The Beverage Works NY, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 27, 2007

29-CA-028265 (N.L.R.B. Dec. 27, 2007)

JD(NY)-52-07
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
THE BEVERAGE WORKS NY, INC.
and Case No. 29-CA-28265
RONALD DAVIS, AN INDIVIDUAL
Emily DeSa, Esq., Brooklyn, NY,
for the General Counsel.
David Jasinski and Alex Tovitz, Esqs. (Jasinski & Williams, P.C.) Newark, NJ,
for the Respondent.
David Abrams, Esq., New York, NY, for the Charging Party.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge: Based on a charge and a first amended
charge in Case No. 29-CA-28265 filed by Ronald Davis, An Individual (Davis), on April 17 and
June 7, 2007, respectively, a complaint was issued on June 14, 2007 against The Beverage
Works NY, Inc., (Respondent or Employer). The complaint alleges essentially that the
Respondent terminated Davis and failed to reinstate him because he engaged in protected,
concerted activities including seeking the assistance of Local 803, International Brotherhood of
Teamsters (Local 803) instead of the currently recognized labor organization, Local 713,
International Brotherhood of Trade Unions, IUJAT, AFL-CIO (Local 713 or Union), and in order
to discourage employees from engaging in such activities for the purposes of collective-
bargaining or other mutual aid or protection.
The Respondent’s answer denied the material allegations of the complaint and asserted
certain affirmative defenses.1 On September 25 and 26, 2007, a hearing was held before me in
Brooklyn, New York.2 On the entire record, including my observation of the demeanor of the
witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I
make the following3:

1 I reject the Respondent’s argument that this matter must be deferred to the arbitrator’s
award. In view of my conclusion that the discharge was not unlawful, and because the arbitrator
was not presented with the facts relating to the unfair labor practice issue, deferral is not
appropriate. Dick Gidron Cadillac, 287 NLRB 1107, 1111 (2004), enfd. mem. 862 F.2d 304 (2nd
Cir. 1988).
2 I hereby receive in evidence pages 16-19 of the contract which were not included in
Respondent’s Exhibit 7. Those pages were supplied by the Respondent’s counsel pursuant to
my request made after the close of the hearing.
3 The Respondent filed a Reply Brief. Inasmuch as the Board’s Rules do not provide for the
filing of such briefs it is hereby rejected, and has not been considered.
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Findings of Fact
I. Jurisdiction
The Respondent, a domestic corporation having its principal office and place of business
at 1800 Route 34, Wall, New Jersey, and a place of business located at 70 Hamilton Avenue,
Brooklyn, New York, has been engaged in the wholesale distribution of Red Bull Energy Drinks.
During the past year, the Respondent purchased and received at its Brooklyn facility, materials
and services valued in excess of $50,000 directly from points located outside New York State.
The 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. The Respondent also admits and I find that
Local 803 is a labor organization within the meaning of Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. Background
The Respondent was formed in 2000 as the exclusive distributor of Red Bull Energy
Drinks in the New York, New Jersey metropolitan area. It has a distribution location in Brooklyn,
New York where Davis worked. The president of the Respondent is Gerald Ponsiglione, its vice
president of operations is Jeffrey Brown, its New York sales manager is Myles Hantman, and its
Brooklyn sales manager is Steve DiMario. Davis’ immediate supervisor was Jose Pesante. The
Respondent employs about 40 account managers, including Davis, who solicit new accounts
from supermarkets and bodegas, take orders for products, deliver the products and collect
money owed.
The Respondent has a collective-bargaining agreement with Local 713 which covers
sales representatives (account managers) and warehouse and delivery employees. Ponsiglione
testified that when he was notified that Local 713 filed a petition for representation with the
Board, he voluntarily recognized that union. Their first contract ran from February, 2003 through
January, 2007. Thereafter, the employees working in the Tuckahoe, New York branch were
included in the contract, and a successor agreement was executed which runs from February,
2007 through January, 2010.
B. Davis Complains about Working Conditions
Davis began work as an account manager in April, 2004, receiving a weekly salary and
commission. He stated that in December of that year, the employees received a new handbook
which contained a provision that if the worker is involved in a vehicular accident which is his
fault, he would be charged $1,000. Davis stated that he immediately complained about the new
policy to supervisor Pesante who said that there was nothing he could do about it. A few months
later, in early, 2005, Davis was involved in an accident and received a reduction in salary of
$1,000 which was spread out over a period of one year. Davis spoke to a few co-workers and
advised them of this new policy.
Davis stated that prior to January, 2006, the account managers had a target number of
cases of product to sell. If he sold between 75% and 100% of that target, he would receive a
commission of 90 cents to $1.25 per case. After January, 2006, the commission system was
changed whereby the account managers received a commission of 50 cents per case for each
case sold. Davis believed that this change resulted in a reduction in pay and voiced that opinion
to his co-workers, who agreed with him. Davis again complained to Pesante who told him that
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he should give this new policy a chance to work.
Davis did not complain to the Union or file a grievance concerning being charged for an
accident or the change in the commission system.
Davis also testified about a change in the way the drivers were required to check in their
vehicles. Prior to March, 2006, the employees returned to the warehouse when they finished
work and parked in any available space. The warehouse manager then checked the cases in
the vehicle and the driver went to the office to hand in the money collected. Under this system in
which the account managers were checked in when they arrived, the process took about 15
minutes. In March, 2006, the workers were prohibited from entering the warehouse until 4:00
p.m. even if they finished their work before that time. As a result, drivers had to wait in a long
line of returning drivers before they could check in. This procedure consumed about one hour.
Davis complained to other workers that they should be paid for the time they had to wait to be
checked in. He also complained to supervisor Pesante who said that there was nothing he could
do about it.
C. Davis Contacts the Union and Meets with Ponsiglione
Davis became dissatisfied with the fact that he was paying dues but had not had any
contact with the Union. He asked his co-worker and shop steward Steven Pica how he could
contact the Union. In March, 2006, Davis saw Union business agent John Acevedo in the shop.
He introduced himself and asked for a copy of the contract. Acevedo gave him the contract
immediately. Davis read the contract that evening and was “shocked” that it contained no
provisions which benefited the workers but instead gave the Respondent the right to do
whatever it wanted. He called Acevedo and told him that he did not like the contract, was
“shocked and amazed” that a union official would agree to it, and asked to speak to the person
who signed it. Acevedo replied that he knew that the contract was “no good” but that often a
union would sign “any type of contract they can” just to “get in” the door. Davis responded that
that was “unacceptable and no excuse.” Acevedo testified, admitting that conversation with
Davis.
In March and April, 2006, Davis left several messages with Union secretary-treasurer
Robert Scalza. None of his calls were returned. Finally, he became so frustrated with the
Union’s lack of response he told the Union’s secretary that she would hear from his attorney
next.
Thereafter, Davis asked steward Pica how they could oust the Union. Pica said that he
did not know. Davis phoned the Board’s regional office and was told the steps that had to be
taken to decertify the Union. Davis told Pica what he had learned and Pica said that he had to
speak to the other employees about the matter. Davis stated that he probably told other
employees, too, that he called the Board, but could not recall which workers he spoke to.
Ponsiglione testified that in May or June4, manager DiMario told him that Davis, although
a “decent” employee, was “very unhappy and expressed his unhappiness to everyone.” DiMario
told Ponsiglione that he wanted to terminate Davis. Ponsiglione asked to see Davis in an
attempt to address his concerns and retain a good employee. Davis was told by DiMario when
he arrived at work that he would be taken to meet with Ponsiglione in New Jersey.

4 This meeting will be referred to hereafter as the June meeting.
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Davis testified that at the meeting, Ponsiglione reviewed the current state of the
business and his positive vision for its future - sales were increasing and he hoped that the
employees would be receiving various benefits later. Davis stated that Ponsiglione mentioned
that he could receive pension benefits as a manager or non-union worker. Although Davis
denied saying that he wanted pension benefits, I cannot credit such testimony. Both Ponsiglione
and DiMario stated that Davis sought pension benefits which was only available to non-unit
employees and managers and, even according to Davis, Ponsiglione suggested that he become
a manager in order to receive such benefits.
According to Davis, Ponsiglione asked him directly whether he had a problem with the
Employer. Davis said that he did not, but that he had a problem with the Union. He told
Ponsiglione that he pays Union dues but the Union does nothing for the workers - it does not
return his calls, and he did not like what it was doing. Ponsiglione told him that the Union is not
returning his calls because it cannot do anything for him, adding that he (Ponsiglione) was
always “one step” ahead of the Union. Ponsiglione added that “one good thing about the Union
is that they’re hands off. They allow us to continue to do business on a day to day basis, without
tying things up. It’s not like the Teamsters who come in and disrupt activities.”
Although Davis denied telling Ponsiglione that he wanted to oust the Union, I credit
Ponsiglione’s testimony that Davis asked him how the Union could be decertified. Thus, Davis
was clearly dissatisfied with the Union and had previously asked Pica how to get rid of the
Union, even calling the Board to learn how that could be accomplished. Both Davis and
Ponsiglione testified that Ponsiglione gave him detailed advice on how to expel the Union.
Ponsiglione told him that he personally could not get involved with such a procedure but that
Davis should obtain an attorney, and that there was a “window period” after the summer when
the contract would be expiring during which a petition could be filed with the Board, and after a
vote the Union could be decertified.
According to Davis, Ponsiglione told him that “there’s basically no reason to start up this
union talk right now … there’s no use getting the workers all riled up, it would just slow down
business for the summer” especially since “nothing could be done until the end of the year
anyway.” Davis agreed that he would not make any more complaints about the Union until after
the summer when the Union could be decertified, and he did not make any complaints during
the summer.
Ponsiglione testified that at the meeting Davis had “total disdain” for the Union and the
collective-bargaining agreement. Ponsiglione explained that when he recognized the Union the
Employer was in dire financial straits and could not afford to grant any benefits. The Union
agreed to a contract that would permit the Respondent to “get on its feet.” Ponsiglione conceded
telling Davis that the contract “is not worth anything” but nevertheless the Employer has granted
benefits not provided therein such as life insurance, two additional holidays and pension.
Ponsiglione claimed that Davis wanted the non-union Defined Benefit Plan instead of the Union
pension. Ponsiglione told him that he could not receive that benefit because he was a unit
member, but recommended that he become a manager which would make him eligible to obtain
the Defined Benefit Plan. Ponsiglione further stated that Davis complained about the
commission rate being changed, calling it a “cut in pay.” Ponsiglione told Davis that the new rate
actually represented an increase in pay, and at hearing stated that Davis was the only employee
who made a complaint about the new commission rate.
Ponsiglione and DiMario denied that at that meeting they discussed the Teamsters or
any other union.
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D. The Efforts to Consider Ousting Local 713
Davis stated that in late September, shop steward Pica told him that he was contacted
by the Teamsters union which wanted the workers to attend a meeting to hear what that union
could offer. Davis said that he was “not crazy about unions at all” but he would contact the
union.
Davis called and learned that a meeting would be held in one or two weeks. Davis and
Pica told several employees about the meeting. Davis attended and was the only employee
present. He spoke with Kevin, a Teamsters representative, who gave him some literature. Davis
told Kevin that the main problem at work was the Local 713 contract. Kevin told Davis that if 26
authorization cards were signed, he would meet with the employees. Kevin also advised Davis
to tell Pica what was needed and that Pica would be the main contact with the Union.
