Pet Inc.

National Labor Relations Board - Board Decisions

Jun 6, 1977

229 N.L.R.B. 1241 (N.L.R.B. 1977)

PET INCORPORATED
Pet Incorporated, Dairy Group' and Arthur Souza
and John J. Ebbe. Cases 12-CA-7089-1 and 12-
CA-7089-2
June 6, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 14, 1976, Administrative Law Judge
Russell M. King, Jr., issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions and briefs in support
thereof and in opposition to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
i. The Administrative Law Judge found that the
charges involved herein were legally deficient and
therefore did not afford a sufficient basis for the
issuance of the complaint in this case. Accordingly,
he granted Respondent's motion to dismiss the
complaint. We find merit in the General Counsel's
exception to this ruling.
In sum, the procedural history of this case is as
follows. On January 27, 1976,3 Arthur Souza and
John J. Ebbe filed the instant unfair labor practice
charges. Each charge alleged that Respondent had
violated Section 8(a)(1) and (3) of the Act by
terminating the employment of the Charging Party
because of his activities on behalf of Local 79,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Each
charge also alleged the following: "By the above and
I The name of Respondent appears as amended at the hearing.
2 Respondent contends that the election referred to in sec. II of the
attached Decision occurred on October 23, 1975, rather than in late January
or February 1976, as found by the Administrative Law Judge. We find it
unnecessary to determine the exact date of the election, as it does not affect
our findings herein.
The General Counsel has excepted to the Administrative Law Judge's
refusal to credit the testimony of employee DeNavara. The factors
underlying the Administrative Law Judge's credibility finding are set forth
in fn. 19 of his Decision. We agree with the General Counsel that
DeNavara's reluctance to take an oath which contained a reference to a
deity is not a relevant factor in assessing credibility. See rule 43(d) of the
Federal Rules of Civil Procedure. We also disavow the Administrative Law
Judge's reliance on the consistency between DeNavara's testimony and his
prior affidavit. However, we do adopt his credibility finding insofar as it was
based on his observation of DeNavara's "overall demeanor." "For the
229 NLRB No. 168
other acts, the above-named employer has interfered
with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the
Act."
The parties stipulated at the hearing that on March
3 "the 8(aX3) aspect of the charges were withdrawn
by the Charging Parties ... with the consent of the
Regional Director." In this regard, Respondent's
counsel read into the record a letter he received from
the Regional Director which stated that "this is to
advise you that, with my approval, the 8(aX3)
portions only of the charges in the above-captioned
case have been withdrawn. This in no way affects the
remaining 8(aX)() allegations of the charges pending
before the processing [sic]."4 On March 22, the
instant complaint issued alleging that, within the 6-
month period preceding the filing of the charges,
Respondent committed four violations of Section
8(aX)(1).
The Administrative Law Judge stated that, in view
of the withdrawal of the 8(a)(3) aspect of the charges,
he was "left to speculate" as to what, if any, of the
original language remained. Further, the Administra-
tive Law Judge found that, after the withdrawal,
Respondent could logically assume that "the matter
was indeed closed, at least until amended or new
charges were filed." Accordingly, he concluded that,
after the discharge allegations were withdrawn, the
General Counsel improperly expanded the complaint
based upon charges that were legally deficient
because they failed to contain a "clear and concise
statement of the facts constituting the alleged unfair
labor practices," as required by Section 102.12(d) of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended.
The Administrative Law Judge's conclusion is
without basis in fact or law. Inasmuch as Respondent
acknowledged at the hearing that it had been advised
by the Regional Director that his approval of the
withdrawal of the 8(a)(3) portions of the charges "in
no way" affected the remaining 8(a)(1) allegations,
the record refutes the Administrative Law Judge's
findings that it was unclear as to what, if any, part of
demeanor of a witness may satisfy the tribunal . . . that the witness'
testimony is not true," while "the Board and the reviewing court look only
at cold records." N.LR.B. v. Walton Manufacturing Company, 369 U.S. 404,
408 (1962). Thus, the Administrative Law Judge found that DeNavara
"appeared as [al reluctant witness," and that "lt]hroughout his testimony,
DeNavara appeared restless and his testimony came off as lethargically
evasive and indefinite." In view of this well-articulated demeanor finding,
we accept the Administrative Law Judge's credibility resolution as not
contrary to the clear preponderance of all of the relevant evidence. Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3,
1951). See Local 612, International Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America (Deaton Truck Line, Inc.), 146 NLRB
498, 500-501, fn. 1(1964).
