The Eastern Beef & Provision Co.

National Labor Relations Board - Board Decisions

Jun 11, 1975

218 N.L.R.B. 404 (N.L.R.B. 1975)

404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Eastern Beef & Provision Co. and Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO. Case 38-CA-1361
June 11, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 29, 1974, the Board issued its Decision
and Order 1 in this proceeding finding, contrary to
the Administrative Law Judge, that Joseph and
Edmund Zosky, the sons of Respondent's president,
Albert Zosky, were agents of Respondent and that
their conduct and knowledge of union activities were
chargeable to Respondent. In the Board's view, the
reversal of the Administrative Law Judge on the
agency question went to the very heart of the issues
raised by the complaint and, accordingly, the Board
deferred ruling on the unfair labor practice allega-
tions of the complaint in order to permit the
Administrative Law Judge to reevaluate the evidence
in light of this finding.
On March 29, 1974, Administrative Law Judge
Sidney D. Goldberg issued the attached Supplemen-
tal Decision in this proceeding in which he reaf-
firmed his conclusion that the complaint should be
dismissed in its entirety. Thereafter, the General
Counsel filed exceptions to the Administrative Law
Judge's Supplemental Decision and a supporting
brief and Respondent again filed a brief in opposi-
tion to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
1 208 NLRB 756.
SUPPLEMENTAL DECISION
SIDNEY D. GOLDBERG, Administrative Law Judge: On
August 10, 1972, I issued a decision in the above case
dismissing the complaint in Coto. The dismissal of the
allegations of the complaint concerning the discharge of
Leo Martin was based on the ground that the General
Counsel had failed to show, by a fair preponderance of the
evidence, that Respondent had any knowledge of Martin's
organizational activities at the time of,his discharge and
that, therefore, the discharge could not have been to
discourage his membership in, or activities on behalf of,
the Union. This finding, that Respondent had no knowl-
edge of Martin's union activities, was based upon a
supporting finding that neither Joseph Zosky nor Edmund
Zosky, the sons of President Albert Zosky, either or both of
whom may have had some knowledge of Martin's views on
the subject of unionization, was -a supervisor or agent of
Respondent Company. It was in conversations between
Martin and the two younger Zoskys that statements were
made which, according to the General Counsel and the
Charging Party, constituted both knowledge to Respon-
dent concerning Martin's protected activities and some of
the interference, restraint, and coercion alleged in the
complaint to have been committed by Respondent. Based
upon this same finding that neither Joseph nor Edmund
Zosky was a supervisor or agent of Respondent, no
findings were made concerning whether these conversa-
tions constituted interference, restraint, or coercion.
The General Counsel filed broad exceptions to the
Decision, including exceptions to the failure to find that
Edmund and Joseph Zosky were supervisors and the
agents of the corporation, that their conduct was imputable
to Respondent, and that their knowledge of Martin's union
views and activities was that of Respondent. The Union
filed similar exceptions. The Board, in its Decision and
Order issued January 29, 1974,1 found that both Joseph
and Edmund Zosky were agents of the Respondent and
that their conduct and knowledge of union activities were
chargeable to the Respondent. It did not find that they
were supervisors. Accordingly, the Board remanded this
case to me for reevaluation of the evidence and for my
findings in the light of the Board's determination on this
point.
Introduction
The Board's Decision notes that the parties were
permitted to make a complete record on all issues during
the hearing and that, therefore, no further hearing was
necessary.
As set forth in my Decision, Martin testified that, during
the final week in December 1971, he and several other
employees discussed the fact that their hours were being
cut and that their wage rates were unsatisfactory; that they
decided to join the Meat Cutters; and that Martin
volunteered to obtain blank cards for use in obtaining an
election. Martin further testified that on Friday, December
31, he went to the union hall, signed an authorization card,
and obtained a supply of blank cards; that during the
218 NLRB No. 62
1 208 NLRB 756.
