Hast, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1972

200 N.L.R.B. 655 (N.L.R.B. 1972)

BAST, INC 655
Hast, Inc and Teamsters Local Union No 443, a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
Case 1-CA-7893
November 30, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Products Inc 91 NLRB 544 enfd 188 F 2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
3 Having found , in agreement with the Administrative Law Judge, that
Respondent violated Sec 8(a)(5) and ( 1) of the Act by unilaterally
discontinuing its paid sick leave policy we shall order Respondent to
reinstate its former policy and to make its employees whole for any loss of
pay they may have suffered as a result of its discontinuance Such an order
is necessary to restore the employees to the status existing before
Respondents unlawful unilateral action See Steere Broadcasting Corpora
Lion 158 NLRB 487 488 fn 3 Newberry Equipment Company Inc 157
NLRB 1527 1528
APPENDIX
On August 10, 1972, Administrative Law Judge'
Samuel Ross issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision
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
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein 3
ORDER
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 herein, and hereby orders that the Respon-
dent, Hast, Inc, New Haven, Connecticut, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified
1 Add the following as paragraph 2(c) and
renumber paragraphs 2(c) through (e) as 2(d)
through (f), respectively
"(c) Reinstate the paid sick leave policy which was
discontinued on August 12, 1971, and make its
employees whole for any loss of pay they may have
suffered as a result of its discontinuance "
2 Substitute the attached notice for the Adminis-
trative Law Judge's notice
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed, insofar as it alleges unfair
labor practices not found herein
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19, 1972
2 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 were incorrect Standard Dry Wall
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice
and we intend to carry out the Order of the Board
The Act gives all employees these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection and
To refrain from any and all these things
WE WILL NOT do anything that interferes with
these rights More specifically,
WE WILL NOT discourage union activity or
membership in Teamsters Local Union No 443,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by
discriminating against you if you choose to
engage in union activity or join that union or any
other union
Since it was decided that we violated the Act by
terminating the employment of Earl Guadmo
because he engaged in union activities, WE WILL
offer him full reinstatement to his formerjob, and
WE WILL pay him for any loss he suffered because
we fired him
WE WILL NOT engage in conduct or make
statements that convey the impression that we are
subjecting your union activities to surveillance
WE WILL NOT threaten you with discharge,
layoff, closure of the business, or any other
reprisal to discourage your support of the above-
named or any other union
WE WILL respect your rights to self-organiza-
tion, to form, join, or assist any labor organiza-
tion, or to bargain collectively in respect to terms
or conditions of employment through Teamsters,
Local Union No 443, a/w International Brother-
200 NLRB No 102
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any representative of
your choice, or to refrain from such activity, and
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of these rights
WE WILL NOT unilaterally, without notice to, or
bargaining with the above-named Union, change
the terms and conditions of our employees in the
bargaining unit described below
All full-time and regular part-time drivers
employed by us at our New Haven, Con-
necticut, office and terminal, but excluding
all office clerical employees, professional
employees, summer seasonal employees,
guards, general foreman, foreman and all
other supervisors as defined in the Act
WE WILL reinstate the paid sick leave policy
which we discontinued on August 12, 1971, and
WE WILL pay you for any loss you suffered
because we discontinued this policy
You and all our employees are free to become
members of any labor organization, or to refrain
from doing so
HAST, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7th Floor, Bulfinch Building, 15 New
Chardon Street, Boston, Massachusetts 02114, Tele-
phone 617-223-3300
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner On a charge filed by the
above-named Union on October 1, 1971, and amended on
November 12 and December 28, 1971, a complaint issued
on December 30, 1971, which alleges that Hast, Inc
(herein called Respondent or the Company), engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act
More specifically, the complaint charges that the Respon-
dent violated the Act by engaging in coercive interrogation
of employees regarding their union activities, by creating
the impression to its employees of surveillance of their
union activities , and by threatening employees with plant
closure and with other reprisals if the Union became their
collective-bargaining representative The complaint further
charges the Respondent with firing Earl M Guadino, one
of its employees , because of his union membership and
activities, and with failing and refusing to bargain with the
Union as the exclusive representative of its employees in an
appropriate unit, by unilaterally altering its existing sick
leave policy, and by engaging in conduct designed to effect
a repudiation of the Union The Respondent filed an
answer which denies that the Board has jurisdiction over
its operations , that the Union is a labor organization, that
it discharged and refused to reinstate the alleged discnmi-
natee, and all the other substantive allegations of the
complaint
Pursuant to due notice, a hearing in this case was
conducted before me at New Haven , Connecticut, on
February 2, April 25, and 26, 1972 Upon the entire record,
and my observation of the witnesses and their demeanor,
and after due consideration of the briefs filed on behalf of
the General Counsel and the Respondent , I make the
following
FINDINGS OF FACT
I COMMERCE
The Respondent is a Connecticut corporation which
maintains an office and place of business in New Haven,
Connecticut, and is engaged in the business of a common
and contract carrier which provides pickup, delivery, and
messenger service for regular and special customers,
including Eastman Kodak Co, American Optical Co, and
Bausch and Laumb In the course of said business the
Respondent picks up and delivers film, phonograph
records, optical and dental supplies, payroll records, and
other articles , and transports and delivers them from and
through various States of the United States as an essential
link in the transportation of said articles in interstate
commerce During the past year , a representative period,
the Respondent derived gross revenues in excess of $50,000
from the transportation of articles and commodities in
interstate commerce for Eastman Kodak Co and other
enterprises, each of which annually produces and ships
goods valued in excess of $50,000 directly out of the State
in which such enterprise is located On the foregoing facts,
which now are admitted, the Respondent concedes, and I
find, that it is engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act
II THE LABOR ORGANIZATION INVOLVED
It is no longer disputed, and I find, that at all times
material herein the Union named in the caption above has
been a labor organization within Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Background
As noted above, the Respondent is a common and
contract carrier which picks up and delivers packages for
its regular and other customers The packages which the
Respondent transports vary in weight from less than an
ounce to about 50 pounds, 95 to 98 percent of its freight
HAST, INC 657
ranges from 1 to 10 pounds In the conduct of this
business, the Respondent utilizes for the most part about
20 to 25 compact cars which are especially equipped with
but a single bucket seat for the driver, thus providing space
both alongside and in back of the driver for the packages
