Tasty Box Lunch Co., Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1969

175 N.L.R.B. 44 (N.L.R.B. 1969)

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tasty Box Lunch Co., Inc. and General Sales
Drivers & Allied Employees Union , Local 198, an
affiliate of International Brotherhood of
Teamsters, Chauffeurs , Warehousemen & Helpers
of America . Cases 12-CA-3996 (1-2-3),
12-CA-4061 (2-3-4), 12-CA-4122, and 12-RC-2943
March 25, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 26, 1968, Trial Examiner Marion
C. Ladwig issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent has not
engaged in certain other alleged unfair labor
practices and recommended dismissal of those
allegations of the complaint. He further found that
certain conduct by the Respondent interfered with
and affected the results of the election in Case
12-RC-2943 and recommended that the election be
set aside and that a new one be directed. Thereafter,
the Respondent and the General Counsel filed
exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner's Decision, the exceptions and supporting
briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner except as
modified herein.
THE REMEDY
Contrary to the Trial Examiner, we do not believe
that the unfair labor practices found herein are so
aggravated as to warrant unusual remedial action.
Therefore, we shall delete from the Trial Examiner's
Recommended Order the provisions requiring that
copies of the Notice be mailed to each employee,
that the Union be granted access to Respondent's
bulletin boards and to all places where notices to
employees are customarily posted, and that facilities
be made available to the Union for addressing
Respondent's employees for 1 hour on company
time.' Also, we will not adopt the Trial Examiner's
finding that Respondent must offer all the
employees discriminatorily discharged simultaneous
reinstatement regardless of any previous offers of
reinstatement While Respondent's answer alleges
that offers of reinstatement were made, the record is
barren of any evidence concerning these offers.
Therefore, we shall issue the usual backpay and
reinstatement order, leaving for the compliance
stage any determination of the effect of any previous
offers of reinstatement on the right to reinstatement
and the tolling of backpay liability. Accordingly, the
Respondent shall be ordered to reinstate employees;
Thomas J. Byrne, Henry C. Waters, Stephen V
Urbancsik, Harold W. Gaun, Edward A.
McDonald, Edward Brickman, and John B.
Wallace, to their former or equivalent positions, and
to make them whole for any loss of earnings they
may have suffered because of the illegal
discrimination against them in their employment.
Backpay shall be computed in accordance with the
formulas and methods prescribed by the Board in F.
W. Woolworth Company, 90 NLRB 289, and the
assessment of 6 percent interest per annum shall be
computed in the manner prescribed by the Board in
Isis Plumbing & Heating Co., 138 NLRB 716. In
view of the nature of the unfair labor practices
found herein, the commission of similar and other
unfair labor practices reasonably may be
anticipated. The Respondent will, therefore, be
further ordered to cease and desist from "in any
manner" infringing upon the rights guaranteed to its
employees by Section 7 of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Tasty Box Lunch Co., Inc., Opa Locka, Florida, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from
(a) Discharging any employee because of
membership in or activity on behalf of General
Sales Drivers & Allied Employees Union, Local
198, an affiliate of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, or any other labor organization.
(b) Threatening to discharge an employee because
of union activity.
(c) Threatening to close its doors if the employees
vote for union representation.
(d) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Thomas J. Byrne, Henry C. Waters,
Stephen V. Urbancsik, Harold W. Gaun, Edward A.
McDonald, Edward Brickman, and John B.
'There is nothing in the record which would indicate that the Union
expenenced any difficulty communicating with the Respondent's
employees
175 NLRB No. 7
TASTY BOX LUNCH CO., INC. 45
Wallace, full reinstatement to their former or
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole, as provided in the portion of this
Decision entitled "The Remedy."
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) 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 records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its plant at Opa Locka, Florida,
copies, in English and Spanish, of the notice
attached to the Trial Examiner's Decision and
marked "Appendix."2 Copies of said notice on
forms provided by the Regional Director for Region
12, shall, after being duly signed by an authorized
representative of Respondent Company, be posted
immediately upon receipt thereof and maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices are
customarily posted. Respondent shall take
reasonable steps to insure that said Notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 12, in
writing, within 10 days from the date of this
Decision, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges unfair labor practices
not specifically found herein.
IT IS HEREBY FURTHER ORDERED that the election
held on December 22, 1967, among the
Respondent's employees in the appropriate unit, be,
and it hereby is, set aside.
[Direction of Second Election' omitted from
publication.]
'The words "This Notice is Posted by Order" shall be substituted for the
words "Pursuant to the Recommended Order of a Trial Examiner ." In the
event that this Order is enforced by a decree of the United States Court of
Appeals, there shall be added after the words "an agency of the United
States Government" the words "as Enforced by the United States Court of
Appeals."
'An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 12 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director. The Regional Director shall
make the list available to all parties to the election . No extension of time
to file this list shall be granted by the Regional Director except in
extraordinary circumstances . Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed. Excelsior Underwear Inc.. 156 NLRB 1236.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Trial Examiner: These cases
involve unfair labor practice charges (filed, and amended,
on October 25 and 27, November 3, and December 21,
1967,' and on January 18 and 22 and February 14, 1968),
and objections to conduct affecting the results of an
election (which was conducted on December 22, pursuant
to a petition filed on October 25, and a Decision and
Direction of Election issued December 1). The cases were
tried at Miami, Florida, on May 6-10, 1968, pursuant to
an Order Consolidating Cases and Amended Consolidated
Complaint issued April 11, 1968.
The primary issues are whether the Respondent, Tasty
Box Lunch Co., Inc., herein called the Company, (a)
during the first 10 days of the union organizational
campaign, discriminatorily discharged five employees,
including three of four leading organizers , and thereafter
discriminatorily discharged three additional employees,
including the fourth leading organizer a week before the
election, (b) made illegal threats and promises to
employees during the campaign, and (c) unlawfully refused
to bargain with General Sales Drivers & Allied Employees
Union, Local 198, herein called the Union, in violation of
Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended; and whether the election
should be set aside.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the brief filed by the Company (no brief having been filed
by the General Counsel), I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a Florida corporation, operates a food
preparation plant at Opa Locka, Florida, and is engaged
in a mobile industrial catering service in the Miami area.
Its gross volume of business exceeds $500,000 annually,
and it annually receives goods and materials valued in
excess of $20,000 directly from outside the State. I find
that the Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that the
Union is a labor organization within the meaning of the
Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Threats and Promises
On Thursday, October 19, drivers Henry C. Waters and
Edward Brickman telephoned Union Business Manager
Eli Schutzer about organizing the Company's
approximately 48 drivers (who drive industrial catering, or
"lunch wagon" trucks). The next afternoon, after work,
Schutzer met with several of the drivers in the pool room
at Doc' s Bar , about one and one-half blocks from the
plant (before the Company moved to its present location
on October 28). In partial view at the time was Route
Supervisor Arthur Leonard, who was sitting at the bar.
After the meeting , when driver Brickman approached the
bar from the back room, Leonard asked him, "You have
got something going on back there?" Brickman answered,
"Yeah, we are trying to get a union in ," and Leonard
commented, "I figured as much."
All dates, unless otherwise indicated, refer to the year 1967.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next morning, Saturday, October 21, according to
the testimony of driver Thomas J Byrne, Route
Supervisors Thomas D. Blakney and Jerry Johnston
approached him about 6:30 o'clock as he was loading his
truck. Blakney said, "We know what is going on. Ed
Parker [the route superintendent or "field supervisor"] has
already got a union authorization card." (Route
Superintendent Edward J Parker, who came to work that
morning about 5:45 o'clock, admitted that one driver gave
him a card, and that another driver told him about the
union meeting at Doc's Bar) Supervisors Blakney and
Johnston both denied that anything was said about what
was going on, and denied that Parker was mentioned in
the conversation. Driver Byrne and Superintendent Parker
appeared in general to be truthful witnesses, whereas
Supervisors Blakney and Johnston, as discussed hereafter,
did not. I credit Byrne's account of the incident.
