R. J. Liberto, Inc.

National Labor Relations Board - Board Decisions

May 5, 1978

235 N.L.R.B. 1450 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. J. Liberto, Inc. and International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Refuse and Salvage Drivers and
Helpers Union, Local 609. Cases 6-CA-10043 and
6-CA-10171
May 5, 1978
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND
TRUESDALE
On January 4, 1978, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, R. J. Liberto,
Inc., Pittsburgh, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charges in Cases 6-CA-10043 and 6-CA-10171 were filed
on March 16 and April 25, 1977, respectively, by Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Refuse and Salvage Drivers
and Helpers Union, Local 609, hereinafter referred to as
the Union. The complaint issued on June 29, 1977, alleging
that R. J. Liberto, Inc., hereinafter refferred to as Respon-
dent, violated Section 8(a)() of the National Labor
Relations Act, as amended, hereinafter referred to as the
Act, by restricting employees in discussion of unions and
working conditions, interrogating them, and stating that
Respondent would not negotiate a contract with the Union
if the employees chose to be represented by it. The
complaint also alleges that, after a majority of the employ-
ees of Respondent voted to be represented by the Union,
Respondent violated Section 8(a)(5) of the Act by making
unilateral changes in terms and conditions of employment.
The complaint further alleges that Respondent violated
Section 8(aX3) and (1) of the Act by laying off Nicholas
Flaitz and Theodore Bradley and by placing an employee
on probation because of their union and concerted activi-
ties. Respondent denies the commission of any unfair labor
practices.
A hearing was held before me on September 1, 1977, in
Pittsburgh, Pennsylvania. The parties waived oral argu-
ment at the hearing, and counsel for the General Counsel
and Respondent submitted post-hearing briefs.
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent provides refuse service on a nonretail basis
at Plum Borough, Pennsylvania. During a representative
12-month period, Respondent received more than $50,000
for services performed for companies directly engaged in
interstate commerce. I find that Respondent is an employer
engaged in commerce within the meaning of the Act, and
that it will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Respondent is a family held corporation owned by R. J.
Liberto, Sr., and his wife, Carmella Liberto. In late 1975,
Mrs. Liberto began to take a more active role in the
business because of friction between her husband and the
employees.' In February 1976, she assumed control as
acting manager of the business; and, in January 1977, R. J.
Liberto left the area and moved to Florida, leaving Mrs.
Liberto to run the business with the aid of her three oldest
sons, James, Robert, and Charles. In the early part of 1977,
when the events at issue herein began, James was a college
senior away during the week but home weekends and
vacations when he worked in the business. Robert, who
had injured himself in December 1976, had gone to Florida
I Mrs. Liberto, mother of 10 children ranging from 7 to 23 in age, had
previously taken an active role in the day-to-day operation of the business
until about 7 years ago.
235 NLRB No. 199
1450
R. J. LIBERTO, INC.
to recuperate, and Charles remained active in the business
on a daily basis.
B. The Alleged Interference with Employee Union
A ctivities
I. The facts
In January 1977,2 Respondent employed four nonmem-
bers of the Liberto family. They were William Creevey,
Stanley Sum, Nicholas Flaitz, and Theodore Bradley. As
an outgrowth of an earlier discussion among the four
employees, in early February, they met with an organizer
for the Union and signed authorization cards. On March 3,
the Union filed a representation petition seeking to
represent Respondent's drivers and helpers. The petition
was received by Respondent at its office on the morning of
March 4.3
One morning in February, Charles Liberto accompanied
Sum and Flaitz to Ateco Truck Bodies' place of business
because of a problem with a new truck which Respondent
had recently purchased. While Flaitz and Sum were
waiting, they stood talking together. Charles approached
them, and one of them made a joking remark about
forming a union in response to which Charles replied that
he did not want to hear about it because he had enough
problems worrying about the truck.4
On or about March 9, Creevey had a conversation with
Charles Liberto in front of the garage while Creevey was
trying to read an NLRB notice of employee rights that had
just been posted there. 5 Charles asked Creevey if he knew
what it was all about, and Creevey replied that he did not.
Charles then asked, "Are you going to vote for it?" Creevey
said, "vote for what?"; and Charles said, "vote for the
union thing." Creevey replied that he had no idea whether
he was going to vote for it or not. Charles then asked if he
had any part in it, and Creevey answered that he had
nothing to do with it and did not even know what it was all
about. Charles then said he knew who caused it, and that it
was Sum and Flaitz, calling them troublemakers for it.
Creevey asked if he was sure, and Charles said, "Yes.
Those are probably the ones who started it" because Sum
did not like him or a similar reason.6
Creevey had several other conversations with Charles
Liberto before and after the election. In them, Charles
stated that he was not going to have a union at the garage
putting him out of a job. Charles said that as far as he was
concerned there would just be no union there at all if he
had to do something drastic. Charles also stated that he
2 Unless otherwise indicated all dates which appear hereafter are in 1977.
3 Although there is evidence that before the petition was filed Stanley
Sum spoke to Respondent's secretary-bookkeeper about the employees'
interest in a union, there is no evidence that any of the Libertos were aware
of the union activity until March 4.
4 Both Flaitz and Charles testified about this exchange. According to
Flaitz, Charles did not appear to be angry until the remark about a union
was made; and Charles turned red, responding angrily that he did not want
to hear such talk again, and that they would be sorry if he did hear it.
