Boldemann Chocolate CompanyDownload PDFNational Labor Relations Board - Board DecisionsJul 31, 193913 N.L.R.B. 1281 (N.L.R.B. 1939) Copy Citation In the Matter of BOLDEMANN CHOCOLATE COMPANY and INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION7 LOCAL 1-6 Case No. C-796.-Decided July 31,1939 Chocolate Manufacturing Industry-Interference, Restraint, and Coercion: expressed hostility against union ; interference in the selection of a union ; threat to close shop-Discrimination: reduction in personnel occasioned by removal of shop to smaller quarters used as a means of discharging 3 union members- Reinstatement Ordered-Back Pay: awarded. Mr. Clifford D. O'Brien and Mr. Leslie Lubliner, for the Board. Mr. Phillip Barnett, of San Francisco, Calif., for the respondent. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by International Longshoremen's and Warehousemen's Union, Local 1-6, herein called the I. L. W. U., the National Labor Relations Board, herein called the Board, by the Regional Director for the Twentieth Region (San Francisco, Cali- fornia), issued its complaint dated June 10, 1938, against Boldemann Chocolate Company, San Francisco, California, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint and accompanying notice of hearing was duly served upon the respondent and the I. L. W. U. Concerning the unfair labor practices, the complaint alleged in sub- stance that the respondent discouraged membership in Weighers, Warehousemen and Cereal Workers' Union, Local 38-44, herein called the I. L. A., a labor organization affiliated with International Long- shoremen's Association and, through it, with the American Federation of Labor, and in the I. L. W. U., by discharging and/or refusing to ' Incorrectly referred to in the complaint as "Boldemann Chocolate Co Inc." The title of the proceeding was amended at the hearing. 13 N L. R.B,No.119. 1281 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstate three employees because they had joined and assisted the I. L. A. and, from and after its inception, the I. L. W. U., and, by urging, influencing, and warning its employees to refrain from be- coming or remaining members of the I. L. A., and by other acts, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On June 17, 1938, the respondent filed its answer to the complaint in which it admitted certain allegations thereof, but denied the allega- tions of unfair labor practices, and set up affirmative matter in justification of the discharges alleged in the complaint. Pursuant to notice, a hearing was held on June 20, 21, 22, and 23, 1938, at San Francisco, California, before R. N. Denham, the Trial Examiner duly designated by the Board. The Board and the re- spondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses,, and to introduce evidence bearing upon the issues was afforded all parties. Numerous motions and objections to the admission of evi- dence were made and ruled upon at the hearing. At the conclusion of the hearing the Trial Examiner reserved decision upon a motion, by counsel for the respondent, to dismiss the complaint. The Board has reviewed the rulings of the Trial Examiner and finds no prejudicial errors were committed. The rulings are hereby affirmed. On July 28, 1938, the Trial Examiner filed his Intermediate Report., copies of which were served upon all parties, in which he denied, in part, the respondent's motion to dismiss the complaint; found that the respondent had committed unfair labor practices affecting commerce, within the meaning of Section 8 (1) and Section 2 (6) and (7), but not within the meaning of Section 8 (3), of the Act; and recommended that the respondent cease and desist from its unfair labor practices, and that the complaint, in so far as it alleges that the respondent discouraged membership in labor organizations by discrimination, be dismissed. Exceptions to the Intermediate Report and a brief in support thereof were thereafter filed by the I. L. W. U. The Board has considered these exceptions, and, as set forth below in the finding, conclusions, and order, they are hereby sustained. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Boldemann Chocolate Company is a California corporation, en- gaged at its plant in San Francisco, California, in the manufacture, sale, and distribution of cocoa, chocolate, and various types of finished chocolate products. BOLDEMANN CHOCOLATE COMPANY 1283 During the calendar year 1937, the respondent purchased raw ma- terials, sugar, cocoa beans, cocoa butter, powdered milk, vanilla beans, and kindred products, valued at approximately $149,157, of which approximately 48 per cent were purchased outside the State of Cali- fornia. During that same period it sold finished products, principally to other manufacturers, valued at approximately $206,070. Approxi- mately 40 percent of such products were shipped from the respondent's plant to points outside the State of California. II. THE ORGANIZATION INVOLVED International Longshoremen 's and Warehousemen 's Union, Local 1-6, is a labor organization affiliated with the Committee for Industrial Organization , admitting to its membership all production employees of the respondent . On October 13, 1937 , it succeeded to, and took over the entire membership , officers and records of Weighers, Ware- housemen 's and Cereal Workers ' Union, Local 3814, affiliated with International Longshoremen 's Association and the American Federa- tion of Labor. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion There appears to have been no labor organization among the re- spondent's employees before May 1937. On a Friday, early in May 1937, a petition was circulated in the plant of the respondent among its employees for the purpose of securing members for the I. L. A. Eight of the 12 men and till 4 women then employed by the respondent signed. Those signing were instructed to be at union headquarters the next afternoon (Saturday) at 12:30 p. m. All who had signed, except one of the women who was ill, appeared at union headquarters at the appointed. time and signed formal applications for membership in the I. L. A. Paton, secretary of the I. L. A., told the men that the initiation was $10. Some of the men, in addition to Ercolini, Rodriguez, and D'Amico, the employees alleged in the complaint to have been discriminatorily discharged, paid varying amounts up to $4 on'the initiation fee. All the men received union buttons, but only the above-named employees appear to have worn them in the plant. Ercolini, Rodriguez, and D'Amico testified regarding a number of conversations about unions which occurred at the plant on the Monday after the employees had signed the membership cards in the I. L. A. Ercolini testified that he overheard a conversation in the basement, wherein Gerald Boldemann, plant superintendent, told Morino, an employee, "If you fellows are thinking of joining the Union, I think I will fire .you." 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rodriguez testified that he was present in the shipping room with a group of employees of the respondent, Sheridan, Morino, Delgado, and Cunial, when Gerald Boldemann approached them and said, "What's the idea of joining the I. L. A."; that Sheridan in reply stated that maybe the employees wanted more money; and that Boldemann thereupon said that he had intended to give the employees a raise, but now since they joined the I. L. A. he would not. D'Amico testified that Parodi, the foreman, said that Gerald Bolde- mann was going to fire the employees who joined the Union and that he, Parodi, ought to crack D'Amico's head open for joining the Union. D'Amico further testified that Lydia Rivera and two other women employees told him they were quitting the I. L. A. because "the boss (referring to Gerald Boldemann) wanted the confectioners' union in the shop." The day after the above conversations a meeting was held in the plant during lunch period for the purpose of taking a ballot. All the employees except Foreman Parodi and Ercolini, Rodriguez, and D'Amico, voted. Ercolini, Rodriguez, and D'Amico refused to vote, but remained at the door of the meeting room protesting the taking of the ballot. The exact question voted upon is not clear, but the ballot resulted in a unanimous vote against the I. L. A. Rodriguez testified that Parodi told him that Gerald Boldemann called the meeting to hold an election. He testified further, that Gerald Boldemann stated, at the time of the election that the employees were to vote whether they wanted the Confectionery Union or the I. L. A. Ercolini and D'Amico testified that Gerald Boldemann was present at the meeting, and stated, in substance, that he did not want the I. L. A. in the plant as the employees properly belonged in the Confectionery Union and not in the I. L. A. The respondent contends that it did not attempt to influence, and was unaware of the activities of its employees in their choice of unions. Gerald Boldemann testified that he did not know the employees had signed the I. L. A. petition until some considerable time thereafter; that he did not know of the election meeting until he went in the pack- ing room, during his inspection of the factory, and saw the employees assembled, and that he did not know the result of the ballot until some- time later. He also denied making the statement attributed to him by Ercolini, or making any statement at the election meeting, or at any other time, concerning the selection of a union by the employees. However, Sheridan, a former employee, called as a witness by the respondent, testified that he secured the blank paper for the ballots from Gerald Boldemann ; that the latter was present in the meeting room before and after the balloting, and was told the result of the bal- lot in the meeting room. He testified, further, that he told Gerald BOLDEMANN CHOCOLATE COMPANY 1285 Boldemann the night before the meeting he was going to find out about the confectioners ' union . Louisa Barstowe , forelady , testified she as- sisted in passing out the ballots at the meeting, but denied that Gerald Boldemann , who was present before the actual balloting , made any statements concerning the selection of a union at the meeting or at any other time . Parodi denied the conversations attributed to him by D'Amico and Rodriguez . Lydia Rivera testified for the respondent, but did not deny the statement attributed to her by D'Amico. In resolving this conflict of evidence we must determine what is most consistent with the undisputed facts, namely , that all of the 11 employ- ees voluntarily joined the I. L. A.; that one and a half working days thereafter the entire group, except 3, voted at a meeting in the plant, at which Gerald Boldemann was present at least for a short time, against the I. L. A.; that Ercolini , D'Arnico, and Rodriguez , the 3 who retained their I. L. A. menmbership , refused to vote, and wore their union buttons , were the only employees subsequently discharged as set out below. Moreover, Gerald Boldemann 's testimony is contradicted, in part, by the respondent 's witness , Sheridan. We cannot reconcile the respondent 's position with the undisputed facts and the entire record. We believe that the events related by Ercolini , Rodriguez , and D 'Amico occurred substantially as testified by them. We find, that the respondent , through its officers and agents, by