Peerless Importers, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1989

294 N.L.R.B. 755 (N.L.R.B. 1989)

PEERLESS IMPORTERS 755
Peerless Importers , Inc. and Wine, Liquor and Dis-
tillery Workers, Local 1. Case 29-CA-13313
and conclusions4 and to adopt the recommended
Order.
June 7, 1989
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
DECISION AND ORDER
On August 30 and September 27, 1988, Adminis-
trative Law Judge Joel P. Biblowitz issued the at-
tached decision.
The Respondent filed exceptions and a support-
ing brief. The Charging Party filed limited excep-
tions, a supporting brief, and a brief in support of
the judge's decision. Both parties filed responses to
the other party's exceptions. The General Counsel
filed a letter in lieu of a brief, which supports the
judge's decision and also contends that the Re-
spondent violated Section 8(a)(3) and (1) of the
Act. The discriminatee, John Schumacher, resub-
mitted the posthearing brief filed with the judge.
The, Charging Party also filed a motion to reopen
the record. The Respondent filed a response to the
Charging Party's motion and also filed a motion to
stay the proceeding, or in the alternative to reopen
the record. The Charging Party filed a response to
the Respondent's motion. The General Counsel op-
posed both motions to reopen the record. The
Charging Party responded with an explanation of
its request and a discussion of the Respondent's re-
quest.1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,2 findings,3
i The Charging Party's motion requests that we reopen the record to
include alleged newly discovered police documents concerning the No-
vember 10, 1987 incident and two still photographs taken from a video-
tape, which is already part of the record The Charging Party claims that
the police documents were made available during discovery in a civil suit
brought by John Schumacher against the Respondent The Respondent
asserts in its motion that the instant proceeding should be stayed pending
resolution of the civil suit or, in the alternative, that the record be re-
opened and the entire police file and the deposition transcripts of Detec-
tives David Carbone and Joseph Heffernan be added and the two photo-
graphs be excluded The Charging Party does not object to the introduc-
tion of the entire police file We agree with the General Counsel that
adding the police file to the record would not change the outcome of the
case We also note that because the still photographs are already part of
the videotape, which is included in the record, it is unnecessary to in-
clude them separately Finally, we note that the Respondent had suffi-
cient opportunity to secure the testimony of the two detectives and failed
to do so in a timely manner (see fn 3, infra) Accordingly, we deny the
parties' motions
2 The Respondent has requested oral argument This request is denied
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties We also deny the Charging Party's re-
quest for attorney fees
3 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Peerless Im-
porters, Inc., Brooklyn, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings -
The judge discredited Lawrence Butler's testimony in part because of a
conflict between his testimony and a statement attributed to him in the
complaint filed by the Respondent in state court against the Charging
Party and two other unions, concerning the number of people involved
during the November 10 incident, and because of an apparent conflict in
Butler's testimony concerning his alleged identification of Schumacher on
November 10 In adopting the judge's discrediting of Butler, we rely
solely on the first reason A review of the record indicates that the judge
may have misunderstood Butler's testimony concerning his attempt to
identify Schumacher when he viewed two videotapes before the hearing
According to the judge, Butler testified that Schumacher wore a dark
coat over a checkered coat as he approached the truck on November 10
Although Butler's testimony on this issue is not entirely clear, it appears
that Butler was simply attempting to identify Schumacher on videotape
rather than trying to describe what Schumacher wore on the November
10 In any event, because we adopt the judge's other reason for discredit-
ing Butler, and his reasons for crediting Schumacher's denial that he was
involved in the November 10 incident, we find it unnecessary to deter-
mine whether the judge correctly or incorrectly interpreted Butler's testi-
mony in question
In adopting the judge's findings that Schumacher was coerced into
executing the agreement and release, we find that the Respondent's ac-
tions toward Schumacher, i e , discharging him and then subjecting him
to the police procedures and possible incarceration on November 17,
when his wife was in the hospital and his own physical condition was
poor, were coercive See, e g, Big Sky Sheet Metal Co, 266 NLRB 21
(1983) Under these circumstances, we find it unnecessary to pass on the
question whether Schumacher could, in the absence of coercion, have
waived his right to file charges with the Board
4 We reject the Respondent's contention that the judge erred in ad-
journing the hearing before receiving the testimony of the two detectives
who dealt with Schumacher at the police station The Respondent argued
at the hearing and argues in its exceptions that the testimony of the two
detectives is critical because it would demonstrate that Butler identified
Schumacher to one of the detectives before November 17 and that nei-
ther of the detectives told Schumacher that he could be detained for 2 to
5 days The Respondent also stated at the hearing that subpoenas were
issued for the detectives on two occasions and that the detectives were
not present because they were busy and also that the counsel for the
General Counsel ended his case earlier than expected and the Respondent
was caught off guard
The judge rejected the Respondent's claims because he found that the
detectives' testimony would be either cumulative or collateral, and also
because the timeframe within which the General Counsel brought his
case presentation to a close, and which the Respondent is complaining
about, amounts to a difference of approximately 2 hours We agree with
the judge's decision to adjourn the hearing A review of the record
shows that the Respondent had sufficient notice of when the hearing
would end and sufficient opportunity to contact the two detectives to ar-
range for their presence at the hearing when the Respondent was to
present its case We also note that although the Respondent claimed that
it subpoenaed the two detectives during the first part of the hearing in
May 1988, it failed to produce these subpoenas at the hearing when re-
quested to do so by the judge
294 NLRB No. 59
756 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Craig Diamond, Esq., for the General Counsel
Allen B. Roberts, Esq. and Richard Meyerson , Esq. (Rob-
erts & Finger), for the Respondent.
Victor Feingold, Esq., for the Charging Party.
J. Warren Mangan , Esq. (O 'Connor & Mangan , PC.), for
John Schumacher and witness J. Kenneth O'Connor,
Esq.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was heard by me on seven hearing days between
May 3 and June 3, 1988. The complaint and notice of
hearing, which issued on January 22, 1988, and was
based on an unfair labor practice charge filed by Wine,
Liquor and Distillery Workers, Local 1 (the Union), on
December 7, 1987,1 alleges that Peerless Importers, Inc.
(Respondent) violated Section 8(a)(1) and (3) of the Act
by'discharging John Schumacher because of his activity
on behalf of the Union. While admitting that it dis-
charged Schumacher effective November 10, Respond-
ent defends that he was lawfully terminated as a result of
illegal strike misconduct and, further, that subsequent to
his discharge, Respondent, the Union, and Schumacher
executed an agreement and release "which resolved the
allegations underlying this Complaint."
On the entire record, including my observation of the
witnesses herein, and the beefs received, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
There being no dispute, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and that the Union is
a labor organization within the meaning of Section 2(5)
of the Act.
