HiLo Foods

National Labor Relations Board - Board Decisions

Feb 14, 1980

247 N.L.R.B. 1079 (N.L.R.B. 1980)

HI-LO FOODS
Knapp Foods, Inc. d/b/a Hi-Lo Foods and Paul F.
Donatio and Dennis Damiano. Cases -CA-14956,
I-CA-15306, and 1-CA-15285
February 14, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On August 30, 1979, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed an exception and a supporting brief,' and
Respondent filed exceptions 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 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.'
The Administrative Law Judge concluded that
Respondent violated Section 8(aX1) and (3) of the Act
by reducing the hours and earning opportunities of its
seven full-time warehouse drivers and by changing its
procedures to require the drivers to clock out immedi-
ately upon their return to the warehouse and not to
clock back in until their trucks were ready for
dispatch. While we agree with the Administrative Law
Judge's conclusions, we do so only for the following
reasons.
' The General Counsel's unopposed motion to correct Decision of
Administrative Law Judge is hereby granted.
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 Inc.. 91 NLRB 544
(1950), enfd. 188 F. 2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
The Administrative Law Judge found that, following certification of the
Union. no bargaining took place between the parties. The record, however,
contains no evidence on this issue. Therefore, we do not adopt this findings.
The Administrative Law Judge found that Respondent engaged in
surveillance of the employees' union activities in violation of Sec. 8(aX(I) of
the Act. However, he inadvertently failed to include this finding in his
conclusions of law and to provide an appropriate remedy. We shall amend his
Conclusion of Law 4, and shall modify his recommended Order accordingly.
The Administrative Law Judge, in concluding that Respondent violated
Sec. 8(a) I) and (3) of the Act by discharging employee Donatio, relied, inter
alia, on his findings that Respondent did not have a valid no-solicitation rule.
and that it "conjured up" a no-solicitation rule for the purpose of terminating
Donatio. We agree with these findings and conclusions. Accordingly, we find
it unnecessary to pass on the Administrative Law Judge's further conclusion
that Donatio's discharge was unlawful because it was prompted, in part by
his reading an NLRB pamphlet during Respondent's meeting with employees
on November 28. 1978.
247 NLRB No. 146
The facts, as more fully set forth by the Administra-
tive Law Judge, are as follows. Respondent operates a
chain of grocery stores in the Boston area. In addition
to eight retail stores, it also operated a warehouse
facility from which it distributed produce and grocer-
ies to its retail stores.' The warehouse employed
drivers, who earned approximately $5 per hour, and
warehousemen, most of whom earned approximately
$3 per hour. A few warehouse employees were paid on
a salary basis. The duties of the warehouse employees
including picking up produce and groceries from
wholesalers, delivering them to the warehouse, sorting
them for the various stores, loading and unloading the
trucks, and making deliveries to the stores. Respon-
dent operated this facility in the expectation that it
could perform these functions at less cost than it
would incur by using wholesalers. By the fall of 1978,
there were approximately 13 people employed at the
warehouse, 7 of whom were full-time drivers.
Respondent's overall operations were profitable.
However, for some time prior to August 1978, John
Knapp, Respondent's president and principal stock-
holder, suspected that the warehouse operation itself
might not be profitable. In early August 1978, he
received for the first time an itemized breakdown of
the warehouse operation which revealed that it was
losing money. Shortly thereafter, Knapp met with
Warehouse Manager Thomas Trudeau, and began
discussing ways in which to eliminate the warehouse's
losses. According to Respondent, as a result of this
and subsequent meetings, it initiated various changes
in its warehouse operation. These changes were
implemented over an extended period of time, begin-
ning in late August and September and continuing on
into December. During this period, Respondent im-
plemented a driver log system to provide information
In adopting the Administrative Law Judge's conclusion that Respondent
violated Sec. 8(a)(1) and (3) by discharging Dennis Damiano, we additionally
rely on the fact that. on several occasions prior to his discharge, the
warehouse manager. Thomas Trudeau. unlawfully interrogated Damiano
about the Union, and threatened that the warehouse would shut down if the
Union's campaign were successful.
' The Administative Law Judge found that Respondent had closed its
warehouse operation, and recommended that it post notices at all of its stores
and at its main office. While the record indicates that the warehouse was
scheduled to close on April 15, 1979, 3 days after the close of the hearing,
there is no evidence that it has closed. Consequently, we shall order that
notices be posted at the warehouse if it is still maintained by Respondent.
Additionally, we shall require that copies of the notice be mailed to each
employee of the warehouse employed during the time the unfair labor
practices herein found occurred. See Fitzpatrick Electric. Inc., 242 NLRB 739
(1979). Inasmuch as these unfair labor practices involved Respondent's
warehouse employees, we shall not order notices posted at Respondent's
stores and at its main office. See Stone Webster Engineering Corporation,
220 NLRB 905 (1975). We shall leave to the compliance stage of this
proceeding resolution of any matters raised by the question of Respondent's
continued operation of its warehouse.
' Respondent first opened a warehouse in late 1976 to handle only produce
on Clinton Street in Malden, Massachusetts. In 1977, the warehouse moved to
larger quarters on Charles Street in Malden. Gradually, the warehouse also
began to handle groceries and nonfood items, and by the spring of 1978 it
handled most of Respondent's groceries in addition to produce.
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on how the drivers' time actually was spent; eliminat-
ed the practice of scheduling the drivers to work a 2-
1/2 day, 40-hour week; allegedly hired more lower
paid warehousemen to do nondriving work which had
previously been done by the higher paid drivers;
replaced multiple-stop grocery deliveries with one-
stop, full grocery load deliveries; dispatched trucks to
avoid rush hour traffic; and notified stores to give
Respondent's trucks unloading priority. Respondent
also made other minor changes.
On September 14, 1975, the Union demand recogni-
tion. Respondent reacted to the recognition demand
by committing various unfair labor practices. Specifi-
cally, Knapp called Trudeau immediately after the
recognition demand and told him, "[W]hen you find
out anything, give me a call." Trudeau then proceeded
to call several drivers, interrogate them about the
union campaign, threaten to reduce their hours until
the union question was resolved, and threaten them
with closure of the warehouse because of the Union.6
In one instance, he asked a driver to report on the
activities of fellow employees. On the same day,
Trudeau, suspecting that a gathering of employees at a
local bar involved union activities, engaged in surveil-
lance of the employees. Thereafter, Trudeau continued
to engage in unlawful interrogation of the drivers,
repeated the treat of warehouse closure because of the
advent of the Union, threatened discontinuance of
benefits because of the union activity, and threatened
to impose a more onerous condition of employment by
requiring drivers' tests if the warehouse "went union."
Additionally, shortly before the December 6 Board-
conducted election, Respondent discharged employees
Paul Donatio and Dennis Damiano for engaging in
union activities.
On or about September 18, 4 days after the Union's
demand, Respondent posted a notice stating that
drivers were not to punch in until their trucks were
loaded, were to punch out on return from a delivery,
and were not to punch back in until their trucks had
been reloaded. Previously, the drivers had remained
on worktime between loads, and had assisted in
loading and unloading their trucks. As a result of
Respondent's notice, this loading and unloading work
was to be performed by warehousemen. Respondent's
payroll records indicate that this change did result in a
reduction in the drivers' hours. However, because of
intense opposition from the drivers, these new punch-
in, punch-out procedures continued only for a period
of a few days to 2 weeks. Respondent then began
scheduling drivers so that a driver would come in only
when a truck was ready and would be sent home at the
end of a run, with a second driver called in to take the
truck out for a second run once it was loaded.
' Trudeau had made similar unlawful threats of closure in March 1978 in
response to discussions among the drivers about the need for a union.
Warehousemen continued to perform the loading and
unloading work previously done by the drivers. The
drivers' hours continued to decline from their prior
average of nearly 40 hours per week to a low of 15
hours per week in the middle of October. Concurrent
with these changes, Respondent reassigned John
Catalano, a salaried warehouse employee who had
been Trudeau's assistant and who previously had
performed little driving. In mid-September or early
October, Catalano started to spend half of his 45-hour
week driving, and about mid-October started driving
on a full-time basis. Meanwhile, on September 18,
while driving from the market to the warehouse,
Trudeau told Donatio not to blame him for what was
happening, and that Knapp would do everything he
could to "make it miserable" for the employees so that
they would quit. After they reached the warehouse,
Trudeau reiterated that it was Knapp who had cut the
drivers' hours.
Shortly after the reductions in hours began, Catala-
no asked Trudeau why the drivers' hours were being
reduced. According to Catalano's credited testimony,
Trudeau replied that, if the drivers could not support
their families on so few hours, they would "have to
quit and the union thing would go down the drain."
Subsequently, in late October, two of the original
seven full-time drivers quit, and the hours worked by
the remaining five increased, first to approximately 30
hours per week and then to 35 in the 2 weeks
immediately before the representation election on
December 6. Following the election, the remaining
drivers resumed working approximately 40 hours per
week.