3 All subsequent dates herein are in 1976 unless otherwise indicated.
4 No motion to correct the transcnpt has been filed by any party.
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the charges remained after the withdrawal, and
therefore Respondent could logically assume that the
matter was closed. Since the charges, after the
withdrawal of the 8(a)(3) aspect, retained the
language that "[b]y the above and other acts"
Respondent interfered with, restrained, and coerced
employees in the exercise of their rights under
Section 7 of the Act, the issue presented is whether
this general allegation is sufficient to support the
more particular allegations of interference, restraint,
and coercion contained in the complaint. This
question was considered and resolved in Cromwell
Printery Incorporated and/or Cromwell Business
Forms Incorporated, et al., 172 NLRB 1817, 1821-22
(1968). On the basis of its review of several relevant
court and Board cases, the Board concluded in
Cromwell that the requirement of specificity in
Section 102.12(d) of its Rules and Regulations was
for its own information only and was not binding
upon a charging party. Further, it was specifically
held in that case that a charge alleging only in
general terms that a respondent was engaging in
unfair labor practices in violation of Section 8(a)(l)
of the Act was sufficient to support a complaint
alleging specific acts in violation of that section.
In view of the foregoing, we find, contrary to the
Administrative Law Judge, that the instant charges
are valid and afford a sufficient legal basis for the
issuance of the complaint. 5 Accordingly, Respon-
dent's motion to dismiss the complaint is hereby
denied.
2. Although the Administrative Law Judge grant-
ed Respondent's motion to dismiss the complaint, he
nevertheless made findings on the merits of the
complaint allegations in order to avoid a remand in
the event his procedural ruling was reversed by the
Board. Specifically, he found that two unlawful
statements were made by Foreman Ross to employee
Ebbe regarding union bumper stickers. According to
Ebbe's credited testimony, in December 1975 Ross
told him that "[i]f it wasn't for those damn bumper
stickers on your car . . . you would be one of the
first ones that would get a raise." In January, Ross
told Ebbe to either take the union bumper stickers
off his car or park it off company property. We agree
with the Administrative Law Judge that these
statements were violative of Section 8(a)(1). 6
5 This finding is further supported by Texas Industries, Inc., et al., 139
NLRB 365, 366-367 (1962), enfd. in pertinent part 336 F.2d 128 (C.A. 5,
1964); N.LR.B. v. Kohler Company, 220 F.2d 3 (C.A. 7, 1955); and North
American Rockwell Corporation v. N.L R.B., 389 F.2d 866 (C.A. 10, 1969).
6 In the absence of an exception thereto, we adopt, pro forma, the
Administrative Law Judge's finding that Respondent did not violate Sec.
8(a)(1) by Plant Superintendent Graham's statement to employee Ebbe that
he could only solicit for the Union during his lunch hour or off company
property. We note in passing our recent decisions in M Restaurants,
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Pet Incorporated, Dairy Group, St. Petersburg,
Florida, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Stating that any employee was denied a wage
increase because of his display of prounion sympa-
thies.
(b) Instructing any employee to either remove
union bumper stickers from his car or park it off
company property.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Post at its premises in St. Petersburg, Florida,
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 12, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
not found herein.
MEMBER JENKINS, dissenting in part:
The majority attempts to disavow the Administra-
tive Law Judge's reliance on irrelevant and, in my
opinion, prejudicial factors which he considered in
discrediting the testimony of DeNavara, by justifying
their adoption of this finding "insofar as it was based
on his [the Administrative Law Judge's] observation
of DeNavara's 'overall demeanor.' " The error in
this ruling, however, is that there is no way to
Incorporated, d/b/a The Mandarin, 221 NLRB 264 (1975), and East Bay
Newspapers, Inc., d/b/a Contra Costa Times. 225 NLRB 1148 (1976),
wherein we discussed employer rules which prohibit union solicitation
during nonworking time such as breaktime and before and after work.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1242
PET INCORPORATED
separate the various factors relied on by the
Administrative Law Judge in footnote 19 of his
Decision, or to measure the relative weight he gave
each one, especially since DeNavara's refusal to take
the ordinary oath was necessarily and obviously a
part of his impression of the witness and thus
contributed, to some extent, to his overall demeanor
finding, upon which my colleagues rely.
