the date of its offer of reinstatement, less
net earnings during such period, with backpay to be com-
puted as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), and interest as provided in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). See generally Isis Plumbing
Co., 138 NLRB 716 (1962). Further, Respondent Employer
will be directed to preserve and make available to the Board
or its agents on request all payroll records and reports and
all other records necessary to determine backpay under the
terms of this decision and Order. Respondent Employer will
also be directed to expunge from its files any reference to
the disciplinary action and firings of Mariano and Bartosh
found unlawful herein, in accordance with Sterling Sugars,
261 NLRB 472 (1982).20
ORDER
The Respondent, Cumberland Farms, Inc., Florence, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about employee
union sympathies and activities, and threatening to have a
union agent arrested while he was engaged in handbilling
near the entrance to the Employer’s Florence, New Jersey fa-
cility.
(b) Discriminatorily discharging employees because they
support the Union, United Food and Commercial Workers
Local 1360, AFL–CIO, or any other labor organization, or
because they engage in other protected concerted activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed to them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer employees Mariano and Bartosh immediate and
full rein statement to their former jobs or in the event their
former jobs no longer exist to substantially equivalent jobs
without prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of earnings they
may have suffered by reason of their unlawful firings, with
interest, as provided in this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination or copying all payroll records,
social security payment records, timecards, personnel records
and reports, as well as all other records necessary or useful
in analyzing and computing the amount of backpay, as pro-
vided in this decision.
(c) Remove from its files any reference to the disciplinary
actions and firings of employees Mariano and Bartosh, and
notify them in writing that this has been done and that evi-
dence of this unlawful disciplinary action will not be used
as a basis for future personnel action against them.
(d) Post at its Florence, New Jersey facility copies of the
attached notice marked ‘‘Appendix.’’21 Copies of said notice,
on forms provided by the Regional Director for Region 4,
after being duly signed by Respondent’s representative, shall
be posted by Respondent immediately upon receipt thereof in
conspicuous places, including all places where notices to em-
ployees are customarily posted, and be maintained for a pe-
riod of 60 consecutive days. Reasonable steps shall be taken
to ensure that notices are not altered, defaced or covered by
any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.