Calip Dairies, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1973

204 N.L.R.B. 257 (N.L.R.B. 1973)

CALIP DAIRIES, INC.
Calip Dairies, Inc., and Cosmopolitan Ice Cream Co.,
Inc. and Israel Cruz . Case 29-CA-3004
June 19, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 27, 1973, Administrative Law Judge
Ramey Donovan issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed the
brief earlier submitted to the Administrative Law
Judge.
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 Deci-
sion in light of the exceptions and briefs and has
decided to affirm the rulings, findings, and conclu-
sions 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 Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Calip Dairies, Inc., and Cos-
mopolitan Ice Cream Co., Inc., Brooklyn, New York,
its officers, agents , successors , and assigns , shall take
the action set forth in the Administrative Law Judge's
recommended Order.
'Respondent in its exceptions contends that the Administrative Law
Judge erred in resolving certain questions of credibility with respect to the
testimony of Smith and Markman . After careful review of the record we
conclude that the Administrative Law Judge's credibility findings are not
contrary to the clear preponderance of all relevant evidence . See Standard
Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (CA. 3, 1951)
DECISION
RAMEY DONOVAN, Administrative Law Judge: On August
25 and September 5, 1972, Israel Cruz, an individual, filed
a charge and an amended charge against Calip Dairies, Inc.,
and Cosmopolitan Ice Cream Co., Inc., herein Respondent
or the Company. The complaint issued on September 29,
1972, alleging violations of Section 8(a)(1) and (3) of the Act
by reason of interrogation and the layoff of employee Cruz.
Respondent's answer denies the commission of the alleged
unfair labor practices. The hearing was held in Brooklyn,
New York, on November 13, 1972.
FINDINGS AND CONCLUSIONS
I JURISDICTION
257
Respondent Calip, at all times material, is a New York
State corporation with its office and place of business at 888
Jamaica Avenue, Borough of Queens, city and State of New
York, where it is engaged in the wholesale sale and distribu-
tion of ice cream and related products.
Respondent Cosmopolitan, at all times material, is a New
York State corporation with its office and place of business
at 888 Jamaica Avenue, Borough of Queens, city and State
of New York, where it is engaged in the distribution of ice
cream and maintenance of ice cream freezers and related
equipment.
Calip and Cosmopolitan, at all times material, are affiliat-
ed businesses, with common ownership, officers, directors,
and operators, and constitute a single integrated business;
and the aforementioned directors and operators formulate
and administer a common labor policy regarding employees
for both Companies.)
Calip and Cosmopolitan are an employer engaged in
commerce within the meaning of the Act.
Ice Cream Drivers and Employees Union, Local 757,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
Local 757 or the Union, is a labor organization within the
meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Calip has been in business approximately 20 years and
has been unionized about 12 years. According to Parish,
secretary-treasurer and business agent of Local 579, the
Union has had a collective-bargaining contract with Calip
for "more than ten" years. The current applicable contract
to which Calip is a party is an industry-type contract for the
term of May 1, 1971, to April 30, 1974. The contract pro-
vides that:
This agreement shall constitute the entire under-
standing between the parties... .
The contract unit is:
This agreement shall cover all employees of the Com-
pany except [ ] and except office and clerical
employees, outside salesmen, canvassers, merchandise
men, professional employees, engineers, supervisors, as
defined in the Labor-Management Relations Act, and
all employees who are presently covered by contracts
with other unions.
The contract also provides that:
... each employee covered by this Agreement shall be
required as a condition of employment to become a
member of the Union on and after the 30th day follow-
ing the date of execution of this agreement, or the
commencement of employment, whichever is the latest.
i These facts are pleaded in the complaint and admitted in the one answer
filed for both Company Respondents . In this decision I shall use the term,
Respondent , referring to both Companies in the single integrated business.
204 NLRB No. 49
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within three (3) days after hiring a new employee cov-
ered by this agreement , the employer must notify the
Union in writing thereof.
According to Smith, manager of both Calip and Cosmo-
politan, the latter Company has been in existence approxi-
mately 8 years. Both Companies occupy the same premises
and, as earlier stated, they have common ownership, offi-
cers , directors , and operators and constitute a single inte-
grated business. Smith testified that "the distinction
between Calip and Cosmopolitan is that "Calip is the route
drivers and salesman" and "Cosmopolitan is the office help,
warehousemen , and installation men." Respondent intro-
duced into evidence two lists. One is captioned:
Calip Dairies, Incorporated
Seniority List
Drivers Starting
[10 names] [dates]
Sales Department Starting
[3 names] [dates]
The other list is captioned:
Cosmopolitan Ice Cream Co.
Seniority List
Date of Layoff
Date week ending
(office) L5 names/
Lone of the names ( Kassoff
Ldates/
7 /72 8/18/72
(Freezer ) L5 names/
Ltwo of the names / Gaton
Ldates/
3 /72 8/25/72
Namur 7 /72 8/25/72
( Installer ) Ed Thomas 6/72 8/25/72
Israel Cruz 6/72 8/25/72
The employees on the Calip list are paid by Calip checks
and the employees on the Cosmopolitan list are paid by
Cosmopolitan checks. Smith testified that none , of what he
referred to as the Cosmopolitan employees, are members of
the Union and apparently this situation has existed for some
time since some of the employees in the "Freezer" opera-
tion, shown on the Cosmopolitan list, above, have been
employed since 1969 and 1970.
