Flock Bros., Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1978

239 N.L.R.B. 939 (N.L.R.B. 1978)

FLOCK BROS. INC.
Flock Bros., Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 30. Case 6-
CA- 10579
December 20, 1978
DECISION AND ORDER
BY MEMBERS PENELI.O. MURPHY, AND TR UESDAI.E
On September 25, 1978, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Flock Bros., Inc.,
Greensburg, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Producr., Incs. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully
examined the record and find no basis for reversing his findings
In in. 4 of his Decision. the Administrative Law Judge inadvertently re-
fers to Respond, at as having railed to recall Union Steward Colarusso rath-
er than discnminatee Goodman.
APPENDIX
NOTICEt To EMPLOYEES
POSIED BY ORDER OF TMlIl
NAllo()NAI LABOR REt.AIIONS BO-\RD
An Agency of the United States Government
Wt wil i NOI discharge or otherwise discrimi-
nate against employees in regard to hire or ten-
ure of employment, or any term or condition of
employment, because of their union or protected
concerted activities on behalf of International
Brotherhood of Teamsters, Chauffeurs, Ware-
houseinen and Helpers of America, Local Union
No. 30, or any other labor organization.
WE WILL NOT threaten employees with dis-
charge or other reprisals because of their union
or protected concerted activities.
WE WILL NOT in any other manner interefere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act except to the extent that such rights may be
affected by lawful agreements in accordance
with Section 8(a)(3) of the Act.
WE WIILi offer to Randy Goodman immediate
and full reinstatement to his former position or,
if such position no longer exists, to a substantial-
ly equivalent position, without prejudice to his
seniority or other rights previously enjoyed, and
make him whole for any loss of pay or other
benefits suffered by reason of the discrimination
against him, plus interest.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any
labor organization, except to the extent provided by
Section 8(a)(3) of the Act.
FLOCK BROS.. INC.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE. Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on February 7, 1978, at Pittsburgh, Pennsylvania.
The charge was filed on September 20, 1977. The com-
plaint was issued on November 21, 1977. The issues con-
cern whether Respondent (1) violated Section 8(a)(1) of the
Act by informing an employee that a fellow employee had
been terminated because he joined the Union, and by
threatening to discharge or discriminate against its employ-
ees if they gave testimony under the Act, and (2) violated
Section 8(a)(3) and (1) of the Act by terminating Randy
Goodman on September 9 and 15, 1977.
939
940 DECISIONS OF NA FIONAL
All parties were afforded full opportunity to participate
in the proceeding. Briefs have been filed by the General
Counsel and Respondent and have been considered.
Upon the entire record in the case and from mty observa-
tion of witnesses, I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
The facts herein are based upon the pleadings and ad-
missions therein.
Flock Bros., Inc., Respondent, a Pennsylvania corpora-
tion with its principal offices located in Greensburg, Penn-
sylvania, is engaged in nonretail hauling of goods and com-
modities. During a 12-month representative period, in the
course and conduct of its business operations, Respondent
has performed services within the Commonwealth of Penn-
sylvania valued in excess of $50,000 for persons who are
themselves directly engaged in interstate commerce.
As conceded by Respondent and based upon the fore-
going, it is concluded and found that Respondent is, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED 2
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
30, is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Setting
The parties stipulated and it is found that the Union
(Teamsters Local 30) has represented Respondent's drivers
and driver helpers since 1952 and that during the period of
time, 1952 to date, Respondent and the Union have execu-
ted successive 3-year contracts. The latest and current con-
tract between the Union and Respondent, covering Re-
spondent's drivers and driver helpers, is effective from
January 2, 1977 to January 1, 1980.
Article II of said contract sets forth that "The Employer
recognizes the Union as the exclusive bargaining agent for
all employees as defined in Article I."
Article I of the current contract has two sections which
bear upon the definition of employees referred to in article
II. These sections are as follows:
(a) All present employees who are members of the
Local Union on the effective date of this subsection or
on the date of execution of this Agreement, whichever
is the later, shall remain members of the Local Union
in good standing as a condition of employment. All
General Counsel's motion to correct the transcript, dated March 31.