Later that day, Saturday, when driver Byrne was
drinking at a bar with Supervisors Johnston and Blakney,
Johnston (in Byrne's words) "told me that [Company
President] Walter Fujarek could close up Tasty Box
Lunch and never feel it, never worry about it, but he
wouldn't have the Union running it." (I credit this
testimony, and discredit Johnston's and Blakney's
denials ) In its brief, the Company contends that if the
statement was made, it was mere "drinking talk" between
"bar-hopping, drinking buddies," that Johnston and
Blakney were the lowest level supervisors, that they had
been instructed in a sales meeting that Saturday afternoon
"not to get involved," that the statement was "obviously
without any authority," and that the words did not
"amount to a threat that Walter Fujarek would close the
plant." To the contrary, I find that Route Supervisor
Johnston's statement to Byrne, in the context of the
repeated references to company knowledge of the union
activity, was at least an implied threat of a reprisal. I
further find that despite the setting of the conversation,
the threat was made by an immediate supervisor of the
drivers, and was coercive, in violation of Section 8(a)(1) of
the Act.
The second alleged threat was by Supervisor Blakney
that same afternoon, when he went with drivers Byrne and
Charles T. Goode to another bar to look at a car being
offered for sale there by the barmaid, Vonice Gillespie
Clark. According to Mrs. Clark (who impressed me as a
truthful witness), she overheard Blakney and "Tommy"
Byrne "talking about Tommy trying to organize a union
at Tasty," when Blakney asked Byrne, "You know who's
going to get fired over this whole thing, don't you?" Byrne
said, "Yeah, me," and Blakney responded, "Yes, you are
right." (i discredit the denials by Blakney and Goode that
the Union was even mentioned. Both appeared on the
stand to be attempting to give testimony favorable to the
Company, rather than reporting what actually happened:)
I find that this threat violated Section 8(a)(I) of the Act,
contrary to the Company's contention that "If such
statements were made, they were predictions from a
lowest level supervisor who had no authority to put them
into effect, and constituted drinking conversation between
friends." In this connection, I note that Byrne was one of
the three union organizers discharged the next workday,
Monday, October 23.
Concerning the third alleged incident, of Route
Supervisor Johnston going with driver Byrne to the
hospital on November 8 to see a patient, driver Brickman,
and attempting to persuade Brickman to drop his support
of the Union, I find it unnecessary to rule on the alleged
coercive effect of this conversation, which is considered
below in connection with Byrne's discharge on October 23,
and Brickman's subsequent discharge on December 16
However, in discrediting Supervisor Johnston's testimony
that the Union was not even mentioned at the hospital, I
note that Johnston appeared on the stand to be willing to
testify to anything which might help the Company's cause
At one point, he categorically denied that Route
Superintendent Parker said anything about the Union at
the October 21 sales meeting. Later he admitted that this
matter was discussed. At another point, he categorically
denied that there had been a drinking problem among the
drivers. Later, after being informed that Superintendent
Parker had testified earlier that "there has been a
drinking problem among the drivers," he first denied that
this would cause him to change his testimony, then
changed his testimony and unequivocally admitted there
had been such a problem. Because of such conflicts, and
his demeanor while testifying, I consider his testimony
unreliable.
In support of the next allegation, that General Manager
Ray O'Neidas promised an employee a promotion for
refraining from engaging in union activities, driver Roger
Perry testified that soon after he returned from his
Sunday route on November 26, after stopping at different
bars on the way and drinking "8 or 10" beers, O'Neidas
attempted to persuade him to sign a statement that he had
been harassed on his route and told him, "Well, Jerry,
dust bear with us on this thing. After all, you are in line
for supervision within the next 2 months. Let me see what
I can do. If you will just bear with us another couple of
months." Even assuming that this testimony is accurate, I
agree with the Company's bnef that the statement was not
"tied in" to any union activity on Perry's part. I therefore
shall recommend that this allegation in the complaint be
dismissed.
B. Alleged Discriminatory Discharges
1. Three discharges on October 23
Over the weekend and on Monday morning, October
23, drivers Thomas J Byrne, Stephen V Urbancsik,
Henry C. Waters, and Edward Brickman were the most
active among the employees soliciting fellow drivers to
sign union authorization cards at or near the plant, and at
Doe's Bar where many of the drivers went to drink after
working hours. Route Supervisors Blakney and Johnston
were present at Doe's Bar that Saturday afternoon, sitting
near a number of the drivers, when (in driver Waters'
words), "We were getting together all of the boys, as
many as we could, to get the cards passed out as fast as
we possibly could." Blakney turned to Waters and said,
"Boys, I have known you a long time and I know you
have got something to do with this union. I hear they are
trying to unionize and I want to be sure of it." Waters
replied he was there to enjoy himself, and walked to the
other end of the bar. (Blakney admitted being present, but
denied that the drivers were talking about the Union.
Johnston denied ever observing employees soliciting union
cards. I credit Waters' version of what transpired, and
discredit the denials of Blakney and Johnston. I also
discredit Johnston's testimony that with the exception of
the October 21 sales meeting, he never discussed the
Union with any supervisor or member of management.) It
was following this discussion that, according to Byrne's
credited testimony, Supervisor Blakney went with drivers
Byrne and Goode to another bar, and argued with Byrne
against the Union.
TASTY BOX LUNCH CO., INC. 47
On cross-examination, Route Superintendent Parker
admitted that he saw Brickman soliciting a driver to sign
a card, that Byrne "was recognized as one of them," and
that he thought Urbancsik and Waters were union
adherents soon after the union cards "came in the
picture" (on Saturday, October 21). When asked if any of
the supervisors made reports to him about the union
activities, he answered, "There was light conversation
about it "
As discussed below, three of these union organizers
(Byrne, Urbancsik, and Waters) were discharged on
Monday, October 23. The remaining one, Brickman, was
discharged on December 16, 6 days before the election.
a. Discharge of Byrne
(1) State reasons for discharge
At the time of his discharge, Thomas J. Byrne had been
employed as a salesman driver for about a year. As
discussed above, 2 days earlier (on Saturday, October 21),
he had been threatened with discharge by Route
Supervisor Blakney for his involvement in the union
organizing campaign.
About noon on Monday, October 23, Byrne (according
to his testimony) stopped at his regular lunch stop, the
Palm Patio Lounge, where he served from his truck "a
few people that waited for me to bring them sandwiches
and soup," as well as the barmaid and the bar owner. On
this day he had called in, advised the plant to cancel his
order for more ice, and reported that he did not feel well,
that he could not make the rest of the day, and that he
was going in after his next stop. Soon thereafter, Route
Supervisors Blakney and Johnston arrived and told him
"We want you." He asked why and they said, "For
drinking." Byrne said, "Well, this is one day you guys
made a mistake. There's nothing in front of me" They
stated they wanted him and the truck to go in. Blakney
drove the truck and on the way told Byrne, "Well, now, I
told you what would happen and now it has happened.
Are you happy?" After Byrne was checked in, Johnston
told him, "That's all."
Byrne further testified that although he had not had a
drink on the day of his discharge, he frequently did drink
on his route, and route supervisors (including Blakney and
Johnston) had taken drinks with him during working
hours. (Mrs. Clark, the barmaid at the Palm Patio
Lounge, corroborated this testimony, testifying that she
had seen both Blakney and Johnston drinking with Byrne
during working hours.) Byrne also testified positively that
no supervisor or anyone in management ever said
anything to him, or warned him, about drinking on the
job. He denied that any supervisor ever told him it was
against company policy to drink on the job, and that it
was not prohibited as far as he knew. When asked if he
had ever seen any bulletin that prohibited drinking on the
job, he testified that he believed "there was something to
that effect on the wall," but he could not say what it read.
He testified that the Palm Patio Lounge was on his route
sheet, that nobody talked to him about a company policy
prohibiting stops at bars, and that he was not familiar
with such a company policy. He indicated that Supervisor
Johnston was aware of this stop, because "when the
supervisor rode with you he put down every stop that you
made, how long you stayed there." (Mrs. Clark testified
that she bought her lunch from Byrne, as did "Everybody
that worked there plus a lot of the customers," and that
Supervisor Blakney or Johnston was there drinking with
Byrne around noon about "every couple of weeks to every
month," when making routine checks - although she
could not say definitely whether the last time was more
than a month previously.