which are to be transported m At the times material herein,
the Respondent employed 1 I drivers who worked out of its
New Haven location, 6 who worked out of Hartford,
Connecticut, and 1 who drove in the Bridgeport, Connecti-
cut, area
B The Union's Organizational Campaign
the Employer who are based at its 222 Farren Avenue,
New Haven, Connecticut location, but excluding all
office clerical employees, professional employees,
summer seasonal employees, guards, General Foreman,
Foreman and all other supervisors as defined in the
Act
On the latter date, the election took place, and the Tally of
Ballots disclosed that the Union received a majority of the
(10 out of 17) votes cast in the election There were no
challenged ballots, and no objections having been filed to
the conduct of the election, on August 19 the Director
certified the Union as the exclusive representative of the
Respondent's employees in the above-described unit
In the latter part of April or early in May 1971,2 Earl
Guadino, one of the Respondent's New Haven drivers,
after a discussion with several of the Company's other
drivers, visited the Union's office and talked to Union
Organizer Samuel Kasowitz with a view to getting the
Union to act as the collective-bargaining representative of
Respondent's drivers Kasowitz furnished Guadmo with
blank union authorization cards for execution by the
employees, and instructed him as to how they should be
completed During the month which followed, Guadino
solicited 10 of the Respondent's New Haven drivers to sign
the Union's authorization cards, and he and 8 others did
so Guadino also solicited and secured the signature to a
union card by the Respondent's Bridgeport driver In early
June, Guadmo turned the executed cards over to Union
Organizer Kasowitz On June 29, Kasowitz visited the
Respondent's New Haven place of business, and in the
absence of Henry Stoddard, the Respondent's president, he
left his calling card and a proposed Stipulation for
Recognition of the Union (G C Exh 4) with Foreman
Lawrence King, an admitted supervisor of the Respon-
dent 3
As noted above, on July 6 the Union filed a petition for
certification as the exclusive collective-bargaining repre-
sentative of Respondent's drivers On July 22, the Acting
Regional Director of the Board, Region 1, approved an
agreement between the parties for the conduct of a consent
election on August 11 among the Respondent's employees
in the following appropriate unit
All full-time and regular part-time drivers employed by
i The Respondent also has a few small delivery type trucks
2 All dates hereinafter refer to 1971 unless otherwise noted
3 Kasowitz testified that this visit to the Respondents place of business
occurred on July 5 but his testimony disclosed uncertainty in respect to
dates and the Union s petition for certification as the representative of the
Respondents drivers (Case 1-RC-I 1 659) filed on July 6 states that the
demand for recognition was made on June 29 I therefore regard June 29 as
the more reliable date of Kasowitz visit to the Respondents place of
business
Respondents president Henry Stoddard denied that he ever saw the
Stipulation for Recognition which Kasowitz left with King However, in the
light of King s admission that Kasowitz in addition to his calling card left
some papers in an envelope which King then turned over to the girl in
the office for Stoddard, I regard the latter s denial as unworthy of belief
and I do not credit it
4 She quit her employment shortly after the Board election
5 Schwab s testimony does not reveal the nature of the interrogation
about the Union
6 The findings above are based on the testimony of Schwab which I
regard as reliable and credit Stoddard denied that he ever threatened
employees with discharge or with closing the Company s doors, if the
Union came in Stoddard also denied that he spoke to any employee during
C Interference, Restraint, and Coercion of
Employees
On July 13, the Respondent posted in its New Haven
office a notice which the Board had furnished in connec-
tion with the Union's petition for certification That same
day at about 11 a in , Henry Stoddard, the Respondent's
president, told Patricia Schwab, who then was employed as
one of the Company's dnvers,4 that he wanted to see her
before she left on her next trip When Schwab entered the
office, Stoddard, in the presence of Foreman Lawrence
King, asked her "about the Union" and they talked about
the Union 5 During the course of their conversation,
Stoddard told Schwab "that if the union came in that he
would close the doors," and that she would see the biggest
layoff that I had ever seen " Stoddard further said that he
did not know where Schwab would be "on the list,"
apparently referring to a seniority list which would be used
for selecting employees for layoff Schwab replied "that I
would take my chances " As Schwab began to leave the
office, Stoddard said, "You should be very happy about
this " Schwab asked, "What do you mean by you'"
Stoddard answered, "Well, you went down to the Union
hall " Schwab denied that she had, and then left the office 6
About a week or so before the Board election, Stoddard
had a conversation with Leonard Alfono, one of the
Respondent's drivers, in which he told Alfono that "he dust
couldn't afford" a union, and that if it came in, "he would
close the doors," "lay off a lot of people," and/or effect
the month of July concerning union activities I regard Stoddard s
testimony as generally unworthy of much, if any reliance for the following
reasons As previously noted Stoddard denied ever seeing the recognition
agreement which Union Organizer Kasowitz according to Foreman King s
admission left for Stoddard s perusal (see fn 3 supra) Moreover although
by his own admission the filing by the Union of its petition for certification
signalled to Stoddard that something was amiss in his relationship with
his employees and he admittedly was hurt because they had gone
behind his back to contact a stranger to deal with him on their behalf
Stoddard professed a lack of interest in whether or not his employees were
or were not represented by a union and he specifically denied that he did
not want a union in his place I regard that testimony as implausible and
incredible in the light of Stoddard s admitted action the day after the
election (more fully described hereinafter) of announcing to employees both
the results of the election and the termination of his prior practice of
allowing them 5 days of paid sick leave each year As hereinafter found that
conduct clearly was an act of reprisal to punish employees for designating
the Union as their representative and belies his testimony that he was not
opposed to the Union In view of the foregoing as well as demeanor I place
little reliance in Stoddard s testimony and I do not credit his denials of
Schwab s testimony which I credit
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other drastic changes, such as selling the Company's cars
and requiring the drivers to use their own cars to make the
pickups and deliveries 7
Alfono also had several conversations with Foreman
Lawrence King about the forthcoming election These
resulted when Alfono asked King, "What about the
Union9 What is going to happen " On these occasions,
according to Alfono's credited testimony, King said that if
the Union came in, the Respondent would close its doors 8
According to the credited testimony of Earl Guadino,
about a week or two before the Board election, Foreman
King told him that "if this union gets in here you are going
to see a lot of changes around here In fact, you won't even
have a fob " When Guadino then expressed his opinion
that he could not be let go "just like that" as long as he did
his work, King replied, "Would you want to bet $5 that
you won't have a job if the Union gets m9" Guadino
answered, "No "9
Prior to the Board election, the Respondent allowed any
employee who had been in its service for 3 months to take
5 days of paid sick leave each year If the sick leave was not
used by eligible employees, it could be taken either as
additional vacation time, or at the employee's option, he
could instead receive extra pay therefor As previously
noted, the Union won the Board election which was
conducted on August 11 The following day, President