1978, is marked as ALJ Exh. I, is received into the record, and is hereby
granted.
2 The facts are based upon the pleadings and admissions therein.
LABOR RELATIONS BOARD
present employees who are not members of the Local
Union and all employees who are hired hereafter shall
become and remain members in good standing of the
Local Union as a condition of employment on and
after the 31 st day following the beginning of their em-
ployment or on and after the 31st day following the
effective date of this subsection or the date of this
Agreement, whichever is the later. This provision shall
be made and become effective as of such time as it
may be made and become effective under the provi-
sions of the National Labor Relations Act, but not
retroactively.
(b) The failure of any person to become a member
of the Union at the required time shall obligate the
Employer, upon written notice from the Union to such
effect and to the further effect that Union membership
was available to such person on the same terms and
conditions generally available to other members, to
forthwith discharge such person. Further, the failure
of any person to maintain his Union membership in
good standing as required herein shall, upon written
notice to the Employer by the Union to such effect,
obligate the Employer to discharge such person.
Article XV provides that Flock Bros., Inc., reserves the
right to hire regular and extra help when additional man-
power is needed without any outside interference from any
group.
Elsewhere in the current contract, references are made to
"any regular employee," "any employee," "each employ-
ee," and "all employees."
Because of some of the issues and contentions in this
case, it is noted that the current contract contains no refer-
ence to "full-time" or "part-time" employees.
The parties (1) have required that "full-time" employees
comply with the union security provisions of the contract
and be union members and (2) have not required that
"part-time" employees comply with the union security pro-
visions of the contract and be union members. Full-time
employees (drivers and helpers) have received pay and
other benefits in accordance with the contract. Part-time
employees (drivers and helpers) have received less pay and
none of the benefits of the contract.
Norman Flock credibly testified to the regular procedure
followed by Respondent when there was a change in status
of an employees from that of being a "part-time" employee
to being a "full-time" employee as is revealed by the fol-
lowing excerpts from Flock's testimony.
Q. Can you tell me from your knowledge, what the
procedure was if there was a change in status from
part-time to full-time, as far as an employee was con-
cerned, with regards to the Union?
A. Based on the employees' record, I would decide
if I was going to take them on as a full-time employee.
We would then give him a letter that we were taking
him on as a full-time employee, and advise him to join
the Union so he could receive the Union wages and
benefits.
Norman Flock's credited testimony as set out above,
suggests that the employees were not given a waiting pe-
_._... ._____I._._.___._ _
FLOCK BROS., INC.
riod for union security purposes, but were expected to join
the Union upon being made "full-time" employees. It thus
appears that an employee in "part-time" status was
deemed to have employee status for union security pur-
poses as regards the union security waiting period allowed
such employees by law. Further, the evidence reveals that
the employee's seniority status as a full-time employee was
based upon his time of initial hire as a part-time employee.
As an example, John Dydiw changed from a status as a
part-time employee to full-time employee around the last
of August 1977 or early September 1977 and had a senior-
ity status as a full-time helper based upon a date of em-
ployment of 8-10-73. Norman Flock's testimony also re-
veals that Flock considered that the employee had to join
the Union in order to receive what he described as union
wages and benefits, the contractual wage and benefits.
What might be described loosely as an exception to the
normal procedures relating to a change from part-time to
full-time status as an employee occurred in late August or
early September, 1977, prior to September 8, 1977, in the
case of the change in status of John Dydiw. Norman Flock
had promised Dydiw, a part-time employee, that he was
going to make Dydiw a full-time employee. Flock, how-
ever, did not finalize the matter by giving Dydiw a letter to
such effect to take to the Union. Some time passed and
Flock had still not actually changed Dydiw's status to that
of a full-time employee and had not given Dydiw a letter
concerning full-time status to take to the Union. Dydiw
told Union Steward Colarusso that he was going to go
down and join the Union. Colarusso told Dydiw that he
might as well do so, that Respondent had put on another
truck and had to have two men on a truck, that Norman
Flock knew that Dydiw was going to join the Union, and it
was only a matter of time before Dydiw had to join the
Union. Dydiw joined the Union and Respondent made
Dydiw a full-time employee. As indicated later herein,
Norman Flock in a conversation with Union Steward Co-
larusso on September 11, 1977, revealed that he considered
that Colarusso had pushed him into making Dydiw a full-
time employee by having Dydiw to become a union mem-
ber before Flock had told Dydiw to do so.