indicating to the employees the hostility of the respondent toward the I . L. A., influenced its employees against and interfered with their participation in the I. L. A., and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Discriminatory discharges and refusals to reinstate For some time prior to May 1937, Oscar Boldemann , the respondent's president , pursuant to instructions from its directors , had unsuccess- fully endeavored to liquidate or consolidate the business upon an acceptable basis. During the week ending June 25, 1937 , the directors decided to liquidate , and on that date shut down the plant and laid off all employees except the foremen and engineer . All employees were advised by card the next day that the plant would be closed down until further notice . Nevertheless all of the employees , except Ercolini, Rodriguez , and D 'Amico, either continued working or were recalled to employment before August 28, 1937 , at cleaning and dismantling the respondent 's machinery . At some time after June 25, 1937, the re- spondent abandoned the plan to liquidate and decided to resume opera- tions in smaller quarters . It moved about 70 per cent of its equipment to a plant about one -half the size of its former one. Manufacturing 187930-39-vol 13--82 1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations were begun about November 1, 1937, on a substantially reduced scale. Certain processes and machinery were elimipated and production curtailed about 60 per cent. This retrenchment, according to the respondent, necessitated a reduction in personnel. Gerald Boldemann stated that after checking over all the employees he dis- charged and refused to reinstate Ercolini, Rodriguez, and D'Amico because of all the employees those three, by reason of their lack of skill, efficiency, cooperativeness, and general ability, were the least valuable in the new set-up. Ottavio Ercolirni was first employed by the respondent in 1918, and with the exception of a short time in 1921, worked continuously until his discharge. During the period of his employment he received several raises and a bonus. Ercolini worked on the mills and the presses and, for more than 10 years, was in charge of the tempering kettles. At the time of his discharge he was earning $27 a week plus a bonus or extra compensation of about $3 a week which he had been receiving for about 10 years. He ranked fourth in seniority among the respondent's employees. Gerald Boldemann stated that the specific reasons for Ercolini's dis- charge were the latter's unclean habits; careless operation of machin- ery causing numerous break-downs and production of inferior prod- ucts; inability to get along with other employees; threatening em- ployees with a large knife; and constant arguing and bickering with D'Amico. Miguel Rodriguez, ranking third in seniority at the plant, was first employed by the respondent in 1916 or 1918. He served as general utility man, working on the roasters, mills, and tunnel and on other operations. Gerald Boldemann stated that Rodriguez was discharged because he was slow and spent too much time in the rest room working on cross-word puzzles. Sebastian D'Amico was first employed by the respondent in 1929, and worked with Ercolini until 1934 when he was laid off. He was rehired in 1936 and has seniority over only one employee, Bodorroco. D'Amico was Ercolini's assistant and also operated the coating ma- chines. Gerald Boldemann testified that D'Amico was discharged because he argued with Ercolini; was careless in the operation of the machines; and had little seniority. That his quarreling with Ercolini is a reason for D'Amico's discharge is contradicted by the fact that when D'Amico was laid off in 1934 he had worked with Ercolini for a number of years but when he was taken back in 1936, he was neverthe- less returned to work with Ercolini. Rodorroco, an employee first hired in 1930, was laid off in 1936, the year that D'Amico was taken back; but was taken back in November 1937. BOLDEMANN CHOCOLATE COMPANY 1287 In November 1937, the respondent refused to reinstate Ercolini, Rodriguez, and D'Amico to their former positions upon their request. They have failed since to find regular employment elsewhere. As we have stated Ercolini, Rodriguez, and D'Amico were the only production employees who refused to vote in the election, maintained their union affiliation, wore their union buttons in the plant, and were not rehired after the respondent's shut-down. The respondent has not consistently applied seniority. Although it assigned D'Amico's lack of seniority as one of the reasons for his discharge, it failed to consider the high seniority standing of Ercolini and Rodriguez. Inas- much as all the respondent's employees except Ercolini, Rodriguez, and D'Amico were given some work between June 25, 1937, when the respondent abandoned operations, and November 1, 1937, when it re- sumed production in its new quarters, we believe that on June 25, 1937, when the respondent discharged the three men it determined not to reemploy them. We are of the opinion that the union affiliation of the three men and not their alleged faults was the cause of their discharge. We find that the respondent, on June 25, 1937, discharged Ottavio Ercolini, Miguel Rodriguez, and Sabastiano D'Amico and thereafter refused to reinstate them to their former positions, because they had joined and assisted the I. L. A., and thereby discriminated in regard to their hire and tenure of employment, discouraged membership in the I. L. A. and I. L. W. U., and interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY We have found that the respondent has discriminated in regard to the hire