Stoddard admittedly called the drivers together and
announced to them the results of the election, and that the
Respondent would no longer pay them for sick leave
Guadino was absent on August 12 when Stoddard
announced the election results and the discontinuance of
paid sick leave to Respondent's employees On the
following day when Guadino returned to work, Stoddard
told him that he had had a talk with the employees about
the Union, and that he might as well tell Guadino what he
had said to them According to Guadino's credited
testimony, Stoddard then said,
Now that the union is in l.ere there is going to have to
be a lot of changes here There may have to be some
men laid off We may have to drop some routes You
guys did me a terrible injustice You stabbed me in the
back You [should have] come to me before you joined
the union, but instead you stabbed me in the back 10
D Concluding Findings in Respect to the Alleged
Violations of Section 8(a)(1) and (5) of the Act
The complaint alleges that by the conduct enumerated in
section III C of this Decision, the Respondent (1)
Unlawfully interrogated employees concerning their union
activities and support, (2) conveyed to employees the
impression of surveillance of their union activities, (3)
threatened employees with discharge and other reprisals if,
and because, the Union became their collective-bargaining
representative, and (4) unilaterally and without notice or
7 The findings above are based on Alfono s testimony which I credit
Stoddard denied making these statements to Alfono but for reasons
previously explicated I regard his denial as unworthy of credence
8 King denied that he ever had any discussion with Alfono about the
Union but as explicated infra I regard King s testimony as generally
unreliable and I do not credit his denial
9 In respect to this incident King s only testimony was to deny that
discussion with the Union changed the working conditions
of its employees by discontinuing the paid sick leave
policy The latter conduct also is alleged to be a failure and
refusal to bargain with the Union within the meamng of
Section 8(a)(5) of the Act
(1) The only testimony regarding the allegedly unlawful
interrogation of employees by Respondent was that given
by Schwab, that on July 13, Stoddard "asked me about the
Union " As previously noted (see fn 5, supra), Schwab's
testimony did not disclose the nature of Stoddard's
interrogation I therefore conclude that the evidence fails
to support the allegation of unlawful interrogation con-
tained in paragraph 8(a) of the complaint, and it should be
dismissed
(2) As found above, in the same July 13 conversation,
Stoddard accused Schwab of visiting the union hall The
accusation clearly implied that Stoddard had knowledge of
her visit to the Umon, for despite Schwab's denial of the
accusation when it was made, she had in fact gone "down
to the Union" after she signed a union authorization card
Stoddard's accusation thus clearly created the impression
that Respondent was subjecting the union activities of its
employees to surveillance, and the Respondent thereby
interfered with, restrained, and coerced employees in the
exercise of their rights under the Act, and thus violated
Section 8(a)(1) thereof
(3) As found above, on July 13, Stoddard also told
Schwab that if the Union came in, he would close the
doors and there would be a layoff the likes of which
Schwab had never before seen Similar threats were made
by Stoddard and Foreman King to Alfono before the
Board election, and in addition, Stoddard had threatened
to effect other drastic changes if the Umon won the
election Foreman King also threatened and offered to bet
Guadino that he would be without ajob "if the Union gets
in " After the election, Stoddard similarly threatened that,
in view of its results, there would be a lot of changes, and
that a layoff and discontinuance of some of the Respon-
dent's routes might occur All of the foregoing clearly
constituted threats of reprisals to employees for engaging
in activities guaranteed by Section 7 of the Act and
violated Section 8(a)(1)
(4) At the Board election, on August 11, a majority of the
Respondent's employees in an admittedly appropriate unit
designated the Union as their collective-bargaining repre-
sentative On the day following the election, the Respon-
dent, without notice to or bargaining with the Union,
unilaterally altered the terms and conditions of employ-
ment of the employees represented by the Union by
announcing the discontinuance of its previously existing
paid sick leave policy Thereby, the Respondent not only
further violated Section 8(a)(1) of the Act, but it also failed
and refused to bargain with the Union within the meamng
of Section 8(a)(5) of the Act
Guadmo ever discuss[ed ] the Teamster s Union with [him] As previously
noted I regard King s testimony as unreliable and I do not credit this
denial of Guadino s testimony if it can be regarded as such
is Stoddard did not specifically deny Guadino s testimony regarding this
incident but he generally denied threatening employees with discharge for
engaging in union activities For reasons previously explicated I do not
credit Stoddard s denial
HAST, INC 659
E The Employment and Discharge of Earl Guadtno
The Respondent hired Guadtno to work as one of its
drivers on August 31, 1970 His starting rate of pay was $3
an hour During his employment by the Respondent,
Guadino received two wage increases, the first one, an
automatic raise after 3 months of employment, and the
second, a merit increase about 2 months later which
brought his pay rate to $3 25 an hour During his
employment by Respondent, Guadtno was told both by
Foreman King and President Stoddard that he "was doing
a good job," and Stoddard admitted that "from the time he
was hired, Mr Guadmo performed quite satisfactorily "
As previously noted, in May 1971, Guadmo initiated the
movement to establish the Union as the collective-bargain-
ing representative of the Respondent's drivers, visited the
union hall, received union authorization cards for the
employees to sign, and solicited all 10 of the signatures to
the cards that were obtained Thereafter, as found above,
the Union filed a petition for certification as the collective-
bargaining representative of the Respondent's drivers, and
the Company countered by threatening employees with
various reprisals, including layoffs, discharges, and the
closing of its doors Despite the Respondent's conduct to
discourage support of the Union at the Board election, a
majority of the employees nevertheless voted for the
Union, and the Company in reprisal responded by
discontinuing its previous policy of allowing employees 5
days of paid sick leave per annum Two weeks later, on
August 26, the Respondent fired Earl Guadtno, the
principal proponent of the Union
The circumstances surrounding Guadino's termination
were as follows The Respondent allows its employees a
paid vacation of 1 week after I year of service In actual
practice, however, employees have been permitted to take
their vacations before they completed their first year of
service 11 As noted above, Guadino started to work for the
Respondent on August 31, 1970 In July 1971, Guadtno
asked Foreman King when he could take his vacation, and
he told King that his year of service would be completed in
August King advised Guadmo that he could take a
vacation, but not until August because he was "booked up
for the month of July " King also said that he would check
with Stoddard Thereafter, on several occasions Guadino
asked King if he had spoken to Stoddard about his
vacation, and King answered that he had not Finally, in
11 Patricia Schwab testified without contradiction that she was hired in
April 1968 and was permitted to take her first vacation in February 1969
Dwight Nettleton who started to work for the Respondent as a driver on
April 26 1970 was given a paid leave of absence for I week in February
1971
12 The findings above are based on Guadmo s credited testimony
13 Foreman King and Robert Stoddard the brother of President
Stoddard testified that they were present during the conversation on
August 26 between Guadino and Stoddard which ended with Guadino s
dismissal Both gave testimony regarding what Guadtno allegedly said
immediately before he was fired However according to Guadino and