Supervisor Blakney was not questioned about this
matter. Supervisor Johnston testified that Route
Superintendent Parker "told me to go to the Palm Patio
Bar and if Tom Byrne was there, to bung him and the
truck back, or to bring back the truck." Upon arriving
there with Blakney, he saw Byrne sitting at the bar "with
a can of Busch Bavarian in front of him." (Byrne testified
that he drinks Miller beer. On cross-examination,
Johnston admitted that he did not see Byrne drinking that
day, and did not know for certain that he had been
drinking on that occasion.) Blakney asked, "Do you want
to check the truck out here or do you want to take it back
to the plant." Byrne said, "We will go back to the plant."
Johnston testified further that 6 or 7 months earlier, he
had removed the bar from Byrne's route sheet and had
told him not to stop there any more. (The route sheet was
not subpoenaed or produced at the trial.) He denied ever
drinking during working time with any dnver since
becoming a supervisor. However, as previously found,
Johnston appeared willing to disregard the truth in order
to support the Company's cause. I discredit his testimony
where it conflicts with the account given by Byrne and
Mrs Clark.
In its brief, the Company contends that "Byrne was
fired on October 23, 1967, for stopping at a bar during
working hours after having been told not to do so and for
drinking during working hours." These purported reasons
for the discharge are clearly pretextual. Before Byrne
became a leading union supporter, both Supervisors
Blakney and Johnston had condoned Byrne's drinking
beer at his noon lunch stop, and in fact had drunk at the
bar stop with him. Undoubtedly the Company believed,
when Byrne called in sick that day, that he was drinking
at the bar during working hours, and that would be a
good pretext for discnminatorily discharging the union
organizer.
(2) Disparate treatment
The discriminatory nature of the Company' s actions on
this occasion is indicated by its disparate treatment of
driver Roger C. Perry a number of months earlier, before
the union activity began. As disclosed by Route
Superintendent Parker, Perry missed a stop on his night
route, and Parker went on his route and found him "in
poor shape. . . His stabilizer wasn't working; he didn't
have even motions." When a customer would try to hand
him some money, "he was talking to me and he didn't
even see the hand. . . . He couldn't stand straight without
leaning too much. " His merchandise was "very
slipshod and careless." There was "a number of empty
bottles on the display side" of the truck, and "the pastry
was mixed from one shelf to another. . . His breath
indicated liquor." Parker said to him, "Perry, you know
there's no drinking permitted on routes." Perry answered,
"Yes, I'm sorry, I know." Parker "felt he got the
message," and Perry continued on the route. Later in his
testimony, when asked if he had "this sort of problem
with other drivers," Parker admitted that "we have had a
number of problems that way." Explaining, he testified,
"We have had others drinking that we have made
corrective measures on. We have fired them or they would
come to work sometime feeling too much, no pain. We
would either send them home to sleep it off and come
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back correct the next day; anything depends on the
replacements." When asked about the extent of the
drinking problem with drivers in 1967, he testified, "It
was a problem. We had more than we normally had over
the years . . . we did let some go and we tried to
straighten out the others " (In this connection, I note the
undisputed testimony by driver Perry about what
happened on November 27, the day after he had "8 or
10" beers at different bars on the way from his last
Sunday stop to the plant, where he arrived late and cursed
Vice President Frank Fujarek. Perry testified that when he
called in on Monday morning, to say he was taking the
day off, he was told to get himself down there to run
driver Gordon Smith's route. Plant Manager O'Neidas
informed Perry that Smith had come in "stoned," or
drunk. Smith, who did not sign a union card, was not
discharged. Perry worked through Wednesday of that
week, and was discharged, as discussed later.) In sharp
contrast, Byrne had never been warned about drinking on
the job, his lunchtime beer-drinking at the bar stop had
been condoned by the route supervisors, and the Company
had already decided to discharge Byrne before Supervisors
Blakney and Johnston left the plant, without knowing
whether in fact Byrne was drinking.
(3) Subsequent acknowledgments
The discriminatory motivation is also shown by two
incidents following the discharge. The first incident was
that same afternoon, after two other union organizers,
Urbancsik and Waters, were also discharged. According
to Dorothy Houston, a barmaid at Doc's Bar, she had a
conversation about 4 or 5 p m., with Supervisor Blakney.
Several supervisors and drivers had been to the bar, and
"I had just found out that a few of the fellows had been
fired." She asked Blakney why they were fired, and he
answered that they had been drinking and had had driving
records. She asked, "Are you sure they didn't get fired
because they were trying to join the Union?" He
answered , "That's exactly why." She testified, "I sort of
cussed him out a little bit," telling him "I felt that he was
a dirty no-good rat bastard " He replied, "Don't hold it
against me, I'm a supervisor, I can't help that, I'm
Company " When asked if Blakney said anything else,
Mrs. Houston testified, "No, because I got mad."
Blakney admitted that on that afternoon, "I was an
outcast and I didn't stay in the bar but just a couple or
three drinks." However, he claimed that he did not know
why he was an outcast that day, and that the conversation
with Mrs Houston was later in the week. His version was
that she asked why the men were discharged, and he told
her because of bad driving records. Later she asked why
Byrne was fired, and he pointed at a can of beer in front
of him and said, "That's the exact reason," and that was
about the end of the conversation except "Good-night."
He denied that she demonstrated any resentment toward
him When questioned on cross-examination about the
date of this conversation, he hesitated, and testified that
he thought it was a day after the discharge, i.e., Tuesday.
(On direct examination , he had answered affirmatively
when asked if he was at the bar and had a conversation
with Mrs Houston on Friday of that week.) When
confronted with the conflict in dates, he appeared to be
grasping for a plausible answer, stating, "I believe it was
several days later, the amount of days I can't exactly
say." He later testified positively that it was not on
Monday, the day he was an "outcast" at the bar. When
the General Counsel asked, "Did she [Mrs. Houston]
mention the Union in any way," Blakney's face flushed.
As if uncertain how to answer, he responded, "Did she?"
The General Counsel indicated, "Yes," and then Blakney
gave the answer, "No, Sir " He again denied that she was
angry with him. Supervisor Blakney did not appear to be
a trustworthy witness, and I credit Mrs. Houston's version
of what happened.
The other incident occurred about November 8, when
Supervisor Johnston and driver Byrne visited driver
Beckman at the hospital According to Beckman's
credited testimony, after Johnston suggested to Brickman
that he forget the Union, Johnston said to Byrne,
"Tommy, you will have your job back tomorrow if you
guys forget the Union." (As driver Byrne recalled the
same incident, "Jerry [Johnston] told me he was positive
that he could get me my job back . . just that the Union
be dropped. . .") Johnston testified that he asked
Brickman how he was feeling and when he was coming
back to work, that the subject of the Union did not come
up, and that he did not tell Byrne that he could get
Byrne's job back. As indicated earlier, Johnston did not
appear to be a credible witness. I discredit his denials.
Upon considering the timing, the disparate treatment,
and all the evidence and circumstances (including these
two incidents in which the two route supervisors
acknowledged or implied a discriminatory motivation for
Byrne's October 23 discharge), I find that the Company
discharged Byrne because of his union organizing, in
violation of Section 8(a)(3) and (1) of the Act.
b. Discharge of Waters and Urbancsik
(1) Stated reasons for discharges
On the same day as Byrne's discriminatory discharge,
two of the three other leading union organizers , Henry C.
Waters and Stephen V Urbancsik, were also discharged,
and given the false reason that the insurance company was
requiring it
Waters had been employed for about 8 years. He was
one of the employees who contacted the Union on
October 19, and admittedly was recognized by Route
Superintendent Parker as a union adherent. A short time
earlier, he had spoken to both Vice Presidents Joseph and
Frank Fujarek about getting higher commissions for the
drivers. Driver Urbancsik had been employed about 3
years He attended the union meeting at Doc's Bar on
Friday, October 20, in view of Route Supervisor Leonard.
Superintendent Parker admitted knowledge of his union
support.
On Monday, October 23, Superintendent Parker
discharged Waters, stating (as Waters credibly testified)
that "he was terribly sorry but he was going to have to let
me go on account of a bad driving record, and there was
nothing he could do about it." Waters protested that he
had already discussed that with Joseph Fujarek, who had
promised to do everything in his power to keep Waters.
