Venezia Bread Co.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1048 (N.L.R.B. 1964)

1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anthony Accetta , d/b/a Venezia Bread Company and Chauffeurs,
Sales Drivers and Helpers Union, Local No. 572 , International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America. Case No. 21-CA-5599. June 29, 1964
DECISION AND ORDER
On March 26, 1964, Trial Examiner Howard Myers issued his De-
cision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Decision attached hereto. There-
after, the Respondent filed exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Farming and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Decision,
the exceptions, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
with the following modifications :
We find, as did the Trial Examiner, that the Respondent discrimina-
torily discharged Natale Russo when the latter reported for work on
July 3, 1963, because Russo had filed a complaint with the Union
charging that Respondent, under its contract with the Union, owed
him back wages. We also find, in further agreement with the Trial
Examiner, that by the discriminatory working conditions it attempted
to impose upon Russo, the Respondent clearly indicated that its pur-
ported reinstatement offer of September 25, 1963, was not made in
good faith.
THE REMEDY
We do not adopt the Trial Examiner's remedy. The Trial Ex-
aminer ordered that Russo be reinstated immediately. However, the
record indicates that the Respondent's volume of business has fluctu-
ated, and that the immediate reinstatement of Russo might require
the displacement of employees who on the basis of their seniority and
other nondiscriminatory criteria would ordinarily be entitled to pref-
erence in retention over Russo. Accordingly, we shallorder that the
Respondent offer to Natale Russo full reinstatement, dismissing if
necessary any employee hired or recalled since July 3, 1963, with
less seniority than Natale Russo. If there is not then sufficient work
available, the Respondent-shall place Natale Russo upon a preferential
147 NLRB No. 121.
VENEZIA BREAD COMPANY 1049
hiring list, and thereafter offer him reinstatement when work be-
comes available and before other persons are hired for such work.
The. I esponcient shall make, Russo whole for,any, loss of earnings he
has suffered from the date of the discrimination against him to the
date of an offer of reinstatement or -placement upon a preferential
hiring list, making allowance for any period during which the ap-
plication of objective criteria establishes that Russo would not have
been employed and offsetting any net earnings during said period.
Backpay is to be computed in accordance with F. W. Woolworth Comm-
pa,ny, 90 NLRB 289, with interest added as set forth in isis Plumbing
cC Heating Co.. 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Recommended
Order of the Trial Examiner and orders that the Respondent Anthony
Accetta, d/b/a Venezia Bread Company, his officers, agents, successors,
and assigns shall take the action set forth in the Trial Examiner's
Recommended Order, with the following amendments :
Substitute the following for paragraphs 2(a) and (b) of the Trial
Examiner's Recommended Order, and reletter the other paragraphs
accordingly :
(a) Offer Natale Russo full reinstatement to his former or a
substantially equivalent position and make him whole for any loss
of pay suffered by reason of the discrimination against hiln, in
accordance with the section of this Decision and Order entitled
"The Remedy."
Strike from the third -indented paragraph of the Appendix the
words "immediate and".
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 9, 1963,1 Chauffeurs, Sales Drivers and Helpers
Union, Local No. 572, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union, the General Counsel
of the National Labor Relations Board, herein respectively called the General
Counsel 2 and the Board, through the Regional Director for the Twenty-first Region
(Los Angeles, California), issued a complaint, dated January 13, 1964, against
Anthony Accetta, d/b/a Venezia Bread Company, herein called Accetta, alleging
that Accetta has engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7)
of the National Labor Relations Act, as amended, from time to time, 61 Stat., 136,
herein called the Act.
Copies of the charge, complaint, and notice of hearing were duly served upon
Accetta, and copies of the complaint and notice of hearing were duly served upon
the Union.
1 Unless otherwise noted, all dates mentioned herein refer to 1963.
2 This term specifically includes counsel for the General Counsel appearing at the bearing.
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Specifically , the complaint alleges that Accetta : ( 1) On or about July 3 discharged
Natale Russo , and thereafter refused to reinstate him to his former or substantially
equivalent position , because Russo had joined or assisted the Union or had otherwise
engaged in protected concerted activities ; ( 2) on or about September 25, threatened
employees with reprisals because they had engaged in union activities ; ( 3) on or
about September 25, refused to reinstate Russo because he had joined or assisted
the Union or had otherwise engaged in protected concerted activities , and thus had
discriminated in regard to the hire or tenure of employment or terms or conditions
of employment of his employees in violation of section 8(a) (3) and ( 1) of the Act.
On January 20, 1964 , Accetta duly filed an answer denying the commission of the
unfair labor practices alleged.
Pursuant to due notice, a hearing was held at Los Angeles, California, on Jan-
uary 30, 1964, before Trial Examiner Howard Myers . The General Counsel was
represented by counsel , Accetta by a management consultant , and the Union by an
official thereof. Full and complete opportunity was afforded the parties to call,
examine , and cross-examine witnesses , to introduce evidence pertinent to the issues,
to argue orally on the record at the conclusion of the taking of the evidence, and to
file briefs on or before February 17, 1964. A brief has been received from the
General Counsel which has been carefully considered.3
Upon the entire record in the case and from his observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. ACCETTA'S BUSINESS OPERATIONS
Accetta does business under the firm name and style of Venezia Bread Company,
at San Pedro, California, where he bakes, sells, and distributes bread and related
products. Accetta annually purchases goods valued in excess of $50,000 from firms
located within the State of California who, in turn, purchase and receive said goods
directly from points located outside the State of California.
Upon the basis of the above-admitted facts and upon the entire record in the case,
it is found, in line with established Board authority, that Accetta is engaged in,
and during all times material was engaged in, business affecting commerce within
the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies
of the Act for the Board to assert jurisdiction over these proceedings.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of Accetta.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement
For some time prior to opening of the hearing herein, Accetta had contractual
relations with the Union and some of its sister locals covering his driver-salesmen.
During most of June 1963, Accetta employed four driver-salesmen, to wit: (1)
Dominic Grillo, the most senior in time of service with Accetta and who had the San
Pedro route; (2) Anthony Iacono, the next senior in time of service and who had part
of the so-called McCoy route; (3) Natale Russo, cousin of Accetta and third in time
of service and who had that portion of the McCoy route which Iacono did not service;
and (4) Tony Russo, Natale Russo's brother and cousin of Accetta, the least in time
of service'and who had the so-called Patton route.
At the end of June, because of certain dissatisfaction with Accetta, not here
pertinent, McCoy ceased doing business with Accetta. Iacono was then laid off
and Russo 4 was given Grillo's San Pedro route while Grillo was on vacation.
B. The pertinent facts
Russo was first hired by Accetta as a driver-salesman in June 1962 , at which time
he was assigned to the so-called Patton route. This route serviced Patton's,super-
market stores located in Santa Ana, Whittier, and Norwalk , California.
8 After the close of the hearing, the General Counsel filed a motion to correct certain
inaccuracies appearing In the stenographic report of the hearing. The motion is hereby
granted and the motion papers are received in evidence as Trial Examiner 's Exhibit No. 1.
Natale Russo is hereinafter referred to as Russo.
VENEZIA BREAD COMPANY 1051
After about a month on the aforementioned route, Russo was assigned to the so-
called McCoy route. On this assignment, Russo serviced the McCoy supermarkets
located in Long Beach and Wilmington, California. Russo remained on this as-
signment until about July 1, 1963, when he was transferred to the San Pedro,
California, route.
Early on Wednesday, July 2, Russo went to the headquarters of the Union, of
which organization he was a member, and informed Business Representative Jack
D. Cox that, under the terms of the current collective-bargaining contract between
Accetta and the Union, there was due him from Accetta certain pay for overtime
worked.
Later that day, July 2, Cox telephoned Accetta's bakery and, in Accetta's absence
therefrom, told Accetta's wife, a supervisor within the meaning of the Act, that
Russo had filed a claim with the Union claiming that there was due him from Accetta
some $7,000 for unpaid overtime. Mrs. Accetta told Cox that she would have her
husband contact him.
That afternoon, July 2, Mrs. Accetta and Russo had a telephone conversation in
which, according to the latter's uncontroverted and credible testimony, the follow-
ing ensued:
She said, "Is it true that you went to the union and complained about wages?
My husband and I are all shook up about it . . . . Could you come
down and we will make a deal?"
I says [sic] "It is out of my hands now. You will have to talk to the union."
The following day, Thursday, July 3, Russo was scheduled to work.5 He was driven
to Accetta's bakery by his wife, and son, Matthew. Upon arriving at Accetta's
parking lot, Russo got out of the automobile and got into his truck. At about that
moment Accetta and driver-salesman Iacono drove into the lot. Upon seeing
Russo, his wife, and son, Accetta called to Russo's wife, saying "Ida, wait for your
husband. He is not working for us anymore." Thereupon, Russo tossed Accetta
the keys to the truck and left the premises. Accetta, himself, serviced Russo's route
that day.
After Russo was discharged, Accetta assigned Russo's brother, Tony, who was
junior to Russo in seniority, to service Russso's Patton route. Tony Russo remained
on this job for about 2 or 3 weeks, when this particular route was temporarily
eliminated.
From the time of the temporary discontinuance of the Patton route, referred to
immediately above, until about September 25, Grillo was the only driver-salesman in
Accetta's employ.
On September 24, Accetta sent Russo a telegram to report for work the follow-
ing day.
On September 25, Russo, accompanied by Cox and Tony Russo, went to the bakery
and saw Accetta. There, after Accetta had handed, Russo a sheaf of papers, the
following ensued, according to the credited testimony of Cox:
[Accetta said to Russo] "Okay, you are a driver-salesman. Now, I want you
to go out here and get me 20 stops, and I don't want any to be under a hundred
loaves a day," and I said "Well, that is all right, except today is Wednesday.
When do you want him to start?" . and then he says, [to Russo] "And I
want you to know that there is going to be some new rules around here. .
[which will be] posted by the time clock and you better live up to them," and
I said, . "Are these rules to be just for Natale or are they to be for
everybody?"
. Mr. Accetta said that these rules are for everybody but they will be
changed from time to time. [Then Accetta said to Russo] . "you are going
to be making that [Patton] run, and I want you to make it twice a day. There
will be no overtime," and I injected [sic] myself, and I said, . "You can
expect him to work his day according to the [Union] agreement, but you cannot
stipulate that he has got to do a certain amount of work with no overtime."
[Accetta then said to Russo] "and furthermore, I want you to come in here
clean. I want your hands clean. I want you to have a clean shirt on. . . .
And I want you to come back the same way."
[Russo then said to Accetta] "You are full of crap, that is impossible. I
can't handle those dirty racks and load that truck and come back here clean."
I wash my hands before Igo into the markets. That is the best I can
do." Accetta [after clenching his fist and making a gesture as though be in-
5 Accetta's driver-salesmen do not work on Wednesdays.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tended to strike Russo] says, "You are a damn liar" . and Natale backed
-out the door .... [saying] . "Don't hit me. You had me beaten up once."
And' Mr. Accetta said, "You haven't seen anything yet, you little b-. If
you think you are going to squeal on the family and get away with it,".and
at this point Mr. Natale Russo took his coat off, and his brother, Tony Russo,
stepped in between him and I stepped in also between the two of them. I
ushered or took-pushed-not physically hard but pushed Mr. Russo toward
the door and he was standing outside, and I turned to Mr. Accetta.
I said, "Tony, obviously you have no intentions of putting this man back to
work," and Mr. Accetta shrugged his shoulders and we turned around and
walked out.
Since September 26, Tony Russo has Russo's former Patton route.
C. Concluding findings
Upon the record as a whole, I find that by discharging Russo on July 3, and
thereafter refusing to reinstate him under the conditions he had previously worked,
Accetta violated Section 8(a)(3) of the Act. I further find that by such act and
conduct, Accetta interfered with, restrained, and coerced Russo in the exercise of
the rights guaranteed by Section 7 of the Act within the meaning of Section 8(a) (1)
thereof. These findings are clearly warranted when consideration is given to:
(1) In a sworn statement, dated November 18, given to a Board agent, Accetta stated,
"He [Russo] filed a complaint [with. the Union] against me. I was angry about
it, and I fired him"; 6 (2) imposing upon Russo extraordinary and almost impossible
working assignments as a condition of accepting reinstatement,? (3) assigning Russo's
Patton route to Tony Russo, who had less seniority than Russo; and (4) telling
Russo on September 25 that members of his family could no longer help him
load his truck even though they had always done so without cost to Accetta.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Accetta set forth in section III, above, occurring in connection
with the operations of Accetta as described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States
and, such of them as have been found to constitute unfair labor practices, tend to
lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Accetta has engaged in unfair labor practices violative of Sec-
tion 8(a)(1) and (3) of the Act, it is recommended that he cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
Having found that Accetta has discriminated in regard to the hire and, tenure of
employment, and the terms and conditions of employment, of Natale Russo, it is
recommended that Accetta offer Russo immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other rights
and privileges. It is also recommended that Accetta make Natale Russo whole for
any loss of pay he may have suffered by reason of Accetta's discrimination against
him, by payment to him of a sum of money equal to the amount he normally would
have earned as wages from the date of his discharge to the date of Respondent's
offer of reinstatement, together with interest thereon at the rate of 6 percent per
annum on said amount , less his net earnings during that period.
Loss of pay shall be computed and paid in accordance with the formula adopted
by the Board in F. W. Woolworth Company, 90 NLRB 289.
6 At the hearing, Accetta testified that he had made the above-quoted statement to the
Board agent and did not deny the truth thereof. I find that Accetta fired Russo because
the latter had filed a claim for overtime pay with the Union.
7 Cos credibly testified that on September 25, Accetta stated to him, Russo, and Tony
Russo that Russo, among other things, would have to strictly adhere to the new working
rules which would be posted at the timeclock ; and that he had visited Accetta's bakery on
many occasions since said date and never saw any posted rules. It is significant to here
note that the record discloses that Accetta never put into effect any new change In work-
ing conditions since September 25.
VENEZIA BREAD COMPANY 1053
The unfair labor practices found to have been engaged in by Accetta are of such
a character and scope that in order to insure Accetta's employees of their full rights
guaranteed them by the Act, it will be recommended that Accetta cease and desist
from in any manner interfering with, restraining, and coercing his employees in
the exercise of their rights to self-organization.
Upon the basis of the foregoing findings 'of fact and upon the. record as a whole,
I make the following:
CONCLUSIONS OF LAW
1. Accetta is, and has been at all times material , an employer within the meaning
of Section 2(2) of the Act , and is, and has been , engaged in commerce and in a
business affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is, and at all times material has been , a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging Natale Russo on July 3, 1963 , and thereafter refusing to rein-
state him, Accetta has engaged in unfair labor practices within the meaning of Sec-
tion 8 ( a) (1) and (3 ) of the Act.
4. By discriminating in regard to the hire and tenure -of employment and the
terms and conditions of employment of Natale Russo, thereby discouraging mem-
bership in the Union , Accetta has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that Accetta, his agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union or any other labor organization of his
employees, by discharging or in any other manner discriminating against any indi-
vidual in regard to his hire or tenure of employment or any other term or condition
of employment except as authorized in Section 8(a) (3) of the Act.
(b) In any other manner interfering with, restraining, or coercing his employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist the Union or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization, as a
condition of employment as authorized in Section 8(a)(3) of the Act, as modified
by the Labor Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Offer to Natale Russo immediate and full 'reinstatement to his former or sub-
stantially equivalent position without prejudice to his seniority or other rights and
privileges.
(b) Make Natale Russo whole for any loss of earnings he may have suffered
by payment to him of a sum of money equal to the amount he would have normally
earned as wages from July 3, 1963, to the date Accetta offers him full and complete
reinstatement, together with interest on said amount at the rate of 6 percent per
annum. Backpay and interest are to be computed and paid in the manner set forth
in F. W. Woolworth Company, 90 NLRB 289, and in Isis Plumbing & Heating Co.,
138 NLRB 716, less his net earnings during the aforesaid period.
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying, all payroll records , social security payment records, time-
cards, personnel records and reports , and all other records necessary to an analysis
of the amount of backpay due.
(d) Post in conspicuous places at his usual place of business , including all places
where notices to employees are customarily posted , copies of the attached notice
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
marked "Appendix." 8 Copies of said notice, to be furnished by the Regional Direc-
tor for the Twenty-first Region of the National Labor Relations Board, shall, after
being signed by Accetta, be posted by him immediately upon receipt thereof and
maintained by him for 60 consecutive days thereafter in such conspicuous places.
Reasonable steps shall be taken by Accetta to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-first Region, in writing, within
20 days from the receipt by Accetta of a copy of this Decision, what steps he has
taken to comply therewith.)
It is further recommended that, unless on or before 20 days from the date of his
receipt of this Decision Accetta notify the said Regional Director that he will comply
with the foregoing recommendations, the National Labor Relations Board issue an
order requiring Accetta to take the action aforesaid.
8In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
9 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps Accetta has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, I hereby notify my employees that:
I WILL NOT discourage membership in or activities on behalf of Chauffeurs,
Sales Drivers and Helpers Union, Local No. 572, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other
labor organization of any employees by discharging or in any other manner
discriminating against any individual in regard to his hire or tenure of employ-
ment or any other term or condition of employment except as authorized in
Section 8(a) (3) of the Act.
I WILL NOT in any other manner interfere with, restrain, or coerce my em-
ployees in the exercise of their right to self-organization, to form labor organi-
zations, to join or assist the above-named Union or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, or
to engage in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as authorized
in Section 8(a) (3) of the Act.
I WILL offer to Natale Russo immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of earnings he may have
suffered as a result of the discrimination against him.
All my employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor organization.
ANTHONY ACCETTA, D/B/A VENEZIA BREAD COMPANY,
Employer.
Dated------------------- By----------------------'--------------------
(Representative) (Title)
NOTE.-I will notify the above-named employee-if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act ad the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board' s Regional Office, 849
South Broadway, Los Angeles, California, Telephone No. 688-5204.