II. BACKGROUND AND CHRONOLOGY
Respondent is a wholesale distributor of wines and liq-
uors to restaurants and stores . It is housed in a large fa-
cility on Bridgewater Street in Brooklyn, New York (the
facility), and employs warehouse employees and clerical
employees, who are represented by the Union, salesmen,
who are represented by Wine, Liquor and Distillery
Workers, Local 2 (Local 2), and drivers and helpers,
who are represented by Local 816, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL-CIO (Local 816). These
unions have represented Respondent's employees for a
considerable length of time. Schumacher has been a
member of the Union since 1958. Respondent's collec-
tive-bargaining agreements with the Unions expired on
October 31; both before and after this date it engaged in
separate bargaining with each of these Unions, together
with two other employers-Charmer Industries, Inc.
(Charmer), and Star Industries, Inc. (Star) When no new
' Unless indicated otherwise , all dates referred to are in 1987
agreement was reached with any of the Unions by Octo-
ber 31 (a Saturday) the Unions began a strike and picket-
ing at the facility commencing November 1 or 2. New
agreements with the Unions were not reached until
Friday, November 13; after the agreements were ratified
by the Union's membership the employees returned to
work on Monday, November 1 or 2. The two principal
dates herein are November 10 and 17 November 10 was
the first day during the strike that Respondent used re-
placement drivers to cross the picket line and make de-
liveries. On that morning, a few minutes after departing
the facility, replacement driver Lawrence Butler was, al-
legedly, threatened and had his invoices forcefully taken
away from him. Because of this, he was unable to make
any deliveries and, upon returning to the facility, identi-
fied Schumacher as the perpetrator On November 17,
Schumacher appeared at a police precinct pursuant to a
criminal complaint regarding this incident. After being
fingerprinted and photographed, he signed an agreement
and release in which he, inter alia, resigned his employ-
ment with Respondent in exchange for which the
charges were dropped and he was released.
III THE FACTS
A. Schumacher 's Union Activities and the Picketing
Schumacher began working for Respondent in 1957 as
an order clerk; he later became a helper and subsequent-
ly a warehouseman, the position he held until November
1. He has been a member of the Union since 1958; in
about 1980 he was elected shop steward and a member
of the Union's executive board, positions he retained to
the present time. As shop steward, he was the employ-
ees' representative at the lowest level in attempting to re-
solve grievances In addition, he was responsible for
seeing that the contract was enforced. Since about 1982,
Frank Maccia has been Respondent's director of oper-
ations. Schumacher had a difficult time with Maccia re-
garding learning about new employees so that he could
give them applications to join the Union after 30 days of
employment. Whenever he complained to Maccia about
this difficulty, Maccia told him that he did not want the
employee going into the Union until he saw how he
worked out, and that he would fire the employee prior
to his 60th day of employment (when their temporary
status ended) if Schumacher insisted on putting him in
the Union. On about August 1, Frank Minichello, vice
president of the Union, instructed Schumacher to call
into the union office the names of all new employees em-
ployed by Respondent so that the Union could be certain
that they were receiving the benefits specified in the con-
tract and that the proper contributions were transmitted
to the Union. Between that time and October 31 Schu-
macher called in employees' names on a regular basis;
since Respondent refused to provide him with the names
of new hires he "used to go hunting around the ware-
house finding new employees." When Maccia com-
plained to him about it, Schumacher told him that he
was doing as Minichello had instructed him. Another
"constant grievance" that Schumacher had to attend to
was management performing bargaining unit work, al-
PEERLESS IMPORTERS
though he never participated in any grievances on this
subject. ,
Picket lines were set up at the facility, jointly, by the
Unions; Schumacher was appointed picket captain for
the Union and, in that regard, arranged the picketing
schedule for the warehouse employees. Sometime during
the first week of the strike, John Magliocco, an officer
and owner of Respondent, after driving in to the facility,
told Schumacher that Respondent was going to ship out
of the facility and that he was welcome to return to
work if he wished. A few days later Schumacher and,
apparently, the other employees each received a tele-
gram from Respondent reiterating this intention. On No-
vember 9 this intention became more immediate to the
tickets when they observed two vans, which they had
not previously seen , driving into the facility; they as-
sumed that these vans contained replacement drivers
B. Events of November 10
The events of November 10 are crucial herein. It
began as a day like any other day (at least since Novem-
ber 2); Schumacher (who has never driven a car) was
picked up by his friend and fellow employee, Michael
Caffrey, a member of Local 816, and they arrived at the
facility about 6 a.m About 6 a m. a large number of
pickets appeared. About that time, Minichello and Union
President George Orlando told him that they wanted to
make an announcement to the pickets about handbilling
Respondent's customers. The pickets separated by union
and Orlando informed the union members present to ap-
proach Respondent's cutomers and ask if they would
assist the Union, and to give them a handbill. Handbills
were distributed to some of the pickets and they were
told that when, and if, Respondent's trucks drove out of
the facility's gates to make deliveries, they should "mix
and match" as much as possible with pickets belonging
to other unions and follow Respondent's trucks and
handbill the customer receiving the delivery. Schu-
macher testified that about 8:30 a in. he saw what he be-
lieved to be the replacements enter the facility (with a
resulting barrage of eggs and curss) and saw trucks
moving in and out of the loading bays About 9 a.m. the
trucks began driving up to, and lining up at, the gate, to-
gether with police cars and cars of Pinkerton Security.
Anticipating that the trucks would soon be leaving the
facility to make deliveries, Schumacher announced to
those nearby to be ready to get in their cars to follow
the trucks and, whenever possible, to mix and match
with members of other unions Schumacher then told
Caffrey to get to his car and when the last trucks left he
would meet him there and they would pick one of Re-
spondent's trucks to follow and handbill the customers
the truck was delivering to; Schumacher testified that he
said this to Caffrey about 20 minutes before the trucks
pulled out. At about 9:20 a.m. the trucks (together with
Pinkerton cars and being lead by two police cars) drove
out of the gate in single file and onto the street. After
about seven or eight trucks left in this manner, two
trucks remained in the yard, Schumacher told a fellow
employee and union member, John Del Riccio, who was
with him at the time, to wait with him to see if those
two trucks leave. About 10 minutes later they did leave
757
and the gates were closed. Schumacher then walked
with Del Riccio to find Caffrey; he did not see Caffrey,
nor did he see Caffrey's car where it was parked when
they arrived that morning. Instead he met Ruth Gates,
the Union's shop steward for the clerical employees. He
asked her if she had seen Caffrey and she said that she
did not know who he was. He spoke to her for a minute
or two when a car pulled up to them. Frank Hallenback,
an employee of Respondent and a member of Local 816,
said that one of Respondent's trucks had an accident
with a car driven by a picket, Charlie Armenia.2 Schu-
macher and Del Riccio then continued looking for Caf-
frey, but could not locate him. They did see employee
(and Local 816 member) Salvatore Mattarelliano in his
car. Schumacher told him that he was supposed to meet
Caffrey, but they could not find him and he asked him if
he wanted to team up with them to follow trucks and
Mattarelliano agreed, and they got into his car.