Parish, the union secretary-treasurer, had also been vice
president of the Union since 1962. He testified that until the
instant proceeding he had never heard of Cosmopolitan.
Carlino, currently vice president of the Union and union
business agent for Respondent's operation, testified that he
first heard of Cosmopolitan approximately 3 years ago. This
occurred in the course of a visit to Respondent' s premises
by Carlino. Carlino saw an unfamiliar employee at the
plant. Carlino spoke to the man and learned that he was
Cohan, a route driver.2 Upon Carlino's inquiring about his
union status, Cohan produced a card of a Teamster local
other than Local 757. Carlino then spoke to Lipitz, coowner
of Calip. Lipitz said Cohan was employed by Cosmopolitan
and that there was a contract with another Teamster local.3
Carlino replied that he had never heard of Cosmopolitan:
that Local 757 had a contract with Calip; that Cohan was
performing Local 757 work and was obliged to become a
member of Local 757. Cohan was still employed at the time
of this hearing. His name, "Jerry Cohan," appears on the
Calip seniority list, above. According to Carlino, other than
the Cohan incident, the name, Cosmopolitan, has never
arisen between him and Respondent. Although Local 757
has a shop steward who is listed as a driver since 1963 on
the Calip list, above, there is no evidence of what he did or
did not do regarding employees of Respondent working on
the common premises, such as seven freezer employees and
installers , who were not members of the Union, other than
the fact that he said nothing to Respondent or the employ-
ees about the situation.
B. Israel Cruz
Cruz secured a job with Respondent on June 2, 1972. He
secured his job through the Geneva Employment Agency
and that agency had given him an employment referral slip
to Calip. Smith, manager of Respondent, hired Cruz as a
driver at $110 per week. Initially, Cruz was assigned to help
driver Verdell Alphabet to deliver ice cream boxes to stores
that were customers of Respondent. This work involved
delivering and installing ice cream boxes, removing the box-
es or compressors in other situations, and related tasks.'
About the middle of July, Alphabet quit or was discharged.'
Cruz then became the regular driver of the truck used in
installing and removing ice cream boxes and he received a
$5-a-week raise. The truck he drove bore the name of Calip
Dairies.
Respondent's seniority list shows that an employee
named Thomas was, like Cruz, hired in June 1972. Both
names bear the month and year, "6/72," but no day of the
month. Cruz testified that he was hired June 2. Thomas did
not testify. Since Alphabet's employment was not terminat-
ed until the middle of July, Respondent apparently had
three men listed as "installers" in June and until about the
middle of July. When Alphabet left and Cruz became the
driver, Thomas worked with Cruz as a helper. He was paid
$5 a week less than Cruz' $115. As driver, Cruz drove the
truck and, with Thomas, installed and removed ice cream
2 "Cohen" in the transcript but "Cohan" on the Company's seniority list
in evidence
3 In the instant case, no claim is made that Cosmopolitan has a contract
with another union Respondent asserts that Cosmopolitan is nonunion.
4 As we have seen, Cruz and Thomas were listed on the seniority list
introduced by Respondent as "Installers." In installing a box , Cruz credibly
testified , "I was supposed to check if the box was working right or wrong and
if it had to be some kind of electrical work done, I have to call my boss and
tell him this box is not working right, and he used to send an electrician to
repair it ." Thus, while it is apparent that Cruz was not an electrician or a
refrigeration repairman, he delivered the box, installed and hooked it up, and
observed whether or not it was operating correctly.
s Smith testified that Alphabet was discharged . The record does not show
the reason.
CALIP DAIRIES, INC.
boxes.
Cruz was not satisfied with the $5 raise and the $115-
a-week salary that he received as the driver of the installa-
tion truck. He spoke to Smith around the latter part of July
about a further raise. Smith told him not to worry, "you are
going to get a raise ." 6 Soon thereafter, around the first of
August, Smith left for 2 weeks Army reserve duty. Upon
Smith's return, about August 15, Cruz asked him about the
raise . Smith said, "Don't worry, you will get the raise."
One day, evidently August 23, Wednesday, Cruz states
that he went into Respondent's office area and in one of the
rooms he saw a poster that read, "Local 757, I.B.T. [Interna-
tional Brotherhood of Teamsters]." This is the first time that
Cruz had ever been in, or had looked into, the room.? Cruz
states, "so I just decided to call up and find out if they [the
Union] were representing Calip Dairies." He telephoned the
Local 757 office on August 23. A female answered the tele-
phone and he stated his interest. She told him to come to
the union office and gave him directions. Cruz then spoke
"to the man in charge [of the work at the plant] by the name
of Michael" and asked if he could be off for half a day.
"Michael" said yes. The exact time of day when this oc-
curred does not appear in the record. However, since, on the
following day, August 24, Cruz worked from about 8:30
a.m. to 4:30 p.m., his half day "off" on August 23 probably
began at about noon and he then travelled to the union
office.
When Cruz arrived at the union office on August 23, he
told Grace Tabert, the office manager of Local 757 to whom
he had previously spoken on the telephone, that he was a
driver for Calip. He was introduced to Parish and was asked
how long he had been working for the Company. Cruz said
about 3 months. Tabert then telephoned Respondent. Al-
though Cruz' description of the telephone conversation be-
tween Tabert and the Company and between Parish and the
Company is necessarily of a limited nature, the description
is basically consistent with the more detailed description
testified to by Tabert. According to Cruz, "she called and
she was told to wait, and she waited and waited . . . and she
got hold of somebody there . . . and she told Mr. Parish to
come to the telephone, and he . . . had a conversation."
Cruz filled out a union application while he was in the union
office.
Tabert testified that her first contact with Cruz occurred
when he telephoned on the morning of August 23. Cruz told
her that he was working for Calip and would like to join the
Union. She told him to come to the office and fill out an
application. When the latter came to the office, she asked
him when he had commenced work. He could not remem-
ber the exact date, so, as a matter of routine, she telephoned
Calip and, after identifying herself, she asked to speak to the
bookkeeper.8 A man then got on the telephone and, when
asked, identified himself as Smith? Tabert asked, "when did
6 Smith testified that he told Cruz regarding a raise that "we will speak
about it." Smith also testified that Cruz was a good worker. I credit Cruz
testimony regarding the raise.
r On this particular day, August 23, Cruz had been working in the plant
unloading a truck-trailer full of ice cream . He testified that he had never been
aware that there was a Local 757 shop steward at Respondent 's plant
8 Tabert testified that an employee must be employed a certain length of
time before he can join the Union.
259
Israel Cruz start to work for them." According to Tabert,
whom I credit, Smith said that he did not know Israel Cruz.
Tabert said she understood that Cruz "does work there."
Smith replied, "Oh, that is right, we had a man for a couple
of weeks by that name. I will have to look up the record and
we will call you back." Tabert said she would wait. She
waited. Another voice then spoke and said that Smith was
called "to another wire" and will call you. Tabert said she
preferred to wait. She waited. A third voice then told her
that Smith had been called out of the office because his wife
had called him to report that something had happened to
their child. Tabert at this point gave the telephone to Parish,
explaining that she was "having a problem."
Parish testified that Tabert gave him the telephone be-
cause she was having difficulty in verifying when Cruz'
employment had commenced. Parish regarded this as a sim-
ple, routine inquiry and the reason for the inquiry was, as
he testified, "We could have somebody come in the office"
to join the Union who had been working only 2 or 3 weeks
"and it would be ridiculous for us to get involved until he
[the employee] is there over 30 days." Parish identified him-
self to whomever was on the telephone at Respondent's
office and was told that there had been some kind of an
accident. Parish said that he did not understand the difficul-
ty since all that was wanted was the date when Israel Cruz
commenced working. According to Parish, the person on
the telephone said that they did not know anyone by that
name . Parish then hung up.
Smith admits that Tabert telephoned him on August 23,
identified herself, and asked about Cruz, "how long he was
employed by us or something like that ....I think what
happened was when she asked this, she said was he em-
ployed by Calip, I believe I said no, and then she asked me
another question and . . . . I had a call from my wife and
I asked her to hold on a second." According to Smith, he
did not get "back to the union" on this matter and this was
the sum total of his conversation 10 Smith states that he went
home and found "that my son was okay, there were no
problems, I then called Mr. Lipitz in Philadelphia" and told
him that the Union had "asked me how long Mr. Cruz was
employed." According to Smith, Lipitz said that he would
call the Union and would "take care of it." Smith states that
Lipitz is "president of the company" and that Lipitz and
Smith's brother are "the owners of the corporation." Smith
offered no explanation why it was necessary for him to call
Lipitz in Philadelphia on August 23 to report that the Union
had asked the simple question of how long Cruz had been
employed by Respondent.
According to Cruz, on August 24 when Cruz reported for
work at the plant he was told that he was to drive a route
truck for "Henry." Although Cruz had worked for "Henry"
before, he did not know his full name. In any event, on
August 24, Cruz drove an ice cream delivery truck for Hen-
ry and was accompanied by the latter as they made the
rounds to Henry's customers. At the end of the day, around
4:30 p.m., they returned to the plant. Henry told Cruz that
Smith want to see Cruz in the office. Cruz thereupon went
to the office to see Smith.
9 Smith is the manager.
10 As indicated, I believe that Tabert's description of the conversation with
Smith is the more accurate and complete.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cruz states that in the office Smith asked him why had
he joined the Union. Cruz replied that he had found out that
it was a union shop for drivers and he wanted to be in the
Union in order to have more protection. Smith said, "Well,
here is your pay check, sign it ." Cruz endorsed the check
and Smith gave him the cash amount.' i Smith told Cruz that
he did not need him anymore. Cruz then said that he was
going to take the case to the Labor Board.
The identity of "Henry" appears in the record. Henry
Markman was a witness called by Respondent . Markman
testified that he is self-employed and his company is Mark
Smith Sales Corp. He garages his trucks at Respondent's
premises and he purchases merchandise through Respon-
dent. Markman states that around the middle of August his
driver employee was to have an operation so Markman had
asked Smith to lend him a driver while Markman's driver
was incapacitated. Smith told him that he was going "to
chop" his payroll, but Markman asked him to hold off
because Markman had no one to drive his route and Mark-
man did not drive a truck. Smith agreed.'2 Markman states
that "about the last two weeks" in August Cruz drove for
Markman 2 days a week. Cruz agrees that he worked with
Markman "about three or four times" in the last few weeks
he was employed by Respondent. On August 24, when Cruz
drove for Markman, he was not paid by the latter, but at the
end of the day he received his paycheck from Respondent
which was for the week through Friday, August 25. As far
as appears, he was also paid by Respondent on the prior
occasions when he worked for Markman.
Smith testified that on August 24 in the office when he
terminated Cruz, he told him that it was a bad season and
that business was bad and the Company did not have the
work. The witness was asked whether he had mentioned the
Union or whether Cruz had mentioned the Union. His an-
swer was:
A. All I recollect was after I-after-at the end after
I had laid him off, he said he was going to the Labor
Relations Board.
Markman testified that on August 24 when he and Cruz
returned to the plant, Markman went into the office. Smith
asked Markman to send in Cruz. Markman then told Cruz
that Smith wanted to see him. Markman was present during
the ensuing conversation. According to Markman, Smith
told Cruz that business had slowed down "and there is going
to be a layoff of a few people at that time." Markman states
that he heard nothing in the nature of a remark about a
union card except that, at the end, Cruz said that he was
going to the Labor Board.
Although, as we shall see , Smith testified that, the day
before this August 24 terminal conversation with Cruz,
Smith had terminated three other employees because of
poor business , including Thomas, Cruz' helper , Smith does
not claim that he made any mention of other layoffs or
terminations to Cruz. Markman, however, as described
above, attributes to Smith on August 24, a remark to the
11 This cashing of a paycheck for Cruz and probably others was not unusu-
al. However , Thursday , August 24 , was not the regular payday. Friday was
payday.
2 It is not claimed that Smith had told Markman how many employees
he was going "to chop" from the payroll or which employees.
effect that there is going to be a layoff of several people "at
that time."
I do not credit Markman on this aspect and it is my
opinion that he was endeavoring to be helpful to Smith,
albeit misguidedly, in my opinion, in view of both Smith's
and Cruz' testimony regarding the August 24 conversa-
tion.13 I credit Cruz' version of what Smith said to him.
Markman, although referred to in Respondent's brief as
a disinterested witness, did not impress me as such. A strong
factor in this appraisal is the close business or personal
relationship between Markman and Smith in that Smith
allowed Markman to use one of Smith's employees, Cruz,
for 4 days on Markman's business while the payroll expense
of the employees was borne wholly by Smith's Company.
This occurred during the weeks in August 1972 when Re-
spondent asserts that its business was bad. It does not ap-
pear from the instant record that Markman' s ice cream
enterprise maintained a place of business other than
Respondent's premises.
Indeed , Smith allowed Markman to use Cruz as a driver
without charge on August 24 although Smith states that he,
Smith , would have terminated Cruz on August 23, but for
the fact that Cruz had been given the afternoon off on the
23rd. Smith states that he would have asked Cruz to work
for Markman on August 24, the day after it is claimed Cruz
would have been terminated.
Respondent contends that Cruz was terminated for eco-
nomic reasons , including a business decline, and that the
fact that Cruz went to the Union on August 23 was not the
reason for the termination since Respondent had made the
decision to terminate prior to August 23.
According to Smith, a major cause of Respondent's de-
cline in business was a cutback in welfare payments in New
York City "at the end of last year [1971]." This affects
purchase of Respondent's products because, Smith states,
over 50 percent of Respondent 's business "is based in low
socio-economic area." Smith said that "I think we are down
in the seven-months period including the summer season
through October, we were down 52,000 units from the year
before." Smith also stated that business has worsened since
August 24, 1972.14
If welfare payments were cut at the end of 1971 and if this
adversely affected Respondent's business, as Smith claims,
I believe that the effect would have been manifested within
a short time and before July and August 1972. Welfare
recipients, in my opinion, experienced a rapid turnover of
their cash on hand and by the nature of their situation such
people have no reserve funds or other expendable resources.
However, in June 1972, Respondent had in its employ a
driver-installer named Alphabet," and it hired Cruz on
13 If I did credit Markman 's testimony regarding Smith's remarks about a
layoff in the August 24 conversation , Smith 's alleged statement that "there
is going to be a layoff of a few people at that time [August 24]" is in the
present or future tense . This is not consistent with Smith's testimony that he
had already terminated or laid off three employees on August 23, the previ-
ous day . Presumably , if Smith mentioned other layoffs he would have said
to Cruz on August 24 that he had already laid off three employees the day
before
14 No business records were introduced into evidence by Respondent to
support these various statements of Smith
The record does not show when Alphabet was hired The very limited
employment data that Respondent introduced into evidence does not even
include Alphabet's name
CALIP DAIRIES, INC. 261
June 2 and Thomas in the same month as installers. Al-
though Alphabet was discharged about the middle of July,
it is not claimed that this was because of lack of work.
Smith further testified that prior to the time that Cruz was
hired on June 2, 1972, Respondent had used an outside
service , Danny's Trucking Company, to perform installa-
tion work and used this service "even during Mr. Cruz'
hire." Apparently Danny's Trucking and Respondent's own
installers took care of the installation and removal of used
ice cream boxes since the distributors of new boxes had their
own trucking arrangements.
