Rosella's Fruit & Produce Co., Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1972

199 N.L.R.B. 633 (N.L.R.B. 1972)

ROSELLA'S FRUIT AND PRODUCE CO., INC. 633
Rosella's Fruit & Produce Co ., Inc. and Produce Office
Workers Union, Independent. Case 19-CA-5606
October 10, 1972
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 22, 1972, Administrative Law Judge I
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief. Respondent filed a
brief in response to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board had delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of The National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
heard, to examine and cross-examine witnesses, and to in-
troduce evidence pertinent to the issues. Since the hearing's
close, a brief has been received from General Counsel's
representative. This brief has been duly considered.
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent raises no question, herein, with respect to
General Counsel's jurisdictional claim . Upon the
complaint's relevant factual declarations-which are con-
ceded to be correct-the following determinations are
found warranted: Respondent is a Washington corporation,
engaged at Seattle, Washington, in the wholesale distribu-
tion of fruit and produce; this firm, during the calendar year
last past, purchased more than $50,000 worth of goods and
materials, which were transported and delivered directly
from points outside the State of Washington; during the
same period, Respondent purchased more than $50,000
worth of goods and materials which had originated outside
the State, but which Respondent purchased from Washing-
ton State sellers who had received such goods directly from
out-of-state sources; and Respondent-during the calendar
year last past-did a gross volume of business which ex-
ceeded $500,000 yearly. I find, therefore, that Respondent
was, throughout the period with which this case is con-
cerned, an employer within the meaning of Section 2(2) of
the Act and engaged in commerce and business activities
which affect commerce within the meaning of Section 2(6)
and (7) of the Act, as amended. Further, with due regard for
presently applicable jurisdictional standards, I find asser-
tion of the Board's jurisdiction in this case warranted and
necessary to effectuate statutory objectives.
II. THE LABOR ORGANIZATION INVOLVED
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: Upon a charge
filed January 18, 1972, and duly served, the General Coun-
sel of the National Labor Relations Board caused a com-
plaint and notice of hearing to be issued and served upon
Rosella's Fruit & Produce Co., Inc., designated as Respon-
dent within this Decision. The complaint was issued and
served March 6, 1972; therein, Respondent was charged
with unfair labor practices, affecting commerce, within the
meaning of Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (61 Stat. 136, 73 Stat. 519). With-
in Respondent's duly filed answer, certain factual state-
ments in the complaint have been conceded ; Respondent
has, however denied the commission of unfair labor prac-
tices.
Pursuant to notice, a hearing with respect to this matter
was held in Seattle, Washington, on May 2, 1972, before me.
The General Counsel and Respondent were represented by
counsel . Each party was afforded a full opportunity to be
Produce Office Workers Union, Independent, desig-
nated Complainant Union within this Decision, is, and at
all material times herein, has been, a labor organization
within the meaning of Section 2(5) of the Act, as amended,
which admits certain of Respondent's employees to mem-
bership.
III. THE UNFAIR LABOR PRACTICES
A. Issue
This case, substantially, presents a single question.
General Counsel charges that, during the period with which
we are concerned, Respondent 's management representa-
tives sought to coerce clerical worker Anna Brunk's with-
drawal from union membership ; that Brunk was generally
harassed with regard to her retention of such membership;
that she was told her continued employment would be con-
ditioned upon her relinquishment thereof ; and that
Respondent's campaign of harassment finally caused her to
terminate her 22-year period of service. Thereby,
Respondent's management representatives-so General
199 NLRB No. 109
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel contends-constructively discharged Brunk. Re-
spondent, however, denies any program of harassment, cal-
culated either to coerce Brunk's relinquishment of union
membership or to force her retirement consequent upon her
refusal to comply with a suggestion that she consider such
action. The firm contends, rather, that she was persuaded
to retire, voluntarily, because she was considered no longer
capable of proper, efficient performance with respect to her
regular duties.
vided; the physical setup of Respondent's place of business;
the specific areas therein where Beltramo and Brunk were
required to perform their various clerical and/or bookkeep-
ing functions; and the general "atmosphere" which normal-
ly prevailed within Respondent's facility throughout most
workdays. These matters, however, presently require no de-
tailed exposition; they will be discussed, whenever relevant,
subsequently within this Decision.
B. Facts
1. Background
a. Respondent's business
Respondent has maintained a wholesale fruit and
produce business, within the Seattle area, for something more
than 28 years. The firm is currently headed by President Mi-
chael Rosella; Ron Rosella, his son-who joined the business
some 9 years ago-has been Respondent's vice president for
some 7 years. Mrs. Frances Beltramo, whose period of service
with Respondent dates back 28 years, currently functions as
corporate secretary-treasurer; in this capacity, likewise, she
serves as the firm's office manager.