According to Charles, he had been agitated earlier about the problem with
the truck, but he understood that the employee's remark was made in jest
and responded as set forth above without anger. As both agreed that the
remark which prompted Charles' response was made jokingly and as
Charles did not deny other statements attributed to him by other witnesses,
I have concluded that it was Flaitz' recollection rather than Charles' which
became distorted with the passage of time. I have credited Charles.
would not have anything to say about anything that
happened around here, and that the union would come in
and run Creevey's whole life. After the election, Charles
also told Bradley that he would never have a union or join
a union and wanted no part of one.
About 10 days before the election, Mrs. Liberto called
Creevey into her office and with some irritation accused
him of talking company business with other employees,
causing trouble among the ranks, and destroying morale.7
Mrs. Liberto did not refer to a particular incident but
referred to statements by him to other employees in which
he had been critical of the way in which Respondent had
fired two employees. Creevey had made critical statements
about these discharges to other employees in response to
their questions over a period of time following the two
discharges in the fall of 1976.
Mrs. Liberto testified that Creevey had been telling
everyone that she fired the two men without just cause and
was thereby undermining her credibility and employee
morale. She testified that for that reason she called him
into the office, told him that Respondent was too small an
organization to have such conduct, and explained to him in
detail why she had discharged both men, thinking that it
would make Creevey feel better.
The election was held on April 15 and resulted in 2 votes
for the Union and none against.8 Between the filing of the
petition and the time of the election, Respondent had sent
its employees several pieces of written campaign literature
signed by Mrs. Liberto in which it opposed the Union and
argued that the Union was not in the best interest of the
employees.
About 2 weeks after her conversation with Creevey about
his criticism of the earlier discharges by Respondent, Mrs.
Liberto heard that he was continuing such talk and was
hurting employee morale by telling others that Charles had
caused the discharge, and that the Libertos fired everybody
without explaining why. Mrs. Liberto testified that she
became irritated because the talk made her look like a "bad
guy." She then sent the following letter to Creevey dated
April 20:
Two weeks ago in my office we had a two-hour
private discussion at which time I again emphasized the
policies of R. J. Liberto, Inc. pertaining to company
morale. Apparently, you did not heed my first warning.
This letter is constituting the second warning.
You were instructed to direct any and all complaints
or remarks to the boss, Mrs. Liberto, and not to other
employees.
5 Creevey testified that this conversation occurred during the week of
March 7 after he first saw the NLRB notice of employee rights posted at the
garage. Mrs. Liberto testified that she posted the notice on March 9.
s Creevey so testified. Charles conceded that he discussed union matters
with Creevey. While he gave a somewhat different version of a conversation
with Creevey about who would negotiate a contract, he did not contradict
Creevey's testimony as to other conversations between them. I have credited
Creevey.
7 Although Creevey placed this conversation after the election, from
reference to it in a letter dated April 20, as well as Mrs. Liberto's testimony,
it appears that this conversation occurred about 10 days before the election.
s Between March 3 and the election, Flaitz was laid off and Sum left
Respondent because of an injury. The complaint alleges that Flaitz' layoff
was discriminatory, but there is no allegation based on Sum's separation.
1451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Let it be on record you are now on probation and
you will cease and desist undermining the workings of
this company with your remarks. Failure to do so will
result in the termination of your employment immedi-
ately.
Sometime after the election, Creevey was suspendedfor I
day.9 Creevey went to talk to R. J. Liberto about the
suspension. During their conversation, the topic of union
representation came up, and Liberto became angry and
shouted that there was not going to be a union if he had to
padlock the doors or shut the place down or sell the
business. He added, "there's no way in hell that I'm going
to have a bunch of niggers from Pittsburgh running my
organization." 10
2. Concluding findings
The General Counsel contends, contrary to Respondent,
that Charles Liberto was a supervisor and agent of
Respondent at times material herein, and that his state-
ments to employees set forth above violated Section 8(a)(1)
of the Act.
Charles, who was 17 years old in the early part of the
year, had worked in Respondent's business full time since
he was 15 when he withdrew from school. Charles per-
formed a variety of functions, including driving trucks at
times, substituting for absent employees, delivering con-
tainers to customers, taking care of complaints, and
soliciting new business. During the winter, Respondent
employed two full-time drivers and two helpers, and
Charles did not regularly go out on the trucks.
Apart from the physical work performed by Charles, the
evidence shows that Charles notified one employee that he
was no longer needed, interviewed others for hire, told
employees they were hired, hired friends as substitutes on
days when regular employees were absent, and gave
instructions to other employees as to route changes and
how to drive the trucks. Mrs. Liberto testified that in all
these areas Charles did not act independently but only with
her permission or direction. She testified that, while
Charles made recommendations to her, other employees
also made similar recommendations; and she made the
decisions, sometimes following and sometimes rejecting the
recommendations she received. As she put it, "Charlie was
more or less my running boy. I was home with the children,
Charlie would call be back and forth, you know when
things had to be done." She testified that Charles relayed
messages from her to the men in the morning when they
started work for the same reason. On the one occasion, in
January, when she and R. J. Liberto were both away from
the business for 2 weeks, she left James in charge and spoke
with him by telephone frequently.
Whether or not Charles was a supervisor within the
meaning of the Act, I find that during the period in
question Charles was an agent of Respondent for whose
g The suspension is not alleged as a violation of the Act.
