Well-Bred Loaf

National Labor Relations Board - Board Decisions

Jul 31, 1991

303 N.L.R.B. 1016 (N.L.R.B. 1991)

1016
303 NLRB No. 159
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent, citing Nickles Bakery of Indiana, 296 NLRB 927 (1989),
contends that the allegations of 8(a)(1) and (3) violations based on the impres-
sions of surveillance and the discharge warning to Bianchi should be dismissed
because they are not closely related to any of the underlying charges filed in
the instant case. The charges allege in substance that the Respondent unlaw-
fully discriminated against four employees during a 4-month period both be-
fore and after a Board election. Although the Respondent raised this issue at
the hearing, the judge failed to address it in his decision. We find that the
allegations of the impressions of surveillance (which the judge dismissed) and
the discharge warning to Bianchi are closely related to the charge allegations.
In Nickles, the Board cited with approval NLRB v. Braswell Motor Freight
Lines, 486 F.2d 743, 746 (7th Cir. 1973), in which the court stated that it
would find a sufficient relation between the charge and the complaint in which
all the allegations involved ‘‘part of an overall plan to resist organization.’’
Nickles Bakery, supra at 928 fn. 7. See also Jennie-O Foods, 301 NLRB 305
(1991). There is a sufficient nexus between the allegations in dispute and the
charge allegations because they all occurred within the same general time pe-
riod and concern conduct which constitutes an overall plan to resist the Union.
2 The parties have excepted to some of the judge’s credibility findings. The
Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the the findings.
In adopting the judge’s finding that the Respondent unlawfully discharged
Matilde Morales, we note that Eluid Torres, who was treated more leniently
than Morales under the Company’s absentee policy, was the Company’s ob-
server in the August 1989 election.
3 We shall conform the judge’s Conclusion of Law 2 with his findings and
recommended Order. Accordingly, we amend the conclusion to read ‘‘By
issuing a discharge warning to Bolivar Bianchi, the Respondent violated Sec.
8(a)(3) and (1) of the Act.’’
The Well-Bred Loaf, Inc. and Bakery, Confec-
tionery & Tobacco Workers International
Union, Local 3, AFL–CIO and Matilde Mo-
rales. Cases 2–CA–23722, 2–CA–23820, and 2–
CA–23819
July 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On March 25, 1991, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel and the Respondent each filed exceptions,
supporting briefs, and reply briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions as amended3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Well-Bred Loaf, Inc.,
Congers, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the rec-
ommended Order.
Richard DeSteno, Esq. and Randy Girer, Esq., for the Gen-
eral Counsel.
Robert Heiferman and Chris Pinchiaroli, Esqs. (Jackson,
Lewis, Schnitzler & Krupman), for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on September 24–28,
1990. The charges and amended charges were filed respec-
tively on July 7, August 25, September 11, and October 26,
1989. The consolidated complaint was issued on December
22, 1989, and was amended on August 2, 1990. In substance,
the complaint as amended alleged as follows:
1. That in June, July, and August 1989 Respondent’s su-
pervisors engaged in surveillance of its employees’ union ac-
tivities.
2. That in July 1989 Supervisor Mark Sementilli issued a
verbal warning to Bolivar Bianchi because of his union ac-
tivities.
3. That on June 26, 1989, the Respondent discharged Juan
Espinal because of his union activities.
4. That the Respondent, for discriminatory reasons, took
the following actions against employee Matilde Morales.
(a) 1-day suspension on August 18, 1989.
(b) 3-day suspension on August 22, 1989.
(c) Discharge on August 30, 1989.
5. That the Respondent, for discriminatory reasons, sus-
pended Maria Urena on August 21, and thereafter discharged
her on August 29, 1989.
6. That the Respondent on August 30, 1989, suspended
Grecia Santana because of her union activities.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent concedes and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. It also concedes and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
1017WELL-BRED LOAF
1 The Company’s policy is to wipe the slate clean at the start of each year
insofar as latenesses and absences. Accordingly, any lateness or absentee
warnings given to Espinal prior to 1989 would be totally irrelevant.
2 Espinal testified that he also was active in the earlier 1988 election cam-
paign and had signed a union leaflet at that time. Espinal testified that in 1988
his supervisor, Tommy Martinez, told him that he never imagined that Espinal
would have signed the leaflet and asked why he did it. This evidence, how-
ever, does not prove that the Respondent was aware of Espinal’s union activi-
ties immediately before the present petition was filed. Also, knowledge of
Espinal’s union activities is not shown by testimony that Supervisor Jorge Gre-
nada spoke to Espinal about the union as that evidence did not indicate that
such conversations occurred prior to the Company’s receipt of the petition.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
This Company was the subject of a prior unfair labor prac-
tice proceeding which resulted in a Board decision in 1986
cited at 280 NLRB 306. Among other things, the Board con-
cluded that the Respondent had unlawfully discharged six
employees; had illegally interrogated employees; and had un-
lawfully threatened employees with discharge. The Board
also concluded that such conduct warranted the granting of
a bargaining order to the Union which had obtained author-
ization cards from a majority of the bargaining unit employ-
ees. The events in that case transpired in 1980 and although
the supervision has changed since that time, the Company’s
ownership has remained the same.
