Stanper Food Corp.

National Labor Relations Board - Board Decisions

Aug 12, 1991

304 N.L.R.B. 18 (N.L.R.B. 1991)

18
304 NLRB No. 12
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent, in its cover letter accompanying its exceptions, has re-
quested oral argument. The request is denied as the record, exceptions, and
briefs adequately present the issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
1 Unless indicated otherwise, all dates referred to herein relate to the year
1989.
Stanper Food Corporation and United Food and
Commercial Workers, Local 342–50, AFL–
CIO. Case 29–CA–14350
August 12, 1991
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On March 8, 1991, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record1 in light of the exceptions and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order, as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Stanper Food Corporation, Mineola, New York, its of-
ficers agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Insert the following as paragraph 1(b).
‘‘(b) Harassing employees, discharging them, or oth-
erwise discriminating against them because of their ac-
tivities on behalf of the Union.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten our employees with dis-
charge or other reprisals in retaliation for their joining
or supporting United Food and Commercial Workers,
Local 342–50, AFL–CIO or any other labor organiza-
tion.
WE WILL NOT harass, discharge, or otherwise dis-
criminate against our employees, because of their ac-
tivities on behalf of the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL make whole Gary Cornelius, Jeffrey
Guzzo, John Tranquada, Vincent DeHart, and Edward
Michaels, with interest, for any loss of earnings they
may have suffered as a result of our discrimination
against them, and we will offer them full and imme-
diate reinstatement to their former jobs, or if those po-
sitions no longer exist, to substantially equivalent posi-
tions without prejudice to their seniority or other rights
and privileges.
WE WILL expunge from our files any reference to
the termination of Cornelius, Guzzo, Tranquada,
DeHart, and Michaels, and will notify them, in writing,
that this has been done and that evidence of this un-
lawful action will not be used as a basis for future per-
sonal action against them.
STANPER FOOD CORPORATION
James P. Kearns, Esq. and Kevin R. Kitchen, Esq., for the
General Counsel.
Abraham Borenstein, Esq. (Bloom, Borenstein & Hess), for
the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in Brooklyn, New York, on August 22 and
November 8, 1990. The complaint and notice of hearing
herein, which issued on December 1, 1989,1 was based on
an unfair labor practice charge filed on September 22 by
United Food and Commercial Workers Union, Local 342–50,
AFL–CIO (the Union). The complaint alleges numerous vio-
lations by Stanper Food Corp. (Respondent), by Ivan Persky,
its president, and Larry Bergen and James McGowan, its ad-
mitted supervisors. It is alleged that on about September 13,
Respondent harassed employee Vincent DeHart by subjecting
him to closer supervision and unmerited criticism of his job
performance; on about September 18 and 19, by Persky, indi-
cated to employees that seeking representation by the Union
was a futile act; and on about September 18, by McGowan,
threatened its employees with discharge or other unspecified
reprisals if they joined, supported or assisted the Union. The
principal allegation is that on September 18 Respondent
locked out its employees and later that same morning, dis-
19STANPER FOOD CORP.
2 The briefs in this matter were due on December 13, 1990. By request
dated December 13, 1990, counsel for Respondent requested additional time
in which to file its brief; counsel for General Counsel opposed the request.
On that date I informed the office of Respondent’s counsel that its request was
denied as untimely. This request was also denied by letter dated December 18,
1990. As Respondent’s brief was received on December 17, 1990, it was nei-
ther read nor considered.
charged the following of its employees: John Tranquada, Ed-
ward Michaels, Gary Cornelius, Jeffrey Guzzo, and DeHart,
because of their support for, and activities on behalf of, the
Union. These actions are alleged to violate Section 8(a)(1)
and (3) of the Act.
On the entire record, including the brief received from
counsel for the General Counsel,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it is a New York cor-
poration with its principal office and place of business lo-
cated in Mineola, New York (the facility), where it is en-
gaged in the operation of a wholesale food processing and
distribution center and warehouse, providing meats and other
food products to grocery chains, restaurants, and other retail
outlets in the New York metropolitan area. During the past
year, in the course and conduct of these business operations,
Respondent purchased and received at the facility meat and
other food products, goods, and materials valued in excess of
$50,000 directly from points outside the State of New York.
