Wilkes-Barre Wholesale Service

National Labor Relations Board - Board Decisions

Nov 19, 1979

246 N.L.R.B. 491 (N.L.R.B. 1979)

WIILKES-BARRE WIOL().SAI.E SERVICE
Wilkes-Barre Wholesale Service. Inc. and Laborers'
International Union of North America, District
Council of Eastern Pennsylvania, Local Union 1300,
AFL-CIO and Alan J. Ravert. Cases 4 CA 9781.
4 CA 9932. 4 CA-10074. 4 RC 13372. and 4
CA -9798
November 19, 1979
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN FANNIN ANtI) MEMBERS JENKINS
AN PENt I.I.()
On August 20, 1979, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent, the Union, and
the General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the 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 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 Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge2 and hereby or-
ders that the Respondent, Wilkes-Barre Wholesale
Service, Inc., Wilkes-Barre, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except that
the attached notice is substituted for that of the Ad-
ministrative Law Judge.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not specifically found herein.
I Before he discharged Michael Nadzan. Respondent's presidenl. Sabhol.
apparently telephoned an attorne) to ask for advice. The Administratl,e
Law Judge questioned whether such adv;ice would be necessary absent an
unlawful motive. We place no reliance on an) implication that consulting an
attorney constitutes evidence of illegality.
The Administrative I.aw Judge's Decision also contains several inadver-
tent errors. First. the hearing took place on June 13, 14, and 15. 1979. instead
of in 1976 as recited in the Decision. Additionally. the discharge Thomas
Anderson occurred on March 5. 1979. and not in January 1979 as indicated
at one poinl. Finally, the correct spelling of the name of one of the emplo-
ees whose ballot was challenged is "Opsitos"
2 The Administrative Law Judge recommended that Respondent cease
and desist from "in any other manner" interfering with the emplroyees' Sec-
tion 7 rights. We find that the issuance o a broad order is warranted ll thi,
case in light of Respondent's egregious conducl, including interrogalion,,
threats to close the shop. and three discharges See Hickmort F.s, Inc . 242
NLRB 1357 (1979).
I)1 RECTION
It is hereby directed that the Regional Director for
Region 4 shall, within 10 days from the date of this
Decision, open and count the ballots of Alan Ravert,
Michael Nadzan, Michael Boyko, Steve Hynick.
Joseph Opsitos. and Aldo Zorzi. and, thereafter, pre-
pare and serve on the parties a revised tally of ballots,
upon the basis of which he shall issue the appropriate
certification.
APPtIN )IX
Norl( l. To EMPI.OYILIs
POSllE) BY ORI)DER ()F I Ii
NATIONAI. LABOR RE.AII()ONS BOARI)
An Agency of the United States Govternment
WE WIll. NOT discourage membership in La-
borers' International Union of North America,
District Council of Eastern Pennsylvania. Local
Union 1300, AFL-CIO, or any other labor or-
ganization, by discharging employees or other-
wise discriminating against them concerning
their employment conditions because of their
membership in, or activities on behalf of, the
above-named or any other labor organization.
Wi wVl.1. NOI interrogate employees concern-
ing their union activities.
Wt. HWl.l. No)I threaten to sell our business in
retaliation for union activities by employees.
WE W.il NOT threaten to discharge employees
to curb their union activities.
Wt WItLL NOi question employees concerning
how they intend to vote in union elections.
WE wILL. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights to self-organization, to form,
join, or assist the above-named Union, or any
other labor organization, to bargain collectively
through representatives of their own choosing,
and to engage in other concerted activities for
the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any and
all such activities.
WE Wll.l offer Alan Ravert, Michael Nadzan,
and Thomas Anderson immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges, and WE wlt.t. make them
whole for any loss of pay suffered as a result of
the discrimination against them, with interest.
WiII.KES-BARRI WtO)l SAI I SR\ I(F, IN( .
246 NLRB No. 86
f
491
DECISIONS OF NATIONAl. I.ABOR RELATIONS BOAR[)
DECISION
SIAIEMENI ()F liiI CASE
THOMAS A. R( i, Administrative Law Judge: This is a
consolidated proceeding in which a single hearing was held
in Wilkes-Barre, Pennsylvania, on June 13, 14, and 15,
1976, on complaint of the General Counsel against Wilkes-
Barre Wholesale Service, Inc., here called Respondent, or
the Company, and to resolve questions raised by challenges
to ballots cast in a related representation case election in-
volving the same Company. The complaint issued on April
30, 1979, based on charges filed on November 24, 1978
(Case 4 CA-9781). on January 30, 1979 (Case 4-CA 9932),
and on March 26, 1979 (Case 4-CA 10074) by Laborers'
International Union of North America, District Council of
Eastern Pennsylvania, Local Union 1300, AFL-CIO, here
called the Union, and on a charge filed on November 30,
1978 (Case 4-CA-9798) by Alan Ravert., an individual. The
election involved was held on November 17, 1978, and on
January 2, 1979, the Regional Director issued a notice of
hearing to resolve eight challenges, in which he consoli-
dated all the cases for a single hearing. The issues to be
resolved are whether Respondent in fact discharged three
employees in violation of Section 8(a)(3) of the Act and
whether the persons who cast challenged ballots were eligi-
ble to vote. Briefs were filed by all parties.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER RESPONDENT
Respondent, a corporation existing under the laws of the
Commonwealth of Pennsylvania, is engaged in the whole-
sale distribution of building supplies at its location in
Wilkes-Barre, Pennsylvania. During the year preceding is-
suance of the complaint, in the course of its operations, it
purchased goods valued in excess of $50,000 directly from
out-of-state sources. I find that Respondent is engaged in
commerce within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOIVED
I find that the Laborers' Union is a labor organization
within the meaning of Section 2(5) of the Act.
11. ItHE UNFAIR LABOR PRACIICES
A. A Picture of the Case
During the summer of 1978 there was a move among the
approximately 22 warehousemen and drivers of this Com-
pany to join the Teamsters Union. its Local 401. and a
substantial number of employees signed authorization cards
in favor of that Union. The president of that local informed
Respondent of its asserted majority representative status
and requested a meeting. Nothing came of that organiza-
tional campaign, and the employees then turned to the La-
borers' Union, and its Local 1300, the Charging Party and
Petitioner here. After a number of authorization cards were
signed, this Union filed its election petition with the Board
on September 22, 1978, and by agreement of the parties a
Board-conducted election was held on November 17. The
results were inconclusive because of challenges.
On June 9, 1978, Respondent discharged Alan Ravert, a
driver who had been in its employ for 5 years and who had
been active in the campaign in favor of the Teamsters. The
complaint alleges this man was discharged for such union
activity, and that the Company thereby violated Section
8(a)(3) of the Act. On November 10. a week before the
election, Respondent discharged Michael Nadzan, another
driver. And on March 5. 1979, it discharged Thomas An-
derson, a warehouseman, who had acted as the Laborers'
observer in the November 17 election. The complaint says
each of these discharges was also motivated by union ani-
mus, and therefore unlawful under the statute.
There are also separate allegations of violations of Sec-
tion 8(a)(1)--interrogations, threats of reprisal, deliberate
hiring of unneeded employees in order to pad the payroll
list, and thereby influence the outcome of the election im-
properly.
Respondent denies the commission of any unfair labor
practices. As to each of the three dismissed employees it
advances an affirmative defense of discharge for cause.
I. Ravert
The transcript of testimony presents substantial and de-
terminative questions of credibility, both factually as to
what was and was not said by the individual parties in-
volved. and with respect to the question of the true motiva-
tion in the three discharges was it just cause, as asserted,
or was it retaliation for prounion activities. Three managing
agents, all conceded supervisors, testified for Respondent
on these issues. They were Joseph Sabol, Sr., president and
owner of the Company, his son Joseph Sabol, Jr.. an office
manager, and Joseph Lyons. warehouse supervisor and dis-
patcher. These are the men who run the business on a day-
to-day basis and who were responsible for everything that
was done on behalf of the Company. Their credibility will
best be appreciated if first the discharge of Ravert be con-
sidered.
Ravert started by testifying that in 1975. because the men
were dissatisfied with their conditions of employment, he
contacted Teamsters Union Local 401 to have authoriza-
tion cards signed. Word got to the Company and Sabol Sr.
talked to him in the warehouse, saying; "Why are you try-
ing to do this to me? Why are you starting trounle for me?
... Why did you go to a union? You could have talked to
me. We could have worked something out." At Sabol's re-
quest, still according to Ravert, he arranged a meeting of
the men, and they talked to Sabol. The result was a promise
of raises over the next 3 years, and that union movement
died. A year or two later the promised raises were not forth-
coming, and when the men complained Sabol told them
"we wouldn't see another raise until he died." This starting
testimony by Ravert stands uncontradicted on the record.
Ravert continued that in May or early June 1978, he and
other men went back to the Teamsters and this time signed
union cards. Again, as Ravert recalled. Sabol learned of
their activity and said to him: "Why are ou starting trou-
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WILKES-BARRE WHOI.ESALE SERVICE
ble? What are you getting a union for?" In the office Sabol
then said to him: "we shouldn't be contacting a union and
that he wasn't going to that even if we got a union, he
refused to pay, that he'd sell the business before he'd give us
a raise .... He asked me if I wasn't happy why don't I get
another job . . . 'If you don't like it here, well, why don't
you just quit?'" When Ravert answered that he could not
afford to quit, Sabol came back with: "Well. I'll ride you
until you quit." Sabol called Ravert into the office a second
time, as the driver continues to testify. "'You talk to the
people. They'll listen to you. You can stop this union ....
Are you going to go out there and talk to them or not?"
Ravert's answer was: "I can't stop it .... If you want it, I
don't want to act as a spokesman, if you want to stop the
union, you go out and talk to them yourself, and nobody
will listen to you because you've lied to them before and I
don't want to have any part of it."
After this, on June 9, Ravert was discharged.
If Sabol's very lengthy discourse at the hearing about this
man's utter unfitness for employment can at all be reduced
to simple language, it is that he was just a terrible worker,
he refused to take orders, he disrupted the whole operation,
he generated discord and dissatisfaction in others, he was a
physical menace to people around him in short, an intol-
erable employee. The trouble with this asserted defense is
that Ravert worked at this job for 5 years, and throughout
that time, whatever his character and whatever his failings,
Respondent deemed him a valuable employee and was glad
to keep him on. That is, it kept him until the moment he
chose to disregard the old warning of several years earlier
and tried once again to bring a union into the picture. In
the light of the terrible story Sabol very colorfully and very
angrily described as of old, the timing of the discharge vir-
tually compels the finding that his real reason had to be
something else.
When he first told the story of Ravert being "a tough
man to try to control. He seemed to want to do things on
his own. He didn't want to do things or way: . . . he was
determined that he was only going to take so many stops
and no more, .. ." Sabol talked of the entire period of the
man's employment. He even recalled, quite inconsistently,
that Ravert would return at the end of the day and boast:
"You know I had 16, had 17 stops today ... I'm a good
man ... I could do it." Later in his testimony, Sabol tried to
shorten the period of Ravert's faults, to only a year, then 9
months, then only 6 months before the discharge.
But as he kept adding to the reasons for the discharge,
Sabol in fact reached further and further back. He repeat-
edly emphasized the assertion Ravert had been in jail, on
probation, or on parole. It then developed that all this
amounted to was that about 6 months after he came on the
job, back in 1973, Ravert did tell the boss he had once been
arrested, erroneously it seems, and been kept in jail some-
where overnight. Other than simply disparaging the man,
what such a fact, 4-1/2 years after it came to Sabol's knowl-
edge, could conceivably have had to do with the discharge,
the president did not explain.
Aside from the revealing significance of the timing, when
seen against such an assertedly consistent history of misbe-
havior, there are other elements in the combined stories of
the defense witnesses which further discredit them. Sabol
said that although he did not personally supervise Ravert,
he knew all along he simply was no good because Lyons,
the dispatcher supervisor, had told him so. Ravert did say
at the hearing that in the summer of 1978, after all this
union business started, the Company kept adding to his
daily delivery orders to the point where it was more than he
could handle and that he did complain. Lyons testified he
repeated these complaints to Sabol in criticism of Ravert.
But in complete conflict with Sabol's testimony. Lyons
added that when he asked Sabol "to straighten him out,"
the president instead responded: "He's a work horse. He
does deliver." Again: Testifying before Lyons, Sabol said
he dismissed Ravert because Lyons told him he had to. He
quoted Lyons as saying: "Either I fire Alan Ravert or he's
[I.yonsJ going to quit." In absolute contrast, Lyons went out
of his way while testifying to make clear he did not ask for
the discharge. What did he say to Sabol? "'Either
straighten him out, or if you can't straighten him out, you
know, if you are going to get rid of him, get me a replace-
ment,' but I never told-went to Mr. Sabol and said, 'Fire
him.' specifically." Moreover. Lyons even said that he never
knew until 2 weeks later that Ravert had been discharged at
all. Again from Lyon's testimony: "I don't know if they
fired him or laid him off, because no one ever consulted me
on this." How does one reconcile such direct conflict in
testimony between the two principal defense witnesses?
There are other contentions advanced by Sabol at the
hearing that do not really merit much discussion here.
Among the reasons for the discharge he listed the fact
Ravert sometimes came to work in sandals, wearing a "tee
shirt," and even with "jeans that were cut up to above his
knees." From this Sabol went on that Ravert came to work
"either drunk or he was on dope." Other than his unsup-
ported conclusionary statements. there is no proof at all
that the man ever took "dope," or came to work drunk.'
One last element in the accumulation of reasons now ad-
vanced in justification of the June 1978 discharge merits
comment. As he rambled along in answer to his lawyer's
question as to why he discharged Ravert, Sabol started talk-
ing about the man having "the sawed-off shot guns ... and
I saw the guns." He repeated vehemently several times that
he "saw the guns." His first implication was clear: That
Ravert was a dangerous man to have around. As he contin-
ued. however, the articulated idea changed, and became
that the fault lay in Ravert having bought "them on my
time, hauled them in my trucks." To hear the witness one
imagined a desperado. What came to light later, not only
by the testimony of Ravert, but with Sabol's own admis-
sion, is that one day-long before the discharge-Ravert
bought one shotgun, for hunting I suppose; had the pur-
chase wrapped up in the store; and took it home with him
after returning his delivery truck to the yard and checking
out. Other than this, there is no credible evidence that
Ravert ever appeared at the place of work with a single
shooting iron, to say nothing of two! That the entire busi-
I From Sabot's testimony:
Q. You testified that sometime you feel he came in intoxicated or on
dope. When was this?
A. Well, again, I can't give you the dates, but he did come in in the
morning. He'd come in there in the morning. and to me he was flushed
in the face and he looked like he was drunk and he was high and singing
and he was this, and "today is the day, and 'God is going to make the
day for me today,' and so, so. so, so."
493
I)4F( ISIONS OF NATIONAI. I.ABOR RELATIONS BOARD
ness about the gun was pure fabrication by Sabol as a rea-
son for releasing Ravert, is proven conclusively by l.yons'
statement. testifying after Sabol: "That [the shot-gun] to me
had nothing to do with his being laid off, discharged or
straightened out."
Still on this matter of deadly weapons, Lyons, the dis-
patcher, said that sometime after the discharge Ravert
parked his car on the Company's property when visiting the
"unemployment office." Apparently that office is not far
from Respondent's place of business. Lyons said that from
a distance he signaled Ravert to park his car elsewhere, and
that in response Ravert "reached underneath his seat or in
hack of the seat, and he pulled out a revolver .... " Other
than blackening the man's character, this part of the as-
serted affirmative defense could not possibly have had any-
thing to do with the discharge, if only because it all came
later. Ravert said he never had a pistol or a revolver of any
kind in his life, and I certainly believe him, especially in the
light of Lyon's further testimony that: "he didn't point it at
me it was done smiling .... He never threatened me with,
he never done it was done in jest. I never reported this to
Sabol or anything." If Ravert was so friendly towards him,
why did l.yons tell this story at all'? I do not believe this
company witness.
And finally, there is the question of knowledge about the
union activity. Sabol said he never heard a word about any
union activity until the day the representation case petition
was filed, on September 22. take this as intended to deny
also that that he had any conversation with any employee
about union activities before that day, although Sabol did
not directly contradict other testimony on that score. And
his son, Joseph Sabol, Jr., said flatly no one representing the
Teamsters Union ever communicated with him at all. The
last witness called by the General Counsel in rebuttal was
Francis Belusko, president of Teamsters Local 401. He tes-
tified that about a year before the hearing-this would be in
the spring of 1978 (it will be recalled that Ravert's uncon-
tradicted testimony is that the men signed Teamsters cards
in May or June)-he called at the plant and spoke to
Joseph Sabol, Jr., saying he "had a majority signed up" and
requesting that Sabol Sr. call him. This record is completely
silent as to what came of that movement. But in any event,
there can be no question but that of all the witnesses who
appeared, Belusko was the one person who had no interest
in the outcome. I certainly credit him against Sabol Jr.
From all this it follows that the two Sabols, father and
son, were not telling the truth throughout this hearing, and
that Lyons, who attempted to talk consistently with the
president, is also a discredited witness. All things consid-
ered, I find that Respondent discharged Ravert because of
his attempt to establish the Teamsters as bargaining agent
and that thereby Respondent violated Section 8(a)(3) and
(I) of the Act. I also find that by questioning Ravert about
his union activities in June, by threatening to sell his busi-
ness in retaliation for union activities, and by telling Ravert
he would "ride" him until he quit an effective threat of
discharge-Sabol Sr. violated Section 8(a)(1).
On this matter of using the threat of "selling the busi-
ness," there is also the testimony of a driver named Leonard
Minots. He said that in the fall of 1978-this would be
while the Laborers' election petition was in progress Sabol
Sr. called him aside and said "he didn't like what was going
on with the Union . . and he doesn't know why we're
doing this .... Hie showed me a letter ... and he said, 'I
have a card here that a business man from Philadelphia, if
I send this back to him. I could sell the business, one, two,
three:' .... he said ... he gave me a job, and if it wasn't for
a friend of mine ... I wouldn't have gotten a job there." In
the course of the conversation, according to Minots, he told
the boss the union activity was being pushed "because the
guys think that they're not being treated fair."
Sabol's only testimony relating to this talk with Minots
was to deny he ever threatened to sell his business. I do not
credit him against Minots. I therefore find that. by his
threat to that employee, Respondent committed further a
violation of Section 8(a)(1).
2. Nadzan
Nadzan was also a truckdriver: he signed a union card
and went to union meetings. On November 9 he damaged
the top of a company truck as he drove through an under-
pass on the highway that was too low for his vehicle. The
accident happened towards the end of his workday and
while he was off the regular route. Nadzan explained that
he had decided to take a round-about route, instead of the
regular one, so he could stop at his home and repair his
personal car so that his wife could drive it to the Company
and he could get home after returning the truck and check-
ing in. That this took him out of his way, that it was a
matter of adding 5, 7. maybe 10 miles to his driving, that
the added time used for his nonwork and personal purpose
would have added to his timecard and paid for by the C('om-
pany, all this is conceded.
With the truck jammed in the underpass, the Company
was advised and sent people to disengage it and drive it
back to the yard. Among the people who came was Joe
Sabol. Jr., the boss' son. Right there, as Nadzan testified, he
told Jr. "I know I'm going to be fired for this." The office
manager answered: "No, my father wouldn't do a thing like
that."
The next morning, when Nadzan came to work. Sabol Sr.
sat him down and had a talk with him. His son was present.
Sabol recalled Nadzan's past accidents, telephoned his law-
yer, or somebody, for advice, and then fired the driver. If
the record showed nothing more than this on the issue of
Nadzan's discharge, it could hardly be said there was no
cause for dismissal, or that a case of illegal motive has been
proved. This, if only because, by his contemporaneous
statement to Sabol, Jr. that he expected to be fired, the
driver himself admitted that what he did that day could be
grounds for dismissal. But there is more, and again it goes
directly to Sabol Sr.'s credibility.
Nadzan testified that, after he punched in the next day
and started to work, Sabol called him into the office be-
cause "he wanted to talk to me." Nadzan's testimony con-
tinues: "Sabol Sr. told me how nice he's been to me when
he loaned me the truck when I was moving and other things
like how he took me, he gave me a job, he took me out of
the gutter when I was nothing, and then he proceeded, he
asked me . .. 'What were you talking to the guys out there
about on the dock?' and I told him, 'I says, I was talking to
them about the accident that I had yesterday,' . . . he said
. . . 'I thought you were talking about the Union,' . . . and
494
WILKES-BARRE WHO()I.ESAI.E SERVICE
then he asked me, he says he wanted to know who started a
Union out there, and I told him, I said, 'It wasn't one of us:
it's all of us,' and then after that he asked me, "What are
you going to do in the election?' and I told him, I said that
was none of his business, that was my business. And he
kept sitting there telling me. he said, kept replying, 'You're
not telling me what I want to hear." ... And I even asked
him, I said, 'What do you want to hear?' And he wouldn't
reply."
During this conversation. still according to the driver,
Sabol also told him this was his third accident, that he had
"wrecked the flatbed engine," and had "knocked a fence
over," causing "$1500 damage." At this point, as Nadzan
recalled, Sabol Jr., "stood up and he told him that I only
had one accident, and his father told him to shut up and sit
down and that's exactly what he did." Sabol Jr., who was
present throughout the hearing and testified after Nadzan.
did not deny having said this to his father. Of course, as
Nadzan explained, the reason Sabol Jr. said this is because
he had really never had a road accident before. An engine
had gone out of order while he was driving and he had once
inadvertently backed his truck into a customer's fence after
making a delivery.
Sabol denied interrogating Nadzan during the discharge
conversation or having mentioned a union at all. I do not
believe him.
Before he rested, the General Counsel proved, by the
testimony of Nadzan and other employees, two of them still
in Respondent's employ, that there had been many road
accidents, some with extensive and costly damages, but that
no one had ever before been discharged because of them.
Testifying in defense later, Sabol was careful to stress that
his sole reason for the discharge was because Nadzan had
gone off the beaten path to use the company truck for per-
sonal reasons, and on company time. With so much direct
evidence by his present employees of his having tolerated
serious road accidents by other employees, Sabol had to
take this position. But again, as in the case of Ravert., Sabol
kept talking about what were really irrelevancies, according
to him now. He emphasized that he estimated the truck
damage at about $3,000, and that it had not yet been re-
paired, and that there was no insurance. He did not deny
having discussed the man's previous driving record with
him before the discharge. But if the damage had nothing to
do with his criticism, why belabor it at the hearing, and
why discuss it with the man before firing him? Moreover, if
his motive was pure, why clear with the lawyer in advance?
It is as much a matter of demeanor of the witnesses as it
is a credibility resolution resting upon the record as a
whole. Taken altogether, Sabol Sr.'s testimony was simply
unconvincing. all things considered. Merely because there
was solid base for discharging the man is not reason enough
for disregarding the direct and credible evidence pointing to
antiunion motive. When Sabol asked Nadzan "who started
a union," and "what are you going to do in the election."
had the driver told him what the boss wanted to hear, and,
I suppose. assured Sabol he would vote against the union, I
have no doubt the man would have been permitted to keep
the job. I find, on the entire record, that Respondent dis-
charged Nadzan because of his prounion resolution. and
thereby violated Section 8(a)(3) of the Act. I also find that
by asking the employee who had started the union move-
ment, and how he was going to vote in the election, Sabol
Sr. violated Section 8(a)( I).
3. Anderson
Anderson worked for 7 years as a warehouseman. He
joined the Union and in the November election acted as
union observer. He was discharged on March 5., 1979, when
Sabol Sr. saw him smoking while at work and dismissed
him summarily. The next day Anderson phoned in and
talked to Albert Sabol, office manager and brother of Sabol
Sr., to say: "Is there any chance of getting back to work?"
The manager answered: "I don't know ... You'd have to
talk to Joe . . . Joe is upset over the union." Tlhis is from
Anderson's testimony, and stands uncontradicted. because
Albert Sabol did not testify.
Anderson also testified that in November. during the
election. Sabol Sr. called him into the office one day, closed
the door, and asked "what I know about the union, and I
told him I knew nothing." [This had to be before the No-
vember election, where Sahol Sr. saw Anderson act as the
union's observer.j Anderson's testimony continues that
Sabol then said: "this union couldn't do anything for me:
they couldn't guarantee me a raise; they could not gurantee
me my job: basically, the union could not guarantee me
anything. He produced a paper that was a letterhead ... he
stated that he could sell the business, and if the Union got
in he would sell the business...." Sabol denied ever having
threatened to sell his business because of the union, but he
not otherwise contradict Anderson's testimony.
It is a fact that smoking is prohibited in this warehouse:
in fact there are and there were at the time of the events "no
smoking" signs posted about the premises. At the hearing
Anderson admitted he was caught smoking. He admited
that when Sabol asked him that day whether he had been
smoking, he said yes. He also admitted that Sabol immedi-
ately discharged him with two words: "Get going." Asked
as a defense witness on the second day of the hearing why
he had discharged Anderson. Sabol spoke for two pages on
the transcript to describe the smoking incident--where An-
derson was sitting, which way he was facing, where ashes
lay on the ground, were they or were they not smoldering.
etc., etc. It was typical of his earlier testimony argumenta-
tive, full of irrelevancies, often evasive. It only served the
more to lessen his credibility.
Three other employees-Honeywell, Minots, and As-
bury--testified that they saw employees smoking inside the
building in Sabol's presence, that Sabol criticized them for
it and told them they had to stop, but that none of them
was discharged for violating the rule. If not they, why was
Anderson sent home? Sabol denied ever having seen em-
ployees smoking inside the building without dismissing
them.
But another employee, Robert Grabinski, testified that a
year before the hearing---June 1968?-Sabol sax him
smoking near an open window and told him to "put it out"
and he did. With this, Grabinski continued to testift, he
started arguing with the owner "hot and heavy." insisting
that there should be a place in the building where the em-
ployees could enjoy a smoke. When the arguing got too hot,
Sabol told him he was fired. The next day (irabinski called
Sabol on the phone. apologized, and asked could he return
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to work. The owner said yes and Grabinski came right back
on the job, where he still remains. Sabol's explanation of
this incident, an attempt to avoid the adverse inference aris-
ing from the disparate treatment of the Union's observer
later, is even less convincing than his purported defense of
the other disputed discharges. In fact, in his again elusive
and vacillating explanation, it is not possible to pin down
precisely what he was saying his true reason to fire Ander-
son had been.
. . .he sat on the windowsill of a window a little
smaller than that [indicating] but just about the same
height. Bobby was sitting on that windowsill with his
foot up against it like this here indicating], and ... he
was holding onto the window. He was holding onto the
window and he was hanging out of the window like
this [indicating], and when I saw him hanging out that
window, I gave such a yell that I probably got every
body alerted in the building, because the windows in
the building-it's a pretty old building, and for him to
lean out there at that time, that window could give
with him and it wouldn't hold him. There was nothing
to hold him, see, and I did not see Bobby Grabinski
smoke a cigarette on that windowsill. Now, I saw some
smoke coming up from some place, whether it was
from the lower level or somebody smoking on the side-
walk and it brought it up, the wind brought it up, but
as for taking the puff, I did not see Bobby Grabinski
take a puff, just like that. But what I did with him, he
wasn't supposed to be on that sitting down. He was
supposed to be working at that time. They get breaks
in the morning and he wasn't supposed to be on that
windowsill, and I caught him sitting down on the job
and I told him to go home and he went home.
Later, on cross-examination, Sabol said that when he saw
Grabinski sitting on the windowsill he "just got so shook up
because of the fear of him falling out of that building."
There are too many questions raised by this testimony.
Did Sabol discharge the man because he endangered his life
by leaning out the window? Did he send him home because
he was taking a break at the wrong time? If smoking endan-
gered the building because of its too many inflammable
materials, as Sabol also detailed, why did he not look out
the window to see where the smoke came from? He admit-
ted he ignored the smoke he saw near Grabinski. He
sneaked in the phrase that he did not see the man "take a
puff, just like that." With Anderson having shown his ciga-
rette and admitted smoking when he was released, why was
it so important for Sabol to emphasize at the hearing, as he
did, that he saw Anderson "take a puff on a cigarette," and
then again take "another draw on the cigarette?" Why was
one offense pardonable and the other not?
I cannot credit this witness. When to the whole story of
Anderson's discharge one adds the other facts, already
found here, revealing the union animus of Respondent, I
credit Anderson instead. I find, again on the basis of the
whole record, that he was discharged in January, while the
outcome of the union election was still in balance, because
of his prounion activities, and that thereby Respondent
again violated Section 8(a)(3) of the Act.
Throughout the extended testimony of conversations
there are, or at least there may be, other phrases attributed
to management representatives that may amount to sepa-
rate violations of Section 8(a(Il). No purpose would be
served by unduly extending this report by making any such
additional minute findings. In any event, the remedial order
that is indicated would not be changed.
The Challenges; Alan Ravert and Michael Nadzan
It having been found that Ravert and Nadzan were un-
lawfully discharged before the election, and that they are
therefore entitled to reinstatement to full status as of before
their dismissals, it follows they were eligible to vote in the
November 17 election. Accordingly, I find the challenges to
their ballots without merit and recommend that their bal-
lots be opened and counted.
David Mieczkowski
Mieczkowski, a school boy 16 years old in 1978, was a
full-time employee during the summer. With his return to
school in September he took to working only an occasional
Saturday for very brief periods. His total work record there-
after, as shown by his timecards received as evidence, was
as follows, always Saturday work only. Week ending Sep-
tember 21 4-1/4 hours; week ending September 28-3-
3/4 hours: week ending October 26 3-3/4 hours; week
ending November 16--4 hours; week ending November
23-1-3/4 hours; week ending November 30-4 hours:
week ending December 21 4 hours; and week ending De-
cember 28 15 hours.
I find that from September 21 on Mieczkowski was a
casual employee and therefore ineligible to vote in the No-
vember election. Accordingly I recommend that the chal-
lenge to his ballot be sustained.
Michael Boyko
Grabinski, the only witness offered by the Union to sus-
tain its challenge on the grounds of asserted supervisor sta-
tus, said he was once told by Sabol Sr. that Boyko was the
"boss" in the carpenter shop. For the rest, the witness' story
stemmed from things he said he heard Boyko say about his
position, not anything that came from management. He
quoted Boyko as saying "he [Boyko] always suggested to
people, or the boss, that if they were good employees or
they weren't, or they weren't going to work out for him ...
and suggested that he be dismissed." Asked just what kind
of work did Boyko do, Grabinski said: "his job then mainly
was to distribute the work copies in the morning and to
show the men what orders have to be put out during the
course of the day, and if there's anything wrong that the
men couldn't figure out on these windows, he would come
over and show them what to do."
In the end, Grabinski admitted Boyko does the same
kind of work he does answers the phone, as he sometimes
does, receives orders, and passes them down to the other
employees. There is also direct and uncontradicted testi-
mony that Boyko does not possess or exercise any of the
conventional powers that distinguish a supervisor from the
rank and file. On this record, I can only find it has not been
established Boyko was a supervisor. Compare Vapor Corpo-
ration, 242 NLRB 776 (1979) I therefore recommend that
the challenge to his ballot be overruled.
496
WII.KES-BARRI WHIOIF-SAI. SRVI(CE
George Sahol
George Sabol is the brother of Sahol Sr. and for 25 ears
has worked as a warehouseman. As the close relative of the
president, he enjoys a significant status in the shop. There is
direct testimony that at the time of the election, unlike all
other employees, he was not required to and did not punch
a timecard. In a very unconvincing attempt to belittle this
fact, Joseph Lyons, the warehouseman supervisor, said
George Sabol "used to have a timecard ten years ago." But
as to whether he used it or not during the period preceding
the election. he, Lyons. did not know. Sahol Sr. had occa-
sion to say at the hearing that in the warehouse "no hods
would go above the $4.70 rate." But his brother George was
being paid at the rate of $6.87 per hour. Nothing was of-
fered by the employer to explain this tfivored treatment in
terms of work performed. When George so desires, he takes
as long a lunch period as he pleases. There is also testimony
that he does work on his personal propert such as snow-
mobiles-- even during regular working hours right inside
the plant. I find merit in the Union's contention that this
man cannot be said to have a community of interest in
conditions of employment together with the rest of the em-
plovees working in the warehouse at the time of the elec-
tion. I therefore think the challenge to his ballot should he
sustained. Cf. GroAtin Spoiting Filtures Co., I1(.. 224
NLRB 842 (1976).
Hynick. Ohsitos, and Zorzi
On October 26. when the parties met and signed a con-
sent election agreement. the!- discussed and agreed to an
election date-October 19. Three voters, all warehouse-
men--Hynick. Obsitos, and Zorzi were challenged by the
Union on the ground that they were hired after the eligibil-
ity date. At the hearing the Union advanced as an addi-
tional contention in support of these challenges that if in
truth the three men were hired and started work before
October 19, the Company hired them solely to insure three
antiunion votes.
All three of the disputed voters testified and said un-
equivocally that they started work before October 19. All
three of them also said they asked for the job in previous
conversations with Sabol Sr., who they knew either as old
friends and/or neighbors, or as yard customers. Three other
employees-Anderson, Minots, and Rittenhouse testified
that they worked in the warehouse and had never seen any
of the disputed three men at work before Monday. October
23. And of course there is also the testimony of Sabol Sr.
that he spoke to them before October 19, that he agreed to
hire them before that date, and that all three actually
worked before October 19.
The timecards of all three men were received in evidence.
Hynick's card shows that he worked I hour on Friday. Oc-
tober 13; 3-3/4 hours on Monday. October 16; 3 hours on
Tuesday, October 17: 4-1/4 hours on Wednesday. October
18; and 4 hours on Thursday. October 19. Obsitos' card
shows he worked 2-1/2 hours on Monday, October 16; 4
hours on Tuesday. October 17: and 3-1/2 hours on
Wednesday, October 18. And Zorzi's card shows he worked
I hour on Friday, October 13: I-I/2 hours on Monday,
October 16; 3 hours on Tuesday, October 17: 2-1/2 hours
on Wednesday. October 18; and 3 hours on hursday. Oc-
tober 19. Thereafter, beginning on Friday. October 19 the
first day of the next pay period week-all three of them
worked a full 8 hours a day throughout their continuing
employment. Zorzi worked regularly until November 23.
when he fell sick and underwent surgery: he never returned.
IlNnick and Ohsitos were still at work at the time of the
hearing. 8 months later.
Between the conflicting oral recollections of the three
challenged men and the three unioneers, I accept the docu-
mentary evidence of the timecards, and I therefore find it a
fact that the three men were hired, and did work during the
week preceding the eligibilit\ date. There is more reason for
doubting the testimony of the union's witnesses then there
is for questioning that of the three other men. hce new hires
were old acquaintances, or maybe even friends of Sabol,
and he did do them a favor by hiring them. But it does not
fiollow of necessiti their interest in the outcome must be
said to be the same as his now. he other men did tasvor the
Union. and there is no question about that.
To strengthen their stories they added that as early as
October 25 they told Robert Ferrari. the U'nion's Interna-
tional representative, that these three men in question, plus
a fburth. had started to work on October 23. They even
ofiered into evidence an affidavit they signed on Novem-
her 29 restating their story about having said that to Fer-
rari on October 25. The fact that the! made and signed that
document, of course, proves nothing, for it is purely self-
serv ing and was made after the voting, clearly intended to
support the asserted basis for the challenges.
I also very much doubt their testimony about telling Fer-
rari what they now say the) told him1 on October 25. As the
Union's brief admits, at the October 26 conference, the very
next day, where the parties discussed a consent election,
they "negotiated the terms" of their agreement. They set
October 19 as the eligibility date. If as his union members
w(ould now have it, Ferrari knew that four men had started
working only 2 days earlier, in an uverall unit of 22 men,
surely he would have said something to guard against what
is now called "padding the payroll." How many times have
original timecards served in Board proceedings to resolve
conflicting testimony about when employees really worked?
I also find unsupported the alternative assertion that,
even if these men did work before October 19, they were
hired only so that the employer could count on three votes
against the Union. The direct testimony of each one of
them that they were not told one word about the Union
when hired stands clear and uncontradicted. I know no rea-
son for questioning it. Sabol Sr. said he hired them, and
even a fourth man, at that particular time because the vol-
ume of business was mounting and had reached an indi-
cated peak. This claim is not really supported by the com-
pany records. But against this element of doubt, there is the
fact that two of the original four were still at work 8 months
later. I doubt it can be said that an employer would con-
tinue to pay two full-timers for so long if he does not really
need them. Zorzi left about a month later, but this was only
because he became disabled. The Company did not let him
go. And this equally true of the fourth man, who worked
less than a week and then quit of his own volition. In the
light of these facts, the further fact that the newl, hired men
were around 70 years. also means less than at first would
497
DECISIONS OF NATIONAL LABOR REIATIONS BOARD
appear. ecrepit old men cannot continue to work full
time, and earn their pay. as these men have been doing.2
I find that Hynick, Obsitos, and Zorzi were eligible to
vote in the election, and therefore that the challenges to
their ballots must be overruled.
TFili RiEMii)Y
Respondent must he ordered to reinstate each of the
three unlawfully discharged employees. It must also be or-
dered to make them whole in keeping with established
Board law for any loss of earnings they suffered in conse-
quence. Respondent must also be ordered to cease and de-
sist from in any manner violating the statute.
IV. IE EI("IS OF 111 UNFAIR ABOR PRA(I(IS t l'()N
(C()MMIR( 'I 1
The activities of Respondent set out in section III. above.
occurring in connection with the operations described in
section I. have a close, intimate, and substantial relation-
ship 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.
CO()N( I SI()NS O()F I .AV
1. By discharging Alan Ravert, Michael Nadzan, and
Thomas Anderson Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act.
2. By the foregoing conduct, by interrogating employees
concerning their union activities, by threatening to sell its
business in retaliation for union activities by its employees.
by threatening to discharge employees to curb their union
activities. and by questioning employees as to how they
intended to vote in union elections. Respondent has en-
gaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1).
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law.
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER3
The Respondent. Wilkes-Barre Wholesale Service, Inc.,
2 The charge about the Company having deliberately placed people it did
not need on its payroll only to influence the outcome of the election also
appears in the complaint as an unfair labor practice allegation. I recommend
dismissal of that allegation for the same reason that I find the three men
eligible to vote.
iun 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, he adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
Wilkes-Barre. Pennsylvania. its officers. agents. successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in aborers' International
Union of North America, District Council of Eastern Penn-
sylvania, Local Union 1300, AFI. (10, or any other labor
organization of its employees, by discharging employees or
otherwise discriminating against them in their employment
conditions because of their membership in or activities on
behalf of the above-named or any other labor organization.
(b) Interrogating employees concerning their union ac-
tivities, threatening to sell its business in retaliation for
union activities by its employees, threatening to discharge
employees to curb their union activities, or questioning em-
ployees as to how they intend to vote in union elections.
(c) In an) other manner interfering with, restraining, or
coercing employees in the exercise of their rights to sellf
organization, to form, join. or assist the above-named labor
organization. or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer to James Ravert, Michael Nadzan, and Thomas
Anderson immediate and full reinstatement to their former
jobs, or, if' those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or other
rights and privileges. and make them whole for any loss of
pay or any benefits they may have suffered by reason of
Respondent's discrimination against them, with interest
thereon to be computed in the manner prescribed in F. W.
Woolworth Compan, 90 NLRB 289 (1950). and Florida
Steel ('orporation, 231 NLRB 651 (1977).'
(b) Preserve. and upon request. make available to the
Board or its agents, for examination and copying, all pay-
roll records. social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or appropriate to analyze the amount of backpay due.
(c) Post at its plant in Wilkes-Barre, Pennsylvania, cop-
ies of the attached notice marked "Appendix." 5 Copies of
said notice, on forms provided by the Regional Director for
Region 4, after being duly signed by Respondent's autho-
rized representative, shall be posted by it fbr a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to insure that
said notices are not altered, defaced, or covered with any
other material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
4See, generally, Isis Plumbing & Healing Co. 138 NLRB 716 (1962).
5 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
o,' the United States Court of Appeals Enforcing an Order of the National
labor Relations Board"
498