Pork King Co., Inc.

National Labor Relations Board - Board Decisions

Sep 11, 1980

252 N.L.R.B. 99 (N.L.R.B. 1980)

PORK KING COMPANY, INC.
Pork King Company, Inc. and Louis Rivcra. Case 2-
CA- 15647
September 11, 1980
DECISION AND ORDER
On June 25, 1979, Administrative Law Judge
Max Rosenberg issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
the Charging Party filed exceptions and supporting
briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order for the
following reasons.
Louis Rivera was first employed by Respondent
in 1972. He became shop steward in 1973 and re-
mained at Respondent's Boston Road plant (except
for the period of his discharge in 1975) until his
transfer to Respondent's Hunts Point facility
around November 1977. During the last week of
April 1978, he was reassigned to the Boston Road
plant-a move about which he registered several
complaints. 3
On May 15, Puntolillo followed Rivera because
of a continuing concern that Rivera was wasting
too much time in making deliveries.4 After noting
i The General Counsel and the Charging Party have excepted to cer-
tain credibility findings made by the Administrative Law Judge It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
2 In finding no merit in the General Counsel's contention that Re-
spondent's asserted reasons for Rivera's discharge were pretextual, we do
not rely on the Administrative Law Judge's discussion of mixed motive
cases such as Waterbury Community Antenna, Inc. v. N.L.R.B., 587 F.2d
90 (2d Cir. 1978), as the rationale expressed therein is in our view inappli-
cable to the present facts.
3 This was seemingly not unusual for Rivera, who had also apparently
protested his transfer from Boston Road to Hunts Point the previous No-
vember. He complained to both of Respondent's co-owners, Puntolillo
and Cheswick, and to Union Business Agent Weinstein, who told him
that Respondent could transfer him wherever it wanted. When informed
that the transfer appeared permanent (Cheswick demurred at taking
Rivera back at Hunts Point, because of his continual complaining and re-
luctance to cooperate with other employees), Rivera demanded that Pun-
tolillo compensate him by reallocating Saturday work so that Rivera
"would be able to make extra money." Puntolillo initially declined, but
Respondent later called and offered Rivera the opportunity to work the
following day, which Rivera accepted. He complained again the follow-
ing Friday, because his Saturday pay was included in his paycheck,
whereas he understood that other employees were paid "off the books."
and put in a call to Weinstein, who had already left for the day. Howev-
er, Weinstein, who frequently stopped to have coffee at Respondent's fa-
cility, arrived the following Monday morning. He met Rivera outside,
told him to go inside and go to work, briefly conferred with Puntolillo
over use of a time record book, then spoke briefly to Rivera and left.
Ultimately it was Rivera, not the Union, that filed the charge.
4 We view as misplaced our dissenting colleague's reliance on the fact
that Puntolillo had been aware of this shortcoming of Rivera's for some
time. True, Puntolillo testified that Rivera was in general a good driver,
252 NLRB No 4
Rivera's unauthorized stop at an off-track betting
office, Puntolillo returned to the plant, for lack of
time to follow him farther. On Tuesday, business
was too brisk for Puntolillo to follow Rivera. On
Wednesday, he detailed an inside employee and a
supervisor to follow Rivera, with instructions to
note any unauthorized stops and, if any were made,
to determine whether the keys were still in the
truck. If so, they were to return the truck to the
plant, otherwise to continue.
In between deliveries, Rivera parked and sat in
the truck on three occasions, totaling about an
hour. On Thursday, May 18, Puntolillo detailed the
same employees to follow Rivera again. He made
three deliveries, then parked the truck and went
into an off-track betting office (OTB). Employee
Rascona entered the open truck, found the keys to
both the ignition and the body in plain view in the
cab, and proceeded to drive the truck back to Re-
spondent's premises pursuant to instructions. When
Rivera came out of the betting office and noted
that the truck was missing, he reported it to police
officers sitting in a cruiser parked where the truck
had been. 5 He was taken to the local precinct
where he called Respondent, who told the police
that the truck was not stolen,6 and informed
Rivera that he was discharged. Puntolillo also noti-
fied the Union that same afternoon, in a telephone
call to Weinstein, and by letter. 7
although the problem of his taking too much time was a longstanding
one. (Indeed, Rivera's discharge by Respondent in 1975 was similarly for
"goofing off' while ostensibly making deliveries. In that instance, the
Union eventually prevailed upon Respondent to take Rivera back.) But
we do not consider that inconsistent with his further testimony that the
problem had become "especially" prevalent in the 3-week period follow-
ing Rivera's return to Boston Road. Nor is it surprising that Puntolillo
would become increasingly sensitive to the problem after the lack of
direct contact with Rivera during the prior 6 months
I Rivera's contention that he was in the off-track betting office for a
total of "only 3 to 5 minutes" seems incompatible with his further testi-
mony that, although the truck was legally parked, he thought it had been
towed away by the police when he returned to the street
6 When Rivera called Respondent, he talked to Ray Lyons, the super-
visor who had been following him.
I The dissent's contentions that Respondent's asserted reasons for the
discharge is "undercut" by its letter and that the letter itself "plainly re-
veals that Respondent told the Union that Rivera was being discharged
because of time lost," in our view represents a misapprehension of the
record. Respondent's letter to Weinstein began: "I am writing this letter
to inform you that on Thursday, May 18, 1978 1 am discharging Louis
Rivera for the following reasons from my employ " It fully details the
events relating to Rvera's being followed on Monday, Wednesday, and
Thursday, including Rascona's entering the truck outside the OTB office,
finding the ignition and body keys in the cab and driving it back to
Boston Road, and informing the police department that the truck was not
stolen. The letter concludes: "Louis Rivera was told at that time he was
discharged." While the Administrative Law Judge did not specifically
discuss the letter we, contrary to our dissenting colleague, find it plainly
consistent with Puntolillo's affidavit and his testimony at the hearing.
Further, as noted above, Puntolillo also telephoned Weinstein that after-
noon about the discharge, as Rivera himself confirmed in his testimony
Rivera's recitation of Winstein's just-completed telephone conversation
with Respondent was cut off by counsel for the General Counsel, who
Continued
99
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In these circumstances, we find that the record
supports the Administrative Law Judge's conclu-
sion that Respondent discharged Rivera not be-
cause he was a member of or shop steward for the
Union,8 or for engaging in protected activity, but
rather because he left the truck open during an un-
authorized stop with the keys available (whether
"deliberately" or not) in such a manner as to
permit, if not invite, theft of the truck and its valu-
able quantity of Respondent's products.
Our colleague would analogize this case to cases
where a Weingarten interview9 is followed by a
discharge based upon information obtained at the
interview.'0 Assuming the validity of such an anal-
ogy, we would reject it here where counsel for the
General Counsel, in his opening statement, de-
clared that surveillance was not being alleged as
8(a)(1) and 8(a)(3) violations but rather "as a viola-
tion of 8(a)(3) and only the derivative 8(a)(1)." We
see no reason in this case to permit an issue so dis-
posed of to be resurrected by exceptions.
Here the Administrative Law Judge's ultimate
finding was that Respondent discharged Rivera
"simply because he had abandoned his truck ... in
such a manner as to invite theft of a valuable quan-
tity of Respondent's products" and in so doing did
not violate Section 8(a)(1) and (3) of the Act. Pun-
tolillo had noticed several weeks earlier, upon Ri-
vera's return to this work location, that Rivera was
taking too much time on his rounds. We ascribe
the decision to follow Rivera to legitimate concern
about his work habits in light of his earlier record,
as did the Administrative Law Judge.
Accordingly, we shall dismiss the complaint
herein.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed.
MEMBER JENKINS, dissenting:
Contrary to my colleagues, I find that the record
evidence establishes, convincingly, that Respond-
ent's surveillance and discharge of employee Louis
Rivera was in retaliation for his union and concert-
ed activities.
Rivera was hired by Respondent in May 1972
and was designated as shop steward sometime in
had opportunity to adduce contrary evidence from Rivera, or from
Weinstein (who was present at the hearing), had he wished to do so.
' We note in this regard that there is no indication in this record of
animus on Respondent's part towards either Rivera or the Union. While
the timing of events herein might give rise to suspicion, mere suspicion is
not enough.
I N.LR.B. v. J. Weingarten, Inc., 420 U. S. 251 (1975).
10 We do not find the "fruits of unlawful activity" language quoted by
our colleague in the cases he has cited.
1973, a position he held until his discharge on May
18, 1978. As the Administrative Law Judge found:
[T]he record amply demonstrates that Rivera,
in his capacity as union shop steward over the
course of 5 years, was an ardent advocate of a
multitude of grievances arising out of the em-
ployment relationship between Respondent
and its employees. On May 15, when Respond-
ent decided to monitor Rivera's work habits,
he had once again become a dolorous thorn in
the side of Respondent by enlisting the Union's
assistance in pressing a number of grievances.
These activities constituted concerted activities
which are statutorily protected.
Such grievances arose not only from Respond-
ent's treatment of Rivera personally but also from
Respondent's conduct affecting the unit employees
generally. As described in the Administrative Law
Judge's Decision, such items included a shortage in
Rivera's pay, the rotation of premium work, and
the installation of a timeclock. On May 15, Union
Business Agent Weinstein met with Respondent's
co-owner, Puntolillo, about these matters and also
dispatched a letter to Respondent formally request-
ing Respondent to install a timeclock. On that same
day, Puntolillo decided to follow Rivera's truck
and monitor his deliveries.
It strains credulity to find that Puntolillo decided
to monitor Rivera's deliveries on May 15 for any
reason other than that he "had once again become
a dolorous thorn in the side of Respondent by en-
listing the Union's assistance in pressing a number
of grievances." Puntolillo explained that he decided
to follow Rivera because "I found myself with
time on my hands that day." This explanation has a
distinctly hollow ring in view of Puntolillo's testi-
mony that he suspected Rivera of taking too long
on his route for 2 years1 and that he did not
decide to monitor Rivera's deliveries until after the
grievance meeting on May 15. Thus, Puntolillo
"I My colleagues adopt the Administrative Law Judge's finding that
Puntolillo testified without contradiction that "for some weeks prior to
May 15" Puntolillo noticed that Rivera was taking too much time in
making his deliveries. The record shows, however, that Puntolillo sus-
pected and tolerated such conduct not for some weeks but for 2 years
until the very day of the grievance meeting on May 15. Thus, Puntolillo
answered questions from the General Counsel as follows:
Q. And how long did you suspect him of taking too long?
A. Quite a while.
Q. How long?
A. A couple of years, a year.
Q. A couple of years, I see. Was it your testimony before that you
suspected him for a short time? Could you pinpoint it.
A. No, it's been a chronic problem that I always had with him.
Q. For two (2) years?
A. Yes.
Furthermore, I note that Puntolillo testified on redirect examination by
Respondent's attorney that Rivera was a "good employee" and that, "He
did his work well."
100
PORK KING COMPANY, INC.
concedes the facts that lead inexorably to the con-
clusion that the surveillance of Rivera beginning on
May 15 was in retaliation for Rivera's union and
concerted activities. ' 2
My colleagues nevertheless adopt the Adminis-
trative Law Judge's finding that "but for this inci-
dent [leaving the truck unattended with the keys in
the cab] Rivera would have remained in Respond-
ent's employ despite his activities as a union shop
steward." This finding is not supported by the
record evidence. Indeed, this finding is undercut by
Respondent's letter to the Union dated May 18 ex-
plaining the reason for the discharge. In that letter
dated the day of the discharge, Puntolillo stated
that "[r]ecently I had the feeling that he [Rivera]
was taking unauthorized time from his runs." Pun-
tolillo then proceeded to describe the information
he learned from monitoring Rivera's stops on May
15, 17, and 18. Although Puntolillo mentioned in
the letter that the keys were found in the unattend-
ed truck on May 18, he does not indicate that this
" My colleagues find that "the General Counsel, in his opening state-
ment, declared that surveillance was not being alleged as 8(a)(1) and
8(aX3) violations but rather 'as a violation of 8(aX3) and only the deriva-
tive 8(aXI).' We see no reason in this case to permit an issue so disposed
of to be resurrected by exceptions." (Emphasis supplied.)
Contrary to my colleagues I find no basis in the record that the Gen-
eral Counsel waived the complaint allegation of an independent 8(a(1)
violation by Respondent's surreptitious surveillance of Rivera. In relevant
part, the General Counsel ended his opening statement as follows: "On
[May 15, 19781, Respondent Employer begins to follow Rivera during his
daily routes in order to seek a reason for discharge and three (3) days
later he's discharged. That, as far as I can determine, is the long and
short of the factual situation."
Thereafter, the Administrative Law Judge engaged the General Coun-
sel in the following colloquy:
JUDGE ROSENBERGE: Are you alleging that is a violation of
[8(aXI)l or ...
MR. FERNANDEZ: It's being alleged as....
JUDGE ROSENBERG: (continuing) I and 3?
MR. FERNANDEZ: (continuing) as a violation of [8(aX3)l and only
the derivative [8(aXl)).
JUDGE ROSENBERG: All right. Do you have any response to that
Mr. Condon?
A careful reading of the relevant record evidence, supra, reveals, clear-
ly, that the General Counsel did not explicitly waive the complaint alle-
gation that the surveillance of Rivera was an independent violation of
Sec. 8(aXI). The General Counsel did not even mention the term "sur-
veillance" and he certainly did not mention the complaint allegation re-
lated to surveillance. He did mention, specifically, the discharge. In fact,
it was the General Counsel's reference to the discharge that immediately
preceded the Administrative Law Judge's first question, supra. It is clear,
therefore, that the General Counsel reasonably would have believed that
the Administrative Law Judge's question referred to the discharge. The
only other conclusion that can be drawn is that the exchange resulted in
an ambiguity.
In addition, it should not be overlooked that the Administrative Law
Judge never stated on the record or in his Decision that the General
Counsel had withdrawn this disputed complaint allegation. Indeed, he
Administrative Law Judge made no explicit conclusionary finding on
either the 8(aXI) or 8(aX3) surveillance allegation.
In sum, I am astonished that my colleagues would rely on a tortured
interpretation of an ambiguous exchange between the Administrative
Law Judge and the General Counsel to dispose of a specific complaint
allegation that was fully litigated and bears directly and prominently on
the discharge that stemmed directly from information obtained during the
surveillance. See fn. 15, infra.
was the cause for Rivera's discharge. Instead, a fair
reading of the letter plainly reveals that Respond-
ent told the Union that Rivera was being dis-
charged because of time lost from unauthorized
stops.' 3
In sum, I find that Respondent's asserted reason
for the surveillance and discharge of Rivera was
pretextual and that the actual reason for such sur-
veillance and discharge was retaliation for Rivera's
activities as a union shop steward. I have rejected
my colleagues' conclusions that Rivera was dis-
charged solely for leaving the keys in the truck be-
cause it rests on a deficient and misleading analysis
of key record evidence. Moreover, I am persuaded
that the record evidence shows, convincingly, that
Respondent's conduct was unlawful. Thus, Re-
spondent suspected for 2 years that Rivera was
taking too long on his deliveries but did nothing
until, suddenly and without a plausible explanation,
it decided after the grievance meeting on May 15
to monitor Rivera's deliveries.' 4 Furthermore, the
information upon which Respondent claims to have
predicated Rivera's discharge-be it lost time from
unauthorized stops or leaving the keys in the
truck-stemmed directly and exclusively from the
unlawful surveillance.' s In addition, Respondent's
1' This letter from Respondent to the Union dated on the day of the
discharge was never mentioned, much less considered, in the Administra-
tive Law Judge's Decision
I also find no evidence to support the Administrative Law Judge's
findings, adopted by my colleagues, that Rivera was told by union repre-
sentatives on May 19 that Respondent was unwilling to reinstate him be-
cause "he had abondoned his truck which contained expensive cargo and
had left the keys inside, making the vehicle prey for theft."
Finally, I object to the Administrative Law Judge's finding, adopted
by my colleagues, that Rivera "deliberately left his truck unattended with
the keys in the unlocked cab .. ." It is clear that leaving the truck un-
attended occurs daily while Respondent's drivers make deliveries. Hence
it is reasonable to assume that the Administrative Law Judge was not re-
ferring to this action when he characterized Rivera as having acted "de-
liberately." Rather it would appear that he applied this term to Rivera's
having left the keys in the cab. But Rivera specifically testified: "Inad-
vertently, I had taken the keys out of the ignition and I placed it on what
you would call a mound [covering the engine] that sits in the middle of
the truck." The employees who recovered the truck for Respondent on
May 18 did not testify. Thus, there is no reason on this record to believe
that Rivera's actions were other than as he described them.
These shortcomings of the Administrative Law Judge's findings, like
the misstatement of the record concerning how long Puntolillo suspected
Rivera of taking too long on his runs, supra, bear directly on the ultimate
issue here and seriously undermine the Administrative Law Judge's anal-
ysis adopted by my colleagues.
14 See Edward G. Budd Manufacturing Company v. N.LR.B. 138 F.2d
86(3d Cir. 1943), enfg. 41 NLRB 872 (1942). Although the circumstances
surrounding Rivera are not as dramatic as the circumstances surrounding
Mr. Weigand, the underlying principle there is applicable here: The em-
ployer tolerated a problem for a long time and then suddenly applied a
different standard because of an employee's union activities.
'" See American Motors Corporation 214 NLRB 455, 462 (1974) (dis-
charge of Melrod and Guzman)
In concluding that Rivera's discharge on May 18 did not violate the
Act my colleagues make no mention of the Administrative Law Judge's
finding that:
Continued
101
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
announced reasons for the discharge shifted from
the day of the discharge to the day of the hearing.
Finally, Puntolillo, the moving party in the surveil-
lance and the discharge, testified that Rivera was a
good employee and that he did his work well. I
find that Rivera was discharged because of his
union and concerted activities and I would provide
an appropriate remedy.