Alfono whom I credit only they and President Stoddard were present
during the conversation preceding Guadmo s termination For the reasons
which follow I find that King and Robert Stoddard were not present and
that their testimony regarding what 'hey assertedly heard is pure fiction
King s version of what Guadino allegedly said to Stoddard on this occasion
in no respect conformed with either Stoddard s testimony or that of any
other witness and as found hereinafter it described an incident that took
place between Guadtno and Stoddard 3 days before Guadtno s discharge
August, Guadino asked Stoddard, "Hank, how about my
vacation" Stoddard asked, "How long have you been
here'" Guadtno answered, "I will be here a year [on]
August 31 " Stoddard said, "Well you can't take a vacation
'till you have been here a year " Then, although Guadtno
knew that other employees had been permitted to take
their i acations before their first year ended, he replied,
"Alright How about if I take it [on] August 30 which is on
a Monday " Stoddard said, "okay " 12
On Thursday, August 26, the payday preceding Guadi-
no's scheduled vacation, Guadino "went over to the pay
rack" and discovered that his check did not include pay for
his forthcoming vacation There is considerable conflict in
the record as to what Guadtno and Stoddard said
immediately thereafter before Guadino's peremptory
discharge Based on a composite of the testimony, mainly
that of Guadino and Alfono, and to a minor extent that of
President Stoddard, I find that the following conversation
ensued 13
Guadino said to Stoddard, "Hey, where the hell is my
vacation pay9" 14 Guadino also said, "Hank, there is only 1
week's check in here Don't I get my vacation pay9"
Stoddard in reply asked, "How long have you been here9"
Guadino said, "I have been here a year We talked about
this already " Stoddard responded, "Well, you can't take a
vacation until you have been here a year If you want to
take a vacation you will have to take it September the 1st
which is on a Wednesday " Stoddard argued, "I already
made plans " Stoddard answered, "I don't care You can't
take it until you have been here a year " Guadino said,
"Hank, why are you harrassing me like this? You know
you said that I could take a vacation" At this point,
Stoddard turned to Alfono and said to him, "Will you
please leave the office now9 I want to talk to him
[Guadtno ] alone" Guadino said to Stoddard, "I would
rather not have Lenny [Alfono ] leave I would rather have
him stay here, Hank, because you have been calling me a
union organizer You said you were going to get rid of me,
and all you have been doing is harassing me " Stoddard
answered, "That's right You have to fight fire with fire "
Guadino said to Alfono, "Lenny, did you hear that," and
Alfono nodded Stoddard then said to Guadtno, "You're
fired " Guadino asked, "What for9" Stoddard replied,
"Insubordination "15
That afternoon, according to Alfono's credited testimo-
As to Robert Stoddard I am persuaded that he was not present when
Guadino was fired on August 26 because his affidavit to the Board (G C
Exh 7) contained no reference to this most important event notwithstand
ing that he admittedly was asked by the Board agent what he knew about
the matter and whether he had anything else
14 The quotes above are from Stoddard s testimony which I credit to this
extent for the following reason only Guadmo admitted that profanity
undoubtedly was used during his conversation with Stoddard However
Guadino could not recall the exact swear words that were used and his
version of the conversation contained no profanity I am persuaded
therefore that this is the manner in which profanity entered the conversa-
tion and I credit Stoddard in this regard notwithstanding that I regard his
testimony as generally unreliable
15 Except as previously noted the findings above are based on
Guadino s testimony which Alfono corroborated The Respondents brief
suggests that Guadtno s and Alfono s testimony should not be credited
because of self-contradictions as to who-Guadino or Stoddard-said that
Guadino was a union organizer In the light of Guadmo s testimony that
when he accused Stoddard of calling him a union organizer Stoddard said
(Continued)
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny, while Foreman King and he were riding together on the
New Haven route, Alfono asked King, "Is there any
chance that Earl [Guadino] will ever get hired again9"
King replied that Stoddard would "close the doors" before
he hired Guadino back again Alfono asked, "Why9" "[Is
it] because he [Stoddard] thinks he [Guadino] is a union
organizer9 He can't really prove who was " King replied,
"Well, he [Stoddard] put two and two together "is
F Concluding Findings in Respect to Guadino's
Discharge
The complaint in this case alleges that Guadino's
termination was motivated by his union membership and
activities The Respondent's answer denies that Guadino's
discharge was so motivated, and in its brief, the Respon-
dent contends that it "had no knowledge of any union
activity on the part of Earl Guadino " At the opening of
the hearing in this case, the Respondent asserted that
Guadino was fired for "insubordination" only During the
course of the hearing however, the Respondent asserted
that Guadino's discharge also was motivated by (1) the
cancellation of his driving license in January 1971 for
driving under the influence of alcohol, (2) his neglectful
operation of one of the Respondent's cars while it was
overheated about a month and a half before his termina-
tion as a result of which the engine allegedly "was ruined",
and by (3) his display of lack of proper care for the
merchandise he transported about a week before his
discharge by tossing packages to another of Respondent's
drivers while transferring parcels to him I find, contrary to
the Respondent's assertions, that these additional grounds
for which Guadino allegedly was discharged are transpar-
ent afterthoughts on the part of the Respondent and that
his termination was not motivated by any of them I
further find that the Respondent had knowledge of
Guadino's support of the Union, and that the so-called
"insubordination," the reason given to Guadino for his
termination, is a pretext which the Respondent first
provoked and then utilized to rid itself of the principal
proponent of the Union in its employ
1 The revocation of Guadino's driving license
In January 1971, during his off duty hours, Guadino had
that s right I do not regard their testimony on direct and cross as
inconsistent
Stoddard s version of this conversation was as follows Guadino said
Hey where the hell is my vacation pay'i Stoddard answered Mr
Guadino you are not on vacation and you are not eligible for a vacation
until next week Guadino said I am going on Monday Stoddard replied
You haven t even arranged to go on Monday We have nobody to replace
you You are not even eligible until Wednesday but I will bend this much
you can go on Wednesday somehow or other we will make out Guadino
said Wednesday was not acceptable I am going on Monday Stoddard
asked the other employees to leave the office and Guadino said Don t
leave I want you to hear what this bird has to say to me Stoddard then
said to Guadmo that they had a continuing conflict about sick time that
he had agreed to pay him [Guadino ] for sick time but that the vacation
had not been arranged for We had nobody to replace him Guadino said
I have taken enough shit from you and Stoddard responded Mr
Guadino you are fired for insubordination I credit Stoddard s version of
this incident and conversation only to the extent that it accords with that of
Guadino and Alfono My reasons for so concluding-in addition to my lack
of regard generally for the reliability of Stoddard s testimony-are as
"a couple of beers" while playing cards with friends Later
that night, Guadino was arrested for driving under the
influence of alcohol, and his license to drive was taken
from him "right on the spot " The following morning,
Guadino notified President Stoddard that he would be
unable to work because of the revocation of his driving
license , and he explained to Stoddard what had occurred
Stoddard consulted with his insurance carrier, told the
latter "that the man [Guadino] had performed satisfactori-