At issue here is testimony from employee DeNa-
vara that in late December 1975, or early January
1976, he had a conversation with Plant Manager
Putna concerning a job which DeNavara was then
bidding for and subsequently obtained. DeNavara
questioned Putna concerning his chances of being
awarded the job in view of the fact that a competing
employee, Arthur Souza, possibly had greater senior-
ity. According to DeNavara, Putna replied, "Well
isn't Art [Souza] considered a union agitator?" The
General Counsel has excepted to the Administrative
Law Judge's refusal to credit this testimony and find
Putna's statement to be a violation of Section 8(a)(1).
The Board's established policy concerning excep-
tions to credibility findings made by an Administra-
tive Law Judge is set forth in the often-cited Standard
Dry Wall decision.8 Under this policy, the Board is
"very reluctant"9 to overturn an Administrative Law
Judge's resolutions with respect to credibility. This
reluctance is based, in large part, on the fact that the
Administrative Law Judge, and not the Board, has
had the advantage of observing the witnesses while
they testified. But, as the Board stated in Standard
Dry Wall, supra, demeanor is "only one of the many
factors by which credibility is tested." In Eastern
Coal Corporation,10 cited with approval in Standard
Dry Wall, the Board listed such other facts as
the inherent probability or lack of proba-
bility of testimony, contradiction of a witness on a
material matter by his own contrary statement or
by another witness called by the same party;
failure to offer, produce on request, or account for
the absence of supporting records; and failure to
call material witnesses. The Trial Examiner also
gave weight to admissions and undenied testimo-
ny. We are satisfied that the credibility findings of
the Trial Examiner are not unreasonable; they are
therefore affirmed.
All of the above factors are relevant in determining
the credibility of a witness. However, as I have
already pointed out, the Administrative Law Judge
in making his resolution of DeNavara's credibility
necessarily included in his evaluation of "DeNavar-
R Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d
362 (C.A. 3, 1951).
9 Russell SIover Candies, Inc., 221 NLRB 441 (1975).
1' 79 NLRB 1165, 1166 (1948), enfd. 176 F.2d 131 (C.A. 4, 1949).
a's demeanor" his refusal to take an oath which
contained reference to a deity. Not only is such a
factor irrelevant to a proper determination of
credibility," as the majority concedes, but it is, in my
view, substantially prejudicial since it infected the
Administrative Law Judge's evaluation of DeNavar-
a's demeanor from which he concluded DeNavara
was not a credible witness.
Therefore, contrary to the majority, in this particu-
lar situation, review of the Administrative Law
Judge's credibility finding must be made de novo,
ignoring DeNavara's reservation concerning the
form of oath, so as to rely only on those factors in the
record which properly pertain to reliability. Accord-
ingly, on the basis of the following discussion of all
the relevant factors, the only possible conclusion is
that the Administrative Law Judge's resolution
concerning DeNavara's credibility must be reversed.
