Local 20, Bakery and Confectionery Workers, etc.

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Warner, upon returning to work for the week ending February 18, worked 32 hours, having started 1 day late for that pay period During the week ending Febru- ary 25 he worked 36 hours, having quit early on Saturday For the week ending March 4, he worked 40 hours On March 11 he quit Analysis of the payroll records further reflect that nonunion men such as Barnett, Claunch, Gruhler, Arthur Shaw, and David Shaw also had short workweeks during this same period of time Contrary to the General Counsel's contention the record reveals no discrimination in assignment of duties to strikers who returned to work Woodley testified that he had been switched from mechanical work to painting and body work By his own admission this transfer was made at his request Guy, who was a helper on the third shift prior to the first strike, was transferred to a more desirable shift upon his return to work in February Likewise, the record fails to sustain the General Counsel's contention that after the men returned to work in February, Respondent discriminated against the ad- herents to the Union in the allotment of overtime work. The General Counsel's further contention that Brandon was discriminated against, upon his return to work in February, by being refused field work is not supported by the record as a whole ii This change in job duties wassolely brought about at the request of Long's general superintendent who requested Patterson not to send Brandon into the field to change tires or to do any other work there because Brandon interfered with Long's employees by engaging them in extensive conversation The record is also devoid of any credible evidence that Respondent failed or re- fused to bargain collectively with the Unions after the execution of the settlement agreement or in any manner unlawfully interfered with the employee's statutory rights E Concluding findings Upon the entire record in the case, the Trial Examiner is convinced, and finds, that the General Counsel has failed to prove by a fair preponderance of the credible evidence that Respondent has violated the terms of the settlement agreement or has committed any unfair labor practices since its execution Therefore, pursuant to the long standing Board policy,ia the Trial Examiner honors the settlement agree- ment and declines to consider any incident which took place prior thereto as a basis of a finding of an unfair labor practice Accordingly, the Trial Examiner will recom- mend that the consolidated complaint be dismissed, in its entirety Upon the basis of the foregoing findings of fact, and upon the record as a whole, the Trial Examiner makes the following CONCLUSIONS OF LAW 1 Eveready Garage, Inc, Phoenix, Arizona, is engaged in, and during all times material was engaged in, commerce within the meaning of Section 2(6) and (7) of the Act 2 Local 428 and Local 83 are labor organizations within the meaning of Section 2(5) of the Act 3 The allegations of the consolidated complaint that Respondent has engaged in and as engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act have not been sustained by substantial evidence [Recommendations omitted from publication ] n This job pays more per hour and a field worker normally receives overtime work 19 See, for example, Wooster Brass Company, 80 NLRB 1633, and cases cited therein Local 20, Bakery and Confectionery Workers International Union of America [Berwick Cake Company] and Samuel Iannuzzi. Case No 1-CB-525 January 8, 1960 DECISION AND ORDER On July '27, 1959, Trial Examiner John H Eadie issued his Inter- mediate Report in the above-entitled proceeding, finding that the 126 NLRB No 3 LOCAL 20, BAKERY AND CONFECTIONERY WORKERS, ETC. 23 Respondent had not engaged in the alleged unfair labor practices, and recommending that the complaint herein be dismissed, as set forth in the copy of the Intermediate Report attached hereto. 'There- after, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and adopts the Trial Examiner's findings and conclusions only to the extent consistent herewith. 1. As set forth in the Intermediate Report, on October 14, 1958, Samuel Iannuzzi, the Charging Party herein, spoke to Mr. Goodale, president of the Company, and to Raymond Ferazani, its foreman, about a job. As a result of these convensations, Iannuzzi was told to report to work at 3 :30 the following morning. Thereafter, lannuzzi called the Respondent's business office and talked to Stanley Mirowski, its secretary-treasurer. He told Mirowski about his offer of a job with the Company and asked what it would cost him to transfer from Local 348 1 to the Respondent. Mirowski replied that he did not know, but indicated no objection to Iannuzzi's working for the Company. That afternoon Fred Cabuzzi, the Respondent's business agent, called Ferazani and berated him for hiring a man without having called the union hall, and stated that he would also have a man at the plant the following morning. ,On October 15, at approximately 3 a.m. Tony DiLimpio reported for work and told Ferazani that Cabuzzi had sent him. Ferazani put both DiLimpio and Iannuzzi to work 2 Between 10 and 11 a.m. the same morning, Mirowski came to the plant and told Ferazani, in effect, that he should not have hired Iannuzzi without having first called the union hall, that "we have men that are looking for work, men in good standing, and they should be put to work first." He also asked if DiLimpio had reported for work. At the end of the shift, or about 11:15 a.m., Goodale and Ferazani had a conversation with lannuzzi in which Goodale told lannuzzi, "I'm sorry, I have to let you go because Stanley Mirowski of Local 20 came down here ... . If you can get it straightened out with Freddie Cabuzzi and Local 20, I'll take you back to work." As Ferazani testified that the 'Company normally calls the Respond- ent for men as a matter of convenience rather than compulsion; that the Company has lured new employees during the 6 months prior to the hearing who were not members of the Respondent, and that neither Cabuzzi nor Mirowski had ever told him that he had to discharge Local 348, American Bakery and Confectionery Workers International Union, AFL- CIO, a rival union. 2 Ferazani testified that he needed only one man, but that "at that time I just couldn't send the man home at 3:30 in the morning." 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iannuzzi or that he could not put him to work, the Trial Examiner concluded that the General Counsel had failed to prove that the Re- spondent had caused or attempted to cause the Company to discharge Iannuzzi. In their exceptions, the General Counsel and Charging Party con- tend that the Trial Examiner failed to consider the record as a whole, and particularly Ferazani's admission that he had to let Iannuzzi go "because that's the way it was put to me . . . by Mr. Cabuzzi." The General Counsel and the Complainant also contend that the Trial Examiner should have found the violation as alleged, and also should have specifically found that (1) the Company had only one job avail- able for the two men who applied; (2) Mirowski knew there was only one job available when he visited the plant on the morning of October 15, 1958, the very day Iannuzzi began work and was discharged, and (3) the Company was satisfied with Iannuzzi's work. We find merit in these contentions. While the Trial Examiner credited Ferazanis testimony to the effect that he had never been told in so many words by either of Respondent's representatives that he could not hire Iannuzzi or that he would have to discharge him, at no point in the Intermediate Report did he discredit or even mention Ferazani's undenied testimony regarding what Cabuzzi told him prior to the discharge. Concerning this conversation, Ferazani testified as follows : A. I told him (Iannuzzi) that he had to be reinstated in Local 20; and if he did so, we'd put him right back to work. Q. And why did you say that to him? A. Because that's the way it was put to me. Q. By whom? A. By Mr. Cabuzzi. This specific testimony is in our opinion more probative of the part played by the Respondent in connection with the discharge than the testimony which merely negates the use of certain words by the Respondent's representatives in the course of their discussions with Ferazani. Accordingly, in view of the above testimony, as well as the other evidence set forth herein, including the evidence which clearly discloses that Cabuzzi knew there was only one job available when he insisted upon sending an additional employee (DiLimpio) over for the job which had already been assigned to Iannuzzi; that Mirowski also knew that there was only one job available when he visited the plant on October 15; and that Ferazani found Iannuzzi's work satisfactory, we find, contrary to the Trial Examiner, that the Respondent caused Iannuzzi's discharge, in violation of Section 8(b) (1) (A) and (2) of the Act, as alleged in the complaint.' 3 See Local 776 IATSE (Film Editors ) ( Cascade Pictures of California, Inc ), 124 NLRB 842. LOCAL 20, BAKERY AND CONFECTIONERY WORKERS, ETC. 25 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 1, above, occurring in connection with the operations of the Company de- scribed in section I of the Intermediate Report, have a close, inti- mate, and substantial relation 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. THE REMEDY Having found that, in violation of Section 8(b) (1) (A) and 8(b) (2) of the Act, the Respondent has caused Berwick Cake Company to discriminate against Samuel Iannuzzi, we shall direct the Re- spondent to notify the above-named Company in writing, and fur- nish a copy of said notification to lannuzzi, that it has withdrawn its objections to the employment of Iannuzzi by the Company, and re- quest the Company to reinstate him to the position he formerly held. This notification will also state that, if the job formerly held by Iannuzzi, is now held by DiLimpio, or other member of the Re- spondent, the Respondent will have no objection to the layoff of DiLimpio or 'such other member of the Respondent, if such action is necessary in order to effect the reinstatement of Iannuzzi in his former position. We shall also direct that the Respondent reimburse Iannuzzi for any loss of pay he may have suffered by payment to him of a sum of money equal to the amount he would have earned as wages from the date of the discrimination to the date of the Respondent's notification to the Company and Tannuzzi, as set forth above, less his net earnings during said period. Determination of the amount of back pay due shall be based on the quarterly method of computation established by the Board in the F. W. Woolworth Company case.4 Upon the above findings of fact and upon the entire record in the case, we hereby make the following : CONCLusION S OF LAW 1. Berwick Cake Company is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. The Respondent, Local 20, Bakery and Confectionery Workers International Union of America, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged 4 90 NLRB 289, 291-294. As the Trial Examiner dismissed the complaint herein we shall, in accord with the Board's customary practice, abate back pay for the period be- tween the date of the Intermediate Report and the date of our Decision and Order. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. By causing Berwick Cake Company, an employer, to discriminate against an employee in violation of Section 8(a) (3) of the amended Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , Local 20, Bakery and Confectionery Workers International Union of America, its of- ficers, representative, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Causing or attempting to cause Berwick Cake Company, or any other employer, to discharge, terminate, or in any other manner dis- criminate against employees in regard to hire or tenure of employ- ment, or any term or condition thereof, except as authorized by Sec- tion 8 ( a) (3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. (b) Restraining or coercing employees or prospective employees of Berwick Cake Company, its successors or assigns , in the exercise of their right to engage in, or to refrain from engaging in, any and all of the concerted activities listed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Notify the Company, in writing, and furnish a copy to Samuel lannuzzi, that the Respondent has no objection to the employment of lannuzzi by the Company without regard to his membership or non- membership in the Respondent, or any other labor organization, and without prejudice to his seniority or other rights and privileges; said notification shall contain a request that the Company offer Samuel Iannuzzi reemployment as provided in the section of this Decision and Order entitled "The Remedy." (b) Make whole Samuel lannuzzi for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth in the section of this Decision and Order entitled "The Remedy." LOCAL 20, BAKERY AND CONFECTIONERY WORKERS, ETC. 27 (c) Post in conspicuous places at the business office of the Respond- ent copies of the notice attached hereto marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter in conspicuous places, includ- ing all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Furnish to the Regional Director for the First Region signed copies of the notice attached hereto as Appendix for posting by Ber- wick Cake Company, it being willing, at places where it customarily posts notices to its employees. (e) Notify the Regional Director for the First Region in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. c In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL MEMBERS OF LOCAL 20, BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, AND TO ALL EMPLOYEES OF BERWICK CAKE COMPANY Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our members and the employees of Berwick Cake Company that : WE WILL NOT cause or attempt to cause Berwick Cake Com- pany, or any other employer, to discriminate against employees in regard to their hire or tenure of employment or any term or condition to employment in violation of Section 8(a) (3) of the Act, as modified by the Labor Management Reporting and Dis- closure Act of 1959. WE WILL NOT in any manner restrain or coerce employees of any employer in the exercise of rights guaranteed them in Section 7 of the Act, except to the extent that such right may be affected by a lawful agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor Management Re- porting and Disclosure Act of 1959. WE WILL notify Berwick Cake Company and Samuel Iannuzzi that we withdraw our objections to the employment of Samuel Iannuzzi by that Company. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make Samuel Iannuzzi whole for any loss of pay suf- fered because of our discrimination against him. LOCAL 20, BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, Labor Organization. Dated----- ----------- By------------------------------------- (Representative ) ( Title) This notice shall remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed by Samuel Iannuzzi, an individual , the General Counsel of the National Labor Relations Board , by the Regional Director for the First Region, issued a complaint dated February 27, 1959, against Local 20. Bakery and Confec- tionery Workers International Union of America , herein called the Respondent, alleging that the Respondent had engaged in unfair labor practices within the mean- ing of Section 8(b)(1)(A ) and (2 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. An answer in the form of a letter , dated March 9, 1959, was filed by the Respond- ent, in which it denied the allegations of the complaint. Upon the entire record and from his observation of the witnesses, the Trial Ex- aminer makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Berwick Cake Company, herein called the Company, is a Massachusetts corporation with its principal office and plant located at Roxbury, Massachusetts, where it is engaged in the manufacture , sale, and distribution of cakes and related products. The Company annually ships finished products valued at more than $50,000 directly to points outside the State of Massachusetts. The complaint alleges, the parties stipulated at the hearing, and the Trial Examiner finds that the Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 20, Bakery and Confectionery Workers International Union of America is a labor organization which admits to membership employees of the Company. III. THE ALLEGED UNFAIR LABOR PRACTICES During the times mentioned herein the Respondent had a collective -bargaining contract with the Company. This contract contained a "union shop" clause and provided that "all new employees of the Employer [meaning employees hired by the Employer subsequent to September 10, 1951 ] as a condition of continued em- ployment shall be members of the Union on the thirtieth day following the beginning of their employment . .. .. Samuel Iannuzzi worked for Ward Baking Company for 28 years until it closed its plant on July 3, 1958. He was a member of the executive board of "Local 348, American Bakery and Confectionery," rival union of the Respondent herein. On October 14, 1958, lannuzzi spoke to Mr. Goodale, president of the Company, and to Raymond Ferazani , its foreman . As a result of these conversations , lannuzzi was told to report to work at 3:30 a in on October 15. Iannuzzi testified, in substance, that: About 10 a.m. on October 14 he called the Respondent's office and spoke to Stanley Mirowski, its secretary -treasurer ; he told Mirowski about his offer of a job with the Company , asking him what it would cost for him to transfer from Local 348 to the Respondent ; Mirowski replied that he did not know; and when he asked Mirowski if he had "any objections" to his going LOCAL 20, BAKERY AND CONFECTIONERY WORKERS, ETC. 29 to work for the Company, Mirowski replied, "no, ... I know you need a job, and good luck to you." 1 Fred Cabuzzi, business agent of the Respondent, called Ferazam during the after- noon of October 14. Concerning this conversation, Ferazani testified credibly and without contradiction as follows: Well, he asked me if I had hired a man; and I said I did; and he asked me if he was working. I says no, he's reporting the following morning at 3:30; and he said if I had called the office, the union hall, and I said no, I hadn't because I interviewed this man and he seemed to be the man that could fill the job at that time. And he said, "well, we have men in good standing that should be put to work." And I said, "well, I already told the man to report for work." And he said that he would have a man the following morning also.2 Anthony DiLimpio reported for work on October 15 and told Ferazani that Cabuzzi had sent him. Ferazani put him to work. lannuzzi also worked that day. Ferazani testified that about 10 or 11 a.m. on October 15 Mirowski came to the plant and talked to him. In this connection Ferazani testified, "Well, he told me I had no right, I should have called the office, the union hall, because we had done that previously; . And I said, well, the opportunity was there, the man [Iannuzzi] called, he seemed to qualify, so I put him to work; we have to give a man a 3.0-day trial, anyway. And he said, `Well, we have men that are looking for work, men in good standing, and they should be put to work first,' . I told him that this man was acquainted with Cabuzzi and he had plans of transferring over; and I told him that I would tell lannuzzi to get his transfer and we'd hire him back, or we'd continue with him, anyway. . . . He asked me if [DiLimpio] had come in to work... . I said I put him to work." Mirowski testified that: He went to the Company's plant about 11:45 a.m. on October 15 in order to deliver a message to DiLimpio; he met Ferazani who told him that two people reported for work and that he needed only one; and he replied, "Well, you can do whatever you want with the thing; you've got a contract, go according to the contract." I credit Ferazani's version of the above conversation. Mirowski did not impress me favorably as a witness. Iannuzzi testified credibly that: About 10.45 a.m. on October 15 he saw Mirowski in the plant; near the end of his shift and about 11:15 a.m. he had a conversation with Goodale and Ferazani; 3 and Goodale told him, "I'm sorry, I have to let you go because Stanley Mirowski of Local 20 came down here. . . . If you can get it straightened out with Freddie Cabuzzi and Local 20, I'll take you back to work." 4 Ferazani testified that: The Company normally calls the Respondent when it needs men; this is done as a matter of convenience and not of compulsion , because the Respondent has the qualified men available; within the period of 6 months before the hearing the Company hired new employees who were not members of the Respondent; the Company did not call the Respondent as to them; and neither Cabuzzi nor Mirowski had ever told him that he had to hire members of the Respondent. I find that the General Counsel failed to prove that the Respondent caused or attempted to cause the Company to discriminate against lannuzzi. Ferazani, the General Counsel's own witness, testified that Cabuzzi did not tell him to discharge lannuzzi or that he could not put him to work. Cabuzzi merely told him that he would send a man in the following morning for work. In this connection it is to be noted that the evidence does not show that Ferazani advised Cabuzzi that the Company did not need another man. In his conversation with Ferazani on October 15, Mirowski did not ask him to discharge Jannuzzi. It appears that he was satisfied as long as DiLimpio had been put to work. Further, it is not clear from Ferazam's statement to Mirowski, as found above, that the Company intended to discharge lannuzzi at the time. 1 Mirowski's testimony concerning the above conversation was substantially the same as lannuzzi's. 2 Cahuzzi did not appear as a witness at the hearing 3 Goodale did not appear as a witness at the hearing 4 Concerning the above conversation. Ferazam testified that lie and Gooda]e said, "That we were sorry we had to let him go, and had to let him go because of the fact that there are Union members that we had to lire, and if he could get his transfer and get lute Local 20, we'd be glad to put him back to work " 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ferazani was the only witness for the General Counsel who testified as to the Company's practice in the hiring of new employees. I find that his testimony does not disclose that the Respondent maintained and enforced any illegal practice or oral agreement with the Company in this respect , as alleged in the complaint. [Recommendations omitted from publication.] Rudy Barber, Louis B. Barber and Robert Hamlyn , Co-Partners, d/b/a Barbers Iron Foundry and International Molders and Foundry Workers Union of North America, AFL-CIO. Case No. 4-CA-1649. January 8, 1960 DECISION AND ORDER On April 15, 1958, Trial Examiner Louis Plost issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Charging Party and the General Counsel filed exceptions to the Intermediate Report and briefs in support thereof. On January 12, 1959, the Board ordered that the record be re- opened and the case be remanded for further hearing. Thereafter, the parties entered into a stipulation setting forth certain facts and waived their rights to a supplemental Intermediate Report. The General Counsel's motion, that the Board accept the stipulation and close the record, is hereby granted. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, the stipulation, and the entire record in this case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner with the fol- lowing additions and modifications. THE UNFAIR LABOR PRACTICE FINDINGS 1. The Trial Examiner found that the Respondent threatened its employees in violation of Section 8(a) (1) ; temporarily locked out its employees from November 21 to 25, 1957, in violation of Section 8 (a) (3) ; discriminatorily discharged employee Henry Hayes in violation of Section 8(a) (3); and refused to bargain collectively with the union in violation of Section 8 (a) (5). No exceptions were taken to these findings. Accordingly, we adopt them pro forma. 2. The Trial Examiner further found that the Respondent dis- criminatorily discharged its employees in violation of Section 126 NLRB No. 5.