Caffrey testified that shortly before the trucks left the
facility, he told Schumacher that he was going to get his
car and that he would pick him up. He walked to his car
with the idea of being in his car prior to their leaving so
that he could move quickly and prevent getting stuck in
traffic; instead a police officer blocked his car and would
not let him move it until all Respondent's trucks had
passed-about 15 minutes At that time he drove to
where he was supposed to pick up Schumacher, but he
could not find him- "I really had no direction. I didn't
know what to do." He drove around the area for about
10 minutes looking for one of Respondent's trucks to
follow; finding none, he returned to the facility. Mattar-
elliano testified that he arrived at the facility about 3
p in. that day and parked his car very close to the main
gate As the first trucks were leaving the facility, he,
Schumacher, and Del Riccio decided to leave together
and they walked a short distance to his car. Hallenback
told them of the accident involving Armenia and one of
Respondent's trucks and they began driving in the area
to attempt to follow one of Respondent's trucks and to
see what occurred with Armenia.
Schumacher and Mattarelliano testified that after leav-
ing the area of the facility they saw some of Respond-
ent's trucks prior to getting onto the Brooklyn Queens
Expressway; the trucks were double file and caused traf-
fic to back up After entering the expressway they lost
the trucks in traffic and exited the expressway at Queens
Boulevard, believing that was a likely route for Respond-
ent's trucks to follow. Finding none of Respondent's
trucks they returned to the facility about 45 minutes
later, having made no stops (other than for traffic) along
the way. Mattarelliano dropped Schumacher and Del
Riccio at the facility and returned home. Schumacher
testified that he never threatened, or took invoices from,
any of Respondent's drivers on that day.3
2 Corrado Armenia, an employee of Respondent, followed one of Re-
spondent's trucks as it left the facility that morning About 2 minutes
later one of Respondent's trucks struck his car and continued driving
Armenia had to follow him in order to stop him
s There is extensive testimony from Schumacher and Caffrey regarding
their activities after meeting at the facility that morning about 10 15 a in
Briefly, after meeting at the premises they were informed by a Charmer
Continued
75$ DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent's version of the invoice incident is sup-
plied by the testimony of replacement driver Lawrence
Butler.4 He testified that prior to leaving the 'facility he
was given a clipboard containing four or five invoices,
each listing the customer and his address, as well as the
items to be delivered and a sheet of paper containing di-
rections to the customer's location, this was because nei-
ther he nor the guard who accompanied him knew the
area He left the premises between 9.20 and 9.30 a.m.
Within 3 or 4 minutes he realized that he was lost and he
stopped under the Brooklyn Queens Expressway to look
over the directions; as soon as he stopped his guard got
out of the truck to buy a cup of coffee at a diner across
the street from where the truck was parked In the next
minute, the -incident underlying this case occurred. Be-
cause Butler's testimony and credibility is crucial herein,
his direct testimony and testimony under cross-examina-
tion will be discussed separately. He testified that he
stopped, the truck in order to read the directions5 at the
ti pVof ,the clipboard; his guard immediately got out of
thet truck 'to get coffee. While looking at the directions,
he ."glanced out" and saw behind his truck the tail end
of'a white car with a blue Monte Carlo parked behind
it.6"He looked up and saw a man coming from the front
of'tlie truck; the man was cursing him and grabbed the
driii&'s'door handle attempting to pull the door open.
Butler attempted to lock the door, but the lock did not
work. He then pulled at the door the other way but the
assailant opened the door because "he was more power-
fu'l''ihdn me using one hand." After pulling the door open
he said: "Do you know they've got a strike going on?"
He asked Butler where he was going and Butler said that
he did not know. He said: "Let me see your invoices"
and' as Butler attempted to move them away he snatched
them out of his hand, saying: "Why are you trying to
take my job?" During this period about five or six other
people were standing by the truck; one of these men
(whom he could not identify) said that they could not
touch him while he was in the truck, but if they saw him
off. duty they would "hurt me bad " At the hearing (and
after returning to the facility, he identified Schumacher's
picture, as described, infra) he identified Schumacher as
employee about 10 30 a in that one of Respondent 's trucks was making a
delivery at a nearby warehouse Schumacher, Caffrey, Del Riccio, and
fellow employee Charlie Sackstem got into Caffrey's car, and followed
this truck until midafternoon During this period, when the truck
stopped, Schumacher gave a handbill to the customer, together with an
explanation of the situation and a request for assistance As the evidence
establishes that the taking of the invoices and the threats to the replace-
ment driver occurred about 9 25 or 9 30 a in , Schumacher's whereabouts
after 10 30 a in are irrelevant to this matter and this extensive testimony
will therefore not be discussed
4 Russell Tonnesen, the president of a private investigations company,
also testified for Respondent Basically, he testified that on November 10
eight trucks left the facility beginning about 9 21 a m They moved con-
tinuously and the process took about 5 minutes
S In an affidavit, dated November 10, accompanying an Order to Show
Cause on motion for temporary and/or preliminary injunction, filed on
behalf of Respondent (the complaint ), Butler stated , inter alia " I drove a
few blocks when the truck was blocked by two cars Five men jumped
out of those cars One of them forced my truck door open " Schumacher
is not named in this affidavit
6 Mattarelliano testified that he drives a silver 1975 Pontiac Catalina
Caffrey drives a blue 1976 Chevrolet Bel Air, Schumacher does not
drive
the individual who took the invoices; he could not iden-
tify any of the other individual who were present during
the incident. Schumacher=then went across,the street to a
green car and drove away. The others got into a car and
left. The guard returned to, the truck and they returned
to the facility.
Under cross-examination, Butler testified that during
the incident he and Schumacher were "face to face, I
was looking at his face [through a closed window]" and
he "can still picture what he was wearing at the time, he
had a big checker square white into his coat"-a grey
and white square jacket. The witness testifying for Re-
spondent just prior to Butler, Tonneson, identified a vid-
eotape he made that morning showing the, trucks leaving,
with glimpses of the pickets; that tape ' shows Schu-
macher wearing a black jacket while on the picket line.
Robert Keehner, another picket with grayish-white hair
and a strong resemblance to Schumacher, is wearing a
black and white (or gray and white) squares jacket on
the picket line; his testimony will be discussed, infra.
After being shown this tape (which he testified he had
been shown earlier, along with another videotape, by
counsel for Respondent), Butler testified that "the checks
on that other jacket were smaller." Subsequently, under
questioning by Schumacher's attorney, Butler testified
that when Schumacher was getting out of the car (prior
to approaching him) he (Butler) could see Schumacher
buttoning up his coat: on top was the green or black
jacket he was wearing on the videotape; beneath it was
the checkered jacket. Butler testified that he could not
be mistaken in his identification of Schumacher: "when
he came to me, we were only like a foot and a half from
each other, so I got a good look at his face "
On returning to the facility Butler reported this inci-
dent to his supervisor and described the individual who
took the invoices as in his late forties to mid-fifties, grey-
blonde hair, mustache, and stocky build.' His supervisor
gave him two big stacks of cards to look over, contain-
ing more than 50 pictures of employees. Butler looked at
these pictures by himself (although his supervisor re-
mained in the room) and identified Schumacher's picture
as the individual who took the invoices; he saw some
"other faces that look familiar but I wasn't too sure " He
had no clear recollection of whether he was shown these
pictures before or after preparing the affidavit, referred
to, supra, but he believes that he prepared the affidavit
first. After he signed the affidavit he was asked detailed
questions about the incident.