B. Goodman. Employment, Union Status Termination
The evidence as presented is somewhat confused as to
when Goodman was initially hired. It is clear, however,
that Goodman was employed by August 9, 1976, and that
after November 11, 1976, Goodman worked on an average
of 4 days a week as a part-time employee until terminated
on September 15, 1977. There is no evidence of criticism or
reprimands as regards Goodman, and he was considered a
good employee by Respondent. Contrary to a reason given
to the Pennsylvania Bureau of Employment Security,
Goodman did not cause any conflict among his fellow em-
ployees while with Respondent.
Goodman did not work on September 8, 1977. On Sep-
tember 8, 1977, Goodman went to the union hall, paid an
initiation fee, and joined the Union. Goodman thereafter
on September 8, 1977, had several conversations with
Union Stewe.rd Colarusso about having joined the Union,
resulting in Colarusso, at Goodman's request, notifying
Norman Flock, around 11:30 p.m., that Goodman had
joined the Union. Flock, upon being notified, indicated
that this was all right, that he would check into it.
Goodman had not received notification by telephone
call, a fairly regular practice, that he would work on Sep-
tember 9, 1977. On the morning of September 9, 1977,
Goodman went to the shop and ascertained that he was
not on the work list. Later that day when Goodman was in
Respondent's office to pick up his paycheck, he was told
by Norman Flock that he was terminated as is revealed by
the following credited excerpts from Goodman's testi-
mony. 3
So, I left the Union hall and I went to Flock's office
to pick up my check.
So, I went in the door and I asked the secretary, I
said is my check made out, and he said yes, and then
Norman said-he called me an agitator and said I just
threw myself out of a good job and I didn't say any-
thing after that, and I turned around and left.
The reason for Respondent's termination of Goodman
on September 9, 1977, is clearly revealed by the following
credited excerpts from the testimony of Harry Flock, Jr..
Respondent's president.
Q. Did the fact just the fact that he joined the
Union, did that have anything to do with the decision
not to call him back between September 8th, 1977 and
September 13th, 1977?
A. No.
Q. What reasons were there as to why he was not
called back at that time?
A. Well, we were under the impression that if he
joined the Union he would become, automatically be-
come a full-time employee and that there was two
other employees that's been working there before him
that were entitled to become full-time employees be-
fore him, and this is the impression that we had when-
ever he joined the Union.
Conclusion
There is a contention in effect that Goodman was not
terminated on September 9, 1977, but that there was a
mere refusal to recall him to work because of a question as
to what his status should be because of his union member-
ship. Thus, the question appears to be whether Goodman
was terminated or temporarily laid off. In either event, the
facts would reveal that Respondent's action constituted
discrimination against Goodman because he had become a
union member. The facts, however, reveal, and I so find,
that Respondent, by Norman Flock, terminated
Goodman's employment on September 9, 1977.
The above facts, revealing that Respondent's termina-
tion of Goodman was because of its impression that Good-
man would automatically become a full-time employee be-
cause he had joined the Union and its concern that this
would put him ahead of two other employees it considered
'Flock in his teslimon) does not deny the consersallion as testified to bh
Goodman and did not testify as to a different version of the event
941
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be entitled to be full-time employees before him, clearly
reveal that Respondent's termination of Goodman from
employment as a part-time employee was based upon the
fact that he had become a union member. Such conduct
clearly inherently discourages union membership by part-
time employees. Such conduct is clearly violative of Sec-
tion 8(a)(3) and (I) of the Act. It is so concluded and
found.
C. The Events of September 11, 19774
On September 11, 1977, Norman Flock went to
Colarusso's home and discussed the Goodman situation as
is revealed by the following credited excerpts from Nor-
man Flock's and Colarusso's testimony.
Excerpts from Norman Flock's Testimony
Q. (By Judge Stone) In any conversation that you
had with Mr. Colarusso, did you say anything to him
about whether or not Mr. Goodman had been termi-
nated or fired or discharged?