In 1988 an election was held at the Company which was
won by the Union but which was set aside based on the Em-
ployer’s objections. When a second election was held in
1988, the Union lost.
On June 12, 1989, the Union filed a petition for an elec-
tion in Case 2–RC–20731. Thereafter, pursuant to a stipula-
tion for certification upon consent election approved on July
19, the Union won an election that was held on August 9,
1989. Consequently, the Union was certified as the bar-
gaining representative of Respondent’s production employ-
ees. It is agreed that although the parties have bargained they
have not, as of the time of this hearing, consummated an
agreement. (There is no allegation that the Respondent has
bargaining in bad faith.)
B. The Operative Facts
1. The discharge of Juan Espinal
Espinal was employed by the Respondent in the shipping
and receiving department from 1985 to June 26, 1989.
In 1989 Espinal received three warnings before his dis-
charge. The first was issued on May 8 for being late six
times since January 1, 1989. The second issued on May 18
and was for three additional latenesses since May 8. The
third was issued on May 22 for refusing to work overtime.
As the third warning was not relied on to justify his dis-
charge, I shall consider only the first two.1 In this respect the
May 8 warning stated, inter alia:
If Juan Espinal is late one more time, he may be termi-
nated. He must be on time from now until December
31st, 1989.
The Union’s organizing campaign resulting in the last
election, began in May or June 1989. It appears that the most
active employee in the campaign was Bolivar Bianchi who
was assisted by, among others, Juan Espinal, Grecia Santana,
Matilde Morales, and Maria Urena. It also appears that prior
to the filing of the election petition, the union activities of
Espinal and the others were carried out surreptitiously.2
Joy Selvaggi, the Company’s personnel director, states that
the petition was received by the Company on the afternoon
of Friday June 16, 1989. She states that when it was re-
ceived, Judy Glicken (one of the owners), said ‘‘it looks like
we’re going to have another election.’’ According to
Selvaggi, she and Glicken returned to the plant to hold a
manager’s meeting about the petition.
According to Selvaggi, the Company’s management held
a supervisor’s meeting regarding the Union the week after re-
ceipt of the petition (June 19 or 20). She states that the su-
pervisors present were Jorge Grenada, Tommy Martinez, Ar-
thur Kops, and Alfredo Perez. Selvaggi testified that they
were told that a petition had been received, that an election
would be held, and that the Company would begin a cam-
paign. Selvaggi also states that that she believes that by this
time an attorney had been called.
On Friday, June 23, 1989, Espinal and the other employ-
ees in his department were told by Supervisor Martinez that
their hours for the summer were being changed and that their
new starting time would be 9:30 a.m. instead of noon. On
Monday June 26, Espinal forgot about the change and did
not arrive at the plant until about 9:45 a.m. When Martinez
asked why he was late, Espinal said that he had forgotten
about the change of hours. On that same day, Henry Arias,
another employee in the department, testified that he arrived
about 5 minutes late and received no reprimand. (Under
company guidelines, however, an arrival within 5 minutes of
the starting time is not considered a lateness.)
Espinal’s late arrival was reported by Martinez to Selvaggi
who testified that she then made the decision to discharge
him. She testified that this decision was based on the fact
that Espinal was on final warning status and her assertion
that the Company’s policy automatically mandated discharge
after 10 absence or lateness incidents in any given year. (In
fact, Espinal’s lateness on June 26 was his 11th for the year,
whereas his 10th was on May 11, 1989.)
The General Counsel contends that the timing of Espinal’s
discharge (only 10 days after the Company’s receipt of the
election petition), is strongly suggestive of unlawful intent.
Further, he would assert that even if it was not demonstrated
that the Company was specifically aware of Espinal’s current
union activities, it would be reasonable to assume that Mar-
tinez, being aware of Espinal’s past union activities, would
have surmised that Espinal was active in the present union
drive. The General Counsel therefore contends that given all
these circumstances, including the circumstances of Espinal’s
lateness on June 26, that his discharges was disaproportionate
to his offence and was therefore motivated by antiunion con-
siderations.
The Respondent counters by arguing that Espinal had re-
ceived two previous warnings in 1989 for latenesses and hav-
ing exceeded the allotted number of such incidents, was dis-
charged for cause on June 26 when he failed to arrive at
work on time. What I find troubling about the Respondent’s
position is that it seems to argue too much and relies on an
asserted policy which does not seem to have been followed
in a uniform manner.