1o Creevey so testified without contradiction. The only evidence offered
by Respondent relating to this incident was Mrs. Liberto's testimony that R.
J. Liberto had a very bad temper, and that she had no intention of selling
the business.
II International Association of Machinists, Tool and Die Makers Lodge No.
35 [Serrick Corp.] v. N.L.R.B., 311 U.S. 72, 80 (1940).
conduct Respondent was responsible. The determinative
question is whether "the employees would have just cause
to believe that [he was] acting for and on behalf of
management.""u Here there was such cause. Charles was
the son of the sole owners of Respondent. He not only
assumed authority to speak to other employees for Respon-
dent, but he was given that role by Mrs. Liberto because
her family responsibilities limited her ability to deal
directly with the employees. As shown above, in his
expressions of his feelings about the Union, Charles voiced
sentiments expressed by his parents, particularly his father.
I find that in the course of his conduct at issue in this
proceeding Charles is properly to be considered an agent of
Respondent.1 2
The General Counsel contends that Charles Liberto's
statement to Flaitz and Sum at Ateco Truck Bodies
contained an implied threat of reprisal that employees
would be sorry if they talked about a union again. Under
the version of the facts set forth above, I have found that
Charles' statement at that time was made in response to a
joking remark of Sum and contained no implied threat.
The statements by Charles to Creevey on or about
March 9 stand on a different footing. By this time the
petition had been filed, and Charles questioned Creevey
about his support for the Union and his role in filing the
petition. When Creevey sought to hide his feelings and role,
Charles asserted that he knew who was responsible and
labeled them troublemakers. The interrogation of Creevey
by Charles was not for any legitimate reason, was unac-
companied by any safeguards, and was coercive. I find that
it violated Section 8(a)(1) of the Act. Although Charles'
initial statement concerning the role of Flaitz and Sum in
filing the petition is suggestive that there had been
surveillance by Respondent, his additional statement that
they were probably the initiators because one of them did
not like him indicates that Charles' assertion was based on
speculation rather than observation. I find that in context
his remarks did not create an impression of surveillance of
union activities.1 3
Charles' statements to Creevey before and after the
election that he was not going to have a union and that
there would be no union even if he had to do something
drastic convey the futility of any vote for the Union and
imply a threat of drastic action to avoid dealing with the
Union if the employees chose it. These statements are
echoed and amplified by the stronger statements of R.J.
Liberto to Creevey following the election giving examples
of kinds of drastic action the employees could expect from
Respondent to avoid bargaining with the Union. I find that
Respondent violated Section 8(a)(1) by the statements of
Charles and R. J. Liberto conveying the futility of the
attempt to be represented by the Union and threatening
retaliation to avoid bargaining.
Finally, the oral warning to Creevey by Mrs. Liberto and
the letter placing him on probation immediately after the
12 Federal Prescription Service. Inc., and Drivex Co., 203 NLRB 975, 986
(1973), enfd. 496 F.2d 813 (C.A. 8, 1974).
13 I agree with the contention of General Counsel that despite the
absence of such an allegation from the complaint this issue is properly
considered because the circumstances of this conversation were fully
litigated.
1452
R. J. LIBERTO, INC.
election constitute blatant interference with concerted and
union activity. Respondent contends that the discipline of
Creevey was a legitimate exercise of management rights to
protect Mrs. Liberto's credibility, preserve employee mo-
rale, and redress Creevey's insubordination when he did
not heed her initial warning. However, these contentions
ignore the rights of employees during an organizational
campaign. Although Creevey had made similar statements
over a period of time, Mrs. Liberto only warned him about
them after the petition was filed and the election was
imminent. Whether Creevey's facts or interpretation were
correct, he was entitled to discuss with his fellow employees
his perception of working conditions and employee prob-
lems. Respondent, to be sure, had a right to try to counter
his arguments, but it had no right to attempt to muzzle his
discussions with fellow employees of issues relating to their
working conditions. The instruction "to direct any and all
complaints or remarks to the boss, Mrs. Liberto, and not to
other employees" when an election is pending patently
violates Section 8(a)(1) of the Act.14 The enforcement of
Mrs. Liberto's instruction by placing Creevey on probation
for failing to obey it additionally violates Section 8(a)(3) of
the Act.
C. The Layoff of Nicholas Flaitz
1. The facts
In October 1976, Nicholas Flaitz, a recent graduate of
Pennsylvania State University with a degree in forest
technology, had been looking unsuccessfully for employ-
ment in his field of specialization. He told Mildred
Balkovec, Respondent's bookkeeper-secretary to whom he
was related by marriage, that he was looking for any job he
could get because nothing was open in his field. She, in
turn, told Charles Liberto that he was available for hire;
and after checking with his mother Charles spoke to Flaitz
and hired him.
Respondent contends that Flaitz was hired as a tempo-
rary employee for the winter months. According to Balko-
vec, Flaitz told her that he would take anything for the time
being because nothing was open in forestry at the time.
Mrs. Liberto testified that when Charles spoke to her about
hiring Flaitz she told Charles to tell him that he could help
him out over the winter. She testified that she knew that
Flaitz was seeking other employment, but that it did not
bother her because she only needed help for the winter.
Although Charles testified that he realized Flaitz would not
be with them long because of Flaitz' training, neither he
nor Flaitz in describing Flaitz' employment interview
testified that Charles told Flaitz that his job would only be
temporary or otherwise discussed its duration. Flaitz
14 Jeannette Corporation, 217 NLRB 653, 656 (1975), enfd. 532 F.2d 916
(C.A. 3, 1976).