First, although there is no indication in the record
that Putna was unavailable as a witness at the time of
the hearing, he did not testify and thus did not deny
the remarks attributed to him by DeNavara. Second,
DeNavara did not contradict his testimony during
his brief cross-examination by Respondent, which
was not directed in any manner at attacking his
credibility. Third, inasmuch as the record reveals that
Souza was a leading union adherent, DeNavara's
testimony was not inherently implausible. Further-
more, and contrary to the Administrative Law Judge,
regardless of the relative harshness of the term
"union agitator," the statement attributed to Putna
by DeNavara is substantially similar to the statement
which he found that Ross made to Ebbe, telling Ebbe
that his union sentiments limited his opportunity to
get a raise. Fourth, DeNavara's testimony cannot be
dismissed as unreliable simply because he "appeared
as [a] reluctant witness." In this regard, it must be
remembered that DeNavara was still employed by
Respondent at the time he testified. Finally, as
acknowledged by the Administrative Law Judge,
DeNavara's prehearing affidavit "reflected that he
had related the same statement." Contrary to the
Administrative Law Judge, and again in agreement
with my colleagues, I do not find anything in this
consistency, or in the manner in which the testimony
at the hearing was elicited, to justify anything other
than the usual inference that consistency is support-
ive of credibility. In light of the numerous indicia of
reliability listed above, I would conclude that the
Administrative Law Judge's refusal to credit DeNa-
vara's testimony, on the basis of the factors cited by
him, was in error, and would therefore reverse his
II Rule 43(d) of the Federal Rules of Civil Procedure states: "Whenever
under these rules an oath is required to be taken, a solemn affirmation may
be accepted in lieu thereof."
1243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credibility finding and conclude that Respondent
violated Section 8(a)(1) by Plant Manager Putna's
statement to DeNavara concerning the union activi-
ties of employee Souza. In all other respects, I am in
agreement with the majority.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT state that any employee was
denied a wage increase because of his display of
prounion sympathies.
WE WILL NOT instruct any employee to either
remove union bumper stickers from his car or
park it off company property.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
PET INCORPORATED,
DAIRY GROUP
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING JR., Administrative Law Judge: This
case was heard by me in Tampa, Florida, on May 26, 1976.
The charges by both individuals were filed January 27,
1976, and the complaint was issued on March 22, 1976.1
Both charges allege improper discharges of the individuals
involved on January 27, 1976, because of their activities on
behalf of Local 79, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(the Union),2 and in violation of Section 8(a)(l) and (3) of
the National Labor Relations Act, as amended (the Act).
The complaint, however, alleges no discriminatory dis-
charges and alleges four isolated violations of Section
8(a)(1) of the Act occurring in September and December
1975 and January 1976. Pet Incorporated, Dairy Group,3
the Respondent, denies the alleged violations on their
merits and further defends by way of a motion to dismiss
I All other dates are in 1975 unless otherwise indicated.
2 The Union is not a formal party to this case and there was no
appearance on its behalf at the hearing.
3 Sometimes referred to in the pleadings as Hoods Dairy Operation, Pet
Inc. (or Incorporated), Dairy Group. By an unopposed motion early in the
hearing of the case, all formal papers and the record were corrected to
reflect the actual and proper name of the Company.
4 Soon after the charges were filed on January 27, 1976, the Respondent,
by and through its attorney, attempted to justify the discharges by lengthy
correspondence (with enclosures) to the Regional Director. Thereafter, and
immediately upon issuance of the complaint of March 22, 1976, the
Respondent filed its formal motion to dismiss the complaint, which motion
was denied by order entered by Administrative Law Judge Charles W.
Schneider in Washington, D.C., on April 21, 1976. This order was moot on
the subject of leave to renew the motion at the hearing, and the language of
the order recited that the motion was "now denied." I allowed renewal of
the complaint because of the estrangement of the allega-
tions in the complaint from those in the charges. 4
Upon the entire record, including my observation of the
demeanor of the witness, and after due consideration of the
argument of counsel and the brief filed by the Respondent,
I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a Delaware corporation licensed to
do business in the State of Florida, and is engaged in the
processing and distribution of dairy products at various
locations in Florida, including its facility in St. Petersburg,
the only plant involved in this proceeding. During the 12-
month period prior to the issuance of the complaint, the
Respondent purchased and received goods and materials
valued in excess of $50,000, which were shipped to its St.
Petersburg, Florida, facility directly from points located
outside the State of Florida. The Respondent submits, and
I find, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. I further
find, as admitted, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
11. BACKGROUND
5
The Respondent's St. Petersburg dairy plant employs
approximately 200 individuals. In the fall of 1973 there was
a union campaign, followed by an election and ultimate
certification in approximately August 1974.6 Contract
negotiations thereafter began and continued for almost a
year without success, followed by a strike lasting for 8
weeks. Still no contract resulted and a decertification
petition was filed, followed by an election, apparently in
late January or February 1976. That election also involved
a second and competing union (Local 79, Teamsters, the
Union) 7 and neither union prevailed. The period involving
the four alleged violations of Section 8(aXl) of the Act is
the election period, September 1975 to January 1976.