The following day, Davis gave the information to Pica, who said that he would contact
his co-workers in order to explore their options, which included retaining Local 713, having the
Teamsters speak to the workers, and having no union.
On October 23, a meeting was held in a manger’s office at the Respondent’s facility.
About 26 to 30 employees were present. Davis stated that Pica led the meeting, announcing the
three options and suggesting that the men vote. According to Davis, Pica did not give his
opinion concerning which option would be best and he did not promote the Teamsters, but he
said that with that union the Employer would respect their seniority. One of the newer
employees asked why their seniority needs to be respected. Another worker “verbally attacked”
Pica.
Davis testified that Pica explained that the Teamsters wanted to provide a better health
package and more sick time. Account manager Keith Dellitalia then asked how Pica could say
that the employees would get better health benefits and more sick time, inquiring why the men
need more sick days or vacation, noting that one week was enough. It seemed to Davis that
Dellitalia contradicted the points that Pica was attempting to make. Then Pica and Dellitalia
went “back and forth.” Davis interrupted their discussion and said that he should give Pica a
chance to talk, particularly as to the other two options. Dellitalia, in a “confrontational voice” then
asked Davis “what do you have against the company? Why do you hate the company so
much?” Davis, who believed that Dellitalia was strongly opposed to having a union, was about
to confront him but did not. Davis testified later at his unemployment insurance hearing that
Dellitalia accused him and Pica of being on the “take from the Teamsters union.” A vote was
taken and Pica reported to Davis that the outcome was that a majority of the employees present
wanted to hear from the Teamsters.
Dellitalia testified that no management or supervisory personnel were present at the
meeting. He further stated that Pica ran the meeting and set forth the three options but tried to
“steer” the workers toward the Teamsters union. Dellitalia conceded that the meeting was
“heated,” and he might have asked Davis why he “hated the company so much.”
E. The Discharge
Ponsiglione testified that on October 30, he held a branch manager’s meeting at the
Brooklyn facility. Present were vice president Brown and DiMario. Ponsiglione told the
managers that employee morale is most important to his organization: if employees are excited
about their work they will be successful and as a result the Employer will be successful.
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Ponsiglione’s first questions to the managers concerned the staffing level and the morale
of the workers. DiMario said that he heard a couple of weeks before that Davis made negative
comments to new employees about the Respondent and the job and that presented a problem
with morale – “we have a problem with Davis again because all summer long … I didn’t hear a
thing about him and now here we are at the end of October and now I’m hearing that we have a
problem. He’s going around. He’s bad mouthing. He’s complaining. He’s constantly complaining
to everybody about the contract, about the union, about this, about that.” Ponsiglione responded
that he believed that “we got over this the last discussion I had with him.” DiMario said Davis is
“really telling the new guys that they should not work here.” Ponsiglione admittedly “went a little
ballistic” and asked DiMario for the source of his information. DiMario replied that Dellitalia told
him. Ponsiglione asked that Dellitalia come to the meeting. Dellitalia came in and reported that
Davis has “been talking to a lot of the men and he’s really been bad mouthing the company.
He’s been telling them that if they can they should really leave and get other jobs.”
1. Employees are Interviewed
Ponsiglione then ordered Brown to go with DiMario and Dellitalia to interview the people
Davis spoke to, make sure that the allegations were not rumors, and have them sign statements
as to what Davis told them. Ponsiglione said that if the witnesses signed such statements, Davis
should be fired immediately.
Brown and DiMario immediately went to the area where the employees were returning
their vehicles and asked employees whether anyone said anything bad about the Employer.
Three workers said they had and recounted their conversations with Davis. DiMario wrote what
the workers told him and the three men signed the statements.
Michael Deleon’s statement: “Account Manager Ron Davis told me to ‘run while you can’
from the Beverage Works Company within weeks of myself being hired on July 16, 2007.”
Deleon testified, confirming Davis’ statement which was made to him when he was alone in the
office completing some paperwork. Deleon stated that he ignored the comment, but told
Dellitalia about it as a “joke.” Later, when DiMario asked about the comment, Deleon told him
that he did not take it seriously.
Ney Gil’s statement: “Within two weeks of being hired [on July 10, 2006] with the
Beverage Works I was approached by Account Mgr. Ron Davis. Ron told me that I shouldn’t
have come to his company for a job and to run while I can.” Gil testified, confirming that
statement which was made to him when he was in a room with other workers. Gil added that
Davis told him that the Respondent was not a good company. Gil voluntarily informed DiMario of
the statement which was made more than once, without prompting by DiMario.
Reshawn Mercheson’s statement: “Account manager Ron Davis told me to ‘get what you
can’ from the Beverage Works. He also said the management staff doesn’t care about the
workers and to get away from the company while I can within weeks of myself being hired
6/26/06.” Mercheson did not testify.
2. Davis is Discharged
The same day, October 30, Davis returned to the warehouse after completing his
deliveries and was told by his manager that he was wanted in the office because he and other
employees were selected to take a drug test. Davis went into the office and noticed other
workers preparing to take the test. He was then told by vice president Brown that the test was
not necessary and that he should report immediately to his office. Present in the office were
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Brown and managers Hantman and DiMario.
Davis testified that Brown said that he had learned that Davis had been telling new
employees that they should “cut and run and leave” their employ with the Respondent. Brown
added that those comments could not be tolerated.
Davis testified that he told the managers that he does not use that “terminology” and
asked why he would ask others to leave if he (Davis) remained employed. Brown said that he
did not know, and was himself confused about why Davis would have said that. At hearing,
Davis denied telling the employees to quit or disparaging the Employer. However, he conceded
advising new workers, including Mercheson, to “get what you can while you can” – meaning that
since their earnings are based on commission, they should sell as many cases as possible and
earn as much as they could. Oddly, at the unemployment hearing, he denied knowing any of the
three workers.