According to Smith, he has been manager of Respondent
a little over 2 years. For the first year he states that he used
outside trucking service exclusively for delivery and instal-
lation. He then decided to institute Respondent's own in-
stallation service. There was an installation truck on hand
that had been acquired in the past when Respondent had
bought out some other company's ice cream route. Smith
states that thereafter he decided that it was not economi-
cally sound for the company to perform its own installation
work.
As I view the foregoing testimony, it indicates that Re-
spondent instituted its own installation service around the
latter part of 1971 since for the first year in whichiSmith was
manager he used an outside service exclusively. As late as
June 1972, Respondent' s use of its own installers was appar-
ently feasible enough to prompt it to hire Cruz and Thomas
as installers in addition to Alphabet. Moreover, the situa-
tion was healthy enough to lead Smith to give Cruz a wage
increase in mid-July and, at the end of the month and in
August, Smith assured him of a further raise.
Smith testified, however, that in the latter part of July
1972, shortly before he was to go on 2 weeks' military duty,
he discussed with his brother and Lipitz, coowners of Re-
spondent, the fact that business was bad; the discontin-
uance of the use of Respondent's installation truck; and a
layoff. It was decided to wait until Smith returned from
military duty and "to see what happens."
On Saturday, August 19, 1972, Smith states that it was
decided to lay off Cruz and others but to "use the people
[who were to be laid off] through Wednesday." Cruz did not
work on Saturdays, but he worked Monday, Tuesday, and
a half day on Wednesday, August 23.
The seniority list that Respondent compiled for the hear-
ing and introduced into evidence shows that an office em-
ployee named Kassoff was hired "7/72" and laid off the
week ending "8/18/72"; two employees who worked in the
plant "freezer," Gaton, hired "3/72," and Namm, hired
"7/72," are shown as laid off the week ending "8/25/72";
"two installers," Thomas and Cruz, hired "6/72," are shown
as laid off the week ending "8/25/72."
Smith states that he terminated Namm on August 23 at
about 11 a.m. Namm had been hired as a summer employee.
Gaton worked until the end of working hours on August 23
and then was told he was terminated. Smith states that the
time when Thomas was terminated on August 23 "must
have been about 12:30."
Although Cruz was working at the plant for half a day the
morning of August 23 and was not out on installation work,
nothing was said to him about termination or layoff. Smith
states that he did not see Cruz and did not know that Cruz
had been given the afternoon off and had left the plant.
Respondent's counsel asked Smith:
Q. If he [Cruz] had worked the full day would he
have received his notice of layoff?
A. Yes, he would have.'6
We come now to the telephone conversation on August
23 between Smith and Tabert and, as previously stated, I
credit Tabert's testimony. When asked the date when Cruz
started to work, Smith denied knowing Cruz. When pressed
on this point, Smith said that a man by that name had
worked a couple of weeks for the Company. He said he
would check his records and would call back. Smith never
called back and Tabert, who was spoken to by two other
persons in Smith's office on this occasion, was not able to
secure the simple information of when Cruz commenced
working for Respondent.
It is quite apparent that Smith was being evasive and
untruthful about Cruz. Respondent's organization was a
small one and, in my opinion, Smith knew very well who
Cruz was and knew that he had been working for Respon-
dent since sometime in June 1972. Even when Smith learned
that his cl ild was all right, a matter that he states caused
him to go home on August 23, he did not call Tabert and
give her the Cruz information or have someone in his office
furnish the information she had requested. Nor does Smith
claim that he called back on the following day, August 24.
Further, Smith had said nothing to Tabert about Cruz' ter-
mination or impending termination. Smith testified that he
had decided on the termination on August 19 and would
have terminated Cruz on August 23 but for his absence.17
If Smith's testimony in this hearing is to be believed, he
knew not only the foregoing but also knew, when he spoke
to Tabert, that he was going to terminate Cruz on August
24 since allegedly only Cruz' absence on August 23 had
prevented termination on the 23rd. The brief and simple
statement to Tabert, consistent with Smith's testimony in
the hearing, would have been in substance, "Cruz has
worked for us since about June 1972 but is being laid off for
lack of work and he would have been laid off today except
that he took the afternoon off."
Since one of the Respondent's positions herein is that
Cosmopolitan is nonunion and that Local 757 has never
said anything about the nonunion employees, Smith might
have been expected to have told Tabert, in the foregoing
conversation, in the alternative or in addition to what I have
posed above, that Cruz worked or had worked for Cosmo-
politan and therefore was not covered by the union contract
and that an employee's hiring date was relevant only to
employees covered by the contract. '
Nothing of any of the foregoing obvious alternatives,
16 It is, in my opinion, a strange situation that the supervisor had no
knowledge by about noon on August 23 that Cruz was to be laid off that day
pursuant to Smith's alleged August 19 decision and that the supervisor would
have given Cruz permission to take the afternoon off if Cruz' layoff was
impending or if it had been indicated in any way.
I Even Smith's version of what he said to Tabert does not include any
mention of Cruz' layoff or termination as having been decided upon or
impending . Yet, if the termination situation was as testified to by Smith, I
believe that, on August 23, he would have mentioned it to the Union on the
theory that Cruz' termination rendered or would render moot any inquiry of
the Union as to when he had been hired
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which I have suggested , was said although all are consistent
with Smith 's testimony and Respondent 's position in this
hearing . Instead , Smith , as we have seen , was highly evasive
and untruthful in his dealing with the Union concerning
Cruz on August 23. Moreover, while Tabert's inquiry could
have been readily answered if Respondent's present version
regarding Cruz is to be believed , Smith not only was evasive
and untruthful but he evidently viewed the situation as
alarming . On the same day as the union call , Smith tele-
phoned Lipitz, coowner of the Company, who was in Phila-
delphia , and reported that the Union had called and has
asked how long Cruz was employed. To Smith, in my opin-
ion, the union inquiry about Cruz' date of hire indicated
that Cruz had gone to the Union and had joined that organi-
zation. In fact, the next day Smith asked Cruz why he had
joined the Union and Cruz told him why.
It is my opinion that Smith 's pronounced evasion and
untruthfulness on August 23 about Cruz in the conversation
with the Union and the subsequent call to Lipitz about the
matter were due to apprehension that Cruz, in going to the
Union and joining the Union, was potentially or actually
opening up a serious and costly prospect.
Respondent had a single integrated ice cream business
enterprise on its premises , with one ownership , control, and
management . With Respondent designated as Calip Dair-
ies, it had a contract with the Union that covered " all em-
ployees of the Company ," excluding designated categories
of employees . "Freezer" employees and "Installers" were
not among the exclusions . But for some time , months and
years, Respondent had been employing seven or so employ-
ees as freezer and installer employees at its plant , albeit
paying them with checks of Cosmopolitan Ice Cream Com-
pany , one of the corporate names under which Respondent
conducted its single enterprise . None of these last-men-
tioned employees were members of the Union although the
contract provides that the Employer, within 3 days after
hiring an employee covered by the contract, "must notify
the Union in writing thereof ." There is no claim or evidence
that this was done regarding the freezer and installer em-
ployees. The contract also provides that "the Company
agrees not to contract out work customarily performed by
its employees." This provision might have some relevance
to the contracting out of installers ' work such as that per-
formed by Cruz who was an installer and who also drove
a truck. The contract wage rates are much higher than the
wages paid to Thomas and Cruz ($110 and $115 per week)
since in 1972 "general help" under the contract ranged from
$4.84 to $5.04 per hour after 6 months and a "porter" re-
ceived $4.645 to $4.845 per hour. Drivers received higher
rates. Also, under the contract, specified payments to union
pension and welfare funds by the Employer were required.
It is my opinion that Respondent terminated Cruz on
August 24 because he had gone to the Union and joined that
organization and had thereby potentially involved the
Union in the area of the nonunion employees who, like
Cruz, were on Respondent's payroll. When the Union tele-
phoned Smith on August 23 and asked how long Cruz had
been working, this alarmed Smith since the union inquiry
indicated that Cruz had gone to the Union, and the Union,
as a result, was getting into the area of the nonunion em-
ployees like Cruz and others who were on Respondent's
payroll.
If Smith had told the Union the truth as to when Cruz had
been hired, it would be clear that not only would Cruz be
qualified for union membership but the Union might ask
why it had not been notified of Cruz' hire, as provided by
the contract, and why Cruz had not been required to join
the Union within 30 days of his hire in compliance with the
contract. This situation, in turn, could lead to union inquiry
and probing as to other nonunion employees that might be
on Respondent's payroll. And if, as Smith could reasonably
apprehend, the Union demanded that the contract provi-
sions be applied to Cruz and other nonunion employees not
excluded by the terms of the contract, this would entail a
major cost increase to Respondent. This prospect or appre-
hension of the results that could flow from Cruz' joining the
Union would be a very reasonable apprehension since the
contract unit was "all employees," except such people as
office clericals , engineers , professionals , supervisors, and so
forth.
Respondent contends that the part of its integrated busi-
ness and the employees thereof that it pays with checks of
Cosmopolitan Ice Cream Company, such as Cruz and
Thomas and the freezer employees, is nonunion and has
been such for about 8 years . It also asserts that the Union
has been aware of the fact since one of Respondent's em-
ployees is the union steward and the steward never raised
any question about the situation . I would agree that Re-
spondent for a number of years and in August 1972 had
employees on its payroll, paid by Cosmopolitan checks, who
were not members of the Union although these employees
were apparently covered by the term "all employees" in the
contract unit.
Parish, secretary-treasurer of the Union and an officer
and official thereof for many years, testified that he had
never heard of Cosmopolitan, and by necessary implication,
this indicates unawareness of a Cosmopolitan payroll and
employees of Respondent thereon. Carlino, union vice pres-
ident and business agent , testified that the only time he had
heard of Cosmopolitan was abut 3 years ago. He noticed an
unfamiliar employee on the premises and asked about his
union status. Lipitz, an owner of Respondent, said that the
employee was employed by Cosmopolitan. Carlino rejected
this as a justification for the employee's lack of a Local 757
card and said that the employee was performing work em-
braced by the Union. The employee was required to join
Local 757. Moreover , despite its contention in the instant
case about employees paid by Cosmopolitan checks and
their nonunion status, Respondent has not claimed that it
has or has had an agreement or understanding with the
Union for the exclusion from the contract unit of freezer
and installer employees paid by Cosmopolitan.18
In any event, whatever the past situation between Re-
spondent and the Union regarding certain rank-and-file
employees and the latter's nonunion status, there was noth-
18 The Union as the collective-bargaining agent for a specified and appro-
priate contract unit of employees has a duty of fair representation and it is
doubtful that it alone or in conjunction with the Employer can arbitrarily
exclude from the unit and the contract any employees covered by the con-
tract unit terms and not excluded therefrom by reason of being office or
supervisory employees and so forth
CALIP DAIRIES, INC.