However, a few minutes later, Vice President Joseph
Fujarek told Waters "there was nothing in the world they
could do, the insurance company demanded it." (Neither
Parker nor Fujarek denied this testimony) The same day
(according to Urbancsik's undisputed testimony), Parker
showed Urbancsik "this paper" and said, "We are very
happy with your work and everything and I hate to do
this, but we are going to have to let you go. You have got
a bad driving record."
TASTY BOX LUNCH CO., INC. 49
(2) Fabricated evidence
In order to prove that these two discharges, and two
others on October 28 and 30, were demanded by the
insurance company, General Manager O'Neidas met in
late October or early November with a representative of
the insurance agency and told him (in O'Neidas' words),
"I would like to have a record substantiating his verbal
request to me in September that the insurance men
wanted me to discharge these drivers." A few days later,
about November 5, the insurance carrier wrote the
Company a letter, predated September 18. It read:
We felt it necessary to investigate the driving
background of all drivers employed by your firm. Of
this group, seven do not qualify as safe drivers and we
respectfully ask that they not be exposed to the insured
vehicles.
It has been our experience in the past that the only
fool proof method in accomplishing this is the formal
termination of employment for each individual
I would appreciate your advising us of the dismissal
dates so that we can mark our files accordingly
The individuals in question are as follows [listing
seven drivers].
The letter contained a mistake, which revealed that it was
not written in September It was addressed to the
Company at its new plant, where the Company moved on
October 28 - not to the Company's address on
September 18
Purportedly in response to this predated letter, the
Company on November 10 or it wrote the insurance
carrier a letter, predated November 1 It read
In accordance with your instructions of September
18, 1967, the following seven drivers have been
discharged, because their records do not qualify them
as safe drivers [listing the same seven drivers, and
showing that three of them were discharged on October
7, 16, and 19, Waters and Urbancsik on October 23,
and the two others on October 28 and 30]
The dates of the second and third discharges were
erroneously reported in the letter. The actual dates were
October 12 and 16, not October 16 and 19 (nearer the
dates of the later discharges) as reported in the letter
This exchange of letters in November - predated to
September 18 and November 1 - showed clearly that the
Company discharged Waters and Urbancsik on October
23 to comply with the insurance carrier's written
instructions. This is a misrepresentation.
At the trial, the General Counsel introduced into
evidence letters written in early October, showing that the
insurance carrier had withdrawn the oral request that four
of the seven drivers be discharged. One of the letters,
dated October 3, was wntten by the insurance agency to
the insurance carrier It read, in part:
... As you know there were seven of them and the
insured has agreed to fire three of the drivers right
away, or as soon as they can be replaced There are
four other drivers whom they would like to keep on
because of their good sales records, however, the
insured assures us that they will reprimand all four of
these drivers severely and that if there is any further
poor driving on their part, they will be released
Two days later, on October 5, the insurance agency wrote
the Company, in part:
With regard to the problem of the people with poor
driving records, the [insurance company] will go along
with your explanation that you will discharge three of
these drivers as soon as you can reasonably replace
them, and that you will take steps to improve the
driving of the remaining four on the list.
The Company made no response, orally or in writing, to
this letter
Vice President Joseph Fujarek testified that he had not
seen this October 5 letter, and did not know about it,
when he consulted with his attorney in late October about
the unfair labor practice charges and received the advice
to "get it in writing," referring to the insurance
company's oral request in September. (To the contrary,
General Manager O'Neidas testified that he did bring the
October 5 letter to Fujarek's personal attention, and
discussed with Fujarek whether the employees were to be
discharged. Although the October 5 letter was addressed
to O'Neidas at the Company, it would appear unlikely
that O'Neidas would fail to show the letter to his superior.
I note that before Fujarek left the stand, he gave the
somewhat equivocal answer, "No, sir, not that I can
recollect," when asked if O'Neidas at any time told him
about the October 5 letter before O'Neidas gave him the
predated September 18 letter. I also note that on
cross-examination, Fujarek first denied that O'Neidas
gave him the September 18 letter, but later admitted that
O'Neidas had Fujarek did not impress me as a
trustworthy witness.)
Fujarek did admit that several weeks before his
conversation with the attorney, O'Neidas told him that
O'Neidas "had been talking to the insurance company and
that he possibly could retain four drivers." Fujarek further
admitted that when he informed O'Neidas that the
attorney wanted something in writing , O'Neidas told him
that the insurance company had orally agreed to the
retention of the four drivers. Fujarek testified (on
cross-examination):
Q. Isn't it true that what you did seek from the
insurance company was another letter stating that all
seven of the drivers had to be discharged9
A. Not another letter, but a letter.
Q. You knew at that time that they had at least
verbally rescinded that request, did you not?
A. At that time, yes.
Q. Then you were asking Mr. O'Neidas to obtain a
letter from the insurance company which no longer
represented the insurance company's position, weren't
you?
A Could have been, I don't know, sir.
Concerning this misrepresentation, the Company's brief
states "We see no reason to infer any improper motive,
as counsel for General Counsel attempted to do, to
O'Neidas in requesting a letter predated to the time of the
oral conversation rather than a currently-dated letter
referring to the previous demand; the letter requested and
obtained set forth the true facts of the insurer's demand."
The brief does not deny that the predated letter
misrepresented the insurance company's position at the
time of the discharges and at the time the letter was
written, or that in the absence of a wrong address on the
letter, the Board's regional office could have been misled
by the two predated letters in the investigation of the
charges. The Board may want to give further
consideration to this attempted deception. (See 18 U.S.C.
Sec. 1001, which reads, in part: "Whoever, in any matter
within the junsdiction of any . . agency of the United
States knowingly and willfully falsifies, conceals or covers
up by any trick, scheme, or device a material fact, or . .
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
makes or uses any false writing or document knowing the
same to contain any false, fictitious or fraudulent
statement or entry, shall be fined not more than $10,000
or imprisoned not more than five: years, or both ")
(3) Further defenses
Denying that the discharges were discriminatorily
motivated, the Company contends that its reasons for
discharging these drivers was to cooperate with the
insurance company's safety program, designed to reduce
the cost of insurance (The Company had changed
insurance carriers in the hope of reducing its high
insurance rate, with the help of the insurance company's
safety program.) The Company contends that General
Manager O ' Neidas was acting contrary to instructions
when he obtained the insurance company's consent to
discharging only three O'Neidas testified that when the
insurance agent first made the request in September,
O'Neidas told Fujarek "the insurance company presented
me with this list of seven drivers, which I showed him,
and wants us to discharge them because they were poor
risks " Fujarek responded (according to Fujarek's
testimony), "They can't do that to us; drivers are hard to
replace." O'Neidas testified that the agent contacted him
a few days later, and he again spoke to Fujarek, who this
time said, "If they have to be discharged, go ahead and
let them go, but work it out the best you can and make
sure we have replacements " Fujarek gave similar
testimony, and testified that a few days later, O'Neidas
"came back to me and said he had been talking to the
insurance company and that he possibly could retain four
drivers and let three of them go and I said, `Ray, that
isn't what we want. I told you to get rid of all of the
drivers, but make sure you get somebody to take their
places. We want them all to go. The insurance company
don't want them; we don't want them ' "
This testimony conflicts with other evidence. The
insurance agent, Austin M. Walsh (who appeared to be a
forthright, honest witness) testified that sometime before
October 5, O'Neidas said that the Company's "owners
agreed to discharge three of the drivers but did not want
to discharge the other four because they were long-time
employees with good . . . sales records." (Emphasis
supplied.) This is corroborated in part by (a) O'Neidas'
testimony that he informed Walsh that the four drivers
"had been with us for some time and had good ... sales
records," by (b) the above-quoted October 3 letter from
the insurance agency to the insurance carrier, stating that
the Company wanted to keep four of. the drivers "because
of their good sales records," and (c) the above-quoted
October 5 letter from Walsh to the Company , stating that
the insurance company "will go along with your
explanation that you will discharge three of these drivers
as soon as you can reasonably replace them, and that you
will take steps to improve the driving of the remaining
four on the list."