ly for us, and that if I could do something for him that I
wanted to do it " 17 Subsequently, Stoddard signed and
filed a certificate of financial responsibility for Guadino,
and a limited license was issued which authorized Guadino
to drive only the Respondent's vehicles Stoddard admitted
that he accepted financial responsibility for Guadino
because he "regarded him as a favorable employee "
Guadino thereafter was not involved in any accident or
traffic infraction prior to his discharge The prior revoca-
tion of Guadino's license was not mentioned when
Stoddard fired him on August 26 Moreover, when
Guadino's driving license was revoked, he was not fired In
the light of the foregoing undisputed facts, it is quite
obvious that Guadino's termination was not based on the
revocation of his driving license 7 months earlier I regard
the assertion of this ground for Guadino' s discharge as a
transparently pretextual afterthought
2 The allegedly burned out motor
The Respondent's drivers admittedly are required to
check the oil and water of every car that they drive On
about July 9 or 10, Guadino was assigned to drive a 1969
Plymouth Fury car usually used by the Respondent's
president and its foremen According to Guadino's
uncontroverted and credited testimony, before he left on
this trip, he asked Foreman King if the car was "okay,"
and King answered, "Yes It is gassed and everything Just
take off " Guadino drove the car to Bridgeport, parked it
there all day, and drove it back at the end of the day On
his return to the New Haven office, Guadino reported to
King that the car was "pinging," and King replied, "I
know It has always had a loud ping "18 King and
Foreman Alfredo Bruzzesi then went out to look at the car,
and when Guadino came out of the office to go home, they
were raising the hood Subsequently, on July 12, Stoddard
follows According to Stoddard Guadino had not previously arranged with
him for a vacation when this incident occurred It stretches credulity
beyond belief that Guadino would have demanded vacation pay and
insisted on starting his vacation on Monday August 30 (as he undisputedly
did) unless he had received prior approval therefor I am persuaded that he
had and that Stoddard s contrary testimony is pure fabrication Moreover,
I do not believe that Guadino made the profane statement which assertedly
motivated his dismissal-not that it was beyond his or Stoddard s profanity
limits-but rather because the statement implied that Guadino was quitting
hisjob and he clearly was not doing so
is King s only testimony regarding this or any other conversation with
Alfono was merely a denial that he had any discussion with Leonard
Alfono at any time about the union Assuming this to be a denial of
Alfono s specific testimony above I do not credit it because I regard King s
testimony as generally unreliable and in some respects as fabricated (see
fn 13 supra)
i7 The quotes are from Stoddard s testimony which is credited in this
regard
is King a witness for Respondent gave no testimony to controvert that
of Guadino s credited above
HAST, INC 661
told Guadino that he had overheated and ruined the
engine of Stoddard's car, and that he had "stalked off"
without reporting its condition to anyone 19 Then, despite
Guadino's protestations of nonculpabihty, Stoddard issued
a warning notice to Guadino that "any repeat of the
overheating will result in your dismissal "20 A similar
warning was issued to all of the Respondent's drivers and
posted on the Company's bulletin board that same day 21
Guadino thereafter had no further difficulty with any of
the Respondent's cars prior to his termination on August
26, and when he was fired, the overheating incident was
not mentioned either as a ground for his dismissal, or in
any other context
During the course of the hearing in this case, counsel for
the Respondent contended that Guadino's discharge was
in part based on this incident I regard the contention that
Guadino's termination was motivated in part by this
occurrence as patently without meet, and I am persuaded
that the testimony regarding this incident was adduced
solely in an effort to cast Guadino in an unsympathetic
light I base these conclusions on the following There was
no recurrence of this incident after the Respondent issued
its warning notice to Guadino Six weeks elapsed after this
incident before Guadino was fired on August 26 At the
time he was fired, Stoddard made no reference to this
incident when he admittedly told Guadino only that he
was fired for "insubordination " There clearly was no
"insubordination" by Guadmo in connection with the
incident for which he received the warning notice, and the
notice contained no reference to any insubordination It is,
thus, quite apparent that Guadmo's discharge on August
26 was in no way motivated even in part by the engine
which allegedly had been "ruined " I therefore regard the
assertion of this ground for Guadino's discharge as another
pretext on the part of the Respondent 22
3 The throwing of a package
According to the testimony of Robert Stoddard, a
brother of Respondent's president, on about August 14 or
15, he saw Guadino throw a package about 15 or 20 feet to
another driver who failed to catch it and it fell to the
ground According to Robert Stoddard, the incident
occurred at a transfer point where the Respondent's drivers
meet by prearrangement to turn over packages that they
have picked up to the drivers on whose routes their
delivery is required Robert Stoddard admittedly did not
know either what the thrown package contained or
whether or not it was fragile He nevertheless reported the
incident to his brother that same evening The following
morning, President Stoddard accused Guadino of "throw-
19 Both Bruzzesi and Stoddard testified that the engine on the car was
ruined but no evidence documentary or otherwise was adduced
regarding what repairs if any were made to the car Moreover Guadino s
testimony that the car was back on the road and that they were all
driving it was not controverted I therefore regard Bruzzesi s and
Stoddard s testimony that the car was ruined as exaggerat ons
20 See Resp Exh 1
21 See G C Exh 5
22 I note in this regard that the Respondent s brief apparently no longer
contends that Guadino s discharge was motivated in part by this incident
and that it refers thereto only as evidence that Guadino was not the type of
desirable employee whose other qualities would mitigate against immedi
ate discharge
ing a fragile package around," and warned him not to do it
"anymore "23 Guadino at first denied that he threw
"anything" around, but when Stoddard asked his brother
Robert for confirmation, Guadino admitted he had thrown
a package, but he maintained that it was a payroll package,
and not a fragile one Guadino showed Robert Stoddard a
payroll package and asked him "Isn't this what I threw?,"
and according to Guadino's credited testimony, Robert
agreed 24 According to President Stoddard, he then asked
Guadmo, "Well now, are you admitting that you are
throwing packages around?," and Guadino replied, "Oh no
you don't You are trying to get rid of me, but I won't let
you do it When I get the union in here, and get my union
book I am quitting But not until "
As previously noted, during the course of the hearing, the
Respondent's counsel asserted that Guadino's discharge
also was motivated by his conduct of "throwing the
package " The Respondent apparently now has abandoned
this contention, for its brief states as point I, "Earl
Guadino was discharged solely for gross insubordination "
However, independently of the Respondent's shifting
positions, the record clearly discloses that Guadino's
termination could not reasonably have been based on the
package throwing incident The packages which the
Respondent's drivers transfer and deliver undisputedly
"are very easily distinguishable" as to whether their
contents are fragile or not Although tossing admittedly is
not the "normal way" of transferring packages, there is no
evidence that the Respondent had a rule which prohibited
its drivers from doing so with nonfragile packages In this
regard, former driver Patricia Schwab testified without
contradiction that she threw "quite a few" packages to
other employees and never was warned to desist Accord-
ing to Schwab's uncontroverted and credited testimony,
she saw Foreman King, Bruzzesi , "and even Mr Stod-
dard" "do the same [thing] " Guadino also testified
without contradiction that, on one occasion , King tossed a
package to him 25 Guadino had never before been warned
"about throwing packages " There is no evidence that
Guadino tossed any further packages after Stoddard' s false
accusation in mid-August that he had thrown one that was
fragile Finally, there was no reference to the package
throwing incident on August 26 when Stoddard told
Guadino he was fired All of the above convinces me that
the Respondent's contention at the hearing that it fired
Guadino on August 26 because about 10 days earlier he
had thrown a package to another employee, is a patently
incredible pretext
23 Guadino testified that this warning was administered to him about
the middle of August 1971 His testimony in this respect accords with that
of Robert Stoddard who testified that the incident occurred around
August 14 or 15 and was reported to President Stoddard the same day
Accordingly I regard President Stoddard s testimony that he administered
this warning to Guadino on August 25 as erroneous and do not credit it
24 According to Stoddard his brother replied that it was a dental
package However as previously noted Robert Stoddard admittedly had no
knowledge either of what the package contained or whether it was fragile
or not I therefore do not credit President Stoddard s version of his brother s
reply
25 Neither King Bruzzesi nor Stoddard denied Schwab s or Guadino s
testimony in this regard
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 Final analysis and conclusions
Until the Union filed its petition with the Board for
certification as the exclusive representative of the Respon-
dent's drivers, Guadino, the principal proponent of the
Union among the drivers, admittedly was regarded as a
satisfactory employee On July 6, the Board notified the
Respondent that the Union had filed its petition, and
coincident with the receipt of that knowledge, Guadino's
troubles with the Company began Thus, as found above,
on July 12, Guadino was given a written reprimand
allegedly because he assertedly "ruined" one of the
Respondent's cars by running it while the engine was
overheated, and because he assertedly failed to report the
condition of the car when he turned it in As found above,
Guadino's only knowledge that anything was wrong with
the car was that it had a loud ping, and he uncontroverted-
ly had reported that fact to Foreman King Thus, the
reprimand for failure to report the car's condition was
clearly unjustified Moreover, the Respondent adduced no
evidence of the nature and/or extent of the repairs that
assertedly were made to the car, and as found above, the
car "was back on the road" and "they were all driving it "
It is thus obvious that Stoddard's accusation that Guadino
"ruined" the car was, at the very least, an exaggeration All
of the foregoing, including the timing of the written
warning to Guadino immediately after receipt of notice of
the Union's petition, and the Respondent's simultaneous
warning to all its drivers that a failure to "watch the
gauges," "check water and oil," or to "report any unusual
condition" "will result in dismissal" (G C Exh 5), suggests
that the Respondent's conduct may have been motivated
by antiunion considerations
That inference is strengthened by the Respondent's
subsequent conduct Thus, as found above, the Respon-
dent thereafter engaged in multiple unfair labor practices
that were designed to discourage its employees from
supporting the Union at the Board election And, when the
employees designated the Union as their representative
despite the Respondent's conduct, Stoddard, in reprisal,
announced on the day following the election that he would
no longer pay them for 5 days of sick leave per annum as
he had theretofore It is thus quite evident that antiumon
considerations were a motivating factor in the Respon-
dent's conduct towards its employees
Guadino's troubles with the Respondent increased with
the Union's victory at the Board election As found above,
so far as the record discloses, the Respondent had no rule
which prohibited the tossing of a package by one employee
to another, and the practice occasionally was engaged in,
26 Prior to the advent of the Union Stoddard admittedly regarded and
treated his employees as friends However as Alfono testified without
contradiction after the Union petitioned for certification Stoddard s
attitude towards the employees chilled and he no longer was friendly
27 The quotes are from Stoddard s testimony Guadino s version which I
regard as more reliable and credit is that Stoddard said Well you
organized the Union I got to get you anyway I can In either case it is
evident that even if Stoddard had no prior knowledge of Guadino s union
advocacy he acquired it then It is thus obvious that the Respondents
contention that it had no knowledge of Guadino s union activity is without
any merit
28 A few days before the election on August I I Stoddard had invited all
the drivers in the unit to join him for some drinks and dinner after they
voted
not only by employees, but also by Stoddard and his two
foremen However, a few days after the Union election,
Guadino was falsely accused of tossing a "fragile"
package, and then warned for the first time not to do it
anymore The false accusation, and the change in Stod-
dard's attitude towards him26 provoked Guadino to accuse
Stoddard of "trying to get nd of me [Guadino ]," and to
say, "when I get the Union in here and get my union book
I am quitting But not until "27
Guadino's next run-in with Stoddard was not long in
coming Guadino was absent on August 12 when Stoddard
announced the discontinuance of the Respondent's paid
sick leave policy, and he first learned about it on August
19, a payday, when he noted that he had not been paid for
2 days of sick leave he had taken According to Guadino's
uncontroverted and credited testimony, he complained to
Stoddard that his paycheck was "two days short "
Stoddard replied that the check was not short, that he had
"discontinued sick leave," because it was not required
either by state or Federal law and was "entirely up to the
employer " Guadino then threatened that he would go "to
the union hall," and find out "whether you are able to do
this to me or not" Stoddard responded, "Do what you
want I don't care "
A few days later, however, on August 23, Stoddard
offered to pay Guadino for both of his 2 days of sick leave,
provided that Guadino furnished him with a doctor's
certificate for the August 12 absence which Stoddard "felt"
resulted from a hangover "from the previous evening's
party "28 Insofar as the record discloses, the Respondent
had not previously required its employees to furnish a
doctor's certificate to be entitled to 5 days of sick pay per
annum 29 At the time of this incident, Stoddard still had at
least 2 days of unused sick leave for which he was entitled
to be paid Quite obviously provoked, first by Stoddard's
unlawful unilateral cancellation of the Respondent's sick
pay policy, and probably also by Stoddard's requirement
of a doctor's certificate as a condition precedent to paying
for the sick leave to which he was entitled, Guadino told
Stoddard that he "was going to pay him for both days,"
and "that I could stick the thing [sick pay] up my ass "
Stoddard admittedly did not fire Guadino for making this
statement to him 30
Stoddard's final harrassment and provocation of Guadi-
no occurred 3 days later when Stoddard reneged on his
prior agreement to permit Guadino to start his vacation on
Monday, August 30, just 1 day before the completion of his
first year of service As found above on uncontroverted
evidence, although the Respondent required 1 year of
29 Stoddard s request for a doctors certificate for only 1 of Guadino s 2
days of sick leave and the nature of the prior policy-paying employees for
unused sick leave or allowing them to take extra vacation days in lieu of
extra pay-persuade me that the Respondent had not previously required a
doctor s certificate
30 The findings above are based on Stoddard s testimony which was
uncontroverted in this regard and is credited to this extent Foreman King
testified that he was present when Guadino made this statement to