111. SUMMARY OF EVIDENCE
John J. Ebbe, one of the two Charging Parties in the
case, testified on behalf of the General Counsel.8 Ebbe had
worked for the Respondent from late January 1974 to
January 27, 1976. He and employee Arthur Souza became
dissatisfied with the incumbent union and initiated a
the motion at the hearing and indicated that the motion's disposition would
be made in my Decision. The issue was thus and further treated in closing
argument and in the Respondent's brief. No brief was filed on behalf of the
General Counsel.
5 Most of the background information was furnished by the Respon-
dent's overall manager, Harry E. Willingham, in his testimony at the
hearing. Willingham had no direct knowledge of the specific allegations in
the complaint. The Respondent's motion to dismiss will be treated elsewhere
herein.
6 Although the record is not clear, there apparently was only one union
involved during this period, characterized as "BRAC" in the record.
T The Union was supported by the individual Charging Parties, Souza
and Ebbe.
8 Ebbe was also present throughout the hearing. The other Charging
Party, Arthur Souza, did not testify and was not present at the hearing.
1244
PET INCORPORATED
campaign on behalf of Teamsters Local 79 (the Union) in
the fall of 1975. Ebbe's activities included obtaining signed
cards and passing out union literature and bumper stickers,
four of which he placed on his own car. According to Ebbe,
"to [his] knowledge" there was no "rule against talking at
work," but Plant Superintendent William Graham ap-
proached him "on or about October" and told him "if [he]
wanted to hand out cards for the Union or talk about the
Union, it would have to be done on [his] lunch hour or off
company property." Further, and according to Ebbe, "in
about December of 1975," his immediate supervisor,
Foreman Joe Ross, told him that "if it wasn't for those
damn bumper stickers on your car. . . you would be one
of the first ones to get a raise." Ebbe also indicated that "in
January of 1976," Ross told him that he "had a choice,
either to take the bumper stickers off [his] car or park [his]
car off company property, because he was tired of hearing
about this every time he went up front." Ebbe conceded
that he made no complaints about any of the Respondent's
actions to either the Union or to any Board representative
until after his discharge on January 27, 1976,9 and that the
comments of Graham and Ross did not deter him from his
union support and activities.
The second and last witness called by the General
Counsel was employee Tony DeNavara who testified that
he obtained his current job of "utility" man with the
Respondent "about the end of December, [or] beginning of
January [1976]," but conceded he was "guessing" as to
when it occurred. Earlier, DeNavara's job at the Respon-
dent's plant was one involving "general labor" and he
obtained the apparently better job through signing the "bid
sheet." DeNavara further testified that two other employ-
ees had bid for the job, including Souza, and that before
the job was assigned he went to the office of Plant Manager
Rudy Putna o and asked about his chances, mentioning
the fact that Souza possibly had seniority over him.'
According to DeNavara, Putna's reply was, "Well, isn't Art
[Souza] considered a union agitator." 12
Harry E. Willingham was Respondent's overall manager
and testified that an employee's pay was not based on
"longevity" or length of service and that there was a
specific rate of pay established for each job classification.
Job classifications were established on the basis of required
skill. Willingham further indicated that "merit increases"
were not given, and that to "the best of [his] knowledge,"
there were no "across-the-board" salary increases from
9 The discharges of Ebbe and Souza are not, in themselves, relevant in
this case, as they are not the subject of any allegation in the complaint.
Among the General Counsel's formal papers introduced herein, there
appears the Respondent's lengthy written justification for the discharges
submitted shortly after the filing of the charges alleging violations of Sec.
8(a)(3) of the Act. The material and information contained in the written
justification, together with the fact that the complaint alleges no discrinmina-
tory discharges, support the conclusion that the 8(aX3) allegations were
without foundation and that the terminations of Ebbe and Souza were
legitimate ones for creating a disturbance and fighting in front of the
Respondent's plant.
i' The complaint and answer indicate the spelling of this name to be
"Putna." The transcript uses the spelling of both "Putna" and "Putman"
and there were no motions filed to correct the record.