On May 15, when Respondent decided to monitor Rivera's work
habits, he had once again become a dolorous thorn in the side of Re-
spondent by enlisting the Union's assistance in pressing a number of
grievances. These activities constituted concerted activities which
are statutorily protected.
It is anomalous that the Administrative Law Judge would make those
findings but nevertheless dismiss the complaint in its entirety including
the allegation that such surveillance violated Sec. 8(aXl) of the Act. My
colleagues increase this anomaly by failing to pass on the merits of the
surveillance allegation even though it is alleged in the complaint, raised
by the General Counsel's exceptions, and bears directly and prominently
on the discharge that stemmed directly from information obtained during
this surveillance. Thus, my colleagues' resolution of the complaint allega-
tions is incomplete and their analysis of the discharge insufficient. In this
connection see fn. 12, supra.
My majority colleagues' resolution of the surveillance allegation is
critical in view of their recent opinion in Illinois Bell Telephone Company,
251 NLRB No. 128 (1980). There, they found that where the General
Counsel shows that an unlawful investigatory interview has occurred,
and that the employee was disciplined or discharged for conduct which
was the subject of the interview, the burden shifts to the employer to
show its discipline or discharge was not based on information obtained
during the interview.
Here, my majority colleagues find that Rivera was discharged because
"he left the truck open during an unauthorized stop with the keys availa-
ble (whether 'deliberately' or not) in such a manner as to permit, if not
invite, theft of the truck and its valuable quantity of Respondent's prod-
ucts." It cannot be gainsaid that such information was obtained during
the alleged unlawful surveillance here. That Respondent has failed to sat-
isfy the burden of showing that the discharge was based on information
obtained independent of the alleged unlawful activity is plain. Hence, as-
suming that my colleagues would find the surveillance to be unlawful, as
the Administrative Law Judge's finding supra indicates, it follows that
the information my colleagues find led to Rivera's discharge was the
"fruits of unlawful activity" and, consistent with their opinon in Illinois
Bell Telephone, supra, they should find that Rivera's discharge violated
the Act. See also Kraft Foods, Inc., 251 NLRB No. 6 (1980).
Finally, I would point out that my majority colleagues also adopted
the Administrative Law Judge's finding in American Motors, supra, that
the investigation that led to the information on which respondent predi-
cated the discharge of Melrod and Guzman was motivated by their pro-
tected concerted activity. T1hus, my colleagues found that the discharge
violated the Act even without a specific finding that the investigation
itself violated the Act.
DECISION
STATEMENT OF THE CASE
MAX ROSENBERG, Administrative Law Judge: With all
parties represented, this proceeding was heard before me
in New York, New York, on May 21, 1979, upon a com-
plaint filed by the General Counsel of the National
Labor Relations Board, and an answer submitted thereto
by Pork King Company, Inc., herein called Respond-
ent. The issues raised is whether Respondent violated
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended, by discharging employee Louis Rivera
The complaint, issued on December 12, 1978, is based on a charge
filed on May 19, 1978, and served on May 24, 1978.
on May 18, 1978, under circumstances to be detailed
hereinafter. Briefs have been received from the General
Counsel and Respondent which have been duly consid-
ered.
Upon the entire record made in this proceeding, in-
cluding my observation of the demeanor of the witnesses
as they testified, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, with its princi-
pal office and place of business at 2824 Boston Road,
Bronx, New York, and another facility at the Hunts
Point Market, Bronx, New York, is engaged in the
wholesale sale and distribution of meat and related prod-
ucts. During the times material herein, Respondent de-
rived gross revenues in excess of $1 million from its op-
erations, and purchased meat and related products valued
in excess of $50,000 directly from points located outside
the State of New York. The complaint alleges, the
answer admits, and I find that Respondent is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
1I. THE LABOR ORGANIZATION INVOLVED
Provision Salesmen and Distributors Union, Local 627,
affiliated with the Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, herein
called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) and (3) of the Act by discharging employee
Louis Rivera on May 18, 1978,2 because he was a
member of and shop steward for the Union, and because
he had engaged in other protected, concerted activities
for the purpose of collective bargaining or other mutual
aid and protection. Respondent contends that Rivera was
discharged solely for the improper performance of his
employment chores.
The facts giving rise to this litigation are not in essen-
tial dispute and I find them to be as follows.
Respondent is engaged in the wholesale sale and distri-
bution of meat products. In the course of its operations,
Respondent maintains two establishments in the Bronx,
one on Boston Road, and the other at the Hunts Point
Market. Respondent's officers consist of Alfred Ches-
wick, president; Dominick Puntolillo, vice president; and
Raymond Lyons, supervisor.
Respondent conducts its business with a work comple-
ment of approximately six employees who perform stock
work in the coolers and freezers, assemble customer
orders, load trucks, and make deliveries to its customers.
During the times material herein, the Union represented
Respondent's employees under a collective-bargaining
agreement.
2 Unless otherwise indicated, all dates herein fall in 1978.
102
PORK KING COMPANY, INC.
Louis Rivera, the Charging Party, was hired by Re-
spondent in May 1972 and worked at the Boston Road
establishment, primarily as a delivery driver. Rivera was
designated as the shop steward for the Union in 1973, a
position which he held until his discharge on May 18. In
this capacity, Rivera processed grievances which arose
during the course of employment.
In March 1977, Rivera received a written reprimand
from Respondent for having absented himself from work
for 11 days, and for abusing customers. This reprimand
triggered a grievance which Rivera lodged with his
Union, in consequence of which Union Business Repre-
sentative Jack Weinstein conducted a meeting of his
membership at Respondent's Boston Road facility in
April 1977. During this session, Rivera raised additional
grievances relating to such items as the installation of a
timeclock, payment for overtime, the allocation of Satur-
day work, and the free provision of coats for the men
who worked in the freezer.
In November 1977, Respondent opened a plant at the
Hunts Point Market. Rivera was transferred to that loca-
tion. At the end of April, Respondent's president, Ches-
wick, asked Rivera if he would be willing to transfer
back to the Boston Road facility for I week so that Tin-
elli, who worked there, could learn the Hunts Point
routes and substitute for the Hunts Point employees
during their summer vacation periods. Rivera reluctantly
agreed to do so. After spending 1 week at Boston Road,
Rivera returned to the Hunts Point station for duty. On
his arrival, he encountered President Cheswick who
asked why Rivera had left his position at the Boston
Road establishment. Rivera answered that he was under
the impression that his assignment was to last for only 1
week, and asked if transfer was intended to be perma-
nent. Cheswick replied that he was unsure if this was the
case, and told Rivera to return to his station at Boston
Post. Rivera complied with this and, at the end of his
shift, telephoned Union Business Representative Wein-
stein to complain about the assignment. Weinstein prom-
ised to look into the matter and get back to Rivera.
On May 2 or 3, Rivera telephoned Weinstein to in-
quire into the results of the latter's efforts to resolve this
issue. Weinstein reported that he had spoken to Respond-
ent's vice president, Puntolillo, about the matter, and Re-
spondent had agreed to return Rivera to his job at the
Hunts Point location on the following Monday. On May
4 or 5, Rivera met with Puntolillo and again pressed for
an answer as to whether his transfer to Boston Road
constituted a permanent relocation, and Puntolillo re-
plied in the affirmative. Upon learning this, Rivera in-
formed Puntolillo that, because he and Tinelli would be
required to travel farther from their homes to their new
work stations, Respondent should compensate them for
the inconvenience and for the extra gasoline required to
drive to work by allocating Saturday and holiday work
to them. Puntolillo retorted that Rivera should not tell
him how to run his business. Rivera disclaimed any such
intention, but argued that the award of this premium
work was simply a matter of fairness. The discussion
ended with Rivera requesting a meeting between Union
Agent Weinstein and Respondent's officials to discuss the
matter, and Puntolillo agreed to do so. Later that after-
noon, Respondent's president, Cheswick, telephoned
Rivera and admitted that, because of the rise in fuel costs
and the economic hardship caused by inflation, equity
sided with Rivera's request. Whereupon, Cheswick invit-
ed Rivera to report for work on Saturday, May 6,
Rivera accepted.
It is Respondent's practice, when its employees toil on
Saturdays and holidays, to pay them in cash "off the
books" rather than by check. By utilizing this procedure,
the employees were able to receive a higher net pay for
that overtime work because Respondent did not with-
hold Federal or State taxes from their earnings. When
this procedure was used, the men who worked on those
days grossed $42.50, and received a net out-of-pocket
sum of $25 in cash. In calculating Rivera's payment for
his efforts on May 6, Respondent feared that some prob-
lems might arise unless all deductions were taken out of
his gross pay due to Rivera's constant insistence that the
collective-bargaining agreement between Respondent
and the Union be followed strictly. Accordingly, when
Rivera received his paycheck on Friday, May 12, he
found that he had been given only $18 for his endeavors
on the preceding Saturday. Rivera immediately tele-
phoned the union hall, and asked for Weinstein to com-
plain about this discrepency. Weinstein was out of the
office, but Rivera was told that the union agent would
take the matter up when he visited the plant on Monday,
May 15.
