Valley Bakery

532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Valley Bakery and Edward Benefield . Case 20-CA- 9765 October 19,. 1976 DECISION AND ORDER By MEMBERS JENKINS, PENELLO, AND WALTHER On August 5, 1976, Administrative Law Judge Irv- ing Rogosin issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, and the Respondent filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. i The General Counsel 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 credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F.2d 362 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In adopting the Administrative Law Judge's dismissal of the complaint, we rely solely on the finding that at no point did Respondent discharge the alleged discnminatee. Accordingly, we find it unnecessary to consider or rely upon the Administrative Law Judge's alternative grounds in dismissing the complaint. DECISION tive-bargaining agreement to which Respondent was a par- ty or because he had engaged in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. On June 19, 1975, the Board issued its Decision and Or- der (218 NLRB 686), granting motion for summary judg- ment, filed by counsel for the General Counsel, on the ground that Respondent had at no time filed an answer to the complaint, or a response to the Board's notice to show cause why General Counsel's motion for judgment on the pleadings should not be granted. Upon motion for recon- sideration, filed by Respondent, on August 19, 1975, and opposition thereto filed by counsel for General Counsel, on September 2, 1975, the Board, by order dated November 19, 1975, vacated the Decision and Order, denied the Gen- eral Counsel's motion for summary judgment, granted Re- spondent 10 days from the date of service of the order within which to file an answer to the complaint, and re- manded the case to the Regional Director for appropriate action. On November 26, 1975, the Regional Director reinstated the complaint issued on January 14, 1975, and scheduled the case for hearing on February 3, 1976.' On December 1, 1975, Respondent filed an answer to the complaint, admitting the filing and service of the charge, the nature of Respondent's business, and the execution of the collective-bargaining agreement referred to in the com- plaint but denying the remaining allegations.2 Hearing was held before me on February 19, 1976, at Fresno, California. General Counsel and Respondent were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to intro- duce evidence relevant and material to the issues, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. At the outset of the hearing, Respon- dent moved orally that the proceeding be deferred to arbi- tration under the collective-bargaining agreement. The mo- tion was denied with leave to renew before the close of the hearing. At that time, Respondent remained undecided whether to urge deferral to arbitration but, thereafter, in its brief, withdrew the motion. At the close of General Counsel's case, Respondent also moved to dismiss the complaint. This motion, too, was denied, with leave to re- new. When renewed at the close of the hearing, ruling was reserved. The motion is disposed of by the findings and conclusions hereinafter made. The parties waived oral ar- gument but, pursuant to an extension of time duly granted, filed briefs on March 30, 1976. No proposed findings of fact or conclusions of law have been filed by any of the parties. Upon the entire record in the case, and based upon the appearance and demeanor of the witnesses, and the briefs, STATEMENT OF THE CASE IRVING RocosiN, Administrative Law Judge: The com- plaint, issued on January 14, 1975, alleges that Respondent has engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. Specifically, the complaint alleges that on or about Octo- ber 25, 1974, Respondent discharged Edward Benefield be- cause of his union activities in seeking to enforce a collec- i The heanng was subsequently rescheduled to February 19, 1976, to ac- commodate Respondent's counsel. 2 Designations herein are as follows. General Counsel, unless otherwise stated, or required by the context, his representative at the heanng, Valley Bakery, Respondent, the Employer, or the Company, Edward Benefield, the Charging Party; the National Labor Relations Act, as amended (61 Stat 136, 73 Stat. 519, 29 U.S C Sec 151, et seq), the Act, the National Labor Relations Board, the Board. The charge was filed and served on November 29, 1974. 226 NLRB No. 83 VALLEY BAKERY 533 which have been duly considered, I hereby make the fol- lowing: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The complaint alleges, Respondent's answer admits, and it is hereby found that Respondent, a sole proprietorship, owned and operated by Samuel G. Saghatelian, doing busi- ness under the trade name of Valley Bakery, was, and at all times material herein has been, engaged in the production and wholesale distribution of bakery products at Fresno, California.' Although Respondent's answer denies the commerce allegations, it was stipulated at the hearing that during the calendar year 1974, in connection with the production and wholesale and retail distribution of its products, Respon- dent's gross sales exceeded $530,000, of which in excess of $10,000 were made directly to customers located outside the State of California. Upon the basis of the foregoing, and upon the entire record, including the stipulation of the parties, it is hereby found that, at all times material herein, Respondent has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It was further stipulated at the hearing that Bakery and Confectionery Workers, International Union of America, Local 85, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act .4 III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues 1. Whether the action taken by Respondent against Benefield, on or about October 25, 1974, constituted a dis- charge or involuntary termination of his employment. 2. If so, whether in discharging Benefield, Respondent was motivated by his alleged union activities in attempting to enforce the existing collective-bargaining agreement or by other protected concerted activities. 3 According to Saghatelian, the business was incorporated about a year before the hearing under the same firm name, and his sister acquired a 25-percent interest in the corporation Since this resulted in no change in name of the business entity, the caption in the complaint has been retained in this Decision. There is no issue concerning successorship of the corpora- tion to the business formerly conducted by Saghatelian as sole proprietor. 4 It was also stipulated that the collective-bargaming agreement, referred to in the complaint, was executed by Bakery and Confectionery Workers Union, Local 43, which subsequently merged with Local 85 of the parent union, in March 1974. There is no issue as to the status of Local 85 as collective-bargaining representative of the employees covered by that con- tract B. Discrimination in Regard to Hire and Tenure of Employment Respondent and the Union were parties to a collective- bargaining agreement, containing a union-security provi- sion, effective from July 1, 1972, to June 30, 1975.5 Edward Benefield was hired by Respondent initially in February 1974, to perform sundry tasks, consisting of cleaning and assisting in greasing screens, dumping flour into bins, weighing ice, loading and unloading ovens, sweeping, and generally performing similar chores.b Benefield had had no previous experience in the bakery business and, contrary to his contention, did not work as either a journeyman or apprentice baker while in Respon- dent's employ. He worked full time, 6 days a week, 8 hours a day, plus overtime, until about the end of April 1974.7 Toward the end of April, Benefield was off work several days due to some trouble with his hand. When Benefield returned to work, Saghatelian told him that he had been considering laying him off. Benefield, asked for his pay- check and quit voluntarily. On or about September 3, 1974, Benefield was rehired in the same capacity in which he had previously been em- ployed. On or about October 21, he went to the union office and spoke to Business Agent Harold Guyette.8 Bene- field asked Guyette whether he would receive union scale if he joined the Union. Guyette explained that, if Benefield had already been working for more than a month, he would be required to join in accordance with the union- security provisions of the collective-bargaining agreement. Benefield told Guyette that he was being paid $2.50 an hour, and asked him how much he should be receiving. In response to Guyette's questioning, Benefield acknowledged that he was not a journeyman baker and that he had never worked in a bakery before. Guyette told him that, under those circumstances, the only job for which he was quali- fied was, that of miscellaneous worker, which paid $3.05 an hour under the contract. Guyette assured Benefield that he could secure that rate for him and collect the difference between what he had been paid and the wages he should have received under the miscellaneous wage scale. Bene- field told Guyette that he had even done some of the work of a journeyman baker, and argued that he was at least entitled to the apprentice scale of $3.16 an hour. Guyette disagreed and told Benefield that, based, on his, description of his duties, his proper job classification was miscella- neous worker, at $3.05, and that he would see that Bene- field was paid at that rate, and reimbursed for the differ- ence in his past wages. Guyette telephoned Saghatelian and arranged a meeting for October 25. Guyette and Benefield met with Saghateli- an at the bakery in the late afternoon. When Guyette ques- tioned Saghatelian about Benefield's duties, Saghatelian 5 This finding is based on the admission in Respondent's answer to the allegations of the complaint. 6 Respondent's products consist of peda bread, rolls, crackers, and other Armenian bakery products. The screens referred to above were actually baking pans, perforated on the bottom, used in baking rolls. 