While a witness, Ron Rosella credibly characterized
Respondent as constituting a relatively "medium small"
firm with 16 employees. Currently, so his testimony shows,
Respondent employs some six to seven drivers, four night
crew warehousemen, two to three telephone salesmen, two
full-time office clerical workers, and one or two part-time
clericals. (Throughout the period with which this case is
concerned, Beltramo and Brunk-the worker whose termi-
nation must now be considered-together constituted
Respondent's full-time office clerical staff. The firm's part-
time clerical workers have been hired, during recent years,
under circumstances which will be discussed further within
this Decision.) The firm handles produce from California,
Mexico, Florida, and local sources, which it distributes to
stores, warehouses, and restaurants. Ordinarily, Re-
spondent's telephone salesmen solicit and receive orders
"the night before" with deliveries scheduled for "the follow-
ing morning" normally during early daytime hours. Concur-
rently, the firm's full-time clerical staff, inter alia, takes
orders, prepares and sends customer invoices for goods sold
and loaded for delivery, maintains a conventional set of
business books and records, handles telephone calls, makes
bank deposits, writes checks for transmittal to creditors,
maintains payroll records, writes payroll checks, and pre-
pares monthly financial statements.
Before Brunk's purportedly "voluntary" termination,
under circumstances which will be discussed further within
this Decision, she performed-sometimes with Beltramo's
help-most of Respondent's routine clerical and bookkeep-
ing tasks; Office Manager Beltramo meanwhile normally
maintained Respondent's payroll records, wrote payroll
checks, and prepared required checks for Respondent's sup-
pliers, though Brunk was-so the record shows-sometimes
requested to provide help with respect to these functions.
The record herein reveals considerable background de-
tail regarding the nature and scope of Brunk's work; the
cooperation and direct help which Beltramo frequently pro-
b. Respondent's labor relations
Respondent's drivers, warehousemen , and salesmen-
with but a single current exception-hold Teamsters mem-
bership. Two Teamsters locals have represented these em-
ployees-so the record shows-throughout Respondent's
business life; their contractual relationship with Respon-
dent has, however, been bottomed, seemingly, upon succes-
sive multiple-employer agreements which they have
negotiated, jointly, with a trade association with respect to
which Respondent has consensually been considered
bound. The present record-which stands without contra-
diction in this respect-warrants a factual determination,
which I make, that Respondent's current contractual rela-
tionship with these Teamsters locals derives from a doc-
ument signed August 13, 1971, shortly before the period
with which we are herein concerned.
For quite a few years-their number never specified for
the present record-the Respondent has, likewise, been
privy to multiple-employer contracts negotiated by Com-
plainant Union herein, covering wages, hours, and working
conditions for office clerical workers. (According to Brunk,
most recently Complainant Union's only member in
Respondent's hire, her union membership dates back some
22 years, approximately to her starting date. While a wit-
ness , Beltramo testified-without contradiction-that she
had once served as complainant Union's vice president. The
precise former period during which she held that designated
post, however, does not appear; nor has testimony been
proffered regarding her official relationship with Respon-
dent herein-if any-during the period in question.) The
record, however, warrants no definitive determination now
with regard to whether Complainant Union's contracts have
contained union-security clauses; Respondent's recently
hired part-time clerical workers have not-so far as the
record shows-held union membership.
Complainant Union's most recent contractual negotia-
tions, with respect to which Respondent was, concededly,
privy, may be summarized briefly. On April 1, 1971, Com-
plainant Union gave "Allied Employers" notice that it.
wished their current multiple-employer contract reopened
for negotiations. (Allied Employers, presumably , designates
a trade group of produce firms which , inter alia, negotiate
labor contracts jointly. Respondent's precise connection
with Allied Employers cannot be found detailed, however,
within the present record. The record's total context merely
warrants a deduction-which I make-that Respondent,
throughout the period with which we are now concerned,
either held Allied Employers membership, or, alternatively,
that the firm's management had, somehow, previously signi-
fied their readiness to be bound by that trade group's collec-
tive-bargaining negotiations.) Following this notice,
ROSELLA'S FRUIT AND PRODUCE CO ., INC. 635
Complainant Union's contract terminated June 1 , presuma-
bly pursuant to its terms . Negotiations looking toward a
new contract, however, did not begin promptly . Complain-
ant Union's business representative testified herein-credi-
bly and without contradiction-that Allied Employers has
normally negotiated Teamsters Union contracts , for mem-
ber firms committed to be bound thereby , first . Complain-
ant Union's contract negotiations-covering office clerical
workers with some never-specified number of produce
firms-began sometime during September 1971 therefore.
Following some four negotiating sessions, consensus was
reached ; thereafter, specifically on November 12, Com-
plainant Union's new multiple-employer contract was
signed . Respondent was, so I find , bound thereby.
2. Brunk's claim of harassment
a. General Counsel 's presentation
Substantially , General Counsel seeks factual deter-
minations that-within this context of Complainant
Union's contractual negotiations-both Beltramo and Ron
Rosella repeatedly sought to coerce Brunk's withdrawal
from union membership , threatened her with discharge
should she continue her membership, and conditioned her
future employment upon such membership's relinquish-
ment . Their course of conduct-so General Counsel
claims--constituted "harassment" which , ultimately,
caused Brunk to terminate her employment ; that termina-
tion, so General Counsel contends , should therefore be con-
sidered a constructive discharge.
In this connection, General Counsel's case-bottomed
primarily upon Brunk's testimony-runs , substantially, as
follows : Beltramo , just before starting a 2-week vacation,
allegedly visited Brunk's residence on Sunday, October 17;
told her that Respondent 's vice president , Ron Rosella,
wanted her to withdraw from Complainant Union; and
requested her to consider the suggestion . Thereafter,
Respondent 's office manager-within a day following her
November 1 return from vacation-allegedly asked Brunk
whether she had done "anything" with regard to resigmng.