On Saturday, May 13, Rivera visited the Boston Road
plant to find out who was working overtime, and noticed
that two employees were on duty who had regularly
pulled Saturday work. Rivera registered a complaint
with Puntolillo about this arrangement, but the latter re-
fused to alter the assignments because the two men had
done this work in the past.
Rivera returned to the plant on May 15, and after talk-
ing the matter over with Puntolillo, he was offered a
place in the rotation for Saturday and holiday duty.
Rivera declined the offer unless the men at the Hunts
Point facility were also rotated as provided under the ex-
isting labor agreement. Rivera added that, as Weinstein
was scheduled to visit the plant that morning the matter
could be resolved then. When Weinstein arrived, Rivera
unfolded a variety of complaints to the Union agent,
enumerating such items as the shortage in his Saturday
pay, rotation of premium work, and the installation of a
timeclock. Weinstein conferred with Puntolillo and
brought back word that he had instructed the Company
to institute the necessary changes as required under the
contract. Weinstein returned to his offices and dispatched
a letter to Respondent formally requesting the Company
to install a timeclock.
After the session with Weinstein on May 15, Puntolillo
decided to follow Rivera's truck and monitor his deliv-
eries. Puntolillo testified without contradiction and I find
that, for some weeks prior to May 15, after Rivera had
reluctantly returned to the Boston Road plant, Puntolillo
noticed that the driver was taking too much time to
make his rounds. In this connection, the record estab-
lishes and I find that, sometime in 1975, Rivera was on a
delivery when one of Respondent's trucks broke down.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While waiting for Rivera's return so that he could utilize
the vehicle, Puntolillo learned from a customer that
Rivera had been observed in his truck which was parked
near the Boston Road plant. Puntolillo immediately
drove to the site and found Rivera sitting in his cab in a
reclining position. On confronting Rivera, Rivera offered
the explanation that he had pulled his truck over to the
side of the road because of dizziness. Puntolillo believed
that this was a sham excuse used by drivers because of
the difficulty of disproving the ailment, and fired Rivera
on the spot. However, after the Union intervened on his
behalf, Respondent eventually reinstated him. Because
business was slow on May 15, Puntolillo followed Rivera
on his rounds. During his journey, Puntolillo noted that
Rivera had pulled up in front of an off track betting
parlor, parked his truck, and entered the facility. 3 After
spending several minutes in the parlor, Rivera returned
to his vehicle, and drove off.
Puntolillo was too busy to monitor Rivera's driving
habits on May 16. On May 17, he instructed Supervisor
Raymond Lyons and employee Rascona to follow
Rivera, and time his movements. When they reported
back, Puntolillo learned that Rivera had made three non-
business stops for more than 45 minutes, a time span
which exceeded the 20-minute lunch break the employ-
ees were afforded.4
Puntolillo again dispatched Lyons and Rascona to
shadow Rivera on May 18. Before they left, Puntolillo
advised them to observe whether Rivera made any unau-
thorized stops and, if so, to look in the truck and ascer-
tain whether the driver had left the keys in the cab. In
the event the men discovered these items, they were di-
rected to drive the truck back to the plant. Rivera once
again pulled up to the off track betting parlor and en-
tered leaving the keys to the ignition, as well as to the
body of the truck, in the cab. It is undisputed and I find
that, on this occasion, the vehicle contained meat prod-
ucts valued at 3,000. Following instructions, Rascona
climbed into the truck and drove it back to the plant,
where he was assigned to undertake Rivera's deliveries
for the rest of the day, Rivera left the betting parlor and
noticed that the truck was missing. Espying a police car,
he approached the officers and reported the loss. Rivera
was then driven to the precinct house where he tele-
phoned Respondent to report the incident. Puntolillo an-
swered and, after a brief discussion, informed Rivera that
he had been discharged. Rivera visited the union head-
quarters, and reported the incident to Weinstein. Wein-
stein promised to lodge a grievance with Respondent
over the discharge the next day.
On May 19, Rivera met with union representatives at
the plant, and was informed that Respondent was unwill-
ing to reinstate him because he had abandoned his truck,
which contained expensive cargo, and had left the keys
inside, making the vehicle prey for theft. Rivera pressed
I Off track betting (OTB) parlors are maintained by the state and local
governments in New York as legal bookie drops.
4 Respondent's 8-hour workday spans from 6:30 a.m. to 2:30 p.m. Al-
though the collective-bargaining agreement authorizes a I-hour lunch
period, which would have extended the workday to 3:30 p.m., the em-
ployees prefered a 20-minute lunchbreak on company time in order to
leave the plant an hour earlier.
the union agents to take the issue to arbitration under the
contract, but the latter refused. Rivera thereupon filed
unfair labor practice charges against the Union with the
Board's Regional Office alleging that the Union's failure
to pursue the grievance was violative of the Act. After
an investigation, the Regional Office dismissed these
charges as lacking in merit. Rivera then instituted the
charges against Respondent, which gave rise to these
proceedings.