Stoddard but according to King it occurred on August 26 when Stoddard
fired Guadino However inasmuch as Stoddard admittedly did not fire
Guadino when this statement was made , and no such statement was made
by Guadino when Stoddard fired him on August 26 it is obvious that
King s testimony that Guadino made the statement on August 26just before
Stoddard fired him (see in 13 supra) is patently unworthy of credence
HAST, INC 663
service for entitlement to a paid vacation of 5 days, it
previously had allowed employees to take their paid
vacations months before the completion of their first year
of employment Guadino however, was refused like
treatment although he first began to ask for a vacation in
July, only a month before his first year of service would
end Stoddard admitted that there is "very little" seasonal
fluctuation in the Respondent's business, and that the
number of stops the drivers have to make are the same,
regardless of whether the customer has a few or a lot of
packages to be transported There was, therefore, no
seasonal rush season for refusing to allow Guadino to take
a vacation before August 30, the date on which Stoddard
finally agreed he could go Indeed, all Guadino's requests
for a vacation were met with at least an initial response
that he was not entitled to one before his year of service
ended The Respondent offered no explanation for treating
Guadino in this disparate fashion Guadino knew that the
Respondent had permitted other employees to take a
vacation before their first year of employment ended, and
that the Respondent thus was treating him disparately He
nevertheless made no issue of it, and he made arrange-
ments to start his vacation on August 30 in accordance
with Stoddard's agreement However, when Stoddard
reneged and told Guadino that he could not leave on
August 30 because he would then be 1 day short of
completing his year of service, and because he could not
spare Guadmo then but would manage somehow to do so
on Wednesday, September 1, and when Stoddard in
addition denied that there had been any prior agreement
for Guadino to take his vacation on August 30, Guadino
had ample reason to be provoked and angry, and to regard
Stoddard's conduct towards him as harrassment Under
the circumstances, it is small wonder that Guadino, in
righteous outrage, heatedly accused Stoddard of calling
him a union organizer, of trying to get rid of him, and of
harrassing him, and that in like heat, Stoddard retorted,
"That's right You have to fight fire with fire " As found
above, when Guadino then asked Alfono, "Lenny, did you
hear that?" Stoddard told Guadino that he was fired for
"insubordination "
I regard the contention that Guadino's conduct was
insubordinate, and that he was discharged by Stoddard for
"insubordination" as the Respondent's final pretext to
mask its real motivation for Guadino's termination I base
these conclusions on the following considerations
(a) Profanity was commonly used by the Respondent's
employees in their daily speech, and also by Stoddard 31
Stoddard admittedly never "fired any other employee for
swearing " There was, therefore, nothing in Guadino's
statement to Stoddard, "Hey, where the hell is my vacation
pay?" which reasonably could be regarded either as a
"belligerent assault on Mr Stoddard," 32 or even as
offensive
(b) The Respondent next contends that Guadino was
insubordinate in that he "urged other employees" to be
insubordinate However, as found above (see fn 13, supra),
only Alfono was present on August 26 when Stoddard and
Guadino had their last argument Furthermore, when
Stoddard asked Alfono to "please leave the office,"
Guadino told Stoddard, "I would rather not have Lenny
[Alfono] leave I would rather have him stay here,
Hank "33 Stoddard apparently did not press the matter
further, for Alfono did not leave, and he was not thereafter
reprimanded or disciplined for his failure to do so I
perceive in the foregoing no "urging" by Guadino that
"other employees" be insubordinate to Stoddard
(c) The third and final act of insubordination on August
26 which the Respondent contends motivated Guadino's
dismissal was Guadino's alleged statement to Stoddard, "I
have taken enough shit from you " As found above (see fn
15, supra), I do not credit Stoddard's testimony that
Guadino said this to him However, even assuming that I
believed Stoddard in this respect, which I do not, I still do
not believe that this motivated Guadino's discharge
Profanity was the norm at the Respondent's place of
business and Stoddard, who also used profanity,34 obvious-
ly could not have been shocked by Guadino's use of this
language Only 3 days earlier, according to Stoddard's own
testimony, Guadmo had told him to take his sick pay and
shove it up his ass, and Stoddard had done nothing about
it To explain away the obvious inconsistency between his
failure to fire Guadino when he made the profane remark
about what Stoddard could do with his sick pay, and his
discharge of Guadino on August 26 for allegedly making a
similar profane statement, Stoddard testified on cross-
examination as follows
A There was no one else present [on August 23 ] It
was between Mr Guadino and me The morning that
Mr Guadino was fired there were witnesses there and
Mr Guadino made me look like a first-class jerk by
taking command of the office and telling me that he
took enough shit from me in front of witnesses
At first blush, this explanation appears very persuasive, but
it does not withstand close scrutiny On direct examina-
tion, when Stoddard had been asked by his own counsel
"who was present" on August 23 when Guadino made the
sick pay statement to him, Stoddard had answered, "I am
not sure who was present, sir " This, of course, is contrary
to Stoddard's later positive testimony that "no one else was
present " Moreover, according to Foreman King, a witness
for the Respondent, he was present when Guadino made
the statement about the sick pay to Stoddard It is thus
quite apparent that Stoddard's explanation for his inconsis-
tent reactions to Guadino's conduct on August 23 and 26 is
unworthy of credence This further persuades me that the
assertion that Stoddard regarded Guadino's alleged state-
ment on August 26 as insubordinate also is unworthy of
credence or belief I conclude from all the foregoing that
the contention that Guadino was discharged for insubordi-
nation is another and final pretext of the Respondent to
conceal its true motivation for his termination
31 Alfono and Patricia Schwab credibly testified without contradiction
that profanity is frequently used in conversations at the Respondent s New
Haven terminal in conversations between employees and with Stoddard
According to the uncontroverted and credited testimony of Vincent Pisano
the Union s business agent at a meeting on August 30 at the Union s office
which had been called both to discuss the Respondents cancellation of its
paid sick leave policy and Guadino s discharge Stoddard opened the
meeting with the statement I have been fucked
32 Guadino s statement is thus characterized in Respondent s brief
33 This was Guadino s credited version which as previously noted I
regard as more reliable than Stoddard s
34 Seefn 31 supra
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The applicable principle in cases like this where the
reasons asserted for discharge are regarded as false was
aptly stated by the court of appeals in Shattuck Denn
Mining Corporation v N L R B, as follows 35
Nor is the trier of the fact-here the trial examiner-re-
quired to be more naif than is a judge If he finds that
the stated motive for a discharge is false, he certainly can
infer that there is another motive More than that, he can
infer that the motive is one that the employer desires to
conceal-an unlawful motive-at least where, as in this
case, the surrounding facts tend to reinforce that inference
[Emphasis supplied ]
The real reason for Guadino's discharge is fairly apparent
from the record Until Guadino initiated and promoted the
union campaign at the Respondent's place of business, he
was regarded by Stoddard as a satisfactory employee That
regard for him changed abruptly when Stoddard learned
that the Union had filed a petition for certification with the
Board Coincident with that knowledge, and as found