When Brunk replied negatively , Beltramo allegedly de-
clared that Rosella would have to "let [her] go" if she did
not withdraw from union membership . According to Brunk,
Respondent's office manager, inter alia, further declared,
with some agitation , that she (Brunk) had slowed down in
her work . Brunk promised-so she testified-that she would
request a membership withdrawal ; further, she testified that
later that day she did telephone a fellow union member,
whom she then believed to be complainant Union 's presi-
dent, to report her withdrawal desire.
With respect to subsequent developments , Brunk's tes-
timony-should it be deemed credible-would warrant the
following determinations : That Catherine Grife, Complain-
ant Union's president, telephoned her on November 11 tell-
ing her that she would be required either to appear before
the Union or write a letter with regard to her withdrawal
request; that she reported this to Beltramo the following
day, declaring that she did not see how she could withdraw
after 22 years of union membership ; but that she promised,
finally, to write the necessary letter, following Beltramo's
reiterated suggestion that she do so. (Grife, summoned as
General Counsel's witness , testified that Brunk had-some-
time during October's latter days-reported her plan to
withdraw from union membership. She reported, further,
that Brunk was subsequently told she would have to send
complainant Union a letter stating the "reason" for her
resignation . According to Grife , Brunk then declared, how-
ever , that she did not "believe" she would write the letter,
since she did not wish to "implicate" anybody.) According
to Brunk , the letter was written later that day-Friday,
November 12, specifically-but was not sent. When
Respondent's bookkeeper returned to work on Monday,
November 15, following a weekend of thought-so she testi-
fied-she decided not to send the letter ; the document was,
thereupon , destroyed . When Beltramo made inquiries later
that week , she was allegedly told that the letter had been
tom up.
Sometime later , during November 's third or fourth
week-so Brunk testified-Complainant Union's business
representative , Lois Garrison , telephoned to ask why she
had not attended Complainant Union's previous meeting.
According to Brunk's recollection, Garrison was told that
she had been unable to come during Beltramo's vacation,
and that she did not think it would be "advisable" for her
to attend further union meetings , with due regard for the
position which Beltramo and Vice President Rosella had
taken. (Garrison , summoned as General Counsel 's witness,
corroborated Brunk's testimony generally , with regard to
their conversation, but recalled it as having taken place
sometime during early November . According to Garrison,
Brunk reported that Respondent's management representa-
tives had , inter alia, chided her for misplaced loyalty, de-
claring that her loyalty should be with her Employer rather
than Complainant Union. Garrison, so she testified, then
told Brunk that relinquishment of her union membership
would not be necessary .) Continuing, Brunk testified that
Respondent 's vice president-during a subsequent Novem-
ber 23 conversation-told her, for the first time , that he did
not want "one girl" belonging to Complainant Union, who
could "draw ... out" his Teamsters Union employees, since
that would upset his ulcers . Brunk told him-so she re-
called-that she did not know why that would happen, since
complainant Union's contract had already been signed.
Rosella replied-according to Brunk's recollection-that
this made no difference to him ; he did not want her to retain
her union membership . (For clarity, some review with re-
gard to this conversation 's background seems necessary.
While a witness, Respondent's vice president conceded,
herein , that sometime during October, while Complainant
Union's contractual negotiations with Allied Employers
were still in progress , he had heard a rumor that Complain-
ant Union was "going to become affiliated" with the Team-
sters Union and then strike. Respondent 's vice president, so
he testified , had been fearful that-should Complainant
Union pursue such a course-the firm's union members
would respect Complainant Union's picket line. With this
in mind, Rosella declared , he had requested Brunk to check
the reported "affiliation" rumor ; further, he had requested
that she "consider" dropping her union membership should
the rumor turn out to be correct . Rosella conceded that his
apprehension regarding the possible consequences, should
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Complainant Union strike following a Teamsters affiliation,
had prompted his suggestion that Brunk should consider
relinquishing her union membership. According to Rosella,
Brunk had reported, several days later, that there was no
truth to the rumor.) On November 29, so Brunk recalled,
Rosella asked whether she had done "anything" following
their conversation; Brunk replied, shortly, that she planned
to retain her union membership. Respondent's vice presi-
dent-so she testified-promptly left the office, slamming
the door; Beltramo, allegedly, chided her subsequently for
the sharp tone with which she had responded.
During the course of their work, Brunk and
Respondent's office manager-so the record shows-neces-
sarily had numerous daily contacts. And, throughout the
6-week period which followed Beltramo's November 1 re-
turn from vacation-so Brunk testified-she (Beltramo)
proffered numerous conversational comments, while they
were at work, to the effect that Brunk's refusal to consider
relinquishing her union membership revealed misplaced
loyalty; that she could not understand why Brunk was being
so stubborn; and that Brunk had no reason to fear cuts with
respect to her wages or vacation allowance-following a
withdrawal from union membership-since she (Beltramo)
would not let that happen. (While a witness, Brunk declared
that Beltramo's comments-purportedly reiterated "three
to four" times each week while she was performing her
bookkeeping duties-would "upset" her; she declared that
"some time" would be required for her to regain her compo-
sure .) Finally-about Sunday, December 12 (?) according
to Brunk's recollection-Beltramo commented, during one
such conversation, that she knew Brunk was unhappy; she
asked what Brunk wanted to do about it. Respondent's
bookkeeper, thereupon, replied that she would have to re-
tire.