There are two other versions of this incident testified
to by Keehner and Frank Gasparino, both picketing em-
ployees of Respondent. Keehner testified that he arrived
at the picket line about 6 a.m. the day in question; after
the trucks left he drove (by himself) to a nearby bar to
have a few beers. The bar is about a half block from the
diner referred to, supra. On his way he saw one of Re-
spondent's trucks parked under the expressway. He
parked his car at the bar and walked to the truck. He
said to the driver something like, "do you know what
Both Schumacher and Keehner have gray-whitish hair and mustache
and are in this age category Schumacher has a stockier build than
Keehner
PEERLESS IMPORTERS
the hell you're doing" and the driver, whom he de-
scribed as black, thin, and "seemed to be tall the way he
sat in the seat," said that he did not, that he was lost
"And with that he held out his clipboard. I took the clip-
board and I looked at it." Keehner then said . "I'm not
here to help you, you're taking my god damned job" and
called him a scab. The driver then grabbed the clipboard
out of his hand and rolled the window up quickly. That
was the extent of the incident. On November 19 Keehner
called Schumacher and told him of this incident; Schu-
macher told Minichello about the call.
Gasparino (who looks nothing like Schumacher) testi-
fied that on the morning in question he walked to work
and arrived at the picket line about 7 a.m.; after the
trucks left the facility he walked (by himself) to the diner
to have breakfast. When he got there he saw one of Re-
spondent's trucks parked across from the diner, under
the expressway The driver of the truck was a tall black
man, alone in the truck. When he approached the truck,
the driver told him that he was lost and asked him for
directions, as,he handed him the clipboard with invoices
and directions on top. Gasparino said: "Do you know
who I am? I 'work for the company and you're taking
my job" and began cursing at him. The driver said that
he did not want any trouble and asked Gasparino to give
him back the invoices; Gasparino walked away with the
invoices on the clipboard and had breakfast in the diner.
While there, he saw on the four invoices that the truck
had four scheduled stops and 537 pieces to deliver. After
leaving the diner he threw the invoices into a garbage
pail.
C. Events of November 13
The parties had a court appearance scheduled in
Brooklyn on November 13 pursuant to the complaint re-
ferred to, supra, which was served on the three unions
on about November 11; all three Unions and some of
their officers are named defendants.8 On the prior day,
Victor Feingold, the union attorney, told Schumacher
and Gates to be at the court the following morning. On
arriving at court the unions were served with a verified
amended complaint (the amended complaint). This
amended complaint refers to the incident as follows:
31. Mr. Butler had driven only a few block [sic]
from the Peerless facility when the truck was
blocked by two cars. Five men jumped out of those
cars. One of them forced the truck door open.
32. The men complained that Mr. Butler was
taking their jobs away and threatened him with
words to the effect. "You must not like to live if we
catch you walking on the street on your own time,
you'll be hurt "
33. At the time, Mr. Butler was holding the
papers (the list of his customer stops, the customers'
addresses and telephone numbers, and a map). One
of the men, John Schumacher, a member of Local
One, grabbed the papers out of his hand, and then
B The law firm of O'Connor & Mangan represented Local 816 (their
regular client , apparently) in this proceeding as well as the ongoing nego-
tiations
759
the five men hurriedly got back into their car and
sped away
Schumacher testified that on that day, while waiting in
the courthouse, he walked past Paul Margiotta, manager
of Respondent, who was standing with three black men
whom he did not know. As he walked past them, Mar-
giotta put his hand. on one of the men and said "That's
him." About a half hour later Vincent D'Acunto, an offi-
cer of Local 2, approached him with the amended com-
plaint in his hand, and said, "Hey John, you hit the hit
parade." Schumacher asked him what he was talking
about and D'Acunto said that his name was in the
amended complaint, Schumacher asked if he was kidding
and D'Acunto showed him the allegations in the amend-
ed complaint. Schumacher asked what it was about and
D'Acunto said that it had to do with taking invoices
D'Acunto testified that on the morning of November
13, while at the court, he was standing alongside of Mar-
giotta, with two black men (whom D'Acunto believed to
be "professional strike breaking people") standing along-
side Margiotta. At one point Schumacher and another
gentleman walked past them and, when they did, Mar-
giotta said to one of the black men next to him: "That's
the guy,"-pointing to Schumacher Sometime later that
morning he was served with the amended complaint; it
was only after reading the allegations in it-"more or
less a light bulb went off in my head, and I said no
wonder he pointed to him." After reading the amended
complaint he told Schumacher. "Well, you're on the hit
list" Schumacher said- "Me-where?" and D'Acunto
showed him the paragraph of the amended complaint
where he was named. Schumacher asked: "What are
they putting my name in there for?" Minichello testified
that on that day the unions were served with the amend-
ed complaint; the allegations referring to Schumacher
were the first he heard that Schumacher was involved in
such an incident. He heard more about it later, that
evening, as will be discussed, infra
Butler testified that at the direction of Respondent he
appeared at the court in Brooklyn on November 13;
while there, when he saw Schumacher, he told the attor-
ney for Respondent- "That's the one." Nobody said to
him when Schumacher walked by "that's the one" or
words to the effect.
Negotiations between Respondent and the Unions took
place on the evening of November 13; the Union asked
Schumacher to attend the session so Caffrey drove him
to the site where the negotiations took place. When he
first arrived he learned from Anthony Morales, the
Local 816 shop steward and Kenneth O'Connor, the at-
torney for Local 816, that they had arrived at an agree-
ment with Respondent; a part of that agreement provid-
ed for arbitration of the cases of the Local 816 members
who were discharged during the strike. While waiting
for the conclusion of the Local 816 negotiations Mint-
chello and Orlando were called into a meeting with Nino
Magliocco, an officer and owner of Respondent, Re-
spondent's attorney, Allen Roberts, and Respondent's
house counsel Anthony Marsloe. Magliocco told them
760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he was firing9 Schumacher for stealing Respondent's
property, but that he would be willing to arbitrate the
matter. Marsloe then suggested that they use George Sa-
batella, of the New York State Mediation Board (who
was mediator at the time) as the arbitrator in the matter
and the Union agreed. Minichello and Orlando then told
Schumacher that Magliocco had told them that he was
to be fired for stealing Respondent's property, Schu-
macher expressed his innocence of the charge and Orlan-
do told him not to worry, they had agreed to arbitrate
the matter and they had agreed upon Sabatella as the ar-
bitrator 10 By letter dated November 16, Respondent
wrote Schumacher. "This will confirm that your em-
ployment with Peerless Importers, Inc. terminated effec-
tive November 10, 1987."