7 Although he had been employed for more than' 30 days, he admittedly did notjoin the Union during this period, notwithstanding the union-securi- ty provision of the contract. Guyette retired as business agent of the Union as of April 1, 1975 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD described them in much the same way Benefield had relat- ed them to Guyette. Saghatehan mentioned, however, that Benefield had been hired to handle the heavy work, which Saghatelian had been unable to do because of surgery he had undergone to his hand. Saghatelian told Guyette that the condition of his hand had improved sufficiently so that he was capable of doing the work himself. When Saghatelian confirmed that he had been paying Benefield $2.50 an hour, Guyette told Saghatelian that the wage scale for miscellaneous worker under the contract was $3.05. Benefield persisted in his claim that he was enti- tled to the apprentice scale of $3.16 an hour. Saghatelian told Benefield that he would not pay him the apprentice rate, and that he was only entitled to the miscellaneous worker scale. Guyette agreed that Benefield's job was that of miscellaneous worker rather than apprentice, and that he was only entitled to the $3.05 rate, which, Guyette told Benefield, Saghatelian had agreed to pay him retroac- tively. Angered by Saghatelian's refusal to grant him the ap- prentice scale, and his assertion that the job entailed only the duties of miscellaneous worker, Benefield pointed at Saghatelian and, shaking his fist menacingly, shouted, "You are a god damn liar. You are so god damn tight, you squeak when you walk around. You are a cheap son of a bitch." 10 Saghatelian testified that he was frightened and "in a state of shock" at Benefield's outburst, and told him, ,,all right if you're going to be that way, you better go home." Saghatelian then resumed his work, and Benefield asked Guyette what he proposed to do about the matter. The business agent made no response, and Benefield left. Benefield did not return to the bakery, but 4 or 5 days later, on about October 29 or 30, went to the union office, and asked Guyette what he was going to do about "my being fired." Guyette told him that there was nothing he could do, and that Benefield was free to do as he pleased. Nevertheless, Guyette called Saghatelian and asked him why he had let Benefield go. According to Guyette, Sag- hatelian told him that he had hired Benefield on a part- time basis until Saghatelian recovered from the surgery,on his hand. When Benefield failed to return to his job after being sent home on October 25, Saghatelian apparently decided that he could dispense with Benefield's services by doing the work himself. Benefield called on Guyette again, and asked him if he was "going to get him his job back." Guyette told him what Saghatelian had said, and took no further action." For about a week or 10 days after Benefield was sent home, Saghatelian handled Benefield's job until he found the work too strenuous. He then hired a temporary em- ployee for about a week or less to assist him. Saghatelian denied that he hired this employee as a replacement for 9 It is undisputed that Saghatelian actually compensated Benefield retro- actively for the difference between the miscellaneous worker's rate under the union contract and the amount he had been paid 10 Benefield admitted calling his employer "a damn liar" and did not deny the remainder of the statement Guyette testified that Benefield used profanity during his outburst. It is found that Benefield made the remarks attributed to him by Saghatelian "Although Benefield filed an unfair labor practice charge against the Union, allegedly for denying him fair representation, the charge was subse- quently withdrawn Benefield . Benefield notified Guyette that Saghatelian had hired a new employee, and Guyette questioned Saghatelian about it. He was informed, according to Guyette, that the employee had not been hired as a replacement for Bene- field but merely to help out temporarily. Saghatehan's tes- timony that this employee worked a week or less was un- contradicted. Based on this evidence, the General Counsel contends that Respondent discharged Benefield on October 25, 1974, and that he did so either because of Benefield's union membership and activities or because 'he had-attempted to enforce, the wage provisions of the collective-bargaining agreement by insisting that his rate of compensation should be based on the apprentice wage scale. In her brief, counsel for General Counsel contends that Benefield was discharged coley because he called his employer a liar in the course of a "grievance proceeding.", Respondent categorically denies that he discharged Benefield under any circumstances, least of all, for any of the reasons assigned by General Counsel. - It is undisputed that, when Saghatelian sent Benefield home after the altercation, he used no explicit words of discharge. Moreover, according to Saghatelian, he had had no intention of discharging Benefield on the day in ques- tion, and had no such intention when he sent him home. In fact, ,according to Saghatelian, it was not uncommon for him to' send employees home temporarily for various in- fractions. Almost invariably, he testified, they were permit- ted to resume their jobs after apologizing. Whether Bene- field was aware of this practice, in view of his relatively short period of employment, is not known. Guyette testi- fied that, in his capacity as union representative, he knew of instances in which this had occurred. 