Leprino Cheese Co.

National Labor Relations Board - Board Decisions

Aug 25, 1978

237 N.L.R.B. 1363 (N.L.R.B. 1978)

Leprino Cheese Company and Rueleen Ward and De-
bora Bohe. Cases 27-CA-5491-3 and-4
August 25, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On May 9, 1978, Administrative Law Judge Rus-
sell L. Stevens issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions I and a supporting brief, and the General Coun-
sel filed a brief in answer to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Lep-
rino Cheese Company, Denver, Colorado, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended order, as
modified:
I. Substitute the following for paragraph 2(a):
"(a) Offer Debora Bohe and Rueleen Ward imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for their
loss of earnings in the manner set forth in the section
of this Decision entitled "The Remedy." If at the
compliance stage of this proceeding it is determined
that Respondent would not in any event have re-
called Debora Bohe and Rueleen Ward from layoff
status then the Respondent shall place their names
on a preferential hiring list."
2. Substitute the attached notice for that of the
Administrative Law Judge.
m In its exceptions the Respondent objected 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 credibility resolutions unless
LEPRINO CHEESE COMPANY
a clear preponderance of the evidence convinces us that the resolutions are
incorrect. Standard Drs Wall Products. Inc. 91 NLRB 544 1950). enfd 188
F.2d 362 iC.A. 3. 1951)' We have carefully examined the record and find no
basis for reversing his findings.
The Respondent also excepted to the Regional Director's denial of a
request to take a deposition from Sharon Litz. Sec. 102.30(a} of the Board
Rules and Regulations. Series 8. as amended, prosides that the Regional
Director shall order a deposition if, in his discretion. he determines that
good cause has been shown. Since the witness was available at the hearing
and she did testify. we find no reason to conclude that the Regional Direc-
tor abused his discretion or that the Respondent was prejudiced h) the
Regional Director's ruling.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAi. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice. We intend to abide by the following:
WE WVILL NOI interfere with, restrain, or coerce
our employees in the exercise of their rights
guaranteed to them in Section 7 of the Act, in
violation of Section 8(a)(1) of the Act, by dis-
charging them for protesting the procedure in-
volved in their layoff.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist labor organizations, to bar-
gain collectively through representatives of their
own choosing, and to engage in concerted activi-
ties for the purposes of collective bargaining or
other mutual aid or protection as guaranteed by
Section 7 of the Act, or to refrain from any or all
such activities.
WE WILL offer Debora Bohe and Rueleen
Ward immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges. and make them whole for their loss of
earnings, with interest thereon. If it is de-
termined that Debora Bohe and Rueleen Ward
would not, in any event, have been recalled to
their former or substantially equivalent jobs af-
ter their layoff, we will place their names on a
preferential hiring list.
LEPRINO CHEESE COMPANY
237 NLRB No. 221
1363
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This mat-
ter was heard at Denver, Colorado, on March 17, 1978 .1 Case
27-CA-5491-3 is based upon a charge filed July 29 by
Rueleen Ward,2 an individual. Case 27-CA-5491-4 is based
upon a charge filed July 29 by Debora Bohe, an individual.
By order dated September 16, the Regional Director of
Region 27, National Labor Relations Board, consolidated the
aforesaid two cases and issued a consolidated complaint,
which alleges that Leprino Cheese Company (Respondent)
violated Section 8(a)(1) of the National Labor Relations Act,
as amended.
All parties were given full opportunity to introduce rele-
vant evidence, to examine and cross-examine witnesses, to
argue orally and to file briefs. Briefs, which have been care-
fully considered, were filed on behalf of General Counsel
and Respondent.
Upon the entire record, and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is, and at all times material herein has been,
a corporation duly organized under, and existing by virtue
of, the laws of the State of Colorado, with its principal
office and place of business located in Denver, Colorado,
where it is engaged in the production and sale of cheese. In
the course and conduct of its business operations, Respon-
dent annually sells and ships goods and materials valued in
excess of $50,000 directly to places outside the State of
Colorado.
I find that Respondent is, and at all times material
herein has been, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
11 THE ALLEGED UNFAIR LABOR PRAC1I( ES
Background 3
Respondent's operation principally involved in this case
is its conveyor system and production line, where cheese is
sliced, graded, tested, weighed, and packaged for storage or
delivery. The line is operated during two shifts each day,
referred to as A shift (daytime) and B shift (nighttime,
from 3:30 p.m. until midnight). The B shift, which is in-
volved in this controversy, at times relevant herein was op-
erated by approximately 10 employees, all of whom were
female and all of whom were supervised by Jerry Pergola.4
All employees are transferred among various jobs on the
IAll dates hereinafter are within 1977, unless stated to be otherswise
2 Individuals are referred to herein. by their last names.
This background summary is based upon credited testimony and evi-
dence that is not contradicted or in dispute.
4Respondent denies that Pergola was a supervisor at times relevani
herein. However, the record shows that Pergola directed all activities of the
production line on an irregular, but frequent, basis. One
employee is assigned as a quality control employee, to
grade and test the quality and acceptability of cheese going
through the production line.
Bohe first worked for Respondent as a production line
employee during Easter week in 1977, assisting her mother,
who also was employed by Respondent. Bohe later was
rehired by Respondent, as a line employee, on May 16. She
was moved to quality control thereafter, but with occasion-
al temporary shifts to line jobs during absences of line em-
ployees.
Ward was hired by Respondent on June 2, as a produc-
tion line employee. Pergola subsequently assigned her to a
packing job.
Farrell works during the daytime, and during the time
relevant herein, his usual hours were from 5 or 6 a.m. until
approximately 4 to 6 p.m. Sometime prior to July 27, Far-
rell learned of a proposed layoff of some of the B shift
employees. A list was compiled of those employees to be
laid off, and of those to be retained but to be moved to the
A shift.5 Pergola called the B shift employees together dur-
ing the evening hours of July 27, after Farrell had left for
the day. and told them of the layoff. Pergola advised the
employees that the layoff was for an indefinite period of
time, and he read the names of those to be laid off and
those to be retained but to be moved to the A shift. Bohe
and Ward were on the list of those to be laid off. After
Pergola met with the employees, Bohe asked him 6 about
her final paycheck, and Pergola said she would have to call
back the following morning to ascertain when she could
receive the check. The following morning Bohe made tele-
phone calls to "The National Labor Relations Board, Un-
employmeut, Better Business, Wage and Claims" to get in-
formation concerning '. . . what Leprino's rights were and
were not about the layoff." 7 Bohe then called Ward on the
telephone, and told her she had called several agencies and
felt the layoff was illegal because the employees had not
been paid in full at time of layoff, and because they had
not been given layoff slips for unemployment claims. Bohe
asked Ward to call another employee, Barbara Sanchez,
about the matter. Thereafter, about 10 a.m., Bohe called
Farrell on the telephone and made an appointment for
later in the day to talk about the layoff. Bohe called Ward,
told her about the appointment, and asked if Ward would
accompany her to go see Farrell.' The two employees went
to the plant at approximately noontime, and met with Far-
B shift employees: assigned employees to their jobs and transferred them
among jobs; was the direct supervisorial link between the B shift employees
and Alan Farrell, the plant manager; effectively recommended personnel
actions: cosigned termination slips; and was considered by B shift employ-
ees to be their "boss." It is found that Pergola was, at all times relevant
herein, a supervisor within the meaning of the Act.
Pergola recommended to Farrell employees he thought should be re.
tained and moved to the A shift.
" Bohe testified that this request was made by telephone, after she went
home that eemning. Pergola first testified that Bohe made the request per-
sonally, just after the meeting, but later said Bohe may have made the
request by telephone that evening: he said he could not remember when it
occurred I his discrepancy is immaterial, and need not be resolved.
I ater. on August 3. Bohe filed a formal complaint with the Rocky
Mountain Better Business Bureau, alleging relative to Respondent, "Layoff
and unjust treatment."
Ward had not been able to get in touch with Sanchez.
1364
LEPRINO CHEESE COMPANY
rell for brief, individual interviews. At each interview there
was discussion, and some disagreement, concerning final
paychecks and layoff slips. Farrell told the two employees
he would try to get the checks for them later in the day.
Farrell later obtained the checks, and his secretary called
Bohe and Ward on the telephone to advise them of that
fact. At a time fixed by Farrell as 3:30, and by Bohe and
Ward as 5 p.m., the two employees went to Farrell's office.
were given two checks each covering the past week's work
and termination, and were discharged.