" There was no union contract in force at this time.
12 The record does not reflect when this conversation took place and the
only date related to it is DeNavara's "guess" as to when he actually got the
position ("about the end of December, [or I beginning of January"). Putna
did not testify in the case.
September 1975 through January 1976. According to
Willingham, Foreman Joe Ross had no authority to grant
any salary increases.
Plant Superintendent William D. Graham testified that
he could not remember having any conversation with
employee Ebbe regarding union solicitation and that the
Respondent's policy regarding any solicitation was that it
was prohibited when "done in such a way [so as] to
interrupt the work schedule." Graham further indicated
that the "men agreed" to solicit only during the lunch hour,
on breaktime, or in nonworking areas and, when asked
whether or not he had ever told any employee that they
could only solicit during his lunch hour or off company
premises, Graham responded, "I can't remember making
that statement."
Foreman Joe Ross, Ebbe's supervisor, readily admitted
in his testimony that he talked to Ebbe in January 1976
about the union bumper stickers, telling him to either
remove them or move his car off the Respondent's
property. Ebbe removed the stickers on the following day.
Ross denied, however, that he ever mentioned a "raise" or
salary in conjunction with the stickers.
IV. THE MOTION TO DISMISS 13
Section 10(b) of the Act states, in part, as follows:
Whenever it is charged that any person has engaged
in or is engaging in any such unfair labor practice, the
Board ... shall have power to issue and cause to be
served upon such person a complaint stating the
charges in that respect. [Emphasis supplied.]
Section 102.12 of the Board's Rules and Regulations
require the charge to contain a "clear and concise statement
of the facts constituting the alleged unfair labor practice
affecting commerce." [Emphasis supplied.] Section 102.15
of the Rules and Regulations state, in part, as follows:
After a charge has been filed, if it appears to the
regional director that formal proceedings in respect
thereto should be instituted, he shall issue ... a formal
complaint .... The complaint shall contain ... (2) a
clear and concise description of the acts which are claimed
to constitute unfair labor practices, including, where
known, the approximate dates and places of such acts
13 The charges were filed on January 27. 1976, and the complaint issued
on March 22, 1976. The Respondent also filed, on or about April 8. 1976, a
motion for discovery, under the Freedom of Information Act (5 U.S.C. §
552, et seq.). That motion was denied by order entered in Washington, D.C.,
on April 21, 1976, by Administrative Law Judge Charles W. Schneider. The
order made reference to the Board's established procedures for requests or
demands under the Freedom of Information Act and as set forth in Sec.
102.117 of the Rules and Regulations and Statements of Procedure of the
Board. The denial of the motion for discovery was apparently communicat-
ed in writing by the Regional Director to the Respondent on April 30. 1976.
and, at the heanng. the Respondent and General Counsel stipulated that
"an appeal" from the denial had been filed and that said appeal was still
pending. At the hearing, the Respondent renewed its motion for discovery.
which motion I denied. The Respondent thereafter moved to continue the
hearing pending the outcome of the "appeal," which motion was also
denied.
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the names of respondent's agents or other represen-
tatives by whom committed. [Emphasis supplied.]
From the above, one would conclude that a complaint
could only issue "in respect" to the charge, and must
contain a "concise description" reciting certain facts
"where known." Section 10(b) of the Act prevents the
Board from filing a complaint on its own. National Licorice
Company v. N.L.R.B., 309 U.S. 350 (1940); N.L.R.B. v.
Kohler Co., 108 NLRB 207 (1954), enfd. 220 F.2d 3 (C.A. 7,
1955). Once a charge has been filed, the Board may include
in its complaint any matter of the same general nature as
that asserted in the charge, and the Board's investigatory
process is not confined to the precise particularization of
the charge. Kohler Company, supra; N.LR.B. v. Fant
Milling Company, 360 U.S. 301 (1959).'4 As further
expressed in Kohler Company, supra, the Board may not get
"so completely outside of the situation which gave rise to
the charge that it may be said to be initiating the
proceeding on its own motion." Cf. Texas Industries, Inc.;
and Dallas Lightweight Aggregate Company, et al. v.
N.L.R.B., 139 NLRB 365 (1962), enfd. 336 F.2d 128 (C.A.
5, 1964).'5
Of interest and significance in this case is a stipulation of
counsel for the General Counsel and for the Respondent,
made of record at the hearing and accepted as evidence,
that on March 3, 1976, "the 8(a)(3) aspect of the charges
was withdrawn by the Charging Parties . . with the
consent of the Regional Director." This occurred 19 days
prior to the issuance of the complaint and 2 months after
the charges were filed. Board agents had knowledge of the
alleged 8(a)(l) violations of the Act appearing in the
complaint long before the improper discharge violations
were withdrawn on March 3, 1976.16 No explanation
appears in the record of this case as to why the charges
were not later amended to reflect the earlier found alleged
violations, especially in light of the withdrawal of the
8(a)(3) violations. The record is further void of any
elaboration of the withdrawal and my determinations
herein are confined and restricted to the short and
unexpanded stipulation as recited above.
The Board precedent of Texas Industries, supra, poses
initially a strong potential roadblock to my desire to grant
Respondent's motion and dismiss the complaint in this
case, but that shall be the result here. Perhaps I am
partially motivated by a basic sense of fairness in my
decision, but such motivation should and does, on occasion
although sometime minutely, have its place in these
proceedings. Further, and in all authorities cited and
consulted (including Texas Industries, supra), the 8(a)(3)
violation remained in the charge. In this case, the "8(a)(3)
i4 A careful review of all available authorities produced the following
collection of terms regarding the relationship between the charge and the
complaint: "in respect thereto," "same general nature," "part of the
controversy," "related thereto," "sufficient nexus."
1S In National Licorice Co. and Fant Milling, the dispute related to events
subsequent to the filing of the charge. In Kohler Company, all but one of the
events occurred prior to filing of the charge and, in Texas Industries, of the
several events found violative of the Act by the Board, one occurred pnor to
the filing of the charge.
16 Witness (and Charging Party) Ebbe's Board investigation affidavit was
signed on January 27, 1976, the date the charges were filed. Ebbe was the
only witness called by the General Counsel in support of three out of four
aspect of the charges was withdrawn." I am left to
speculate as to what, if any, of the original language shall
be considered as remaining or withdrawn.
The charges in this case were not brought by the Union.
They were filed by two individuals who later, and
successfully, requested all but the so-called "derivative"
portions thereof to be withdrawn. The alleged additional
violations of Section 8(a)(1) of the Act were known to
Board agents long before the withdrawal. If I assume that
the intent and effect of the withdrawal was not to close the
matter as to other violations, I yet cannot foreclose the
logic of an assumption on the Respondent's part that the
matter was indeed closed, at least until amended or new
charges were filed. 17 The Charging Parties came to the
Board because they were discharged. I am mindful of the
fact that, at the time of their discharge, they were not
represented by any union, but it was their discharge only
that resulted in the charges. The Respondent's plant and
employees, during the period involved, had been through a
campaign and an election involving two competing unions,
apparently without other charges. The General Counsel's
complaint herein and the evidence in support thereof is far
from reflecting a pattern of serious antiunion conduct such
as that found in Kohler Company or Texas Industries, supra.
Although it may be arguable that prior to the withdrawal
the four alleged and isolated violations fell within the
doctrine of Texas Industries and Kohler Company, supra, I
find that in this case, after the discharge violations were
withdrawn, the General Counsel improperly expanded the
complaint based upon charges which I find were legally
deficient and left with far from "clear and concise
statements of the facts constituting [any] alleged unfair
labor practices." Further, to deny the Respondent's motion
to dismiss, through pure speculation, I would have to
conclude, in General Counsel's favor, that the actual
verbiage remained, and thereafter stretch the situation to
fall under Kohler Company and Texas Industries, supra. I
shall grant the Respondent's motion to dismiss the
complaint.
