Boyer Bros., Inc.

590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boyer Bros., Incorporated and Bakery and Confectionery Workers' International Union of America, Local 12. Case 6-CA-4224 June 12, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On January 31, 1969, Trial Examiner Myron S. Waks issued his Decision 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 attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner, as herein modified. ORDER (3), and (4) of the Act by terminating the employment of Romeo DeBartolome, Jr., on April 23, 1968, because of union activity and/or because he testified against the Company in a prior unfair labor practice proceeding.' Respondent's motion to dismiss the complaint, made before the close of the hearing and upon which I reserved ruling, is hereby denied. For the reasons hereinafter indicated, I find that the Respondent violated Section 8(ax 1), (3), and (4) of the Act. Upon the entire record, in the case including my observation of the witnesses, and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings establish and I find that the Company, which is engaged in the manufacture and nonretail sale of candy at its Altoona, Pennsylvania, plant, during the 12 months preceding the issuance of complaint received at its Altoona plant directly from outside the Commonwealth of Pennsylvania, goods and materials valued in excess of $50,000, and during the same period shipped from its Altooha plant goods and materials valued in excess of $50,000 directly to points outside the Commonwealth of Pennsylvania. Upon these conceded facts it is admitted and I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The pleadings further establish and I find that Bakery and Confectionery Workers' International Union of America, Local 12, the Charging Party herein, is a labor organization within the meaning of Section 2(5) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Boyer Bros., Incorporated, Altoona, Pennsylvania, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner' s Recommended Order, as herein modified. Add the words "as amended" to the last sentence of paragraph 2(a) of the Recommended Order. 'The Trial Examiner' s Remedy recommends that the Board's Order apply not only to the period following the discharge of DeBartolome, but also to the period during which he was discriminatorily assigned to general maintenance work . Since it appears that this conduct was remedied by the order in Boyer Bros.. Inc, 170 NLRB No. 119, tais not necessary here. The Recommended Order will be modified accordingly. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MYRON S. WAlcs, Trial Examiner : This case, tried at Hollidaysburg, Pennsylvania, on September 5, 1968, pursuant to a charge filed on April 24, 1968, and a complaint issued August 8, 1968 , presents the question whether Respondent Company violated Sectio (i 8 axl), III. THE UNFAIR LABOR PRACTICES A. The Prior Case In a prior proceeding against the Company in Cases 6-CA-3711 and 6-RC-4185, which were consolidated for a hearing held before Trial Examiner Thomas Maher at Hollidaysburg, Pennsylvania, and Washington, D.C., in April 1967, he concluded in a decision issued on October 26, 1967, that the Company had violated Section 8(a)(1) and (5)' of the Act. On April 5, 1968, the Board issued its Decision and Order which affirmed the Trial Examiner's findings, conclusions, and recommendations.3 At the request of Counsel for the General Counsel I take judicial notice of the Board' s findings in the prior proceeding that the Company had engaged in unlawful conduct by offering the employees additional paid holidays, improved vacation benefits, and promotion to supervisory jobs as an inducement to vote against the Union; by interrogating '170 NLRB No. 119 'The Trial Examiner dismissed the allegation in the complaint that the Company had violated Section 8(aX3) in discharging Betty Henry finding that although the discharge was for union activity she was a supervisor within the meaning of the Act. 'The Board affirmed in all relevant respects the facts and conclusions bearing on the 8(a)(l) conduct found by the Trial Examiner. The only modification by the Board related to the date of the recognition demand and two authorization cards; however the Board concluded there was a majority showing and concurred with the Trial Examiner that the Company had violated Section 8(aX5) of the Act. 176 NLRB No. 81 BOYER BROS., INC. the employees unlawfully as to their union membership and activity; by creating among the employees the impression that their individual union activities and sentiments were known to it; by stating its refusal to grant hospitalization benefits to its employees, in any bargaining negotiations in which it might thereafter engage; by threatening it would close its plant in the event the Union won the election; by assigning an employee to a job inferior to his classification as a reprisal for his support of the Union; by publishing in its employee information materials, and otherwise informing the employees, that they are prohibited from engaging in union activity on plant property; by refusing to bargain with the Union in a unit found to be appropriate for that purpose. More specifically with regard to the alleged discriminatee in this case , Romeo DeBartolome , Jr., who was known to be the Union's leading advocate, I note that the Board found the Company had subjected him to constant interrogation concerning the Union while he was engaged in his work; that top officials of the Company made threats to "get him" and that he would be "under the gun," the latter threat being followed by five or six reprimands involving a 1-day suspension, and finally assignments outside his job classification as a reprisal for his union activities. It was also found that futher pressures were imposed on DeBartolome, by a supervisory official who threatened that the plant would be closed if the Union was successful in its efforts to represent the employees. Further it was stipulated by the parties that at the prior proceeding DeBartolome had testified as a witness adverse to the Company, and from a reading of Trial Examiner Maher's decision it appears that many of the violations found were based on the testimony of DeBartolome. It was also stipulated by the parties that DeBartolome continued to engage in union activities following the prior proceeding, activities which I find, based on the evidence presented to me, continued up to the very day of his discharge. To date the Company has not complied with the Board's Order in the prior proceeding and it is presently awaiting enforcement proceedings in the United States court of appeals. B. The Alleged Discrimination DeBartolome began his employment with the Company as a line mechanic in 1964. Since March 1966, the start of the Union's campaign, DeBartolome has been the leading advocate for the Union. A representation election was held on August 17, 1966, and following the election timely objections and unfair labor practice charges were filed. Also beginning in September or October 1966, 1 or 2 months following the election, DeBartolome was discriminatorily assigned to general maintenance work as a reprisal for his efforts on behalf of the Union.4 DeBartolome was kept in the general maintenance department until his discharge on April 23, 1968. In September 1967 DeBartolome was charged with drag racing by the local police. This violation occurred on a At the time of the prior hearing it was apparently not clear from the evidence that DeBartolome 's assignments to general maintenance were to continue permanently; however, the undisputed evidence in this case is that DeBartolome was continued in general maintenance until the time of his discharge, notwithstanding the decision of the Trial Examiner and the Board. 591 weekend on the employee's own time and was in no way related to his job at the Company. The violation was reported in the local paper, the Altoona Mirror for September 24, 1967, and shortly thereafter came to the attention of the Company. Thereafter there was a great deal of discussion among the employees and between DeBartolome and the supervisory staff including his immediate supervisors Thomas McIntire, plant engineer and foreman for general maintenance, Robert Caldwell, assistant foreman for general maintenance, and Personnel Manager Robert Wallace. Throughout these discussions there was no indication given to DeBartolome that the outcome of the pending trial would in any way affect his employment with the Company. DeBartolome was tried for the drag racing offense on March 27 and 28, 1968. During the period prior to the trial DeBartolome, expecting that if convicted he would receive a jail sentence and lose time from work, spoke with Personnel Manager Wallace about the possibility of a leave of absence. Wallace told DeBartolome that he could not give him a 2-week leave of absence but that he would try to arrange for him to take his vacation early so that if convicted he would not lose any work. DeBartolome was convicted of the dragracing charge on March 28, 1968, following a 2-day trial and sentencing was deferred until April 15, 1968. On the day of his conviction the Company learned the result of the trial through a telephone call made to DeBartolome's defense counsel John F. Sullivan, by the Company's attorney, at the request of Personnel Manager Wallace. Following his conviction on March 28, 1968, DeBartolome returned to his job and worked during the period March 28 to April 15, 1968. Because a jail sentence was customarily imposed for the drag racing offense DeBartolome again spoke with Wallace about taking his vacation at this time so that he would not miss any working days. Wallace told him that he would give him 1 week's vacation but not 2 weeks because he was not eligible for the second week at that time. On April 15, 1968, DeBartolome was sentenced to 20 days confinement, $150 fine, and suspension of his driver's license for 1 year. To avoid losing any working time, DeBartolome's attorney made arrangements for him to serve 7 consecutive days and to serve the remainder of his confinement time on weekends. DeBartolome started to serve his sentence immediately and was confined until April 22, 1968. DeBartolome reported back to work at 3 p.m. on the afternoon of April 22, 1968. He saw Wallace, asked for his check, and mentioned to him that there were no timecards in his box. Wallace stated that he would get the timecards and check and left the office. He returned to the office in about 10 minutes and told DeBartolome that "there is something in the air," that he did not know what it was, but that he could not let DeBartolome work that night. DeBartolome was told to return the next day at 3 p.m. and if he was allowed to work he would be paid for that night of April 22. On April 23, 1968, DeBartolome returned to the plant prepared to work. As noted, DeBartolome had continued his union activity following the earlier unfair labor practices proceeding including handing out the union journal at various times as well as speaking to other employees about the Union. On this date before reporting to Wallace, he and Peter Micelli, the union organizer were at the employees' entrance distributing the Union's monthly journal. The monthly journal featured on the first 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD page a special "Bulletin" the headline of which proclaimed "The Battle is Over, Victory is Ours! NLRB Slaps Down Boyer Bros.; Orders Recognition of B & C"; the article thereafter reported the Board's decision of April 5, 1968, which had affirmed the Trial Examiner's findings of Company unfair labor practices in the prior proceeding. While the paper was being distributed Wallace approached the two men and asked if it was the Union paper. Upon being told that it was, he asked for, and received, two copies of the journal. DeBartolome asked Wallace if he would see him and Wallace said he would. When DeBartolome entered Wallace's office, Wallace turned on a tape recorder. Wallace then told DeBartolome that it was company policy that anybody who is convicted of an offense that shows a disregard for the safety of other people or is a hazard to other people is not hired by the Company and that the Company does not retain such people on the job. DeBartolome then asked about Gaius Hannawalt, another employee of the Company who had been convicted of the same offense in July 1967, had served a 15-day sentence, and following this, had been permitted to continue his employment. Wallace replied that he was not familiar with the case, but would look into it. When DeBartolome asked if he was fired, Wallace replied that he was. DeBartolome, pointing to a copy of the union journal sticking out of his pocket, then stated to Wallace that he knew the real reason for his discharge. Wallace asked him what he meant but DeBartolome did not reply. Wallace then gave DeBartolome his paycheck and he left the premises.' C. Contentions of the Respondent It is the Company's position that DeBartolome was discharged for an "accumulation of offenses," emphasizing an alleged disregard for company property and for the lack of concern for the safety of others and that "similar" to "the straw that broke the camel's back" was DeBartolome being convicted of a dragracing charge. The Company urged that the discriminatee's attitute toward his work deteriorated over a period of time as did his work performance; in its brief Respondent urged that DeBartolome's work changed "from good to careless." In support of its position the Company urges that Wallace's stated reason for the discharge, i.e., a company policy to discharge employees convicted for offenses which show a disregard for the safety of others, was only part of the reason for the discharge and that Wallace was cut off from pursuing the matter further when DeBartolome interrupted his explanation by stating that he knew the real reason for the discharge, implying union activity. The Company adduced testimony to show a number of alleged offenses and reprimands received by DeBartolome over a period of the last 2 years to support its position that the discharge was for cause.' 'There is no dispute concerning the events here recounted which preceded the meeting between DeBartolome and Wallace . From my observation of the witnesses I have credited the account of DeBartolome with regard to what occurred at the April 23 meeting . DeBartolome impressed me generally as a truthful witness; he answered questions directly and without hesitation even where such answer detracted from his cause . Wallace on the other hand, was at times evasive and his testimony regarding his statement of the company policy to DeBartolome was at the very least ambiguous. 'Over objection, the Company was permitted to adduce testimony relating to DeBartolome's work performance and attitude predating the prior hearing for the limited purpose urged by the Company that it wished to show as background to events more proximate to the discharge that D. Analysis, Additional Findings, and Conclusions The problem to be resolved in this case is whether the Company following the last trial persisted in its efforts "to get" DeBartolome because of his union activities, and/or because of his adverse testimony at the prior trial, or whether DeBartolome was lawfully discharged for cause as the Employer contends. The Board's findings in the prior proceeding establishes that the Company was openly hostile to the Union and during its campaign to organize the employees engaged in flagrant violations of the Act. Its threat "to get" DeBartolome for his union activities and to keep him under "the gun" was followed by a number of reprimands and his assignment to work outside his regular duties; assignments which were made in reprisal for his union activities. Following the proceeding in the prior case the Company continued to assign DeBartolome to general maintenance work which as evidenced in this record remained his assignment until his discharge. The continued assignment of DeBartolome to general maintenance tasks reflects that the Company's hostility did not change following the prior trial. Rather it is reasonable to conclude that this hostility against DeBartolome increased with his continued union leadership role during a period when the Company was first charged and then later found to have committed unfair labor practices and to have interfered with a Board-conducted election, particularly where the Board's findings were based on DeBartolome's credited testimony which in substantial part contradicted the testimony of management officials of the Company. DeBartolome's ultimate discharge some 18 days after the Board's decision issued and immediately following the distribution of the union journal proclaiming a union victory in the prior proceeding provides adequate basis to support an inference that DeBartolome's discharge was discriminatorily motivated. The inference of discrimination gains further support from the events immediately surrounding the discharge and the implausibility of the stated reason for the discharge which was given DeBartolome at that time. DeBartolome's charge of dragracing was well known to the Company as early as September 1967. From September 1967 to March 1968, although DeBartolome had discussed the matter with management personnel, no indication was given to him that his conviction of the dragracing charge would in any way affect his employment. More importantly, following his conviction on March 23, 1968, nothing was said to him about the conviction affecting his job during his conversations with Personnel Manager Wallace. He was permitted to continue in his employment from the date of his conviction until he started to serve his confinement on April 15. Indeed, during this later period far from indicating that this episode might affect his job tenure Personnel Manager Wallace arranged for DeBartolome to take a week of his vacation to avoid the loss of working time while he was confined. When DeBartolome returned to work on April 22, 1968, Wallace for the first time, indicated that something might be amiss by not permitting him to work, stating that "something was in the air." On employee DeBartolome's attitude and work performance had deteriorated from the onset of the Union's organizing campaign in 1966 until it discharged him on April 23 , 1968 It was made clear by me that I would not reexamine or reevaluate facts found by the Trial Examiner and the Board in the prior proceeding. BOYER BROS., INC. 593 April 23 Wallace announced to DeBartolome that it was the Company's "policy" to discharge employees convicted of offenses that showed a disregard for the safety of other persons. No other reason for the discharge was given to DeBartolome at that time. At the hearing Wallace admitted that this "policy" had never been made known to the employees, that it had never been invoked before and so far as this record discloses, it has not been announced generally to the employees since its application to DeBartolome.' When DeBartolome called to Wallace's attention the case of Hannawalt which occurred in July 1967, Wallace nonetheless proceeded to discharge him saying that he would check on the Hannawalt case. While Wallace admittedly checked on the Hannawalt incident no change in DeBartolome ' s employment status was made. Moreover, when DeBartolome indicated that he believed that the real reason for his discharge was union activity, Wallace did not deny it. In these circumstances and noting the fact that the accident occurred away from Company's premises on the employee's own time, that it does not appear DeBartolome's job in any way required him to drive a company vehicle, that the Company maintained a set of rules which covered a broad spectrum of employee conduct without any mention of the so-called policy, I conclude that this "policy" was promulgated and announced for the first time to serve as a pretext for the discharge of DeBartolome because of his role on behalf of the Union.' In any event a consideration of the Company's belated explanation for the discharge does not persuade me to the contrary. Indeed the apparent exaggeration of the "offenses" which the Company charged to DeBartolome as well as its reliance on other reasons not closely related to a careless disregard for others, which was the stated reason for discharge, lends support to a finding that the discharge was motivated by union considerations. As noted, Respondent at the hearing and later in its brief took the position that the discharge was the result of an "accumulation of offenses ," emphasizing the careless disregard for company property and the safety of others, that the dragracing conviction was "the straw that broke the camel's back." However, in addition to its efforts to tie past alleged "offenses" of carelessness to the dragracing charge relied on at the time of the discharge, the Company at the hearing, in an effort to bolster the reason for his discharge , also sought to demonstrate DeBartolome's "deteriorated" attitude toward his work, which it alleged affected his job performance, his poor attendance record, and his lack of qualification to perform work in the maintenance department. 'The parties stipulated that in 1966 another employee , Kenneth Simpson, was found guilty of failing to stop and render assistance after damaging another vehicle, and continued his employment thereafter. 'After observing Wallace and DeBartolome testify, and carefully studying the record of testimony relating to what occurred at the discharge interview, I give no credence to the Company's claim that Wallace would have proceeded to discuss the alleged other reasons for discharge which the Company asserts included an "accumulation of offenses" but stopped because of DeBartolome 's interruption and refusal to listen. I can perceive nothing in the exchange which would have indicated a refusal to listen. Indeed the tenor of the exchange, including DeBartolome's indicated belief that union activity was the real reason for discharge when told of the heretofore unknown policy reason by Wallace, would have called forth any further reasons underlying the discharge if in fact they had been relied on at that time as a basis for the Company 's action, particularly where DeBartolome had made pointed reference to the Hannawalt affair Furthermore, from my observation of Wallace while testifying, I do not believe he is a person who would have been stopped from continuing any planned explanation by the exchange with DeBartolome. An examination of the alleged "accumulated offenses" are hereinafter reviewed to determine whether they occurred, and also the extent to which this conduct was reasonably related to the Company's proffered reason, albeit made belatedly. In my consideration of Respondent's contentions note has been taken that the Company has throughout the relevant period maintained a set of rules covering a broad spectrum of employee behavior and performance on the job and the discipline to be accorded for each offense.' Where a violation of these rules occur the employee is given a violation slip to sign and it is forewarded to personnel; in general the employee is subject to discharge only after three breaches of the same company rule. It should be noted at the outset that, while the Company in an attempt to relate the dragrace conviction to the discharge spoke of DeBartolome's lack of regard for the safety of others as well as the safety of property, the evidence failed to show any incidents which would establish that DeBartolome demonstrated a disregard for the safety of others in the performance of his job.i' As to the alleged offenses of carelessness regarding company property, both Plant Engineer McIntire who was foreman for general maintenance work, and his assistant, Caldwell, testified generally that DeBartolome was careless in performing general maintenance work; however, I regard their general evaluation as unreliable in view of their efforts to exaggerate the "offenses" charged to DeBartolome. As noted, the Company maintains a detailed set of rules covering the performance of employees; article 16 of these rules deals with carelessness and mistakes and makes offenses in this area, a cause for suspension and if repeated, discharge. Moreover, the supervisors have been directed to issue violation slips in cases where these rules have been breached. In addition McIntire testified that since the middle of 1967 he has kept additional records of jobs improperly performed by employees and their attendance record, and further, that "if something has been done faultily [the employee] is told about it, if it is in violation of a Company article or rule, this individual is told, he is written up for the violation and he dust signs it, so it is well obvious to the person that he has committed a violation." Finally according to Personnel Manager Wallace the Company was advised earlier by its counsel that with regard to a discharge of DeBartolome "to keep records, the best records we could." In these circumstances I believe that either McIntire or Caldwell, where there was a basis for doing so, would not have failed to issue violation slips to DeBartolome wherever the company rules were breached or to discuss the matter with DeBartolome if he were responsible for a job poorly performed. Personnel Manager Wallace testified there were seven violation slips issued to DeBartolome; after checking his records he further testified that three of these were for carelessness and two were in another area (no explanation 'When reference to the Company's rules arose during the instant hearing both counsel advised the Trial Examiner that the Company's handbook of rules was part of the record in the prior proceeding (Resp Exh. 2) and examined witnesses as though the handbook were in evidence in this proceeding; I have so regarded it. The rules referred to herein are set forth in an Addendum attached hereto. "The Company adduced no evidence of any specific incident which related to a disregard to the safety of others. McIntire testified that any time a man is careless around machines, it is a safety violation ; however, as I find infra. the evidence does not establish that DeBartolome was careless in performing his assigned work 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was given as to the other two violations). All three violation slips for alleged carelessness , referred to by Wallace," occurred before the April 7, 1967, hearing in the prior case at a time when, as found by the Board, the Company purposefully sought "to get" DeBartolome because of his union activities.' 2 Thus, while there was testimony concerning a series of incidents since the hearing in the prior case, to demonstrate the carelessness of DeBartolome in the performance of his work assignments," this record does not establish that in any of these incidents relating to job performance was a violation slip issued or signed by DeBartolome for what would have been a breach of the Company's rules." It was through the testimony of McIntire that the Company sought to establish the "offenses" charged to DeBartolome. Mclntire's testimony for the most part was based on the record which was kept for his shop and which purported to reflect the work performance of the employees. Before evaluating the entries testified to from the book, an examination of the reliability of that book is in order. McIntire testified that the book was kept in the regular course of business, that the entries were made by his assistant and reviewed by him daily. However, it is noted that notwithstanding the purpose of the record which was to evaluate the kind of job the man is doing (whether he is "habitually messing things up"), McIntire testified that not all job errors or other instances of poor performance were always entered in the book and it does not reflect all the errors of all employees in the shop; it was not possible therefore to judge from its entries whether DeBartolome was indeed better or worse in the performance of his job than his fellow employees. Furthermore, McIntire testified from an entry in the book that DeBartolome had returned to the plant after working hours and that he had talked to him about it pointing out that this was a violation of a company rule (article 29). He also testified that another instance was reported to him, that DeBartolome was in the plant outside of working hours and that he had checked on this and found it to be so. However, he stated that there was no violation slip made up for this alleged breach of a company rule. On cross-examination by the General Counsel, McIntire again testified with regard to DeBartolome's returning to the plant in violation of the Company's rule. When "Two of these were related to sanitary procedures, article 10, another category which required three offenses prior to discharge. "This would apply to DeBartolome's failure to return a ladder indoors which also occurred prior to the earlier trial. Furthermore it appears from the record that these earlier violations were the basis for Wallace's testimony that there were enough violations to support DeBartolome's discharge, however Wallace himself testified that they were advised by counsel not to go forward with a discharge on this basis but to keep the best records they could and if there were enough violations so that the Company would discharge any employee , the Company could discharge DeBartolome. "Since the purported "accumulation of offenses" were tied to the dragracing offense, it is assumed that these were raised for this reason. Moreover, Respondent in its brief urged that the testimony introduced in this hearing established the change in DeBartolome's work "from good to careless." However, to the extent the alleged "offenses" were introduced to demonstrate DeBartolome's lack of qualification for assignments in general maintenance, see discussion infra. "No violation slips were put in evidence and when McIntire during his enumeration of alleged offenses by DeBartolome was asked to indicate those offenses for which a violation slip was issued he made repeated references to the fact that a violation slip was issued in the ladder incident but made no reference to a violation slip being issued as to any other alleged offenses relating to DeBartolome's performance on the job. pressed by Counsel for the General Counsel McIntire admitted that the entry in the book had been made just the day before the hearing in order to remind him of the alleged offense. Further cross-examination of McIntire revealed that the offense referred to by McIntire had occurred prior to the start of union organization in March 1966, more than 2-1/2 years prior to the hearing in this case and long before McIntire began keeping records. DeBartolome, whose testimony I credit, denies that he had ever returned to the plant at any time when he was not working or remained in the plant after working hours unless he was told to do so; he further testified that he had never been reprimanded for such conduct. It is my conclusion that the alleged violation of this company rule never occurred and McIntire is discredited with regard to his account; furthermore, this places in question the reliability of the other entries in the book as they relate to DeBartolome. An examination of the offenses charged to DeBartolome in the book, which were enumerated by McIntire, include the ladder incident on March 6, 1967, which has already been noted, a broken gearbox on July 28, 1967, a broken dock lift on August 24, 1967, and a broken waterline causing cement to be ruined on February 23, 1968.' With regard to the broken gearbox and dock lift, DeBartolome, while admitting to a number of incidents, categorically denied that he had broken either piece of equipment. Furthermore, DeBartolome testified that he could not recall any reprimand for either of the alleged offenses. On cross-examination by the General Counsel, McIntire admitted that he had not discussed either of these instances with DeBartolome. As to the forklift, he testified that his assistant, Caldwell, had discussed this with DeBartolome. However, there was no testimony regarding the basis for McIntire's knowledge that DeBartolome was responsible either for the broken forklift or the dock lift, nor did he testify as to the basis for his statement that Caldwell had discussed the broken forklift with DeBartolome. Furthermore, I note that during Caldwell's testimony the Company did not adduce testimony from him regarding these alleged incidents, or whether they had been discussed with DeBartolome. In the circumstances and including my observation of DeBartolome as a witness, I credit the testimony of DeBartolome and conclude that he had not broken either piece of equipment nor had the matter ever been discussed with him. With regard to the damage to cement on February 23, 1968, DeBartolome testified that while he was spreading cement with another employee on the second shift, he raised his head and broke a fitting on a water pipe which it appears caused the spoilage of the cement. However, while McIntire testified that he held DeBartolome responsible for this accident and reprimanded him, he admitted that he had no knowledge of how it had occurred, that he learned the cause of the accident for the first time from DeBartolome's testimony at the hearing. I deem it significant in judging the "accumulated offenses" that McIntire, who claims to have discussed job performance with DeBartolome on only three occasions over a period of more than 2 years and only once since the last proceeding in April 1967, "McIntire in addition testified that he recollected a motor which had been wired improperly. He also testified to complaints reported to him while DeBartolome was working as a line mechanic , and that DeBartolome had been guilty of absenteeism as well as the failure to report off work. These matters arc discussed infra BOYER BROS ., INC. 595 concededly made no effort to determine the cause of the breakage of the water-pipe fitting and the cement job being ruined, this despite the fact that another employee had also been working on that job. Notwith; nding this, McIntire testified that the following day h_ asked for DeBartolome's discharge or removal from general maintenance on the basis that DeBarolome was unqualified to perform the work. On cross-examination of DeBartolome , counsel for the Company sought to establish that DeBartolome was responsible for a number of incidents involving the breakage of company property. Some of these were denied by DeBartolome, others DeBartolome admitted . Of these apart from the incident of February 23, 1968, discussed supra, not one was listed in McIntire's book as a "messed up" job nor does it appear from this record that any violation slips issued therefor . Thus DeBartolome testified that in August 1967 he was assigned to move some glass boxes inside and he did so that same night . He denied that they were broken up by children in the neighborhood but stated they had broken "just in the act of taking them out." The evidence does not establish that the Company ever discussed this matter with DeBartolome or that the Company at that time regarded the breakage as due to carelessness on the part of DeBartolome . DeBartolome further admitted that in September 1967 iIe wired a roaster improperly. As DeBartolome explained he was not an electrician and while he had been told how to do it, he was unable to carry through the instructions properly. The error was discovered, however, before any injury to the roaster resulted . In that same month, DeBartolome testified that he broke a disc on a grinder to avoid a falling pipe . DeBartolome explained that the pipe, which weighed 300-400 pounds, was elevated, and in an effort to avoid getting hit in the leg when it started to fall he accidentally knocked a grinder off the bench and the disc broke. It is uncontradicted that there were other employees involved in handling the pipe and there is no evidence to indicate that the cause of the pipe slipping was in any way attributable to DeBartolome. Furthermore, there is no evidence that the Company prior to the hearing had ever regarded this as the fault of DeBartolome; there is no evidence that any one had discussed the matter with him or reprimanded him for it. Thus, it appears from the foregoing, that the Company in an effort to bolster its belated reason for discharge has paraded forth any incident involving damage to company property with which DeBartolome may have been remotely connected, whether or not he was responsible for the damage or whether or not the Company itself had previously considered the matter as one resulting from his carelessness. The Respondent also urged in support of the discharge that DeBartolome's attitude toward his work had "deteriorated," that his attendance record was poor, and that he was unqualified for his job. As indicated earlier in this report, I permitted the Company to adduce evidence for the purpose of demonstrating that DeBartolome's attitude toward his job changed with the onset of union activities and continued to the date of his discharge. Company witnesses testified that DeBartolome who was admittedly a first-rate employee, a "real fireball," as a line mechanic, became less enthused about his work with the onset of union activities and the line supervisor, Majorie Bottenfield , testified that she had received complaints about DeBartolome and that after the election she requested his removal from that department because "there was entirely too much confusion within the department."' 6 After an examination of the testimony adduced in this regard, I conclude that DeBartolome, subject as he was to company harassment, may have evinced less enthusiasm for his work. However, I conclude further, based on the admissions of the Company's witnesses, that this did not affect the performance of his work. The alleged complaints came from a few of the women working in the line and were based substantially on the delay by DeBartolome in repairing their machines after they had called for him. According to Montgomery," then a mechanic trainee, the women were always hollering and complaining about getting their machines fixed. And it is admitted that of the four or five mechanics available to repair the 16 machines DeBartolome was the most called for mechanic by the women. Montgomery further testified that all the women preferred DeBartolome for the work. Raia testified that not all mechanics could handle her machine and that she sought DeBartolome when her machine needed repair. Employee Spahn, one source of these complaints, as well as Montgomery, admitted that it was possible that the delay was caused because DeBartolome was busy fixing machines elsewhere. Bottenfield, whose job it was to decide priorities conceded that DeBartolome always did as she directed. In view of the foregoing, I find that the evidence does not sustain a finding that DeBartolome's job performance as a line mechanic was other than satisfactory. In a further effort to show that DeBartolome's attitude affected his work performance, Respondent adduced testimony from a fellow employee, Fanelli, that when DeBartolome assisted him on the second shift in 1967 when they were repairing the Lynch wrapping lines, he did not hold up his end of the job.18 On cross-examination Fanelli admitted that he complained of DeBartolome's work only after he himself was criticized for not getting enough work done. Fanelli's testimony also demonstrates that he was well aware that DeBartolome was having trouble with the Company at the time. In the face of the criticism being directed at Fanelli by the Company, I find that his evaluation of DeBartolome's work performance was an attempt to shift the blame for low production on DeBartolome and was unreliable . In this regard I note that the Company at no time questioned DeBartolome about his alleged failure to hold up his end of the job with Fanelli nor was he told the reason for his being shifted from that assignment. I cannot believe that during a period when DeBartolome was being closely watched by the Company, it would have let such conduct go unreprimanded" if it had placed any reliance on the "The Company stated that it was no part of its defense to assert that this was the cause of DeBartolome's assignment to work in general maintenance in light of the prior Board findings that DeBartolome was assigned to general maintenance work in reprisal for his union activities. "Montgomery initially testified that as a roll boy he had performed some of DeBartolome's work, however on cross-examination it was established that at the time of the organizational campaign he was a mechanic trainee, a position in which he would be expected to do some work on the machines. "DeBartolome when asked by way of a leading question on cross-examination if he had worked with Fanelli in the spring of 1968, he replied in the affirmative. Fanelli on the other hand during direct examination first placed the time when they repaired the Lynch wrapping line as sometime after the union activity and election were over; on cross-examination he repeatedly stated that it was not in 1968 but in 1967. With regard to when DeBartolome worked with Fanelli, I rind that DeBartolome was mistaken and that it was sometime in 1967. "Certainly the Company could not have shared Fanelli 's opinion that 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason given by Fanelli." DeBartolome admitted that he resented his transfer to general maintenance work which he believed , accurately, to have been motivated by his union activities . And it is uncontradicted that he was assigned to such task as painting a fence in weather so cold that the brush was frozen and you couldn't get the paint on the fence and digging holes on company property and filling them up again . He further testified without contradiction that no other employee was assigned to this kind of work and that he was the only employee in the department who was constantly being moved around . In these circumstances some lack of enthusiasm must have been anticipated by the Company and I find that it was part of its general design to rid itself of DeBartolome. Finally, both McIntire and Caldwell testified that DeBartolome was not qualified to perform the work in general maintenance and McIntire testified that this was the reason given for the request that he be removed from the department on February 24, 1968, the day following the cement incident." No action was taken by the Company at that time. To the extent that the Company raised this as a basis for the discharge of DeBartolome, I note that DeBartolome testified credibly that he performed every job assigned to him to the best of his ability and Assistant Foreman Caldwell himself admitted that DeBartolome "very much" exhibited a willingness to learn . I conclude from this that if DeBartolome was ,inqualified to perform all of the various assignments to which he was shifted in general maintenance this did not result from any lack of effort by him. In these circumstances, since the Company' s assignment of DeBartolome to general maintenance work was discriminatory, it may not now proffer this as a lawful reason for his discharge. For were it not for the discriminatory assignment of DeBartolome to general maintenance he would not have been put in the position, if it be the fact, that he was unqualifed to perform the tasks assigned to him. Since the Company bears the responsibility for having discriminatorily created the situation it must also bear the consequences which DeBartolome deliberately slowed down ; the Company's rules (article 21) prescribe discharge for the first such offense ; however, as ncted, DeBartolome was never even reprimanded for this alleged conduct. "in another effort to show DeBartolome's lack of concern for his job the Company adduced evidence relating to his absenteeism and tardiness. DeBartolome admitted that he had been suspended in August 1967 for his failure to report off work and that he failed to report for work one Saturday in the spring of 1968 (for this latter, according to Caldwell, a violation slip for absenteeism was issued). The Company rules (article 3) prescribe discharge only after three failures to report off work. While the Company's rules prescribe suspension for a second offense, DeBartolome could not recall an earlier failure to report off work and no affirmative evidence was adduced as to this by the Company . DeBartolome also admitted he had been reprimanded for tardiness in the fall of 1967. However, under the Company's rules (article 2) an employee must be absent three times within a 10-day period before he is subject to the issuance of a violation slip and three violations make the employee subject to discharge. The three dates cited by company counsel in his questioning of DeBartolome and relied on in his brief covered a period of 60 days. In sum this record does not establish that this aspect of DeBartolome's conduct so exceeded the bounds of permissible conduct as to have put his continued employment in jeopardy under the Company 's rules. "According to McIntire he had made this request in writing . He also testified that he spoke to Wallace about a week before DeBartolome's discharge to inquire about a replacement for DeBartolome if he was going to be off. He first testified that the conviction for the drag racing charge would only affect ban in that there was "no one to do the jobs", he then testified that he repeated his request that DeBartolome be terminated as unqualified for the job Later he testified that the reason for the requested resulted from its unlawful action." In sum I find that the credible evidence supports the allegations of the complaint that DeBartolome was discharged because of his union activities and his adverse testimony in the prior proceeding in violation of Section 8(a)(1), (3), and (4) of the Act. W. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with the operations of the Respondent, as described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Company engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the Act, it will be recommended that the Company cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Company offer Romeo DeBartolome, Jr., immediate and full reinstatement to his former position as a line mechanic, without prejudice to his seniority and other rights and privileges. Although it would appear that DeBartolome did not suffer a loss of pay as a result of his transfer to the time of his discharge, it appears appropriate that the Board's normal order in this situation apply not only to the period following his discharge, but also to the period during which he was discriminatorily assigned to general maintenance work. Macy's Missouri-Kansas Division, 162 NLRB No. 70. It is therefore recommended that the Company make Romeo DeBartolome , Jr., whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of any loss of wages which he may have suffered by reason of his transfer to general maintenance and later discharge on April 23, 1968, to the date of offer of reinstatement in a manner consistent with the Board policy set forth in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that the Company preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of backpay. In view of the Company's past history of unfair labor practices and inasmuch as the discharge of employees for reasons of union affiliation or concerted activity has been regarded by the Board and courts as one of the most effective methods of defeating the exercise by employees of their rights to self-organization, the commission of unfair labor practices generally is to be anticipated from the Company's unlawful conduct in the past. It will be recommended, therefore, that Respondent be required to cease and desist from in any manner interfering With, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. termination was the "conviction, it shows a lack of concern for other people." "Schott's Bakery Inc, 164 NLRB No. 59. See also Cello-Foil Products, Inc. 171 NLRB No. 154; The Everite Door Corp. 171 NLRB No. 8. BOYER BROS., INC. 597 On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act, which unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER (d) Post at its plant in Altoona, Pennsylvania, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith." ADDENDUM Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the Company, Boyer Bros., Incorporated , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Bakery and Confectionery Workers' International Union of America, Local 12, or any other labor organization, by discriminatorily discharging any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (b) Discharging or otherwise descriminating against employees for giving testimony under the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization , to form labor organizations , to join or assist Bakery and Confectionery Workers' International Union of America, Local 12, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which will effectuate the purposes of the Act: (a) Offer to Romeo DeBartolome , Jr., immediate and full reinstatement to his former position as line mechanic, without prejudice to his seniority or other rights and privileges and make him whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Romeo DeBartolome , Jr., if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon 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 compute the amount of backpay due under the terms of this Recommended Order. ARTICLE 2 - TARDINESS Employees reporting late for work consistently (three times within 10 working days ) will be reprimanded as follows : 1st OFFENSE - Written warning. 2nd OFFENSE - Suspension - three (3) working days, with loss of pay for that period . 3rd OFFENSE - DISCHARGE ARTICLE 3 - ABSENTEEISM Any employee who finds it necessary to be absent from work on a scheduled day must report off as follows: First Shift: Telephone - before 12 :00 noon of the first day and before 12:00 noon of every third day thereafter. Second & Third Shifts: Telephone - well in advance of your starting time on first day and before 12:00 noon of every third day thereafter. State your business to the telephone operator that you want to report off absent, giving your reason. The call will be relayed directly to the Personnel Dept . when necessary . Employees serving in their first year who fail to report will be considered by the management for automatic discharge . Employees with over one year of service who fail to comply with this ruling will be reprimanded as follows: 1st OFFENSE - Written warning . 2nd OFFENSE - Suspension - three (3) working days, with loss of pay for that period . 3rd OFFENSE - DISCHARGE. ARTICLE 10 - PERSONAL CLEANLINESS and SANITARY PROCEDURES Carelessness on the part of any employee in his own personal cleanliness , or in the company's sanitary procedures, will result in : 1st OFFENSE - Suspension - one (1) working day, with loss of pay for that day. 2nd OFFENSE - Suspension - three (3) working days, with loss of pay for that period . 3rd OFFENSE "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board' s Order is enforced by a decree of the United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 598 DECISIONS OF NATIONAL - DISCHARGE. Article 16 - CARELESSNESS & MISTAKES Mistakes through carelessness which affect the quality or quantity of materials; the safety of personnel or equipment; or the dispersal of finished products will result in : 1st OFFENSE - Suspension - three (3) working days, with loss of pay for that period. 2nd OFFENSE - DISCHARGE. ARTICLE 21 - DELIBERATE RESTRICTION OF PRODUCTION Deliberately restricting production, or methods of production , will result in the immediate DISCHARGE of the person or persons concerned. ARTICLE 29 - ENTERING FACTORY WHEN OFF DUTY Employees are not permitted in the factory other than during their specified shift times . In order to enter the factory when the employee is considered to be off duty, that employee must get permission from a member of the Management. Failure to comply with this ruling will result in disciplinary action. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to The Recommended Order of a Trial Examiner of The National Labor Relations Board Following a trial in which the Company and the General Counsel of the National Labor Relations Board participated and offered their evidence, a Trial Examiner of the NLRB has found that we violated the law and has ordered us to post this notice and to abide by what we say in this notice. LABOR RELATIONS BOARD WE WILL NOT discharge, or otherwise discriminate against employees for giving testimony at NLRB hearings. WE WILL NOT discharge or otherwise discriminate against employees to try to discourage them or other employees from being or becoming members of the Bakery and Confectionery Workers' International Union of America, Local 12, or any other labor organization. WE WILL offer Romeo DeBartolome, Jr., his former job as line mechanic with all of his rights and any backpay due. WE WILL NOT in any other way try to discourage you from becoming or being members of the Bakery and Confectionery Workers' International Union of America, Local 12. WE WILL notify Romeo DeBartolome, Jr., if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. All our employees are free to become or remain union members. Dated By BOYER BROS., INCORPORATED (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office , 1536 Federal Building, 100 Liberty Avenue, Pittsburgh , Pennsylvania 15222, Telephone 412-644-2977.