and tenure of employment of Ottavio Ercolini, Miguel Rodriguez, and Sebastiano D'Amico, by discharging them on June 25, 1937, and by refusing them reinstatement thereafter. We shall, accordingly, order the respondent to reinstate them. Since we accept as true the respondent's contention that its retrenchment program necessitates the employment of less men than were employed prior to 1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 25, 1937, we shall order reinstatement to be effected in the follow- ing manner : All persons, not on the respondent's pay roll on Julie 25, 1937, and hired after that date, except Sam Guisto,2 shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If, even after this is done, there is not, by reason of a reduction in the force of employees needed, sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees, in accordance with the respondent's usual method of reduc- ing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the re- spondent's business . Those employees remaining after, such distribu- tion, for whom no employment is immediately available, shall be placed upon a preferential list prepared in accordance with the prin- ciples set forth in the preceding sentence and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions as such employment becomes available , and before other persons are hired for such work. The three men are also entitled to receive back pay. However, inasmuch as the Trial Examiner recommended the dismissal of the complaint as to them, the respondent will not be required- to pay them back pay from July 25, 1938, when the Intermediate Report was issued, to the date of this Decision.' Accordingly, we shall order the respondent to make them whole for any loss suffered by reason of their discharge by payment to each of them a sum equal to the amount which each normally would have earned as wages during the period from June 25, 1937, the date of the discrimination, to July 25, 1938, the date the Intermediate Report was issued, and from the date of this Order to the date of offer of reemployment or placement upon a preferential list as required in the preceding paragraph, less his net earnings 4 during such periods. a Guisto is an employee , who takes a customary lay-off each year from June to September. He will be considered on the pay roll of June 25 a Matter of E R Haffelfinger Co , Inc and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760. 411y "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L R. B 440. Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal , or other govern- ment or governments which supplied the funds for said work -relief projects. BOLDEMANN CHOCOLATE COMPANY 1289 Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. International Longshoremen's and Warehousemen's Union, Local 1-6, and Weighers, Warehousemen and Cereal Workers' Union, Local 38-44, are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondent, by discriminating in regard to the tenure of employment of Ottavio Ercolini, Miguel Rodriguez, and Sabastiano D'Amico, and thereby discouraging membership in International Longshoremen's and Warehousemen's Union, Local 1-6, and Weighers, Warehousemen and Cereal Workers' Union, Local 3814, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Boldemann Chocolate Company, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in the International Longshoremen's and Warehousemen's Union, Local 1-6, and Weighers, Warehousemen and Cereal Workers' Union, Local 38-44, or any other labor oi-ganiza- tion of its employees, by discharging or refusing to reinstate any of its employees or in any other mariner discriminating in regard to their hire or tenure of employment or any term or condition of their em- ployment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activ- ities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Ottavio Ercolini, Miguel Rodriguez, and Sebastiano D'Amico immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to the seniority and other rights and privileges formerly enjoyed by them, dismissing, if necessary, all employees hired since June 25, 1937, in the manner set, forth in the section entitled "The Remedy," above; and place those employees for whom employment is not immediately available upon a. preferential list and offer them employment as it becomes available, in the manner set forth in said section; (b) Make whole the employees named in paragraph (a) above for any loss of pay they will have suffered by reason of their discharge by paying to each of them, respectively, a sum of money equal to that which he would normally have earned as wages during the period from June 25, 1937, the date of their discharge, to July 25, 1938, the date of the Intermediate Report, and from the date of this Order to the date of the offer of reinstatement or placement upon the preferential list required by paragraph (a) above, less his net earnings during said periods, deducting, however, from the amount otherwise due him, monies received by him during said periods for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or govern- ments which supplied the funds for said relief projects; (c) Immediately post and keep posted for a period of at least sixty (60) consecutive days, notices in conspicuous places throughout its plant at San Francisco, California, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b), and will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; (d) Notify the Regional Director for the Twentieth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. MR. WILLIAM M. LEISERsox took no part in the consideration of the above Decision and Order. Copy with citationCopy as parenthetical citation