The record warrants a determination-which I make-
that Brunk's retirement was set for the year's end; a consen-
sual understanding was reached, however, that, before then,
she would participate in training her replacement. (During
a subsequent conversation, so Brunk recalled, Beltramo
mentioned that she would have to "grin and bear" the fact
that "someone new" would have to be trained for Brunk's
position. When Brunk countered this comment with a dec-
laration that retirement had not been her "idea" but Vice
President Rosella's, Beltramo replied-so Respondent's
bookkeeper testified-that she (Brunk) was stubborn, and
that she was partly blameworthy for the situation.) While a
witness herein, Brunk declared consistently that her "retire-
ment" had not been voluntary, since she had not been plan-
ning to retire yet. Nevertheless, the record shows
that-during Complainant Union's subsequent Christmas
party-she did report her prospective retirement at year's
end; responding to a question from Complainant Union's
president, she declared, however, that she would retain her
union membership.
Circumstances, not herein material, somewhat delayed
Respondent's procurement of Brunk's replacement. The
record warrants a determination-which I make-that her
successor, Bernice Reed, began work sometime shortly after
January 1; Brunk's tenure in Respondent's hire, therefore,
continued for a time while Reed was being trained. She
(Brunk) ceased work, finally, on January 14.
b. Respondent's defense
Respondent's management representatives-Rosella
and Beltramo-concede, substantially, that, during the Oc-
tober-November period within which Complainant
Union's contract negotiations were in progress, the firm's
bookkeeper had been requested to consider a withdrawal
from union membership. Further, their composite testimo-
ny-considered in totality-suggests a parallel concession
that Brunk was, thereafter, more or less persuaded to retire.
(During 1969, Brunk had reached her 65th birthday; shortly
thereafter, she had-pursuant to suggestions received-ap-
plied for Medicare coverage. She had not, however, re-
vealed any prospective plan or program with respect to
retirement. During 197l's latter months-when the situ-
ation with which we are now concerned developed--she
was in her 67th year.) However, confronted with General
Counsel's contention, Respondent would have this Board
conclude-rather-that Brunk was persuaded to retire, not
because of her demonstrated reluctance to resign her union
membership, but solely because of her diminished capacity
to perform the work which her position required, derived
from her "advanced" years and declining health.
Consistently with this contention, Vice President
Rosella's testimony-previously noted-reveals: That
sometime during October 1971 he heard a rumor that com-
plainant Union was seeking Teamsters Union affiliation
before a possible strike; that he [Rosella] was concerned
regarding such a possible strike, since Brunk's participation
therein might cause union members in Respondent's hire to
suspend work; that, sometime during October's second
week, therefore, he requested Brunk to find out "from her
people" whether the rumor was correct; and, further, that
he requested Respondent's bookkeeper, concurrently, to
"consider" resigning her union membership, should her in-
vestigation confirm Complainant Union's plan regarding
the rumored Teamsters affiliation, with a strike scheduled
to follow. Further, Rosella testified that, during a subse-
quent conference with Beltramo, he related his conversation
with Brunk, and requested Respondent's office manager to
"remind [Brunk] to check" regarding the rumor. Several
days later, so Rosella recalled, Brunk declared the reported
rumor baseless; during cross-examination, Respondent's
vice president conceded, further, that Brunk had, concur-
rently, declared she would not relinquish her union mem-
bership. (While a witness, Rosella denied, categorically, that
he had had any further conversation whatsoever with Brunk
regarding her union membership; likewise, he denied any
threat to discharge her because she had refused to withdraw
therefrom.) Beltramo, summoned as Respondent's witness,
denied any October 17 visit to Brunk's residence; she corro-
borated Rosella's testimony, rather, that sometime during
October, shortly before her departure on vacation, she had
been told the substance of his prior conversation with Brunk
regarding Complainant Union's rumored plans. Further,
Respondent's office manager recollected a subsequent con-
versation-while she was present-during which Rosella
had asked Brunk whether she had considered resigning
from Complainant Union; Brunk had allegedly replied,
rather tartly, that she had considered the matter, but would
not quit. (Beltramo recalled this conversation as taking
ROSELLA'S FRUIT AND PRODUCE CO., INC. 637
place before Respondent's management was apprised re-
garding the truth or falsity of Complainant Union's ru-
mored affiliation move; inferentially , therefore, she
contradicted Brunk's recollection which had placed this
conversation on November 29.) Respondent 's office man-
ager conceded that she had chided Brunk for the "snotty"
tone with which her reply had been conveyed . Further,
Beltramo purportedly recalled a conversation with
Respondent's bookkeeper 1 week later-following Vice
President Rosella's query, directed to her, as to whether
Brunk had said anything further regarding her union mem-
bership-during which she (Beltramo ) had, herself, queried
Brunk with respect to her intentions . Brunk had replied-so
Beltramo recalled-that she had written a letter requesting
withdrawal , which she had then displayed , and had declared
that she planned to send it; subsequently, when
Respondent 's office manager asked whether the letter had
been sent, Brunk had reported that she had destroyed it.
Previously, within this Decision , reference has been
made to Brunk's testimony that her conversation with Bel-
tramo regarding Complainant Union 's letter requirement
took place on November 12, specifically . That was the
date-so the present record shows-when Complainant
Union's contract , binding upon Respondent herein, was
signed . According to Beltramo, however , Respondent's so-
called "problem" with respect to Brunk's union member-
ship disappeared when the contract was signed ; the office
manager's testimony , regarding their November 12 conver-
sation, reads as follows:
[That problem blew over] in November sometime when
the girls signed their contract . The very first day I heard
about it, I said, "Anna , I heard the girls signed their
contract today." I said, "You can forget about the
whole thing because we are bound by the contract for
three years and they [Complainant Union] are not in
contact with the Teamsters union."
Respondent 's office manager then denied any further con-
versations with Brunk regarding her union membership.
Specifically, she denied any reference thereto following the
date on which Complainant Union's contract was signed;
Beltramo declared, while a witness, that further discussion
regarding Brunk 's possible resignation from union member-
ship, thereafter , would have been pointless.
With respect to Brunk's final retirement decision, Bel-
tramo recalled that : Sometime during the latter part of No-
vember or early December , she finally told Brunk that
Respondent proposed to engage someone else to replace
her; Brunk signified acquiescence; she was asked whether
she would like to help train her replacement and then "come
back" following her termination for part-time work; and
she promised she would return for steady part-time work
with Respondent for "so many days a week," plus regular
monthend work, required to close the books and prepare
financial statements . According to Beltramo , details with
respect to this arrangement were "practically" worked out;
she and Brunk reached a consensus with regard to how
much the latter would be able to earn without affecting her
eligibility for social security benefits . Respondent 's office
manager described these discussions as amicable , so far as
she could tell.
The record warrants a determination-which I make-
that Brunk's application for social security benefits was,
indeed, filed on Tuesday, December 14, looking toward her
subsequent job termination.
3. Brunk's diminished competency
Previously , within this Decision , reference has been
made to Respondent's contention that Beltramo 's decision
to replace Brunk derived from her purportedly reluctant
conclusion that Respondent 's bookkeeper-because of her
advanced years and diminished physical capacity-could
no longer perform her routine duties with the degree of
competency which Respondent's "hustle-bustle" business
required . In this connection , Respondent's management
representatives-Beltramo and Rosella-proffered consid-
erable testimony calculated to support their factual conten-
tion that, for several years , Brunk's work had demonstrated
her progressively diminishing capacity to meet performance
requirements . By way of summary : When asked whether
Brunk had been a competent worker , Respondent's vice
president declared that:
She was a competent employee for about 17 [years] and
she began to slide the past four or five years to the point
she was no longer a competent employee for the posi-
tion she held. I am not saying she wouldn 't be compe-
tent in another position, but not in the specific function
she was supposed to handle, no, in my opinion.
With respect to their contention , Respondent's manage-
ment representative proffered detailed testimony: That
Brunk had developed angina pectoris some 4 years previous-
ly; that, since developing this medical condition , she had
frequently suffered chest pains , shortness of breath, and
related symptoms when required to move quickly, or when
confronted with stress situations , which were common dur-
ing morning and late afternoon hours, with respect to
Respondent 's business operation; that her capacity to han-
dle several tasks concurrently and to move from one place
to another quickly within Respondent 's facility had been
demonstrably reduced; that her work had begun to show a
growing number of minor mistakes-none of them cru-
cial-which had sometimes generated customer comments
and beclouded Respondent 's reputation for competent
service; that her work performance had sometimes revealed
forgetfulness or confusion; and that she had, generally,
been working less efficiently and more slowly.
Respondent's management representatives, further,
proffered some testimony calculated to suggest that Brunk,
during her last few years of service , had become cantan-
kerous and hard to please , and that she did not get along
"well" with various part-time clerical workers . The record,
however, will not support a determination that her alleged
deficiencies in this respect really created serious problems;
for that reason no detailed discussion with respect thereto
seems required . Respondent's presumptive contention, that
Brunk was becoming difficult to get along with , constitutes
nothing more than a mere "makeweight " argument , within
my view; the contention has been considered , but will be set
aside herein-since it clearly adds nothing of moment, so
far as Respondent 's defense is concerned-without com-
ment.
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this connection, Beltramo testified further that, dur-
ing recent years, special measures had been taken to melio-
rate Brunk's work situation. For example, Respondent's of-
fice manager noted that-sometime during the last 2
years-Brunk's daily starting time had been changed; her
presence was no longer routinely required during the hectic,
tension-laden, morning hours of Respondent's regular busi-
ness day. She was, likewise, permitted to leave work early-
when necessary-to visit her physician. Respondent also
hired two part-time clerical workers, within the 2-year peri-
od mentioned; they were given mostly routine "general of-
fice" tasks, particularly those requiring comptometer and
some bookkeeping machine operations, which had previ-
ously been considered Brunk's responsibility. (Brunk, while
a witness, claimed that Beltramo had hired these part-timers
to relieve both herself and Respondent's bookkeeper from
their work load burdens.) Further, Beltramo testified-
without significant challenge or contradiction-that she,
personally, tried to help Brunk; that she "absorbed" various
tasks which Brunk might be unable to complete expedi-
tiously; that she sometimes checked Brunk's work to correct
minor mistakes; and that she "worked around" whatever
problems Brunk's slowness generated. Rosella contended-
while a witness-that Beltramo's readiness to help Brunk
perform her bookkeeping work had, sometimes, kept her
(Beltramo) from discharging her own regular responsibili-
ties.
Brunk's testimony-regarding her state of health and
capacity for work-reflects comparatively little calculated
to counter Respondent's defensive presentation. While a
witness, she did characterize her general state of health as
currently very good, but conceded that she does suffer angi-
na pectoris chest pains "at times" following physical exer-
tion. She conceded that she had "at times" been excused,
when considerable overtime work was required. Contending
that she could still negotiate the stairs within Respondent's
facility-which she had normally been required to traverse
perhaps 12 times daily-Brunk conceded, nevertheless, that
Beltramo had offered to do whatever "running up and
down" their work might require. Conceding, further, that
her legs are swollen-presumably because of liquid reten-
tion-Brunk acknowledged that she sometimes suffers "un-
comfortable soreness," when required to stand. She insisted,
however, that this was a long-standing condition with which
she had learned to live. Respondent's bookkeeper finally
conceded that sometimes-while under stress-she did find
it necessary, while at work, to take medication prescribed to
relieve chest pain; she testified, however, that she had not
required such self-medication "too many times" within the
2-year period preceding her termination.
Regarding her work performance, Brunk contended
first that there were "very few [bookkeeping] errors" made
in Respondent's office. Finally, however, she conceded
some "errors of ommission" with respect to invoice prep-
aration and handling, but insisted that "everyone" within
Respondent's office "sometimes" made mistakes. Inter alia,
the firm's former bookkeeper conceded that-during
Beltramo's fall 1971 vacation-she had been unable to pre-
pare and process the firm's relatively limited payroll in suffi-
cient time to get payroll checks distributed on schedule; she
declared, however, that Beltramo had told her, before leav-
ing on vacation, that she need not worry, and that it would
be "all right" to have the checks distributed later than
Respondent's regular Friday payday.
Brunk purportedly recalled a conversation-during
September 1971 specifically-when Beltramo had asked
whether she was planning to retire. Respondent's bookkeep-
er-so she recalls-had declared her preference to continue
working; Beltramo had, allegedly, declared her satisfaction.
In this connection, however, Brunk conceded, while a wit-
ness herein, that:
I told her at any time when my work was not
satisfactory and I was slowing down to let me know
and I would retire.
Respondent's bookkeeper declared, however, that she had
never received complaints regarding her work performance
prior to Beltramo's purported November 2 comment about
slowing down, previously noted. (The present record-
which I have, herein, summarized generally-contains no
Beltramo testimony regarding a November 2 conversation.
She did recall Brunk's declaration regarding her willingness
to retire-following word that she was slowing down-but
dated their conversation, during which this remark was
made, back in calendar year 1969, when Brunk's medicare
enrollment was being discussed.) In this connection, howev-
er, Beltramo testified that she never thereafter mentioned
"slowing down" when discussing Brunk's situation, since
she "knew" that-should she do so-the bookkeeper would
resent her comments. Generally, so Beltramo declared,
Brunk made it clear that she considered retirement a touchy
subject.
According to Respondent's vice president-whose tes-
timony in this respect has not been disputed-Respondent's
clerical staff has been reduced since Brunk's retirement. The
firm's regular clerical work is being compentently han-
dled-so he declared-by Beltramo and Brunk's replace-
ment, plus a single part-time worker hired for the equivalent
of 1 full day's work per week.
C. Conclusions
The present record, considered in totality, will not-
within my view-sustain a determination that Respondent's
management representatives, Rosella and Beltramo, really
harassed Brunk with regard to her union membership, or
that they conditioned her continued employment prospects
upon her withdrawal therefrom.
True, Rosella's testimony does reveal his conceded
concern over the rumored "possibility" that Complainant
Union might seek and receive Teamsters Union support,
while conducting a conceivable strike. And-while a wit-
ness-Respondent's vice president did concede, further,
that Brunk was requested to "consider" resigning her union
membership, should complainant Union's rumored readi-
ness to seek Teamsters affiliation be confirmed.
However, Brunk's testimony-that she was specifically
threatened with discharge should she persist in refusing to
relinquish her union membership-fails to persuade for sev-
eral reasons. First: Her testimony compasses no specific
contradiction or denial directed toward Rosella's proffered
recollection that she was requested to "check into" her
Union's rumored plan. Brunk's witness-chair recital further
reflects no denial with regard to Rosella's testimony that she
ROSELLA'S FRUIT AND PRODUCE CO., INC. 639
subsequently reported the rumor as baseless . Within this
case's total context, therefore, Rosella's testimonial recit-
al-with regard to their conversation-cannot be cavalierly
disregarded . Respondent's vice president, while a witness,
seemed basically well disposed toward Brunk; his testimony
was, within my view, proffered dispassionately and with
simple candor. In material part, further, it was buttressed
with circumstantial detail. With matters in this posture, the
testimonial recollections proffered by Respondent's vice
president-so I find-merit credence. And I conclude, con-
sistently therewith, that Brunk was requested to investigate
complainant Union's rumored affiliation program, and that
she did, indeed, subsequently report that rumor's lack of
foundation. Second: With due regard for Brunk's 22-year
service record, I find it difficult to believe that Respondent's
relatively youthful vice president would have felt con-
strained to threaten his firm's long-term bookkeeper with
discharge before being provided with data from which he
could conceivably conclude that such drastic action might
be necessary or desirable. Further, Respondent's vice presi-
dent-after being told that his concern with regard to com-
plainant Union's rumored plan lacked foundation-would
hardly have been likely to persist in threatening Brunk's
discharge, nevertheless. (The natural logic of probability, in
short, contributes to my determination herein that
Respondent's vice president did not threaten to "let [Brunk]
go" should she fail to relinquish her union membership.
Rather, I find-consistently with his testimony-that he
merely requested she "consider" such action.)
Finally, General Counsel's contention, herein, that Bel-
tramo conducted a 6-week campaign of nagging conversa-
tional harassment-calculated to coerce Brunk's
resignation from union membership-lacks persuasive rec-
ord support. By November 12, Rosella's previously declared
concern with regard to Complainant Union's possible
"strike" program had, necessarily, been dissipated; Com-
plainant Union's new multiple-employer contract-binding
upon Respondent herein-had been negotiated and signed,
without any Teamsters Union link being formed, and with-
out a strike. I conclude, therefrom, that-with Complainant
Union's possible "strike threat" no longer a viable contin-
gency factor-further conversational comments dealing
with Brunk's declared reluctance to give up union member-
ship would have been pointless ; Respondent's office man-
ager, while a witness , so noted . Beltramo's testimony, that
Brunk's union membership was no longer discussed follow-
ing Complainant Union's November 12 contract has-
therefore-been credited.
Within his brief, General Counsel notes this Board's
consistent position that concerned employers violate Sec-
tion 8(aX3) when their workers are given a so-called "op-
tion" to relinquish support for a labor organization or face
discharge. American Enterprises, Inc., 191 NLRB No. 118;
Artco Bell Corporation, 146 NLRB 41, 42-45; Ra-Rich Man-
ufacturing Corp., 120 NLRB 503, 506-507; Marathon Elec-
tric Mfg., 106 NLRB 1171, 1173-1175. This decisional
principle , however, has not been seriously challenged here-
in. The testimonial record-considered with due regard for
the natural logic of probability-simply persuades me that
Brunk was never really confronted with such a statutorily
proscribed choice.
Within his brief, General Counsel contends-further-
that Beltramo's final decision to find a replacement for her
long-time fellow worker, purportedly because of her medi-
cal difficulties and consequentially poor work performance,
really derived from a continuing purpose of reprisal, bot-
tomed upon Brunk's prior refusal to consider relinquishing
union membership. Thus, General Counsel argues:
It is clear that prior to October 17, 1971, Beltramo and
Brunk were friends ... Although Beltramo had ob-
served Brunk's low performance and [poor] health over
the past two years prior to October 17, 1971, Beltramo
had not been critical of Brunk's work and had taken
steps to ease the load ... Until Brunk's membership
came under fire, there were no forced retirement plans
... When the Union became a concern, Beltramo
ceased protecting Brunk ... The fact is evident that
Brunk's age and medical difficulties did not merit in-
voluntary retirement until the added factor of Brunk's
Union activity became a problem to Respondent.
This statement of General Counsel's position, however, fails
to persuade . Since Respondent's office manager and Brunk
were concededly good friends, General Counsel's badly
stated contention-that Beltramo's ultimate reversal of her
previously maintained position, with respect to her fellow
worker's retention, derived substantially from considera-
tions statutorily proscribed-can hardly be considered
proven beyond question.
Within his brief, General Counsel's representative con-
cedes that Respondent's office manager had-for at least 2
years-refrained from criticizing Brunk's work, had taken
steps calculated to ease her work pressures, and had consis-
tently shielded Brunk from criticism. Despite this, General
Counsel suggests that Vice President Rosella's resentment
or distress over Brunk 's prior refusal to relinquish union
membership provided Beltramo with a compelling reason to
cease "protecting" her long-term fellow worker. After No-
vember 12, however, when Complainant Union's contract
was signed, Brunk's decision to retain union membership no
longer presented any sort of contingent "problem" for
Respondent's management ; the potential strike situation
which had, supposedly, generated Rosella's request that she
consider resigning no longer existed . General Counsel's sim-
ple suggestion, then, that persistent managerial resentment,
purportedly generated in response to Brunk's previously
demonstrated stubbornness, provided a continuing, hold-
over motive for Beltramo's ultimate determination to pro-
mote her retirement, carries no persuasive power. The
well-known maxim, post hoc, ergo propter hoc, provides no
solidly based rationale for a determination herein; General
Counsel's presentation, however, suggests no other.
Presumably, General Counsel bases his contention
upon Brunk's testimony that Rosella and Beltramo contin-
ued their verbal pressure tactics, calculated to force her
membership resignation, beyond November 12 despite
Complainant Union's contract signing . That testimony,
however, has been rejected ; Brunk's witness chair recitals
with respect to continuing harassment-though proffered, I
am sure, with a sincere belief in their truth-derive, within
my view, from memory significantly colored by after-
thought.
