Full Line Distributors, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Full Line Distributors, Inc. and Antonio Mella. Case 29-CA-5324 October 17, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On June 13, 1977, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 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 Administrative Law Judge as modified below and hereby orders that the Respon- dent, Full Line Distributors, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as so modified: Substitute the following for paragraph 2(a): "(a) Offer to Antonio Mella immediate, full, and unconditional reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, including utilization of Mella's own truck on the former or substantially equivalent terms and conditions to the extent permitted by law, without prejudice to his seniority and other rights, privileges, benefits, and emoluments, including but not limited to pay and other raises and increased truck rental scales in the interim; and make him whole for any loss of pay and other monetary loss (including overtime, holiday, vacation pay, insurance benefits and reimbursements, if any, and also losses of net income, if any, from payments for use of his truck), as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest, computed as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)." 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, 233 NLRB No. 15 Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. DECISION Preliminary Statement; Issue STANLEY N. OHLBAUM, Administrative Law Judge: This proceeding' under the National Labor Relations Act as amended (29 U.S.C. § 151, et seq.), was heard before me in Brooklyn, New York, on April 27-28, 1977, with all parties participating throughout by counsel, who were afforded full opportunity to present evidence and arguments and to file posttrial briefs. Proposed findings and briefs were received from Respondent on May 31, 1977. Record, proposed findings, and briefs have been carefully consid- ered. The principal issue presented is whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging its employee Antonio Mella on November 1 and (after reinstatement on November 9) again on November 19, 1976, and failing and refusing since the latter date to reinstate him, because of his union membership and exercise of rights protected under the Act. Upon the entire record and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION At all material times, Respondent, Full Line Distribu- tors, Inc., has been and is a New York corporation engaged in the business of wholesale sale and distribution to hospitals, nursing homes, schools, and other institutions in New York and New Jersey, of groceries and related products at and from its warehouse and principal office at 1313 39th Street, Brooklyn, New York, where, in the representative year immediately preceding issuance of the complaint, Respondent sold and distributed over $50,000 worth of such products directly in interstate commerce to persons in States other than New York. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that at all of those times Local 27, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Teamsters Local 27 or Union) has been and is a labor organization as defined by Section 2(5) of the Act. 11. ALLEGED UNFAIR LABOR PRACTICES A. Facts as Found2 Charging Party Antonio Mella entered Respondent's employ around September 1974 as a truckdriver, continu- ing there in that capacity with a satisfactory performance record until his discharge 2 years later, immediately after I Based on January 31, 1977, complaint growing out of November 22, 1976. charge of the above Charging Party. 2 Except to the extent here found, proposed findings are disallowed. 10 FULL LINE DISTRIBUTORS he joined the Union, under circumstances to be described. It is conceded that Mella's job performance had been unfaulted and satisfactory prior to his joining the Union, and that no contention is raised that his work was unsatisfactory. Mella was Respondent's only truckdriver. 3 He utilized his own truck, an 18-foot vehicle with a rated capacity of 18,000 pounds, which he was licensed ("Class 4" chauf- feur's license) by New York State to operate. For the use of his truck, which was storaged in Respondent's Brooklyn warehouse, Respondent paid Mella $125 per week plus gasoline and tolls, in addition to his $200 weekly salary. Mella made pickups as well as deliveries in Brooklyn and elsewhere in New York, and also in New Jersey. Mella has been a truckdriver for 10 years, 7 of that with his own truck. In October 1976, Mella and his fellow worker, ware- houseman Thomas, after discussing the desirability of unionization, visited Teamsters Local 27 "looking to be organized" and signed union membership cards. Thereaf- ter, before the start of work on Monday morning, November 1, Mella and Thomas, accompanied by Union Business Agent Frank Garcia, waited outside of Respon- dent's warehouse (where Mella's truck was stored) for its principal and operating head, Joseph Segal, to arrive and open the premises. When Segal arrived, Garcia told him he represented the employees. After opening up, Segal returned to the sidewalk and asked Mella and Thomas whether Garcia represented them. When Mella and Thomas replied that he did, Segal told them "You don't work [here] no more" and "I don't want no Union here," and directed Mella to remove his truck from the ware- house. After he complied with this direction, Mella remained outside of the premises with Thomas and Garcia, picketing there without signs. During that day, Segal called Thomas inside and asked him, "What is wrong? Why did [you] not come and tell [me]," and asked him what they wanted a union for, at the same time offering Thomas a $25 weekly raise to $175 while stating he would "get rid of Mr. Tony Mella." Thomas replied he did not think that was right and left to rejoin Mella and Garcia picketing outside.4 Thomas (with Mella), on Garcia's advice, visited the Board's Regional Office to file charges that day (November 1).5 On the next day, Tuesday, November 2, the three returned and resumed picketing (still without signs). When Garcia asked Segal to "sit down and talk," Segal's response was, "I have nothing to talk to you about." I In addition to Mella, Respondent employed in its Brooklyn warehouse one Katz, said to be the foreman there, warehouseman and truck helper Rudolph Thomas, and part-time warehouse helper Salvatore Bussota. Respondent's office worker, Reuben Rosenfeld, has been observed occa- sionally assisting in the warehouse subsequent to the events about to be described involving the discharge of Mella and Thomas. 4 Concerning this, Segal conceded that on the described occasion he did indeed call Thomas into the warehouse and told him that he (Segal) was unaware that Thomas "wasn't satisfied, and why didn't [youI come to me to say that [you are] not satisfied"; that he (Segal) does not "think" he asked Thomas to "forget the Union" or that he mentioned Mella; and that he (Segal) does not "remember" whether he offered Thomas a pay increase. Under these circumstances, I credit Thomas' better memory. s These charges were later dropped in view of a "settlement" between the parties, returning the employees to work with backpay and other promises on November 8 or 9, as described below. 6 Segal denies he ever said this; to the contrary, he claims Mella's truck On November 3, Mella and Thomas were handed identical letters (G. C. Exhs. 2 and 3) informing them that if they did not return to work by Friday, November 5, they would be discharged and permanently replaced. Mella and Thomas did not, however, return to work, but continued picketing. On November 8 or 9, (Monday or Tuesday), Garcia was invited into Segal's office by Respondent's counsel, Konstam. There Segal, claiming that "business was bad," asked Garcia why the Union wanted to come in. After calling the Board's Regional Office-with which contact had already been made by the employees-and, being advised that a settlement of the matter was in order, agreement was reached reinstating the two employees with backpay and a promised wage increase in January 1977, and an assurance of no reprisals; with the understanding that Garcia would be returning in about 3 or 4 months "to see if the company was doing better," with a view toward a union representation election at that time since Segal claimed there were additional workers involved although Garcia observed none. As a result of this "settlement," Mella and Thomas withdrew their pending charges before the Board and were returned to work on November 9 or 10 (Tuesday or Wednesday). When, as a result of this "settlement" and his withdrawal of his charges at the Board, Mella returned to work on November 9 or 10 (Tuesday or Wednesday), he observed another truck there-a rental truck which Segal instructed him to use for the remainder of that week. The truck was, like Mella's, load-rated at 18,000 pounds. On Friday, November 12, Segal informed Mella that from now on he (Segal) wanted Mella to drive a rental truck rather than Mella's own truck because it was "cheaper." 6 On the following Monday (November 15), however, Mella was sent out to drive a truck load-rated at 22,000 pounds- heavier than Mella's chauffeur's license (Class 4) permitted him to operate.? On the next day (Tuesday, November 16), while again out with the same 22,000 pound load-rated rental truck, Mella had a flat tire. When the repairman arrived, Mella-who is Hispanic, not totally fluent in English, and claims he did not know before this that the truck was load-rated beyond his chauffeur's license limitation-inquired of him what kind of license was needed to operate this particular truck. When the repair- man replied, "Class 3," and Mella thereupon asked him what would happen if it was discovered that he had no such license, the repairman responded that he would be fined and lose his license. Upon his return to the was "cheaper." If this is to be believed, it is difficult to understand why Segal would not simply have reverted to the long-established previous arrangement of using Mella's truck (with the possible avoidance of even occasionally carrying loads exceeding 18,000 pounds; or, making more trips; or, occasionally utilizing a heavier truck if ever essential-which has in no way been established here). I credit Mella's testimony that at no time did he (Mella) indicate he no longer wished to use his own truck, and I discredit contrary testimony as incredible, since, among other things, it would be incomprehensible why Mella would want to cut down his income substantially by not utilizing his own truck. Mella testified that he had occasionally transported loads for Respon- dent which he estimates somewhat exceeded the 18,000-pound rated-load of his own truck, without demur on anybody's part. However, he had apparently at no time prior to November 15 operated or been required to operate a truck load-rated in excess of the 18,000 pounds he was licensed to operate under his Class 4 chauffeur's license. II DECISIONS OF NATIONAL LABOR RELATIONS BOARD warehouse, Mella told this to Segal, who indicated to Mella that he would thereafter rent trucks load-rated at 18,000 pounds as previously. Subsequently, however, Segal claimed he was unable to arrange for the rental of any truck load-rated at less than 20,000 pounds, which was still beyond the limitation of Mella's chauffeur's license; and Segal indicated he was terminating the employment of Mella, with pay through the following week.8 On the following Monday, November 22, Mella again visited the Board's office, this time to file the charge resulting in the complaint here for determination. 9 About 2 weeks after Mella's termination under the circumstances described, Thomas was also terminated. Neither Mella nor Thomas has been reinstated, reem- ployed, or recalled by Respondent. Thomas' termination is not in issue here. B. Respondent's Contention Conceding that, for the entire period of Mella's employ- ment prior to his joining the Union, his work performance was satisfactory and his truck was satisfactory, Respondent contends that it learned or supposed for the first time after Mella joined the Union that he had been occasionally transporting loads somewhat in excess of the 18,000-pound load-rated capacity of that truck and Mella's Class 4 chauffeur's license, and that it was because Mella refused to obtain a chauffeur's license permitting him to operate trucks in excess of 18,000-pound load-rated capacity that it discharged Mella. C. Resolution and Rationale Upon the record as a whole, I am persuaded that the reason advanced by Respondent for its second discharge of Mella is farfetched, pretextuous, and unrelated to the basic truth of the matter. I believe and find, rather, that the "reason" advanced by Respondent for Mella's second discharge was and is being utilized as a pretext to cover up its real reason for ridding itself of a satisfactory worker who became unacceptable only after he joined the Union and sought to exercise rights guaranteed to him by Congress under the Act. Mella's testimony is unquestioned that at no time prior to his joining the Union did Respondent raise any question concerning his truck, his license, or his job performance, nor that he was never required to drive a rental truck. However, all this changed swiftly and dramatically as soon as Respondent discovered Mella had joined the Union. Mella, with Thomas, was thereupon summarily dis- s I credit Mella's testimony that at this time Respondent did not offer to keep Mella on the job if he obtained a license to operate a truck load-rated at over 18,000 pounds. No reason has been suggested why Mella would have declined to do so in order to keep his job; nor why the same offer would be renewed to Mella in early December-as detailed below-if Mella had already rejected it. 9 In December 1976, Mella met with Segal and his counsel at the Board's Brooklyn Regional Office, where Segal offered to again reinstate Mella, on condition that he obtain a chauffeur's license to drive 22,000-pound load- rated trucks. This was seemingly predicated on no further use of Mella's own truck. Although at no time prior to his second termination had Respondent indicated to Mella that he could continue in its employ if he obtained such a license, Mella nevertheless expressed willingness to do so, provided that this time Segal's reinstatement agreement was reduced to charged-"You don't work [here] no more . . . I don't want no Union here." Although, on calmer reflection and sounder counsel, Mella and Thomas were reinstated with backpay and promises (which were never kept), their reemployment was short-lived, since Respondent there- upon hit upon the expedient of eliminating the continued use of Mella's truck-a source of substantial income to Mella-instead requiring him to operate an unnecessarily heavy rental truck which Respondent knew Mella was not licensed to drive, and thereupon summarily again discharg- ing Mella, this time on the pretext that he was not licensed to drive such a heavier truck, but without affording Mella any opportunity before his discharge to obtain such a license. It is, however, clear that Respondent could have continued to utilize Mella's truck on the same terms as it had for years before; or Respondent could have rented another 18,000-pound load-rated truck; or to handle occasional loads, if essential (but not here established), exceeding 18,000 pounds, more trips, reroutings, different load distributions, or other arrangements could have been devised, utilizing Mella's truck or another 18,000-pound load-rated truck; or Respondent could have, on such occasional situations if any when essential, utilized a truck load rated in excess of 18,000 pounds; or Respondent could have given Mella a firm, fair, meaningful, and reliable opportunity to obtain a Class 3 (i.e., over 18,000- pound load) chauffeur's license, instead of discharging him on that pretext.10 It is to be noted that the situation as described occurred within the context of marked and openly expressed, hostile intolerance by Respondent to union membership by its employees. Under these circumstances, Respondent's contention that it discharged Mella because of his failure to obtain a Class 3 chauffeur's license is unpersuasive, pretextual, "fails to stand under scrutiny" (N.LR.B, v. Thomas W. Dant, et al. co-partners d/b/a Dant & Russell, Ltd., 207 F.2d 165, 167 (C.A. 9, 1953)), and is rejected. To the contrary, I find that its discharges of Mella on November I and 19, were at least in controlling and determinative part the result of his having joined the Union and attempting to exercise his statutorily guaranteed rights under Section 7 of the Act. Upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW 1. Jurisdiction is properly asserted in this proceeding. 2. Respondent's terminations of the employment of its employee Antonio Mella on or about November I and 19, writing. According to Mella, this request was refused (Segal testified only that he was unable to "remember" such a request) and he has not heard from Segal or his counsel since then. lo Respondent failed to establish that it requires a truck heavier or other than Mella's I 8,000-pound load-rated truck which it had been using for years before Mella joined the Union. Respondent produced no evidence- although presumably readily within its control-that the loads actually hauled by Mella were regularly, substantially, significantly, or even other than extremely occasionally, in excess of the lawful capacity of Mella's truck or beyond the limitations of his chauffeur's license. Speculation to the contrary is unjustified and could not properly form the predicate of a finding of fact in this proceeding. 1a Proposed conclusions contrary to the following are disallowed. 12 FULL LINE DISTRIBUTORS 1976, as alleged in the complaint, were, under the circumstances described and found, unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 3. Respondent's said unfair labor practices have affect- ed, affect, and, unless permanently restrained and enjoined and affirmatively remedied, will continue to affect com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER '2 The Respondent, Full Line Distributors, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Terminating the employment of, discharging, laying off, suspending, or refusing to reinstate, rehire, or reem- ploy, any employee, or eliminating any previously existing economic arrangement for the lawful utilization of any employee's truck in connection with the employee's employment in Respondent's business, because of his membership in, sympathy for, or lawful activity on behalf of any labor organization, or because he exercises, asserts, or seeks to exercise or assert, any right under the National Labor Relations Act, as amended. (b) Discouraging or encouraging membership in any labor organization by discriminating in regard to hire or tenure of employment or any term or condition of employment, in violation of said Act. (c) In any other manner interfering with, restraining, or coercing any employee in the exercise of the right to self- organization; to form, join, or assist any labor organiza- tion; to bargain collectively through representatives of his own choosing; to engage in concerted activities for the purpose of collective-bargaining or other mutual aid or protection; or to refrain from any or all such activities. 2. Take the following affirmative actions, necessary to effectuate the policies of the Act: (a) Offer to Antonio Mella immediate, full, and uncondi- tional reinstatement to his former or substantially equiva- lent position, including utilization of Mella's own truck on the former or substantially equivalent terms and conditions to the extent permitted by law, without prejudice to his seniority and other rights, privileges, benefits, and emolu- ments, including but not limited to pay and other raises and increased truck rental scales in the interim; and make him whole for any loss of pay and other monetary loss (including overtime, holiday, vacation pay, insurance benefits and reimbursements, if any, and also losses of net income, if any, from payments for use of his truck),'3 together with interest, computed as explicated in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (b) Forthwith expunge from the personnel, employment, and all other records of Antonio Mella, all statements, references, and entries that he was discharged from Respondent's employment for any work-related fault, deficiency, infraction, or reason; and refrain from so writing, stating, or indicating to any employer, potential employer, or reference seeker. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, wage scale records and notations, social security records, timecards, personnel records and reports, truck rental and use, shipping and delivery records, charges, and payments, and all other records and entries necessary or appropriate to determine the amount of backpay and other sums and benefits due under and the extent of compliance with the terms of this Order. (d) Post at its premises in Brooklyn, New York, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Board's Regional Director for Region 29 shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof and main- tained 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 12 In the event no exceptions are filed under Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and the following recommended Order shall, under Sec. 102.48 of those Rules and Regula- lions, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 13 It is unclear whether Mella was made whole in full or part for any loss of pay between November I (the date of his initial unlawful discharge) and November 8. 9, or 10 (the date of his reinstatement or return to work). The Charging Party is not, of course, entitled to backpay for any period during which he may have been engaged in an economic strike or withheld his services notwithstanding a valid good-faith offer of reinstatement, or because of persistence if any on his part to operate his truck in violation of lawfully required maximum weightload requirements or contrary to his chauffeur's license limitations. (It is not here suggested that he so insisted.) These matters are for exploration in a backpay proceeding, should such become necessary. No contention was raised herein that the Charging Party was at any time engaged in an unfair labor practice strike. 14 In the event this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing before an Administrative Law Judge, at which all sides had the opportunity to present evidence and arguments, it has been decided that we have violated the National Labor Relations Act, and we have been ordered to post this notice and to abide by the following: WE WILL NOT, in violation of the Act, discharge, terminate the employment of, lay off, suspend, or refuse to reinstate, rehire or reemploy, or discriminate in employment against any employee, or eliminate any other economic arrangement (such as truck rental) we 13 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have with any employee, because of his membership in, sympathy for, or lawful activity on behalf of, any union, or because he exercises or seeks to exercise or assert any right under the National Labor Relations Act, as amended. We WILL NOT violate any of our employees' rights under the National Labor Relations Act. WE WILL offer Antonio Mella immediate, full, and unconditional reinstatement to his former or substan- tially equivalent job, including our arrangement with him for utilization of his truck to the extent permitted by law, without prejudice to his seniority, and we will pay him for any wages and other losses sustained by him because of our discharges of him on November 1 and 19, 1976, plus interest. WE WILL forthwith remove from our records all indications that Antonio Mella was discharged by us because of any fault on his part; and WE WILL make no such statement to any employer, potential employer, or reference seeker. FULL LINE DISTRIBUTORS, INC. 14