A. No, I made the statement that I was not calling
him back to work until I found out where that meeting
would stand, and what his status would be, if we
would consider him a full-time employee or not, since
he had joined the Union.
Exerpts from Colarusso's Testimony
THE WITNESS: Well, he was upset because Randy
was joining the Union and that he come down there to
talk to me about it, and he called me an agitator. He
felt that I was trying to-that I was the one who talked
him into going down and I told him I did not talk him
into going down.
I explained it to him in my house that night. I tried
to do my best to talk Randy out of going down to join
the Union, because I knew it would cause some kind
of friction and I told the kid maybe if he would wait,
when they put another truck on, he may get hired.
But you know, all of this takes time, putting another
truck on, and he said in the meanwhile, he said I want
to give you hell about telling John to go down and join
the Union without going to him first, and I said Norm,
you know, you've been promising him for a good
while and he said yes, and I said you knew it was
coming, and I said he asked me and I would have told
him that John went down and joined and it was on
Friday, and I see him at work and I had left and went
4 The facts are based upon a composite of the credited aspects of the
testimony of Colarusso and Flock. Considenng Colarusso's testimony as a
whole. I am persuaded that his testimony to the effect that Norman Flock
specifically told him that he had fired Goodman constitutes Colarusso's
interpretation of what Flock had said rather than what was said. I discredit
Colarusso's testimony to the effect that Flock specifically said that he had
fired Goodman. I discredit Flock's testimony to the effect that the conversa-
tion occurred on September 9. 1977. I note that Flock's testimony was to the
effect that the conversation occurred when Colarusso called him. Such call
was made on September 8 as indicated in the facts. I also note that Flock in
his testimony il. 'icated references to a meeting with the Union which clear-
ly was not in the works on September 8, 1977. I do credit Flock's testimony
of his remarks about failure to recall Colarusso.
on vacation that following week, and I didn't get a
chance to tell Norman that John went down.
Contentions and conclusions
The General Counsel contends, and Respondent denies,
that Respondent, by Norman Flock, violated Section
8(aXI) of the Act by informing an employee of Respon-
dent that another employee of Respondent had been termi-
nated because the latter employee had joined the Union.
Considering the facts as to what was said on September
22, 1977, by Flock to Colarusso, it is clear that the remarks,
whether referring to a termination or refusal to recall to
work, constituted a threat of discharge or discrimination as
to tenure as regards part-time employees because of their
membership in a union. Such conduct is violative of Sec-
tion 8(a)( I) of the Act even though directed to an employee
who is not directly affected by such conduct. Such conduct
reveals that his own protected right might be in jeopardy
on other occasions. Accordingly, it is concluded that Re-
spondent, on September 11, 1977, by Flock, engaged in
conduct of threats violative of Section 8(a)(1) of the Act.
D. The Events of September 13, 1977
On September 13, 1977, Nardizzi and Colarusso for the
Union met with Harry and Norman Flock. It was agreed
that Respondent should call Goodman back to work and
that Respondent did not have to employ him as a full-time
employee or give him the contract rates of pay or benefits.
Nardizzi was to so advise Goodman and did so. Nardiz-
zi, however, indicated to Goodman that he would try to get
him on as a full-time employee.
During the day of September 13, 1977, Goodman was
notified to report to work on September 14, 1977. Good-
man reported to work for Respondent and worked on Sep-
tember 14, 1977. That afternoon Goodman noted that the
work schedule had not been posted for Friday, September
15, 1977.5 On the evening of September 14, 1977, Norman
Flock telephoned the Goodman home and left word with
Mrs. Goodman to tell Randy Goodman that he could
come to work on September 15, 1977.6
Although the posting of work for the next day was normally done on the
day before. this was not always the case.
Randy Goodman credibly testified that Norman Flock telephoned him
on September 13. 1977. about coming to work on September 14. 1977. Ran-
dy Goodman testified to the effect that a telephone call was not received at
his home on September 14. 1977. about reporting to work on September 15,
1977. Randy Goodman's testimony did not reveal the basis of such knowl-
edge. whether he was there during the whole time penod or relied upon
information from others. Norman Flock testified that he believed he tele-
phoned and spoke either to Randy's mother or sister and left a message for
Randy to report to work on September 15, 1977. Mrs. Goodman. presented
as a General Counsel rebuttal witness, testified that she received a telphone
call from Flock on September 14. 1977. advising that Randy Goodman
should report to work on September 15. 1977. Mrs. Goodman's examination
was completed and she left the witness stand. Later, the General Counsel
recalled Mrs. Goodman again as a rebuttal witness. and Mrs. Goodman
testified that she received a telephone call from Flock on Tuesday. but did
not receive a telephone call from Flock on Wednesday, September 14. 1977.
Considering Mrs. Goodman's testimony revealing that she received one
telephone call from Flock and Randy Goodman's testimony that he re-
ceived a telephone call from Flock on September 13. 1977. 1 am persuaded
that Mrs. Goodman's recollection of a Tuesday telephone call is in error
and that her testimony and Flock's testimony of a September 14. 1977.
telephone call is correct.
942
FLOCK BROS., INC.
On September 15, 1977, Randy Goodman went to the
garage and saw his name on the worksheet. However, in-
stead of starting to work, Randy Goodman asked Harry
Flock, Jr., who was nearby, whether he was supposed to be
working. Harry Flock, Jr., told Goodman that he did not
know. Goodman then telephoned his mother and later tele-
phoned Nardizzi of the Union. Nardizzi told him that he
should go ahead and work. 7
Goodman worked from 11 a.m. until the end of the shift
on September 15, 1977. At the end of the shift, either slight-
ly before or around 4 p.m., Goodman noticed that the
work list for the next day had been posted and that he was
not scheduled to work. Goodman telephoned Norman
Flock and asked if he were to report to work the next day.
Flock told Goodman that he was not scheduled to work,
that he had no further use for Goodman's services. 8
Goodman then called Nardizzi, of the Union, and later
called Colarusso, the union steward, between 4 and 5 p.m.,
and related that he had been terminated. Goodman told
Colarusso that Norman Flock had told him that he no
longer needed his services. Between 4 and 5 p.m., Colarus-
so saw Harry Flock, Jr., and spoke to him about the termi-
nation of Goodman as is revealed by the following credited
excerpts from Colarusso's testimony.
A. I seen Junior the night that we came in on the
15th. When I put my truck in the garage, Junior pulled
in. He was getting ready to go on a hunting trip, and I
said to Junior, I said I see where you fired Randy
again and he said yes, I've talked to my lawyer and my
lawyer said there is no reason why we can keep him
here, so he said to me, he said and we will fight it to
the end.
Subsequent to Goodman's termination from Respon-
dent, Respondent, by its secretary, sent a statement to the
Pennsylvania Bureau of Unemployment that Randy Good-
man had been discharged for causing friction among his
coworkers. Later, Respondent told the Pennsylvania Bu-
reau of Unemployment that Randy Goodman was not
working because he refused to work under the terms and
conditions agreed upon.
In addition to the facts set forth above, I note with re-
spect to Respondent's contentions that Norman Flock tes-
tified in effect that he received a telephone call from Cola-
russo, as is revealed from the following excerpts from
Norman Flock's testimony.
A. As far as the day, as far as I know he showed up
for work and he worked again and that evening when
1Considenng all of the facts in the case and logical inferences therefrom.
I am not persuaded that Goodman's failure to start to work until I I a m.
was because of any uncertainty concerning failure to have been called the
night before. Assuming that Goodman's mother had failed to notify him of
such telephone call from Norman Flock. it would appear that she would
have reminded Randy Goodman of such call when Randy Goodman tele-
phoned her on September 15, 1977. I discredit Goodman's testimony as to
his reasons for failure to start work until II a.m Harrv Flock. Jr. did not
testify as regards the conversation that occurred between him and Good-
man. Since Goodman worked under Norman Flock. it is entirely conceiva-
ble that Harry Flock. Jr.. did not know that Gox)Jman's name was on the
work list.
The facts a e based upon a composite of the credited aspects of
Goodman's and Norman Flock's testimon)
I was at home I received a phone call from the Union
steward Carl Colarusso and he started this conversa-
tion with we've got more problems, and I said what
now, and he said Randy's not going to work under
those terms that we discussed in the meeting.
