Full Line Distributors, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1977

233 N.L.R.B. 10 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Full Line Distributors, Inc. and Antonio Mella. Case
29-CA-5324
October 17, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On June 13, 1977, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Full Line Distributors, Inc., Brooklyn, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
Substitute the following for paragraph 2(a):
"(a) Offer to Antonio Mella immediate, full, and
unconditional reinstatement to his former position
or, if that position no longer exists, to a substantially
equivalent position, including utilization of Mella's
own truck on the former or substantially equivalent
terms and conditions to the extent permitted by law,
without prejudice to his seniority and other rights,
privileges, benefits, and emoluments, including but
not limited to pay and other raises and increased
truck rental scales in the interim; and make him
whole for any loss of pay and other monetary loss
(including overtime, holiday, vacation pay, insurance
benefits and reimbursements, if any, and also losses
of net income, if any, from payments for use of his
truck), as set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), together with interest, computed
as prescribed in Florida Steel Corporation, 231 NLRB
651 (1977). See, generally, Isis Plumbing & Heating
Co., 138 NLRB 716 (1962)."
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
233 NLRB No. 15
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
Preliminary Statement; Issue
STANLEY N. OHLBAUM, Administrative Law Judge: This
proceeding' under the National Labor Relations Act as
amended (29 U.S.C. § 151, et seq.), was heard before me in
Brooklyn, New York, on April 27-28, 1977, with all parties
participating throughout by counsel, who were afforded
full opportunity to present evidence and arguments and to
file posttrial briefs. Proposed findings and briefs were
received from Respondent on May 31, 1977. Record,
proposed findings, and briefs have been carefully consid-
ered.
The principal issue presented is whether Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
its employee Antonio Mella on November 1 and (after
reinstatement on November 9) again on November 19,
1976, and failing and refusing since the latter date to
reinstate him, because of his union membership and
exercise of rights protected under the Act.
Upon the entire record and my observation of the
testimonial demeanor of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
At all material times, Respondent, Full Line Distribu-
tors, Inc., has been and is a New York corporation engaged
in the business of wholesale sale and distribution to
hospitals, nursing homes, schools, and other institutions in
New York and New Jersey, of groceries and related
products at and from its warehouse and principal office at
1313 39th Street, Brooklyn, New York, where, in the
representative year immediately preceding issuance of the
complaint, Respondent sold and distributed over $50,000
worth of such products directly in interstate commerce to
persons in States other than New York.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act; and that at all of those
times Local 27, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein called Teamsters Local 27 or Union) has been and
is a labor organization as defined by Section 2(5) of the
Act.
11. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found2
Charging Party Antonio Mella entered Respondent's
employ around September 1974 as a truckdriver, continu-
ing there in that capacity with a satisfactory performance
record until his discharge 2 years later, immediately after
I Based on January 31, 1977, complaint growing out of November 22,
1976. charge of the above Charging Party.
2 Except to the extent here found, proposed findings are disallowed.
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FULL LINE DISTRIBUTORS
he joined the Union, under circumstances to be described.
It is conceded that Mella's job performance had been
unfaulted and satisfactory prior to his joining the Union,
and that no contention is raised that his work was
unsatisfactory.
Mella was Respondent's only truckdriver. 3 He utilized
his own truck, an 18-foot vehicle with a rated capacity of
18,000 pounds, which he was licensed ("Class 4" chauf-
feur's license) by New York State to operate. For the use of
his truck, which was storaged in Respondent's Brooklyn
warehouse, Respondent paid Mella $125 per week plus
gasoline and tolls, in addition to his $200 weekly salary.
Mella made pickups as well as deliveries in Brooklyn and
elsewhere in New York, and also in New Jersey. Mella has
been a truckdriver for 10 years, 7 of that with his own
truck.
In October 1976, Mella and his fellow worker, ware-
houseman Thomas, after discussing the desirability of
unionization, visited Teamsters Local 27 "looking to be
organized" and signed union membership cards. Thereaf-
ter, before the start of work on Monday morning,
November 1, Mella and Thomas, accompanied by Union
Business Agent Frank Garcia, waited outside of Respon-
dent's warehouse (where Mella's truck was stored) for its
principal and operating head, Joseph Segal, to arrive and
open the premises. When Segal arrived, Garcia told him he
represented the employees. After opening up, Segal
returned to the sidewalk and asked Mella and Thomas
whether Garcia represented them. When Mella and
Thomas replied that he did, Segal told them "You don't
work [here] no more" and "I don't want no Union here,"
and directed Mella to remove his truck from the ware-
house. After he complied with this direction, Mella
remained outside of the premises with Thomas and Garcia,
picketing there without signs. During that day, Segal called
Thomas inside and asked him, "What is wrong? Why did
[you] not come and tell [me]," and asked him what they
wanted a union for, at the same time offering Thomas a
$25 weekly raise to $175 while stating he would "get rid of
Mr. Tony Mella." Thomas replied he did not think that
was right and left to rejoin Mella and Garcia picketing
outside.4 Thomas (with Mella), on Garcia's advice, visited
the Board's Regional Office to file charges that day
(November 1). 5 On the next day, Tuesday, November 2,
the three returned and resumed picketing (still without
signs). When Garcia asked Segal to "sit down and talk,"
Segal's response was, "I have nothing to talk to you about."
I In addition to Mella, Respondent employed in its Brooklyn warehouse
one Katz, said to be the foreman there, warehouseman and truck helper
Rudolph Thomas, and part-time warehouse helper Salvatore Bussota.
Respondent's office worker, Reuben Rosenfeld, has been observed occa-
sionally assisting in the warehouse subsequent to the events about to be
described involving the discharge of Mella and Thomas.
4 Concerning this, Segal conceded that on the described occasion he did
indeed call Thomas into the warehouse and told him that he (Segal) was
unaware that Thomas "wasn't satisfied, and why didn't [youI come to me to
say that [you are] not satisfied"; that he (Segal) does not "think" he asked
Thomas to "forget the Union" or that he mentioned Mella; and that he
(Segal) does not "remember" whether he offered Thomas a pay increase.
Under these circumstances, I credit Thomas' better memory.
s These charges were later dropped in view of a "settlement" between the
parties, returning the employees to work with backpay and other promises
on November 8 or 9, as described below.
6 Segal denies he ever said this; to the contrary, he claims Mella's truck
On November 3, Mella and Thomas were handed identical
letters (G. C. Exhs. 2 and 3) informing them that if they did
not return to work by Friday, November 5, they would be
discharged and permanently replaced. Mella and Thomas
did not, however, return to work, but continued picketing.
On November 8 or 9, (Monday or Tuesday), Garcia was
invited into Segal's office by Respondent's counsel,
Konstam. There Segal, claiming that "business was bad,"
asked Garcia why the Union wanted to come in. After
calling the Board's Regional Office-with which contact
had already been made by the employees-and, being
advised that a settlement of the matter was in order,
agreement was reached reinstating the two employees with
backpay and a promised wage increase in January 1977,
and an assurance of no reprisals; with the understanding
that Garcia would be returning in about 3 or 4 months "to
see if the company was doing better," with a view toward a
union representation election at that time since Segal
claimed there were additional workers involved although
Garcia observed none. As a result of this "settlement,"
Mella and Thomas withdrew their pending charges before
the Board and were returned to work on November 9 or 10
(Tuesday or Wednesday).
When, as a result of this "settlement" and his withdrawal
of his charges at the Board, Mella returned to work on
November 9 or 10 (Tuesday or Wednesday), he observed
another truck there-a rental truck which Segal instructed
him to use for the remainder of that week. The truck was,
like Mella's, load-rated at 18,000 pounds. On Friday,
November 12, Segal informed Mella that from now on he
(Segal) wanted Mella to drive a rental truck rather than
Mella's own truck because it was "cheaper." 6 On the
following Monday (November 15), however, Mella was
sent out to drive a truck load-rated at 22,000 pounds-
heavier than Mella's chauffeur's license (Class 4) permitted
him to operate.? On the next day (Tuesday, November 16),
while again out with the same 22,000 pound load-rated
rental truck, Mella had a flat tire. When the repairman
arrived, Mella-who is Hispanic, not totally fluent in
English, and claims he did not know before this that the
truck was load-rated beyond his chauffeur's license
limitation-inquired of him what kind of license was
needed to operate this particular truck. When the repair-
man replied, "Class 3," and Mella thereupon asked him
what would happen if it was discovered that he had no
such license, the repairman responded that he would be
fined and lose his license. Upon his return to the
was "cheaper." If this is to be believed, it is difficult to understand why
Segal would not simply have reverted to the long-established previous
arrangement of using Mella's truck (with the possible avoidance of even
occasionally carrying loads exceeding 18,000 pounds; or, making more
trips; or, occasionally utilizing a heavier truck if ever essential-which has in
no way been established here). I credit Mella's testimony that at no time did
he (Mella) indicate he no longer wished to use his own truck, and I discredit
contrary testimony as incredible, since, among other things, it would be
incomprehensible why Mella would want to cut down his income
substantially by not utilizing his own truck.
Mella testified that he had occasionally transported loads for Respon-
dent which he estimates somewhat exceeded the 18,000-pound rated-load of
his own truck, without demur on anybody's part. However, he had
apparently at no time prior to November 15 operated or been required to
operate a truck load-rated in excess of the 18,000 pounds he was licensed to
operate under his Class 4 chauffeur's license.
II
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warehouse, Mella told this to Segal, who indicated to Mella
that he would thereafter rent trucks load-rated at 18,000
pounds as previously. Subsequently, however, Segal
claimed he was unable to arrange for the rental of any
truck load-rated at less than 20,000 pounds, which was still
beyond the limitation of Mella's chauffeur's license; and
Segal indicated he was terminating the employment of
Mella, with pay through the following week.8 On the
following Monday, November 22, Mella again visited the
Board's office, this time to file the charge resulting in the
complaint here for determination. 9
About 2 weeks after Mella's termination under the
circumstances described, Thomas was also terminated.
Neither Mella nor Thomas has been reinstated, reem-
ployed, or recalled by Respondent. Thomas' termination is
not in issue here.
B. Respondent's Contention
Conceding that, for the entire period of Mella's employ-
ment prior to his joining the Union, his work performance
was satisfactory and his truck was satisfactory, Respondent
contends that it learned or supposed for the first time after
Mella joined the Union that he had been occasionally
transporting loads somewhat in excess of the 18,000-pound
load-rated capacity of that truck and Mella's Class 4
chauffeur's license, and that it was because Mella refused
to obtain a chauffeur's license permitting him to operate
trucks in excess of 18,000-pound load-rated capacity that it
discharged Mella.
C. Resolution and Rationale
Upon the record as a whole, I am persuaded that the
reason advanced by Respondent for its second discharge of
Mella is farfetched, pretextuous, and unrelated to the basic
truth of the matter. I believe and find, rather, that the
"reason" advanced by Respondent for Mella's second
discharge was and is being utilized as a pretext to cover up
its real reason for ridding itself of a satisfactory worker
who became unacceptable only after he joined the Union
and sought to exercise rights guaranteed to him by
Congress under the Act.
Mella's testimony is unquestioned that at no time prior
to his joining the Union did Respondent raise any question
concerning his truck, his license, or his job performance,
nor that he was never required to drive a rental truck.
However, all this changed swiftly and dramatically as soon
as Respondent discovered Mella had joined the Union.
Mella, with Thomas, was thereupon summarily dis-
s I credit Mella's testimony that at this time Respondent did not offer to
keep Mella on the job if he obtained a license to operate a truck load-rated
at over 18,000 pounds. No reason has been suggested why Mella would have
declined to do so in order to keep his job; nor why the same offer would be
renewed to Mella in early December-as detailed below-if Mella had
already rejected it.