We conclude that the General Counsel has estab-
lished a prima facie case that Respondent instituted a
punch-in, punch-out, between-loads policy and re-
duced the drivers' hours in response to their union
activity. In reaching this conclusion, we note that
Respondent had demonstrated its animus toward
union activity as indicated by its numerous other
unfair labor practices. Thus, it threatened to cut the
drivers' hours and admittedly reduced the drivers'
hours immediately following the Union's bargaining
demand. Furthermore, it reassigned Catalano to full-
time driving duties at a time when its regular drivers'
hours were drastically curtailed, and, after the reduc-
tions began, it admitted, through its warehouse
manager, Trudeau, that the reductions in hours were
designed to force drivers to quit so that the union issue
would disappear.
Respondent contends that the reductions in hours
were the direct result of its effort to eliminate the
warehouse's losses. Respondent contends that the
measures it took were designed to reduce the ware-
1080
HI-LO FOODS
house's labor costs, either by replacing higher paid
drivers with lower paid warehousemen on nondriving
work or by reducing the total number of hours of
driving time, and that it had decided and had begun to
implement these measures in late August and early
September prior to the Union's recognition demand.
Respondent also claims that the reassignment of
Catalano to driving duties is consistent with its
purported economic justification because his salary of
$180 per week was higher than the approximately
$120 per week paid most warehousemen.
Respondent's defense does not withstand scrutiny.
While there is no question that some changes in the
operation of the warehouse were made before the
Union demanded recognition, Respondent has failed
to demonstrate that the reduction in the drivers' hours
was the result of decisions made before the recognition
demand. Thus, although Knapp and Trudeau testified
to the general timing of the changes in operation, they
were unable to specify precisely when the changes
were planned, and their testimony was conflicting as
to the timing of the changes. Furthermore, Respon-
dent failed to present any documentary evidence to
establish that it had decided to implement changes to
eliminate losses prior to the Union's demand. Indeed,
its own pay records disprove its claims. Respondent's
claim that it hired warehousemen the first week of
September to perform the loading and unloading work
which the drivers had done previously is belied by the
failure of the pay records to reflect any immediate
reduction in drivers' hours as might have been
expected. Indeed, the pay records show no significant
reductions in hours until after the recognition de-
mand, some 2 weeks after the hiring of the new
warehousemen. Trudeau's testimony that this was due
to the time that it took to train the new warehousemen
is less than persuasive; Respondent has offered no
evidence that the duties of its warehousemen involved
more than unloading and loading, that it previously
gave its warehousemen such a training period, or that
such duties required such a training period. Respon-
dent also has failed to establish that Catalano's
reassignment first to half-time and then to full-time
driving duties from his previous primarily nondriving
position was planned prior to the Union's demand.
Furthermore, in light of Trudeau's admission to
Catalano that the regular drivers' hours were reduced
so that the regular drivers would quit and the Union
issue would disappear, and the fact that Catalano's
driving time markedly increased at the same time the
hours of the regular drivers drastically were decreased,
we conclude that Respondent's asserted reason for
Catalano's reassignment is not convincing.
It is true that Respondent made some changes in
the operation of the warehouse before the Union
demanded recognition. However, these changes are
insufficient to explain the significant reductions in
drivers' hours beginning September 14. For example,
Respondent terminated the practice of 2-1/2 day, 40-
hours weeks prior to September 1. While this change
may very well have resulted in increasing the efficien-
cy of the drivers, it could not be expected to affect the
total number of hours which they worked, and
Respondent does not contend that it did. Similarly,
implementation of single-store grocery deliveries
might have made more efficient use of Respondent's
trucks, but would not have reduced the drivers' hours
to the drastic extent that occurred here. Additionally,
Respondent has not established, nor even asserted,
that the other changes which it made would affect the
drivers' hours so drastically. Finally there is no
evidence that the decline in hours was due to any
reduction in the amount of groceries and produce
which the warehouse handled. Accordingly, we con-
clude that Respondent has failed to establish its
economic defense, and therefore has failed to rebut the
General Counsel's prima facie case.
In sum, the record reveals that, immediately after
the Union's demand for recognition, Respondent
embarked upon a course of unfair labor practices
designed to dissuade its employees from supporting
the Union, which included, inter alia, unlawful inter-
rogations; surveillance; threats of the discontinuation
of benefits, more onerous working conditions, reduc-
tions in hours, closure of the warehouse; and the
discharge of two employees. Further, within days
following the Union's demand, Respondent imple-
mented new punch-in, punch-out procedures which
resulted in an abrupt curtailment of the drivers' hours,
and, although Respondent subsequently rescinded
such procedures, thereafter the drivers' hours contin-
ued to declined drastically as a result of other
measures taken by Respondent. Finally, during the
period of the reduced hours, Trudeau stated to
employees that the reduction in the drivers' hours was
due to the union activity, and that Knapp would do
everything he could to "make it miserable" for the
employees so that they would quit. In light of the
timing of Respondent's changes, its demonstrated
animus and its commission of contemporaneous unfair
labor practices, including, particularly, Trudeau's
statements prior to and during the period of the
reduction in hours concerning the reason therefor, and
Respondent's failure to establish its economic defense,
we conclude that Respondent instituted its punch-in,
punch-out policy and reduced the hours of its drivers
because of their union activity in violation of Section
8(a)(1) and (3) of the Act.
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Substitute the following for the Administrative Law
Judge's Conclusion of Law 4:
"4. By the acts and conduct set forth above in
Conclusion of Law 3; by coercively interrogating
employees concerning their union activities and the
union activities of other employees; by threatening to
reduce working hours and to close the warehouse in
reprisal for union activities; by threatening to elimi-
nate profit-sharing benefits in reprisal for union
activities; by engaging in surveillance of the union
activities of employees; by requesting employees to
report the union activities of other employees; by
soliciting grievances with the implied promise of
adjusting said grievances in order to dissuade employ-
ees from supporting the Union; and by threatening to
impose upon employees more onerous working condi-
tions in reprisal for unionization, Respondent herein
violated Section 8(a)(l) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Knapp
Foods, Inc. d/b/a Hi-Lo Foods, Malden, Massachu-
setts, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph I(c) and reletter
the subsequent paragraphs accordingly:
"(c) Engaging in surveillance of the union activities
of employees."
2. Substitute the following for paragraph 2(d):
"(d) Post at Respondent's warehouse facility in
Maiden, Massachusetts, if it still maintains such
facility, copies of the attached notice marked 'Appen-
dix.'" Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material. Respondent shall also mail a signed
copy of said notice to each employee on the payroll of
its Malden, Masachusetts, warehouse facility as of the
time the unfair labor practices found herein occurred
immediately upon receipt thereof from the Regional
Director for Region 1."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employ-
ees concerning their union activities or the union
activities of other employees.
WE WILL NOT request employees to report on
the union activities of other employees.
WE WILL NOT engage in surveillance of the
union activities of employees.
WE WILL NOT threaten to reduce working
hours and to close the warehouse in reprisal for
union activities.
WE WILL NOT solicit grievances from employ-
ees under the implied promise that such griev-
ances will be adjusted if employees abandon their
union activities.
WE WILL. NOT threaten to eliminate profit-
sharing benefits or any other benefits in reprisal
for union activities.
WE WILL NOT threaten to impose upon em-
ployees more onerous working conditions if they
engage it union activities.
WE WILL NOT discharge or reduce the working
hours of employees or otherwise discriminate
against them in their hire or tenure of employ-
ment in order to discourage their membership in,
or activities on behalf of, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union 841, or any
other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
National Labor Relations Act, as amended.
These rights include the right to engage in self-
organization, to form, join, or assist any labor
organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, or to refrain from the exercise of any
or all such activity.
WE WILL offer Paul F. Donation and Dennis
Damiano, immediate and full reinstatement to
their former positions or, if those jobs no longer
exist, to substantially equivalent employment,
without prejudice to their seniority or any other
rights and privileges previously enjoyed, and WE
1082
HI-LO FOODS
WILL make them whole for any loss of pay which
they have suffered by reason of the discrimination
practiced against them, with interest.
WE WILL make whole all drivers whose
working hours were cut on or after September 14,
1978, for any loss of pay which they suffered by
reason of the discriminations practiced against
them, with interest.
KNAPP FOODS, INC. D/B/A HI-Lo FOODS
DECISION
STATEMENT OF THE CASE
WAI.TER H. MALONEY, JR., Administrative Law Judge.