V. THE ALLEGED UNFAIR LABOR PRACTICES
18
Paragraph 5(a) of the complaint alleges that "during
September, 1975," Plant Superintendent Graham improp-
erly restricted employee union activity by instructing an
employee (Ebbe) not to distribute union cards or talk
about the union on company time, and to restrict his union
activities to his lunch hour or off company property. Ebbe,
whose testimony I credit completely in this case, essentially
confirmed this allegation but placed the incident "on or
about October." Ebbe also indicated he knew of no rule
alleged violations. The fourth violation was supported only by the testimony
of witness DeNavara, whose affidavit was signed on February 19, 1976.
'7 The record reflects no activity in the past of either the Regional
Director, any union, or the Respondent regarding any alleged violations of
the Act pertaining to the Respondent between the withdrawal on March 3,
1976, and the issuance of the complaint on March 22, 1976.
18 I have chosen herein to make findings on the evidence and on the
ments of the allegations in the complaint. I do this, not out of a lack of
firmness in granting Respondent's motion to dismiss, but hopefully to save
the time which would be consumed by a remand should exceptions be taken
to the Decision, followed by ultimate reversal by the Board.
1246
PET INCORPORATED
against talking at work. Graham testified that he "couldn't
remember" the conversation with Ebbe and that the
Respondent's policy regarding "any solicitation" required
that it not "interrupt the work schedule." Graham also
related that the "men agreed" to solicit only during the
lunch hour, on breaktime, or in nonworking areas. I would
not find a violation here. The scant amount of evidence in
the record reflects at best a loose and informal solicitation
rule and I do not find any evidence in the record which
would support the conclusion of the rule's discriminatory
application in this case.
Paragraph 5(b) and (c) of the complaint involves
statements made by Foreman Joe Ross to employee Ebbe
regarding union bumper stickers. In the first statement in
December, Ross indicated that "if it wasn't for those
bumper stickers . ..[Ebbe] would be one of the first ones
to get a raise." In the second statement in January 1976,
Ross told Ebbe to either take the union bumper stickers off
his car or park it off company property. Ross denied the
first statement but essentially and readily admitted the
second. I would conclude that both statements were in fact
made and would be violative of Section 8(aX 1) of the Act.
The Respondent attempted to indirectly discredit Ebbe's
testimony regarding Ross' first statement involving a
"raise" through the testimony of Plant General Manager
Willingham, who indicated Ross had no authority to grant
a raise. This fact, I find, does not foreclose or cast doubt
upon the fact of the statement's utterance in this case.
19 Both Ebbe and DeNavara appeared as reluctant witnesses. DeNavara
much more so than Ebbe. DeNavara initially attempted to avoid taking the
oath. The oath was finally administered and taken without reference to any
deity. Throughout his testimony, DeNavara appeared restless and his
testimony came off as lethargically evasive and indefinite. DeNavara was
confronted during the hearing with his affidavit which, indeed, reflected that
he had related the same statement of Ross' remarks about Souza. However.
DeNavara's overall demeanor convinced me that his testimony was a
The fourth and last alleged violation is found in
paragraph 5(c) of the complaint and involves employee
DeNavara's bid for a better job. Employee Souza had bid
on the same job and, according to DeNavara, when he
went to Plant Manager Putna and inquired as to his
chances of getting the job, Putna in effect accused Souza of
being "a union agitator." Although DeNavara was still
employed by the Respondent when he testified, and Putna
did not testify and thus deny the remarks, I cannot and do
not credit DeNavara's testimony here,' 9 and thus would
find no violation.
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The charges in this case, after the withdrawal, failed
to conform to Section 102.12(d) of the Board's Rules and
Regulations.
4. The complaint in this case was not issued upon a
charge (or charges) sufficient to support said issuance as
required in Section 10(b) of the Act.
5. By virtue of the conclusions reached and recited in
paragraphs 3 and 4, above, the Respondent's motion to
dismiss said complaint should be granted.
[Recommended Order for dismissal omitted from publi-
cation.]
further attempt to cover his earlier false statement, which he thought he
would never have to account for until the very moment I quickly
administered the modified oath and abruptly admonished him to be seated
in the witness chair. Further, such statements and language as "union
agitator," when made and used in the context and atmosphere applicable
and existing in situations dealt with in these cases, are usually considered as
harsh or serious. It is notable that no such or similar language or statements
surfaced in any other testimony or evidence in this case.
1247