9 In December 1976, Mella met with Segal and his counsel at the Board's
Brooklyn Regional Office, where Segal offered to again reinstate Mella, on
condition that he obtain a chauffeur's license to drive 22,000-pound load-
rated trucks. This was seemingly predicated on no further use of Mella's
own truck. Although at no time prior to his second termination had
Respondent indicated to Mella that he could continue in its employ if he
obtained such a license, Mella nevertheless expressed willingness to do so,
provided that this time Segal's reinstatement agreement was reduced to
charged-"You don't work [here] no more . . . I don't
want no Union here." Although, on calmer reflection and
sounder counsel, Mella and Thomas were reinstated with
backpay and promises (which were never kept), their
reemployment was short-lived, since Respondent there-
upon hit upon the expedient of eliminating the continued
use of Mella's truck-a source of substantial income to
Mella-instead requiring him to operate an unnecessarily
heavy rental truck which Respondent knew Mella was not
licensed to drive, and thereupon summarily again discharg-
ing Mella, this time on the pretext that he was not licensed
to drive such a heavier truck, but without affording Mella
any opportunity before his discharge to obtain such a
license. It is, however, clear that Respondent could have
continued to utilize Mella's truck on the same terms as it
had for years before; or Respondent could have rented
another 18,000-pound load-rated truck; or to handle
occasional loads, if essential (but not here established),
exceeding 18,000 pounds, more trips, reroutings, different
load distributions, or other arrangements could have been
devised, utilizing Mella's truck or another 18,000-pound
load-rated truck; or Respondent could have, on such
occasional situations if any when essential, utilized a truck
load rated in excess of 18,000 pounds; or Respondent
could have given Mella a firm, fair, meaningful, and
reliable opportunity to obtain a Class 3 (i.e., over 18,000-
pound load) chauffeur's license, instead of discharging him
on that pretext.10 It is to be noted that the situation as
described occurred within the context of marked and
openly expressed, hostile intolerance by Respondent to
union membership by its employees.
Under these circumstances, Respondent's contention
that it discharged Mella because of his failure to obtain a
Class 3 chauffeur's license is unpersuasive, pretextual,
"fails to stand under scrutiny" (N.LR.B, v. Thomas W.
Dant, et al. co-partners d/b/a Dant & Russell, Ltd., 207 F.2d
165, 167 (C.A. 9, 1953)), and is rejected. To the contrary, I
find that its discharges of Mella on November I and 19,
were at least in controlling and determinative part the
result of his having joined the Union and attempting to
exercise his statutorily guaranteed rights under Section 7 of
the Act.
Upon the foregoing findings and the entire record, I state
the following:
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. Respondent's terminations of the employment of its
employee Antonio Mella on or about November I and 19,
writing. According to Mella, this request was refused (Segal testified only
that he was unable to "remember" such a request) and he has not heard
from Segal or his counsel since then.
lo Respondent failed to establish that it requires a truck heavier or other
than Mella's I 8,000-pound load-rated truck which it had been using for
years before Mella joined the Union. Respondent produced no evidence-
although presumably readily within its control-that the loads actually
hauled by Mella were regularly, substantially, significantly, or even other
than extremely occasionally, in excess of the lawful capacity of Mella's truck
or beyond the limitations of his chauffeur's license. Speculation to the
contrary is unjustified and could not properly form the predicate of a
finding of fact in this proceeding.
1a Proposed conclusions contrary to the following are disallowed.
12
FULL LINE DISTRIBUTORS
1976, as alleged in the complaint, were, under the
circumstances described and found, unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act.
3. Respondent's said unfair labor practices have affect-
ed, affect, and, unless permanently restrained and enjoined
and affirmatively remedied, will continue to affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER '2
The Respondent, Full Line Distributors, Inc., Brooklyn,
New York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Terminating the employment of, discharging, laying
off, suspending, or refusing to reinstate, rehire, or reem-
ploy, any employee, or eliminating any previously existing
economic arrangement for the lawful utilization of any
employee's truck in connection with the employee's
employment in Respondent's business, because of his
membership in, sympathy for, or lawful activity on behalf
of any labor organization, or because he exercises, asserts,
or seeks to exercise or assert, any right under the National
Labor Relations Act, as amended.
(b) Discouraging or encouraging membership in any
labor organization by discriminating in regard to hire or
tenure of employment or any term or condition of
employment, in violation of said Act.