12 In any case, it is reasonable to assume; given Benefield's explosive outburst and Saghatelian's reaction to it, that if Saghatehan had intended to discharge Benefield, he would not have resorted to any euphemism but would have done so in unequivocal terms, leaving no doubt as to his inten- tion. By the same token, if Benefield were in any doubt as to whether his employer was terminating his employment, he had only to ask him. In view of Benefield's belligerence toward his employer, it seems improbable that he would have submitted meekly to being sent home without know- ing whether he was being discharged. This, suggests that Benefield assumed that he was being discharged because he realized that his conduct had war- ranted such action. From Saghatelian's standpoint, it would appear that he sent Benefield home to avoid pro- longing the unpleasant confrontation, anticipating that he would return when he had cooled off. Benefield, however, chose to consider himself discharged rather than put his employer to the test by attempting to return to work. To put it in the vernacular, Benefield "jumped the gun" in concluding that he had been discharged. Obviously, he lat- er thought better of it when he attempted to enlist Guyette's support in clarifying his employment status. 12 Considering that he was of the opinion that Benefield had not been discharged, Guyette's inability to recall whether he advised Benefield to attempt to return to work seems surprising However, Guyette pleaded lack of recollection about many details due to the considerable lapse of time since the events occurred VALLEY BAKERY 535 This is not to suggest that an employee who has been discriminatorily discharged is required to make application for his job before he may maintain a claim of discrimina- tion. By the same token, an employer who has sent an employee home for insubordination is not required to re- call him before the employee has indicated his desire to return to his job. It would seem that ordinary prudence would dictate that an employee who has been sent home after an altercation with his employer, which the employee himself had provoked, would attempt to ascertain his actu- al employment status from his employer. Benefield did nothing for 4 or 5 days, during which Saghatelian could reasonably have concluded that Benefield had no desire to return to his job. During this interval, Saghatelian conclud- ed that he could dispense with Benefield's services by doing the work himself, having maintained that he had hired Benefield on a temporary basis until his hand mend- ed. After 4 or 5 days, Benefield apparently had some sec- ond thoughts, and sought to enlist the aid of his union representative in interceding with Saghatelian. That Guy- ette did so does not establish that he believed that Bene- field had actually been discharged, discnmmatonly or otherwise. - Evidence that Saghatelian hired a part-time employee some 10 days after Benefield left has not been overlooked. According - to Saghatelian's uncontradicted testimony, however, this employee was not hired as a replacement for Benefield but only on a temporary basis for 4 or 5 days. The preponderance of the credible and reliable evidence fails to support a finding that Respondent actually dis- charged Benefield on October 25, 1974, for the reasons ad- vanced by General Counsel, or for any other reason. Since this finding would ordinarily be determinative of the issues raised by the complaint, it should be unnecessary to pass upon Respondent's alternative defenses. In the event, how- ever, that it should ultimately be determined that Benefield was, in fact, discharged, Respondent's alternative defenses will be considered. Respondent contends that, even if it should be found that Benefield was, in fact, discharged, the complaint can- not be sustained because (1) the evidence fails to establish that the activities in which he engaged constituted concert- ed activities within the meaning of the Act; (2) the dis- charge was not motivated by union animus or antiunion considerations; and (3) the discharge was for cause. (1) While it has been held that an employee who seeks to enforce the provisions of a collective-bargaining agree- ment may be deemed to be engaging in concerted activi- ties, even in the absence of a similar interest by fellow employees,13 the record here clearly establishes that, in seeking to secure the apprentice wage rate provided for in the collective-bargaining agreement, Benefield was acting solely on his own behalf, as an individual, and not for the purpose of implementing the wage provisions of the agree- ment. Hence, it cannot be found that the activity in which he engaged was in any sense concerted. There is no evi- dence that Benefield engaged in any other union or con- certed activities, beyond mere membership. Moreover, the record discloses that, during his initial period of employ- ment, he failed to join the Union, notwithstanding the exis- tence of a union-security provision, and even though he had been employed longer than 30 days. (2) The record fails to establish any evidence of union animus by Respondent or animosity or hostility toward Benefield, either because of his union membership or activ- ity or because of his efforts to secure the apprentice wage scale. Respondent had been a party to a collective-bargaining agreement with the Union (or its predecessor) for a num- ber of years, and relations between the parties had been satisfactory. Furthermore, Saghatelian voluntarily reim- bursed Benefield for the adjustment in his wage scale, with- out argument, protest, or dispute, and there was no show- ing or contention that Saghatelian's subsequent conduct with regard to Benefield was motivated by resentment at having to make up the difference in Benefield's wages.14 (3) Finally, Respondent contends that, if, in fact, Bene- field was discharged, his behavior on the day in question would have fully justified his discharge. The defect in this argument is that, since Respondent denies that he dis- charged Benefield, in any circumstances, he cannot now contend in retrospect that he would have had ample justifi- cation for his discharge if he had wished to avail himself of those grounds. In view of these findings, it is unnecessary to consider whether Benefield's remarks to his employer on the occa- sion in question were so opprobrious as to remove them from the protection of the Act.15 On the entire record and, based on the appearance and demeanor of the individuals involved, it is found that Sag- hatelian did not discharge Benefield on October 25, 1974, and that, in any event, Respondent did not, by his action on that date, discriminate in regard to the hire or tenure of Benefield's employment to discourage membership in the Union or interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE ALLEGED UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- 14 There is also evidence in the record that, sometime prior to the incident involving Benefield, when employees engaged in a strike over Respondent's alleged failure to pay overtime, and an adjudication was rendered against him by a state labor commissioner, Respondent paid these employees the amount of overtime awarded them and reinstated them to their former posi- tions without subsequent retaliation or reprisal. The General Counsel's as- sertion that she expected to prove that Respondent engaged in a routine pattern or practice of discharging employees as soon as they joined the Union under the Union's security provisions of the contract was never es- tablished, Guyette, himself, testifying that he had no knowledge of the exis- 13 N.LR B v. Interboro Contractors, Inc, 388 F 2d 495 (C A 2. 1967), tence of any such pattern or practice, a matter which would normally have N L R.B. v C & I Air Conditioning, Inc, 486 F.2d 977 (C A. 9. 1973), cf, been expected to receive the attention of the union representative if such a however, N LR B v Northern Metal Company, 440 F.2d 881 (C A 3, 1971), pattern had prevailed N.L.R B v. Oklahoma Allied Telephone Company, Inc, (C A 10, 1975) (un- 15 See Crown Central Petroleum Corporation, 177 NLRB 322 (1969), enfd published), reversing 210 NLRB 916 (1974). 430 F 2d 724 (C.A 5, 1970) 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent described in section I, above, have a close, inti- mate, 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 Having found that Respondent has not engaged in un- fair labor practices within the meaning of Section 8(a)(I) and (3) of the Act or in any other unfair labor practices, it will be recommended that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 3. Respondent did not, on or about October 25, 1974, discharge Edward Benefield, and, in any event, did not, by his action on that date discriminate in regard to his hire and tenure of employment to discourage membership in a labor organization, in violation of Section 8(a)(3), or inter- fere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7, and has not thereby en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 4. The unfair labor practices in which Respondent is al- leged to have engaged are unfair labor practices affecting commerce within the meaning of Section 2(6) and' (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law and, upon the entire record, and pursuant to Section 10(c) of the Act, I make the following recom- mended: 1. Valley Bakery, Respondent herein, is, and at all times material herein has been, an employer engaged in com- merce and in an industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act and the jurisdictional standards of the Board. 2. Bakery and Confectionery Workers International Union of America, Local 85, the Union herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. ORDER16 The complaint is hereby dismissed in its entirety. 16 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes