Salerno-Megowen Biscuit Co.

National Labor Relations Board - Board Decisions

Sep 25, 1962

138 N.L.R.B. 832 (N.L.R.B. 1962)

832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union and their jobs; and we will not condition employment upon promises
to forget and not to have any more dealings with the Union.
WE WILL NOT threaten to change the hours of work, or to close the plant,
or to take any other economic reprisals if the Union comes into our plant.
WE WILL NOT promise economic benefits to employees for agreeing to assist
us in keeping the Union out of the plant.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any and all such activities.
WE WILL offer to the employees who were laid off on January 17 and
February 7, 1962, and who have not been reinstated, immediate and full
reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority and other rights and privileges, and we will make
all the foregoing laid-off employees, including those who have been reinstated,
whole for any loss of pay they may have suffered by reason of our discrimina-
tory conduct.
All our employees are free to become, remain, or refrain from becoming or re-
maining, members of the above-named or any other labor organization.
ROYAL' SCHOOL LABORATORIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 707 N.
Calvert Street, 6th Floor, Baltimore, Maryland (Telephone Number, Plaza 2-8460,
Extension 2100), if they have any question concerning this notice or compliance
with its provisions.
Salerno-Megowen Biscuit Company and Local #1, American
Bakery & Confectionery Workers International Union, AFL-
CIO. Case No. 13-CA-¢455. September 25,.1962
DECISION AND ORDER
On May 9,1962 , Trial Examiner William J . Brown issued his Inter-
mediate Report in the above-entitled proceeding , finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Interme-
diate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act , the Board
has delegated its powers in connection with this case to a three -member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case , including the excep-
138 NLRB No. 106.
SALERNO-MEGOWEN BISCUIT COMPANY 833
tions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner 2
' Interest on backpay shall be computed In the manner set forth In Isis Plumbing A
Heating Co , 138 NLRB 716. For the reasons set forth in the dissent in that case,
Member Rodgers would not award interest on backpay and does not approve the award here.
2 Insert the following as the first paragraph immediately below the signature in the
notice:
NoTsi.-We will notify the above-named employee If presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
Also change the words "This notice must remain posted ..." to read "This notice must
remain posted for 60 consecutive days from the date of posting ..." instead of stating
"60 days from the date hereof."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter sometimes called the Act, was heard before Trial Examiner
William J. Brown at Chicago, Illinois, March 12 and 13, 1962. The charge was filed
September 27, 1961, by the above indicated Charging Party, hereinafter sometimes
called the Union; the complaint was issued by the General Counsel, through the
Regional Director for the Thirteenth Region, on January 24, 1962.
The complaint alleged, in addition to jurisdictional matter, that the Respondent dis-
charged its employee, Elmer G. Williams, on September 22, 4961, because he en-
gaged in union or concerted activities, thereby committing unfair labor practices
within the scope of Section 8(a)(1) and (3) of the Act. Respondent's answer
admits the jurisdictional allegations of the complaint and the discharge of Williams
and denies the commission of unfair labor practices.