It requires no citation of authority to support the prin-
ciple that an employer may sever an employee from his
work rolls for any reason or for no reason at all, so long
as the separation is not motivated in whole or in part by
his engagement in activities protected by the Statute.
However, even where it has been shown that the em-
ployee was a known union activist, there is nothing in-
herently discriminatory about the discharge of such an
individual for cause, for it is now established that an em-
ployee who is prominent in union affairs does not there-
by gain a special immunity from ordinary employment
decisions simply because of that notoriety.5
In the case at hand, the record amply demonstrates
that Rivera, as a union shop steward by 5 years, was an
ardent advocate of a multitude of grievances arising out
of the employment relationship between Respondent and
its employees. On May 15, when Respondent decided to
monitor Rivera's work habits, he had once again become
a dolorous, thorn-in-side of Respondent by enlisting the
Union's assistance in pressing a number of grievances.
These activities constituted concerted activities which
are statutorily protected. However, the record also clear-
ly establishes that, on May 18, Rivera carelessly and de-
liberately left his truck containing the keys to valuable
cargo unattended, while he ventured into a betting
parlor, thereby risking the theft of a meaningful amount
of Respondent's property. For this dereliction, Respond-
ent could have discharged him for good and sufficient
cause. In a case such as this, where both an impermissi-
ble and a permissible ground exists to support a dis-
charge, it behooves the General Counsel to provide at
least a reasonable basis for inferring that the permissible
ground alone would not have triggered the discharge,
and that the separation was indeed partially impelled by
an impermissible one.6 More simply put, the General
Counsel must show, in order to sustain his advocative
stance, that, but for Rivera's engagement in activities
protected by the Act, he would not have suffered dis-
charge at Respondent's hands. 7 In my opinon, he had
failed to do so.
As chronicled above, Rivera had served as the union
shop steward since 1973, and had actively processed em-
ployment grievances on behalf of himself and fellow em-
ployees against Respondent until his discharge. Although
he was terminated in 1975 for laying down on the job,
he was reinstated at the behest of the Union, and, there-
See Waterburg Community Antenna, Inc. v. N.L.R.B., 587 F2d 90, 96
(2d Cir. 1978).
8 See N.L.R.B. v. Park Edge Sheridan Mears, Inc., 341 F.2d 725, 728
(2d Cir. 1965).
' See N.LR.B. v. Fibers International Corporation, 439 F.2d 1311, 1312,
fn. 1 (Ist Cir. 1971); Waterbury Community Antenna. Inc. v. NLR.B.
supra.
104
PORK KING COMPANY, INC.
after, continued to grieve with the same, if not more, in-
tensity. Despite this activity, Rivera was not discrimina-
torily a bused by Respondent and, in fact, his employer
essayed to correct conditions about which he had raised
grievances.
It is undisputed that Respondent came to believe that
Rivera had been taking too much time to make his
rounds for several weeks prior to May 15, and that it de-
cided to monitor his delivery habits. On that day, Re-
spondent's vice president, Puntolillo, discovered that the
employee had interrupted his runs by visiting a betting
parlor. On May 17, Respondent noted that Rivera had
made three nonbusiness stops, which lasted for a period
far in excess of his allowable lunchbreak. Despite Ri-
vera's aberrations, Respondent tolerated this misconduct
even in the face of his persistence in lodging grievances
against it on May 15. Finally, on May 18, the driver de-
liberately left his truck unattended with the keys in the
unlocked cab, an act which exposed a cargo of $3,000
worth of meat to theft. On discovering this, Respondent
immediately discharged him. On this state of the record,
I am persuaded and conclude that, but for this incident,
Rivera would have remained in Respondent's employ de-
spite his activities as a union shop steward.
In sum, I find that Respondent discharged Rivera on
May 18, not because he was a member of and shop ste-
ward for the Union and not because he had engaged in
protected, concerted activities under the Act, but simply
because he had abandoned his truck on that day in such
a manner as to invite the theft of a valuable quantity of
Respondent's products. By doing so, I conclude that Re-
spondent did not violate Section 8(a)(1) and (3) of the
Act, and I shall dismiss the complaint in its entirety.
ORDER 8
It is hereby ordered that the complaint herein be, and
it hereby is, dismissed in its entirety.
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objectives thereto
shall be deemed waived for all purposes.
105