Colarusso was questioned about this alleged telephone
call as is revealed by the following credited excerpts from
his testimony.
Q. Can you tell me sir, whether or not you made a
phone call to Norman Flock on Thursday, September
15th, 1977, and explained to Mr. Flock that there was
a problem as far as Randy continuing to work at the
part-time or extra wages and benefits, and that there
was trouble, Randy wanted the full-time benefits and
wages?
A. No sir.
Q. You have no recollection of that telephone con-
versation?
A. No sir, I did not talk to him the night before
they went on their hunting trip.
I am persuaded that Colarusso was a more frank, forth-
right, and objective witness as to the alleged telephone con-
versation, and considering this and the logical consistency
of facts, I credit his testimony over Norman Flock's as to
whether such conversation occurred on September 15,
1977. It very well may be that Goodman had continued to
assert on September 13, 14, and 15 his belief that he was
entitled to full-time status on wages and benefits under the
contract and that Colarusso at an earlier time had con-
veyed such information to the Flocks. Considering all of
the facts, however, the statement of Respondent submitted
by Respondent's secretary to the Pennsylvania Bureau of
Unemployment, the fact that Goodman did work on Sep-
tember 15, 1977, I am persuaded that Norman Flock's tes-
timony, as to Colarusso's alleged September 15, 1977, tele-
phone call, constitutes an attempt to present a rationalized
and pretextuous reason for the termination of Goodman
on September 15, 1977.
Revealing of the reason for termination of Goodman are
the following excerpts from Norman Flock's testimony.
Q. Did you terminate Mr. Goodman's employment
because he joined the Union on September 15th,
1977?
A. No.
Q. Why did you terminate his employment?
A. Because of his change in status, which I wasn't
sure of, because it had never happened before, but I
felt he may be eligible for the Union wages and bene-
fits.
Q. I'm talking about the !5th, that would have
[been] Thursday? Do you understand my question?
A. Would you repeat it?
Q. The last day-you know the last day that Mr.
Goodman worked for the company?
A. Yes. Thursday the 15th of September.
Q. Why have you not called Mr. Goodman back to
work since that time?
A. Well, that was the evening I received the phone
call from the steward that Randy would not work un-
943
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
der the conditions agreed upon with the Union, the
business agent on the 13th.
The facts also reveal that Respondent, following its Sep-
tember 13, 1977, meeting with the Union, was still con-
cerned about the legal ramifications of Goodman's union
membership and the terms under which he should be em-
ployed. Thus, it is clear that Respondent's officials talked
to or met with their attorney prior to the September 15,
1977, termination of Goodman. Reference to advice from
the attorney was made by Harry Flock, Jr., in his conversa-
tion with Colarusso on September 15, 1977.9
Contentions and conclusions
The General Counsel contends in effect that Respondent
discharged Goodman on September 15, 1977, because
Goodman had acquired union membership, and Respon-
dent believed or was concerned that Goodman's union
membership status entitled him to full-time status as an
employee and to the wages and benefits of the contract it
had with the Union. Boiled down, the General Counsel
contends that Respondent was motivated in its discharge
of Goodman by the fact that he joined the Union. Respon-
dent contends in effect that it terminated Goodman be-
cause he sought to be placed in a position different from
other part-time employees by virtue of his union member-
ship.
Considering all of the facts, I find merit in the General
Counsel's contentions. First, it is clear, and Respondent
appears to agree in its brief, that Goodman was ttrminated
on September 15, 1977. Goodman's credited testimony as
to what he was told on September 15, 1977, reveals that he
was told in effect that he was terminated. A statement by
Respondent's secretary to Pennsylvania Bureau of Unem-
ployment reveals that Goodman had been suspended.'0 It
is clear that such statement setting forth that the suspen-
sion was because of the employee's causing friction among
fellow employees constituted a pretextuous reason. Re-
spondent at trial admitted that Goodman had not caused
friction among fellow employees. The facts are clear that
Respondent was concerned that Goodman might be enti-
tled to status as a full-time employee because of his union
membership; that Goodman might, because of his union
membership, be entitled to union wages and benefits; and
that Respondent was concerned about the effect that
Goodman's status might have upon other employees. Nor-
man Flock's testimony and the overall facts so reveal.
Norman Flock's testimony, which I credit, that Good-
man had been terminated on September 15, 1977, because
of his change in status and because Flock felt that he might
be eligible for union wages and benefits, reveals the real
reason for discharge to be discriminatorily motivated. Con-
9 Other evidence revealing of facts not necessary to detail herein. reveals
Respondent's hostility to the Union's business agent after the discharge of
Goodman, and reveals that Respondent was concerned that Goodman's
actions would result in the necessity to pay other part-time employees in
accordance with the contract.
10 It is clear t. at Respondent is and was responsible by such statement
submitted in the regular course of business to a governmental agency
sidering all of the above, the facts are clear that Respon-
dent discharged Goodman on September 15, 1977, because
it knew that Goodman was a union member and was con-
cerned that by virtue of such union membership that
Goodman was entitled to status as a full-time employee
and to be paid according to the contract it had with the
Union. The evidence relating to Respondent's belief that
Goodman was "refusing" to work unless paid according to
the contract reveals at most a belief by Respondent that
Goodman was continuing to assert a claimed right to such
contractual wages and benefits. It is clear that Goodman
worked on September 15, 1977, and therefore there is no
basis for a belief that he had refused to work at the time of
discharge. At most, it appears that Respondent might have
a basis for belief that Goodman was continuing to claim
that he should be paid in accordance with the contract
between the Union and Respondent. In this sense, refer-
ence to "refusing to work" has a different meaning than a
refusal to work. As to a continued contention by Goodman
that he was entitled to be paid in accordance with the con-
tract term, it is clear that such contention was based upon
a colorable right under the contract, and that such conten-
tion was within the purview of a protected concerted
right." The overall facts reveal that Respondent has com-
mitted discrimination against Goodman because of a be-
lief, valid or not, that its contract and practice with the
Union entitled employees who were union members to be
entitled to status as full-time employees and to wages and
benefits according to the contract. Action upon such belief
resulting in the discharge of Goodman, clearly constitutes
conduct violative of Section 8(a)(3) and (1) in that it dis-
courages part-time employees from becoming union mem-
bers. Accordingly, it is concluded and found that Respon-
dent, by discharge of Goodman on September 15, 1977,
violated Section 8(aX3) and (I) of the Act
E. Alleged Threats of February 1, 1977
The General Counsel alleges and contends that Respon-
dent by Harry Flock, Jr., on or about February 1, 1978, at
Russo's Restaurant on Route 30, Pennsylvania, threatened
to discharge or otherwise discriminate against its employ-
ees if they gave testimony under the Act.
Although there was a number of potential witnesses to
this issue, the General Counsel presented only Colarusso as
a witness, and Respondent presented only Harry Flock, Jr.,
as a witness.
l It is clear that Goodman's contentions of the meaning of the collective-
bargaining agreement as regards wages and benefits for employees are con-
sistent with an objective reading or interpretation of the contract. Respon-
dent's impression that its practice with the Union required full-time employ-
ee status for employees who became union members, if carned out, in and
of itself. would appear to be the carrying out of a discnminatory practice.
Thus. employees who were accorded changed status and better benefits
would be receiving preferential discriminatory considerations. The evidence
in this case reveals only two testing incidents of part-time employees becom-
ing union members and questions of their status to flow therefrom. The
General Counsel's pleadings and statement of theory of the case do not
raise the question of a general practice violative of the Act. Further, the
General Counsel does not argue or contend that the contract terms are
applicable to part-time employees. Rather, the General Counsel set forth
that the applicability of the contract terms to part-time employees was irrel-
evant under her theory of the case.
944
FLOCK BROS., INC.
I found Flock's testimony to appear more objective and
factual than Colarusso's and credit his testimonial version
of the event over Colarusso's.
The facts are revealed by the following credited excerpts
from Harry Flock, Jr.'s testimony.
Q. Well, let me ask you this. On or about February
Ist, 1978, did you have a conversation with the Union
steward at a coffee house near Greensburg, Pennsyl-
vania?
A. Yes.
Q. Where was that?
A. Russo's Restaurant along Route 30.
Q. Tell us the circumstances as to how the meeting
took place?
A. Well, we stopped there when we were working
during the day for coffee. It just so happened that he
was there with his helpers and I was there with two of
my other employees.
And I mentioned to Carl, I said do you know you
have a meeting with that man tonight between five
and six.
Q. When you said that man, who did you mean?
A. I meant you, but I didn't want to say your name
or anything in front of the other employees.
Q. Can you tell us why you made that statement
and how you were aware that there was a meeting that
night?
A. Well, previously before that, earlier that week
we had a meeting with you and you asked us if we
could ask the steward to come up and talk to you.
So, the day we left your office, I met Carl at our
garage and said to him, I said on Wednesday between
five and six our attorney would like to talk to you, and
he said okay, and that was as far as it went.
Q. Now, tell us what transpired again on or about
the Ist of February?
A. The first of February had to be the Wednesday
then that he was supposed to meet with you that eve-
ning, and I just wanted to remind him that he had the
meeting with you and I said to him, you know you
have the meeting with the man tonight and he said I
don't think I am going, I don't want to go.
He said I havp nothing to say to him, and I said
Carl, I said you suit yourself, I think you have to go
and he said well, I didn't fire Randy and I said well, I
said you suit yourself, I said but when this is all over
with there is going to be a lot of people with some
hard feelings, and that was the extent of our conversa-
tion.
Considering the above, I conclude and find that the facts
do not establish that Respondent, on February 1, 1977,
violated Section 8(aX1) of the Act, as alleged. It will be
recommended that such allegation be dismissed. 2
12 Although some evidence relating to facts not detailed herein might
raise a question as to whether Respondent engaged in other conduct viola-
tive of Sec. 8(aX I) of the Act, such conduct was not formally or informally
alleged or contt-ded to be violative of Sec. 8f(a)O and in my opinion was
not litigated as conduct violative of Sec. 8(aX I) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tion to effectuate the policies of the Act.
It having been found that Respondent discharged Randy
Goodman on September 9 and 15, 1977, in violation of
Section 8(a)(3) and (1) of the Act, the recommended Order
will provide that Respondent offer him reinstatement to his
job, and make him whole for loss of earnings or other ben-
efits within the meaning and in accord with the Board's
decisions in F W. Woolworth Company, 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977),' except as specifically modified by the wording of
such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCL USIONS OF LAW
I. Flock Bros., Inc., Respondent, is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No.
30, is, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Randy Goodman on September 9 and
15, 1977, Respondent discouraged membership in a labor
organization by discriminating in regard to tenure of em-
ployment, thereby engaging in unfair labor practices in vi-
olation of Section 8(a)X3) and (1) of the Act.
4. By the foregoing and by interfering with, restraining,
and coercing its employees in the exercise of rights guaran-
teed in Section 7 of the Act, Respondent engaged in unfair
labor practices proscribed by Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
13 See, generall., Isis Plumbing & Heating Co, 138 NLRB 716(1962).
945
DECISIONS OF NA rIONAL LABOR RELATIONS BOARD
ORDER 14
The Respondent, Flock Bros, Inc., its officers, agents.
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment, or any
term or condition of employment because of their union or
protected concerted activities.
(b) Threatening employees with discharge and other re-
prisals because of their union activities or protected con-
certed activities.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guranteed
in Section 7 of the Act except to the extent that such rights
may be affected by lawful agreements in accord with Sec-
tion 8(aX3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Randy Goodman immediate and full rein-
statement to his former position or, if such position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority, or other rights previously en-
joyed, and make him whole for any loss of pay or other
14 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.
benefits suffered by reason of the discrimination against
him in the manner described above in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at Respondent's place of business at Greens-
burg, Pennsylvania, copies of the attached notice marked
"Appendix." Is Copies of said notice, on forms provided by
the Regional Director for Region 6, after being duly signed
by Respondent's representatives, shall be posted by it im-
mediately upon receipt thereof, and be maintained by Re-
spondent for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regionl Director for Region 6, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of unlawful
conduct not specifically found to be violative herein be
dismissed.
s In the event that this Order is enforced by a judgment 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."
946