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 On the other hand, the guidelines for discipline appear in an ‘‘Employee
Handbook for Managers and Supervisors’’ having an effective date of March
17, 1989.
Selvaggi testified that the Company instituted a no-fault
lateness policy in November 1988 which, unlike its past pol-
icy, had specific guidelines to match disciplinary actions to
days late. Thus, Respondent offered into evidence a one-page
document purporting to be its guidelines which read as fol-
lows:
Subject: Lateness
It is important that you be at your work station on time.
A full-time employee is considered to have an unsatis-
factory attendance record if such employee has been
late more than 4 times in a calendar year. There is a
5 minute grace period allowed per lateness. Excessive
latenesses will result in disciplinary action.
The following guidelines should be used for discipli-
nary action:
Days Late Action
4 Acceptable
5 Verbal Warning
8 Written Warning
10 Termination
If the employee is on probation and is given a written
warning, this will be grounds for termination.
The General Counsel offered into evidence an employee
handbook which indicates that it became effective on March
17, 1989. This handbook obtained from the Employer pursu-
ant to subpoena, applicable to the office and plant staff does
not contain the above-noted guidelines. It states:
Subject: Lateness
It is important that you be at your work station on time.
A full-time employee is considered to have an unsatis-
factory attendance record if such employee has been
late more than 4 times in a calendar year. There is a
5 minute grace period allowed per lateness. Excessive
latenesses will result in disciplinary action.3
Consistent with the employee handbook, and inconsistent
with the assertion that 10 latenesses will automatically result
in termination, is the May 18 warning to Espinal which stat-
ed that any further latenesses may result in termination.
Moreover, contrary to the testimony of Selvaggi that ter-
mination will, under the Company’s policy, automatically re-
sult in discharge, there is evidence that this is simply not
correct. For one thing, Espinal himself was not discharged on
his 10th but on his 11th lateness. Further, the evidence
shows that employee Maria St Louis had 10 latenesses in
1989 and was not discharged even though she did receive a
warning.
On the other hand, the Respondent produced evidence that
three nonprobationary employees with excessive latenesses
were discharged in 1989 albeit after the discharge of Espinal.
The Abraham brothers were discharged in August 1989 and
a Mr. Artz was discharged in December 1989. (I would be
more persuaded had the Respondent shown that there were
employees discharged for excessive lateness before the dis-
charge of Espinal. Thus, it might be argued that after the
Company became aware of the Union’s organizing campaign,
the Respondent decided to enforce its ‘‘rules’’ with more
rigor.)
I think that the Employer has overstated (and thereby
weakened), its case by asserting that it enforced an automatic
rule which compelled Espinal’s discharge. At the same time
I cannot overlook the weaknesses of the General Counsel’s
prima facie case. Apart from the fact that Espinal signed a
union card, there is no evidence to suggest that the Company
was aware of his union activities during this organizing cam-
paign. Further, there is no evidence of any contemporaneous
8(a)(1) conduct indicating antiunion animus. There is no dis-
pute regarding the fact that on May 18, before the Union’s
organizational activities became known to the Employer,
Espinal received his second warning for lateness with the ad-
monition that he could be discharged if this infraction contin-
ued. The evidence shows that Espinal was in fact late on
June 26, 1989, and there was evidence that other employees
with one exception, have been discharged for excessive
latenesses.
On balance (and precarious balance at that), it is my opin-
ion that the Respondent has met its burden of demonstrating
that it would have taken the action of discharging Espinal in
the absence of his protected conduct. Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); NLRB v. Transportation Man-
agement Corp., 462 U.S. 393 (1983).
2. The surveillance allegations
The employee who began the present organizing campaign
was Bolivar Bianchi. As a maintenance person, he worked in
various parts of the plant and his job therefore carried him
into the various departments of the Company.
According to Bianchi, beginning in June and July 1989,
company supervisors began to appear in sections of the plant
where he found himself working. Although, the General
Counsel attributes this to unlawful surveillance, I find that
Bianchi’s testimony regarding this particular allegation to be
too vague and subjective. Moreover, where else were the su-
pervisors supposed to be, except in the departments where
they worked and where Bianchi visited from time to time?
Honda of Mineola, 218 NLRB 486 (1974).
The General Counsel also alleges that the Company en-
gaged in surveillance of its employees’ union activities by
having its supervisors visit the company lunchroom more fre-
quently during the preelection campaign period.
The evidence establishes that the Company has a lunch-
room where employees and supervisors are permitted to eat.
In the past, employees have been more likely than the super-
visors to use this room. Nevertheless, testimony from the
General Counsel’s own witnesses revealed that at least one
supervisor, Kops, ate there on a regular basis.
The General Counsel’s witnesses testified that during the
preelection period, various supervisors such as Tommy Mar-
tinez, Alfredo Perez, and Jorge Grenada began to eat at the
lunchroom on a regular basis. They also testified that during
these occasions, the supervisors would engage the employees
in discussions about the Union. Such discussions were de-
scribed by the Government’s witnesses as open and candid.
1019WELL-BRED LOAF
4 The Respondent concedes that Arthur Kops was a supervisor within the
meaning of Sec. 2(11) of the Act, but it disputes the supervisory status of
Perez. In this regard, Kops testified that he and Perez shared the responsibility
of supervising the packing department with Perez in charge of about 12 people
in the wrapping area. Other evidence showed that Perez, who was designated
by the Company as a ‘‘foreman,’’ was responsible for making up the employ-
ees’ work schedules and was responsible for making sure that employees per-
formed their duties properly. Additionally, the record showed that Perez issued
disciplinary warnings and attended regular supervisory meetings. Based on
these factors, I conclude that Perez was a supervisor within the meaning of
Sec. 2(11) of the Act.
There is no real dispute about the facts. The Respondent
concedes that its supervisors did make an effort during the
preelection period to talk to employees in the lunchroom
about the upcoming election and tried to convince them that
they should vote against the Union. No statements made dur-
ing these meetings were alleged to have been coercive within
the meaning of Section 8(a)(1) of the Act.
Based on the above, I conclude that the conduct of the su-
pervisors cannot constitute unlawful surveillance as it is evi-
dent that their actions were not intended to discourage em-
ployees from engaging in union activities but rather to en-
courage employees to engage in open discussion with their
supervisors about the issues surrounding the upcoming elec-
tion. Further, as the employees may have chosen to talk
about the Union within the Company’s lunchroom where at
least one supervisor has regularly eaten lunch, the Union
cannot, in my opinion, complain that the Employer was spy-
ing on the employees’ union activities. Hoschton Garment
Co., 279 NLRB 565 (1986).
3. Allegations involving Matilde Morales
Matilde Morales began her employment at the Respondent
in July 1986 in the packing department. The supervisors of
the packing department during the summer and fall of 1989
were Arthur Kops and Alfredo Perez. (The latter was called
Freddie Perez by all concerned.)4
Morales became an active supporter of the Union during
the previous 1988 election campaign. Additionally, in Feb-
ruary 1989 she was subpoenaed by the Government to be a
witness in the unfair labor practice case which settled. (She
did not testify.)
In the most recent campaign, Morales signed a union card
in April 1989, which was solicited by Bianchi. In May, she
went on a 3-week vacation and took off a fourth week by
purporting to use accumulated sick leave. In any event, Mo-
rales testified that when she returned to work in June 1989,
she became very active in support of the Union and engaged
in activities such as distributing union leaflets in the shop.
Moreover, Morales testified that in June she told Foreman
Perez that she supported the Union.
The Company does not deny that it had knowledge that
Morales was a supporter of the Union. Indeed, it is acknowl-
edged that when management held a series of meetings in
July to talk to employees about the upcoming election, Mo-
rales as well as a few other employees, were excluded be-
cause it was felt that she would not be inclined to vote
against the Union no matter what the Company said.
As noted above, the election which the Union won, was
held on August 9, 1989. The alleged discriminatory actions
against Morales occurred commencing on August 18, 1989.
Thus, the General Counsel would argue that there is a nexus
between these transactions and the fact that the Union had
just been voted in by a majority of the work force.
In 1989, prior to her suspensions and discharge, Morales
received two warnings for absenteeism. On May 4, 1989, she
was given a warning for being absent nine times since Janu-
ary 1, 1989. Thereafter, on June 5, 1989, she received an-
other warning which stated:
You have previously received warnings for absenteeism
and for not calling in appropriately. Your absence the
week of May 30, 1989 has brought your total to 13
days absent, which is grounds for termination. You also
failed to call in by 5/30/89. It also appears that you
have used sick time to extend your vacation in violation
of instructions and company policy.
. . . .
Further absences for any reason or attendance violations
thru the end of the year will result in termination.
On Friday, August 18, 1989, Perez told four of the people
in the packing department to put their hair inside their
hairnets. Shortly thereafter, Perez returned and told Grecia
Santana and Matilde Morales that Plant Manager Peter Testa
wanted to see them because of their refusal to obey Perez
regarding the hairnets. Morales contended that she was being
picked on, began to cry, and went toward the bathroom. Mo-
rales states that on the way, she passed by Testa and put her
gloves in a trash can. On the other hand, Testa testified that
Morales threw the gloves at his feet and that she refused to
pick them up when he asked her to do so. In this respect,
Morales conceded on cross-examination, that the gloves fell
on the floor, that she was asked by Testa to return to pick
them up, and that she ignored him. Viewed in totality, the
evidence shows that Morales did throw her gloves which
landed near Testa’s feet and did ignore his instruction to pick
them up. Whatever Morales’ intention, this event could rea-
sonably be viewed by Testa as an act of defiance and insub-
ordination. On the same day, Morales was given a 1-day sus-
pension which was issued solely for her refusal to pick up
the gloves as ordered by Testa. (Nothing in the suspension
notice related to the earlier hairnet problem and it is noted
that Grecia Santana, another union activist, did not receive
any discipline in relation to that incident.)
According to Testa, he spoke to Judy Glicken later on Au-
gust 18 about his suspension of Morales and was told that
Morales was on final warning. (Since this warning was
issued over the signature of Testa on June 9, one wonders
why he needed to be reminded of it.) He states that he there-
fore reconsidered whether the 1-day suspension was suffi-
cient and decided to give Morales an additional 3-day sus-
pension starting on Tuesday. However, Joy Selvaggi, who
was out on August 18, testified that it was she (not Testa),
who made the decision to give Morales the additional 3-day
suspension which was prompted in large measure by the fact
that Morales was late three times in the period from July 12
to August 3.
Morales testified that on October 16, 1989, she was robbed
on her way home and because of her emotional upset and
in accordance with her doctor’s orders, she took off on Octo-
ber 17 and 18. She states that when she returned to work on
October 19, she gave a doctor’s note to Perez.
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 It is noted that R. Exh. 27 is identical to p. 3-05 in the ‘‘Employee Hand-
book for Managers and Supervisors’’ (R. Exh. 52), which is dated March 17,
1989.
6 In 1988, Morales received two warnings for absenteeism and one warning
regarding the operation of a machine. These warnings, however, played no part
in her discharge. At the end of each year, prior warnings for lateness or absen-
teeism are wiped out and the employee starts the new year with a clean slate.
On October 24, 1989, Morales was informed by Testa that
she had been discharged. The termination notice indicates
that the reason for her discharge was absenteeism and the
Company acknowledges that the prior suspensions in August
did not play any role in the decision to discharge her. The
termination notice states in pertinent part:
When employee came to work she was a very good
worker, the only problems I had with employee was her
absenteeism. (Signed by Perez.)
Joy Selvaggi, the personnel manager, testified that the
Company had a no-fault absenteeism policy which entailed
a series of predetermined and automatic disciplinary actions
for any absences over 6 days per year except for those where
an employee has been given, pursuant to prior request, a
leave of absence or where an employee is on disability leave
as defined by New York State law. According to Selvaggi,
the policy in 1989 was that measuring from the beginning to
the end of the year (January 1–December 31, 1989), non-
probationary plant workers could be absent 6 days which was
deemed acceptable. She states that after 2 absences over 6
(except as defined above), would result in a verbal warning;
that after 4 absences over 6 would result in a written warn-
ing; and that after 6 absences over 6 (or a total of 13), would
result in automatic termination. Additionally, she testified
that as employees were allowed in 1989 to carry over a max-
imum of 6 sick days if unused in 1988, it was theoretically
possible for an employee in 1989 not to be discharged until
having 19 absences if that employee had carried over 6 sick
days from the prior year. If for example, an employee had
carried over 4 sick days from the prior year, he or she would
therefore could be absent 16 times before discharge. Addi-
tionally, and somewhat separate from the above rules, it is
asserted that the Company maintained a policy that employ-
ees were required to call in when they were absent.
In support of Selvaggi’s testimony regarding the Com-
pany’s policy, the Respondent introduced into evidence a
one-page document (R. Exh. 27). This document, which is
dated March 17, 1989, states:
After completing the first year of service, current
employees will be paid for unused sick/personal days at
the end of the calendar year.
A full-time employee is considered to have an unsat-
isfactory attendance record is such employee has been
absent more than his allowed time off per calendar
year. Excessive absenteeism will result in disciplinary
action.
The following general guidelines should be used for
disciplinary action:
Days Absent,
Plant Staff
Days Absent,
Office Staff
Action to be
Taken
6 per year 9 per year Acceptable
+2 over acceptable +2 over acceptable Verbal Warning
+4 over verbal +4 over verbal Written Warning
+6 over written +6 over written Termination
Any employee absent from work must call in to their
supervisor prior to the start of their shift everyday that
they are absent and after 3 days of absence, they must
bring a doctor’s note or they will not be allowed to re-
turn to work. Failure to call in when an employee is
absent can result in discharge.
There are, however, a number of problems regarding
Selvaggi’s testimony and the above-described document.
First, when the Employee Handbook for Office and Plant
Staff was turned over to the General Counsel pursuant to his
subpoena, the contents of Respondent’s Exhibit 27 was not
there. Instead the comparable page in the employee hand-
book, which by the way is dated August 1, 1989, simply
stated:
After completing the first year of service, current em-
ployees will be paid for unused sick/personal days at
the end of the calendar year.
A full-time employee is considered to have an unsatis-
factory attendance record is such employee has been
absent more than his allowed time off per calendar
year. Excessive absenteeism will result in disciplinary
action.
Any employee absent from work must call in to their
supervisor prior to the start of their shift everyday that
they are absent and after 3 days of absence, they must
bring a doctor’s note or they will not be allowed to re-
turn to work. Failure to call in when an employee is
absent can result in discharge.5
Second, if 13 absences within a given year automatically
will result in termination as testified to by Selvaggi, it is im-
possible to explain why Morales was not fired on June 5
when she received a warning for being absent 13 times since
January 1, 1989.6 Additionally, the record shows that an em-
ployee named Eliud Torres received warnings for absentee-
ism on May 5 and August 30, 1989, the latter for being ab-
sent 11 times since the start of the year. Thereafter, the
weekly payroll report for the week ending September 23
shows that Torres was out 1-3/4 days during that week. Fi-
nally, on September 29, the Company issued a warning to
Torres for being absent on September 25, 1989, which by my
reckoning would be his 13th or 14th absence since January
1. Needless to say Torres was neither suspended nor dis-
charged.
There also seems to be a discrepancy between Selvaggi’s
description of the policy and the purported terms of the pol-
icy itself as written. A literal reading of the policy would be
as follows: Six absences a year would be acceptable; plus 2
over acceptable (or 6 + 2 = 8), would result in a verbal
warning; plus 4 over a verbal (or 4 + 8 = 12), would result
in a written warning; and plus 6 over a written warning (or
12 + 6 = 18), would result in termination. Under such a read-
ing of the policy, even assuming it was in effect, this would
1021WELL-BRED LOAF
7 It is noted that this warning was given 1 or 2 days before the Company
received the election petition.
8 It was shown that the Company excluded from its campaign meetings
those employees it knew were most active in favor of the Union. The fact that
Urena was not excluded at the early meetings supports the proposition that the
Company was not aware of the extent of her union support at the time these
June warnings were given.
9 At an unemployment hearing, Urena testified that in late July 1989, she
told Perez that she would never stay to work overtime. This is, of course con-
sistent with the testimony of Selvaggi that when she spoke with Urena about
this problem, Urena responded that she would do as she pleased.
place Morales at 15 absences and therefore not enough to
warrant discharge.
Apart from the alleged discriminatees in the present case,
the Respondent provided records of nine individuals who
were discharged in 1989 for either absences or latenesses. Of
these one (Judy Meyers), was in sales and therefore her situ-
ation is not relevant. Another (Ted Macintosh), was a proba-
tionary employee and therefore his situation is also irrele-
vant. Three others (Jim Artz, George Abraham, and James
Abraham), were discharged for latenesses and two others
(Rodriguez Ackerson and William Santana), were discharged
for not calling in when absent. Of the remaining two (Nick
Corraele and Patrick Nicholson), the records did not indicate
how many absences they had accrued during 1989 and prior
to their respective terminations. Thus, the Company has not
demonstrated that Morales’ discharge for absenteeism was
consistent with the discharge of other employees with similar
records.
Regarding the August 18, 1989 suspension, I am of the
opinion that the Employer has shown that Testa had reason
to believe that Morales was disregarding his authority, that
discipline was justified, and that a 1-day suspension was ap-
propriate to the offense. I therefore shall dismiss this par-
ticular allegation.
However, it is my opinion that the further 3-day suspen-
sion of Morales on August 22 was not motivated for cause
but rather was motivated by union considerations. In this re-
spect, I note that Morales was known by the Company to be
an active union supporter and that this action took place soon
after the Union won the election. Further, I note that the
Company’s witnesses gave conflicting versions of the rea-
sons for this suspension with Testa and Selvaggi each claim-
ing credit for the decision. I therefore shall conclude that this
suspension was violative of Section 8(a)(1) and (3) of the
Act.
With respect to the discharge, it is my opinion that the
Company violated Section 8(a)(1) and (3) of the Act. Al-
though the Company asserted that Morales’ discharge was
motivated solely by the automatic application of its absentee
policy, I think that it has been shown that there were serious
discrepancies regarding the existence of and/or uniform ap-
plication of this policy. Given my conclusion that the Gen-
eral Counsel has made out a prima facie showing that Mo-
rales was discharged because of her union activities, it is my
opinion that the Respondent has not met its burden as re-
quired in Wright Line, supra.
4. The discharge of Maria Urena
The complaint alleges that Maria Urena was discharged
because of her union activities on August 29, 1989. The Re-
spondent asserts that the reason she was discharged was be-
cause despite prior warnings, she refused to work required
overtime.
Urena began her employment with the Company in Sep-
tember 1986 and worked in the packing department under the
supervision of Alfredo Perez. She testified that she was an
active union supporter and that she solicited other employees
in the lunchroom during breaks and outside the plant. Al-
though Urena attended some of the company campaign meet-
ings she, like Morales was excluded from others. She
credibly testified that Perez told her on one occasion that she
was no longer invited to the meetings because the Com-
pany’s owners said that she (Urena), was in favor of the
Union. (This likely would have occurred in late July.)
The company policy regarding hours and overtime, effec-
tive January 1989 states:
Due to our need to meet our customer’s demands, over-
time work maybe required from time to time. We ap-
preciate and expect your cooperation.
. . . .
It is The Well-Bred Loaf’s practice to have a forty to
forty-five hour work week schedule but work hours
may vary depending on t he season and the department.
In relation to overtime, the Company’s witnesses testified
that because the Company’s product consists of foods with-
out preservatives, it is imperative that what is produced daily
be packed and put into the freezer by the end of the work-
day. Therefore, the people in the packing department do not
work a 9 a.m. to 5 p.m. shift. Rather, they may be required
to work until the work is completed.
On June 14, 1989, Urena received a warning from Peter
Testa which indicated that it was for disobedience and for
being uncooperative. The narrative portion of the warning
stated:
Employee was asked to clean the machines because it
was her turn. She told her supervisor that she was not
going to clean any machine, that she was going home,
and she could do whatever he wanted to.
. . . .
Future actions of insubordination will lead to suspen-
sion or termination.7
On June 23, 1989, Urena received another warning for re-
fusing to work overtime. The warning stated inter alia:
This is a final written warning for not staying late to
finish your work. If this action occurs again you will
be terminated.
It is noted that the complaint does not allege that either
of the warnings in June 1989 were discriminatorily moti-
vated. I therefore assume that they were, from the Govern-
ment’s point of view, justified.8
According to Selvaggi, she met with Urena regarding the
above-described warnings but was essentially told by Urena
that she would do as she pleased.
According to Urena, in July 1989, she told Perez that she
was having problems with babysitting and therefore could
not always stay late. There is no indication, however, that
Perez indicated that this was approved.9
Urena testified that on August 17, 1989 (Thursday), she
told Perez at about 6 p.m. that she had to leave because she
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 In the present hearing, Urena could not recall if she went home on August
17 with Grecia Santana. However, at her unemployment hearing, Urena con-
ceded that she rode with Santana in the latter’s car on that date. The inference
suggested by Respondent’s counsel was that Urena did not refuse to work
overtime because of any babysitting problem but because she didn’t want to
miss her ride with Santana who also left early.
had no babysitter. She also states that he told her that this
was not his problem and that if she left it would go on her
record. Notwithstanding this notification, Urena left the plant
with employee Grecia Santana before the work of their group
had been finished.10
On Monday, August 21, 1989, Urena was suspended by
Judy Glicken in the absence of Joy Selvaggi. At the time,
Glicken told Urena that on Selvaggi’s return she would de-
termine Urena’s fate. On August 29, Selvaggi, on her return,
converted Urena’s suspension to a discharge. Urena was ad-
vised of this decision by telephone.
There was testimony by Supervisor Arthur Kops that he
will do the best he can to allow employees to leave without
doing overtime if they have babysitting or other comparable
problems. He states that either he or Perez will do this by
shifting around employees to cover departmental needs. In-
deed, Kops testified that in the past he has excused both
Urena and Santana as well as other employees from working
overtime for babysitting reasons. Nevertheless, the fact that
Kops and Perez were aware that Urena had a babysitting
problem does not mean that they were obligated to allow her
to leave early whenever she required, particularly as it does
not appear that Urena on August 17, gave early notice that
she had a babysitting problem that day.
The record indicates that while other employees have re-
ceived warnings for not working overtime, there have been
no employees other than Urena who have been discharged
for this reason. On the other hand, the Company provided
evidence showing that no other employee worked as few
overtime hours as Urena. Moreover, the fact remains that
prior to the suspension and discharge, alleged to be unlawful,
Urena had received two recent warnings about this conduct
and was specifically notified that repetition on her part would
result in suspension or discharge.
Although I believe that the General Counsel has estab-
lished a prima facie case of discriminatory intent, I also con-
clude that the Respondent has successfully met its burden of
showing that it would have discharged Urena notwith-
standing her union or protected activity.
5. The suspension of Grecia Santana
The complaint alleges that the Respondent illegally sus-
pended Grecia Santana on August 30, 1989. The Company
contends that the suspension was warranted because she re-
fused to work overtime on August 29.
Santana’s employment with the Company started in No-
vember 1985 and she worked in the packing department. Her
immediate supervisor was Alfredo Perez.
Santana testified that she learned of the Union from Boli-
var Bianchi and that she signed a union card on June 7,
1989. She states that she also spoke in favor of the Union
with other employees. Santana unlike some of the other
union activists, was invited to and did attend the Company’s
meetings held in July.
On August 21, 1989, Santana received a written warning
from Perez for refusing to stay beyond 6 p.m. to finish the
overtime work assigned to her on August 17.
On August 29, Santana received a 2-day suspension be-
cause she left without doing her assigned overtime on that
day.
There is no dispute that Santana refused to work overtime
on the days in question. Although she contends that she told
her supervisors that she had babysitting problems, it was not
shown that such notification was given with sufficient ad-
vance notice. As the Company clearly is entitled to require
employees to work overtime (a policy well known to em-
ployees), and as the General Counsel has not demonstrated
to my satisfaction that there was any discriminatory intent in
the Respondent’s actions toward Santana, I shall recommend
that this allegation of the complaint be dismissed.
6. The warning issued to Bolivar Bianchi
Bolivar Bianchi clearly was the most active union sup-
porter amongst the employees. This was known to the Em-
ployer and he was among the several employees who was
excluded from the Company’s election campaign meetings
held with its employees in July 1989.
In August 1989, Bianchi was in the lunchroom talking
with two other employees about the Union. Apparently in a
fit of frustration, he crumpled a company leaflet, threw it in
the garbage and stated to no one in particular that he would
like to kill two supervisors. This statement was not addressed
to any persons and no names were mentioned. Unfortunately,
Supervisor Jorge Grenada happened to enter the lunchroom
at that moment and relayed the statement to Mike Sementilli,
the director of maintenance.
On August 24, 1989 (shortly after the Union had won the
election), Sementilli gave the following ‘‘verbal’’ warning to
Bianchi.
We have heard from several people that you have made
statements of violence toward supervisors.
Any other statements or threats of violence toward su-
pervisors or coworkers that you make will result in
your being terminated.
In my opinion, Bianchi did not intend to threaten anyone
and used, for better or worse, what has become (at least in
this area), a common expression these days to register dis-
satisfaction with someone else. I also do not believe that this
statement was understood by the Respondent’s management
to be intended as a real threat.
As the evidence establishes that the Respondent was well
aware of the leading role of Bianchi in favor of the Union
and, as I conclude, that his statement was neither intended
nor understood as a real threat, it is my opinion that the dis-
charge warning was motivated by Bianchi’s union activities.
In this respect, therefore, I conclude that the Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. By suspending Matilde Morales for 3 days on August
22 and by discharging her on August 30, 1989, the Respond-
ent has engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3) of the Act.
1023WELL-BRED LOAF
11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
12 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
2. By issuing a warning to Bolivar Bianchi and threatening
to discharge him, the Respondent violated Section 8(a)(1)
and (3) of the Act.
3. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily suspended and
discharged an employee, it must offer her reinstatement and
make her whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date
of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
Also, as I have concluded that the Respondent has, for dis-
criminatory reasons issued a warning to Bolivar Bianchi, it
must expunge that warning and give notice to him that this
has been done and that such warning will not be used against
him in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, The Well-Bred Loaf, Inc., Congers, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing warnings to, suspending, or discharging em-
ployees because of their activities or support for Bakery,
Confectionery & Tobacco Workers International Union,
Local 3, AFL–CIO or any other labor organization.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Matilde Morales immediate and full reinstate-
ment to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her se-
niority or any other rights or privileges previously enjoyed,
and make her whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against her in
the manner set forth in the remedy section of the decision.
(b) Remove from its files, any reference to the unlawful
warning given to Bolivar Bianchi on August 24, 1989, and
the unlawful suspension and discharge of Matilde Morales
and notify them in writing that it has done so and that it will
not use such disciplinary actions against them in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Congers, New York, copies of the
attached notice marked ‘‘Appendix.’’12 Copies of the notice,
on forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT issue warnings to, suspend, or discharge
employees because of their activities or support for Bakery,
Confectionery & Tobacco workers International Union, Local
3, AFL–CIO or any other labor organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer Matilde Morales immediate and full rein-
statement to her former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to
her seniority or any other rights or privileges previously en-
joyed, and make her whole for any loss of earnings and other
benefits suffered as a result of the discrimination against her
in the manner set forth in the remedy section of the decision.
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL remove from our files any reference to the un-
lawful warning given to Bolivar Bianchi on August 24, 1989,
and the unlawful suspension and discharge of Matilde Mo-
rales and notify them in writing that we have done so and
that we will not use such disciplinary actions against them
in any way.
THE WELL-BRED LOAF, INC.