Valley Bakery

National Labor Relations Board - Board Decisions

Oct 19, 1976

226 N.L.R.B. 532 (N.L.R.B. 1976)

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Valley Bakery and Edward Benefield . Case 20-CA-
9765
October 19,. 1976
DECISION AND ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On August 5, 1976, Administrative Law Judge Irv-
ing Rogosin issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and the Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F.2d 362 (C A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 In adopting the Administrative Law Judge's dismissal of the complaint,
we rely solely on the finding that at no point did Respondent discharge the
alleged discnminatee. Accordingly, we find it unnecessary to consider or
rely upon the Administrative Law Judge's alternative grounds in dismissing
the complaint.
DECISION
tive-bargaining agreement to which Respondent was a par-
ty or because he had engaged in other protected concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.
On June 19, 1975, the Board issued its Decision and Or-
der (218 NLRB 686), granting motion for summary judg-
ment, filed by counsel for the General Counsel, on the
ground that Respondent had at no time filed an answer to
the complaint, or a response to the Board's notice to show
cause why General Counsel's motion for judgment on the
pleadings should not be granted. Upon motion for recon-
sideration, filed by Respondent, on August 19, 1975, and
opposition thereto filed by counsel for General Counsel, on
September 2, 1975, the Board, by order dated November
19, 1975, vacated the Decision and Order, denied the Gen-
eral Counsel's motion for summary judgment, granted Re-
spondent 10 days from the date of service of the order
within which to file an answer to the complaint, and re-
manded the case to the Regional Director for appropriate
action.
On November 26, 1975, the Regional Director reinstated
the complaint issued on January 14, 1975, and scheduled
the case for hearing on February 3, 1976.'
On December 1, 1975, Respondent filed an answer to the
complaint, admitting the filing and service of the charge,
the nature of Respondent's business, and the execution of
the collective-bargaining agreement referred to in the com-
plaint but denying the remaining allegations.2
Hearing was held before me on February 19, 1976, at
Fresno, California. General Counsel and Respondent were
represented by counsel, were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to intro-
duce evidence relevant and material to the issues, to argue
orally, and to file briefs and proposed findings of fact and
conclusions of law. At the outset of the hearing, Respon-
dent moved orally that the proceeding be deferred to arbi-
tration under the collective-bargaining agreement. The mo-
tion was denied with leave to renew before the close of the
hearing. At that time, Respondent remained undecided
whether to urge deferral to arbitration but, thereafter, in its
brief, withdrew the motion. At the close of General
Counsel's case, Respondent also moved to dismiss the
complaint. This motion, too, was denied, with leave to re-
new. When renewed at the close of the hearing, ruling was
reserved. The motion is disposed of by the findings and
conclusions hereinafter made. The parties waived oral ar-
gument but, pursuant to an extension of time duly granted,
filed briefs on March 30, 1976. No proposed findings of
fact or conclusions of law have been filed by any of the
parties.
Upon the entire record in the case, and based upon the
appearance and demeanor of the witnesses, and the briefs,
STATEMENT OF THE CASE
IRVING RocosiN, Administrative Law Judge: The com-
plaint, issued on January 14, 1975, alleges that Respondent
has engaged in unfair labor practices within the meaning of
Sections 8(a)(1) and (3) and 2(6) and (7) of the Act.
Specifically, the complaint alleges that on or about Octo-
ber 25, 1974, Respondent discharged Edward Benefield be-
cause of his union activities in seeking to enforce a collec-
i The heanng was subsequently rescheduled to February 19, 1976, to ac-
commodate Respondent's counsel.
2 Designations herein are as follows. General Counsel, unless otherwise
stated, or required by the context, his representative at the heanng, Valley
Bakery, Respondent, the Employer, or the Company, Edward Benefield,
the Charging Party; the National Labor Relations Act, as amended (61 Stat
136, 73 Stat. 519, 29 U.S C Sec 151, et seq), the Act, the National Labor
Relations Board, the Board. The charge was filed and served on November
29, 1974.
226 NLRB No. 83
VALLEY BAKERY 533
which have been duly considered, I hereby make the fol-
lowing:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits, and
it is hereby found that Respondent, a sole proprietorship,
owned and operated by Samuel G. Saghatelian, doing busi-
ness under the trade name of Valley Bakery, was, and at all
times material herein has been, engaged in the production
and wholesale distribution of bakery products at Fresno,
California.'