D. Events of November 16 and 17
About 10 p.m. on November 16 two policemen came
to Schumacher's home and told him that he would have
to answer some allegations regarding the strike at the fa-
cility; they gave him the names of Sergeant Detective
Heffernan and Detective Carbone and their phone num-
bers. He immediately called the precinct and was told
that they could not tell him what the allegations were-
he would have to see the detectives the following morn-
ing. He told his wife to go to bed because she was going
to the hospital the following morning for surgery. i i
Schumacher then called Orlando and (after apologizing
for calling at the late hour) told him of what just oc-
curred; Orlando said that he would call the Union's at-
torney Feingold and that either he or Feingold would
call him back. A few minutes later Orlando called back
and said that he felt that Schumacher should have an at-
torney with him; he mentioned Ken O'Connor and one
other name. Schumacher said that he had met O'Connor
and asked if Orlando could arrange it. Orlando said that
he would do so and that O'Connor would call him the
following morning.
Schumacher took his wife to the hospital the following
morning about 6:30 a.m.; he stayed with her until about
e An affidavit of Minichello states thst Maghocco told him that Schu-
macher was going to be arrested Minichello testified, however, that his
best recollection is that Maghocco said Schumacher would be fired I
find the letter is more likely since they immediately discussed , and agreed
upon , arbitration of the discharge snd Schumacher testified that Mini-
chello subsequently told him that he was going to be fired
10 By letter dated November 16, to Sabatella, the Union requested the
date, time , and place of heanng regarding Schumacher's discharge By
letter dated November 17, Sabatella informed the parties that the hearing
would be expedited and they would soon hear from him with a hearing
date "in the new future " Subsequent thereto, Respondent filed a motion
to stay this arbitration on the ground that Schumacher executed an agree-
ment and release to Respondent on November 17 To date, there has
been no arbitration of the matter and Schumacher has not returned to
Respondent's employ
I i Schumacher's wife had been having hemorrhoid problems for a
number of years, in about October the problems intensified At that time,
a doctor recommended laser surgery, which she initially refused The
problem got worse in November and at an appointment with the doctor
on November 13, the doctor said that it had ulcerated and would need
immediate surgery She went to the hospital for "pre-op" on Sunday, No-
vember 15, and returned home that day with an appointment for surgery
on November 17, the first day that the hospital had an available bed She
was put on a liquid diet and was instructed to take two or three enemas
daily
10 a.m., at which time he left, arriving home about 10:30
a.m. Shortly after returning home he received a call
from O'Connor who said that he had spoken to the
Union about his situation and that he would pick him up
at I p.m. and take him to the station house. Prior to that
O'Connor received a call from Vera Catalli, secretary-
treasurer of the Union, saying that he would be receiving
a call from Feingold or Schumacher, who was in need of
a criminal attorney She said that he had been recom-
mended by Feingold and that there was some urgency to
the matter. Since he was not in his office he asked for,
and received, Schumacher's telephone number and called
him. Schumacher said that he had a problem and had to
appear at the 90th precinct and needed a lawyer to be
with him; he gave O'Connor Heffernan and Carbone's
name and telephone numbers. O'Connor told him that he
would pick him up at his home at 1 o'clock and called
Carbone and told him that he would be coming to the
precinct with Schumacher early that afternoon. After
O'Connor picked him up, Schumacher told him that he
had just dropped his wife at the hospital and asked what
was going to happen. O'Connor said that] lie' would have
to see what the allegations were. Schumacher told him
that the only thing he could think of was the stealing in-
voice allegation he was shown in the amended complaint
and that he had not done it O'Connor then "questioned
him with respect to his pedigree"-any previous arrests
or convictions, marital status etc. Schumacher told him
that he had never been arrested and was, married with
four children, the youngest a teenager . Schumacher
asked what would happen at the precinct; O'Connor said
that he would be questioned by the detectives and he
would give his side of the story. He had the right "to
take the Fifth," but he would not recommend it in this
situation . Schumacher asked O'Connor what his repre-
sentation would cost. O'Connor said that he did not
know, he would see what happened 12
O'Connor and Schumacher arrived at the 90th pre-
cinct about 1:30 p.m.; they were brought in to Heffer-
nan's office and he told them that the complaint13 in-
volved the theft of invoices from a replacement driver of
Respondent and the threat of bodily harm to the driver.
12 O'Connor and his law firm represent Local 816, he has never repre-
sented the Union, although he knows their officers and their attorney He
was introduced to Schumacher at the courthouse on November 13 while
they were waiting for the proceedings to begin He has no agreement
with the Union to pay for his legal services in representing Schumacher,
in fact he has no formal agreement with Schumacher regarding a fee for
his service-"under all the circumstances, I would never send him a bill
for what happened on the 17th " On the agreement and release executed
on that evening (signed by Schumacher and a representative of Respond-
ent) O'Connor signed as the representative of the Union He testified that
he did not realize that he was signing on behalf of the Union and did not
notice it until later "I may have noticed at the time, and felt it was, well,
it's not consequential, because the whole document is between Schu-
macher and Peerless, but I have no recollection I just assumed I was just
signing as a witness
I' There is an unanswered question of who, if anyone, filed the com-
plaint Butler testified that he did not file a complaint against Schumacher
and counsel for Respondent alleged that he did not have a copy of the
complaint In addition, a subpoena by counsel for the Charging Party of
the New York City Police Department failed to produce the complaint
What is clear, as stated, infra, is that later that day Butler had to sign to
withdraw the complaint
PEERLESS IMPORTERS
O'Connor attempted to have the police "slow down" the
proceeding in the hope that the matter would be settled,
as the new contract was agreed to a few days earlier;
this attempt was unsuccessful. Schumacher was asked if
he would answer questions about the incident, and
O'Connor said that he would. He was asked questions
about the incident which Schumacher answered, denying
any involvement; this lasted for about 15 minutes, Hef-
fernan then proposed a lineup; if the complainant could
not identify Schumacher he would be released. O'Con-
nor agreed that was a possible solution to the difficulty.
Schumacher asked O'Connor "How long is this going to
take?" O'Connor testified:
I then explained to him that the line-up would
take a couple of hours but that if it was successful,
he would be able to go home, and that might well
be the end of the case. I indicated to him that if the
complainant identified him in the line-up , then he'd
be arrested, and he would spend that night in jail,
and probably the next night; that it was my experi-
ence with Central Booking in Brooklyn that he'd be
there for a minimum of two nights.
He was obviously disturbed by that and indicated
to me he didn't like that concept or that idea at
all 14
O'Connor then told Schumacher that he would have to
go to Central Booking and, subsequent to that, possibly
before a judge. That if he was identified and arrested he
would be in jail for one or two nights, and "my experi-
ence with Central Booking in Kings [Brooklyn] is that
two nights is not unusual." Schumacher said that he
could not spend that much time in jail with his wife in
the hospital. About that time Carbone told Schumacher
that they would have to take his picture; he stood up
against the wall while he was photographed from the
front and the side Carbone also fingerprinted him. Schu-
macher then said to O'Connor: "My wife's in the hospi-
tal, I got medical problems.15 This is all bullshit. You've
got to get me . . . out of here. What do I have to do to
get out of here?" O'Connor then told Schumacher that
he would call the Union to see if the matter could be set-
tled and withdrawn. He spoke to Minichello and told
him of the situation at the precinct and it "looked like a
potential arrest here" and that Schumacher was very
upset, and wanted to get out of jail. He asked Minichello
to have someone from the Union call Respondent to see
if the situation could be straightened out. He called Nino
Magliocco and asked if he would drop the charges, Mag-
14 Respondent's brief (at 11) states that O'Connor liked the idea of a
lineup and recommended it to Schumacher, who "rejected it, however,
and O'Connor, although he tried, could not convince Schumacher to
change his mind " This contention is not supported by the record evi-
dence Schumacher's displeasure, as expressed to O'Connor, was not
about the lineup , but with spending a night or two in jail should he be
identified by the complainant The fact that the police were proceeding
with the lineup by attempting to locate men who resemble Schumacher,
establishes that Schumacher did not "reject" the idea
15 In about 1984 he had an operation that removed all but a small part
of his large intestine and connected his small intestine to his large intes-
tine For the following 5 months he used a colostomy As a result, he has
to defecate almost immediately after eating In addition , at the time, he
was taking pills daily for high blood pressure and gout
761
liocco said: "The only way John Schumacher could get
out of jail, or I will drop the charges [is] if he quits his
job. I don't want John Schumacher working for me."
Minichello then called O'Connor at the precinct and told
him that Magliocco said that they would drop the
charges if Schumacher resigned his employment with
Respondent. He also told O'Connor that the Union does
not recommend that he "throw away 30 years and
resign ." O'Connor then told Schumacher of Respond-
ent's offer ("you've got to resign. If you resign, they'll
withdraw the charges") and Minichello's recommenda-
tion, he also told him that he felt "under the circum-
stances, he would be foolish to resign ." Schumacher said:
"Fuck them. If they don't want me, I'll sign it ." O'Con-
nor told him that he was being foolish throwing away 30
years of seniority. Schumacher told him: "Kenny, I can't
stay here."
O'Connor then called Minichello and told him of
Schumacher's decision; Minichello called Nino Mag-
liocco and told him that Schumacher was willing to
resign pursuant to his offer, Magliocco told him to call
Respondent's counsel, Roberts, and tell him the same
thing. He did this and Roberts said that he would handle
it. Minichello then called O'Connor and told him to
speak to Roberts. He called Roberts and told him that
Schumacher was willing to accept the deal of resigning
in exchange for the criminal charges against him being
dropped. Roberts told him that he was "faxing" to Re-
spondent a general release for Schumacher to sign.
O'Connor informed Carbone and Heffernan that the par-
ties had reached an agreement to have the charges with-
drawn and they said that they would attempt to acceler-
ate the usual procedure. About 5 p.m, Schumacher was
transferred to Central Booking together with another
prisoner, Carbone, and two other policemen, the other
prisoner was handcuffed. When he got to Central Book-
ing he sat with prisoners who were chained to a bench,
he had his picture taken again , with a number, and his
pockets were emptied. After this, he was returned to his
cell. About 7 p.m. Carbone took him from the cell, tell-
ing him that Respondent's representatives were there.
Marsloe, Butler, and one other individual were there on
behalf of Respondent, Butler spoke to an assistant district
attorney and signed a statement (as complainant ) stating
that he no longer wished to press charges. The assistant
district attorney and police officer also signed the state-
ment, which stated that the charges were dismissed.
O'Connor was given copies of the agreement and re-
leased 16 ("I had expected to see a Blumberg form, but I,
's Under this agreement and release , Respondent paid Schumacher $1
It begins by stating that it shall not be construed as an admission by Re-
spondent of any liability or wrongdoing Schumacher, by this document
released Respondent from any possible claim or action, including "viola-
tion of any local, state or federal law " Schumacher also agreed to release
Respondent from all claims, not only on his behalf, "but also those which
may have been or may be made by any other person or organization on
his behalf" He also agreed to withdraw, with prejudice, the pending ar-
bitration on his behalf and never to seek or accept employment with Re-
spondent Without going into any more detail (Schumacher's obligations
take up four pages of this agreement ), Respondent 's only obligation under
the agreement (other than paying him $1) is that if a prospective employ-
er of Schumacher requests an employment reference from Respondent,
Respondent "shall respond by stating the dates of Schumacher's employ-
ment and his job classification "
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I saw this rather extensive agreement and release") and
read it. When Schumacher came downstairs, O'Connor
told him that he had received a copy of the withdrawal
of the charges and "This is what you have to sign."
Schumacher asked him if he had read it and he said that
he had. Schumacher signed it without reading it and
O'Connor then signed it as well (on the line stating,
"Wine, Liquor & Distillery Workers Union, Local 1").
O'Connor gave the signed agreements to Marsloe and he
and Schumacher left the building about 7:30 p.m. Be-
cause visiting hours at the hospital were over at 8 p.m.,
he went directly home and called the hospital instead.
Respondent's employees returned to work on Monday,
November 16; on the following morning the Union's as-
sistant steward, Ralph Serega, told Gasparino that Schu-
macher had been fired or arrested (Gasparino was not
sure which) for stealing Respondent's invoices the prior
week. Gasparino told Serega that he felt bad because he
was the one who took the invoices. Gasparino then told
Sal Geneva, Respondent's warehouse foreman, that it
was he who took the invoices, not Schumacher, and that
he wanted him to tell that to Magliocco; Geneva said
that he would tell him. He testified hat he then called
Schumacher either that morning or that evening (Schu-
macher testified that he received this call from Gaspar-
ino at 9 p.m. that day when he returned from Central
Booking) and told him that he was the one who took the
invoices. Schumacher said that he would call Minichello
the following morning and asked Gasparino to do the
same. Gasparino called Minichello the next morning and
told him that it was he, not Schumacher, who took the
invoices the prior week. Minichello then called Marsloe
and told him of what Gasparino said; Marsloe told him
that he had to speak to Roberts. He told Roberts of the
conversation and Roberts said he had to speak to Mag-
liocco. He called Magliocco and told him that he had re-
ceived a call from one of his employees saying that he,
not Schumacher, took the invoices the prior week; "Mr.
Magliocco, you're burying the wrong guy." Magliocco
said, "Johnny Schu cannot work for me. He resigned
and he can't come back to work for me." Magliocco also
told him that the individual did not fit the description as
he had black hair (as Gasparmo does) while the one who
took the invoices had white hair. Schumacher's dis-
charge was never rescinded as a result of this call and
Gasparino's employment with Respondent was never af-
fected as well.
Schumacher sent the following letter, dated November
20, to Respondent:
Due to the circumstances that I was confronted
with on November 17, 1987, and the coercive effect
thereof on me, both physically and mentally, I was
caused by the representatives of Peerless Importers,
Inc. ("Peerless") to execute both an Agreement and
Release ("Release") as well as a letter to Wine,
Liquor & Distillery Workers Union Local One
("Local One"), dated November 17,1987 ("Letter"),
withdrawing all grievances and claims against Peer-
less.
I was incapable, at the time that I signed both the
Release and Letter, of using good reasoning and
judgement . After I had the opportunity to evaluate
the facts , I realized that I have been extorted by a
climate of intimidation and fear, created by Peerless,
to surrender valuable property rights . I notified
Local One of my desire to rescind both the Release
and Letter and to Support Local One 's dispute
against Peerless resulting from the termination of
my employment by Peerless.
This document expresses my desire to rescind the
Release and Letter. A copy of this letter has been
provided to Local One.
Analysis
There can be no question of the legal principles to be
applied herein. In NLRB v. Burnup & Sims, 379 U.S. 21
at 23 (1964), the Supreme Court stated (citations omit-
ted):
Over and again the Board has ruled that § 8(a)(1) is
violated if an employee is discharged for miscon-
duct arising out of a protected activity, despite the
employer's good faith, when it is shown that the
misconduct never occurred. In sum , § 8(a)(1) is vio-
lated if it is shown that the discharged employee
was at the time engaged in a protected activity, that
the employer knew it was such, that the basis of the
discharge was an alleged act of misconduct in the
course of that activity, and that the employee was
not, in fact, guilty of that misconduct. -
The law has not changed since it was set forth by the
Board in Rubin Bros. Footwear, 99 NLRB 610, 611
(1952):
We are now of the opinion that the honest belief of
an employer that striking employees have engaged
in misconduct provides an adequate defense to a
charge of discrimination in refusing to reinstate such
employees, unless it affirmatively appears that such
misconduct did not in fact occur. We thus hold that
once such an honest belief is established, the Gener-
al Counsel must go forward with evidence to prove
that the employees did not, in fact, engage in such
misconduct. The employer then, of course, may
rebut the General Counsel's case with evidence that
the unlawful conduct actually did occur. At all
times, the burden of proving discrimination is that
of the General Counsel.
See also Desert Inn Country Club, 275 NLRB 790 (1985).
In General Telephone Co. of Michigan, 251 NLRB 737,
739 (1980), the Board stated that an employer's burden
of establishing an honest belief requires more than his
mere assertion that he had an honest belief: "Rather, it
requires some specificity in the record, linking particular
employees to particular allegations of misconduct." In
doing so, an employer "may premise its belief of striker
misconduct on reports from guards and other written re-
ports" which specifically identify the wrongdoers. Lou-
isiana-Pacific Corp., 282 NLRB 1303 (1987).
Schumacher was clearly engaged in protected concert-
ed activities on November 10; he had been the Union's
shop steward for 7 years, he was participating in the
PEERLESS IMPORTERS
strike against Respondent and was the Union's picket
captain. Respondent's alleged "honest belief' that Schu-
macher was engaged in unprotected activity was based
solely on the testimony of Butler, who testified that
when he returned to the facility on November 10, short-
ly after the incident, he was given a large number of pic-
tures of Respondent's employees and, without prompting
from anybody, chose Schumacher's picture. I find that
this testimony establishes that, at that time, Respondent
did have an honest belief that Schumacher was the
wrongdoer. Under Rubin Bros., supra, the General Coun-
sel must then come forward with evidence that Schu-
macher was not the wrongdoer; I find that he has done
so. I found Schumacher to be a very credible witness
who testified openly and honestly about all the events;
his only problem was his inability to answer a question
briefly. I therefore find credible his denial that he was in-
volved in the incident I was also very impressed with
Mattarelliano whom I found to be an extremely honest
and believable witness As both testified that they were
driving on the Brooklyn Queens Expressway and Queens
Boulevard, without stopping, during the period that the
incident occurred, I find that Schumacher was not in-
volved in the incident with Butler. Counsel for Respond-
ent, in his brief, correctly points to discrepancies in the
testimony of Schumacher and Mattarelliano and Schu-
macher and Caffrey in order to undermine their credibil-
ity. However, such discrepancies are to be expected
when witnesses are testifying 6 months after the events
transpired, and the event (whether all the trucks left to-
gether, the exact route they drove after leaving the facil-
ity, and what time Caffrey returned to the facility) may
not have appeared that important at the time. In addi-
tion, I had plenty of time to observe Schumacher as he
was on the witness stand for 3 days, principally during
cross-examination; these observations convince me that if
he has a vice it is compulsive talking, not a propensity
toward violence. Finally, as set forth, supra, Schumacher
suffers from a number of debilitating medical problems; I
cannot imagine him engaging in a push-pulling contest of
the truck door with a driver many years his junior, nor
can I imagine him winning that contest. An additional
reason for this finding is that, although I initially found
Butler's testimony fairly credible and reasonable, it went
downhill after he was shown the videotape of the picket
line on November 10 Initially he testified that he could
identify Schumacher because he was facing him close up
through the window on the driver's door of the truck,
and that Schumacher was wearing a checkered jacket
After being shown the videotape which showed Schu-
macher wearing a solid black jacket (and Keehner wear-
ing a checkered jacket) Butler testified, for the first time,
that when Schumacher was getting out of the car prior
to coming to the truck, he could see him buttoning up
his coat with a green or black jacket on top and the
checkered coat beneath, I find this highly unlikely. Also
impairing his credibility was the conflict between his tes-
timony about the incident and his description of the inci-
dent in the complaint where he stated: "I drove a few
blocks when the truck was blocked by two cars. Five
men jumping out of those cars " His testimony never re-
ferred to his being blocked by two cars or five men
763
jumping out of the cars. For all these reasons, I find that
Schumacher was not the wrongdoer in the incident in-
volving Butler. This is not to say, however, that I found
all the testimony by General Counsel's witnesses regard-
ing this incident to be credible and the testimony of
Butler incredible. In fact, I have some difficulty reconcil-
ing the testimony of Keehner and Gasparino. In order to
credit both of them. I would have to believe that after
Keehner cursed Butler and attempted to take the clip-
board and invoices from him, j ust a few minutes later (as
Keehner was driving and Gasparino was walking
Keehner probably arrived first) Butler handed that clip-
board and invoices to Gasparino while asking him for di-
rections It seems that Butler would have learned his
lesson after the earlier incident with Keehner. Even
though these two versions are less than totally plausible,
I find the credible testimony establishes that Schumacher
was not the wrongdoer
Respondent next defends that the agreement and re-
lease executed by Schumacher on November 10 "re-
solved the allegations underlying this Complaint." There
are two underlying issues in this regard: can an individ-
ual execute an agreement providing that neither he, nor
anyone on his behalf, can file a claim or lawsuit (or
unfair labor practice charge) against an employer (or
union); i.e, can you waive a right to proceed before the
Board, and, second, if so, should the agreement and re-
lease be found to be valid? Although I could find no case
right on point, the Board in Ingram Mfg. Co., 5 NLRB
908 at 912 (1983), held that
[A]n agreement by which a labor organization binds
itself to refrain from filing charges under the Act on
behalf of employees is contrary to the policy of the
Act and therefore of no effect whatsoever upon the
power so to initiate Board proceedings
In J. I. Case Co. v. NLRB, 321 U.S. 332 (1944), the Su-
preme Court stated at 337:
"The Board asserts a public right vested in it as a
public body charged in the public interest with the
duty of preventing unfair labor practices." Wherev-
er private contracts conflict with its functions, they
obviously must yield or the Act would be reduced
to a futility. [Citation omitted.]