Davis quoted Brown as saying that he had one employee who signed a statement and
two more were doing so. Davis asked for the names of the workers and Brown refused to tell
him. Davis believed that he would be disciplined and asked for a Union representative. Brown
said that a Union representative need not be present, noting that he built the company from the
back of his car and he would not “let anyone come here and destroy it.”
Davis then said that he wanted a letter with the reasons for the discharge. Brown wrote
the following:
It has come to our attention that on more than one occasion [sic]
spoken detrimentally about the Beverage Works. After being
brought to our attention he was terminated immediately.
Davis conceded that none of the management people at the meeting made any
reference to the Teamsters or his efforts to bring another union into the shop.
As set forth above, Davis stated that when he was accused of making the statements he
was not asked if he, in fact, had said those things. In contrast, DiMario testified that he asked
Davis if he made those statements and Davis denied doing so.
Ponsiglione testified that Davis’ statements constituted terminable misconduct because
the Employee Handbook provided for termination for such statements.
The Handbook provides for a “Code of Conduct” which specifies prohibited conduct
which “will be subject to employee disciplinary action … the severity will depend on the
circumstances … which can include immediate dismissal.” “Insubordination” is listed as a
violation of the Code of Conduct.
In addition, the Handbook’s “Disciplinary Procedures” section contains a multi-step
disciplinary procedure relating to performance or conduct. Such steps include counseling, verbal
warning, written warning, suspension and discharge. However, it is stated therein that “an
employee may be discharged if the employee violates any rules listed under the Code of
Conduct in this handbook. Violation of these standards is such a serious breach of responsibility
that no prior warnings or suspension are justified or required.”
The Handbook section entitled “Misconduct” states that an employee may be terminated
for misconduct which is defined as “any voluntary act or omission that is detrimental to The
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Beverage Works’ interests” and identified “misconduct and insubordination” as “an insolent and
impertinent attitude on your part” and “objectionable behavior toward fellow employees,
detrimental to The Beverage Works’ interest and repeated despite warnings.” The Handbook
further states that an employee who “deliberately engages in conduct known to be detrimental
to The Beverage Works’ interests may be discharged without prior warning.”
Ponsiglione stated that Davis’ advice to the three workers that they quit represented the
“straw that broke the camel’s back.” He characterized Davis, based on their meeting in June, as
a man with high intelligence who was overqualified for his job and as a result he would never be
satisfied with his job and would “always complain.” Ponsiglione stated that he did not consider
Davis a threat to the Employer by ousting the Union and bringing in another union, but that he
considered him to be a “disruption” by distracting the workers from their work “with all of this talk
about he’s dissatisfied with the contract … he doesn’t like the union, he doesn’t like the union
representative. He would complain about the pension. He would complain about the
commission schedule. He complained about the automobile policy. I mean he would complain
about everything. He was just a complainer. Now I have 250 people working for me. I don’t have
anybody else like that.” When asked for the specific reason for the discharge, Ponsiglione
stated that he was fired “for making disparaging remarks to other employees about The
Beverage Works encouraging them to leave our employ. That is the reason why I fired him.”
Ponsiglione insisted at hearing that when he made the decision to discharge Davis, he
had no knowledge of the shop meeting on October 23, but that he learned about it, in detail,
from Pica weeks after Davis’ termination, and from Dellitalia, about three months after the
discharge. Specifically, he learned that there were about 20 workers present, 10 left before the
vote and 9 of the remaining 10 voted “for the Teamsters,” that Pica led the meeting telling the
workers that if they get the Teamsters they would receive certain benefits, and that Davis and
others spoke at the meeting. Ponsiglione was also told that Dellitalia challenged Pica, saying
that the Teamsters could not promise anything – it can only negotiate. Ponsiglione further
testified that prior to Davis’ discharge he was not aware that there was any discussion of the
Teamsters in the shop. He noted that the Brooklyn operation shares a pier with a company that
has a contract with the Teamsters and, hypothetically, if he believed that there was a “problem”
with that union he would have his partner tell the Teamsters to “beg off,” adding that he would
not have fired an employee for that reason.
In addition, there was no evidence that any supervisor or other official of the Respondent
was aware of the October 23 meeting or of Davis’ participation in that meeting.
Further, Ponsiglione testified that he was not concerned that Local 713 would be
decertified and another union would represent the employees. He stated that as the former chief
negotiator for an employer’s association in bargaining with a Longshoremen’s Union, he was
very experienced in bargaining and he believed that all unions are the same – “negotiations are
negotiations.”
Brown testified that Davis had “influence” over other workers because he complained to
them about the Respondent. Ponsiglione added that Davis’ sales were low and that he would
occasionally keep some of the Respondent’s money, amounting to $33.00 or $50.00.
It was stipulated that no one has been disciplined or terminated by the Respondent for
the same or similar infraction that Davis was fired for. Ponsiglione testified that Davis was the
sole employee discharged by the Employer for a reason unrelated to theft.
Pica resigned as shop steward about one month after Davis was discharged. Dellitalia
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was elected, and about two to three months after that, Pica quit his job. Dellitalia was promoted
to supervisor in February, 2007 and resigned his position as shop steward.
F. The Grievance Meeting and the Arbitration Hearing
Immediately following his discharge, Davis called Pica and Acevedo, filed a grievance
with the Union and about three or four weeks later, a grievance meeting was held. Present were
Union agent Acevedo, new shop steward Dellitalia, vice president Brown and managers DiMario
and Hantman.
Davis told Acevedo and Dellitalia in private that it was odd that Dellitalia was the new
shop steward since he opposed the Union and criticized former steward Pica at the shop
meeting in which they were to vote on three options which included keeping Local 713, having
no union or having the Teamsters talk to the workers. Acevedo replied that the purpose of the
grievance meeting was to address the reasons for Davis’ discharge. He did not want to bring up
any extraneous matters that would “implicate” other Union members, such as Davis’ comments
about Dellitalia’s actions.