Is These findings are based on the testimony of Mrs. Liberto and James.
On cross-examination, Mrs. Liberto explained her hysteria as follows: "Let's
see how you can explain that, because it was something unknown, all right?
It was something unknown, it was something I didn't know anything about,
all right? And I panicked. During that period if I would have gotten a traffic
ticket I think I would have panicked. That's all I can explain, I panicked."
Mrs. Liberto testified further that at that time she was worried about a
doctor's appointment for that afternoon to pursue a problem discovered 2
weeks earlier in a routine examination which she had convinced herself was
cancer and would require immediate hospitalization and surgery.
testified that he did not tell Balkovec he wanted a
temporary job until he found something in forestry.
Based on the testimony of Charles and Flaitz, I find that
Flaitz was not told he was being hired as a temporary
employee in October or that any specific duration was
mentioned for his employment. I also find that Flaitz did
not tell Balkovec in so many words that he wanted a
temporary job. I find further, however, that Flaitz did
indicate to Balkovec that he still wanted to find work in his
chosen field when it became available, and that all
concerned expected that he would not remain with Re-
spondent indefinitely but would seek employment in
forestry when the opportunity arose.
Flaitz worked from October 1976 until March 4. At
about 9 a.m. on March 4, Mrs. Liberto received the
Union's representation petition in the mail. Although Mrs.
Liberto testified that she did not know what the NLRB was
when she saw the envelope, she also testified that she knew
it was important, became hysterical, and called her chil-
dren into her office before opening the envelope. When she
opened it, she asked James what it was, and he told her that
it was a petition to organize a union. At that point James,
who had taken a course in labor relations, suggested that
his mother call his professor to get an explanation of what
it was all about and in the meantime not mention it to
anyone. Mrs. Liberto then called the professor, made an
appointment for the following Tuesday, March 8, and
replaced the petition in its envelope. Thereafter, she
refused to let anyone look at it until after her Tuesday
appointment. 5
On March 4, Flaitz returned to the garage earlier than
usual, about 11:30 a.m., by prearrangement with James
because of a dental appointment. Mrs. Liberto called him
to her office and told him that she was going to let him go
permanently. Flaitz asked what she meant and said that
she had to give him a reason for firing him. She replied that
she was not firing him but was permanently laying him off
because she could not afford him anymore and could not
have him around there anymore. Flaitz thanked her and
left.' 6
Mrs. Liberto was examined at some length as to the
reasons for Flaitz' layoff on March 4. In order to
understand her testimony it must be related to other
contemporaneous events. From Monday, February 28
through Friday, March 4, James was on vacation from
college and worked at Respondent's garage repairing
damaged containers. On Monday, February 28, Flaitz took
the day off from work to be interviewed by a power
company for a possible job in forestry. On the same day,
Charles had an accident which resulted in the amputation
of a finger and kept him off the trucks and hard labor for 3
ts Flaitz so testified. He also testified that while in the office he saw a
white envelope with black lettenng on it on the comer of the desk which was
from the NLRB. Although Mrs. Liberto and James testified that the
envelope in which the petition came was brown and had been placed in a
desk drawer, Mrs. Liberto's testimony as to what she told Flaitz does not
contradict him and only expands on her description of Respondent's
financial problems. I credit Mrs. Liberto and James that the envelope in
which the petition was received was not on her desk when Flaitz was in her
office, and I conclude that Flaitz, knowing that the petition had been filed
and surpnrised at his layoff, assumed he saw something which he did not.
However, I credit his otherwise uncontradicted testimony as to what he was
told by Mrs. Liberto.
1453
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or 4 weeks. After Charles' accident, Mrs. Liberto tele-
phoned her son Robert in Florida, and he returned to
Pittsburgh arriving on Thursday, March 3. After the
representation petition was received on March 4, R. J.
Liberto also returned from Florida and again worked in the
business.
Mrs. Liberto testified that originally she intended to
terminate Flaitz on February 26 but decided to keep him
for an extra week because James was home from college,
and she thought she would keep Flaitz an extra week and
let James repair an accumulation of damaged containers to
get everything in order for spring. She continued that she
had not foreseen that Charles would amputate his finger on
the Monday that Flaitz was off, "so that sort of upset my
whole schedule, I kept Nickie [Flaitz] for the whole week."
She testified further that after Charles amputated his finger
Robert returned and took Flaitz' position, that at that time
she did not know how long Charles would be unable to
work, and that upon his return Robert started to help her
in the garage by moving containers and doing work that
Charles had been doing.
Mrs. Liberto testified that she did not ask Flaitz to take
a cut in pay because he was hired as a temporary employee
to help Respondent over the winter and because he had a
job interview the previous Monday which she felt strongly
"for some reason" would result in his getting a forestry job
so that she did not believe that a layoff would harm him in
any way. However, she did not ask him if he had been
successful in his job interview.
Mrs. Liberto also testified that Respondent had hired
temporary help for the winter in other years, and that more
help was needed for the winter than at other times of the
year because snow was invariably stacked in front of
Respondent's trash containers making the work hazardous
and making it necessary for two people to pull them out
and safely dump them. She testified that in the winter two
men were needed on both trucks, but that in the summer
one man could handle one of them and two the other.
Finally, she testified that she hired Flaitz for the winter and
laid him off on March 4 when they came into the spring.
