Boyer Bros., Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1969

176 N.L.R.B. 590 (N.L.R.B. 1969)

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