General Counsel does suggest, however, that Brunk's
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
age and medical difficulties would not have been considered
sufficient to warrant her purportedly "involuntary" retire-
ment, but for her stubbornness in refusing to relinquish
union membership. Due consideration of Respondent's de-
fensive presentation-taken in conjunction with Brunk's
several testimonial concessions regarding her physical con-
dition-persuades me that this suggestion must be rejected.
Reliable, probative, and substantial evidence-sufficient to
demonstrate, preponderantly, that Respondent's purported
reason for promoting Brunk's retirement was pretextual-
simply cannot be found within the present record. Upon
that record, I am satisfied that Rosella's judgment regarding
the business necessity for Brunk's replacement-with which
Beltramo, finally, reluctantly concurred-was the real
"moving factor" which prompted Respondent's course of
conduct, challenged herein. Brunk may be, understandably,
reluctant to concede-within her own mind-the possibility
that Respondent's management no longer considers her ca-
pable of rendering competent full-time service. Her present
claim-that Respondent's professed reason for seeking her
retirement and replacement should be considered pretex-
tual-may well derive from honest personal conviction.
Considered in totality, however, the testimonial record with
which I am confronted provides no substantial basis for
finding Respondent's managerial judgment-that Brunk
would, finally, have to be replaced-lacking in justification.
Vice President Rosella's decision with regard to her replace-
ment was not a pretextdal decision-within my view-but
rather a decision reached in good faith, bottomed upon
business considerations; I am satisfied, further, that Brunk's
antecedent refusal to consider a withdrawal from union
membership was no longer a significant "moving cause"
within Respondent's contemplation, when Beltramo's deci-
sion to proceed with her replacement was finally reached.
Years of service, inevitably, take their toll; we cannot
escape the human condition. Nevertheless, self-acknowl-
edgment that one's capacity to function productively must,
inevitably, decline, may, sometimes, be difficult. And, con-
trariwise, rationalization-by which we may seek to per-
suade ourselves that the reluctance of others to continue
utilizing our services should be charged to some extrinsic
factor rather than to our diminished capacity-may be easy.
Without some solid factual support, however, such a
rationalization cannot-herein-provide a reliable, proba-
tive, or substantial justification for statutorily sanctioned
relief.
Within his brief, General Counsel contends-finally-
that Respondent interfered with, restrained, and coerced
employees, contrary to statutory requirements by "threaten-
ing, interrogating, and harassing" the complainant worker
herein, because of her union membership, and by "or-
dering" her resignation. Previously, within this Decision,
however, Brunk's testimony that she was directed to relin-
quish her long-time union membership, on pain of dis-
charge, has been rejected; with respect thereto, statutory
interdiction cannot be considered warranted. Presumably,
General Counsel seeks a cease-and-desist order, neverthe-
less, bottomed upon Rosella's conceded request that
Respondent's bookkeeper investigate her Union's possible
strike plans and report back, plus his suggestion that she
should "consider" resigning her union membership, should
that organization's plan to strike, with Teamsters Union
support, be confirmed. Such conduct may well fall within
Section 8(a)(1)'s proscriptive reach. Upon this record, how-
ever, statutory sanctions with regard thereto can hardly be
considered necessary or warranted. Rosella was concerned,
merely, with Brunk's possible involvement, should Com-
plainant Union strike during negotiations which were then
in progress. Those negotiations were, however, subsequent-
ly concluded with a contractual concensus reached; the
contingency which Rosella feared never did materialize,
and cannot reasonably be anticipated within the near fu-
ture. Cf. Algonquin Bowling Center, Inc., 170 NLRB 1768,
fn. 1, 1770. Further, Respondent's former bookkeeper-
who might, arguably, have considered her statutorily grant-
ed rights prospectively burdened by Rosella's course of con-
duct were she still in Respondent's hire-has now retired.
Her situation no longer requires this Board's protective
shield. With these circumstances in mind, I conclude that
Rosella's several requests-considered with due regard for
the circumstantial context within which they were made-
constituted nothing more than technical statutory viola-
tions. They reflect a personal, clearly "isolated" reaction,
generated by a situation hardly likely to recur. Statutory
sanctions bottomed upon these claimed 8(a)(1) violations
would, therefore, clearly be supererogatory; they would not,
meaningfully, promote statutory objectives.
CONCLUSIONS OF LAW
1. Rosella's Fruit and Produce Co., Inc., is an employ-
er within the meaning of Section 2(2) of the Act, engaged
in commerce and business activities which affect commerce
within the meaning of Section 2(6) and (7) of the Act, as
amended.
2. Produce Office Workers Union, Independent, is a
labor organization within the meaning of Section 2(5) of the
Act, as amended, which admits employees of Respondent
to membership.
3. General Counsel has not, herein, produced reliable,
probative, or substantial evidence sufficient to justify a de-
termination that Respondent did engage, or that it currently
continues to engage, in unfair labor practices, affecting
commerce, within the meaning of Section 8(a)(1) or (3) of
the Act, as amended.
Upon these findings of fact and conclusions of law, and
upon the entire record herein, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I hereby
issue the following recommended:
ORDER'
The complaint is dismissed in its entirety.
1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.