Mrs. Liberto's testimony as to the need for more help
in the winter was disputed by Union Business Agent
Kennedy who testified that in his experience the busy time
in Respondent's business was spring and summer, and that
other companies did not hire extra help in the winter.
Creevey also testified that while he worked for Respondent
there was no temporary help hired for the winter, and that
both routes being operated in March had always been
manned by two men.
2. Concluding findings
The General Counsel contends that Flaitz' layoff on
March 4 was caused by the employees' union activities and
the receipt of the petition. Respondent contends that the
General Counsel has failed to establish unlawful motiva-
tion for the layoff, and that Flaitz was laid off because he
was hired for the winter and the winter had ended.
1 Mrs. Liberto was not entirely consistent on this point. At another
point she related the decision to keep Flaitz for the entire week to Charles'
There are a number of factors which support the General
Counsel's contention. The timing of Flaitz' discharge in
relation to receipt of the petition alone raises suspicion as
to the cause of the discharge. While Mrs. Liberto denied
that she knew what the NLRB was when she saw the
envelope containing the petition, her explanation for her
claimed hysteria upon seeing it is not convincing. James
knew what the NLRB was, he told her what the petition
was, and I find her hysteria stemmed not from the
unknown but from what was viewed as an additional
problem to be added to the many others she then faced.
That such was the reaction is also shown by the statements
of Charles and R J. Liberto to Creevey. I find that before
Flaitz was discharged Respondent knew of the petition and
had a strong negative reaction to it and not simply to the
unknown. The statements by Charles to Creevey during the
next week show further that Respondent suspected Flaitz
and Sum as the instigators of the petition, and that the
hostile reaction extended to them. I find that the General
Counsel has established a prima facie case which supports
an inference that Flaitz' discharge was discriminatory.
In its brief, Respondent contends that Flaitz was laid off
because he was hired as a temporary employee for the
winter and the need for him had come to an end. Mrs.
Liberto so testified, but her testimony is not convincing.
Initially she testified that she intended to lay Flaitz off on
February 26 but deferred the layoff because James was
coming home for the week. It is difficult to relate James'
vacation from school to retention of Flaitz for an addition-
al week.' 7 Unless Mrs. Liberto had initially intended to use
James as a substitute for Flaitz, James' vacation had no
relation to whether Flaitz was needed for an additional
week. If she had intended to use James as a substitute for
Flaitz, then it appears that the need for Flaitz or a fourth
man on the routes was not over, contrary to her testimony
as to the reason for his termination. That the need for the
fourth man was not over is further indicated by the fact
that Robert replaced Flaitz on the truck; and, as appears
below in connection with the layoff of Bradley, both trucks
continued to operate with two-man crews until April 22,
some 6 weeks after Flaitz was terminated. These facts cast
substantial doubt on the contentions that Flaitz was hired
as a temporary employee, and that the need for an extra
man over the winter had ended.
The testimony as to what Mrs. Liberto told Flaitz at the
time of the layoff casts further doubt on the explanation for
it. Thus Mrs. Liberto said nothing to Flaitz to remind him
that he had been hired as a temporary employee or to
indicate that he was being terminated because the need for
which he was hired had ended. Rather, she ascribed the
layoff to rising expenses and low income. Despite her
alleged decision to lay Flaitz off at least a week before
March 4, she gave him no advance notice of the layoff;
and, despite her claim that she believed that his job
interview on the previous Monday had been successful, she
made no inquiry about his prospects for another job.
I find, contrary to the testimony of Mrs. Liberto which I
do not credit, that, whatever expectations Respondent and
Flaitz had that Flaitz would leave Respondent when he
amputation, although that occurred after February 26 when, she testified,
the decision was made.
1454
R. J. LIBERTO, INC.
found a job in forestry, Flaitz was neither hired for a job of
specific, limited duration nor told that he was hired for
such a job. I find further that the job for which he was
hired had not come to an end, and that he was terminated
for other reasons. Accordingly, I find that the inference of
discrimination raised by the General Counsel's evidence is
strenghtened by the pretextual nature of the reason
advanced for his termination and conclude that Flaitz was
discharged in violation of Section 8(a)(3) and (I) of the
Act.
D. The Layoff of Theodore Bradley and the
Alleged Refusal To Bargain
1. The facts
Theodore Bradley was hired by Respondent in the
summer of 1976. In April, he was working as a helper on
one of Respondent's two trucks with Creevey as the driver.
Respondent's other truck was being manned by Charles
and Robert Liberto. At the election on April 15, Bradley
served as union observer.
On Friday, April 22, Bradley came in from his route at
about 2 in the afternoon and was called into the office by
Mrs. Liberto. She informed him that he was being laid off
because of financial reasons. She said that customers
weren't paying their bills and no money was coming in. She
told him that she hoped to be able to hire him back soon.
Bradley was recalled in June after Creevey was terminat-
ed.18
On the same day, Creevey was called into the office to
meet with R. J. Liberto, Mrs. Liberto, and Charles. They
informed him that they had laid Bradley off and gave him a
choice of either running his present route without a helper
with a raise in pay of $25 a week or taking the other route
with a helper at his present pay. They asked him to give his
answer immediately. Creevey said that he wanted to wait
and think it over and let them know later which he
preferred.
The next morning when Creevey reported for work, one
truck had already left, and there was no one at the garage
to work with him. Creevey assumed that Respondent
intended that he should work without a helper and from
then until June 24 when he was terminated he worked
alone.
On April 25, the Union was certified as representative of
the drivers or helpers. At no time before or after that date
did Respondent notify the Union of Bradley's layoff or the
change in Creevey's assignment or pay.
Creevey testified that he gave no answer on April 22 as to
his work preference because he was concerned about what
the Union might say if he accepted a pay increase and
change of assignment in the light of its desire to negotiate a
contract. Creevey did not mention this concern to Mrs.
Liberto on April 22, but he contacted Union Representa-
tive Kennedy, told him what had happened, and asked for
advice. Bradley also contacted Kennedy and told him of
his layoff. After discussing the changes with Creevey,
Kennedy told him that he was the only union person left
who was employed by Respondent, that he should not
18 There is no allegation in the complaint based on Creevey's termina-
tion.
worry about it, and that he should do what he wanted and
do the job as best as he could. Kennedy said that the
Union would negotiate a contract and would get into the
matter of his work schedule and pay at the time of the
negotiations.
The Union and Respondent scheduled a negotiating
meeting on June 27. However, because Creevey had been
terminated on June 24, the entire meeting was devoted to
the Union's efforts to get Creevey back to work and
negotiations never commenced.
Mrs. Liberto was asked when she made the decision to
lay off Bradley and replied as follows:
After I started understanding what a Union Petition
was, and after I started understanding what this was
going to involve, what this meant to the business. I
decided it was time to pull the business together. You
know just find out what was going on.
As a result during those months which you have
other evidence to substantiate there, my accounts
receivable were not coming in at its proper rate. I had
customers holding back four or five months, holding
back [three] months. And the money owed to me was
greater than the money I was actually bringing in.
So it got to the point there where the one week I
knew I had enough money to make payroll, but I did
not have enough money the following week to make
payroll. And I sought help and I was told if I let this
man work and in fact could not pay him at the end of
the week I was breaking the law.
Thereafter my only recourse was since I did not
know whether the house, but see we run on a cash
basis. We only work day to day from the cash that's
actually brought in.
And my account was actually operating in the red at
that particular time. And this is what I explained to Mr.
Bradley.
She testified that she selected Bradley for layoff because
he was the last man to be hired, having less seniority than
Creevey and the members of her family.
Mrs. Liberto and Mrs. Balkovec, the bookkeeper,
testified that Mrs. Liberto kept informed at all times as to
the checking account balance and on occasions after
February asked her sons not to cash their paychecks if
there was insufficient money in the checking account. She
testified that they held the checks until she told them it was
all right to cash them.
Mrs. Liberto described the economic problem of the
business she found on taking it over in 1976 and the
measures she took at that time to aid the business,
including purchase of a new truck in May 1976 which was
not delivered until February.
A 6-month financial statement for the period from July
1, to December 31, 1976, showed a profit for that period of
$5, and a statement for Respondent's fiscal year ending
June 30, 1976, showed a profit of $6,224.
1455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Concluding findings
The General Counsel contends that the layoff of Bradley
was discriminatorily motivated; and that the layoff, elimi-
nation of the helpers job, and the change in Creevey's
duties and pay were unilateral changes made in violation of
Respondent's bargaining obligation. Respondent contends
that the layoff was economically motivated, and that it did
not violate its bargaining obligation because the Union was
aware of the changes and made no request to bargain over
them and because Creevey had held himself out to
Respondent as the representative of the Union who would
bargain on its behalf with Respondent.
As in the case of Flaitz, the General Counsel has
presented a prima facie case in support of the contention
that Bradley was laid off for discriminatory reasons. The
layoff came I week after the election. Both the results of
the election in which Bradley was one of the two who voted
and Bradley's service as union observer at the election
identified Bradley as a union supporter. Respondent
demonstrated animus against the Union and indicated that
it would take drastic action to avoid dealing with it. The
effect of Bradley's layoff following the termination of
Flaitz and the separation of Sum was to reduce the
bargaining unit to one man. There is ample basis to infer
that Respondent's motive in laying off Bradley was to
reduce the unit to a size which would eliminate the basis
for collective bargaining or at least render it ineffective
while continuing to operate the business by utilizing the
services of R. J. Liberto and the Liberto sons.
The gist of Mrs. Liberto's testimony is that after the
petition was filed she started looking more closely at what
was going on, found one week that her bank balance would
go into the red the next week so that she would not be able
to pay Bradley, found that it was unlawful not to pay him if
he worked, and decided to lay him off. In support of this
testimony, Respondent introduced a collection of checks
made out to members of the Liberto family to support
testimony that in addition to laying off Bradley she asked
family members to hold checks because of the state of
Respondent's checking account and a summary of check-
ing account activity from March 31 through May 18.
Mrs. Liberto's puzzling connection of the petition with
a decision that it was time to find out what was going on
runs into her testimony elsewhere that she had been
making an ongoing effort for more than a year since R. J.
Liberto had left to improve the condition in which she had
found the business. The gratuitious attribution of the cause
of a review resulting in Bradley's layoff to the filing of the
petition is indicative that the petition played a role in the
determination.