In Machinists Lodge 743 v. United Aircraft Corp., 337 F.2d
5, 8 (2d Cir. 1964), the court stated: "the right to resort
to the Board for relief against unfair labor practices
cannot be foreclosed by private contract."
On the basis of these cases, I find that Schumacher
could not waive his (or the Union's) right to file an
unfair labor practice charge with the Board This was a
difficult time for Schumacher, he first learned of the
criminal charges the prior evening shortly before mid-
night That morning, prior to going to the precincts, he
took his wife to the hospital where she was to be operat-
ed on that day. Schumacher had never previously been
arrested and was told by O'Connor that he could possi-
bly spend 2 days in jail before being released. Finally, his
medical condition made the prospect of overnight incar-
ceration even more frightening. In Atlantic Marine, 211
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 230, 232 (1974), the Board gave short shrift to a
release signed by two employees under economic duress.
In that case the administrative law judge stated: "It was
Respondent that put him in a position of having to do
something extreme and desparate financially, and it
cannot now enjoy a benefit from the weakness it forced
upon its old employee." In a similar situation, the Board
stated in Big Sky Sheet Metal Co., 266 NLRB 21 (1983):
[I]n the instant case, Respondent's actions toward
Mineer can only be seen as coercive. Respondent
unlawfully discharged him, left him without
income, and then drafted a self serving document in
which Mineer waived all rights against Respondent
in order to get the only funds available to him. As
the Board found in Atlantic Marine, Respondent
cannot be allowed to profit from its unlawful con-
duct.
Additionally, the Board in Kelly-Springfield Tire Co., 6
NLRB 325 (1938), refused to recognize an employee's
"assent , under economic duress, to an offer of a job not
substantially equivalent." Finally, the Board stated in In-
dependent Stove Co., 287 NLRB 740 (1987), that one of
the factors it will consider in determining whether to
give effect to a settlement, is whether the agreement was
entered into voluntarily by the parties, without fraud or
coercion. There can be no doubt that Schumacher was
coerced into executing the agreement and release. His
wife was in the hospital being operated on; he had medi-
cal difficulties with two nights' imprisonment possibly
awaiting him, and an unattended child at home. The
Union and O'Connor recommended that he not accept
Respondent's offer; he did not follow their advice and
signed the agreement and release in order to avoid an
overnight incarceration for a crime that he did not
commit. An indication of the level of coercion herein
and how desparate Schumacher was to do anything in
order to be released can be deemed from the agreement
and release. O'Connor and Schumacher expected to re-
ceive a simple release or resignation letter; instead, they
received a five-page document with an attached letter
for him to sign , without an opportunity to negotiate. The
choice: sign or probably spend a night or two in jail. All
Respondent was obligated to do under the agreement
and release was to give Schumacher $1 and respond to a
request for references from a prospective employer of
Schumacher by stating the dates of Schumacher's em-
ployment and his job classification. Schumacher's obliga-
tions consume four pages of the agreement and release. I
therefore find that even if Schumacher could waive the
right to file charges before the Board, the agreement and
release he executed on November 10 will not be recog-
nized because of the level of coercion present at the time
he executed it. I therefore find that by discharging Schu-
macher on November 16, due to its mistaken belief that
he had stolen its invoices on November 10, Respondant
violated Section 8(a)(1) of the Act.17
11 Because I find that Respondent violated Sec 8(a)(1) by firing Schu-
macher because they mistakenly believed that he had stolen the invoices
on November 10 (1 e, a Burnup & Sims and Rubin Bros violation) I find
it unnecessary to determine whether Schumacher's aggressive attitude as
CONCLUSIONS OF LAW
1. The Respondent , Peerless Importers , Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
discharging Schumacher on November 16, effective No-
vember 10.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices it will be rec-
ommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act, to wit, that Respondent offer Schu-
macher immediate reinstatement to his former position
or, if that position no longer exists , to 'a' substantially
equivalent position, without prejudice to-his seniority or
other rights and privileges, and expunge from its files
any reference to his termination. It is also recommended
that Respondent be ordered to make Schumacher whole
for any loss of earnings he sustained by reason of his dis-
charge. Backpay shall be computed in accordance with
F. W. Woolworth Co., 90 NLRB 289 (1950); New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). See gener-
ally Isis Plumbing Co., 138 NLRB 716 (1962). The back-
pay period shall begin November 16, the date the other
employees returned to work.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed18
ORDER
The Respondent , Peerless Importers, Inc., Brooklyn,
New York, its officers, agents, successors , and assigns,
shall
1. Cease and desist from
(a) Discharging its employees in retaliation for their
protected activities.
(b) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Schumacher immediate reinstatement to his
former position of employment or, if that position is no
longer available , to a substantially similar position with-
out prejudice to his seniority or other rights and make
him whole for the loss he suffered as a result of the dis-
a shop steward for the Union contributed to the discharge, as this would
add nothing to the violation
18 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
PEERLESS IMPORTERS
crimination in the manner set forth above in the remedy
section
(b) Expunge from its files reference to the termination
of Schumacher and notify him in writing that this has
been done, and that the evidence of this unlawful activi-
ty will not be used as a basis for future actions against
him.
(c) Preserve and, on request, make available to the
Board or its agents for examination or copying, all
records or documents necessary to analyze and deter-
mine the amount of backpay owed to Schumacher.
(d) Post at its Brooklyn, New York facility copies of
the attached notice marked "Appendix."19 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
r,
19 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
765
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge our employees in retaliation
for their protected concerted activities on behalf of
Wine, Liquor and Distillery Workers, Local 1 or any
other labor organization
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make whole John Schumacher, with inter-
est, for any loss of earnings he may have suffered as a
result of our discrimination against him , and we will
offer him full and immediate reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent position without prejudice to his seniority or
other rights and privileges.
WE WILL expunge from our files any reference to the
termination of Schumacher, and we will notify him, in
writing, that this has been done and the evidence of this
unlawful action will not be used as a basis for future per-
sonnel action against him.
PEERLESS IMPORTERS, INC