Davis believed that his mention of the Teamsters at that time was the first time that
Acevedo heard about that union in connection with the Employer. Davis testified that Dellitalia
told him that “there’s a group of hard working people here and we don’t want nobody coming in
and destroying this company.”
Acevedo attempted to resolve the matter at the grievance session and asked that Davis
be reinstated but Hantman refused. An arbitration hearing was scheduled.
Present at the arbitration hearing were Davis, Acevedo, Dellitalia and Employer vice
president Brown. Prior to the start of the session, Davis again told Acevedo that he objected to
Delliatalia’s presence since at the October 23 shop meeting in which the workers voted to keep
Local 713, have no union or have the Teamsters speak to them, Dellitalia was “very disruptive”
and “attacked” steward Pica, and then became steward. Acevedo again said that they would
only address the accusations against Davis. He said he would not entertain any comments
about other Union members because “we don’t turn on our own like that.”
At the arbitration, the arbitrator, who was selected solely by the Union, received in
evidence the written statements of the three employees who accused Davis of telling them to
quit. Acevedo asked for the statements and was shown them with the names of the employees
redacted. The three workers did not testify at the arbitration hearing. Davis denied telling the
three workers that they should quit. At the session, no mention was made of Davis’ union or
concerted activities, his disdain for Local 713, his attempt to have the Teamsters speak to
employees, or the shop meeting at which the workers discussed the three options. Acevedo
argued that the Employer had not met its burden because the three employees were not
produced and there was no proper investigation of the incident.
On January 13, 2007 the arbitrator issued his decision finding that Davis made the
statements attributed to him. He noted that the Employee Handbook provided for discharge
where the employee engaged in “any voluntary act that is detrimental” to the Employer’s interest
including insolence, insubordination and objectionable behavior towards fellow employees. The
arbitrator found that Davis’ conduct in “making repeated disparaging remarks about the
company to newly hired employees undermined its inherent right to control and direct its
workforce” and were insolent, insubordinate and objectionable behavior toward his co-workers
and therefore his discharge was justified. At this hearing, Davis conceded having read the
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Handbook and being familiar with its contents.
G. The Unemployment Insurance Proceeding
Following his discharge, Davis applied for unemployment insurance benefits, listing on
his application that he had been laid off for lack of work which he admitted was a false
statement. The Employer responded to the application, saying that Davis was discharged for
making “negative statements to new hires regarding the employer, specifically that he advised
the new hires not to work for the employer, which was detrimental to the employer’s interest as
it could adversely affect employee morale and productivity.”
On January 4, 2007, Davis’ application for unemployment insurance was denied. It was
determined that he was discharged for misconduct, specifically because of his “negative
statements to new hires regarding your employer. You advised new hires not to work for your
employer. You knew or should have known your statements were detrimental to your
employer’s best interest and therefore, would jeopardize your employment.”
It was also held that Davis made false statements about the reason for his discharge.
Davis requested a hearing, and on April 12 and May 22, 2007, a hearing was held. Davis
testified here and at the unemployment insurance hearing that he said that he was laid off for
lack of work because Acevedo told him to do so, and that Acevedo said that if his explanation
had to be changed he could do so. Acevedo testified at this hearing and sent a letter to the
unemployment insurance department that he did not tell Davis to claim that he was laid off for
lack of work. At this hearing, Acevedo stated that he tried to obtain a job for Davis and at the
same time told him to apply for unemployment insurance, stating that his goal was to have
Davis receive some income knowing that he was not working at the time. Davis also testified
that “technically” he believed that he was only suspended and was not discharged until after the
arbitrator ruled that he was fired lawfully which justified his statement that he was separated for
lack of work. The Department of Labor determined that Davis made a willfully false statement.
At the first unemployment insurance hearing, Brown testified but the three co-workers
did not. He submitted the three statements with the names of the employees included. The
unemployment insurance judge wanted the testimony of the three employees but Brown stated
that only two, Sean Mercheson and Michael Deleon, were still employed. She adjourned the
hearing to receive their testimony.
At the resumed hearing, no one appeared in person for the Employer which had
requested an adjournment due to the unavailability of the employee witnesses. The judge
phoned the Employer and denied the request for a postponement. Ponsiglione told the judge
that he would prefer that they testified at the NLRB hearing rather than at the unemployment
hearing.
At the second unemployment insurance hearing, Brown testified that he did not know
how Davis’ statements to the three employees were brought to the attention of management. He
also stated that their names were deleted when the statements were shown to Davis because
he did not want “retribution” to be visited upon the three workers.
The judge asked Ponsiglione why the three workers did not appear at the arbitration
session and Ponsiglione replied that they were working and that their signed, notarized
statements were received by the arbitrator. However, as Ponsiglione conceded here, the
statements were not notarized.
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At the unemployment hearing, Ponsiglione testified that Davis “was a very disgruntled
employee, did not get his way on a union vote, he got nine votes out of seventy seven, and that
got him very mad, and he just made these statements. [apparently referring to the alleged
comments to the new employees] He shouldn’t have made them. They were brash, he did not
think.” At this hearing, Ponsiglione testified that Davis made the statements to the new hires
before the October 23 shop meeting.
The judge overruled the initial finding of misconduct and found that she was not bound
by the arbitrator’s decision because Davis was not afforded due process at the arbitration
hearing because he was not given the right to cross examine his accusers. The arbitrator
accordingly found that Davis did not make the alleged negative statements to his co-workers
since the only non-hearsay evidence presented was Davis’ denials that he made the
statements. However, the judge sustained the initial determination that Davis had willfully
misrepresented that he was laid off for lack of work. The Employer appealed and the Appeals
Board reversed the judge, holding that it was bound by the facts found in the arbitrator’s
decision inasmuch as Davis had the right to cross examine the witness who appeared at the
arbitration hearing as opposed to the employees who did not testify there. Davis is appealing
that decision.