All parties appeared at and participated in the hearing and were given full op-
portunity to be heard and to present evidence and argument on the issues. Sub-
sequent to the hearing, the General Counsel, the Respondent, and the Charging Party
filed briefs which have been fully considered.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACTS
1. THE BUSINESS OF RESPONDENT
It appears from the pleadings and evidence and I find that Respondent is a
corporation organized under the laws of the State of Illinois, with its principal plant
and place of business at 7777 North Caldwell Avenue, Chicago, Illinois, where it is
engaged in the manufacture and sale of food products. During the calendar year
1961, Respondent shipped food and other materials valued in excess of $50,000 from
its facilities in the State of Illinois directly to points outside Illinois, and purchased
and received at its Illinois facilities food and other materials valued in excess of
$50,000 directly from points outside of Illinois. I find that Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act and that
assertion of the Board's jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
It appears from the pleadings and I find that the Union is a labor organization
within the purview of Section 2(5) of the Act.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Introduction to the issues
As indicated above, the only issue herein is whether the Respondent's action in
discharging Elmer Williams constituted an unfair labor practice in the nature of
discriminatory treatment directed against him because of his activities on behalf of
the Union. The General Counsel contends and introduced evidence tending to
establish that Williams' employment record had been satisfactory, that he was
summarily discharged shortly after he commenced soliciting membership for the
Union in the Respondent's plant, that subsequent to the discharge his supervisor
admitted to Williams that union "activity had been the motivating factor underlying
it, and that approximately 2 years prior to his discharge, at a time of organizational
activity by the same Union, top officials of Respondent had singled him out as a
unionman who had to go sooner or later. Respondent on the other hand contends
and introduced evidence tending to establish that it had no knowledge of union
activity on the part of Williams and that he was in fact discharged because of
reports that he had been verbally abusing fellow employees thereby damaging em-
ployee morale about Respondent's plant.
B. Respondent's operations and its labor relations history
The operations of Respondent involved in the instant proceeding are conducted
in a single-story plant about two city blocks long and half as wide,. Respondent's
president, George Salerno, is mainly concerned with selling responsibilities. Re-
sponsibilities in the area of production and allied matters are in,the hands of William
Gerbosi, who has been employed as a consultant for approximately 3 years and is
in charge of plant operation. Gerbosi also serves other firms on a consulting
basis and works only intermittently at Respondent's plant. Frank Deluca works
directly under Gerbosi and Salerno and is in charge of a number of departments in-
cluding the shipping department. The head of the shipping department is Phil
Leonetti, shipping clerk. He is the immediate supervisor of Elmer Williams, the
employee whose discharge forms the issue in the present case. Respondent's plant
works a day and night shift and the general responsibility for nighttime operations
are those of Louis Miceli, who was at all material times in sole charge of the entire
plant at night in his capacity as night superintendent. His assistant was Frank
Halpin. Halpin has been night superintendent since January 1962. All the fore-
going except Williams are supervisors within the scope of Section 2(11) of the Act.
Deluca and Leonetti work the day shift roughly from 8 to 4. Williams worked
the night shift from 3 until 11:30 p.m. His hours thus overlapped those of his line
superiors by only 1 hour or so. His instructions were to carry through his regularly
assigned tasks and in the event of an emergency to communicate with either Deluca
or Leonetti. Miceli and Halpin, though not line supervisors over Williams, had
authority over him through their plantwide responsibilities at night
Sometime about September 1961, Respondent installed a personnel department
and engaged the services of L. P. Hartlaub as personnel director. He had prior
extensive experience in personnel work and reported for duty with Respondent on
September S, 1961.
At all material times Respondent has had a collective-bargaining agreement with
Local 734 of the Teamsters covering its 25, more or less, truckdrivers. A representa-
tion election was held October 14, 1959, among the 495 production and maintenance
workers (excluding truckdrivers) resulting in a defeat for the Union. Subsequently,
the Union filed objections to the conduct of the election but later withdrew its
objections. It appears from a stipulation of the parties that in the interval between
October 1959 and September 1961, there was no organizational activity among em-
ployees of Respondent on the part of the Union.
C. The discharge of Williams
Elmer Williams, sometimes known as "Al" to fellow employees, was hired in June
1957 as a lift-truck operator in the shipping department and worked continuously
at that job until his discharge on September 22, 1961. He was initially hired in at
a rate of $1.65 an hour and at the time of his discharge was paid an hourly rate
of $2.20. It appears that while he received two individual merit increases, the last two
raises in pay he received in 1959 and 1960 were general increases. Williams testified
that he was never reprimanded by Deluca or Leonetti and in fact was complimented
by Leonetti only 2 weeks before his discharge. It appears that Leonetti's praise
was based on the results accomplished by Williams in leaving the plant area in neat
SALERNO-MEGOWEN BISCUIT COMPANY 835
condition. Deluca also appears to have been satisfied with Williams' work and was
somewhat reluctant to assent to the discharge.