(c) In any other manner interfering with, restraining, or
coercing any employee in the exercise of the right to self-
organization; to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of his
own choosing; to engage in concerted activities for the
purpose of collective-bargaining or other mutual aid or
protection; or to refrain from any or all such activities.
2. Take the following affirmative actions, necessary to
effectuate the policies of the Act:
(a) Offer to Antonio Mella immediate, full, and uncondi-
tional reinstatement to his former or substantially equiva-
lent position, including utilization of Mella's own truck on
the former or substantially equivalent terms and conditions
to the extent permitted by law, without prejudice to his
seniority and other rights, privileges, benefits, and emolu-
ments, including but not limited to pay and other raises
and increased truck rental scales in the interim; and make
him whole for any loss of pay and other monetary loss
(including overtime, holiday, vacation pay, insurance
benefits and reimbursements, if any, and also losses of net
income, if any, from payments for use of his truck),'3
together with interest, computed as explicated in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
(b) Forthwith expunge from the personnel, employment,
and all other records of Antonio Mella, all statements,
references, and entries that he was discharged from
Respondent's employment for any work-related fault,
deficiency, infraction, or reason; and refrain from so
writing, stating, or indicating to any employer, potential
employer, or reference seeker.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, wage scale records and notations, social
security records, timecards, personnel records and reports,
truck rental and use, shipping and delivery records,
charges, and payments, and all other records and entries
necessary or appropriate to determine the amount of
backpay and other sums and benefits due under and the
extent of compliance with the terms of this Order.
(d) Post at its premises in Brooklyn, New York, copies of
the attached notice marked "Appendix." 14 Copies of said
notice, on forms provided by the Board's Regional
Director for Region 29 shall, after being duly signed by
Respondent's authorized representative, be posted by
Respondent immediately upon receipt thereof and main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
12 In the event no exceptions are filed under Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and the following
recommended Order shall, under Sec. 102.48 of those Rules and Regula-
lions, be adopted by the Board and become its findings, conclusions, and
Order, and all objections thereto shall be deemed waived for all purposes.
13 It is unclear whether Mella was made whole in full or part for any loss
of pay between November I (the date of his initial unlawful discharge) and
November 8. 9, or 10 (the date of his reinstatement or return to work). The
Charging Party is not, of course, entitled to backpay for any period during
which he may have been engaged in an economic strike or withheld his
services notwithstanding a valid good-faith offer of reinstatement, or
because of persistence if any on his part to operate his truck in violation of
lawfully required maximum weightload requirements or contrary to his
chauffeur's license limitations. (It is not here suggested that he so insisted.)
These matters are for exploration in a backpay proceeding, should such
become necessary. No contention was raised herein that the Charging Party
was at any time engaged in an unfair labor practice strike.
14 In the event this Order is enforced by a Judgment of a United States
Court of Appeals. the words in the notice "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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an Administrative Law Judge, at
which all sides had the opportunity to present evidence and
arguments, it has been decided that we have violated the
National Labor Relations Act, and we have been ordered
to post this notice and to abide by the following:
WE WILL NOT, in violation of the Act, discharge,
terminate the employment of, lay off, suspend, or refuse
to reinstate, rehire or reemploy, or discriminate in
employment against any employee, or eliminate any
other economic arrangement (such as truck rental) we
13
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have with any employee, because of his membership in,
sympathy for, or lawful activity on behalf of, any
union, or because he exercises or seeks to exercise or
assert any right under the National Labor Relations
Act, as amended.
We WILL NOT violate any of our employees' rights
under the National Labor Relations Act.
WE WILL offer Antonio Mella immediate, full, and
unconditional reinstatement to his former or substan-
tially equivalent job, including our arrangement with
him for utilization of his truck to the extent permitted
by law, without prejudice to his seniority, and we will
pay him for any wages and other losses sustained by
him because of our discharges of him on November 1
and 19, 1976, plus interest.
WE WILL forthwith remove from our records all
indications that Antonio Mella was discharged by us
because of any fault on his part; and WE WILL make no
such statement to any employer, potential employer, or
reference seeker.
FULL LINE DISTRIBUTORS,
INC.
14