EASTERN BEEF & PROVISION CO. 405
weekend he obtained signatures on several of the cards;
and that on Monday, January 3, he gave the Union a
sufficient number of signed cards to justify the filing ,of a
petition for an election. It was at the close of this day that
he was discharged.
In addition to the evidence relating to the discharge of
Martin, the record contains testimony concerning several
incidents in which, it is claimed, Albert Zosky, Joseph
Zosky, and Edmund Zosky interrogated employees con-
cerning their union activities and threatened to close the
plant, thereby interfering with, restraining, or coercing
employees in violation of Section 8(a)(1) of the Act. The
incidents involving statements by Albert Zosky all oc-
curred after he had actually learned about the union
activities of Martin.z Since the Board's determination that
Joseph Zosky and Edmund Zosky were Respondent's
agents was for the purpose of imputing to Respondent
knowledge of Martin's union activities before his discharge
and making it responsible for their conduct, that determi-
nation would have no effect on my findings concerning
conduct by Albert Zosky after he admittedly knew about
those activities. The allegations of interference, restraint,
and coercion by statements of Albert Zosky were dismissed
on their merits and, since this disposition would not be
affected by the Board's determination that Joseph and
Edmund Zosky were agents of Respondent, those dismiss-
als are adhered to and will not be reevaluated herein.
Interference, restraint, and coercion
The allegations of the complaint relating to interference,
restraint, and coercion by Respondent, through Joseph and
Edmund Zosky, are: (a) that Joseph Zosky "interrogated"
employees at the plant, on January 3, 1972; (b) that
Edmund Zosky "interrogated" employees at the plant on
January 3 or 4, 1972; and (c) that on January 3, at the
plant, Joseph Zosky "threatened to close the plant and lay
off employees if the Union won the election."
The record shows that the statements alleged to
constitute both the "interrogation" and the "threat" by
Joseph Zosky occurred in the same conversation which he
had with Martin early in the day on January 3. It was
described, in my Decision, as follows:
There is evidence of a brief, very general conversa-
tion between Martin and Joseph Zosky in which
reference was made to a union. Martin testified that
Joseph Zosky came to him in the plant and asked him
what he "thought about the union"; that he answered
that he thought it was a good idea; that Zosky replied
that "if the plant went union they would have to lay off
one or two of the employees"; and that he responded
that it would be "better for two or three people to make
a living than four or five of us to starve to death."
Zosky's version of the conversation, although he
insisted his recollection was vague, was that Martin
said he was going to join, or try to join, the union; that
he asked why, and Martin answered that he "had to
a As noted in my Decision, a petition for an election was filed by the
Charging Party on or about January 14, and an election was thereafter held
which the Union lost. It was in connection with this representation
proceeding that Albert Zosky is alleged to have made the statements in
make more money somehow." To this, Zosky testified
he said: "If that's what you want to do, then I guess
that's what you got to do."
Joseph Zosky testified that he could not remember
that date of this conversation but thought it might have
occurred a week, or "maybe two weeks" before Martin
was discharged. Martin, however, fixed this conversa-
tion as having occurred on January 3, at the time of the
morning coffeebreak, and the General Counsel, in his
brief, accepts it as the date.
If the statement attributed by Martin to Joseph Zosky,
an agent of Respondent, was made as Martin testified, it
would constitute a threat of loss of employment violative of
Section 8(a)(1) of the Act. In assessing the probability of
the discussion having occurred as Martin testified, howev-
er, it must be noted that there is no evidence that Joseph
Zosky, Edmund Zosky, or Albert Zosky, prior to this
conversation, had seen or knew about union cards being
distributed or signed. Moreover, there is nothing in the
record that would support an inference that any of them
had received any indication of organizational activity.
Accordingly, there would be no probable basis for Joseph
Zosky to put the question to Martin as Martin testified he
did. On the other hand, it was Martin who had very
recently begun the union activity with his visit to the union
hall on the preceding Friday and his solicitation of
signatures during the weekend. It seems likely, therefore,
that Martin was thinking about the Union on Monday
when he 'talked with Joseph Zosky. Based upon the
probabilities, and the demeanor of the witnesses while
testifying, I find that the conversation between Joseph
Zosky and Martin followed the lines described by Zosky
and that it was Martin who first referred to the Union.
Zosky's "why?" to Martin's statement cannot be character-
ized as coercive interrogation since it was no more, in
context, than a casual inquiry. Furthermore, when Martin
gave his need for money as his reason, Zosky responded
permissively, as set forth in his testimony. Accordingly, I
fmd that the General Counsel has not proven that
Respondent, in this statement by Joseph Zosky, interfered
with, restrained, or coerced employees.
The complaint also alleges that, at the plant on January 3
or 4, 1973, Respondent, by Edmund Zosky, interrogated
employees "concerning their own and/or other employees'
union membership, activities and desires."
Will Roy Singleton testified that he had a conversation
with Edmund Zosky in which Zosky asked him whether he
had signed a union card; that he answered "I don't
remember"; and that Zosky replied, "It would be best if
you didn't because we don't want no union in here."
Edmund Zosky denied that he had talked with Singleton
about the Union. On, both direct and cross-examination,
Singleton fixed the date of this exchange as "in late
January." The variance between "January 3 ' or 4," as
alleged in the complaint, and "late January," as fixed by
Singleton, is too great to justify a finding on this incident
question . The other conduct by Albert Zosky which is claimed to constitute
interference,, restraint, and coercion was his grant of a wage increase to
employee Lutes on January 7, 1972, after he knew about the organizing
activity.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and still afford Respondent the adequate notice to which it
was entitled.3 In any event, as stated in my Decision,
Singleton testified that he had been shot in the head and
that he had difficulty in remembering. In view of Edmund
Zosky's denial4 and the variance between pleading and
proof, it must be concluded that the General Counsel has
failed to establish, by a fair preponderance of the evidence,
that Respondent committed the unfair labor practice as
alleged in the complaint.
Compton testified that "about the middle of January"
Edmund Zosky asked him whether he was "trying to get
into another union" and that he answered in the negative.
He testified that the office clerk was present .5 Zosky
testified that he recalled no such discussion.
Even if the query was addressed to Compton, who was a
member of the Teamsters Local 627, and is interpreted as
interrogation concerning his activities on behalf of the
Amalgamated Meat Cutters or about organizational
activities in general, the variance between the date set forth
in the complaint and the date fixed by Compton is too
great to justify a finding. Moreover, I doubt that it reaches
the level of coercive interrogation or that it would justify
the issuance of a remedial order.
The discharge of Leo Martin
Before detailing and evaluating the evidence concerning
the events leading to Martin's discharge, it is necessary to
point out that the record shows beyond dispute that,
whether Martin actually drank or was drunk on the job, he
was a heavy drinker away from the job. He admitted that
he never ate breakfast. It may reasonably be concluded,
therefore, as a matter of judicial notice, that he must have
inevitably brought to the job the aftereffects of his
drinking. Several of his fellow employees, in addition to
Albert Zosky, testified to the strong odor of alcohol on his
breath and to the tremor in his hands. Martin admitted
3 The General Counsel's motion, at the close of the entire case, to
include Edmund Zosky with Albert and Joseph Zosky in the allegation of
par. 4(c) of the complaint that Respondent `threatened to close the plant
and lay off employees if the Union won the election" would be insufficient,
even if granted nuns pro tune, to Justify a finding. The testimony of Singleton
makes no reference to plant closure, layoff of employees, or the election.
4 The General Counsel's statement, in his brief, that Singleton's
testimony was corroborated by employees Compton and Morris is
Inaccurate as far as this incident is concerned. Compton testified to an
independent incident involving him and Edmund Zosky which is discussed
below. Morns' testimony makes no reference to any statement by Edmund
Zosky.
5 Betty Bierly, the office clerk, testified that "sometime earlier" she heard
Albert Zosky suggest that Respondent's third driver join the Teamsters
because the other drivers were members of that union. She testified that,
aside from this incident, she never heard Albert Zosky discuss unions She
was not questioned specifically about the incident involving Compton and
Edmund Zosky.
6 The conflicts between the testimony of Albert Zosky and Martin
concerning the precise times of day when certain things occurred are, in my
opinion, unimportant. Thus, whether it was at 8_a.m., as Martin testified, or
about 9 a.m., as Albert Zosky testified, when Albert Zosky made his
customary survey to see that all the necessary elements of the plant were
functioning, is unimportant. That this appearance by Zosky on the plant
floor was in the morning is important but there is no dispute on this point.
Similarly, whether it was between 3:30 and 4:30 p.m. when Martin left the
plant, as Albert Zosky testified, or it was between 4 and 4:30 p.m., as Martin
testified, is also unimportant. That Martin left without stopping at the office
to see Zosky is important but this, also, is undisputed
that he had been warned, albeit with some other employ-
ees, about the increased risk of injury from the sharp
knives and power tools used in their work if their faculties
were dulled by liquor.
This background, together with Martin's specific admis-
sion that he had been drinking until after 11 p.m. the night
of Sunday, January 2, and that he had no breakfast before
reporting for work at 7 a.m. on Monday, January 3, must
be kept in mind in evaluating the conflicting testimony of
Albert Zosky and Leo Martin concerning the events of
January 3.
Albert Zosky testified that early in the day6 he noticed
that Martin's hands were trembling, that Martin had a
strong odor of alcohol on his breath, and that his eyes were
bloodshot. Zosky testified that he told Martin that he was
making mistakes in the work he was doing and reminded
him that some of his recent errors had cost the company
money.? Albert Zosky also testified that he again observed
Martin at his work at 1:30 or 2 p.m. and that he thought
that the odor of alcohol on Martin's breath was stronger.
At this time, he testified, he told Martin to stop at the
office and see him before leaving the plant. Martin testified
that, although Albert Zosky was near him in the plant
more than once that day, Zosky never spoke to him and
did not direct him to stop at the office on his way home.8
Martin also testified that, as he passed the office on his way
out of the plant, he saw Albert Zosky seated at his desk but
that he did not stop.
Albert Zosky was not certain, in his testimony, whether
he had telephoned Martin's home or sent a messenger, but
it is undisputed that Martin did receive the message to call
Zosky at the plant and Martin testified that he tried to do
so. This undisputed effort by Zosky to have Martin talk
with him strongly supports Zosky's testimony that he
directed Martin to stop and see him before leaving for the
day-9
7 Martin admitted having made some errors and Parks , a butcher who
worked beside him, testified that Martin made more mistakes than should
have been made by a man of his experience.
8 Albert Zosky testified twice: during the General Counsel's presentation
when he was called as an adverse witness, and during the defense. On his
first appearance , he testified that in the morning he told Martin to see him
before leaving that day and that, in the afternoon, he reminded Martin of
his earlier direction. On defense , he testified as set forth above. It is not
necessary to determine which version is correct since I find that Albert
Zosky directed Martin to see him before leaving for the day. Despite this, as
well as some other discrepancies in Zosky's testimony , consideration of his
testimony as a whole, together with my observation of his demeanor as a
witness, convinces me that, although he was excitable and sometimes
dogmatic, he was trying to tell the truth as well as he could recall it. Martin's
testimony, on the other hand, that Albert Zosky never spoke to him that day
is inconsistent with the letter of dismissal , discussed below . Moreover,
Martin's personal interest in the outcome of this case is obvious . On these
grounds, and from my observation of his demeanor while testifying, I do not
find him to be a credible witness.
9 I find additional corroboration for Albert Zosky's testimony on this
point in the text of the letter of discharge, the final paragraph of which
reads: "If any questions you are to get in touch with me." If Zosky had
discharged Martin for his organizational activities , there would seem to be
no purpose in his inviting Martin to put any questions to him and it would
be an unlikely invitation. On the other hand, Martin testified that Zosky,
when he hired him, said he didn't really need hum and Martin also testified
that Zosky had warned him and other employees about drinking without
disciplining them. These earlier acts of indulgence , the conversation at the
time of Martin's hire, and the absence of disciplinary action following
(Continued)
EASTERN BEEF & PROVISION CO.
The argument of the General Counsel and the Charging
Party: That Respondent had notice of Martin's organiza-
tional activities before it discharged him, and that,
therefore, his discharge constituted discrimination violative
of Section 8(a)(3) of the Act, is based on unacceptable post
hoc reasoning . The mere fact that Respondent discharged
Martin after it had learned about his organizational
activities does not compel the conclusion that it discharged
him because of those activities. Furthermore, it is so well
established as to require no citation of authority that an
employer's knowledge of organizational activity by an
employee does not give that employee immunity against
discipline for cause.10 The real question in all such cases is
whether the asserted reason for such discipline was only a
pretext and whether the real reason was the employee's
organizational activity.
Based upon the record, and the demeanor of the
witnesses while testifying, I credit Albert Zosky's testimony
that he instructed Martin to stop and see him before
leaving for the day" and I find that Martin's failure to
follow that instruction was the real reason for the
termination of his employment.12 This being so, there is
nothing in this record - certainly no proof of union
animus 13 - that would justify an inference that Martin's
failure to stop was only a pretext and that Respondent's
Zosky's earlier warnings, all suggest the possibility that the implication of
this message was that, if Martin called and gave assurances of reform, he
might be reinstated. I do not draw the inference that this was in Zosky's
mind - such inference would be speculative - but I do find that the
expression m this part of the letter of dismissal corroborates Zosky's
testimony that his purpose in instructing Martin to stop at the office was so
that be could talk to him.
10 See Sweetheart Plastics, Inc. etc., 209 NLRB 776 (1974).
11 The determination that a witness is credible , with its consequent
determination that another witness who gave conflicting testimony is not
credible, is difficult to rationalize . -This determination cannot be limited or
dictated by mechanical computation of the number of internal contradic-
tions or inconsistencies in the testimony of the credited witness and a
determination of credibility is sometimes justified notwithstanding conflicts
with other credited evidence. Having seen and heal d both Albert Zosky and
Leo ]Martin and having considered the testimony , as a whole, of each of
407
real reason for discharging Martin was his organizational
activities.
Accordingly, I find that the General Counsel has failed
to establish, by a fair preponderance of the evidence, that
Respondent discriminated against Martin to discourage his
membership in the Union. The allegation in the complaint
that it did so must, therefore, be dismissed.
Conclusion
In accordance with the Board's Decision and Order, I
have reexamined and reevaluated the evidence in this case
in the light of the Board's finding that Joseph and Edmund
Zosky are agents of Respondent whose conduct and
knowledge of union activities are chargeable to it. The
Board's Decision and Order, and conclusions set forth in
this Supplemental Decision require that Conclusion of Law
4 be changed to read as follows:
"4. Albert Zosky, Joseph Zosky, and Edmund Zosky
are agents of respondent within the meaning of Section
2(13) of the Act."
but they do not require any change in the Order which I
have heretofore recommended.
them, where they conflict I credit Zosky over Martin.
12 I make this finding despite Albert Zosky's testimony that he laid off
Martin "Because he was an alcoholic and he ruined merchandise for me,"
While the record shows that these were the basic causes underlying Zosky's
problem with Martin and, therefore , they were so stated by Zosky, I am
convinced, and find, that the immediate cause of Martin 's termination was
his failure to comply with Zosky 's direction to stop at the office before
leaving for the day. Accepting, as I do, Zosky's testimony as a whole, the
conclusion is inescapable that these were the matters Zosky intended to
discuss with Martin. I do not fault Zosky for his failure to recognize the
distinction between basic and proximate causes.
13 Even if Martin's account of Joseph Zosky's comments earlier that day
were credited - and it is not - those comments would not indicate the
animus needed to justify an inference that Respondent 's stated reason for
discharging Martin was only a pretext.