Sometime about September 7, 1961, representatives of the Union called on
Williams at his home and obtained his agreement to help organize Respondent's
plant. The union representatives furnished him with a number of authorization
cards and Williams proceeded to approach individual employees as he drove his
forklift truck about Respondent's plant and inquire as to their possible interest in
another election. He would leave union cards under packages in the plant where
those employees indicating an interest could pick up the card, take it to the restroom
and sign it, and return it to the hiding place where Williams would pick it up for
eventual forwarding to the Union. Williams continued this distribution of union
cards until September 20 or 21.
About 10 p.m. on September 22 Frank Deluca came to the pliant for the twofold
purpose of discharging Williams and conducting the new personnel director, Hartlaub,
on a tour of the premises. Deluca approached Williams at work, told him that he
had bad news and had to let him go, and they would go to the personnel office
to talk to the personnel manager about it. Williams was discharged in the course of
the ensuing conference in Hartlaub's office. He accused the two company officials
of discharging him for union activity; this they denied, disclaiming knowledge
of any such activity. According to Williams, however, after they left the personnel
office and while he was talking alone with Deluca he pressed Deluca further and in
reply to Williams' direct question as to whether he was not in fact being fired for
union activity. Deluca, according to Williams, nodded his head affirmatively with
a little smile.
The evidence clearly establishes that the discharge of Williams resulted from a
recommendation made by Gerbosi to Deluca about a day or two before Williams'
discharge on September 22. Gerbosi had, according to his testimony, decided to
recommend the discharge of Williams about 2 or 3 weeks before September 22 when
Gerbosi observed Williams dismount from his forklift truck and forcefully push a
dough trough out of the plant aisle into a stock area while at the same time talking
to a cleanup man.' According to Gerbosi's testimony Williams then, noticing Gerbosi
observing him, explained that "these dumb ignorant DP's don't know what they are
doing." Gerbosi said nothing to Williams either by way of agreement or reprimand
at the time.
According to Gerbosi's account the dough-trough incident was in effect the straw
that broke the camel's back and impelled him to the conclusion that Williams must
be released. He testified that he had previously had reports from Miceli and Halpin
to the effect that Williams abused his fellow workers, and the combination of the
earlier reports plus his observation at the time of the dough-trough incident impelled
him to make the recommendation for Williams' discharge.
The evidence is quite convincing that Williams was somewhat of a perfectionist
in his work, and to some considerable extent intolerant of fellow workers who
either would not or could not stack and pile finished products in the proper way so
that they could be expeditiously handled by Williams with his forklift truck.2 It
also appears from the uncontradicted evidence that Williams had as part of his duties
the authority and responsibility to demonstrate to fellow workers the correct way
to stack and pile the material. Williams on occasion used abusive language to
fellow workers, and called them either "grease balls" or "ignorant DP's" and this
naturally led to resentment on their part, and very well could have been disruptive
of morale. Miceli testified that he had had a number of complaints from employee
John Wolkowski concerning abuse heaped on him by Williams. Similarly Halpin
testified that he had admonished Williams concerning his treatment of Wolkowski.3
The issue to be determined is not, however, whether Williams' conduct rendered
him deserving of discharge, but whether in truth and in fact he was discharged
1 The dough-trough measures about 7 by 4 by 2 feet and could be a hazard to Williams
and others when left standing in a traffic aisle No damage was done to it or to personnel
or property by Williams' act in shoving it.
2 Williams' demeanor in the hearing room was quite compatible with the picture painted
of him by the evidence-precise and careful to a fault, somewhat impatient.
S No employees were called to testify to abuse by Williams. Neither were any specific
names or instances cited in the discharge interview by Hartlaub or Deluca even though,
as indicated by Williams' credited testimony, he pointed out to Hartlaub the injustice of
refusing him the chance to confront his alleged detractors.