Although Mrs. Liberto's testimony and an exhibit of
selected canceled checks conveyed the impression that
Respondent's checking account balance hovered at the
brink of overdraft for a period of a few months and that
members of the family were frequently asked to hold their
checks before cashing them, comparison of the dates on the
canceled checks to the bank balances on the dates they
19 Also following a deposit on May 2, two checks were written to Mrs.
Liberto on May 3 and 5 for $1,000 and $5.000. Neither of these was shown
to have been withheld from deposit despite the introduction of much smaller
were drawn shows that in only two instances was there any
reason to delay their deposit. Bookkeeper Balkovec's
testimony makes it clear that the canceled checks placed in
evidence were selected by her simply by comparing the
dates on which the checks were drawn to the dates stamped
on them by the bank on the assumption that the reason for
the delay in their clearance by the bank was Mrs. Liberto's
instruction to members of her family. There is no testimony
that any of the canceled checks in evidence were in fact
held back at Mrs. Liberto's request.
A summary of bank balances and checks drawn pre-
pared by Mrs. Balkovec shows only one period when
checks had been drawn for more than the checking account
balance. That period was April 29 through May 2. Only
two of the canceled checks were issued during this period
and were not deposited until May 3 and 9. Even as to these
checks the evidence leaves a substantial unanswered
question. On April 25, 3 days after Bradley was laid off,
Respondent wrote a check for $3,000 to R. J. Liberto for
medical reimbursement for 1976. When asked about the
entry in the summary of checking account transactions,
Mrs. Balkovec only cast further doubt on the summary by
suggesting that the check was paid to Mrs. Liberto rather
than R. J., and she testified that it was for medical
reimbursement which the owners are permitted to take
under their corporate setup. There is no evidence that this
check was withheld from deposit, yet its amount was
substantially greater than any other written during this
period and substantially exceeded the maximum negative
balance shown from April 29 through May 2. No explana-
tion was offered for having written a check to one of the
owners in April for a deferred reimbursement for personal
expenses at a time when Respondent allegedly could not
meet its bills.19
I conclude that Mrs. Liberto's testimony contains sub-
stantial exaggeration of the state of Respondent's check-
book and the urgency of any need to lay Bradley off.
Respondent had already reduced its complement and
expenses by two employees and their salaries. While there
was a checkbook crisis the week after Bradley was laid off,
that crisis would not have existed if Respondent had
deferred another several days reimbursing either R. J. or
Mrs. Liberto the deferred medical expenses of the Libertos.
I conclude that the true explanation for the layoff lies not
in the checkbook crisis and the alleged advice that she
would break the law by allowing Bradley to work without
being able to pay him but in what is suggested by Mrs.
Liberto's initial answer to the question about the timing of
her decision to lay off Bradley. I conclude that because of
the election Respondent decided to reduce its complement
of employees who were not family members and to rely on
the increased effort of the family members to keep the
business running. Accordingly, I find that Bradley's layoff
violated Section 8(a)(3) of the Act.
With respect to the alleged refusal to bargain, the
General Counsel contends that the layoff of Bradley, the
change in the manning of Creevey's route, and the raise for
Creevey were all matters over which Respondent was
canceled checks dated May 6, 13, and 27 as alleged evidence that additional
checks were held by family members at Mrs. Liberto's request during that
period.
1456
R. J. LIBERTO, INC.
obligated to bargain before implementing any changes;
and that the unilateral changes violated Section 8(a)(5) of
the Act. Respondent raises several defenses. First it
contends that these were daily operating decisions of a
kind which Respondent could continue to make without
bargaining over them, particularly as the Union was not
yet certified. I cannot agree. The elimination of the helper
from one of the routes was unprecedented and was the
direct cause of Bradley's layoff. Part and parcel of that
action was the offer of an increase to Creevey. All were
bargainable matters, and certification of the Union in the
absence of objections to the election was imminent.
Respondent also contends that insofar as it knew
Creevey was going to represent the Union in bargaining so
that he was the appropriate person for Respondent to
speak to about the changes. There is evidence, including
the testimony of Creevey, that he gave Respondent reason
to believe that he alone or with Respondent's other
employees would negotiate the contract for the Union.
However, notwithstanding that fact, this contention must
fail because Respondent did not give notice of the changes
or an opportunity to bargain over them to Creevey before
placing them in effect. Rather, Respondent laid off Bradley
and then presented Creevey with an accomplished fact,
asking him for an immediate choice between two assign-
ments and making the choice for him when he deferred his
response. Such conduct the Act proscribes.2 0
Finally, Respondent contends that the Union was noti-
fied of the changes by Creevey and Bradley and made no
objection but told Creevey to do his job, and that it would
discuss the matter with Respondent when negotiations
started. Had the Union been informed by the employees
that Respondent proposed to make changes and nonethe-
less failed to respond, Respondent's contention might be
well taken. But like Creevey and Bradley, the Union
learned of accomplished facts. I conclude in these circum-
stances that the unilateral changes by Respondent on April
22 violated Section 8(a)(5) of the Act.
IV. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully discharged
Nicholas Flaitz and temporarily laid off Theodore Bradley,
I shall recommend that Respondent be ordered to offer
Flaitz immediate and full reinstatement to his former job,
without prejudice to his seniority or other rights and
privileges previously enjoyed, and that Respondent be
ordered to make Flaitz and Bradley whole for any loss of
earnings they may have suffered as a result of the
discrimination against them by payment to them of the
amounts they normally would have earned, in the case of
Flaitz from the date of his discharge until the date of
Respondent's offer of reinstatement and in the case of
20 N.L.R.B. v. Benne Katz d/b/a Williamsburg Steel Products Co., 369
U.S. 736, 747 (1962); The Lange Company, a Division of Garcia Corporation,
222 NLRB 558, 567 (1976).
21 See, generally. Isis Plumbing & Heatring Co., 138 NLRB 716 (1962).
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Bradley from the date of his layoff until the date of his
recall, less net earnings, to which shall be added interest to
be computed in the manner prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).21
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. R. J. Liberto, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Refuse and
Salvage Drivers and Helpers Union, Local 609, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By questioning employees about their union activi-
ties, by threatening to take drastic action or close or sell
Respondent's business in order to avoid bargaining with a
union, by conveying that union representation would be
futile, and by imposing and enforcing a rule against
discussion among employees of their working conditions,
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the Act.