Respondent admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION STATUS
The evidence establishes that the Union represents em-
ployees for collective-bargaining purposes and has numerous
collective-bargaining agreements with employers in this re-
gard. In addition, employees participate in the Union’s affairs
as shop stewards and through its committees. I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
III. THE FACTS
As stated above, Respondent operates a wholesale meat
and food facility. The employees involved herein are ware-
house employees or stock pickers. They pick up a written
order, go throughout the facility (including the refrigerator
and freezer) filling the order until it is complete and then go
to the next order. Because Respondent’s customers are pri-
marily ‘‘middlemen’’ who supply food products to stores and
restaurants, they work early hours: 4:30 a.m. to 1 p.m. Dur-
ing the period in question Respondent employed seven ware-
house employees—the five alleged discriminatees and two
others who, apparently, did not sign cards for the Union and
are not involved. The only others who are involved are
Persky, the boss, and Bergen and McGowan, admitted super-
visors and agents.
Prior to the events Respondent’s warehouse employees
were unrepresented. Cornelius testified that in August, while
he was working outside of the facility, he was approached
by Peter Laureano, organizer representative for the Union,
who asked him if the warehouse employees were represented
by a union and he said that they were not. Laureano gave
Cornelius his business card and said that if they were inter-
ested in a union he should call him. On about August 22,
Cornelius spoke to the other employees about the Union usu-
ally at lunch at a nearby location owned by Respondent. The
employees named here said that they were interested; the
other two said that they were not interested. Cornelius then
called Laureano and arranged to have a meeting at the
Union’s office on August 26. Cornelius, DeHart, and
Tranquada attended this meeting and signed authorization
cards for the Union. Michael’s card is dated August 28;
Guzzo’s card is dated September 6. Cornelius testified that
about a week after he signed his union card, at about 2:00
he asked Persky if he could go to lunch, Persky said: ‘‘Oh
yeah, we’ve got to stop everything . . . this is a union shop,
we’ve got to have a coffee break.’’ Persky testified that he
never made this statement.
The initial allegation only involves DeHart, who had been
employed by Respondent since September 1988, and alleg-
edly occurred on about September 13. He initially testified
that early that day Persky told him that he was working too
slow, although he testified that he was working at his regular
rate. DeHart told Persky that he would work faster. At that
point, Bergen approached him and told him that he was
working too slow and that he would not mess with him that
day. DeHart said that he was working at his regular pace and
Bergen said that he was not in for his ‘‘shit’’ that day.
DeHart felt that he was being backed into a corner and left
the facility for the day. Later that day he asked Bergen if he
could return to work and Bergen told him to report the next
morning, which he did. When he was questioned about this
incident at the second day of hearing by counsel for Re-
spondent DeHart testified that it was only Bergen, not Persky
as well, who told him that he was working too slow. How-
ever, his affidavit states that Persky did warn him that day
about working too slowly. Persky testified that DeHart’s
leaving on that day was the result of a ‘‘misunderstanding’’;
DeHart was outside taking an order from a customer and got
into an argument with the customer. Bergen intervened and
DeHart threw his order sheet down and left for the day. Ber-
gen testified that on the day in question DeHart got into a
shouting match with a customer and pushed the customer.
Bergen got between them before it go any worse. Bergen
told DeHart that he could not do that; DeHart walked out.
Later that day he called and asked if he could return to work
the following day. Bergen said that he could, and he did.
As stated above, the warehouse employees generally begin
work at 4:30 a.m. Admittedly, on September 18, at about 5
a.m. Respondent told the employees to leave the warehouse
and locked the gates to the facility for about 15 minutes to
a one-half hour, at which time the employees returned to
work. Apparently, they were not docked any pay for the time
they were out. Cornelius testified that when McGowan was
reopening the gates he asked him what was going on and
McGowan told him: ‘‘If I were you guys I would start look-
ing in the want ads.’’ DeHart testified that he asked
McGowan why the gate was being closed and he said that
Persky had told him to lock the gate and they were not to
return until he reopened the gate. He testified that prior to
that incident, the only occasion that Respondent would lock
the gate was when all the employees left together for lunch.
Guzzo testified that this was the first time the gates were
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
locked when he reported for work; he had been employed by
Respondent since about May.
Persky had been away the prior weekend (September 18
was a Monday) and had not been at work on Friday. He and
Bergen testified that on the morning of September 18, when
he arrived at the facility, he went to the upstairs office (as
compared to the downstairs office with the windows through
which the warehouse employees take their orders, which re-
lates to Respondent’s defense herein and will be discussed
more fully below) where Bergen greeted him and informed
him of what occurred on Friday in his absence. Persky testi-
fied that he wanted to have McGowan present during the
conversation, so he told McGowan to come to the upstairs
office, but to first have the employees leave the facility and
lock the gate. He did this because there were no other super-
visors downstairs and ‘‘we can’t leave everybody by them-
selves downstairs.’’ In an affidavit that Persky gave to the
Board he stated: ‘‘I am not aware of my supervisors locking
any warehouse workers out of the work area on September
18, 1989.’’ During this discussion in the upstairs office be-
tween Persky, McGowan and Bergen (after the gates had
been locked) Bergen told Persky that ‘‘there was some talk
of a union going to take place or I can’t recollect what the
exact words were.’’ Persky testified that he said that he real-
ly did not care. Shortly thereafter he sent McGowan down-
stairs to let the employees back into the facility. He testified
that the gates had previously been locked on ‘‘numerous oc-
casions,’’ whenever there was no supervisor present.
Bergen (who has been employed by Respondent for 9
years) testified that the gates are closed two or three times
a day; if either he, McGowan or Persky is not present to be
at the front door, they close the gates, ‘‘two or three times
a day, at least.’’ He testified: ‘‘It’s constantly opened and
closed.’’ He meets with Persky every morning; when Persky
has been absent from the facility, such as the situation here-
in, the meetings are even more important. In the past, they
have had these meetings in both the upstairs and downstairs
offices. The downstairs office is ‘‘right in front of the door.
We can see everything that’s going on,’’ so it is not nec-
essary to lock the gates. If they meet in the upstairs office
they cannot see the employees so they have to lock the gates.
As to what determines whether they meet in the upstairs or
downstairs office, he testified: ‘‘It depends when I catch his
attention.’’ On the morning in question, Bergen was taking
messages off the recorder, which was located in the upstairs
office, when Persky came in so they remained there for the
meeting and told McGowan to lock the gates and join them.
As to why they did not meet in the downstairs office instead,
he testified: ‘‘I mean leave the room, lock the office, go
downstairs. It just seemed like an awful lot of stuff to do.
It was just a lot easier to say, come on guys. Step outside
for a couple of minutes and Jimmy run up the stairs and it
would be a short brief thing.’’ He told Persky of business
developments on Friday and that on Friday somebody told
him that the employees were speaking to someone from the
Union; he testified that Persky said: ‘‘I don’t really give a
shit.’’
The next allegation refers to action taken against DeHart
later that morning. Both as to this allegation, and the allega-
tion that follows regarding the termination of the other four
employees Respondent’s principal defense is that the em-
ployees were sent home for the day because they were look-
ing through the office window in order to annoy Persky. The
downstairs office has a desk at which Persky and an office
employee sit. In front of this desk is a sliding glass window.
When the employees are ready to pick an order, they slide
the window open, take the order, close the window, and pick
the order. Apparently, the window is also Persky’s means of
seeing what is happening in the warehouse. Persky and Ber-
gen testified that the employees are told not to look in the
window at Persky and, on September 18, they all did so in
order to annoy him and that is why they were sent home for
the day.
DeHart testified that about 15 minutes after the gates were
reopened, Persky told him that he did not like his attitude
and he did not like the way he looked at him and to stop
looking at him; ‘‘he just started yelling at me and I just
walked off.’’ About an hour later, he took an order from the
window and started to fill it when he noticed that it was a
two-page order and he only had the first page. He went back
to the window to get the second page of the order and
Persky slammed the window closed and told DeHart to go
outside. When they got outside, Persky said: ‘‘I don’t like
your looks; I don’t like your attitude. You’re fired. Go
home.’’ DeHart said that he had to go upstairs to get his per-
sonal belongings. Persky would not allow him back into the
building and sent Bergen to get DeHart’s belongings. He tes-
tified that he did not call the next day to ask if he could re-
turn: ‘‘I was told I was fired so why should I go back and
ask for my job back.’’ DeHart testified that Persky never
warned him about looking in the window and neither Persky,
nor the supervisors, had previously warned him about his at-
titude.
Persky testified that at about 6 a.m. that day Bergen told
him that DeHart was not working to his usual ability and he
had given him a warning and told him to work faster. About
a half hour later DeHart began looking through the office
window where he was sitting. Persky told DeHart to ‘‘stop
kidding around or whatever he was doing . . . and get back
to his normal working procedures.’’ DeHart said he would
and Persky returned to his office. He testified:
He continued to look at me and at that point when he
continued to stare at me on a constant basis while he
was preparing his orders, I went out and I told Vinnie
that’s it for the day, you can’t work anymore because
I can’t work with someone who’s on an eye to eye
basis in that small office. I feel like I’m going to be
threatened.
Persky testified that he did not fire DeHart; he told him to
go home for the day, which is the usual punishment for look-
ing in the office window, and he thought that DeHart would
return the next day to work. He did return the next day, but
like the other employees sent home that day (except Mi-
chaels) they returned the next day to picket the facility.
Bergen testified that at about 6 a.m. that day, while he was
about 20 feet from DeHart, in the area across from the of-
fice, he observed that while DeHart was pulling an order, he
was making ‘‘eye contact’’ with Persky in the office. Both
Bergen and McGowan told him to stop it and return to work.
DeHart went back to work, but seemed to be intentionally
making eye contact ‘‘and just being a nuisance.’’ Persky
yelled through the window for DeHart to get back to work.
21STANPER FOOD CORP.
A few minutes later the same situation occurred, and Persky
came out of the office and said: ‘‘Listen Vinnie, if you’re
going to do what you’re doing, get back to work.’’ DeHart
threw up his hands and said: ‘‘I’ve had enough of this shit’’
and left the facility.
The principal allegation here is that shortly after DeHart
was sent home Respondent discharged Tranquada, Michaels,
Cornelius, and Guzzo, also because of their activities on be-
half of the Union. Cornelius testified that at about 10:15 that
morning he, Tranquada, Michaels and Guzzo were told by
(he believes) McGowan to go outside. Persky, Bergen, and
McGowan were there as well. Persky pointed to each of the
employees and said to each: ‘‘Go home.’’ Cornelius asked
why, and Persky said that there was no work. Cornelius
asked: ‘‘What about tomorrow?’’ Persky said: ‘‘We’ll see.’’
Persky then said: ‘‘Go down the block. Your buddy’s wait-
ing for the vote.’’ The work week at the facility is Monday
through Friday. Cornelius testified that prior to the DeHart
situation earlier that morning he had never seen an employee
at the facility being told to go home. He also was not aware
of a policy at the facility that when you’re told to go home
one day you are supposed to report for work the next day.
Like DeHart, Guzzo, and Tranquada he picketed the facility
the next day.
Tranquada testified that while he was doing orders with
Cornelius (‘‘There was a lot of tickets to do.’’) McGowan
approached them and said: ‘‘Go home. There’s no work
today.’’ As he and the other three individuals were walking
out of the facility Persky pointed to each of them and said:
‘‘Go home. No work.’’ Cornelius asked Persky if there
would be work on the following day and he shrugged his
shoulders and raised his hands like he did not know. As they
were walking away, Persky said: ‘‘Say hello to the union
guy and don’t forget to vote yes.’’ He testified that he knew
of no practice at the facility that employees who were dis-
ciplined and sent home were to return to work the next day.
He also testified that during his employment at Respondent
(only 3 months) he was never told that there was a rule that
employees were not to look in the office window, although
Persky once came out of the office and told him not to look
in the window.
Guzzo testified that on that morning Persky pointed to him
and said ‘‘him’’ and McGowan took away his work papers
(he was picking orders at the time) and said: ‘‘Go home,
there’s no work today.’’ He also saw Persky point to
Tranquada, Cornelius, and Michaels and say ‘‘him.’’ Guzzo
and the three other employees then walked out of the facility
with Persky behind them; he heard Persky say: ‘‘Go see your
friend down the block now.’’ He asked McGowan what was
going on and McGowan told him to get in touch with him
later; he did not. He testified that he was not looking through
the office window that morning and that he had not been told
that morning not to look through the window. He also testi-
fied that Persky was upset for the entire morning. He knew
of no policy at the facility that if you are sent home for the
day you always return the following day.
Michaels testified that on that morning he and the other
three alleged discriminatees were told to go outside; when
they got outside (Bergen, McGowan, and Persky went with
them) Persky told them that there was no work and they
should go home, which they did. The other two warehouse
employees were not called outside and were not sent home.
That afternoon he called McGowan and asked if he could
have his job back (‘‘I was getting married and I needed this
job’’) and McGowan said that he would talk to Persky about
it. He returned to work the following day and worked almost
a year for Respondent; during this period he did not observe
any employees being sent home. He was not aware of any
practice at the facility where if you are sent home you return
to work the following day; he is also not aware of a ‘‘stand-
ing rule’’ at the facility that you are not to look into the of-
fice window, although he had been told by McGowan several
times not to look into the window.
Persky testified that on that morning the four alleged
discriminatees ‘‘came to the front window, looked into the
window with a smirk or a smile and walked back and did
their job.’’ He testified that ‘‘some were threatening. Some
were a smart smile type face. All different types of faces to
annoy me I guess.’’ After this happened once, Persky told
McGowan to explain to the men that they should get back
to work and ‘‘stop kidding around.’’ About 15 minutes later
three of the employees did it again—opened the window and
stared at Persky. After that, Persky left the office and told
the employees to ‘‘stop the nonsense’’; that what they were
doing was annoying and threatening, and he could not work
with someone who was constantly threatening him. When the
employees looked in the window for the third time he told
McGowan to send them home. McGowan took them outside
and told them to go home. He assumed that they would re-
turn to work the next day; only Michaels did. He testified
that he never told the employees: ‘‘Your buddies down the
block, go vote,’’ or words to that effect. In an affidavit that
Persky gave to the Board, he stated that after McGowan told
the employees to stop making faces at Persky the employees
walked out.
Bergen testified that on that morning, after DeHart left, the
other alleged discriminatees began doing the same thing that
he had done—staring at the office, trying to make eye con-
tact and ‘‘just trying to be annoying.’’ Both he and
McGowan told them to stop doing it; they asked him:
‘‘What’s the big deal?’’ He told them: ‘‘You’re bothering the
boss, cut it out.’’ This continued on a number of occasions
and ‘‘there was really no other alternative but to tell them
if you’re not going to do what we ask you to do, go home
for the day and we’ll give it another shot tomorrow.’’ About
an hour later, Michael’s wife called him and asked what was
going on. He told her that if Michaels reported for work the
following day he would be put to work; he did and he was.
He testified that during his employment with Respondent, on
three or four occasions employees have been sent home and
reported for work the following day.
Persky testified that Respondent’s rule prohibiting employ-
ees from standing in front of, and looking in, the office win-
dow is for his privacy, as well as his secretary and his cus-
tomers. The first violation results in a warning not to look
in the window. If it is repeated the employee is told to go
home for the day, with the expectation that he will return the
next day. As to whether employees have ever been sent
home for this, he testified: ‘‘On several occasions.’’ How-
ever he could name only one such employee, and that oc-
curred in June 1990.
Cornelius testified that during the week prior to their ter-
mination he saw about 12 job applicants waiting outside the
facility for an application. He asked one of these individuals
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
what he was doing there and he said that there was an ad
in the paper for warehouse work and he wanted to fill out
an application. DeHart also testified that he saw a lot of peo-
ple waiting to fill out job applications the week before he
was terminated. At one point when Bergen was busy he
asked DeHart to give someone a job application. DeHart
asked Bergen why he was accepting applications and Bergen
said that there were going to be some changes at the facility;
some people were going to be fired and others were going
to be hired to take their place. Tranquada and Guzzo also
testified that for the week prior to their termination, a lot of
individuals came to the facility asking for job applications;
the large number of applicants was unusual. General Counsel
moved into evidence a ‘‘help wanted’’ ad from the Septem-
ber 15 edition of Newsday; it [asked] for warehouse employ-
ees and the job description contained in the ad matches the
job the employees involved herein performed. Cornelius,
Guzzo, DeHart, and Tranquada each testified that they ob-
tained their employment at Respondent through a similar ad
in Newsday; Michaels was not asked how he obtained his
employment with Respondent.
Persky testified that Respondent regularly places ads in
newspapers for employees because of the high turnover of
employees and the September 15 ad in Newsday was a usual
such ad and was unconnected to the employees’ union activ-
ity. The record establishes that Respondent placed similar ads
in Newsday in January, February, March, April, June, and
the end of September, in addition to the September 15 ad
discussed above. In addition they placed a similar ad in the
Daily News in April.
IV. ANALYSIS
There are no difficult issues of law here, only difficult
credibility questions. If I believe General Counsel’s wit-
nesses, Respondent has violated the Act as alleged. If I be-
lieve Persky and Bergen the complaint should be dismissed
in its entirety. Initially, I found Bergen and General Coun-
sel’s witnesses to be, apparently, credible witnesses. A more
thorough examination of the record, however, convinces me
that General Counsel’s witnesses should be credited over
Persky and Bergen.
The ‘‘heart’’ of the complaint is the September 18 termi-
nation of Cornelius, DeHart, Guzzo, Tranquada, and Mi-
chaels. General Counsel alleges that it was caused by their
union activity over the prior 3 weeks. Respondent, while ad-
mitting that it learned of their union activity a few days ear-
lier, defends that they were sent home for the day for look-
ing into the office window and staring at Persky. While at
first glance this may seem to be a preposterous defense, my
observation of the witnesses and a close examination of their
testimony makes this defense seem entirely possible. The tes-
timony establishes that Persky had extreme mood swings
and, at times, appeared nervous; in the situation herein it is
entirely possible that the employees purposely attempted to
annoy him by looking through the office window and mak-
ing faces at him, knowing how he would react. However, the
overall record convinces me that this was not so. As stated
above I found General Counsel’s witnesses to be, generally,
very credible. The only exception was DeHart who, while
not incredible, was too certain of the facts to be as credible
as the other employees, who were more willing to admit an
occasional uncertainty; after all, the events had occurred a
year earlier. I was not impressed with Persky as a witness
and more important there were major conflicts between his
testimony and the affidavit he gave to the Board. There is
a substantial difference between the employees leaving after
McGowan told them to stop looking in the window (as he
stated in his affidavit) and his sending them home for look-
ing in the window (as he testified to).
There are other factors as well supporting the credibility
of General Counsel’s witnesses. The record establishes that
Respondent advertises in the newspapers for employees, prin-
cipally warehouse employees. General Counsel established
that on September 15 (3 days before the termination herein)
Respondent placed an ad in Newsday for warehouse employ-
ees. In an attempt to rebut this testimony, Respondent pre-
sented evidence of additional ads it placed seeking employ-
ees; however, although these ads appeared regularly in 1989
through June, there were no such ads between June and the
September 15 ad. Respondent also never specifically ex-
plained the need for the September 15 ad (other than the
general turnover defense) when it apparently had a full crew
on that date and even after it lost four of these employees
(it terminated the five and Michaels returned) it only hired
two employees to replace them. Additionally, I found Persky
and Bergen’s testimony regarding the 5 a.m. lockout totally
unconvincing. If they were concerned about security with all
supervisors at the meeting, they could have had the meeting
in the downstairs office, while watching the employees and
maintaining production. Instead, they had the meeting in the
upstairs office (for no satisfactory reason) and sent all the
employees outside for 15 to 30 minutes. Further, I also credit
the testimony of Cornelius, Guzzo, and Tranquada that after
Persky terminated them he made a statement to the effect of
‘‘Go see your friend down the block’’; this could relate only
to the Union. The only support for Respondent’s position is
that Michaels called Respondent later in the day on Septem-
ber 18 and got his job back. However none of the employ-
ees, even Michaels, testified to being aware of a policy at
the facility that if you are sent home one day you return the
next. In fact, Michaels testified that when he called Bergen
to ask if he could have his job back, Bergen had to speak
to Persky before telling him to come back. For all these rea-
sons I credit General Counsel’s witnesses over Persky and
Bergen.
Based on these findings it is clear that General Counsel
has sustained his burden under Wright Line, 251 NLRB
1083, and that Respondent has not satisfied its burden. The
lockout and subsequent discharge of Cornelius, Guzzo,
Tranquada, Michaels, and DeHart (who was terminated a lit-
tle earlier that morning) therefore violates Section 8(a)(1)
and (3) of the Act. On the basis of the September 15
Newsday ad (as discussed above), McGowan’s statement to
Cornelius that there were going to be some changes at the
facility with some people being fired and others hired, and
Persky’s statement to Cornelius about a week before their
termination that they had to stop everything and have coffee
because it was a union shop (which I credit), I find that Re-
spondent was aware of the employees’ union activity prior
to the September 13 incident with DeHart and that its harass-
ment of DeHart on that date violates Section 8(a)(1)(3) of the
Act under the Wright Line guidelines.
There remains for consideration the 8(a)(1) allegations; the
complaint alleges that on about September 18, Respondent,
23STANPER FOOD CORP.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
4 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
by McGowan, threatened its employees with discharge and
other unspecified reprisals, if they joined, supported, or as-
sisted the Union. Cornelius testified that when McGowan
opened the gates for the employees to return to work after
the lock out on the morning of September 18, he asked
McGowan what was going on and McGowan said: ‘‘If I
were you guys I would start looking in the want ads.’’ As
stated above, I found Cornelius to be a very credible witness;
McGowan did not testify. I therefore find that this statement
violates Section 8(a)(1) of the Act. The only remaining alle-
gation is that on September 18 and 19 Respondent, by
Persky, indicated to employees that seeking representation by
the Union through the Board processes was a futile act.
Counsel for General Counsel did not brief this final issue and
I am uncertain as to what it refers. Regardless, any finding
in regard to this issue would be cumulative and I therefore
recommend that this allegation be dismissed.
CONCLUSIONS OF LAW
1. Respondent Stanper Food Corp. is an employer engaged
in commerce within the meaning of Section 2(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. Respondent violated Section 8(a)(1) and (3) of the Act
by harassing employee Vincent DeHart on about September
13 because of his activities on behalf of, and support for, the
Union.
4. Respondent violated Section 8(a)(1) and (3) of the Act
by locking out, and subsequently terminating its employees
DeHart, Gary Cornelius, Jeffrey Guzzo, John Tranquada, and
Edward Michaels on September 18 because of their activities
on behalf of, and support for, the Union.
5. Respondent violated Section 8(a)(1) of the Act by
threatening its employees with discharge for joining or sup-
porting the Union.
6. Respondent did not violate the Act as further alleged in
the complaint.
REMEDY
Having found that Respondent has engaged in, and is en-
gaging in, certain unfair labor practices, I recommend that it
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. In this regard,
I shall recommend that Respondent offer Cornelius, Guzzo,
DeHart, and Tranquada reinstatement to their prior positions
of employment and to make them whole for any loss they
suffered by reason of their termination. If Michaels lost any
pay by reason of his 1-day termination, he shall also be
made whole. Persky testified that beginning in about June
1990 he ceased employing warehouse employees. At that
time be began using the services of an employment agency
to supply warehouse employees; he calls the agency with the
number of employees he needs the following day and they
appear at 4:30 a.m. the next morning. I leave for the supple-
mental proceeding what effect this change has on their rein-
statement rights and their backpay. Backpay shall be com-
puted in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), and with interest as prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987). See generally Isis
Plumbing Co., 138 NLRB 716 (1962).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Stanper Food Corp., Mineola, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to discharge its employees in retaliation
for joining or supporting the Union.
(b) Discharging or otherwise discriminating against its em-
ployees, because they joined or assisted the Union.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer immediate reinstatement to Cornelius, Guzzo,
DeHart, and Tranquada to their former positions of employ-
ment or, if those positions are no longer available, to sub-
stantially similar positions, without prejudice to their senior-
ity or other rights and privileges, and make them whole for
any loss they suffered as a result of the discrimination in the
manner set forth above in the remedy section of the decision.
Michaels is to be made whole in a similar manner if he lost
any wages due to the discrimination.
(b) Remove from its files any reference to the termination
of Cornelius, Guzzo, DeHart, Tranquada, and Michaels, and
notify them in writing that this has been done, and that this
evidence of the unlawful activity will not be used as a basis
for future actions against them.
(c) Preserve and, on 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 necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Mineola, New York facility copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized
representatve, shall be posted by Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed as
to the matter not specifically found.