662353-63-vol. 13 8-5 4
.836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
:because of his union activity or for other reasons.4 The only reason assigned by
Respondent is the determination of Gerbosi about 2 or 3 weeks before his actual
recommendation, a determination which was allegedly reached on his observation
of the dough-trough incident plus the preceding reports he assertedly had received
from Miceli and Halpin. However, Miceli was not asked in his direct examination
to corroborate Gerbosi's testimony that he had reports from Miceli; and in fact it
appears from the cross-examination of Miceli that his working policy was not to
report difficulties, and that he did not report the Wolkowski incident or any of
.the complaints of employees against Williams to anyone. Furthermore, it appears
from Halpin's testimony that any report he might have made to Gerbosi was in reply
to Gerbosi's question put to him about 3 or 4 months before the discharge. At that
time Gerbosi referred to some complaints from employees about what Williams had
said to them,5 and Halpin said that he had also had a few complaints of the same type.
D. Analysis and conclusions
It can be seen from the foregoing recital of the operative facts that the case
presented by the General Counsel in support of his position that the discharge of
Williams was discriminatory rests essentially on the theory that the Respondent knew
of Williams' renewal of union activity, that the discharge occurred shortly after Re-
spondent's acquiring knowledge in this area, that the Respondent's action is not other-
wise logically accounted for, and that in effect the Respondent admitted its guilt by
Deluca's nod of assent to Williams' accusation .6
The Respondent's defense essentially is that ithad no knowledge of Williams' union
activity, and discharged him for good and sufficient cause. The Respondent also
points to the fact that other employees known to be outspoken advocates of the Union
at the time of the 1959 election were not discharged and, in fact, one of them was
promoted.?
There is no doubt on the record herein that Respondent knew of Williams' union
activity in September 1961. Halpin, whose candid demeanor was impressive, testified
to general knowledge within the plant that Williams was active for the Union. George
Salerno, also credible in my judgment, also referred to rumors and hearsay concern-
ing Williams' interest in the Union. Finally, I credit Williams in his account of the
postdischarge admission by Deluca that the discharge was for union activity.8
The Respondent's evidence to show that the discharge was in fact for cause is not
convincing. Gerbosi, who plainly appears to have been the prime mover in the
discharge, does not in fact appear to have been motivated by reports from Miceli and
Halpin and the dough-trough incident in fact is seen to be so completely unsubstan-
tial that Gerbosi said nothing to Williams at the time and did not even note the
identity of the other employee involved.
The cumulative effect of the General Counsel's evidence clearly suffices to make
a strong case in favor of his position. The defense is unconvincing particularly when
consideration is given to the timing of the discharge viewed in relation to the long-
standing toleration of Williams' shortcomings. See Sheidow Bronze Corporation,
135 NLRB 621.
`The evidence includes a Deputy's Determination under the Illinois unemployment
compensation program to the effect that Williams' discharge was for reasons other than
misconduct connected with his work, without a "specific act of industrial misconduct
having been established " This evidence was received in accordance with Cadillac Marine
t Boat Company , 115 NLRB 107. Reliance on it is not necessary to decision herein and
I do not rely on it.
6 Since Williams worked the night shift Gerbosi would not normally be in a position to
bear complaints of Williams ' fellow workers since It appears that Gerbosi came to the
plant only once or twice a week, usually about 10 a in
6 Deluca's knowledge was not that of a minor supervisor but that of the operational
head of the plant who, under plant practice, had to approve a Gerbosi recommendation
for it to become effective.
° The General Counsel offered testimony of Albertine ("Blondie") Fracchia, an ex-
employee that (1) George Salerno admitted discriminating against her in 1960 for union
activity, and (2 ) pointed out Williams to Gerbosi on the night of the counting of ballots
in the 1959 election as "another one" who's "got to go ." Fracchla, a union steward since
1960 whose present job was obtained for her by the Union, appeared to be a truculent
partisan. I do not rely on her testimony
8I attach no significance to General Counsel's evidence indicating extensive opposition
by Respondent to the Union in the 1959 campaign nor to Respondent's evidence that
Salerno proclaimed a "let bygones be bygones " policy thereafter.
SALERNO-MEGOWEN BISCUIT COMPANY 837
I find and conclude that the discharge of Williams was in fact motivated by and
in reprisal for his union solicitation and an unfair labor practice under Section
.8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
In view of my finding that the Respondent engaged in an unfair labor practice by
its discharge of Elmer Williams, I will recommend that it cease and desist from
such type of activity and from in any other manner interfering with, restraining,
and coercing employees in the exercise of the rights guaranteed by Section 7 of
the Act. I shall also recommend that, as affirmative action necessary and appro-
priate to effectuate the policies of the Act, Respondent be required to reinstate
Elmer Williams to his former or a substantially equivalent position without preju-
dice to his seniority or other rights and privileges, and make him whole for any
loss of pay suffered by reason of his discharge by payment to him of a sum of
money equal to that which he would normally have earned from the date of the
discrimination against him to the date of reinstatement less net earnings during the
the intervening period. The backpay provided herein shall be computed in accord-
ance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289.9 I
-shall recommend the posting of an appropriate notice.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Elmer Williams on September 22, 1961, thus discriminating
in regard to his tenure of employment because he engaged in activities for the pur-
pose of self-organization, collective bargaining, or mutual aid and protection, Re-
spondent has engaged in unfair labor practices within the meaning of Section
8 (a) (3) and (I) of the Act
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the Act, it is recommended that the Respondent, Salerno-
Megowen Biscuit Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or any other labor organization of
its employees by discharging employees or discriminating in any other manner
in regard to their hire, tenure, or any term or condition of employment except as
such action may be authorized in accordance with Section 8(a)(3) of the Act,
as amended.
(b) By discriminating or in any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization to form, join,
or assist the Union herein, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protec-
tion as guaranteed in Section 7 of the Act, and to refrain from any and all such
activities, except to the extent that their rights may be affected by an agreement
authorized by Section 8(a)(3) of the Act, as amended.
O The General Counsel has urged that interest at the rate of 6 percent per annum be
added to backpay. There do not appear to be present circumstances warranting this addi-
tion to the usual remedial relief. See Earl I. Sifer8, an individual doing business as
Sifers ,Candy Company, 92 NLRB 1220.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is necessary and appropriate to
effectuate the policies of the Act:
(a) Offer Elmer G. Williams immediate and full reinstatement to his former
or a substantially equivalent position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of earnings suffered by
reason of the discrimination against him in the manner set forth in the section
above entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records or reports necessary
to determine the amount of backpay due under the terms of this Recommended
Order.
,(c) Post at its premises at 7777 North Caldwell Avenue, Chicago, Illinois, copies
of the notice attached hereto marked "Appendix." 10 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall, after being
signed by a representative of the Respondent, be posted by Respondent immediately
upon receipt thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notice is not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Thirteenth Region, in writing, within
20 days from the date of receipt of this Intermediate Report and Recommended
Order, what steps it has taken to comply herewith.ti
10 In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a,
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
11 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Local #1, American Bakery &
Confectionery Workers' International Union, AFL-CIO, by discharging or
otherwise discriminating against employees for activities on behalf of the
above-named Union.
WE WILL offer Elmer G. Williams immediate and full reinstatement to his
former or an equivalent position, without prejudice to his rights, and make
him whole for any loss of earnings suffered as the result of our discrimination
against him.
WE WILL NOT in any manner interfere with, restrain, or coerce employees in
the exercise of their rights guaranteed under the National Labor Relations
Act. All our employees are free to become or remain or refrain from be-
coming or remaining members of the above-named or any other union, except
insofar as their rights may be affected by an agreement entered into in accord-
ance with the provisions of Section 8(a) (3) of the Act.
SALERNO-MEGOWEN BISCUIT COMPANY,
Employer .
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone Number, Central
6-9660, if they have any question concerning this notice or compliance with its.
provisions.