The complaint alleges that on or about July 28, 1977,
Respondent discharged Ward and Bohe because of their
protected, concerted activities, in violation of Section
8(a)(l) of the Act.
A. Time of Termination
Bohe and Ward testified that at no time prior to approxi-
mately 5 p.m. on July 28, when they received their checks
from Farrell, did they know or suspect that they were going
to be terminated; that, prior to that time, they believed
they were only being laid off. Farrell was self-contradic-
tory. He testified on some occasions that the two employ-
ees were terminated during his noon conference with them,
and testified on other occasions that they were only laid off
at noon, and that they were discharged at approximately
3:30 p.m. on July 28.
Bohe was not a completely convincing witness. She is
obviously antagonistic toward Respondent, and her testi-
mony frequently seemed exaggerated and occasionally self-
contradictory. Bohe is credited only as indicated. However.
Ward was a convincing witness and she is credited. Ward
is supported on this point by Farrell, who generally is not
credited but who explained at length why he did not termi-
nate the two employees at noon, but only laid them off.
Farrell said he was not certain, when he talked with Bohe
and Ward at noon, that he could obtain their checks that
day, hence, he did not then terminate them, since the law
requires that a discharge be paid off within 24 hours of
discharge.
It is found that Bohe and Ward were told at noon. July
28, that they were laid off, and told sometime between 3:30
and 5 p.m. on the same day that they were terminated.
B. Alleged Reasons for Termination
Farrell testified that he, alone, made the decision to ter-
minate Bohe and Ward, and that his decision was based
upon information given to him by Pergola. Farrell said the
decision to terminate the two employees was made 10 to 14
days prior to July 28, for reasons discussed infra.
Pergola testified: Bohe and Ward created several prob-
lems on the production line, and he discussed those prob-
lems with Farrell. He and Farrell discussed, on several oc-
casions in late June and the Ist of July, the possible
termination of Bohe and Ward. The) again discussed that
possibility the evening of the layoff, but decided to delay
the discharges because Farrell would not be in the plant at
time of the layoff to discharge the two, and Pergola did not
have authority to discharge. On July 28, the morning after
the layoff, Pergola and Farrell again discussed the termina-
tion of Bohe and Ward. and Farrell". . .got on the phone
and called payroll and told them that he wanted two dis-
missal checks for these two." The two employees were not
discharged prior to July 28, because it was learned approxi-
mately July 18 or 19 that a layoff was imminent. Pergola
recommended to Farrell that the discharges be delayed un-
til the layoff. to preclude the necessity of laying off any
new employees brought in to replace Bohe and Ward.
John Mastrosimone, Respondent's director of labor rela-
tions and Eastern operations manager, testified: he knew
about the layoff. approximately 30 days in advance. He
said nothing at that time, to any employee or supervisor,
about the intended layoff. Approximately 10 to 17 days
prior to the layoff. he learned about the intended termina-
tion of Bohe and Ward. He instructed Farrell not to make
the termination in view of the impending layoff. to avoid
replacing the dischargees for such a short time. At approxi-
mately 5 or 5:30 p.m. on July' 27, he instructed Farrell to
effect the layoff that evening, and " . . if there were any
terminations or any discharges, to do it the first thing in the
morning since there was nobody to take any immediate
steps as far as getting their checks and all."
1. Bohe
Farrell and Pergola testified that the reasons for termi-
nation of Bohe were: (a) leaving notes of instructions for
employees on the A shift over whom she had no authority;
(b) moving employees among jobs on the line, without au-
thority; (c) shutting down the production line without au-
thority'.
(a) Farrell testified that, on two occasions approximate-
ly 3 or 4 weeks prior to July 28, A shift employees com-
plained to him that Bohe, who had no authority to do so,
left notes instructing them to take certain actions. Farrell
said he warned Bohe. orally and in writing,9 about these
incidents.
Pergola testified that the leaving of notes between shifts
was not approved by him, and was not a regular practice.
He said Farrell once had talked with him about Bohe leav-
ing notes, and that he talked with Bohe about the proper
way to obtain supplies: he told her to obtain supplies
through him rather than dealing directly with warehouse
employees. o
Bohe testified that she left notes for the A shift approxi-
mately every other day, relative to supplies on hand and
other matters, to facilitate operation of the production line.
Bohe said the notes merely were for suggestions or infor-
mation; that they' never included instructions. She said she
had Pergola's permission to leave the notes, and that she
never was criticized. or orally warned, by anyone about
this practice. She said the A shift frequently left notes for
her. when she was assigned to quality control, and further.
that the employee who had trained her, left notes in the
same way Bohe did. Bohe testified that she never received
G. . tExh 2 dated Jul) 19 this exhibit states that this is Bohe's final
'arning
1 Bohe allegedl once strained her hack Ahile getting supplies herself.
from the .3arehllouse Pergola said this '.as the reason for his instructions ht
Bohe.
1365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Farrell, the warning, General Counsel's Exhibit 2,
and that she first saw it when it was given to her by the
Better Business Bureau in August. She testified, however,
that on one occasion she went into the laboratory to ask a
question and Farrell instructed her to discontinue that
practice; to come to him first.
(b) Farrell testified that, on at least two occasions. Bohe
moved employees on the production line.
Pergola testified that an employee, Sharon Litz. once
complained to him about Bohe changing her to another job
on the production line and he warned Bohe about the prac-
tice, advising her she did not have that authority.
Litz testified that on one occasion Bohe instructed her to
change work stations with Ward. She said she did not be-
lieve Bohe had that authority. Litz said she did not com-
plain to Pergola. but that "I think he heard it through
somebody else that we were all complaining that Debe was
overstepping her authority."
Bohe testified that, on the night of the layoff, July 27,
Litz and Ward were throwing cheese and not working, and
she asked Pergola, who was in and out of the plant that
evening, and who had asked Bohe to "keep an eye on
things," if she could move the girls. Pergola approved the
move, and did not change it the rest of the evening.
(c) Farrell testified that, on one occasion he knows
about Bohe shut down the production line without authori-
ty.
Pergola testified that he is the only one authorized to
shut down the production line, and that he shuts it down in
case of machine problems, production problems. and dur-
ing breaks. He stated that he never has told any employee
to shut down the line, and no one else has authority to do
so. Pergola said Bohe had shut the line down for several
reasons, including the instance when she moved the work
station of Litz and Ward and that he had warned her not
to do so since she did not have that authority.
Litz testified that on one occasion Bohe stopped the pro-
duction line in order to make reruns, and she complained
to Pergola about it.
Bohe testified that the line was shut down seven or eight
times or more each night for various reasons, by all of the
slice line employees. She said she shut it down once or
twice each night, to do reruns, or because of mechanical
problems. She said neither she nor any other employee ever
was criticized for shutting down the line.
Ward corroborated Bohe on this point, and said she fre-
quently shut the line down.
2. Ward
Farrell and Pergola testified that the reason for termina-
tion of Ward was her harassing employees on the produc-
tion line.
Farrell testified that Ward was antagonistic toward and
harassed two employees-Jana Cordova and Sharon Litz,
while those employees were working on the production
line. In support of his conclusion, Farrell described two
instances wherein Ward allegedly was at fault in her treat-
ment of, and attitude toward, fellow employees. Farrell
said he warned Ward about her conduct, orally on June 29,
and in writing," and that he often discussed Ward's con-
duct with Pergola.
Pergola corroborated Farrell and said he frequently
talked with Ward, and with Farrell, about Ward's offensive
conduct. Farrell said Cordova and Litz complained to him
about Ward's conduct.
Litz and Cordova corroborated Farrell and Pergola, and
testified to specific instances wherein they were harassed
by Ward and wherein they complained to Pergola. Cordo-
va testified that on one occasion when she complained to
Pergola she threatened to quit because of Ward.
Bohe testified that she had witnessed arguments between
Ward and Cordova and said she would not eat with Cordo-
va during breaks.
Ward either explained as being without merit or denied
the testimony of Farrell, Pergola, Litz, and Cordova rela-
tive to the latter's allegations of harassment. She said,
moreover, that she could not get along with Cordova, and
that 2 or 3 weeks after she started to work, she asked Per-
gola to transfer her, or not to assign her to work near Cor-
dova, because the two of them did not get along. Ward said
she and Cordova frequently engaged in spats, about five of
which Pergola witnessed. Ward said she never received an
oral warning from anyone at the plant, and that she did not
see the written warning, General Counsel's Exhibit 4, until
January 8 or 9, 1978, long after she was terminated.
C. Termination of Bohe and Ward
Farrell testified: when he discharged Bohe and Ward he
told them, during separate interviews when he gave them
their checks, "You understand, this is a termination, not a
layoff." When he fired Bohe, he told her it was because of
her general attitude and her trying to run the line; that she
was a detriment to the line and its teamwork. Bohe was not
given a copy of her termination slip.l2 When he fired Ward
he told her it was because of her inability to get along with
the people on the line; that she was not a teamworker.' 3
Bohe testified relative to her noon meeting with Farrell
on July 28:
A. He said, "Okay, what's your problem?" I just
said I had some questions about the layoff that I
wasn't sure about, and he asked me, "Well what?" So
I asked if we shouldn't have got our paycheck or will
we get it, and I asked him if we didn't need some
official statement saying that we were laid off so we
could collect unemployment.
Q. What did he say?
A. He said he hadn't heard of any laws that said
that that needed to be done, but he would see what he
could do, and to come back at 5.
Q. What did you do at that time?
A. We started to leave the room, and I asked if I
could have a list of the other people that were laid off
so I could tell them that they could come back and get
G.C. Exh. 4. dated June 29.
I: G.C. Exh. 3. This first was seen by Bohe after she filed a complaint with
the Better Business Bureau.
13 Farrell did not testify as to whether he gave Ward a copy of her termi-
nation slip, but Ward testified, and it is found, that he did not give her a
copy at any time.
1366
LEPRINO CHEESE COMPANY
their paychecks at that time, and he said that I
wouldn't get any list from him and walked away.
Bohe testified relative to the termination later that day:
A. He came walking into the lobby saying some-
thing about the law didn't say that we have to have it,
but, and he handed two checks to me and two checks
to Rueleen and he said, "This is last week's paycheck
and your termination pay," and turned around and
left.
Bohe testified that nothing had been said to her prior to the
last conversation, about termination.
Ward testified relative to her meeting at noon with Far-
rell:
A. Al asked me what my problem was and I told
him that Debe had done some calling and felt that our
layoff was illegal in the fact that we weren't given full
pay and a layoff slip at that time.
Q. And what did he say?
A. He said that that wasn't the way the laws were in
California, and I responded that he better learn Colo-
rado laws.
Q. Was anything else said at that meeting?
A. He asked me if I had any more questions and I
said no. And I also asked him if he was going to help
us get our checks, and he said, "If you will come
around 5, you will have your checks."
Ward testified relative to the occurrence at 5 p.m.
A. Yes, he came out holding four checks. He hand-
ed two to myself and two to Debe. He said he had
done some checking about what Debe had said about
the employment agencies was wrong. He then said,
"This is your last week's pay and your termination
check," and turned around and walked off.
Ward testified that the 5 p.m. statement was the first she
knew about a termination.
Discussion
1. Counsel stipulated that, on June 10, Bohe received a
wage increase from $3.80 per hour to $4 per hour, effective
May 30. Counsel also stipulated that Ward received an
increase of similar amount for the week of July I I to 18,
while on temporary assignment in quality control.
2. Farrell testified that Bohe and Ward were fired at the
time he gave them their checks and that he gave them their
checks at 3:30 p.m. Farrell also testified that when he
talked with Bohe at noon, Bohe threatened to call ". .. the
NLRB, to the Better Business Bureau, and whoever else I
can go to." Finally, Farrell testified that he did not fire the
two at noon because of the 24-hour regulation relative to
termination paychecks. Clearly, by his own testimony, Far-
rell was aware of the activity of Bohe and Ward, hereby
found to have been concerted activity, when they were ter-
minated and paid off.' Further, Ward credibly testified
14 Ward's testimony that employee Sanchez also participated in the con-
certed activty is credited. No weight is assigned to the fact that Sanchez was
not discharged, since she did not accompany Bohe and Ward to see Farrell.
that, during her meeting with Farrell at noon on July 28,
she told Farrell about Bohe's various telephone calls. and
that prior to 5 p.m. on July 28 when she was laid off, no
one said anything to her about being terminated.
3. Respondent contends that it decided 10 to 14 days
prior to July 28 to fire Bohe and Ward, but delayed that
action because of the impending layoff, and delayed fur-
ther thereafter, because of a 24-hour regulation relating to
final checks. These two contentions are not believable and
are found to be without merit. (a) The record shows that
Respondent keeps detailed production records on a daily
basis: that the layoff was known at the executive level ap-
proximately 30 days in advance; that the impending layoff
was known by Farrell and Pergola on July 18 or 19. There
is no apparent reason for not making advance arrange-
ments to terminate the two employees at the same time
others were laid off. (b) Pergola was a supervisor, and his
signature appears under the title of "supervisor" on the
termination slips of both employees, together with the sig-
natures of Farrell and Respondent's personnel director.
Pergola was in complete charge of the production line,
granted employees time off, and participated quite closely
with Farrell in taking all personnel actions related to the
line. No logical reason was shown for the contention that
Pergola could not advise Bohe and Ward of their termina-
tions on the evening of July 27. There is no basis for
Farrell's contention that such action was not taken because
of fear that the final checks possibly could not be prepared
within 24 hours; i.e., by approximately 7:30 p.m. on July
28. That contention is given no credence. (c) The conten-
tion of Mastrosimone and Farrell that the delay partially
was occasioned by the fact that the exact date of the layoff
was not known, even though the fact of layoff was known,
seems farfetched and most unlikely in view of the detailed
production records kept by Respondent. (d) Mastrosimone
and Pergola both claim credit for the decision that it would
not be advisable to discharge the two employees because a
layoff was imminent. This testimony appears unrealistic.
4. Although both employees were given raises only a
short time before their discharges, Respondent contends
that they were warned, Bohe on July 19 and Ward on June
29, orally and in writing, about their unsatisfactory perfor-
mance at work. Ward, who is credited, denied that she was
warned orally or in writing, while employed, by Respon-
dent. In view of the fact that events relating to the two
employees were treated as one transaction by Respondent,
Bohe's denial that she was warned, orally or in writing,
while employed by Respondent, has the support of Ward's
testimony and is credited. Further, Bohe's warning slip
shows it as her first warning, yet Farrell testified that em-
ployees complained to him 3 or 4 weeks prior to July 28,
about Bohe writing notes.
5. Respondent introduced some production records, and
the testimony of Pergola, relative to a warning given to all
employees in June, to establish that low production was a
result of unsatisfactory work and conduct by Bohe and
Ward. That argument is not suported by the record. All
employees were warned by Pergola at the same time; nei-
and there is no evidence that Farrell considered Sanchez to be an active
participant in the activity of Bohe and Ward.
1367
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ther Bohe nor Ward was singled out for comment or warn-
ing. There is nothing in the record to show that either of
the two employees was less productive than their fellow
workers, or that they ever were warned about low produc-
tion. Further, Pergola's warning to all the employees at the
same meeting about bad feelings among employees on the
line was addressed to all employees, not just to Bohe and
Ward. It is clear that there was much dissension on the
line, and that several employees, if not all of the, partici-
pated in the dissension. If only Bohe and Ward were the
culprits and only they were singled out for special warn-
ings, as Respondent contends, it would not be necessary
for Pergola to warn the entire B line staff of employees.
Further, if Bohe and Ward were so offensive and affected
production as much as Respondent contends, the delay in
firing them would not make business sense. Their immedi-
ate discharge would have been imperative.
6. Respondent's argument that it could fire the two em-
ployees because they were on probation, just as it had fired
others under similar circumstances, is found to be without
merit.
7. In view of the record thus made, it is clear that the
reasons given by Respondent for the discharge of Bohe
and Ward were pretextual. They were fired because of the
nature of their protest relative to the mechanics of their
layoff, and the reasons advanced by Respondent for the
discharges were relied upon as an afterthought. (a) Al-
though Bohe generally is not credited, Pergola was an
equally unconvincing witness. In view of Pergola's testi-
mony not being credited, and in view of Farrell's self-con-
tradiction about the notes, Bohe is credited in her testi-
mony that the passing of notes between the A and B shifts
is common practice and that she was not warned about
doing so. (b) Bohe's testimony concerning the movement
of employees on the production line is credited. Pergola's
testimony on this subject sounded unrealistic and is not
credited. Pergola said an employee once complained to
him about Bohe moving her, but Litz, who, it is assumed, is
the employee to whom Pergola referred, denied that she
complained to Pergola about the movement. (c) In view of
Ward's testimony in support of Bohe relative to shutting
down the line, and in further view of the fact that all wit-
nesses agree that the line is shut down for every break, and
for mechanical failures and reruns of cheese, Bohe's testi-
mony on this subject is logical and reasonable, and is
credited. Possibly her testimony of seven or eight shut-
downs each night is exaggerated, but Pergola's testimonN
that only he shuts the line down is contrary to the manner
in which the line is operated and is not credited. Litz' testi-
mony on this point is given no weight; her alleged com-
plaint to Pergola is not inconsistent with the testimony of
Bohe and Ward. (d) The testimony of Farrell and Pergola
relative to Ward's allegedly offensive conduct is given no
weight, for two reasons. First, it is clear that the B shift had
more troublemakers than just Bohe and Ward. Second,
Cordova was a very unconvincing witness because of her
extreme sensitivity as displayed on the witness stand. She
was nervous, distraught, and cried for no apparent reason.
Her crying during arguments with Ward is not doubted,
but the allegation that it was because of Ward's conduct, is
given no weight. Her principal problem seems to be hyper-
sensitivity, rather than concern with any particular individ-
ual. It may well be, as Respondent argues, that Ward is far
from a shrinking violet, but it is doubted that her conduct
was such as to cause Respondent to conclude that she must
be discharged for it. Ward's testimony that she never was
warned about her conduct is credited.
Summary Analysis
This controversy has several unfortunate aspects, but
Respondent's discharge of the two employees because of
their concerted, protected activity in protesting the manner
in which they were laid off, is clear.
It may well be. as Respondent contends, that Bohe was
an unsatisfactory employee who meddled in the affairs of
others, assumed authority she did not have, and did much
as she pleased in the plant. Also, it may well be, as Respon-
dent obviously feels, that Bohe was angry because she was
laid off, and that she was determined to cause all the trou-
ble she could for Respondent.1 5 Bohe's antagonism ap-
peared directed more to an attempt to retaliate for her lay-
off, than to obtain her last check and a layoff slip
immediately rather than later. There is nothing to show,
and it appears most doubtful, that Respondent entertained
any thought of delaying or withholding either the checks or
the layoff slip. None of the other laid-off employees resort-
ed to the extreme measures adopted by Bohe; Ward merely
followed along, after Bohe took action. It appears entirely
possible that, had Bohe merely approached Farrell on July
28 with, a calm and reasoned request for her checks and
layoff slip, this controversy would not have been tried.'6
Unfortunately, Respondent met Bohe's actions with its
own version of retaliation.' It could have taken any one of
several actions, and avoided a trial, but it chose an illegal
response. Respondent's attempt to substantiate its warn-
ings to Bohe and Ward is transparent. Its explanation of
the delay in terminating the employees is not believable. Its
reliance upon troublemaking on the line, indulged in by
both employees, seems to have some support, but is is ap-
parent that the incidents are exaggerated, and relied upon
after the fact of discharge, rather than being cause for dis-
charge.
The sequence of events seems clear. Bohe and Ward
were laid off, and Bohe was angry about it. Bohe stirred up
a hornet's nest of agencies, then enlisted Ward's support.
Bohe called Farrell for a confrontation, and Farrell learned
of all the activity coming his way. Farrell became angry,
told the two employees to come back later in the day, and
fired them upon arrival, summarily and in specific terms.
At that point the Act took effect. Bohe and Ward were
protesting their failure to receive layoff checks and layoff
1t tter request for adjustment, written on the Better Business Bureau
fornl, (it. Ex h . i- "for the president. vice-president of the company to
know of management treatment."
Respondent's reply to the Better Business Bureau ((.C. Exh 6) states
that Bohc swas discharged because of her "attitude." The statement is am-
higuous. bu it i appears to refer to, Bohe's attitude during her conversation
with fa'lrrell on Julb 28 I hat repli seems consistent with findings herein.
Apparentl 5 Sanchez adopted a reasonable approach to Farrell, and was
satisfied with the response. She did not testify and so far as the record shows
she recelsed her layoff check
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LEPRINO CHEESE COMPANY
slips, which are proper subjects of concerted activity.l'
Further, their actions were concerted.' 9 Regardless of their
individual meetings with Farrell-their goals were identi-
cal, 20 and affected all employees on the B shift.
II1. THE EFFECT OF THE UNFAIR LABOR PRA(CTIC Es UP()
COMMERCE
Respondent's activities set forth in section II, above, oc-
curring in connection with the operations of Respondent
described in section 1, above, have a close, intimate, and
substantial relationship 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.
Iv. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act. I
shall recommend that it be ordered to cease and desist
therefrom, and to take certain affirmative actions designed
to effectuate the policies of the Act.
It has been found that Respondent unlawfully dis-
charged Debora Bohe and Rueleen Ward. I will. therefore,
recommend that Respondent offer Bohe and Ward their
former jobs or, if those jobs no longer exist, substantially
equivalent jobs, without prejudice to their seniority and
other rights and privileges, and make them whole for any
loss of earnings suffered by reason of the discrimination
against them, by payment to them of sums of money equal
to that which they normally would have earned, absent the
discrimination, less net earnings during such period, with
interest thereon to be computed in the manner prescribed
in F W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1 9 7 7 ).
2
i It will be
further recommended that Respondent preserve and make
available to the Board, upon request, all payroll records.
social security payment records, timecards. personnel rec-
ords and reports, and all other records necessary and use-
ful to determine the amounts of backpay due and the rights
of reinstatement under the terms of these recommenda-
tions.
Upon the basis of the foregoing findings of fact and
upon the entire record, I hereby make the following:
CONCI USIONS OF LAW
1. Leprino Cheese Company is, and at all times material
herein has been, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By discharging Debora Bohe and Rueleen Ward for
participating in protected, concerted activities. Respondent
has engaged in unfair labor practices prohibited by Section
8(a)(l) of the Act.
Is Brooklyn Nursing Home, Inc d/b 'a Sa.rsaquin Convalerceni (Center. 223
NLRB 267 (1976): Sears, Roebuck and Co, 224 Nl.RB 5S8 562 (1976);
Pacific Pollution Control, Inc., and Cunningham. Stuart & Whee'ler. d i a Del
Chemical & Suppi (Company. 227 NL RB 293 (1976i
19 Ohio Valley Container C'orp., 221 NLRB 1301 (1975}
20 Digital Equipment Corp., 226 NL RB 1278 ( 1976)
21 See. generally. Isis Plumbing & HIeating (o . 138 NL.RB 716 (1962)
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 22
The Respondent. Leprino Cheese Company. Denver,
Colorado, its officers, agents. successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees for protesting the procedure
involved in their lavoff.
(b) In anv other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization. to form, join, or assist labor organizations. to
bargain collectively through representatives of their own
choosing. and to engage in concerted activities for pur-
poses of collective bargaining or other mutual aid or pro-
tection as guaranteed by Section 7 of the Act, or to refrain
from any or all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the purposes of the Act:
(a) Offer Debora Bohe and Rueleen Ward immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges, and make them whole for their loss of earnings in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and. upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its Denver, Colorado, operation, copies of the
attached notice marked "Appendix." 23 Copies of the at-
tached notice, on forms provided by the Regional Director
for Region 27, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicious places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spo)ndent to insure that the notices are not altered, defaced
or covered by any other material.
(d) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
*2 In the exent no exceptiions are filed as provided b) Sec 102.46 of the
Rules and Regulatiins of the National Ihabor Relations Board. the findings.
conclusio,.n and recommended Order herein shall. as provided In Sec
102A.4S of Ihe Rules and Regul.ations. he adopted bh the Board and become
its findings conclusions. and Order. and all obhections Ihereto shall he
deemed waaled for all purposes
In the e.ent that thli Order is enforced hb a judgment of a United
States CouIrt of Appeals the words In Ihe notice reading "Posted hb Order
of Ihe Ntionaln; l.abor Relations Boa;id" shill read 'Posted Pursuant to a
Judgment of the tlniled St;lies Co(urt of Appeals F-nforcing an Order of the
National I abor Relalions Boald "
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