above, of like knowledge of Guadino's support of the
Union, the Respondent began to find fault with Guadino's
performance and conduct First, it issued a written warning
to Guadino for ruining a car and for failing to report the
car's condition, which as found above was in part an
exaggeration, and in part, untrue Then, although the
Respondent had no rule which prohibited employees from
tossing packages to one another, Stoddard falsely accused
Guadino of throwing a fragile one, and orally warned him
not to do it again This admittedly provoked Guadino to
angrily comment that Stoddard was trying to get rid of him
on account of the Union Then, after the Union won the
Board conducted election, Stoddard first refused to pay
Guadino for 2 days of sick pay to which he was entitled,
and then later offered to pay him provided that he
presented a doctor's certificate for one of the 2 days This
provoked Guadino to tell Stoddard what he could do with
his sick pay The final provocation of Guadino came on
August 26 when Stoddard reneged on his prior agreement
to let Guadino start his vacation on August 30, and falsely
denied that any such arrangement had been made I am
persuaded by all of the foregoing, and by the vacillating
and shifting reasons asserted by the Respondent for
Guadino's discharge,36 that the Respondent's conduct
towards Guadino was deliberately provocative, and was
motivated by its opposition to the Union and his known
union activities I further find that his final ternunation
was likewise so motivated, as Foreman King acknowledged
to Alfono Accordingly, I conclude that the Respondent
thereby discriminated against Guadmo to discourage
membership in the Union, and engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
Having found that the Respondent terminated the
employment of Earl Guadino, and thereafter failed and
refused to reinstate him because he engaged in union and
concerted activities guaranteed by the Act, I will recom-
mend that the Respondent be ordered to offer him
immediate reinstatement to his former position or, if it no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him by the
payment to him of a sum of money equal to the amount he
normally would have earned from the date of his
termination to the date of reinstatement, less his net
earnings during said period, with backpay computed on a
quarterly basis in the manner established by the Board 37
I will also recommend that the Respondent preserve and,
upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary to analyze and
determine the amounts of backpay due under the terms of
this recommended remedy
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
1 Respondent, Hast, Inc, is an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act
2 Teamsters Local Union No 443, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act
3 By discriminating against Earl Guadino by terminat-
ing his employment and by failing and refusing to reinstate
him to his former position because of his support of the
Union, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act
4 The following employees of the Respondent consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
All full-time and regular part-time drivers employed by
the Respondent at its New Haven premises, but
excluding all office clerical employees, professional
employees, summer seasonal employees, guards, gener-
35 362 F 2d 466 470 (C A 9) 37 F W Woolworth Company 90 NLRB 289 backpay shall include the
36 A J Krajewski Mfg Co v N L R B 413 F 2d 673 675-676 (C A I) payment of interest at the rate of 6 percent per annum to be computed in
N L R B v Schill Steel Products Inc 340 F 2d 568 572 (C A 5) the manner set forth in Isis Plumbing & Heating Co 138 NLRB 716
HAST, INC 665
al foreman, foreman and all other supervisors as
defined in the Act
5 Since August 11, 1971, the above-named Union has
been the exclusive representative of the employees in the
aforesaid unit for the purposes of collective bargaining
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment
6 By unilaterally, on August 12, 1971, without notice
or consultation with the above-named Union, changing the
terms and conditions of employment of the employees in
the above-described unit by discontinuing its existing paid
sick leave policy, the Respondent has failed and refused to
bargain collectively with the above-named Union, and has
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) of the Act
7 By the foregoing conduct, by creating the impression
that it was subjecting the union activities of its employees
to surveillance, and by threatening employees with
discharge, layoff, and other reprisals including the closing
of its business, to discourage support of the Union, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act
8 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended 38
ORDER
Respondent, Hast, Inc , its officers, agents, successors,
and assigns, shall
I Cease and desist from
(a) Discouraging membership in and activities on behalf
of Teamsters Local Union No 443, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or of any other labor organiza-
tion, by discriminating in regard to hire or tenure of
employment or any terms or conditions of employment
(b) Engaging in conduct or making statements which
convey to employees the impression that their union
activities are subject to surveillance
(c) Threatening employees with discharge, layoff, the
closure of business, or other reprisals to discourage support
of the above-named Union, or any other labor organiza-
tion
(d) Refusing to bargain collectively in good faith
concerning rates of pay, wages, hours of employment, or
other terms and conditions of employment, with the above-
named Union, as the exclusive representative of the
employees in the following appropriate unit, by unilaterally
and without notice, or bargaining, changing their terms
and conditions of employment The appropriate unit is
All full-time and regular part-time drivers employed by
38 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations automatically become the findings
conclusions and order of the Board and all objections thereto shall be
deemed waived for all purposes
the Respondent at its New Haven premises, but
excluding all office clerical employees, professional
employees, summer seasonal employees, guards, gener-
al foreman, foreman and all other supervisors as
defined in the Act
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
Teamsters Local Union No 443, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from engaging in such activities,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
a condition of employment, as authorized by Section
8(a)(3) of the Act
2 Take the following affirmative action designed to
effectuate the policies of the Act
(a) Offer Earl Guadino immediate and full reinstatement
to his former job or, if it no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, previously enjoyed, and make
him whole for any loss of pay he may have suffered as a
result of the discrimination against him in the manner
provided in the section of this Decision entitled "The
Remedy "
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and determine the amounts of
backpay due under the terms of this Order
(d) Post at its office and terminal in New Haven,
Connecticut, copies of the notice marked "Appendix "39
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by
Respondent, shall be posted by it for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing 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
39 In the event that the Board s 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 be changed to read
Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for Region 1, in writing , I further order that the complaint herein be dismissed
within 20 days from the date of the receipt of this Decision, insofar as it alleges violations of the Act other than those
what steps have been taken to comply herewith 40 found above
40 In the event that this recommended Order is adopted by the Board the date of this Order what steps the Respondent has taken to comply
after exceptions have been filed this provision shall be modified to read herewith
Notify said Regional Director for Region I in writing within 20 days from