ing to prevent the Union from organizing the nonunion
employees. Even if, arguendo, the Union had knowingly not
applied the contract to certain employees (which I doubt
and which the evidence does not establish), there was noth-
ing to prevent the Union, in August 1972, from starting to
either organize the employees or to assert that the contract
already embraced them. In my opinion, the terms of the
contract would make the latter the more likely approach
and the Respondent would be hard put to successfully resist
such a contention. The Union could invoke not only the
contract terms but also its own rather potent economic mus-
cle and other attributes in persuading Respondent, a rela-
tively small employer, that Teamster Local 757 was correct
in accepting Cruz into union membership and presumably
other nonunion employees as well. A union does not lightly
ignore potentialities for increased membership and dues
under an existing union-shop contract.
Aside from the timing of Cruz' discharge on the day
following the call from the Union to Smith concerning Cruz,
Smith, when he terminated Cruz, asked him why he had
joined the Union, and, after Cruz replied, he was terminat-
ed. Though not in itself determinative, the foregoing fact is
not without some significance. If an employer asks an em-
ployee why he had damaged the truck he was driving and
the employee replies that he had swerved to avoid a child
in the road, and the employer thereupon hands the employ-
ee his check and terminates him, the employee and others
would have some reason to believe that the discharge was
attributable to the fact that the employee had damaged the
truck.
In discharging Cruz because he had joined the Union and
thereby involved the Union in what Respondent viewed as
the potential opening of a troublesome and costly "can of
worms" with respect to Cruz and other hitherto nonunion
employees, as earlier delineated, Respondent, in my opin-
ion, hoped that Cruz' termination would nip the matter in
the bud and eliminate it. I find that the discharge was in
violation of Section 8(a)(3) and (1) of the Act and that the
interrogation of asking Cruz why he had joined the Union,
followed by his discharge, was, in context, coercive and in
violation of Section 8(a)(1) of the Act.
I have rejected Smith's testimony that Cruz would have
been discharged on August 23 for economic reasons or that
he was discharged on August 24 for economic reasons. I do
not credit Smith.
The evidence as to Namm, Gaton, and Thomas, who are
not alleged discriminatees, shows that they were discharged
on August 23. Namm was a summer employee who had
mentioned to Smith that he might quit, and both Namm and
Gaton worked in the freezer. This was not Cruz' job or
department. Thomas was an installer helper. He did not
drive a truck as well as install, as was the case with Cruz.19
Although Respondent hired no replacements after the four
19 In his brief, the General Counsel suggests that the layoff of Thomas [on
August 23] may well have occurred" after Smith received the telephone call
from the Union on August 23. However this contention may rank on the scale
of suspicion, the fact is that Smith testified that he discharged Thomas at
about 12 30 p.m., and the evidence indicates that the Union call was at some
undetermined time in the afternoon . There is no other evidence on this point
since Thomas was not a witness for either party and there is no corroboration
or contravention from Thomas as to the time of his discharge There is no
263
discharges, Smith states that Torres, whom Smith describes
as a supervisor over Cruz and who was later a salesman,
drove Cruz' truck a few times after Cruz' discharge 20 At
another point, Smith stated that the truck "is full of junk"
and that Danny's Trucking handles the installations.
The evidence that Respondent presented in the record
with respect to a decline in its business and that it was
economically more profitable to use an outside trucking
service, to wit, Danny's Trucking, consisted of testimony by
Smith and did not consist of Respondent's business books
or records in evidence. While the General Counsel did not
call for or subpena such books and records, this fact is not
dispositive since the economic defense was an affirmative
defense of Respondent's and on which it had the burden of
proof in the light of what was, in my opinion, the General
Counsel's prima facie case 21
I was not impressed by the reliability of Smith as a witness
since, in my opinion, on the matter of his August 23 conver-
sation with the Union, he had not told the truth either to the
Union or as a witness, and the credited account of that
incident indicates a willingness on Smith's part to be un-
truthful and to say what he believed suited his Company's,
and, presumably his own, interest.
However, the fact that Smith terminated two freezer em-
ployees and an installer helper before Smith was aware of
Cruz' union activity supports the conclusion that Smith ter-
minated three employees for nondiscriminatory reasons the
day before Cruz was terminated. But the evidence in this
case, in complete context, does not persuade me that Smith
had decided to terminate Cruz on August 23 or that the
termination on August 24 was not motivated by the fact that
Cruz had gone to the Union. If, in addition to the union
activity reason, an economic reason was present that would
have led to termination on August 25, the end of the work-
week, or at some later date, proximate or otherwise, this
would not obviate the violation. It has been held that:
The issue before us is not, of course, whether or not
there existed grounds for discharge of these employees
apart from their union activities. The fact that the em-
ployer had ample reason for discharging them is of no
evidentiary basis to find that Thomas was discharged after the Union called
Smith concerning Cruz
20 Although Torres drove the truck after Cruz' discharge on August 24, the
record does not show whether this driving occurred on August 25, Friday,
or on August 28, Monday, or some other dates between August 24 and the
hearing.
Zi Speaking of the adverse inference rule, the Court of Appeals of the
District of Columbia in International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW), 459 F.2d 1329, 1338
(C A D.C., 1972), has stated
First, it is important to realize that the applicability of the rule in no way
depends on the existence of subpoena compelling production of the
evidence in question The theory behind the rule is that, all other things
being equal, a party will of his own volition introduce the strongest
evidence available to prove his case. If evidence within the party's con-
trol would in fact strengthen his case, he can be expected to introduce
it even if it is not subpoenaed Conversely, if such evidence is not
introduced, it may be inferred that the evidence is unfavorable to the
party suppressing it.
The Supreme Court has observed that "The production of weak evidence
when strong is available can lead only to the conclusion that the strong would
have been adverse " Interstate Circuit v. U S, 306 U S. 208, 225-226 (1939).
Similarly, an adverse inference has been drawn where only limited documen-
tary evidence had been introduced into evidence by a Respondent. Welcome-
American Fertilizer Co and Welcome Fertilizer Co, 169 NLRB 862, 870
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moment . It was free to discharge them for any reason
good or bad, so long as it did not discharge them for
their union activity. And even though the discharges
may have been based upon other reasons as well, if the
employer was partly motivated by union activity, the
discharges were violative of the Act.22
Although I have found that Cruz was discharged illegally on
August 24, 1972, it is possible that he would have been
terminated, at some date thereafter for lawful reason,
whether the span be a day, days, weeks, or months. This
aspect, if raised, can appropriately be considered and dis-
posed of as a compliance matter in which documentary and
other evidence could be introduced.
CONCLUSIONS OF LAW
Respondent is an employer within the meaning of the Act
and is engaged in commerce within the jurisdiction of the
Board.
By coercively interrogating and discharging Israel Cruz
on August 24, 1972, because of protected union activity
Respondent has violated Section 8(a)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that it cease and
desist therefrom and take affirmative action to remedy the
unfair labor practices and effectuate the policies of the Act.
ORDER23
Respondent Calip Dairies, Inc., and Cosmopolitan Ice
Cream Co., Inc., its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating any employees in violation
of the Act.
(b) Discouraging membership in, or activity regarding,
Local 757, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any other
union by discharging an employee because of such member-
ship or activity.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer Israel Cruz immediate and full reinstatement to
his former job or, if the job no longer exists, to a substantial-
ly equivalent job, without prejudice to his seniority or other
rights and privileges.
(b) Make whole Israel Cruz for any loss of earnings he
may have suffered by reasons of the discrimination against
him from August 24, 1972, to the date of the offer of rein-
statement, less intermediate earnings, and with the compu-
tation of backpay being on a quarterly basis and with
interest at 6 percent.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security records, timecards, personnel re-
cords and reports, and all other records necessary or useful
in analyzing the amount of backpay due and the right to
reinstatement and employment under the terms of this Or-
der.
(d) Post at its plant at Jamaica Avenue, Borough of
Queens, New York City, New York, the attached notice
marked "Appendix." 24 Copies of said notice, on forms pro-
vided by the Regional Director for Region 29, after being
duly signed by Respondent's representative shall be posted
by the Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter in
conspicuous places where notices to employees are custom-
arily posted. Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by other
material.
(e) Notify the said Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
22 N.L. R.B. v. Great Eastern Color Lithographic Corp, 309 F.2d 352, 355
(C.A. 2, 1962), cert. denied 373 U.S 950 ( 1963). See also N.L.R.B. v. Murray
Ohio Manufacturing Co., 326 F.2d 509, 517 (C A 6, 1964); N L.R.B v. The
West Side Carpet Cleaning Co., 329 F 2d 758 (C A. 6, 1964), N LR B. v. The
Princeton Inn Company d/b/a Princeton Inn, 424 F 2d 264, 265 (C A. 3, 1970).
23 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.
24 In the event that the Board's Order is enforced by a Judgement of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which the parties were represented by their
attorneys, it has been found that we have violated the Na-
tional Labor Relations Act in certain respects and we have
been ordered to take certain remedial action.
WE WILL NOT coercively question any employee re-
garding membership in or activity regarding Local 757,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
rights guaranteed to them by Section 7 of the National
Labor Relations Act.
WE WILL OFFER reinstatement to his former job or to
a substantially equivalent job Israel Cruz and will pay
him any wages he may have lost by reason of our illegal
discharge of him on August 24, 1972.
CALIP DAIRIES, INC. 265
CALIP DAIRIES , INC., This is an official notice and must not be defaced by
COSMOPOLITAN ICE CREAM CO., anyone.
INC. This notice must remain posted for 60 consecutive days
(Employer) from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
Dated By this notice or compliance with its provisions may be direct-
(Representative) (Title) ed to the Board's Office, 16 Court Street, Fourth Floor
Brooklyn, New York 11201, Telephone 212-596-3750.