The testimony by Fujarek and O'Neidas also conflicts
with the testimony of dnver Waters (who was one of the
four drivers retained until the union organizing began).
Waters credibly testified that Vice President Joseph
Fujarek told him "around" October 13 that Fujarek "had
a list from the insurance company of those with bad
driving records and that they were going to have to get rid
of them and my name was on there, which he showed me
at the time . . . . He said that he was going to do
everything in his power to keep me there even if he had to
use his own company lawyer." (Fujarek denied having this
conversation with Waters.) Then on October 20, General
Manager O'Neidas called Waters' attention to the list,
and "told me to be careful as to driving and be sure that I
didn't get any tickets and I told him that I already had
discussed that with Mr. Fujarek and that Mr. Fujarek was
going to see if he couldn't straighten it up through a
lawyer." (In its brief, the Company challenges this
testimony on two grounds First, the Company contends
that the "testimony is uncontradicted that no such list
existed until after November 5," when the predated
insurance letter, listing the drivers to be discharged, was
prepared. In making this contention, the Company has
apparently overlooked the above-quoted testimony by its
own witness, O'Neidas, that in September he told Fujarek
"the insurance company presented me with this list of
seven drivers, which I showed him " Waters and O'Neidas
were referring to a separate list - not the September 18
letter or the Motor Vehicle Reports in evidence. The
second company challenge concerns the date, October 13.
Waters, who impressed me as an honest witness, evidently
was in error about the date. The contents of the
conversation with Fujarek indicate that the conversation
did not occur on October 1-3, but 2 or 3 weeks earlier.)
Neither Fujarek or O'Neidas impressed me as a candid
witness. I discredit their testimony about O'Neidas acting
without authority, and find it to be a mere fabrication.
I note that the Company did not dispute insurance
agent Walsh's testimony about the good sales records of
Waters, Urbancsik, and the two other drivers. Waters had
no traffic violation or accident in- 1967, except when
another truck backed into the hood of his truck , causing
such little damage that Vice President Joseph Fujarek told
Waters "he wasn't even going to turn it in." Urbancsik
had had no traffic tickets or accidents in more than a year
before his discharge. In May, he received a safe-driving
bonus of $5. (Paul T. Jenson, the insurance underwnter
who made the original recommendation that the seven
drivers be discharged, testified that he made his
determination on the basis of Motor Vehicle Reports,
obtained from the State. These reports list the drivers'
violations and accidents during the past 36 months. Jenson
testified that he believed accidents would be listed, even
though the driver was not at fault, and even if the vehicle
was struck while parked. Some of the drivers had
accidents when they were struck from behind, or when
parked, and were not charged with a traffic violation. The
evidence does not reveal whether or not this was taken
into consideration when the Company obtained consent
for retaining four of the drivers.) Concerning the admitted
shortage of competent drivers, Route Superintendent
Parker testified, "Every lunch wagon company had
trouble. I checked with the competitors and they had
trouble getting help so they did the best they could with
what was available."
Having considered the Company's fabricated defenses
along with all the evidence and circumstances (including
Route Supervisor Blakney's acknowledgement that these
and Byrne's discharges were discriminatorily motivated), I
find that it is clear that the Company reversed its decision
to retain these two leading union organizers , Waters and
Urbancsik, and discharged them to undercut the
organizing drive, in violation of Section 8(a)(3) and (1) of
the Act.
2. Subsequent discharges
a. Discharge of Gaun and McDonald
The two other drivers, whom the Company had decided
TASTY BOX LUNCH CO., INC.
to retain, were Harold W Gaun and Edward A.
McDonald. Gaun had been working there since June or
July, and McDonald since 1961. Gaun had talked to a few
employees about joining the Union (including one driver
who refused to sign a card), had attended part of the
union meeting on October 20 at Doc's Bar when Route
Supervisor Leonard was sitting at the bar, had talked in
favor of the Union at Doc's Bar when Route Supervisors
Blakney and Leonard were sitting nearby, and had
attended a meeting at the union hall the evening before he
was discharged. McDonald, in the presence of Route
Supervisors Blakney and Leonard, talked to union
organizer Urbancsik at Doc's Bar about the progress of
the organizing drive and about turning in union cards.
Both McDonald and Gaun signed union cards.
Gaun credibly testified that on Saturday, October 28,
General Manager O'Neidas told him, "I hate to have to
tell you this, but I have to tell you that I have to let you
go on account of the insurance company. [Route
Superintendent] Parker won't fire you because you are
doing such a good job and he left it up to me to tell you."
Then on Monday, October 30 (according to McDonald's
credited testimony), Parker "said he was going to have to
fire me because he got a letter from the insurance
company saying that they wouldn't insure his truck if I
drove it." (This testimony is undisputed.)
From all the evidence and circumstances, I find that the
Company either had knowledge of, or suspected, the union
activities of both Gaun and McDonald. I also find that
the Company discharged them, like it did union organizers
Waters and Urbancsik, because of their union activities, in
violation of Section 8(a)(3) and (1) of the Act. I further
find that the Company decided to discharge Gaun and
McDonald at the same time it made the decision to
discharge union organizers Waters and Urbancsik, and
that the Company discharged Gaun and McDonald at
least in part to conceal its discriminatory motivation for
discharging Waters and Urbancsik.
b. Discharge of Perry
Roger C. Perry was employed about April or May
1965. About 2 years later, he was promoted to a swing
man, or "route jumper" (with the duty of running relief
routes for absent drivers and training new drivers), and
was thereafter advised that he was in line for the position
of route supervisor. He signed a union card on October
30.
For about 7 weeks, beginning the last week in
November 1966, he was absent from work, having
domestic troubles, and was drinking very heavily. About 3
or 4 weeks earlier, he had been warned by Route
Superintendent Parker about drinking on the route, or
drinking before coming to work. After being rehired in
January, he did a good job on different routes, including
the Sunday route, which he built into a profitable route,
usually working 7 days a week.
On Sunday, November 26, he admittedly had "8 or 10"
beers before returning his truck to the plant. When he did
arrive at the plant after dark, Vice President Frank
Fujarek met him, and questioned him about being late.
Perry testified that he had a strong dislike for Fujarek,
and admitted cursing Fujarek on this occasion, using
"nasty names" and telling him "he didn't have guts
enough to fire me." Fujarek walked away, and did not
51
discharge Perry at the time. The next day, Perry was
assigned to run the route of a nonunion driver, Gordon
Smith, who (as indicated above) came in drunk, but was
not discharged.
Perry worked until Wednesday, November 29.
According to him, Vice President Frank Fujarek, General
Manager O'Neidas, and Route Superintendent Parker
were attempting to persuade him to sign a statement that
he was being harassed on the route (presumably by some
of the discharged drivers, who were meeting him at
different stops, trying to collect for merchandise which
they had sold on credit). Perry claimed that when he
continued to deny that he had been harassed, Parker
discharged him. Perry also claimed that immediately
before he was discharged, he admitted to Parker that he
had signed a union card on the route, and Parker said,
"Well, that in itself is enough to terminate you." However
Parker, who frankly admitted knowledge of the union
activity of the three union organizers discharged October
23 (Byrne, Waters, and Urbancsik), and the fourth,
discharged December 16 (Brickman), denied knowledge
that Perry had signed a union card or had engaged in
union activity. According to Parker, Vice President
Fujarek directed him on Monday, "Get rid of Perry. He's
no good to the Company any more." Parker said that he
would, "just as soon as I see my way clear I will
discharge him." On Tuesday, upon learning that Perry
had not yet been discharged, Fujarek told Parker,
"Wednesday, tomorrow, will be the last day with Perry
whether we have a driver for that route or not." Then on
Wednesday, Parker told Perry he was being terminated
upon instructions from Frank Fujarek, and Perry stated
"he thought it was coming ." Nothing was said about the
Union. In evaluating the conflicting testimony of
Superintendent Parker and driver Perry, I note that much
of Perry's testimony (e.g., his testimony that a
supervisor's job had been mentioned to him) was
substantiated by Parker's testimony. However, Perry
appeared evasive and less than candid when questioned
about whether he had ever complained to anybody about
being harassed on his route. Having found that
Superintendent Parker was generally a truthful witness, I
credit his version of what transpired.
In its brief, the Company contends that Perry "was
fired for drinking on the job and for cursing his boss."
The position of the General Counsel, who did not file a
brief, is not clear. In the absence of credible evidence that
the Company was aware of Perry's union activity, I find
that the General Counsel has failed to prove that Perry
was discharged for any reason other than his misconduct
on the job.
c. Discharge of Brickman
Edward Brickman was the only one of the four union
organizers, discussed above, who was not discharged on
Monday, October 23, 3 days after the organizational
campaign began on Friday, October 20. About November
8, when Brickman was in the hospital, Route Supervisor
Johnston visited him and suggested, "Eddie, why don't
you forget this . union deal?" Buckman refused. On
December 16, 6 days before the election, Brickman was
discharged.
Brickman was hired in 1961. About 5 months before his
discharge, about July or August (before any union activity
began), General Manager O'Neidas and Route
Coordinator Mike Fujarek called Brickman into the
office, after receiving a customer complaint that he had
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been drinking on the job. Brickman admitted that he had
been drinking beer on his route, and that he was carrying
and selling beer on the truck - selling about 6 to 12 beers
a day O'Neidas and Fujarek told him that carrying and
selling beer on the truck was against the law, and asked
him to cooperate and not carry beer on the truck. He
agreed. Thereafter he stopped selling beer, and stopped
drinking on the job. However, he made the practice of
buying three cans of beer each morning at one of his stops
for drinking after work, and icing it down in a bread box
where he kept milk and soft drinks for sale.
Shortly after 10 a m on December 16, Route
Coordinator Mike Fujarek visited Brickman at a stop
After watching Brickman servicing the customers 15 or 20
minutes, Fujarek went over to the truck, and looked into
the icebox. As Brickman described it, Fujarek "acted like
a kid that had just found a Christmas toy," saying, "Well,
well, well, what have we got here?" Brickman answered,
"Mike, that's my own personal beer." Fujarek said,
"0 K.," picked up the three cans of beer, and started
across the street. Brickman said, "Mike, that's my own
personal beer " Fujarek responded, "Don't forget that.
That's your own personal beer, is that nght9" Brickman
answered, "Yes, sir," and Fujarek said, "O.K , see me
when you get back to the plant." (Mike Fujarek did not
testify )
After Brickman checked in at the end of the day, Route
Superintendent Parker advised Brickman that Vice
President Frank Fujarek "told me to let you go," because
of the beer on the truck. Brickman stated, "That's my
own personal beer I take it home with me and I don't
drink on the route It's my own personal beer." Parker
asked if he was selling beer on the route, and Bnckman
answered, "No, not since I got more or less a reprimand
back in ... July or the first of August." Brickman asked,
"Well, any other reason you could fire me?" Parker said,
"No, your job has been fine. We have had no complaints;
you have been steady . . your route has been built up,
and everything else like that. If you hadn't had the beer in
the truck, well, everything would have been all right
(Parker did not deny this testimony.)
In explanation of the discharge, Vice President Joseph
Fujarek testified that Mike Fujarek telephoned him and
said he had just caught Brickman carrying beer on a
truck. Joseph Fujarek asked if Brickman had been warned
before, and Mike Fujarek purportedly said, "My God! he
has been warned several times . I'm going to get rid of
him." Then Joseph Fujarek purportedly said, "O.K , get
rid of him " I find that this purported conversation (like
Joseph Fujarek's purported conversations with General
Manager O'Neidas concerning O'Neidas acting contrary
to instructions when arranging with the insurance agent to
retain four of seven drivers, discussed above) was a mere
fabrication Mike would not have given such an answer,
that Brickman had been warned several times about
carrying beer on his truck, when the undisputed facts are
that Brickman had been warned only once, and that time
for carrying and selling beer. Furthermore, according to
what Route Superintendent Parker told Brickman at the
time, it was Vice President Frank Fujarek who ordered
the discharge - not Joseph or Mike Fujarek. When
testifying, Joseph Fujarek appeared more concerned with
providing defenses than recounting facts.
It was clear to both Route Coordinator Mike Fujarek
and Route Superintendent Parker, from what Bnckman
told them about it being his personal beer, that he did not
consider icing down the beer for his off-duty use was a
violation of his instructions not to "carry" beer on the
route Yet, the Company argues in its brief, "If this
violation of company rules is not just cause for discharge,
his judgment in this matter was bad enough to justify
termination." But the issue is whether or not the
Company discharged Brickman for his union activity. 1
find that it did, and that it seized on the incident as a
pretext for discharging this remaining one of the four
most active union organizers. I find that except for
Brickman's union support, and the upcoming election in 6
days, the Company would not have discharged this good
driver for the reason stated, when there was such a serious
shortage of competent personnel. The Company therefore
violated Section 8(a)(3) and (1) by discharging Brickman.
d. Discharge of Wallace
On December 18, 4 days before the election, the
Company discharged John B Wallace after finding three
cans of beer, wrapped in a paper sack, on the front seat of
his truck.
Wallace had been employed for about 2 1/2 years. He
had voluntarily begun to work about 3 hours extra each
day, providing an afternoon-service on his route in order
to please the customers and keep some of his good stops
He signed a union card, and attended three meetings at
the union hall (in the presence of various other drivers
who had by this time turned against the Union) Late in
November, he presented a list of grievances and
suggestions to Vice President Joseph Fujarek, and asked
for a meeting, which was not granted
About July, Route Coordinator Mike Fujarek had told
him that "Some of these drivers are carrying food,
cigarettes, other items on their truck that we don't supply
and selling them to the customers," that he did not like it,
and wanted to know if Wallace knew who they were
Wallace admitted that he was "carrying" cigarettes
Thereafter, Wallace stopped selling cigarettes on the
route.
On December 18, about 1:15 p m., Wallace stopped at
a drive-in grocery, got some dimes for his money changer,
and then purchased three cans of beer, as he customarily
did, to dunk after work. He threw the beer, wrapped in a
paper sack, in the cab of his truck on the front seat He
next went to a restroom. Upon returning to the truck, he
saw Mike Fujarek, who asked, "What have you got in
that sack?" Wallace said, "I have got three cans of beer "
Fujarek asked what he was going to do with them, and he
said "drink them when I get off." Fujarek said, "Let' me
have them and you pick them up from me when you come
in this afternoon."
About 4:40 p.m., after Wallace had checked in, Route
Supervisor Blakney discharged him, saying (in Wallace's
words) "you could not carry any item on a company truck
except what the Company furnished and you were not
supposed to, leave your truck or park 'anywhere for any
reason." Wallace asked, "You mean you can't even stop
and go to a bathroom or anything? . . . Well, what about
my' raingear and my money changer and all that? . . .
That is my personal property. . That beer was my
personal property " Blakney responded, "Well, I can't do
anything about it. They said to let you go." (As indicated,
Mike Fujarek did not testify, and Blakney did not deny
Wallace's testimony.)
Route Supervisor Johnston claimed that he was the one
who discharged Wallace, testifying that Mike Fujarek
found the beer on Wallace's truck during a routine check,
"came back and reported it to me and I proceeded to
discharge" Wallace. Johnston then claimed that on the
TASTY BOX LUNCH CO., INC. 53
day before, Wallace asked him why Brickman had been
discharged, and he replied that Brickman "was discharged
for carrying beer on his truck which was against company
policy," and added, "John, you know it's against company
policy and I think you have been drinking on the job. I
don't want you to get caught with beer on your truck."
Johnston claimed that Wallace replied, "I never carry
beer on my truck." (Wallace credibly testified that he
never drank beer on his route.) From the way Johnston
demeaned himself on the stand, and because of the various
conflicts in his testimony, I find that he was not testifying
truthfully, that he did not discharge Wallace, and that he
had not warned Wallace. (In addition to the other
conflicts in his testimony mentioned heretofore, I note
that when testifying about this matter, he first denied that
employees had carried items other than company-owned
items for resale, then admitted that employees had carried
items such as cigarettes, beer, and other items for resale.)