Although Respondent's answer denies the commerce
allegations, it was stipulated at the hearing that during the
calendar year 1974, in connection with the production and
wholesale and retail distribution of its products, Respon-
dent's gross sales exceeded $530,000, of which in excess of
$10,000 were made directly to customers located outside
the State of California.
Upon the basis of the foregoing, and upon the entire
record, including the stipulation of the parties, it is hereby
found that, at all times material herein, Respondent has
been an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It was further stipulated at the hearing that Bakery and
Confectionery Workers, International Union of America,
Local 85, is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act .4
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. Whether the action taken by Respondent against
Benefield , on or about October 25, 1974, constituted a dis-
charge or involuntary termination of his employment.
2. If so, whether in discharging Benefield, Respondent
was motivated by his alleged union activities in attempting
to enforce the existing collective-bargaining agreement or
by other protected concerted activities.
3 According to Saghatelian, the business was incorporated about a year
before the hearing under the same firm name, and his sister acquired a
25-percent interest in the corporation Since this resulted in no change in
name of the business entity, the caption in the complaint has been retained
in this Decision. There is no issue concerning successorship of the corpora-
tion to the business formerly conducted by Saghatelian as sole proprietor.
4 It was also stipulated that the collective-bargaming agreement, referred
to in the complaint, was executed by Bakery and Confectionery Workers
Union, Local 43, which subsequently merged with Local 85 of the parent
union, in March 1974. There is no issue as to the status of Local 85 as
collective-bargaining representative of the employees covered by that con-
tract
B. Discrimination in Regard to Hire and Tenure of
Employment
Respondent and the Union were parties to a collective-
bargaining agreement, containing a union-security provi-
sion, effective from July 1, 1972, to June 30, 1975.5
Edward Benefield was hired by Respondent initially in
February 1974, to perform sundry tasks, consisting of
cleaning and assisting in greasing screens, dumping flour
into bins, weighing ice, loading and unloading ovens,
sweeping, and generally performing similar chores.b
Benefield had had no previous experience in the bakery
business and, contrary to his contention, did not work as
either a journeyman or apprentice baker while in Respon-
dent's employ. He worked full time, 6 days a week, 8 hours
a day, plus overtime, until about the end of April 1974.7
Toward the end of April, Benefield was off work several
days due to some trouble with his hand. When Benefield
returned to work, Saghatelian told him that he had been
considering laying him off. Benefield, asked for his pay-
check and quit voluntarily.
On or about September 3, 1974, Benefield was rehired in
the same capacity in which he had previously been em-
ployed. On or about October 21, he went to the union
office and spoke to Business Agent Harold Guyette.8 Bene-
field asked Guyette whether he would receive union scale if
he joined the Union. Guyette explained that, if Benefield
had already been working for more than a month, he
would be required to join in accordance with the union-
security provisions of the collective-bargaining agreement.
Benefield told Guyette that he was being paid $2.50 an
hour, and asked him how much he should be receiving. In
response to Guyette's questioning, Benefield acknowledged
that he was not a journeyman baker and that he had never
worked in a bakery before. Guyette told him that, under
those circumstances, the only job for which he was quali-
fied was, that of miscellaneous worker, which paid $3.05 an
hour under the contract. Guyette assured Benefield that he
could secure that rate for him and collect the difference
between what he had been paid and the wages he should
have received under the miscellaneous wage scale. Bene-
field told Guyette that he had even done some of the work
of a journeyman baker, and argued that he was at least
entitled to the apprentice scale of $3.16 an hour. Guyette
disagreed and told Benefield that, based, on his, description
of his duties, his proper job classification was miscella-
neous worker, at $3.05, and that he would see that Bene-
field was paid at that rate, and reimbursed for the differ-
ence in his past wages.
Guyette telephoned Saghatelian and arranged a meeting
for October 25. Guyette and Benefield met with Saghateli-
an at the bakery in the late afternoon. When Guyette ques-
tioned Saghatelian about Benefield's duties, Saghatelian
5 This finding is based on the admission in Respondent's answer to the
allegations of the complaint.
6 Respondent's products consist of peda bread, rolls, crackers, and other
Armenian bakery products. The screens referred to above were actually
baking pans, perforated on the bottom, used in baking rolls.
7 Although he had been employed for more than' 30 days, he admittedly
did notjoin the Union during this period, notwithstanding the union-securi-
ty provision of the contract.
Guyette retired as business agent of the Union as of April 1, 1975
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
described them in much the same way Benefield had relat-
ed them to Guyette. Saghatehan mentioned, however, that
Benefield had been hired to handle the heavy work, which
Saghatelian had been unable to do because of surgery he
had undergone to his hand. Saghatelian told Guyette that
the condition of his hand had improved sufficiently so that
he was capable of doing the work himself.
When Saghatelian confirmed that he had been paying
Benefield $2.50 an hour, Guyette told Saghatelian that the
wage scale for miscellaneous worker under the contract
was $3.05. Benefield persisted in his claim that he was enti-
tled to the apprentice scale of $3.16 an hour. Saghatelian
told Benefield that he would not pay him the apprentice
rate, and that he was only entitled to the miscellaneous
worker scale. Guyette agreed that Benefield's job was that
of miscellaneous worker rather than apprentice, and that
he was only entitled to the $3.05 rate, which, Guyette told
Benefield, Saghatelian had agreed to pay him retroac-
tively.
Angered by Saghatelian's refusal to grant him the ap-
prentice scale, and his assertion that the job entailed only
the duties of miscellaneous worker, Benefield pointed at
Saghatelian and, shaking his fist menacingly, shouted,
"You are a god damn liar. You are so god damn tight, you
squeak when you walk around. You are a cheap son of a
bitch." 10 Saghatelian testified that he was frightened and
"in a state of shock" at Benefield's outburst, and told him,
,,all right if you're going to be that way, you better go
home." Saghatelian then resumed his work, and Benefield
asked Guyette what he proposed to do about the matter.
The business agent made no response, and Benefield left.
Benefield did not return to the bakery, but 4 or 5 days
later, on about October 29 or 30, went to the union office,
and asked Guyette what he was going to do about "my
being fired." Guyette told him that there was nothing he
could do, and that Benefield was free to do as he pleased.
Nevertheless, Guyette called Saghatelian and asked him
why he had let Benefield go. According to Guyette, Sag-
hatelian told him that he had hired Benefield on a part-
time basis until Saghatelian recovered from the surgery,on
his hand. When Benefield failed to return to his job after
being sent home on October 25, Saghatelian apparently
decided that he could dispense with Benefield's services by
doing the work himself. Benefield called on Guyette again,
and asked him if he was "going to get him his job back."
Guyette told him what Saghatelian had said, and took no
further action."
For about a week or 10 days after Benefield was sent
home, Saghatelian handled Benefield's job until he found
the work too strenuous. He then hired a temporary em-
ployee for about a week or less to assist him. Saghatelian
denied that he hired this employee as a replacement for
9 It is undisputed that Saghatelian actually compensated Benefield retro-
actively for the difference between the miscellaneous worker's rate under
the union contract and the amount he had been paid
10 Benefield admitted calling his employer "a damn liar" and did not
deny the remainder of the statement Guyette testified that Benefield used
profanity during his outburst. It is found that Benefield made the remarks
attributed to him by Saghatelian
"Although Benefield filed an unfair labor practice charge against the
Union, allegedly for denying him fair representation, the charge was subse-
quently withdrawn
Benefield . Benefield notified Guyette that Saghatelian had
hired a new employee, and Guyette questioned Saghatelian
about it. He was informed, according to Guyette, that the
employee had not been hired as a replacement for Bene-
field but merely to help out temporarily. Saghatehan's tes-
timony that this employee worked a week or less was un-
contradicted.
Based on this evidence, the General Counsel contends
that Respondent discharged Benefield on October 25,
1974, and that he did so either because of Benefield's union
membership and activities or because 'he had-attempted to
enforce, the wage provisions of the collective-bargaining
agreement by insisting that his rate of compensation
should be based on the apprentice wage scale. In her brief,
counsel for General Counsel contends that Benefield was
discharged coley because he called his employer a liar in
the course of a "grievance proceeding.",
Respondent categorically denies that he discharged
Benefield under any circumstances, least of all, for any of
the reasons assigned by General Counsel. -
It is undisputed that, when Saghatelian sent Benefield
home after the altercation, he used no explicit words of
discharge. Moreover, according to Saghatelian, he had had
no intention of discharging Benefield on the day in ques-
tion, and had no such intention when he sent him home. In
fact, ,according to Saghatelian, it was not uncommon for
him to' send employees home temporarily for various in-
fractions. Almost invariably, he testified, they were permit-
ted to resume their jobs after apologizing. Whether Bene-
field was aware of this practice, in view of his relatively
short period of employment, is not known. Guyette testi-
fied that, in his capacity as union representative, he knew
of instances in which this had occurred. 12
In any case, it is reasonable to assume; given Benefield's
explosive outburst and Saghatelian's reaction to it, that if
Saghatehan had intended to discharge Benefield , he would
not have resorted to any euphemism but would have done
so in unequivocal terms, leaving no doubt as to his inten-
tion. By the same token, if Benefield were in any doubt as
to whether his employer was terminating his employment,
he had only to ask him. In view of Benefield's belligerence
toward his employer, it seems improbable that he would
have submitted meekly to being sent home without know-
ing whether he was being discharged.
This, suggests that Benefield assumed that he was being
discharged because he realized that his conduct had war-
ranted such action. From Saghatelian's standpoint, it
would appear that he sent Benefield home to avoid pro-
longing the unpleasant confrontation, anticipating that he
would return when he had cooled off. Benefield, however,
chose to consider himself discharged rather than put his
employer to the test by attempting to return to work. To
put it in the vernacular, Benefield "jumped the gun" in
concluding that he had been discharged. Obviously, he lat-
er thought better of it when he attempted to enlist
Guyette's support in clarifying his employment status.
12 Considering that he was of the opinion that Benefield had not been
discharged, Guyette's inability to recall whether he advised Benefield to
attempt to return to work seems surprising However, Guyette pleaded lack
of recollection about many details due to the considerable lapse of time
since the events occurred
VALLEY BAKERY 535
This is not to suggest that an employee who has been
discriminatorily discharged is required to make application
for his job before he may maintain a claim of discrimina-
tion. By the same token, an employer who has sent an
employee home for insubordination is not required to re-
call him before the employee has indicated his desire to
return to his job. It would seem that ordinary prudence
would dictate that an employee who has been sent home
after an altercation with his employer, which the employee
himself had provoked, would attempt to ascertain his actu-
al employment status from his employer. Benefield did
nothing for 4 or 5 days, during which Saghatelian could
reasonably have concluded that Benefield had no desire to
return to his job. During this interval, Saghatelian conclud-
ed that he could dispense with Benefield's services by
doing the work himself, having maintained that he had
hired Benefield on a temporary basis until his hand mend-
ed. After 4 or 5 days, Benefield apparently had some sec-
ond thoughts, and sought to enlist the aid of his union
representative in interceding with Saghatelian. That Guy-
ette did so does not establish that he believed that Bene-
field had actually been discharged, discnmmatonly or
otherwise. -
Evidence that Saghatelian hired a part-time employee
some 10 days after Benefield left has not been overlooked.
According - to Saghatelian's uncontradicted testimony,
however, this employee was not hired as a replacement for
Benefield but only on a temporary basis for 4 or 5 days.
The preponderance of the credible and reliable evidence
fails to support a finding that Respondent actually dis-
charged Benefield on October 25, 1974, for the reasons ad-
vanced by General Counsel, or for any other reason. Since
this finding would ordinarily be determinative of the issues
raised by the complaint, it should be unnecessary to pass
upon Respondent's alternative defenses. In the event, how-
ever, that it should ultimately be determined that Benefield
was, in fact, discharged, Respondent's alternative defenses
will be considered.
Respondent contends that, even if it should be found
that Benefield was, in fact, discharged, the complaint can-
not be sustained because (1) the evidence fails to establish
that the activities in which he engaged constituted concert-
ed activities within the meaning of the Act; (2) the dis-
charge was not motivated by union animus or antiunion
considerations; and (3) the discharge was for cause.
(1) While it has been held that an employee who seeks
to enforce the provisions of a collective-bargaining agree-
ment may be deemed to be engaging in concerted activi-
ties, even in the absence of a similar interest by fellow
employees,13 the record here clearly establishes that, in
seeking to secure the apprentice wage rate provided for in
the collective-bargaining agreement, Benefield was acting
solely on his own behalf, as an individual, and not for the
purpose of implementing the wage provisions of the agree-
ment. Hence, it cannot be found that the activity in which
he engaged was in any sense concerted. There is no evi-
dence that Benefield engaged in any other union or con-
certed activities, beyond mere membership. Moreover, the
record discloses that, during his initial period of employ-
ment, he failed to join the Union, notwithstanding the exis-
tence of a union-security provision, and even though he
had been employed longer than 30 days.
(2) The record fails to establish any evidence of union
animus by Respondent or animosity or hostility toward
Benefield, either because of his union membership or activ-
ity or because of his efforts to secure the apprentice wage
scale.
Respondent had been a party to a collective-bargaining
agreement with the Union (or its predecessor) for a num-
ber of years, and relations between the parties had been
satisfactory. Furthermore, Saghatelian voluntarily reim-
bursed Benefield for the adjustment in his wage scale, with-
out argument, protest, or dispute, and there was no show-
ing or contention that Saghatelian's subsequent conduct
with regard to Benefield was motivated by resentment at
having to make up the difference in Benefield 's wages.14
(3) Finally, Respondent contends that, if, in fact, Bene-
field was discharged, his behavior on the day in question
would have fully justified his discharge. The defect in this
argument is that, since Respondent denies that he dis-
charged Benefield, in any circumstances, he cannot now
contend in retrospect that he would have had ample justifi-
cation for his discharge if he had wished to avail himself of
those grounds.
In view of these findings, it is unnecessary to consider
whether Benefield's remarks to his employer on the occa-
sion in question were so opprobrious as to remove them
from the protection of the Act.15
On the entire record and, based on the appearance and
demeanor of the individuals involved, it is found that Sag-
hatelian did not discharge Benefield on October 25, 1974,
and that, in any event, Respondent did not, by his action
on that date, discriminate in regard to the hire or tenure of
Benefield's employment to discourage membership in the
Union or interfere with, restrain, or coerce employees in
the exercise of rights guaranteed in Section 7, in violation
of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE ALLEGED UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of Re-
14 There is also evidence in the record that, sometime prior to the incident
involving Benefield, when employees engaged in a strike over Respondent's
alleged failure to pay overtime, and an adjudication was rendered against
him by a state labor commissioner, Respondent paid these employees the
amount of overtime awarded them and reinstated them to their former posi-
tions without subsequent retaliation or reprisal. The General Counsel's as-
sertion that she expected to prove that Respondent engaged in a routine
pattern or practice of discharging employees as soon as they joined the
Union under the Union's security provisions of the contract was never es-
tablished, Guyette, himself, testifying that he had no knowledge of the exis-
13 N.LR B v. Interboro Contractors, Inc, 388 F 2d 495 (C A 2. 1967), tence of any such pattern or practice, a matter which would normally have
N L R.B. v C & I Air Conditioning, Inc, 486 F.2d 977 (C A. 9. 1973), cf, been expected to receive the attention of the union representative if such a
however, N LR B v Northern Metal Company, 440 F.2d 881 (C A 3, 1971), pattern had prevailed
N.L.R B v. Oklahoma Allied Telephone Company, Inc, (C A 10, 1975) (un- 15 See Crown Central Petroleum Corporation, 177 NLRB 322 (1969), enfd
published), reversing 210 NLRB 916 (1974). 430 F 2d 724 (C.A 5, 1970)
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has not engaged in un-
fair labor practices within the meaning of Section 8(a)(I)
and (3) of the Act or in any other unfair labor practices, it
will be recommended that the complaint be dismissed in its
entirety.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
3. Respondent did not, on or about October 25, 1974,
discharge Edward Benefield, and, in any event, did not, by
his action on that date discriminate in regard to his hire
and tenure of employment to discourage membership in a
labor organization, in violation of Section 8(a)(3), or inter-
fere with, restrain, or coerce employees in the exercise of
rights guaranteed in Section 7, and has not thereby en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act.
4. The unfair labor practices in which Respondent is al-
leged to have engaged are unfair labor practices affecting
commerce within the meaning of Section 2(6) and' (7) of
the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law and, upon the entire record, and pursuant
to Section 10(c) of the Act, I make the following recom-
mended:
1. Valley Bakery, Respondent herein, is, and at all times
material herein has been, an employer engaged in com-
merce and in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act and the
jurisdictional standards of the Board.
2. Bakery and Confectionery Workers International
Union of America, Local 85, the Union herein, is, and at
all times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
ORDER16
The complaint is hereby dismissed in its entirety.
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes