The Bato Co., Inc.

National Labor Relations Board - Board Decisions

May 5, 1964

146 N.L.R.B. 1343 (N.L.R.B. 1964)

THE BATO COMPANY, INC., ETC. 1343:
Employees may communicate directly with the Board 's Regional Office, 1200 Rialto•
Building, 906 Grand Avenue, Kansas City, Missouri , Telephone No. Baltimore
1-7000, Extension 731, if they have any questions concerning this notice or com -
pliance with its provisions.
The Bato Company , Inc. and Peter Brant and Joseph Allen,.
d/b/a Super Service Trucking Company and Enrique Morales..
Case No. 2-CA-9506. May 5, 19641
DECISION AND ORDER
On January 20, 1964, Trial Examiner C. W. Whittemore 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 Deci-
sion. Thereafter the Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor-
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members;
Leedom and Brown].
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 entire
record in this case, including the Trial Examiner's Decision, the ex-
ceptions and briefs, and hereby adopts the Trial Examiner's findings,:
conclusions, and recommendations.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as,
amended, the Board hereby adopts as its order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, The
Bato Company, Inc. and Peter Brant and Joseph Allen, d/b/a Super
Service Trucking Company, of New York, N.Y., its officers, agents,
successors, and assigns, shall take the action set forth in the Trial Ex-
aminer's Recommended Order 3
i The Respondent 's request for oral argument is hereby denied as , in our opinion, the-
record , including the exceptions and briefs , adequately presents the issues and the posi-
tions of the parties.
2 Harry Brant is the Respondent 's office manager and supervisor , the brother of Murray
Brant , active head of the Respondent , and performs the duties of Murray Brant while he
is away from the premises . We therefore find that Harry Brant is an agent of , and his
remarks herein are attributable to, the Respondent.
s The notice shall be amended by adding the following language to the first Indented
paragraph : "by discharging , refusing to reinstate , or in any other manner discriminating
against you in regard to hire or tenure of employment or any term or condition of
employment."
146 NLRB No. 167.
744-670-65-vol. 146--86
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on August 2, 1963, by the above-named individual the General
Counsel of the National Labor Relations Board on November 6, 1963, issued his
complaint and notice of hearing. On November 15, 1963, the above-named Re-
spondent answered the complaint. The complaint alleges and the answer denies that
the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1),
(3), and (4) of the National Labor Relations Act, as amended. Pursuant to notice
a hearing was held on December 9 and 10, 1963, before Trial Examiner C. W.
Whittemore.
At the bearing General Counsel and the Respondent were represented and were
afforded full opportunity to present evidence pertinent to the issues, to argue orally,
and to file briefs. Briefs have been received from both parties.
Disposition of the Respondent's motion to dismiss the complaint , upon which ruling
was reserved at the conclusion of the hearing, is made by the following findings,
conclusions, and recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Bato Company, Inc., is a New York corporation. Super Service Trucking
Company is a copartnership composed of Peter Brant and Joseph Allen, doing
business under the said name and style.
Bato and Super Service are a single, integrated enterprise and are herein referred
to as the Respondent. This enterprise is engaged in the wholesale business of manu-
facturing, selling, distributing, and transporting newsprint paper, with principal office
and place of business in Queens, New York.
The officers of Bato formulate and administer a common labor policy for the enter-
prise, and control the tenure, terms, and conditions of employment of employees of
both Companies.
During the year ending in April 1963 the Respondent manufactured, sold, trans-
ported, and distributed products valued at more than $500,000. Products valued at
more than $50,000 were shipped from the Respondent's plant in interstate commerce
directly to States outside the State of New York and in foreign commerce to foreign
countries.
The Respondent is engaged in commerce within the meaning of the Act.'
II. THE LABOR ORGANIZATION INVOLVED
Local 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America is a labor organization admitting to membership employees of
the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The chief issues raised by the complaint involve the employment terminations of
four employees: Ulises Rosado on May 31, James Stewart and John Harris on July 5,
and Enrique Morales on or about July 29, all in 1963.
The complaint alleges that the first three above named were unlawfully dismissed
because of their union activity and because they gave testimony at a representation
hearing conducted by the Board. It alleges that the Respondent fired Morales "to
conceal" its "motive for" the discharge of the other three, and "to make a plausible
argument for such discharge and to lend an air of legitimacy to such discharge."
While denying the commission of unfair labor practices, the Respondent's answer sets
out no affirmative claim as to why the four were terminated.
B. Relevant facts and conclusions
1. In general
Although it appears that at the time the Respondent was under contract with
another labor organization as the representative of its employees, in March of 1963
1 The above commerce findings rest upon the undisputed and unchallenged allegations
of the complaint.
THE BATO COMPANY , INC., ETC. 1345
Local 807 of the Teamsters began organizational efforts. Meetings were held out-
side the plant . In person and by letter Local 807 representatives made claim to an
official of the Respondent for recognition as the majority representative of the
employees . The demand was rejected . A petition for an election was filed with the
Board by Local 807. A Board hearing on the petition was held on May 6. At
this hearing Rosado, Stewart , and Harris were witnesses for the petitioning union.
Murray Brant, active head of both Companies , admitted as a witness that he attended
the hearing and that the three employees testified.
Shortly before this representation hearing Rosado , Stewart , and Harris were in a
group talking with a Local 807 representative just outside the plant entrance before
work. Harry Brant , office manager and brother of Murray Brant , came by them,
entering the plant along with Rosado . Brant asked Rosado who those "men over
there" were . The employee replied that they were from the "union ." Brant told
him: "Those who are involved in this Union , you are going to regret it." 2
On May 31 Rosado , after 13 years of employment by the Respondent , was sum-
marily discharged . On July 5 Harris and Stewart were dismissed.
2. Rosado 's discharge
Despite his long service with the Respondent , Rosado was suddenly discharged on
Friday, May 31 , by Murray Brant.
It is undisputed that Rosado left the plant shortly after noon the preceding
Friday, May 24 , with permission granted by his foreman , Alfred Levy . He left
because of an emergency call-his daughter 's illness. It is also undisputed-indeed
is corroborated by employee Morales-that because he was in a hurry he asked
Morales to punch out his card for him . Morales forgot to do so. Later in the
day, at 3 : 30, someone not identified by the record did punch his card, and that time
notation appears upon it.
During the morning of May 31 , which was a payday , Foreman Levy approached
Rosado and asked what time he had stopped working the preceding Friday. Rosado
told him "at 1:00 p.m ." Levy then asked him why his timecard for that week showed
a "four o'clock" punch out. (Actually , the card , placed in evidence by the Respondent,
shows that it was punched at 3:30. ) Rosado promptly called over Morales and
asked him if he had not requested him to punch out for him when he left. Morales
replied that he had "forgot" to do so.
Later in the day Rosado was called into the office by Murray Brant who asked him
if he had punched out at 4:30 the previous Friday. Rosado replied that he had asked
Morales to punch out for him when he left, and did not know who did punch it at the
later hour . Brant then told him that if he did not reveal the name of the one who
had punched it he would discharge him. Rosado -answered that he could not do so-
a reasonable reply since he was not in the plant at the time.
Rosado was permitted to return to work briefly and was then recalled to the office.
Morales was there at the -time , and denied that he had punched out at the later hour
but said that he had forgotten to do so at the time Rosado requested him to.
Brant thereupon discharged Rosado, and he has not been recalled.
The Trial Examiner is of the opinion that General Counsel , by credible evidence,
established a prima facie case of unlawful discharge in the case of Rosado. He was
warned by Harry Brant before the R -hearing of probable retaliation . It is admitted
that after this warning he was observed by Murray Brant to testify on behalf of the
Union . Shortly thereafter he was dismissed, being given a flimsy and unrealistic
reason , after service of 13 years.
The Respondent obviously could not and did not claim that Rosado falsified his
timecard . Counsel for the Respondent made but a short comment upon his own
case in his brief, ascribing Rosado's discharge as due "to an irregularity in the punch-
ing of his timecard." It is considerably short of reasonable , in the opinion of the
Trial Examiner , for an employer to discharge after long service an employee for
a matter so minor as the one here advanced , particularly when it is clear that the
" irregularity" was not of the employee 's own performance.
Credible evidence establishes that it was common practice for one employee, at
the end of the shift, to punch out for others in his group.
2 The finding as to Brant's warning rests upon the credible testimony of Rosado,
Brant's denial that he made this remark is not credited . After considerable floundering
as to .fixing the time he finally admitted the occasion , and seeing two strangers talking to
Rosado and Stewart . He also claimed that he voluntarily asked Rosado if they were
"from the Union," and that the employee told him it "was nothing , forget about it."
Furthermore Brant's testimony on several matters is inconsistent and contradictory.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. In short, the Trial Examiner is convinced and finds that the card "irregularity"
served as a convenient pretext for ridding the plant, unlawfully, of an employee
known to be an adherent of, and a witness for, Local 807. The unlawful discharge,
as well as Harry Brant's warning, constituted interference, restraint, and coercion of
employees in the exercise of rights guaranteed by the Act.
3. The discharges of Stewart and Harris
These two employees were discharged on July 5. Together with Rosado, they
were seen by Harry Brant, just before the representation hearing, in consultation with
union representatives and, like Rosado, testified for the Union after Brant's warning.
General Counsel contends that they were dismissed to discourage union adherence
(as Harry Brant in effect warned them they would be) and because they testified at
a Board proceeding.
On the other hand the Respondent claims that the two were discharged because
they failed to comply with a company rule, first posted in June, announcing that em-
ployees who, by July 4, had not cleared up garnishments against their wages would
be "terminated."
General Counsel does not urge that the rule itself was unlawful, but claims dis-
crimination in its application. That discrimination occurred is well established by
company records and the testimony of company officials. On July 5, the deadline,
in addition to Stewart and Harris, there were at least three other employees against
whom garnishments were outstanding: Morales, Ray, and Newell, the contracting
Union's steward. None of the last-named three were dismissed on that date. Fur-
thermore, credible evidence shows that sometime after July 5 the Respondent itself,
through Foreman Levy, paid off the debts owed a finance company by employees
Newell and Ray.
This plain discrimination in application of the posted rule is without reasonable
explanation by Levy or any other management representative. Levy's lame claim
that "a couple of guys approached me to loan them money" is not only lacking the
support of either Ray or Newell, but is inconsistent with recorded facts. Accord-
ing to Levy himself, checks in evidence, and the testimony of a disinterested repre-
sentative of the finance company, Levy did not loan money to the two employees, but
actually paid their debts.
The Trial Examiner is convinced, and concludes and finds, that employees Stewart
and Harris were discriminatorily discharged on July 5 to discourage union adherence
and because they testified for the Union at a Board proceeding. Such unlawful dis-
crimination constituted interference, restraint, and coercion of employees in the exer-
cise of rights guaranteed by Section 7 of the Act.
4. The discharge of Morales
As noted above, company records show an outstanding garnishment against
Enrique Morales on July 5, yet he was not then discharged. It was still outstanding
on July 12, when he left for a 2-week vacation, at which time he was not told he was
fired for the garnishment-as a nondiscriminatory application of the rule would have
required.
On July 18, before Morales returned from his vacation, Murray Brant was inter-
viewed by a Board agent concerning the discharges of Harris and Stewart and, ap-
parently, his rule about the garnishments.
When Morales reported back for work, on or about July 29, the foreman merely
told him there was no work for him but that he should come back the next week.
He did so. Again Levy told him there was no work for him. He had not, up to-
the time of the hearing, been recalled to work. And according to his credible testi-
mony he was never told by anyone representing management that he was being fired
or refused work because of his garnishment.
As a witness, Levy claimed that he did not fire Morales on July 5 because he was.
told his account had been settled and that when he found out to the contrary, a week
or so later, he "had to fire him." The Trial Examiner can credit no part of Levy'&
testimony. It is not only self-contradictory in many respects, but conflicts with the
testimony of Murray Brant. Had there been any truth in his unsupported claim that
"within a week" of July 4 he found that Morales had not satisfied his debt and "had'
to fire him," it is clear that the employee would have been "fired" before his vacation.
Nor does Levy make any claim that he ever told Morales he was fired for any
reason.
In short, the Trial Examiner concludes that the credible evidence, and the sur-
rounding circumstances as to which there is no dispute, sustain General Counsel's
allegation that Morales was refused employment, and effectively discharged, on or
THE BATO COMPANY, INC., ETC. 1347
about July 29 in order to "conceal" the Respondent's unlawful motive in discharging
employees Stewart and Harris. It is apparent that Murray Brant, after interrogation
on July 18 by a Board agent concerning his firing the two for what he contended
was failure to abide by his rule, decided that to lend credence to this pretext it would
:be necessary to apply it to Morales as well. And for his own reasons it appears that
it was decided simply to refrain from letting him return to work, instead of telling
him outright that he was fired.
By such maneuver of association it is the opinion of the Trial Examiner that the
Respondent must be found to have similarly violated the same sections of the Act as
in the case of Stewart and Harris, Section 8(a)(1), (3), and (4) of the Act. It is
so concluded and found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
It will be recommended that the Respondent offer employees Rosado , Stewart,
Harris, and Morales immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may have suffered by reason
of the discrimination against them, by payment to each of them of a sum of money
equal to that which he would normally have earned as wages from the date of the
discrimination to the date of the offer of reinstatement, less his net earnings during
said period. The backpay provided for shall be computed in accordance with the
Board formula set out in F. W. Woolworth Company, 90 NLRB 289, and with in-
terest thereon as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716.
Since the unfair labor practices committed by the Respondent were of a nature
which violates the policies of the Act, it will be recommended that it cease and desist
from infringing in any manner upon the rights guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America, is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discharging employees to discourage membership in and activity on behalf
of the above-named labor organization, and because they gave testimony under the
Act, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) and (4) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it will be recommended that the Respondent, The Bato
Company, Inc., and Peter Brant and Joseph Allen, d/b/a Super Service Trucking
Company, its officers, agents, successors, and assigns, shall: 3
'In the event the Board adopts this Recommended Order the above paragraph shall
be amended to read:
Upon the entire record in this case, and pursuant to Section 10(e) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that the Respondent, its officers, agents, successors, and assigns , shall;
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discouraging membership in Local 807, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, or in any other labor
organization of its employees by discharging, refusing to reinstate, or in any other
manner discriminating against employees in regard to hire or tenure of employment
or any term or condition of employment.
(b) Discharging or otherwise discriminating against employees because they
give testimony or file charges under the Act.
(c) In any other manner interfering with, restraining, 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 employees Rosado, Stewart, Harris, and Morales immediate and full
reinstatement to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them whole for any loss
of earnings suffered by reason of the discrimination against them, in the manner set
forth in the section above entitled "The Remedy."
(b) Upon request, make available to the Board or its agents, for examination and
copying, all records necessary to analyze the amount of backpay due and the right of
reinstatement under terms of this Recommended Order.
(c) Post at its Queens, New York, plant, copies of the attached notice marked
"Appendix." 4 Copies of said notice, to be furnished by the Regional Director for
the Second Region, shall, after being duly signed by the Respondent's authorized
representative, be posted by the Respondent immediately upon receipt thereof, in
conspicuous places, including all places where notices to employees are customarily
posted, and be maintained by it for a period of 60 consecutive days. Reasonable
steps shall be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the date of
the receipt of this Trial Examiner's Decision, what steps it has taken to comply
berewith.5
41n the event that this Recommended Order be adopted by the Board the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a 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 be adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to conduct our labor relations in compliance with the
National Labor Relations Act, we notify you that:
WE WILL NOT unlawfully discourage you from being members of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America,
or any other union.
WE WILL NOT in any way discriminate against you because you file charges or
give testimony under the National Labor Relations Act.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in union
activities.
WE WILL offer reinstatement to Ulises Rosado, James Stewart, John Harris,
and Enrique Morales, and will give them backpay from the time of their
discharge.
THE BATO COMPANY, INC. AND PETER BRANT AND JOSEPH
ALLEN, D/B/A SUPER SERVICE TRUCKING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
UNITED AUTOMOBILE, AIRCRAFT, ETC., LOCAL NO. 1198 1349
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 745 Fifth
Avenue, New York, New York, Telephone No. 751-5500, if they have any question
concerning this notice or compliance with its provisions.
United Automobile , Aircraft and Agricultural Implement Work -
ers of America , AFL-CIO, and its Local Union No. 1198 and
American Metal Products Company (Tennessee Division)..
Case No. d6-CB-180. May 5, 1964
DECISION AND ORDER
On February 12, 1964, Trial Examiner William J. Brown issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices, and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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 Ex-
aminer's Decision, the Respondents' exceptions and brief, and the en-
tire record in the case, and hereby adopts the findings,' conclusions,,
and recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
AFL-CIO, and its Local Union No. 1198, their officers, agents, and
representatives, shall :
1. Cease and desist from : restraining or coercing employees of
American Metal Products Company (Tennessee Division) in the ex-
' The Respondents have excepted to the credibility findings made by the Trial Examiner.
It Is the Board 's established policy, however , not to overrule a Trial Examiner 's resolu-
tions with respect to credibility unless , as is not the case here , the clear preponderance
of all the relevant evidence convinces us that the resolutions were incorrect . Standard
Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 862 (C.A. 3).
146 NLRB No. 150.