In its brief, the Company contends that "Wallace
clearly knew of the policy against carrying noncompany
property on the truck ... Nevertheless, Wallace reasoned
that if the Company has an exception to its policy which
permits a driver to carry his own money-changer and
raincoat, the exception must permit personal beer in the
cab of the truck." The Company then argues that there
"has been no indication of any company knowledge of any
union activity by Wallace." However, I find that in the
absence of knowledge, or suspicion, that Wallace was a
union supporter, the Company would not have discharged
him, 4 days before the election, for what at most was a
misunderstanding concerning the scope of the Company's
rule prohibiting drivers from "carrying" noncompany
items on the trucks. In view of all the evidence and
circumstances, I find that the Company discriminatorily
discharged Wallace, in violation of Section 8(a)(3) and (1)
of the Act.
In making this finding, I do not overlook the
Company's argument that in November, Wallace
"presented an employee request for
employee-management meetings and cooperation without
the ... Union," and that if the Company "had sought to
undermine the Teamster organization, this employee's
offer would have been a heaven-sent boon." In making
this argument, the Company ignores the undisputed
testimony by driver Byrne that in November, after Byrne's
discharge, Route Supervisor Johnston said "that the
Company had already set up a plan, had it all to go into
effect that the drivers would get more commission" and
meet "with management . . . to iron out little differences .
. . without signing the union cards," and that Johnston
said "he definitely did not want the Union in there and he
thought this was some way for stopping the Union from
getting in." (This matter was not alleged in the complaint
as a separate violation.) This evidence does not detract
from the finding that at the time of Wallace's discharge
on December 18, the Company knew or suspected
Wallace's union support.
C. Alleged Refusal to Bargain
1. Bargaining requests
On October 24, the Union sent the Company a
telegram, claiming that it represented a majority of its
employees and requesting to bargain. On the same date,
the Union mailed the Company a letter, repeating the
bargaining request and clarifying the proposed bargaining
unit as "the drivers." On October 25, the Company
denied the telegraphic request, stating that the Union
failed to "state what unit you seek to represent," and
refused to accept the Union's letter, clarifying the unit.
The Company expressed doubt that the Union represented
an uncoerced majority, stated that "some of our people
have come to us to say that they do not wish to be
represented by you after they have given the matter some
thought," and suggested a Board election.
The complaint alleges that the Company violated
Section 8(a)(5) by refusing the continuing bargaining
requests, and by engaging in the conduct alleged to violate
Section 8(a)(l) and (3), discussed above.
The parties agree that the "route salesmen drivers"
constitute an appropriate bargaining unit.
2. Lack of majority
The parties stipulated at the trial that if the five drivers
discharged on October 23, 28, and 30 are included, there
was a total of 48 route salesmen drivers in the agreed
bargaining unit from October 24 through 30, 49 on
October 31, and 50 on November 1.
At the time of the October 24 bargaining requests, the
Union represented at the most only 21 of 48 drivers. On
Monday, October 30, the 25th authorization card was
signed. However, by this time, one of the 25 card signers
had effectually withdrawn his authorization of the Union
to represent him. This driver, James R. Moyer, signed a
card dated October 21 at the request of driver Urbancsik.
Moyer credibly testified that a day or two after he signed
the card, he asked Urbancsik "if I could have the card
torn up or nullified." Urbancsik answered no, that he no
longer had the card. (I discredit Urbancsik's denial, on
rebuttal, that this conversation took place.) There is no
evidence that the Company encouraged or coerced this
withdrawal of the authorization.
The Company's challenges of three other cards have no
merit. The Company contends that the card signed by
Ricardo Ramy, dated October 20, is invalid because
Ramy, a Cuban, "does not read or understand enough
English to comprehend the essential nature and purpose of
the card and it was never explained to him in his native
language." The General Counsel contended at the trial
that Ramy "has been fluent in the English language for
the last three or four years, that this man has been
promoted and is now a supervisor." (At the time of the
trial, Ramy was not a supervisor, but was a swing man,
who substitutes for absent drivers on both
English-speaking and Spanish-speaking routes.)
It was apparent, from his demeanor on the stand and
his testimony, that Ramy was attempting to conceal his
understanding of the English language. He testified "No"
when asked through an interpreter on direct examination,
"Do you read English?"; and answered, "I did not read
any part of it," when asked what portion "can you read"
of the union authorization card he signed. Later, after
admitting that he filled in the bottom part of the card
(calling for the "Name," "Phone No.," "Address,"
"City," "Employed at," "Occupation," "Social Security
No.," "Signature," and "Date" - using the English
words, "St.," "Opa Locka Fla," "Tasty Box Lunch," and
"Driver"), he answered "No" to the question, "Now, I
would like for you to look at the rest of the card and tell
me if you know the meaning of any of the other printing
that appears thereon?" Yet, when testifying later in
English without an interpreter, he did read in English:
"Application For Membership. I hereby make application
for membership in International Brotherhood of (Spanish)
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local (Spanish)," and thereafter i n English , "198," and
"International Brotherhood of Teamsters." He appeared
to be faking when he added, in English, "I read . I
don't understand what it say here "
On direct examination , with an interpreter, he testified
in Spanish that he had been in the United States 5 1/2
years, and that his occupation in Havana, Cuba, had been
"Construction " On cross-examination, while testifying
with an interpreter, he stated that he had been the general
manager of a construction company in Havana from 1954
until 1960, after working as an employee about 10 years.
He, at age 45, appeared to be an intelligent , alert person.
When asked on cross-examination whether he spoke at
a union meeting and stated that he was one of the leaders
of a union in Cuba, he replied (when testifying with an
interpreter), " I can 't recall ever saying that." When later
asked if he said at a union meeting "that you had been a
member of a labor union in Cuba," he gave the answer,
"I can't recall saying it. It might be that I said it, but I
can't recall saying it." When again asked, he replied, "I
might have said it, but I can't recall saying it ." But then
he appeared to change his testimony, to accord with his
attempt to belittle his understanding of English. The
following question was, "Did you say anything at the
union meeting?" He answered, "Absolutely nothing. I
can't have said anything because I could hardly
understand what was being told." (Business Manager Eli
Schutzer, who impressed me as a forthright, honest
witness, testified that Ramy made a 15 or 20 minute talk
in English at the November 12 union meetings, and
testified on cross-examination that Ramy asked at the
October 27 union meeting about pay, vacations, pensions,
retroactive years of service, and election procedures.
Schutzer further testified that after one of the meetings,
Ramy told him in English "that the Cuban element in the
plant was . . with us all the way and we discussed with
him the possibility of him making contact with some of
the Cuban girls working in the production end of it to see
if we could spread our campaign to cover production
employees.") At different times when testifying with an
interpreter, Ramy answered the question in English before
it was translated into Spanish. He testified that the
explanation he was given, in English , when he signed the
authorization card was, "This gives us a right to talk to
the bosses " Despite his afterthoughts, it is apparent that
he supported the Union at the time, and knowingly
authorized the Union to represent him
The Company's two other challenges involve the cards
of Russell G. Gillett and Vernon Portmess. The Company
contends that they "signed cards on the representation
that such cards would be used to obtain an election," and
that the cards cannot be counted as designations of the
Union. After considering all the evidence of how
signatures on union cards were being solicited by the
various organizers, and after having observed Gillett's and
Portmess' demeanor on the stand. and evaluating their
testimony, I am convinced that both of them fabricated
the testimony about the Union seeking an election, in
order to please the Company.
Gillett testified that he was 62 years of age, that "I'm
in bad health . . . I have got very bad health and I have
got ulcers . . . and they are killing me ." He appeared
fearful for his job. He testified that dnver Waters said, "if
we can get fifty-one percent we can call for an election."
(Gillett's card is dated October 23, Monday.) When asked
on cross-examination if Waters said "anything to you
about getting better wages and working conditions," he
answered , " He did mention we could have an election and
get much better working conditions " (Waters, who
appeared to be a credible witness, testified that when he
gave out the cards, he stated the "purpose of the card was
to get somebody who could bargain for us so that we
could get better standards of living ") I discredit Gillett's
testimony that Waters mentioned 51 percent or an
election, and also discredit the rebuttal testimony of driver
Urbancsik, that he was the one who solicited Gillett to
sign the card (When testifying on rebuttal, Urbancsik
appeared to be saying whatever he thought would,advance
the Union's cause.)
Portmess gave conflicting testimony. Initially, he
testified that when driver Brickman gave him the first
card, Brickman "Said we was going to have an election.
He said he had all the employees signed up and going to
have an election," and that Brickman gave him a second
card about 3 or 4 days later, and "just said he had to have
all the employees signed and they were going to hold an
election " When asked to give the entire conversation,
Portmess answered, "He said they had the majority of the
employees signed, that was all." His card is dated October
24, Tuesday (Thus, according to this testimony by
Portmess on direct examination, Brickman told him on
Friday or Saturday - when the 'organizing was just
beginning - that "all the employees" had been signed up
and that there would be an election. No other witness
claimed that such a statement, about everybody having
been signed, was ever made, or that an election was
mentioned at that time Also, according to Portmess'
initial testimony, Waters modified the claim that
everybody had been signed, saying "he had to have all the
employees signed" and that there would be an election,
yet that the entire conversation was "they had the
majority of the employees signed.") On cross-examination,
Portmess testified that he did not recall if it was on the
first or the second occasion that Brickman said a majority
of the employees had signed, and that "it might have been
both" occasions. He then testified that "It could have
been" some other time - not either time when Brickman
gave him a card - that Brickman said something about
an election Still later, changing his testimony, he denied
that Brickman could have mentioned the election at some
other time (or that he had so testified) Thereafter, he
gave further conflicting testimony. When asked to tell the
best he could what Brickman said the first time, Portmess
answered that Brickman "explained that they had the
majority of the employees [signed] and they were striving
for some organization," and that was all he could recall.
Concerning the second conversation, when Bnckman gave
him a second card, Portmess testified that Brickman
"gave me the date of the meeting and told me where it
was to be and what time to be there," and said nothing
about the card. (On rebuttal, Brickman credibly testified
that he never said anything to Portmess about an election;
but told him, "We are trying to get a union and I would
appreciate it so much if you would sign your card and
have the Teamsters represent us.") I discredit Portmess'
conflicting testimony about seeking an election, having or
getting all employees signed, or having a majority already
signed.
I therefore find that the union organizers did not
mention an election to either Gillett or Portmess when
soliciting their signatures on union cards - on the
assumption, without so holding, that the mention of an
election would affect the validity of the two cards. (I note
that the Company in its brief does not challenge the card
signed by driver Kirk E. Davis, who appeared not to be
on the stand a credible witness.)
TASTY BOX LUNCH CO., INC. 55
However, inasmuch as the card signed by driver Moyer
may not be counted after the union authorization was
withdrawn, the Union never achieved a majonty, having
only 24 valid cards (one less than a majority) on October
30, when there were 48 drivers in the unit . There was
therefore no duty on the part of the Company to
recognize and bargain with the Union, and no violation of
Section 8(a)(5) - despite the Section 8(a)(1) and (3)
violations.
111. OBJECTIONS TO THE ELECTION
The tally of ballots showed that at the December 22
election, the employees voted 30 to 9 against union
representation, with 6 challenged ballots. The Union on
December 29 filed timely objections to conduct affecting
the results of the election, alleging eight unlawful
discharges, threats of discharge, and promises of benefits,
depnving the employees of a free choice. In his
Supplemental Decision and Order on Objections and
Order Consolidating Cases for Hearing, the Regional
Director ordered that after issuance of the Trial
Examiner's Decision, the representation case be
transferred to and continued before the Board.
Having found that the Company discriminatonly
discharged four employees between the date of October 25
when the petition was filed, and December 22, I find that
it interfered with the exercise of a free and untrammeled
choice in the election.
I therefore recommend that the election be set aside
and that a new election be held at such time as the
Regional Director deems appropriate.
CONCLUSIONS OF LAW
1 By discriminatorily discharging Thomas J. Byrne,
Henry C. Waters, and Stephen V. Urbancsik on October
23, Harold W. Gaun on October 28, Edward A.
McDonald on October 30, Edward Brickman on
December 16, and John B. Wallace on December 18,
1967, the Company engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
2 By making threats to close its doors and to discharge
an employee because of union activities, the Company
violated Section 8(a)(1) of the Act.
THE REMEDY
further, effectual remedy is ordered. Therefore, in an
effort to retrieve the employees' thwarted right to
self-organization and to help restore the status quo, I find
necessary under all the circumstances, and shall
recommend, that the Respondent be required: (1) to mail
to each of its nonsupervisory employees a copy of the
notice attached hereto and marked "Appendix"; (2) upon
request of the Union made within 1 month of this
Decision (or the Order of the Board if exceptions are
filed), to grant immediately to the Union and its
representatives reasonable access for a 2-month period to
its bulletin boards and all places where notices to
nonsupervisory employees are customarily posted; and (3)
upon request of the Union, to make available to the
Union and its representatives, at a reasonable time within
3 months of this Decision (or the Order of the Board if
exceptions are filed), suitable facilities for a meeting of
employees so that the Union may speak to the employees
assembled on company time for 1 hour.
Under the circumstances of this case, I find that
reinstatement offers, at one time, to the seven illegally
discharged union supporters are necessary to vindicate the
right of all the employees to self-organization (if they so
desire), and to help overcome inevitable fears of further
discrimination on the part of those offered reinstatement.
The Respondent must therefore be ordered to offer in
wnting, at the same time and within 5 days after the date
of this Decision, full reinstatement to all seven of the
illegally discharged employees (not at that time so
employed by the Respondent) to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges; and if
Respondent fails to do so, it must be ordered to give them
backpay (computed in the manner provided above) until
such reinstatement offers are made at one time. (In its
answer, the Respondent alleged that it offered
reinstatement in writing to Byrne and Urbancsik on
January 31, to Gaun and McDonald on February 21, to
Perry on March 19, and to Waters on March 25, 1968 -
none of whom was employed by Respondent at the time
of trial. The sufficiency of any such offer, for purposes of
tolling backpay until 5 days after the date of this
Decision, may be determined at the compliance stage.)
Accordingly, on the basis of the foregoing findings and
conclusions, and on the entire record, I recommend
pursuant to Section 10(c) of the Act, issuance of the
following:
[Recommended Order omitted from publication.]
The Respondent must be ordered to cease and desist
from the unfair labor practices found and from like or
related invasions of the employees' Section 7 rights; to
offer reinstatement to the seven discnminatorily
discharged employees, with backpay computed in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289, plus interest at 6 percent per annum as
prescnbed in Isis Plumbing & Heating Co., 138 NLRB
716, and to post appropriate notices.
The Board has held that where the union has failed, as
here, to secure a majority status, a bargaining order is
inappropriate. However I am convinced that the
Respondent's conduct, designed to undermine the
employees' efforts toward self-organization - in
unlawfully discharging during the organizational campaign
seven of the union supporters, including all four of the
leading union organizers, and making threats of reprisal
for engaging in union activities - will inhibit employees
from engaging in future organizational activities unless a
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, an
Agency of the United States Government.
WE WILL offer full reinstatement, and pay for
earnings lost as a result of their discharge (plus 6
percent interest), to all of these employees:
Edward Brickman Edward A. McDonald
Thomas J. Byrne Stephen V. Urbancsik
Harold W. Gaun John B. Wallace
Henry C. Waters
WE WILL NOT discharge any employee for supporting
GENERAL SALES DRIVERS & ALLIED
EMPLOYEES UNION, LOCAL 198, or any other
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union
WL WILL NOI threaten to discharge any employee
for union activity
WE WILL Nor threaten to close our doors if our
employees vote for union representation
WE WILL NOT interfere with our employees' union
-activities
WE WILL NOT interfere with the right of our
employees to make a free choice in any election ordered
by the National Labor Relations Board
TASTY Box LUNCH CO,
lrC
(Employer)
Dated By
(Representative ) (Title)
Note If any person named above is presently serving in
the Armed Forces of the United States, we will notify him
that he will be reemployed if he applies after his
discharge
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice may be directed to
the Board's Regional Office, Room 826, Federal Office
Building, 51 SW First Avenue, Miami, Florida 33130
Telephone (305) 350-5391.