This case came on for hearing before me in Boston,
Massachusetts, upon a consolidated unfair labor practice
complaint', issued by the Regional Director for Region I,
which alleges that Respondent Knapp Foods, Inc., d/b/a
Hi-Lo Foods,' (sometimes called Hi-Lo) violated Section
8(aX1) and (3) of the National Labor Relations Act, as
amended. More particularly, the consolidated complaint
alleges that Respondent engaged in various acts of coercive
interrogation of employees, threats to close the warehouse
and to discharge employees because of their union activities,
unlawful solicitation of grievances during an organizing
campaign, threats to cut working hours and to discontinue
profit-sharing benefits in reprisal for union activities, re-
quests to employees to report information concerning the
union activities of other employees, and threats to impose
more ornerous or difficult standards upon drivers in reprisal
for unionization. The consolidated complaint also alleges
that Respondent drastically reduced the working hours of its
trucksdrivers in reprisal for their union activities, that it
discriminatorily changed working conditions by requiring
drivers to clock out during "down" time, and that it
unlawfully discharged the Charging Parties, Paul F. Donatio
and Dennis Damiano. Respondent denies most of the
allegations of independent violations of Section 8(a)(l),
urges that the threat to close the warehouse which was
uttered by the warehouse manager should not be deemed a
violation because he retracted the threat, and that Donatio
and Damiano were discharged for cause. Respondent con-
tends that the reduction in hours was due to efforts to
streamline the operation of the warehouse to make it more
efficient and not because of the unionization of the truck-
drivers. It also argues that approximately three alleged
violation of Section 8(a)(1) of the Act are barred from
' The principal docket entries herein are as follows: Charges filed by Paul
Donatio. an individual, against Respondent in Case I1-CA-14956 on Septem-
ber 15, 1978, and in Case I-CA-15306 on December b, 1978: a charge filed by
Dennis Damiano. an individual, against Respondent on December ,. 1978; a
complaint issued the Regional for Region I against Respondent in Case I-
CA-14956 on November I, 1978; Respondent's answer to that complaint filed
November 9, 1978; a consolidated complaint issued by the Regional Director
for Region 1 against Respondent on January 19, 1979; Respondent's answer
to the consolidated complaint filed February 2. 1979 a hearing held in
Boston, Massachusetts on March 28 and 29 and April II and 12, 1979; and
briefs filed with me by the General Counsel and Respondent on June II, 1979
Respondent admits, and I find. that it is a Massachusetts corporation
prosecution by Section 10(b) of the Act. Upon these
contentions, the issues herein were drawn.'
FINDING OF FACT
I. THE UNFAIR I.ABOR PRACTICES AI.IEGED
Respondent began to operate a chain of retail grocery
stores in the suburban areas surrounding Boston in 1974. At
first it opened five stores. In 1977, it opened three more. It
currently has eight retail outlets. The principal stockholder,
president, and operating manager of Respondent is John A.
Knapp, Jr., who maintains his office at the Hi-Lo headquar-
ters in Newton. Late in 1976, Knapp became convinced that
it would be an economy to open a warehouse or terminal and
to use company employees to deliver produce to its various
stores rather than rely upon wholesale grocery companies to
do so since the latter exact a charge for delivery which
Knapp hoped could be reduced by inaugurating a company
warehouse and deliver operation. Late in 1976, Respondent
opened a warehouse on Clinton Street in Malden, rented
three trucks, and hired three truckdrivers. Thomas Trudeau
was moved from one of the retail stores and was appointed
warehouse manager. The Clinton Street location proved to
be inadequate to Respondent's needs so, in 1977, it obtained
larger quarters on Charles Street in Maiden. The events here
in question took place at the Charles Street location.
In addition to purchasing its produce at wholesale
markets and delivering it to Hi-Lo stores, warehouse
employees and drivers also began to handle bulk deliveries of
groceries and non-food items. In the spring of 1978, when
drivers at its grocery supplier went on strike, Respondent
began to purchase a larger proportion of its groceries
directly from manufacturers and deliver them from the
warehouse to its stores, thereby eliminating a middleman for
a large quantity of items. As a result of this procedure, the
size of the warehouse operation grew to the point where, by
the fall of 1978, Respondent employed a total of about 13
drivers and warehousemen.
Throughout 1977 and early 1978, the drivers periodically
became upset over the hours they were called upon to work
and the compensation they received. Originally, Respondent
did not pay its drivers overtime for hours worked in excess
of 40 in any single week, preferring instead to make
somewhat indefinite profit-sharing payments. When this
arrangement proved unsatisfactory to the drivers, Knapp
gave them the option of being paid on the clock for their
overtime or to receive a straight salary plus profit sharing.
The drivers elected different options. In the spring of 1978,
when Respondent was enlarging the scope of its warehouse
and delivery operations to handle a greater volume of
which maintains its principal place of business at Newton. Massachusetts. It
operates retail grocery stores and a warehouse in the metropolitan Boston
area. During the course and conduct of this business, Respondent derives an
annual gross revenue in excess of 500.000 and annually purchases directly
from points and places located outside the Commonwealth of Massachusetts
goods and merchandise valued in excess of s50,000. Accordingly. Respondent
is an employer engaged in commerce within the meaning of Sec. 2(2). (6). and
(7) of the Act. International Brotherhood of Teamsters Chauffeurs, Ware-
housemen, and Helpers of America, Local Union 841 (herein sometimes
called the Union or the Teamsters), is a labor organization within the meaning
of Sec. 2(5) of the Act.
'Certain errors in the transript have been noted and are hereby corrected.
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
groceries, drivers began to be unhappy over scheduling so
Trudeau held a social gathering for them at his apartment to
discuss the problem. The nub of the scheduling problem was
how to provide 40 hours or more of work each week
equitably to six drivers when the Company was operating
only three trucks. Everyone agreed to a scheme whereby
every week a driver would work 2 long days, amounting to
16-18 hours each, and I short day, amounting to about 8
hours, thereby permitting total of all three trucks on a 6-day-
a-week basis.
Some drivers also began to discuss among themselves the
need for a union. Truckdriver Robert Silva, Jr., testified
credibly that, sometime in March after he had finished a
truck run, Trudeau called him into the office and asked him,
"What's this I hear about you talking about a union?"
Trudeau asked Silva how he would vote if there was a vote
on unionization. Silva replied that he would vote yes.
I credit the corroborated testimony of Paul Donatio that,
on the day following the above-recited Trudeau-Silva
conversatoon, Trudeau had another conversation with Do-
natio and Silva, stating to the two men, "I got word you guys
are trying to start a union." Donatio replied that they had
been promised raises and never received them. Trudeau went
on to ask why they thought a union might benefit them,
adding that "if you guys go union, Jack (Knapp) will close
the warehouse. You will be out of a job and you will put
everyone else out of a job. People are going to start to hate
you." Donatio replied by asking why he should work for
$200 a week to save a secretary's job. Trudeau simply
reiterated, "You guys will never pull it off," adding that
"Jack would close the warehouse and go back to handling
just produce before he lets a union in here." Trudeau told
Silva and Donatio that they had the wrong attitude and that,
if they wanted more money, they should leave. Trudeau said
that they would not be fired, but that they should start
looking around for another job. Both stated that they were
not too happy working there. Silva added that he already
had a job prospect at Monarch Food Company.
Sometime early in September, a number of drivers were
discussing their employment at a local bar. In the course of
their conversation, the bartender began to sympathize with
their position and offered to put them in contact with a
Teamster business agent. He made the appointment for a
meeting and, on Sunday morning, September 10, Robert
Silva, his brother Brian Silva, Donatio, truckdrivers Ray
Glionna and Robert Lucarotti, and other warehouse em-
ployees met at a restaurant with a representative of Teamster
Local 181. The business agent explained to them the
procedure for unionization and discussed some of the
benefits of unionization. The following day Glionna went to
the Teamster office and obtained some designation cards
which he brought to a meeting which Donatio held the
following evening at his home. Several drivers signed cards
which Donatio returned to Andy Belleman, a Teamster
business agent. Belleman immediately filed a representation
petition.
Belleman also sent Knapp a telegram demanding recogni-
tion. Knapp received the telegram at his office in Newton on
Thursday morning, September 14, and immediately phoned
Trudeau at the warehouse. He asked Trudeau to find out
what the telegram was all about, intending by this inquiry
that Trudeau should contact various drivers to solicit
additional information. Trudeau testified that when he first
heard about the union request, he was "in shock." He
described his feeling as being angry, hurt, and upset.
Trudeau immediately phoned Donatio at his home and
asked him about the union demand. Donatio feigned
ignorance and replied "What union?" Trudeau told him that
Knapp had a letter from a union saying that the warehouse
employees wanted to work union. Donatio denied knowing
anything about it. I credit Donatio's statement that Trudeau
also said during this phone call that drivers' hours would be
cut to 20 hours a week unless the Company could find out
who was organizing it. Donatio reminded Trudeau that this
was his scheduled day off and asked Trudeau when he would
work again. Trudeau said he would get back to him. When
he called again, Trudeau said that Donatio would be off the
following day and told Donatio he would call again on
Saturday to let him know when he would work again.
Donatio's next work day was Monday, September 18.
On September 14, Trudeau also called Robert Silva and
ultimately reached him while he was making a delivery at
the Quincy store. He told Silva that Knapp had received a
letter to the effect that there was going to be a vote on the
question of unionization. Silva denied any knowledge of
unionization. Trudeau then said he had talked with Dona-
tion and that Donatio had told him everything about it. Silva
still feigned ignorance. Trudeau then said to Silva that he felt
it was Donatio, Peters, and Silva who were responsible for
starting the union and that Knapp was going to cut drivers'
hours until the matter got straightened out. having a phone
conversation with Silva on this occasion concerning the
Union, but denies the threat to cut working hours. I
discredit his denial.
On this same day, driver Ray Glionna phoned the
warehouse from the Walpole store to speak to Trudeau
about a shortage in the shipment. Trudeau told him that
Knapp had gotten a letter from a union saying that someone
was trying to organize the warehouse and asked Glionna if
he knew anything about it. Glionna said he knew nothing.
Trudeau then told him that his working hours would be cut
from 40 to 20 until "this thing blows over." Trudeau also
phoned truckdriver Mark Stremeckus and reached him at
home. He asked Stremeckus if he had heard anything about
a union. When Stremeckus said that he had heard nothing,
Trudeau asked Stremeckus to let him know if he did hear
anything. Trudeau also told Stremeckus on this occasion
that drivers' hours would be cut until the union matter was
cleared up. On the following day, Trudeau again spoke with
Stremeckus, this time at the warehouse, and asked Stremec-
kus if he had heard anything. Stremeckus replied that he had
heard nothing.
On September 14, a number of the drivers planned to go
to the Bellingham Bar in Everett after work for an informal
commemoration of the birthday of John Catalano, a lead-
man in the warehouse. The gathering apparently began to
take shape when Catalano asked Silva at the warehouse, in
Trudeau's presence, if he wanted to meet him after work for
a few drinks. He made the same suggestion to Donatio.
Sometime during the day, Trudeau had told Catalano about
the union demand which had been sent to Knapp and asked
Catalano if he was not really going to the Bellingham bar for
1084
HI-LO FOODS
a union meeting. He asked Catalano who was going to be
there, adding that if he wanted to find out he could come
down and see whose cars were parked outside the bar.
Catalano said that it was just going to be a harmless little
get-together and suggested that Trudeau could join them if
he did not believe him.
After work Trudeau went to the Bellingham Bar, walked
in, saw a number of Respondent's employees at a table, and
left the bar without joining them. In his testimony, Trudeau
said that he could not say for sure that the gathering was a
union meeting, but it certainly did not look like a birthday
party, so he left.'
On September 15, Donatio filed the first of three charges
which appear in this consolidated docket. This charge, filed
in his own name, alleged that Respondent had unlawfully
cut hours, interrogated employees concerning union activi-
ties, and threatened to discharge employees who assisted
Teamster Local 841. There is no factual question that
Respondent materially cut drivers' hours. For many months,
all drivers had been driving at least 40 hours a week during a
normal work week and they frequently worked overtime.
From this point forward, until mid-December, most drivers
were driving about 20-25 hours per week. According to
records placed in evidence, a driver would occasionally drive
in excess of this number of hours during a particular week,
but the reverse situation was also true. On some occasions,
drivers would be assigned to work less than a 20 hour week.
At or about this same time, Catalano was removed from his
position as Trudeau's assistant in the warehouse and was
assigned work full-time as a truck driver. I credit Catalano's
testimony that, in mid-September or early in October, he
started driving on a half-time basis, working a total of 45
hours a week and driving about half of that time, and that,
about mid-October, he began to drive on a full-time basis.
On one occasion, Catalano asked Trudeau in Trudeau's
office why he was assigning drivers to work only 20 hours a
week, arguing that they could not support their families with
such earnings. Trudeau's credited reply was that, if they
could not support their families on such hours, they would
have to quit and the Union would go down the drain.
Several witnesses testified, and Trudeau admits, that on or
about September 15, Trudeau told them that Knapp was
going to close the warehouse because of the Union. Trudeau
stated that, upon instructions from Knapp, he retracted this
statement the following week. At least one driver to whom
he reportedly made the retraction denied that any such
retraction was made. I discredit Trudeau's testimony that he
retracted the statement in question.
Shortly after receiving the demand for recognition from
the Union, Trudeau posted a notice at the warehouse which
read as follows:
Attention all drivers:
When coming back from a load you are to punch out
as soon as possible then punch back in when the truck is
ready to go. You are also not to start the day until your
truck is loaded-if not loaded, do not punch in.
Later, a phrase was added that "you are entitled to a break
every four hours (15 min.)" The posting of this notice caused
' Trudeau then retracted this statement, saying that he really should not
have aid that the gathering was a union meeting The men were sitting
around drinking and it just did not look like a party.
considerable consternation among the drivers. The instruc-
tions contained therein were revoked a few days later. The
actual amount of time this regulation was in effect is in
dispute. Differing contentions range from 2 or 3 days to a
couple of weeks. Because this system was not working out
and drivers were complaining about it, Trudeau discontin-
ued it. However, one aspect of the new policy of shortening
hours remained in effect. Two or three warehousemen were
hired in early September and were assigned to do loading
and unloading work which the drivers had previously done
or had assisted in doing. They were paid S2 per hour less
than the drivers. The use of warehousemen for this purpose
either caused or accomodated the shortening of the hours
worked by drivers. Under the new procedure, drivers
frequently would be called in to drive for a relatively short
time and then sent home at the end of a run. His truck then
would be loaded by a warehouseman and another driver
would be called in to take the truck out for a second load,
again for a relatively short time. In other words, two drivers
would drive the same truck on the same day for different
dispatches, whereas previously one driver would be assigned
to a single truck for the entire day.
On the Monday after the receipt of the Teamster demand
for recognition, Trudeau met Donatio at the wholesale
grocery market and offered to drive him back to the
warehouse. I credit Donatio's statement that, as they were
riding in Trudeau's car, Trudeau asked Donatio not to
blame him for what was happening. He told Donatio that
Knapp would do everything he could to make it miserable
for employees so they would quit. Back at the warehouse,
Trudeau reiterated that it was Knapp, and not he, who cut
the drivers' hours. Donatio's credited reply was simply that
Trudeau had never gone to bat for employees before. He
asked Trudeau rhetorically what made him think he could
do so now.
On October 23, a conference was held at the Board's office
in downtown Boston to discuss a pending representation
petition which was filed by the Teamsters. Donatio and
warehouseman-driver Brian Silva attended the meeting in
addition to representatives of the Teamsters and Respon-
dent. December 6 was agreed upon as a date for the election.
During the pre-election period, one of the campaign tactics
used by union supporters at the warehouse was to wear large
union buttons prominently displayed on their clothing.
Donatio frequently talked about the Union as he made
deliveries at the various stores. He said that part of his "war
of nerves" was repeatedly to insist to any inquirers that the
Union would win the election and win it big. On one
occasion, he told Trudeau that his original intention was
limited to bringing the Union into the warehouse, but
because Knapp was trying to "screw" the drivers by cutting
their hours, he was now going to bring the Union into the
stores as well. Trudeau admits that Donatio made this
statement to him.
Stremeckus spoke to Trudeau several times about the
Union. On one occasion at the warehouse, Stremeckus asked
Trudeau if Catalano, who had opted to be paid on the basis
of Respondent's profit-sharing plan, would lose his profit
share if the Union came in. I credit Stremeckus, who
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Trudeau replied that Catalano would lose his
profit share in that event. On another occasion, late in
September or early in October, Trudeau and Stremeckus
spoke together in Trudeau's office. Trudeau asked Stremec-
kus what the men were really after-better pay or better
benefits. Stremeckus replied, "Both." Trudeau then said that
Knapp was, in a moral sense, "screwing" the employees, but
there was no way to prove it. He added that hours would
stay cut until the question of the Union was cleared up.
Trudeau also spoke frequently with Glionna concerning the
union drive. I credit Glionna's statement that, in one such
conversation, Trudeau asked Glionna who were the "ring
leaders" of the union drive. Glionna said he did not know, to
which statement Trudeau replied that it seemed peculiar
that he had asked everyone about the union drive, but no
one seemed to know anything about it. Later on, just before
the election, Trudeau asked Glionna how the vote was going
and how much the Union was going to ask for. He said he
wished they would just "hurry up and go union because
Knapp was driving me crazy," adding that he hoped the
warehouse employees and drivers would not take it out on
him because Knapp was his boss and it was Knapp, rather
than Trudeau, who was giving them a hard time. Trudeau
also told Glionna that, if the warehouse went union, Knapp
would close it. Glionna disagreed so Trudeau changed his
statement saying he did not think so either, but noted that
Knapp had lost $40,000 on the wearehouse the previous
year. Glionna said he did not believe this statement either
and Trudeau again changed his remarks, saying that he also
doubted the figure, but added that Knapp was crazy and so
were his kids. On another occasion, Trudeau told Glionna
that Knapp wanted to bargain with the employees and then
uttered a term of contempt and opprobrium because of
something that Donatio had said to him. On more that one
occasion, Trudeau told Glionna that he knew that things
were going hard on the drivers and that Knapp was trying to
force everyone to quit. During one such conversation,
Trudeau told Glionna that if the warehouse went union,
Knapp would force him to take a driving test. Glionna's
only response was that it would not matter since most
employers require such a test.
During the week immediately preceeding the election,
Trudeau took a vacation and Knapp took personal charge of
running the warehouse. On the afternoon of November 28,
Knapp held a pre-election meeting of drivers and ware-
housemen. It was advertised as a voluntary meeting and that
employees would be paid for their time if they attended. One
of the principal speakers at the meeting was David I.
Reimer, Knapp's attorney. Reimer irritated some of the
employees by calling them babies for going to the union. He
quoted sections of the labor laws and went through a
discussion about the difference between economic strike and
an unfair labor practice strike. Donatio spoke up to say that
if they ever went out on strike it would be an unfair labor
practice strike. Knapp told employees that if they drew up a
proposed contract he would not agree to anything in it.
Reimer also asked employees if they had any gripes. One
complaint that was voiced concerned the scheduling of work
hours. Another related to overloading of trucks. Donatio
' By this time a complaint had been issued by the Regional Director arising
out of the charge which Donatio filed on September 15.
asked Knapp to explain why the drivers' hours had been cut.
Reimer broke in to say that if this was not a union meeting,
that employees were not supposed to be talking union during
the meeting, and that, in fact, it was against law to talk
union at such a meeting. He also stated that this question
would be determined on March 28.' He said that hours had
been cut because the Company realized that the warehouse
was losing money and they had to find a way to correct it.
During the course of the meeting, Donatio was reading a
pamphlet on employee rights which the Board disseminates
to the public. Reimer asked Donatio to correct any of his
statements if Donatio found them to be in error. Donatio's
reply was that Reimer was a professional man and that he
would not place himself in a position of publicly correcting
Reimer.
One of the new warehousemen hired by Respondent early
in September was Dennis Damiano. During the organizing
campaign, Damiano attended an informal meeting at Dona-
tio's house and signed a union card. He discussed the
progress of the campaign from time to time with Trudeau. In
the course of one of these conversations, Trudeau told
Damiano that, if the Union got in at Hi-Lo, the warehouse
would be closed. On the afternoon of November 27, Donatio
arrived at work about 2 p.m. During the afternoon, he
became involved in a minor dispute with the night ware-
house manager, Robert Botelho, who saw Damiano eating
lunch at an unauthorized time. Botelho instructed him to
return to work. Later on in the evening, Damiano became ill.
I credit his corroborated testimony that he went up to
Botelho, who was in the process of loading a pallet, and told
Botelho that he was sick and was going home. He then left
the warehouse. I credit the testimony of Brian Silva that, on
the following morning, Botelho and Trudeau were discuss-
ing Damiano's action in leaving the plant. While Botelho
was telling Trudeau that Damiano had left without permis-
sion and without any explanation, Silva chimed into the
conversation to say that Damiano left because he had taken
ill.
I credit Damiano's testimony that, on the afternoon of
November 28, he came to the plant at 2 p.m. to attend the
meeting which Knapp had arranged for all the employees
who were scheduled to vote at the December 6 election.
Damiano spoke with Trudeau and asked him what time the
meeting was supposed to begin. Trudeau replied that the
meeting was supposed to begin at 3 p.m. and added that
Damiano was scheduled to be working. Damiano disagreed,
insisting that Trudeau did not have him on the work
schedule. Trudeau checked the schedule and found that, in
fact, Damiano was scheduled to be off. Damiano then left
the building and did not attend the November 28 meeting
described above.
On the following day, Damiano reported to work at 2 p.m.
He noted that his timecard was not in the rack next to the
clock. Botelho approached him and handed him two checks,
telling him that he was fired because he failed to attend the
meeting the previous day and because he left work on
Monday evening without permission. Damiano replied that
he thought that attendance at the meeting was not mandato-
ry. He took his check and left.
1086
HI-LO FOODS
On December 4, 2 days before the representation election,
Donatio made a delivery at the Hi-Lo store in Walpole. His
truck was parked near the dock and he was standing on the
loading dock, waiting for a refuse truck to be loaded so he
could back his vehicle up to be unloaded. While he was
waiting, he engaged Walpole store employee Mark Allen in
conversation about the Union. Donatio urged Allen to join,
saying that the unionization of the warehouse was going
through and, in effect, that Allen ought to get on the
bandwagon. There is some dispute as to whether Donatio
actually offered Allen a card. In any event, Allen refused to
join, informing Donatio that the whole matter made little
difference to him since he was going to join the Marine
Corps.
Later on that day, Store Manager Anthony Abatsis found
a union card and some union literature in the men's room at
the Walpole store. Before touching or moving the literature,
he looked around the store for someone to witness the fact
that the literature was lying in the men's room. He looked
for Allen, but Allen had gone home. He ultimately located
the assistant store manager, who came to the men's room to
witness the location of the material in question.
Abatsis immediately phoned Knapp, told Knapp what he
had found, and mentioned that Donatio had made a delivery
to the store not long before the discovery of the literature.
He also voiced his suspicion that Donatio might have been
talking with Allen. Knapp asked Abatsis to find out if
Donatio had been talking with Allen and if Allen would
testify to this effect. Abatsis contacted Allen and reported
back to Knapp that Donatio had spoken with Allen and that
Allen had agreed to testify.
On the next afternoon, December 5, when Donatio
reported to the warehouse for work, Knapp fired him.
Knapp told Donatio he was doing so because of Donatio's
union activities on company time. He gave Donatio a
handwritten statement which said:
You are hereby discharged for violation of the no
solicitation during working hours and around work
areas company rule. You have previously been warned
regarding no soliciting and you are aware of the
company's policy.
During the company meeting you produced your
copy of the National Labor Relations Act and read
from its rules. Your insubordination and your greater
interest in soliciting cards to be signed for a union
during working hours rather than performing your job
has led to your termination.
Knapp accused Donatio of trying to destroy the Company,
adding that he did not know why Donatio was doing so.
Donatio's answer to the written statement that he was
merely reading a pamphlet at the November 28 meeting, and
that he was not reading it out loud. Donatio then left the
building.
The representation election took place the next day.
Donatio went to the Board office and filed the third of the
three charges involved in these consolidated cases. He then
proceeded to the warehouse and attempted to vote, but
Knapp directed him to leave the building because he had
been fired and was ineligible to vote. The Union ultimately
won the election by a vote of 6 to 4 and was certified in
February 1979, after certain challenges had been resolved.
However, no bargaining has taken place since the warehouse
was scheduled to be closed on April 15.
II. ANAL.YSIS AND CONCLUSIONS
A. The March 1978 Incidents
I have found as a fact that, in March 1978, Trudeau asked
Donatio and Robert Silva why they thought a union might
benefit them and also told them, in the course of the same
conversation, that if they formed a union Knapp would close
the warehouse and put everyone, including themselves, out
of a job. He also told the men that if they had a bad attitude,
that if they wanted more money they should work elsewhere,
and he went on to suggest that they find themselves other
employment. Such statements constitute unlawful and coer-
cive interrogation, an unlawful threat, and an unlawful
interference with union activities all in violation of Section
8(a)(1) of the Act. On the previous day, Trudeau had called
Robert Silva into his office, asked Silva about a conversation
he had concerning union activities, and also asked him how
he would vote in a representation election. Such interroga-
tion, by the highest management representative on the
premises in the locus of managerial authority, probes into a
private conversation and into thought processes of an
employee and constitutes coercive interrogation in violation
of Section 8(a)(1 ) of the Act.
Respondent contends that any violations of the Act which
occurred during this period of time are barred from
prosecution by the 6-month limitation contained in Section
10(b) of the Act. The first charge in this consolidated case
was filed on September 15, 1978, so any conduct of
Respondent occurring before March 15 could not be the
subject of an unfair labor practice complaint. The problem in
applying the Act to these facts is that the only indication in
the record of when these conversations took place is
sometime in March. The record is entirely silent as to
whether they happened before or after March 15, when the
period of limitations began to run.
It is settled law that Section 10(b) of the Act is an
ordinary statute of limitations. N.L.R.B. v. Silver Bakery,
Inc., of Newton. Massachusetts et a., 351 F.2d 37 (Ist Cir.
1965). As such, it is an affirmative defense which must be
asserted in a timely manner by anyone wishing to rely upon
it. Shumate, et al. v. N.LR.B.. 452 F.2d 717 (4th Cir. 1971);
Vitronic Division of Penn Corp., 239 NLRB 45 (1978).
Because the statute of limitations contained in Section 10(b)
is an affirmative defense, the burden of proving the facts
which support the defense necessarily rests upon a respon-
dent who pleads it. If a respondent fails in that burden, the
consequence of such failure is a finding that a violation has
occurred if the General Counsel has met his burden of
establishing facts sufficient to prove a violation.
As noted, it is unclear whether the facts which have been
established by the General Counsel concerning a series of
violations committed by this Respondent in March 1978
occurred before or after the 15th day of that month. Hence,
the mind of the trier of fact must be in equipoise on that
point. In establishing a defense of limitations, Respondent
had the burden of proving that these events occurred before
March 15 and that they did not occur on or after that date.
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent placed in the record no evidence on that precise
point and there is no other evidence in addition to above
noted statements of prosecution witnesses. Indeed, Respon-
dent's position is that the incidents which were alleged and
established by the General Counsel did not occur at all.
Inasmuch as the bearer of the burden of proof on the
question of limitations has failed to meet that burden, I am
constrained to find that its defense has not been established,
so the substantive violations of the Act which have been
proved must be allowed to stand.
B. Other Independent Violations of Section 8(a)(1)
1. After receiving word from Knapp on September 14 that
the Teamsters had made a demand for recognition, Trudeau,
at Knapp's direction, made a systematic inquiry into the
union activities of his drivers. He phoned Donatio and asked
him what he knew about the union campaign. In that
conversation, Trudeau threatened to cut drivers' hours to 20
per week because of the prospective unionization of the
warehouse. Such statements constitute unlawful interroga-
tion coupled with an unlawful threat and violate Section
8(a)(1) of the Act.
2. As part of this systematic inquiry into the union
activities of his employees, Trudeau phoned Robert Silva
and asked him what he knew about the union campaign. He
repeated to Silva the unlawful interrogation of Donatio
which had just occurred and then uttered the same threat to
cut drivers' hours that he made to Donatio. Such statements
constitute more unlawful interrogation coupled with an
unlawful threat and violate Section 8(a)(l) of the Act.
3. Trudeau made the same inquiries and uttered the same
threats in subsequent telephone conversations with Glionna
and Stremeckus. These statements constitute unlawful inter-
rogation and unlawful threats in violation of Section 8(a)(I)
of the Act. Trudeau also asked Stremeckus to let him know
if heard anything about union activities. This request to
report on the union activities of fellow employees is a
violation of Section 8(a)(1) of the Act.
4. On the day following the phone conversations with
drivers concerning the organizing campaign, Trudeau spoke
privately with Stremeckus at the warehouse and repeated his
inquiry about whether Stremeckus had heard anything about
the organizing campaign. This interrogation is merely an
extension or continuation of the coercive interrogation
which occurred the day before and constitutes another
violation of Section 8(a)(1) of the Act.
5, In the wake of his initial "shock" at learning of the
Teamsters' demand, Trudeau interrogated Catalano as to
whether an informal gathering, set to take place after work
at a local bar on September 14, was in fact a union meeting.
Catalano said it was a birthday celebration and invited
Trudeau to come and see for himself. Trudeau came to the
bar, stayed momentarily, and left. It is obvious from his
original question to Catalano that Trudeau was not interest-
ed in socializing with employees on this occasion, but was
intent upon checking up on them and that his actions would
reasonably be interpreted by them as such. His explanation
for leaving abruptly, namely that a group of men sitting
around a table in a bar and drinking looked more like they
were having a union meeting than a birthday party, is but an
empty collection of words. Trudeau's original question to
Catalano and his visit to the Bellingham Bar following that
question indicated clearly that Trudeau was interested in
placing the union activities of his employees under surveil-
lance and that he did so in violation of Section 8(a)( ) of the
Act.
6. Sometime late in September or in October, Trudeau
told Catalano that Respondent was cutting the hours of its
drivers so they would be unable to support their families,
would have to quit, and the Union would go down the drain.
This statement is an interference with protected activities
and a violation of Section 8(a)(l) of the Act.
7. In response to a question by employee Stremeckus,
Trudeau told Stremeckus that Catalano would lose his
profit-sharing benefit on account of the unionization of the
warehouse. This statement is a threat to discontinue benefits
because of union activity and violates Section 8(a)(l) of the
Act.
8. Trudeau inquired of Stremeckus during the preelection
period whether the men were seeking union support in order
to obtain better benefits or better wages. Stremeckus replied,
"Both." Trudeau said that Knapp was "screwing" the
employees but it could not be proved, and added that
drivers' hours would stay cut until the union matter was
cleared up. These statements constitute coercive interroga-
tion and a threat to deprive employees of an opportunity for
earnings because of their union activities in violation of
Section 8(a)(1) of the Act.
9. When Trudeau asked Glionna who were the ringleaders
of the union drive, he was engaging in coercive interrogation
in violation of Section 8(a)(l) of the Act. When Trudeau
asked Glionna how the vote was going and how much the
union was going to ask for, he was engaging in additional
unlawful interrogation in violation of Section 8(a)(1) of the
Act.
10. When Trudeau told Glionna that, if the warehouse
went union, Knapp would close it, he uttered a threat which
violated Section 8(a)(1) of the Act. When, on several
occasions, Trudeau said he knew that Knapp was trying to
make it hard on the drivers in order to force them to quit, he
was uttering in coercive statements which violated Section
8(a)( ) of the Act.
11. When Trudeau told Glionna that, if the warehouse
went union, he would have to take a driver's test, he was
threatening to impose upon employees a more ornerous
condition of employment in reprisal for union activities in
violation of Section 8(a)(1) of the Act.
12. When, in the course of an antiunion campaign
meeting, Respondent's attorney Reimer asked drivers to
discuss their gripes against the Company, he was soliciting
grievances. The solicitation of grievances during a union
campaign amounts to prima facie evidence that Respondent
is promising to remedy such grievances if the Union is
rejected. In this case, Respondent did nothing to rebut the
presumption which thus arose. Accordingly, Reimer's action
amounted to an unlawful promise of benefits in violation of
Section 8(a)(1) of the Act.
13. Trudeau admits that, just after he received word that
the Union was trying to organize the warehouse, he told
several employees that Knapp would close the warehouse in
the event it became organized. Respondent would excuse
1088
HI-LO FOODS
these statements on the ground that Trudeau later apolo-
gized for his remarks and retracted them. I discredit
Trudeau's testimony that he retracted the remarks. Even if
his retraction is credited, the retraction would not serve to
excuse the original utterance because Respondent continued
to violate the Act with reckless abandon even after the
asserted retractions took place. For a retraction to excuse a
violation, there must be no further violations of the Act by
the offending party following the retraction. This was
certainly not the course of conduct followed by this
Respondent.
C. The Curtailment of Drivers' Hours and the
Requirement of Clocking Out Between Dispatches
Respondent contends that early in August Knapp first
learned that the warehouse was losing money and that he
became determined to make it a profitable operation.
Toward that end, he met repeatedly with Trudeau and began
to institute a number of procedural changes in the way in
which the warehouse was being operated. Regrettably for
the drivers, these changes amounted to a reduction in the
hours which drivers were required to work, but the changes
did reduce (though they did not eliminate) the unprofitabili-
ty of the warehouse. It was mere coincidence that such an
abrupt reduction in the workweek of about seven drivers-a
reduction from 40 or more hours a week to 25 per week-
took place at the exact moment the Teamsters communicat-
ed their demand for recognition.
There is no doubt that in 1978, as well as in first part of
1979, the overall operation of Hi-Lo resulted in a handsome
profit and that, following the realization of these profits,
Respondent's employees, including some of its warehouse
employees, received distributions of profit shares in accor-
dance with Respondent's profit-sharing plan. It can only be
said that the warehouse was an unprofitable operation if one
adopts a cost-accounting report, prepared by Knapp's
nephew who serves as company comptroller, which breaks
out the warehouse operation into a separate profit center,
arbitrarily assigns to the warehouse a proportion of certain
overall company cost factors, and then arrives at the
conclusions that the warehouse is not making money
although the stores serviced by the warehouse are making
money since their efficiency is not saddled with the total of
various overall cost factors in their individual profit and loss
accounts.
The Board may not question the validity or wisdom of an
employer's business judgment in determining the existence
vel non of an unfair labor practice. It can only examine such
actions to determine if bad judgment is not also bad faith in
complying with a statutory obligation. The Board must
assume that, in August 1978, Knapp was entitled to make
the warehouse a more efficient operation than it had been
regardless of the efficacy or reliability of his nephew's profit
and loss reports.
Toward this end, Knapp instituted two major reforms and
a number of lesser ones. He discontinued the previous 2-1/2
day week each driver had been working under the theory
that no man could put in a 16-18 hour day and work
efficiently during the latter hours of such a work day.
Respondent also started single-run deliveries from the
warehouse to its eight stores. It would group grocery and
produce deliveries for a single store into one dispatch, rather
than loading a truck with an assortment of items destined for
delivery at two or three stores. This change was designed to
reduce the amount of driving which was done, even though
it might mean that items would pile up in the warehouse
from time to time waiting for a delivery to be dispatched to a
particular destination.
Respondent experienced a large turnover of warehouse-
men, many of whom worked on a part-time basis. Ware-
housemen are paid $3 per hour while drivers receive $5 per
hour. Using warehousemen exclusively to load and unload
trucks rather than permitting higher priced drivers to do this
work was certainly an economy. Knapp told store managers
to give the unloading Hi-Lo trucks priority over other trucks
when they reached a delivery point, thereby reducing road
time for Hi-Lo drivers. Knapp increased rather than reduced
driving time by one economy measure, namely the backload-
ing or picking up more goods purchased from suppliers
rather than having such goods delivered by the company
from whom they were purchased. The purpose was to obtain
a discount for pickups.
One of the major reforms instituted by Knapp, namely
single-store dispatches, did not take place until December, at
which time the drivers who were still on the payroll resumed
working the 40-hour workweek they formerly enjoyed. This
aspect of Knapp's reorganization could have no bearing on
the precipitous reduction in driver hours which took place,
according to credited testimony of several drivers, beginning
Monday, September 18, the week following the receipt by
Knapp of the Teamsters' demand. While drivers did, in
times past, spend some time in unloading or loading trucks
at the warehouse, this effort constituted but a small portion
of their normal work day. As warehousemen began to do
more of this work, at least three employees, Catalano, Brian
Silva, and Trudeau's brothers, were given markedly in-
creased driving assignments. To increase the driving hours
of three employees while reducing the driving time of seven
or eight regular drivers is an inconsistency which belies the
validity of Respondent's economic defense. Moreover, the
discontinuance of the 2-1/2 day work week took place in late
August and was not immediately followed by any material
reduction in the working hours of the drivers. It was not
until mid-September or late September, after the advent of
the union drive, that drivers began to suffer a substantial
reduction in hours and in pay. Moreover, after the election,
the drivers resumed working a 40-hour week. The timing of
this reduction and its eventual elimination, the effectuation
of this reduction by a Respondent whose collateral violations
of the Act evidenced strong antiunion animus, and the
credited statements by Trudeau to five individuals that their
hours would be or had been cut because of threatened
unionization, make it clear that Respondent did what
Trudeau said it was going to do, namely reduce the working
hours of its seven drivers until the union matter cleared up.
This action violated Section 8(aX1) and (3) of the Act.
At the same time drivers' hours were reduced, a further
"economy" was introduced. Notice was posted that drivers
were not to punch in until their trucks were fully loaded.
Upon returning from a run, drivers were instructed to punch
out and were forbidden from punching in until their trucks
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been reloaded. This radical change in past practice was
announced on or about September 18 and met with intense
opposition. Trudeau said that this requirement was discon-
tinued shortly although some drivers said that it lasted for
about 2 weeks. The amount of time it was in effect can best
be left to the compliance stage of this proceeding. Sufficient
for this decision is a conclusion, following the rationale
outlined above relative to the cut in drivers' hours, that this
further means of cutting the pay of union sympathizers was
motivated by an attempt to take reprisal on drivers because
of their union sympathies and activities and violated Section
8(a)(l) and (3) of the Act.
D. The Discharge of Paul F. Donatio
Donatio had been a truckdriver for Respondent since it
began its warehouse operation late in 1976. Knapp admitted
in his testimony that Donatio was a capable driver and there
is other evidence in the record that he was so regarded.
There is also undisputed evidence that Donatio was a
leading union in-house organizer and that Respondent was
well aware of his activities and his leadership. Previous to his
discharge, Donatio had incurred the attention and the ire of
Respondent's supervision as a leader of the organizing drive
in several union-related situations. Donatio told Trudeau,
who in turn told Knapp, that he was intent upon organizing
not only the warehouse employees, but the retail store
employees as well. When a union card was found on the
premises at the Walpole store on December 4, it was
Donatio who was immediately suspeceted as the culprit
before any evidence had been gathered as to who had left the
card on the premises. At a company campaign meeting held
a week before the election, Donatio was singled out and
criticized publicly for reading a Board-authored pamphlet
on employee rights. Donatio asked an embrassing question
as the meeting concerning the reason that hours had been
cut and was publicly rebuked for his impertinence by
Respondent's counsel. It was Donatio who filed an unfair
labor practice charge which had resulted in the issuance of a
complaint which was outstanding on the date the election
was scheduled to take place, and it was Donatio who
appeared at the Board office in mid-October to assist union
agents in working out an agreement for the election.
Moreover, Donatio was the target of several unlawful
statements and questions from supervisors which were
directed at employees both before and after the Union made
a demand for recognition. The timing of his discharge-the
day before the representation election-serves to make
Respondent's illegal motivation even clearer.
In the face of strong animus, clear company knowledge,
and more than suspicious timing, Respondent asserts that it
was entitled to discharge Donatio because he had violated a
company rule against soliciting union cards on company
time and hence was guilty of insubordination. This conten-
tion should be given only scant pause. Respondent does not
maintain a written no-solicitation or no-distribution rule.
Both the existence of such a rule and its exact content can
Republic Aviation Corporation v. .L.R.B.. 324 U.S. 793 (1945); N.LR.B.
v. Babcock & Wilcox Company, 351 U.S. 105 (1956): N.L.R.B. v. United
Steelwork er of America, CIO Nutone. Incorporated/. 357 U.S. 357 (1958);
Stoddard-Quirk Manufacturing Co.. 138 NLRB 615 (1962): Walton Manufac-
turing Company. 126 NLRB 697 (1960).
only be derived, if at all, from controverted statements of
three supervisors, Knapp, Trudeau, and Abatsis. Knapp
testified, "it is against company policy. There is nothing like
that allowed. I don't care if it is rafe tickets or what it is.
You can't do that on company time." In the course of the
same testimony, he stated, "If you do it on working time,
you are going to be fired for it." Knapp went on to explain,
"The Company had a rule that we do not allow any
solicitation in any of the stores or in the warehouse of any
kind and we ask that people from the outside, we ask them
to please leave the store, and if there are from within, inside
and supposed to be working, they cannot be doing it during
that time." Abatsis, the manager of the Walpole store, stated
that no literature of any kind can be brought into the store.
"I don't let anybody come in with anything." He empha-
sized that no solicitation and no brochures could be brought
into the store, and that rule included bringing literature into
the men's room. Donatio and another driver credibly
testified that they had never been told of any restrictions of
any kind on soliciting or distributing literature, and pointed
out that Respondent maintains community bulletin boards
in all of its stores where customers and others advertise
meetings and goods and services for sale.
The extent and content of lawful no-solicitation rules have
been spelled out in numerous Board and court cases going
back nearly 35 years.' In construing the content and
meaning of such rules, the Board has held that the phrase
"working time" includes only the time, exclusive of lunch
time and breaks, when an employee is expected to be actively
engaged in production. Rules limiting or forbidding solicita-
tion during such periods are presumptively valid. On the
other hand, "company time" has a broader conotation and
embraces the entire span of time an individual is supposed to
be on company premises, including break time and lunch
time. Rules forbidding solicitation on company time are
presumptively invalid.' When a rule is announced which is
ambiguous as to its scope and content, the risk that it can be
construed as an unlawful prohibition against the valid
exercise of Section 7 rights falls upon the employer.
N.L.R.B. v. Miller, et a., 341 F.2d 870 (2nd Cir. 1965).
The descriptions of the rule by Knapp and his subordi-
nate, Abatsis, vary considerably in content. Abatsis' descrip-
tion of the rule makes it plainly invalid and an illegal
intrusion on employee rights. Knapp's description in some
portions of his testimony outlines a presumptively valid rule,
while in other part of his testimony he describes a presump-
tively invalid rule. Donatio and others say that no rule, in
any respect or dimension, ever existed and there is no
written and promulgated version in existence to contradict
their testimony. In light of these conflicts, I conclude that, in
fact, Respondent never had any valid no-solicitation rule
restricting the Section 7 rights of its employees, that the
existence of such a rule was conjured up for the purpose of
discharging Donatio, and that Respondent's reliance on this
asserted rule in discharging Donatio was wholly unfounded.'
In the absence of a valid no-solicitation rule, an employer
may still discharge an employee for soliciting for a union
' The Singer Company. 220 NLRB 1179 (1975); Campbell Soup Company.
225 NLRB 222 (1976).
It should also be noted that the written discharge note or letter handed to
Donatio also mentioned that one of reasons for the discharge was the fact that
he was reading from an NLRB pamphlet during the employee meeting of
1090
HI-LO FOODS
while he is supposed to be working, but an employer who
discharges an employee under such circumstances must
affirmatively show that the action of the employee on the
occasion in question actually impaired or disrupted produc-
tion, Custom Recovery Div. of Keystone Resources, Inc., 230
NLRB 247; (1977) Newport News Shipbuilding and Dry
Dock Company, 233 NLRB 1443 (1977), No showing to that
effect was made here. I have credited Donatio's testimony
that his conversation with Allen at the Walpole store took
place while they were both standing at or near the loading
dock, waiting for a garbage truck to be loaded so that
Donatio could back his delivery truck to the dock. The time
in question was clearly "down time," both for Donatio and
for Allen, and the discussion, which took place only
momentarily, did not in any way disrupt production or
delivery. Accordingly, I conclude that Respondent herein
discharged Donatio for union activities in violation of
Section 8(a)(l) and (3) of the Act.
E. The Discharge of Dennis Damiano
The fact surrounding Damiano's discharge do not make
out the same kind of glaring violation which occurred in
Donatio's case. This does not mean that a violation did not
also take place when Damiano was discharged. Like Dona-
tio, Damiano was fired against a background of strong
animus. He signed a union card and company knowledge of
his union sympathy can be inferred from the fact that he did
not choose to attend a campaign meeting which Knapp had
scheduled a few days before the election. Moreover, the
timing of Damiano's discharge, taking place as it did just a
few days before the election, is likewise suspicious. Along
side these factors we must measure Respondent's defense,
which is that Damiano was discharged because he left work
early without permission.
There is no doubt that Damiano left work on the evening
in question. I have credited testimony that he told Botelho,
his supervisor, that he was leaving and also that he told
Botelho he was leaving because he was sick. Respondent
placed nothing in evidence to dispute the assertion that
Damiano was not feeling well. It does dispute the assertion
that he had permission to go home.
Damiano gave every indication on the stand that he is a
curt and abrupt person. It is readily believable that his
statement to Botelho, to the effect that he was sick and was
going home, was curt and abrupt. However, Botelho made
no reply when he was so informed and, under the circum-
stances, Damiano had the right to assume that silence gave
permission. The fact that Botelho was involved in loading a
skid could hardly explain his failure to make some verbal
response when Damiano spoke to him.
The second curious circumstances surrounding Dami-
ano's discharge was that it was delayed. Botelho and
Trudeau both knew about his early departure the following
day when Damiano came to the warehouse for the campaign
meeting, but they said and did nothing about it. It was only
after Damiano disclosed his lack of interest in the Compa-
ny's campaign effort by not waiting around for a 3 p.m.
November 2, described above. As his reading from the pamphlet was silent
and did not impede or disrupt the progress of the meeting, there is no legal
reason why he should not have been permitted to read a pamphlet. A
meeting that the events of the preceeding evening began to
loom large. It was not until Damiano's second appearance at
the warehouse after leaving early that the matter was even
mentioned to him, and on this occasion, it was used to justify
his discharge. It was also brought up by Botelho, according
to credited testimony, in conjunction with Damiano's failure
to attend what was advertised as a voluntary campaign
meeting. This sequence of events makes out a plain case of a
discharge which was prompted by an overt, if somewhat
oblique, display of union sentiment. It was accomplished for
pretextual reasons by a Respondent who gave ample
collateral evidence that it would go to great extremes to
prevent the unionization of its business. Accordingly, I
conclude that Dennis Damiano was discharged in violation
of Section 8(a)(1) and (3) of the Act. The post-discharge
statements attributed to Damiano have no bearing on the
validity of an action which had already taken place and can
have relevance to this case only with respect to remedy. I
regard the statements attributed to Damiano as merely
blowing off steam in heat of a termination interview, or, to
borrow a phrase, as so much sound and fury signifying
nothing. He left the plant after receiving his final checks and
was not heard from again, except to invoke the Board's
processes. Accordingly, his final remarks should not serve to
nullify the normal remedy available to a discriminatee in a
discharge case.
Upon the foregoing findings of fact and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent Knapp Foods, Inc., d/b/a Hi-Lo Foods, is
an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, Local Union 841,
is a labor organization within the meaning of Section 2(5) of
the Act.
3. By reducing the hours and earning opportunities of
Maurice Demeraut, Paul F. Donatio, Raymond S. Glionna,
Robert Lucarotti, Anthony Peters, Jr., Robert Silva, and
Mark Stremeckus to discourage their union activities; by
requiring drivers to clock out immediately upon their return
to the warehouse and forbidding them from clocking in until
their trucks were ready for dispatch to discourage their
union activities; and by discriminatorily discharging Paul F.
Donatio and Dennis Damiano, Respondent herein violated
Section 8(a)(3) of the Act.
4. By the acts and conduct set forth above in Conclusion
of Law 3; by coercively interrogating employees concerning
their union activities and the union activities of other
employees; by threatening to reduce working hours and to
close the warehouse in reprisal for union activities; by
threatening to eliminate profit-sharing benefits in reprisal for
union activities; by requesting employees to report the union
activities of other employees; by soliciting grievances with
the implied promise of adjusting said grievances in order to
discharge prompted in part by such protected activity is tainted for that
reason alone.
1091
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dissuade employees from supporting the union; and by
threatening to impose upon employees more ornerous
working conditions in reprisal for unionization, Respondent
herein violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practice have a close,
intimate, and substantial effect on interstate commerce
within the meaning of Section 2(6) and 2(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
actions designed to effectuate the purposes and policies of
the Act. As the unfair labor practices of this Respondent
demonstrate a proclivity on its part to violate the Act, as
well as a general disregard of its employees' fundamental
statutory rights, I will recommend to the Board a so-called
broad 8(a)(1) order designed to suppress any and all
violations of that section of the Act. Hickmott Foods, Inc.,
242 NLRB 1357 (1979). The recommended order, will also
provide that Respondent be required to offer to Paul F.
Donatio and Dennis Damiano reinstatement to their former
or substantially equivalent positions and to make them
whole for any loss of earnings which they have sustained
because of the discriminations practiced against them in
accordance with the Woolworth formula," with interest
thereon computed in accordance with the adjusted prime
rate used by the Internal Revenue Service for tax payments.
Florida Steel Corporation, 231 NLRB 651 (1977); Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). I will also
recommend that the seven drivers whose hours were cut on
or after September 14 be reimbursed the difference between
40 hours and the number of hours actually worked in any
given week, with interest computed as aforesaid, The
recommendation applies to reductions of hours occasioned
by reduced assignments or by reason of the rule requiring
drivers to clock in and clock out between loads. I will also
recommend that Respondent be required to post a notice at
all of its stores and at its main office, inasmuch as the
warehouse is no longer in operation, advising its employees
of their rights and of the remedy in this case.
Upon the foregoing findings of fact, Conclusions of Law,
and upon the record herein considered as a whole, and
pursuant to Section 10(c) of the Act, I make the following
recommended:
ORDER 0
The Respondent, Knapp Foods, Inc., d/b/a Hi-Lo Foods,
Maiden, Massachusetts, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating employees concerning their
union activities and the union activities of other employees.
F W. Woolworth Company. 90 NLRB 289(1950).
"' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(b) Requesting employees to report on the union activities
of other employees.
(c) Threatening to close all or any portion of its operations
and to reduce the working hours of its employees in reprisal
for union activities.
(d) Threatening to eliminate profit-sharing benefits or any
other benefits in reprisal for union activities.
(e) Soliciting grievances from employees with the implied
promise that such grievances would be adjusted if employees
abandoned their support for the union.
(f) Threatening to impose upon employees more ornerous
working conditions in reprisal for unionization.
(g) Discouraging membership in or activities on behalf of
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen, and Helpers of America, Local Union 841, or any
other labor organization, by discharging employees, reduc-
ing their working hours, or by otherwise discriminating
against them in their hire or tenure of employment.
(h) By any other means or in any manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the purposes and policies of the Act:
(a) Offer to Paul F. Donatio and to Dennis Damiano full
and immediate reinstatement to their former positions or, in
the event their former positions no longer exist, to substan-
tially equivalent employment, without prejudice to their
seniority or to other rights previously enjoyed, and make
them whole for any loss of pay suffered by them by reason of
the discrimination found herein in the manner described
above in the section entitled "The Remedy."
(b) Make whole Maurice Demeraut, Paul F. Donatio,
Raymond S. Glionna, Robert Lucarotti, Anthony Peters,
Jr., Robert Silva, and Mark Stremeckus for any loss of pay
suffered by them by reason of the reduction in drivers' hours
or the clock-in clock-out requirement in the manner de-
scribed above in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
and other records necessary to analyze the amount of
backpay due under the terms of this order.
(d) Post at Respondent's stores and main office in and
about the Boston, Massachusetts, metropolitan area copies
of the attached notice, marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 1, after being duly signed by a representative of
Respondent, shall be posted by it immediately upon receipt
thereof, and shall be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered over by any
other material.
(e) Notify the Regional Director for Region , in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
" In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
1092