Gladstone Food Products Co.

GLADSTONE FOOD PRODUCTS CO. 267, Gladstone Food Products Co. and Theodore G. Gault, Jr. Case 17-CA-4399 July 28, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On April 13, 1971, Trial Examiner Stanley N. Ohlbaum 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 the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Gladstone Food Products Co., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommend Order, as modified below. 1. Insert the following as paragraph B, 3, of the Trial Examiner's recommended Order and renumber the present paragraphs accordingly. "(3) Notify immediately the above-named individu- als, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended." 2. Substitute the notice to employees attached hereto for that recommended by the Trial Examiner. I The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a 192 NLRB No. 51 Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544,_ enfd, 188 F.2d 363 (CA. 3). We-have carefully examined the record and find no basis for reversing his findings. The Respondent's allegations of prejudice on the part of the Trial Examiner are unfounded and are hereby rejected. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial before a Trial Examiner of the National Labor Relations Board, at which all, sides had the opportunity to present evidence and arguments, it has been decided that we, Gladstone Food Products Co., have violated the National Labor Relations Act. We have been ordered to post this notice and to carry out its terms. The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of your own choosing' To act together with other employees to bargain collectively or for other mutual aid or protection and If you wish, not to do any of these 'things. Accordingly, we assure you that: WE WILL NOT violate any of your rights listed above. WE WILL offer Theodore G. Gault, Jr., and Mark D. Cowles full and unconditional reinstate- ment to their former jobs and employment eligibility status with us, and WE WILL reemploy them just as if we had not discharged them on August 6,1970. WE WILL pay Theodore G. Gault, Jr., and Mark D. Cowles for any wages they lost after we discharged them on August 6, 1970, plus interest. All of you are free to engage in concerted activities for the purpose of collective bargaining with us or for the purpose of other mutual aid or protection concerning your working conditions as well as your wages and hours; and to do so through representa- tives of your own choosing, withoutanyinterference, restraint, or coercion by us. GLADSTONE FOOD PRODUCTS CO,, (Employer) Dated By (Representative) (Title) 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We will notify immediately the above-named individ- "I P uals, if presently .serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from theArmed Forces, in accordance with the Selective -Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any, questions concerning this notice or compliance with its provisions may be directed to the Board's Office,1610 Federal-Building, 601 East Twelfth Street, Kansas City, Missouri 64106, Telephone 816-374- 5181. TRIAL EXAMINER'S DECISION PRELIMINARY STATEMENT STANLEY `N. OmLBAuM, Trial Examiner: Based upon a charge filed on August 7 as amended September 8, resulting in a complaint issued on,- September 24; 1970,1 by the Board's Regional Director," for Region 17, the above- entitled-proceeding under the, National Labor Relations Act as amended, 29 U.S.C.A. Sec. 151_ et seq. ("Act") was heard, before me in Kansas City, Missouri, on February 25, 19,71,, with, all parties participating throughout in person or through counsel and afforded full opportunity, to adduce testimonial,, and documentary proof, cross-examine, pro- pose findings and conclusions, argue orally, and present briefs. Subsequent to the trial, proposed findings -and conclusions and a brief were received from counsel for Respondent on March 25, 1971; those, together with all evidenceand contentions,' have been carefully considered. Upon the, entire record2,and my observation of the testimonial, demeanor of the witnesses, I make the following: - FINDINGS AND CONCLUSIONS 1. PARTIES ; JURISDICTION At all material times, Respondent Gladstone Food Products Co. has been and is a Missouri corporation with a place ' of business in Gladstone, Missouri, engaged in manufacture and distribution of food products. In the course and conduct of its said business , operations Respondent's sales and shipments directly in interstate commerce annually exceed $50,000. 1 find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of 1 Dates throughout are ' i 970, unless otherwise specified. 2 Trial transcript as corrected in respect to typographical and obvious errors listed on annexed "Appendix A."[Omitted from publication.] S Gault had also worked" for Respondent during the preceding (i.e., 1969) summer, from July to October. 4 Most employees merely signed their first names. The signatures and identities of twelve of these were satisfactorily established at the hearing. According to the charge, Respondent's" total workforce consists of 19 Section 2(2), (6), and (7) of the Act, and that` assertion of} jurisdiction in this proceeding is proper., Il. ALLEGED UNFAIR LABOR PRACTICES A. ,Issue The basic issue here arises out of the allegation in the complaint, denied in the answer, that Respondent violated Section 8(a)(1) of the Act by discharging from its employ Theodore G. Gault, Jr., -and Mark D. Cowles because of their activities in connection with a petition purposedrto obtain from Respondent an afternoon "break" period for Respondent's employees. B. Fads as Found Respondent produces and distributes to jobbers. or middlemen Mexican food products including, tacos, mer- chandised under 'various, trade names. In its ' processing operations, Respondent= utilizes' housewives as well as local high school students; during summers,' the high school students' work full-time (i.e., 5 days per week, 8 hours per day), replacing housewives, who remain home with young children. - As of the summer of 1970, Respondent's factory employees received a 10 or 15-minute= work "break" in the morning, but none in the afternoon. At the end o€ July and beginning of August, Respondent's employees discussed among themselves the desirability of, obtaining a similar brief afternoon. "break" because ;of the, heat in the factory. Theodore G. Gault, Jr., a high school student employed ' by Respondent for the summer3 as a taco belt operator, volunteered Tto draft a' petition to that effect for the employees if they would sign it. They agreed to do so. Gault thereafter prepared the petition and brought it with him on the morning of August 6 (Thursday), at which time it was signed by the employees. In the handwriting of Gault, it states: We, the following employees of Gladstone-Variety- Food Products, feel the need fora ten minute break in, the -afternoon in addition,to the morning break.' It is generally hotter in the afternoon and thus a break is just as essential then as in the morning. We, respectfully request such a break effective today, Thursday, August 6, 1970. There , follow. fifteen signatures.4 After the circulation and signing of, this petition, Respondent's supervisor Foreman-who is also die son-in- law, of its principal and president, Joseph Catalano--approached Mrs. Margaret Phillippie, who has been in Respondent's employ for about three years and is still currently in its employ,5 at her Workplace and asked her in a "very, low" tone of voice about thee petition' and whether "all that it consisted of was it 10-minute break"; employees. 5 Mrs. Philhppie so testified under subpoena. It has been said that such testimony by a current employee subject to employer ire, may be entitled,to added weight by reason of the circumstance that it is given at risk of employer retaliation. Georgia Rug Mill, 131 NLRB -1304, 1305 (fn: 2), enforced as mod., 308 F.2d 89 (C.A. 5); Berta v. R. A. C. Steel Products, Inc., 312 F, 2d 14, 16 (C.A. 4). GLADSTONE FOOD PRODUCTS CO. Mrs. Phillippie:told Foreman it did. It was conceded by Joseph Catalano, Respondent's principal and president, during his, testimony, that Foreman (his- son-in-law) is a supervisor of Respondent, just below Catalano''s^son Joseph M. Catalano (Respondent's vice president and general manager and the ranking Company official after Catalano himself) in Respondent's hierarchy. Shortly after the described "very low" tone of voice inquiryto Mrs. =Philli ppie by Supervisor Foreman, Gault and his close associate and friend Cowles (also a student summer , employee) were summarily Fdsscharged without explanation by. Nick Clements, _a leadman ;just below Catalano's son,-m-law Foreman in the chain of command. The circumstances of these discharges were that Clements handed Gault and' Cowles their paychecks-with pay only through, midday of that .day,,' a Thursday (Friday is Respondent's usual ,payday)-indicating they could see Foreman and to punch out. When Gault and Cowles asked Foreman why they had been discharged, Foreman replied, "If J you ]_ want to know the truth it was becauseI [we] had heard that [you] were passing around a petition" and that "[we] weren't, going to _have [you] running, [our] business for [us.]" Foreman was not .produced in any- way to controvert the foregoing, which was convincingly testified to - by Gault and Cowles., Since' Joseph -M., Catalano, Respondent's vice.president and general manager came in at this point, _ Gault and Cowles likewise, asked him why they had been discharged; Vice President,,.Catalano's explanation, however, was that the company had "overproduced" and had "too many supplies in the warehouse," adding that they would probably have to terminate eight or nine more employees., When Gault and -Cowles - close friends and associates - returned to Respondent's plant,-late that afternoon to, pick up their motor pool passenger Anderton, they again -encountered Vice President ;Catalano, who asked if they had returned "to work some _ more -today," -adding, "You probably weren't working hard enough:" :Returning again at the end of the afternoon, Gault and Cowles once more asked Foreman why they had been discharged. Foreman replied, "[You] talked about controversial topics at the,factory" and that the order to discharge them had come "from the office." As already indicated, Foreman was, without explanation,,, not produced` as a witness by Respondent; consequently, the last quoted remarks, credibly ascribed to Foreman, likewise,^itand wholly uncontroverted. Gault and Cowles thereupon put the petition up near thewtimeclock and left. After Gault and Cowles were discharged, two other employees `were -assigned to their work. Within a few days, four to six new; employees were hired. Respondent produced only two witnesses, Respondent's President Joseph -Catalano and his son, its Vice President and General Manager Joseph M. Catalano. As has already been indicated, Respondent's Supervisor Foreman (President Catalano's-x son-in-law), who was directly in- volved in the discharges in question, was unexplainedly not 6 Credited testimony shows ' that, notwithstanding Vice President Catalan's statement, no other employees were terminated; and Catalano's own testimony not only does not prove otherwise, but concedes that, to the contrary, additional employees were hired within a few days after the 269 produced. Although Vice President Catalano insists that Gault' and Cowles were ' terminated ' because there was "nothing , for them to do," no convincing , proof, was submitted as to why these two mparticular-leaders:of the employees'- "petition" activity-were singled out for discharge, nor for the necessity thereof at the particular time here involved, on the very heels of the petition,-nor for the precipitate nature of, the discharge (Thursday after- noon, not Friday payday, and without even allowing the .two employees to,work -out that day).,,Based.'upon' the record as a whole, including my , extremely - favorable demeanor impressions of General Counsel's witnesses (including persons currently in Respondent's employ) as distinguished from the evasive and otherwise unsatisfactory quality of some of Vice President Catalano's testimony, coupled with the unexplained, failure of, Respondent to produce any business records, whatsoever , I donot -credit Respondent's conclusionary contention .that it discharged these particular two employees under ;the circumstances shown, because it had "overproduced," with excessive merchandise in its warehouse and no further need forttheir services. I credit the testimony ofGeneral Counsel's witness Cowles, a college student of soberly impressive demeanor who had been working in Respondent's, warehouse, to the effect that warehouse inventories had not , reached any discernibly different level than previously . Furthermore, even if, as Vice President Catalano ,swore, he had shortly before then cancelled a 1000-case taco order becauseof the dubious financial stability of the - customer, there is no credible proof that any substantial portion of that order had been filled but not, shipped, nor that • in; any event the merchandise could not be sold elsewhere in -the regular course, nor that Respondent had,taken on excess ,labor; for that purpose. - Furthermore, no, records whatsoever were produced to substantiate this alleged , conclusionary, and equivocal claim. Moreover, it was credibly establishedthat following the discharge of Gault and, Cowles other employees were assigned to their work,•andVice-President Catalano conceded , that he hired new employees the following week, For these reasons I do not credit Respondent's contention that Gault and, Cowles, were discharged, under the-circumstances shown;- because "the -work run out, and there was nothing-for them to do:' Respondent also contends. that it- was wholly without knowledge of the employees' described petition `until after Gault and Cowles, had been discharged. I unqualifiedly reject this contention. As credibly-indeed uncontrovertedly-established, 'Respondent possessed ac- tual knowledge of the _ petition;through, its -Supervisor Foreman.7 It is not to, be -assumed that the information which Supervisor Foreman had acquired and also gleaned or corroborated from Mrs.' Phillippie was kept, by Supervisor Foreman from his superiors, his own father-in- law and brother-in-law., Cf. N.LR.B v. Sequoyah Mills, Inc., 409 F.2d 606, 609.(C.A. 10). Nor may it be-regarded as sheer coincidence that Gault and Cowles: were within an hour or so thereafter, on Thursday -afternoon, without discharge of Gault and Cowles. r Respondent's contention -that this proceeding must fail because the petition itself was not physically delivered to it -by its employees=like a summons in a lawsuit is so devoid of merit as not to warradtcomment. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice ,precipitately discharged, only to be followed by the hiring of other employees. Id Respondent's' Vice President Catalano conceded that at the time here iii' question Respondent gave its employee s-a 10-minute work "break" only in the morning, but that at other tunes' an'emlployee,could be excused from work'for the purpose of going 'to the toilet, or other satisfactory reason, only upon requesting' and receiving individual permission. He testified that since the described episode (resulting in_ the discharge of Gault and Cowles) the employees', 10-minute morning "break" has been discontin- ued. There can be no question that the employees who,were discharged were, in seeking to obtain an afternoon work "break" for Responde nt's> employees, engaging in lawful concerted activity, subject to the Act's protections. Cf. NLRff v. Washington Aluminum Company, 370 U.S. 9, 17; Morrison-Knudsen Company, Inc., 173 NLRB 56 and cases cited at 59, enfd. 418 F.2d 203 (C.A. 9). For so doing, they could not be discharged by their employer, as upon the entire record III find they were, without violating Section 8(axl) of the Act.' As has frequently ', been" pointed out, in assessing an employer's' true reason for the discharge of employees engaged in protected concerted activity, important clues include" the leadership or' prominence in that activity of the discharged-employees N.LR.B. v. Sequoyah Mills, Inc., supra; N.LR.B.- v. Council Manufacturing Corporation, 334 F.2d 161, 1664(C.A. 8), the-otherwise satisfactory perform- ance of the discharged employees NLRB. v. Elias Brothers -Big Boy, " Inc.,' 325,F2d 360, 366` (C.A. 6), the absence of discharge of other employees in the same work category (N.LR.B. v. Nabors, 196 F.2d 272, 275-76 (C.A. 5), cert. 'denied, 344 ^ US., 865), the employer's continued need for such-employees (NLRB. v." Local 776, IATSE (Film Editors), 303'F:2d 513, 519 (C.A. 9), cert. denied, 371 U.S. 826), the timing ' of the discharges (N.LRB. v. Sequoyah Mills, Inc.,`supra, Tele-Trip Company, v. N.L.R.B., 340 F.2d "575, 579-80 (C.A. 4); NLR.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A.1), cert. denied, 355 U.S. 829), the precipitate nature 'of the discharges vis-a-vis the employer's discovery, of the, discharged employees' activities (Tele-Trip Company v. NLRB., supra; N.L.R.B. v. Council Manufac- tttring Corporation, supra), the replacement of the "discharged-employees (NLRB. v. Superior Sales, Inc., 366 F2d` 229, 235 (C.A. 8), NLRB: v. Davidson Rubber Company, 305 F.2d 166, 168-69 (C.A. 1); N.LR.B. v. Local 776, IATSE (Film Editors), supra; N.LR.B. v. Montgomery Ward & Co., supra), the employer's implausible explana- tions,forits action (N.LRB. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 245-46 (C.A. 8), cert. denied, 396 U.S. 823), and the employer's unexplained failure to support, its alleged justification for "suspicious" discharges through its records and available witnesses. In this case, almost all if not, all of these elements are present, thus truly constituting a case where Respondents contentions simply "fail[s ] to 8 Proposed findings of fact numbered 1, 2, 3, and 4 are refused. Proposed conclusions of Ylaw , lettered A, B, and,-C are disallowed as improper in, form since the}/ state mere abstract alleged propositions of law; governing considerations of law , aare ,, mentioned or , reflected in the -stand under scrutiny" (N.LR:B. v. Dant, 207"F2d 165, 167 (C.A. 9), and cases cited). - Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. At all material times, Gladstone-Food Products Co., Respondent herein, has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Jurisdiction is properly asserted in this proceeding. 3. By the conduct set forth in section"ll, supra, consisting of the discharge -from y its employment, of Theodore G. Gault, Jr., `and mark D. 'Cowles under `the circumstances described and found, Respondent- has interfered with, restrained; and coerced its employees, and is continuing so to do, in the exercise of rights guaranteed to said employees by Section 7 otthe 'National 'Labor Relations Act, as amended, and has thereby engaged and is continuing to engage in unfair laborpractices in violation of Section 8(a)(1) of said Act. 4. ` The aforesaid unfair,labofpractices affect commerce within the meaning of Section 2(6)°and (7) of said Act. 5. Respondent has failed 'to° establish through a' `fair preponderance, of the substantial credible evidence upon the record as a whole in this} proceeding, its further defenses, or any 'thereof, set forth in paragraph 4 of its answer 'herein s REMEDY Respondent' having been found to have violated Section 8(axl) of the Act, I shall recommend the usual cease and desist order and affirmative relief customarily provided in cases of this nature, .including, since discharged employees are involved, reinstatement and backpay requirements, as well as posting of a-notice to all employees. Backpay for the discharged employees (Theodore-G. Gault, Jr., and Mark D. Cowles) shall reimburse- them for pay which they lost in consequence of the =described unlawful discharges, plus interest, less applicable earnings if any, all to be computed in the manner prescribed by the- Board in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716; and Respondent will be required to make available necessary records for that purpose. In view of ,the fact that the unfair labor practices here are, of a, nature which strike directly at the most primary, basic, and fundamental rights guaranteed to employees under the Act, namely summary discharge of employees for attempting to exercise the elementary right to ask, their employer for a brief respite from work, during the oppressive summer afternoon heat, I believe it to, be reasonably and fairly required to include a provision requiring Respondent to cease and desist from any infringement , upon, the,rights of its employees secured by Section 7 of, the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and Findings, Conclusions, and Decision herein. Although Respondent's postheanng brief (concluding, paragraph) purports to raise a jurisdictional argument, admissions contained in Respondent's answer eliminated such an issue from this case. GLADSTONE FOOD PRODUCTS CO. 271 pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 9 ORDER It is hereby -ordered that Gladstone Food Products Co., its officers, agents, successors, and assigns, shall: A. Cease and desist from: 1. Discharging, terminating the employment of, laying off, - furloughing, or failing to rehire or reinstate or reemploy, or threatening so to do, any employee for preparing, circulating, signing, or requesting any other employee to prepare, circulate, or sign, any lawful petition concerning working conditions, or for otherwise exercising or attempting to exercise any right or engaging or attempting -to engage in- any concerted activity protected under the National-Labor Relations Act as amended. 2. In any other manner interfering with, restraining, or coercing employees in the exercise of their right of self- organization; to form,- join, or assist any labor organiza- tion; to bargain- collectively through representatives of their own choosing; - to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. B. Take the following affirmative actions necessary to -effectuate the policies of the Act: 1.1 Offer Theodore G. Gault, Jr_, and Mark D. Cowles unconditional reinstatement to their former jobs and employment eligibility status with Respondent in the same fashion and for all purposes, including but not limited to 8 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations , be adopted by the Board and become its findings; conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 10 In the event that the Board's 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 seniority, as though Respondent had not discharged said Theodore G. Gault, Jr.; and Mark D: Cowles on August 6, 1970. - 2. Make Theodore G. Gault, Jr., and Mark D. Cowles whole, in the manner set forth in the "Remedy" portion of this Decision, for any loss of pay suffered by them as the result of their unlawful discharge by Respondent on August 6,1970. - - - 3. Preserve and, upon request, make available to the Board and its agents, for examination " and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due hereunder. 4. Post in its plant in Gladstone, Missouri, copies of the notice attached hereto marked "Appendix B."10 Copies of said notice, on forms provided by the Board's Regional Director for Region 17, shall, after being duly signed by ,Respondent's authorized representative, 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 to insure that said Notices are not ' altered, defaced, or covered by any other material. ' 5. Notify said Regionall Director, in writing, within 20 days from receipt of this Decision and recommended Order, what steps Respondent has taken to - comply herewith." - BOARD" shall be changed to read "POSTED PURSUANT TO ' A JUDGMENT, OF THE 'UNITED STATES COURT OF ^ APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELA- TIONS BOARD." 11 In the event that this recommended Order is adopted by the Board after exceptions ,have been filed, this provision shall be modified to read: "Notify said Regional- Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply 'herewith.'' -