4. By discharging Nicholas Flaitz and laying off Theo-
dore Bradley because of their union activities, Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(3) and (I) and 2(6) and
(7) of the Act.
5. All refuse drivers and helpers and truck mechanics
employed by Respondent at its Pittsburgh, Pennsylvania,
facilities, excluding all other employees, office clerical
employees, and guards, professional employees, and super-
visors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
6. At all times since April 15, the Union has been and
now is the exclusive representative of the employees in said
unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
7. By unilaterally eliminating Theodore Bradley's job,
changing the job duties of driver William Creevey, and
raising Creevey's salary without giving notice to the Union
and affording it an opportunity to bargain about the
changes, Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Sections 8(aX5)
and (1) and 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:
ORDER 22
The Respondent, R. J. Liberto, Inc., its officers, agents,
successors, and assigns, shall:
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
we findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i. Cease and desist from:
(a) Questioning employees about their union activities.
(b) Threatening to take drastic action or close or sell its
business in order to avoid bargaining with a union.
(c) Conveying to employees that representation by a
union would be futile.
(d) Imposing or enforcing a rule against discussion
among employees of their rates of pay, hours, or other
terms or conditions of employment.
(e) Discharging, laying off, or otherwise discriminating
against employees in regard to hire or tenure of employ-
ment or any term or condition of employment because they
become members of or engage in activities on behalf of
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Refuse and
Salvage Drivers and Helpers Union, Local 609, or any
other labor organization.
(f) Making unilateral changes in rates of pay, wages,
hours, or other terms or conditions of employment without
notifying and affording an opportunity to bargain to
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Refuse and
Salvage Drivers and Helpers Union, Local 609, as the
exclusive bargaining representative of its employees in the
following appropriate unit:
All refuse drivers and helpers and truck mechanics
employed by Respondent at its Pittsburgh, Pennsylva-
nia, facilities, excluding all other employees, office
clerical employees, and guards, professional employees,
and supervisors as defined in the Act.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of the right to engage in
or refrain from engaging in any or all of the activities
specified in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Nicholas Flaitz immediate and full reinstate-
ment to his former job, or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights or privileges previously enjoyed,
and make him and Theodore Bradley whole for any loss of
earnings they may have suffered as a result of the
discrimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of compliance
with paragraph (a) above.
(c) Upon request, bargain with the above-named labor
organization as the exclusive bargaining representative of
all employees in the aforesaid appropriate unit with respect
to rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(d) Upon request by the above-named labor organiza-
tion, restore the practices, as they existed before April 22,
with respect to the manning of its routes and the work
assignments and pay of its employees.
(e) Post at its Pittsburgh, Pennsylvania, place of business
copies of the attached notice marked "Appendix." 23
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by Respon-
dent's authorized representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it 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,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
23 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."
APPENDIX
NoTIncE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question our employees about their
union activities.
WE WILL NOT threaten to take drastic action or close
or sell our business in order to avoid bargaining with a
union.
WE WILL NOT convey to our employees that repre-
sentation by a union would be futile.
WE WILL NOT impose or enforce any rule against
discussion among employees of rates of pay, hours, or
other terms and conditions of employment.
WE WILL NOT discharge, lay off, or otherwise
discriminate against our employees in regard to their
hire, tenure, or any term or condition of employment
because they become members of or engage in activities
on behalf of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Refuse and Salvage Drivers and Helpers Union, Local
609, or any other labor organization.
WE WILL NOT make unilateral changes in the terms
and conditions of our employees' employment without
first notifying International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Refuse and Salvage Drivers and Helpers Union, Local
609, and offering it an opportunity to bargain over such
changes as the exclusive representative of the employ-
ees in the bargaining unit described below.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to engage in or to refrain from engaging in any or
all of the activities specified in Section 7 of the Act.
These activities include the right to self-organization, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted
1458
R. J. LIBERTO, INC.
activities for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL offer Nicholas Flaitz immediate and full
reinstatement to his former job, or, if that job no longer
exists, to a substantially equivalent job, without preju-
dice to his seniority or other rights and privileges
previously enjoyed, and WE WILL make him and
Theodore Bradley whole for any loss of earnings they
may have suffered as a result of discrimination against
them.
WE WILL, upon request, bargain with the above-
named Union as the exclusive representative of all
employees in the bargaining unit described below with
respect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an understanding
is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All refuse drivers and helpers and truck mechan-
ics employed at our Pittsburgh, Pennsylvania,
facilities, excluding all other employees, office
clerical employees, and guards, professional em-
ployees, and supervisors as defined in the Act.
WE WILL, upon request by the Union, restore the
practices, as they existed before April 22, 1977, with
respect to the manning of routes and the work assign-
ments and pay of employees.
R. J. LIBERTO, INC.
1459