Analysis and Discussion
The complaint alleges that Davis was terminated because he engaged in protected,
concerted activities including seeking the assistance of Local 803, Teamsters instead of Local
713. The case was tried on the primary theory that the precipitating cause of Davis’ discharge
was his activities in contacting and meeting with the Teamsters, and his support, at the shop
meeting, of the proposal that the Teamsters union speak to the employees.
I. The General Counsel’s Case
A. The Discharge for Seeking the Assistance
of the Teamsters Union Instead of Local 713
The complaint alleges that the Respondent terminated Davis and failed to reinstate him
because he engaged in protected, concerted activities including seeking the assistance of Local
803 Teamsters instead of the currently recognized labor organization, Local 713.
Under Wright Line, 251 NLRB 1083 (1980), the General Counsel has the initial burden of
establishing that Davis’ protected, concerted activity was a motivating factor in the
Respondent’s decision to discharge him. The elements commonly required to support such a
showing are that the employee engaged in protected, concerted activity, employer knowledge of
that activity, and animus toward those activities by the employer.
Where the General Counsel makes an initial showing under Wright Line, the burden
shifts to the Respondent to establish that it would have taken the same action even in the
absence of the employee’s activities. An employer cannot sustain its burden simply by showing
that there was a legitimate reason for the action; it must affirmatively demonstrate that the
action would have taken place even absent the protected conduct. Willamette Industries, 341
NLRB 560, 562 (2004). The close timing of a discharge is a factor supporting an inference that
the termination was made because of an employee’s protected conduct. La Gloria Oil & Gas
Co., 337 NLRB 1120, 1124 (2002).
The evidence establishes that Davis was unhappy with the Union’s representation of the
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workers. He criticized the Union contract as lacking any benefits for the workers, he complained
about the Union’s failure to act in the employees’ behalf, he objected to the Union’s lack of
responsiveness to his calls, and he sought advice from the Board and from Ponsiglione as to
how to remove the Union from the shop.
Davis griped about these matters to his co-workers, shop steward Pica, Union agent
Acevedo, and most importantly to Ponsiglione at their June meeting. Davis specifically told
Ponsiglione that he wanted to oust the Union from the facility and Ponsiglione admittedly gave
him detailed information as to how to proceed, including advising him to retain an attorney.
The evidence also establishes that Davis sought the assistance of the Teamsters union.
He spoke to steward Pica about having the Teamsters speak to the employees about
representing them. He called the Teamsters union, met with Teamster agent Kevin and reported
on the meeting to Pica and other workers.
Opposing an incumbent union, as Davis did, constitutes protected, concerted activity,
and discharging an employee for such activities violates the Act. Siro Security Service, 247
NLRB 1266, 1274 (1980). In addition, Davis’ activities in seeking assistance from the Teamsters
union constitutes protected, concerted activity even if he did so on his own. NLRB v. City
Disposal Systems, 465 U.S. 822, 831 (1984). Firing a worker for engaging in such activity
violates the Act. The evidence accordingly supports a finding that Davis was engaged in
protected, concerted activity by expressing his dissatisfaction with Local 713 and by seeking the
assistance of the Teamsters union.
The evidence also establishes that Ponsiglione was aware of Davis’ dislike of the Union,
but what is alleged is that he was discharged because he sought the assistance of the
Teamsters instead of Local 713. The complaint alleges that Davis was discharged, not for
complaining about Local 713, but for seeking the assistance of the Teamsters union.
Accordingly a threshold question is whether the Respondent was aware that he sought the
assistance of the Teamsters union.
There is no direct knowledge that any supervisor or official of the Respondent was
aware that Davis sought the assistance of the Teamsters union. There was no evidence that
Davis’ activities in speaking to Pica about the Teamsters, attending a meeting with a Teamster
agent, informing other workers of his meeting or speaking at the October 23 shop meeting came
to the attention of the Respondent’s supervisors or managers. There was also no evidence that
supervisory officials attended the October 23 meeting at which employees considered the option
of having the Teamsters union speak to them about representation, or were told about the
meeting prior to Davis’ discharge one week later.
In view of the lack of any evidence supporting a finding that any supervisor was aware of
the shop meeting, I credit Ponsiglione’s specific denial that he had knowledge of the shop
meeting when he made the decision to discharge Davis. Town & Country Supermarkets, 340
NLRB 1410, 1412 (2004).
“The Board has long held that, in the absence of direct evidence, an employer’s
knowledge of union activity may be inferred where the circumstances reasonably warrant such a
finding. Bryant & Cooper Steakhouse, 304 NLRB 750, 751 (1991); Society to Advance the
Retarded & Handicapped, 324 NLRB 314, 315 (1997). Here, however, the evidence is
insufficient to support an inference that the Respondent had knowledge of Davis’ activities in
behalf of the Teamsters. Although the timing of the discharge is suspicious since Davis was
fired only one week after the shop meeting at which the Teamsters union was discussed, it does
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not appear that Davis was outspoken at that meeting. Rather, according to Davis, steward Pica
promoted the Teamsters union to the assembled workers. If the Respondent had knowledge of
the shop meeting and bore animus toward anyone for seeking the assistance of the Teamsters,
such animus would have been directed at Pica and not at Davis.
The General Counsel asks that I infer knowledge of Davis’ activities from Dellitalia’s
relationship with management – he had a confrontation with Davis at the shop meeting and was
promoted to a supervisory position four months after Davis’ discharge. Dellitalia was interviewed
by management personnel on October 30 concerning Davis’ suggestion that the three new hires
quit. It is conceivable that he informed the managers at that time that Davis was interested in
having a Teamsters union agent speak to the employees, but such a report would have been
made after Ponsiglione directed the investigation into Davis’ comments to the new hires. In any
event, I cannot support a finding of knowledge based on conjecture and speculation as to what
Dellitalia may have told management officials. Amcast Automotive of Indiana, Inc., 348 NLRB
No. 47, slip op. at 4 (2006).
The only evidence which may provide some support for a finding of animus toward
Davis’ activities is his testimony that Ponsiglione told him at their June meeting that the Union is
a “hands off” union unlike the Teamsters. Ponsiglione conceded that the Union gave the
Respondent concessions in its initial contract, and testified hypothetically that if the Teamsters
union caused a problem he would ask his partner to tell it to “beg off.” However, even assuming
that based on this limited, vague testimony Ponsiglione had a negative attitude about the
Teamsters union, such evidence would still not serve to overcome the failure to prove the
Respondent’s knowledge that Davis sought the assistance of the Teamsters or that he bore
animus against Davis for doing so. Davis admittedly did not mention the Teamster Union at his
June meeting with Ponsiglione, and he could not have since the Teamsters did not enter the
picture until three months later in late September.
An integral part of Davis’ interest in the Teamsters union was his desire to oust
incumbent Local 713. It is clear that Davis’ interest in eliminating Local 713 was well known to
Ponsiglione. If the Respondent was intent on retaining that union because of its compliant
nature, as argued by the General Counsel, Ponsiglione would not have provided information
concerning the decertification process to Davis at the June meeting. Rather, he would have
discouraged Davis from seeking to decertify that union. As further proof of Ponsiglione’s lack of
animus toward Davis at that time was his advice that he seek a management position.
I accordingly must find and conclude that counsel for the General Counsel has not met
her burden of proving that Davis’ protected, concerted activity in seeking the assistance of the
Teamsters union instead of Local 713 was a motivating factor in the Respondent’s decision to
discharge him. Wright Line.
B. The Discharge for Engaging in Protected, Concerted Activities
As set forth above, the complaint alleges that Davis was discharged because he
engaged in protected, concerted activities including seeking the assistance of Local 803,
Teamsters (emphasis supplied). As set forth above, there was evidence that Davis complained
to his supervisor about the new accident policy, the new commission system and the new
check-in procedure. He advised his co-workers of the new accident policy and the commission
system. His fellow workers agreed with his assessment of the new commission system.
These complaints came to the attention of Ponsiglione, and during their June meeting he
asked Davis whether he was unhappy with his job. Although Davis denied having a problem
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with the Employer, Ponsiglione was aware of his complaints about the commission schedule,
pension and the accident policy. Ponsiglione called him the sole “complainer” among 250
workers and considered him a “disruption” because of his complaints.
A threshold question is whether Davis’ complaints constituted concerted activity. In
Meyers Industries (Meyers I), 268 NLRB 493, 497 (1984), the Board stated that “to find an
employee’s activity to be ‘concerted,’ we shall require that it be engaged in with or on the
authority of other employees, and not solely by and on behalf of the employee himself.” The
employee must not only discuss his concerns with other employees, as Davis did here, but also
his co-workers must agree and encourage him to pursue the matter in their behalf. Champion
Home Builders Co., 343 NLRB 671 n. 3 (2004). Here, there is no evidence that Davis’ fellow
workers encouraged him to pursue the matter in their behalf or that he acted with their authority
in complaining about these matters. Similarly, there is no evidence that supervisor Pesante or
Ponsiglione knew that in complaining about these matters he was acting in behalf of his co-
workers. Reynolds Electric, Inc., 342 NLRB 156, 157 (2004). Accordingly, it appears that Davis
acted alone and on his own behalf in making the complaints about working conditions.
Therefore I cannot find that Davis engaged in concerted activities in complaining about the new
accident policy, the commission rate or the check-in procedure.
However, it does appear that Ponsiglione was well aware that Davis “always
complained” to his co-workers and believed that his complaints were a “disruption” because he
distracted his fellow employees from their work with his complaints about the Union, the Union’s
representative, the pension, commission schedule and the automobile accident policy. Clearly,
Davis had the right to “gripe” to his co-workers about their working conditions. However, there
was no evidence that the Respondent prevented him from doing so or took action against him
for engaging in such activities.
Even assuming that I find that Davis engaged in concerted activities by complaining
about working conditions, Ponsiglione knew about his complaints at the June meeting but took
no action against him for making such complaints. Instead, he sought to address them by
meeting with Davis and took no adverse action against Davis for making those complaints.
Further, he encouraged Davis to seek a management position. In contrast, Ponsiglione imposed
discipline on Davis only when he learned that Davis had advised three new hires to quit.
Moreover, the theory that Davis was discharged because he complained about working
conditions was not embraced, litigated or briefed by the General Counsel. As set forth above,
her case in chief was presented on the theory that Davis was discharged because he sought the
assistance of the Teamsters union and not Local 713. There is, accordingly, no basis to find a
violation under this theory of the complaint.
In conclusion, even assuming that I find that the General Counsel has proven that the
Respondent was motivated in its decision to discharge Davis because he sought the assistance
of the Teamsters union instead of Local 713 or, alternatively, because he engaged in protected,
concerted activities by complaining about his working conditions, I find that that the Respondent
has met its burden that it would have discharged him even in the absence of his protected
activities, as follows.
II. The Respondent’s Case
As set forth above, on October 30, Ponsiglione conducted a managers meeting at the
shop and inquired about employee morale. DiMario described Davis’ complaints about the
Union which caused no reaction by Ponsiglione. Then, however, DiMario advised that Davis told
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new hires that they should quit. Ponsiglione had an immediate, negative reaction to that advice
and directed that an investigation take place forthwith to determine whether Davis made those
comments.
Thus, Ponsiglione became aware of Davis’ advice to the new hires for the first time on
October 30. Ponsiglione’s credited testimony, which was corroborated by managers Brown and
DiMario, supports a finding that the investigation and ultimate discharge of Davis came about
solely upon Ponsiglione’s first becoming aware that Davis advised the new hires to leave their
employment with the Employer. The investigation, which involved interviewing the three
employees who had told Dellitalia and DiMario of Davis’ comments, resulted in their signing
statements setting forth what Davis told them. Two of the men, Deleon and Gil, testified,
corroborating their written statements that Davis told them to “run while you can” and that they
should leave the company’s employ.
On October 30, Davis was properly confronted with the substance of the statements –
that he advised three newly hired employees to quit. Although he denied being asked whether
he made those statements, I cannot credit such testimony since he stated that he told the
managers that he does not use such terminology – “cut and run while you can”, and asked the
managers why he would tell others to leave if he continued to be employed. Accordingly, Davis
was asked to present his side of the story and he denied advising the men to quit.
Davis was not told who made the statements. Although there was no expressed basis
for the Respondent’s fear of “retribution” toward the three men, the Respondent’s failure to
inform Davis of their names was not fatal to the process it undertook in discharging him. “It is
not the province of the Board to assure that employees can confront their accusers. An
employer’s failure to accord an employee this asserted ‘right’ does not establish a discriminatory
motive.” Chartwells, Compass Group, USA, Inc., 342 NLRB 1155, 1158 (2004).
I do not credit Davis’ denial that he made the statements. He testified that he said
something similar to the men – “get what you can while you can.” Deleon and Gil testified
candidly and honestly that Davis suggested that they quit, and it is reasonable to find that Davis,
having numerous complaints about the Employer’s change of its policies, would advise new
hires to leave its employ notwithstanding that he chose to remain.5
The fact that the three employees were still employed more than one year later and in
Deleon’s case, ignored Davis’ comment and told Dellitalia about it as a “joke”, and the fact that
he told DiMario that he did not take it seriously, does not lessen the impact of the statements on
the Respondent, nor its belief that they were detrimental to the company.
“In order for an employer to meet its Wright Line burden, it does not need to prove that
the employee actually committed the alleged offense, but must, however, show that it had a
reasonable belief that the employee committed the offense, and that the employer acted on that
belief in taking the adverse employment action against the employee.” Midnight Rose Hotel &
Casino, 343 NLRB 1003, 1005 (2004). Accordingly, I find that based on the written statements
signed by the three employees, the Respondent reasonably believed that Davis told the three
men that they should quit their employ, and acted on that belief in discharging him.

5 The General Counsel correctly observed that Deleon and Gil were nervous while testifying.
However, that condition may be attributed to many reasons. There is no reason to believe that
they were testifying dishonestly.
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Thus, I credit the testimony of Ponsiglione in the absence of any evidence to the
contrary that on October 30 he first learned of Davis’ advice to new workers that they quit.
Ponsiglione’s knowledge of that incident immediately triggered the investigation of those
comments and Davis’ immediate discharge for that reason. It is true, as argued by the General
Counsel, that this information came to the attention of the Respondent’s official DiMario three
months before the discharge. However, there was no evidence that DiMario told Ponsiglione,
the person who directed the investigation and made the decision to discharge Davis, about
Davis’ comments prior to October 30. It was only at a meeting of the officials and supervisors on
October 30 that the matter came up when Ponsiglione asked about employee morale at the
facility. After hearing that Davis advised newly hired workers to quit, Ponsiglione immediately
ordered an investigation into the matter and statements were taken from the three employees
who spoke to Davis. I credit the Respondent’s witnesses that there was no mention of the Union
or the Teamsters during the discussion of or the investigation into Davis’ comments.
The Board has held that an employer may lawfully discharge an employee for
suggesting that his co-worker quit his employment. Abell Engineering & Mfg., 338 NLRB 434
(2002)6; Clinton Corn Processing Co., 194 NLRB 184, 185-186 (1971). See also Plastic
Composites Corp., 210 NLRB 728, 738 (1974) where an employee was lawfully discharged for
telling other workers what he earned in other employment, which statement the employer
determined adversely affected the morale of those employees.
The General Counsel argues that the Respondent did not follow its Handbook’s multi-
step disciplinary procedure but rather violated its rules by summarily firing Davis. However, the
Handbook specifically provides that an employee who “deliberately engages in conduct known
to be detrimental to the [Employer’s] interests may be discharged without prior warning.”
Clearly, suggesting that three new hires quit their employment is obviously detrimental to the
Employer’s interests in retaining workers in its growing business. This is particularly so where
Ponsiglione identified employee morale as the single most important factor in the Employer’s
success. Davis’ actions in attempting to persuade the three men to quit must have had the
intended effect of lowering morale among the three workers despite their testimony that they
ignored his suggestion and continued to work.
The fact that the Respondent did not discharge anyone prior to this incident for
suggesting that employees quit their employment does not undermine my finding that Davis was
lawfully discharged for advising that employees resign. There was no evidence that the
Employer has been confronted with similar conduct. Mountain Shadows Golf Resort, 338 NLRB
581, 584 (2002).
I accordingly find and conclude that the Respondent has not violated the Act by
discharging Ronald Davis on October 30, 2006.
Conclusions of Law
1. The Respondent, The Beverage Works NY, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.

6 The Board noted in Abell that the serious harm to the employer was the fact that it was a
small shop having only three employees in the unit in which the employee was solicited to quit.
Here, although the Respondent has a larger work force, the loss of three new hires may be just
as significant.
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2. The Respondent has not engaged in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act in any manner, as alleged in the complaint.
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended7
ORDER
The complaint is dismissed.
Dated, Washington, D.C., December 27, 2007.
____________________
Steven Davis
Administrative Law Judge

7 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 objections to them shall be deemed
waived for all purposes.