Certified Grocers of Caliifonia, Ltd.

National Labor Relations Board - Board Decisions

Mar 8, 1961

130 N.L.R.B. 1255 (N.L.R.B. 1961)

CERTIFIED GROCERS OF CALIFORNIA , LTD. 1255
ment,. the electrical assembly section, and the research laboratory.
The employees in testing and assembly are part of the production
process. The assembly employees install auxiliary equipment on the
transformers which are the Employer's product. The testers are en-
gaged in'perfarming different kinds of tests on transformers. While
in connection with their own equipment they may occasionally do
some routine maintenance, their work does not require the exercise
of the skills of the electrician's craft. We conclude that neither the
testers nor assemblers should be included 2
With respect to the two electricians in the research laboratory, the
record indicates that they are engaged principally in the fabrication
of specially designed machinery not otherwise available. They do
not exercise the full range of the electrician's skills, are separately
supervised, and they do not do electrical maintenance. We exclude
them. Accordingly, as the Petitioner is a traditional representative
of the electrician's craft, we shall direct an election in the following
voting group :
" All maintenance electricians of the Employer at its St. Louis, Mis-
souri, plants, excluding all other employees, guards, and supervisors
as defined in the Act.3
If a majority vote for the Petitioner they will be taken to have
indicated their desire to constitute a separate appropriate unit, and
the Regional Director conducting the election directed herein is in-
structed to issue a certification of representatives to the Petitioner for
this unit, which the Board, under such circumstances, finds to be
appropriate for purposes of collective bargaining. In the event a
majority do not vote for the Petitioner, these employees shall remain
a part of the existing unit and the Regional Director shall issue a
certification of results of election to such effect.
[Text of Direction of Election omitted from publication.]
2Thomp8on Ramo Wooldridge, Inc., 128 NLRB 236
8 The record does not support any unit description other than the above We therefore
reject the Petitioner 's alternative request.
Certified Grocers of California , Ltd. and Carlos V. Garcia. Case
No. 21-CA-4036. March 8, 1961
DECISION AND ORDER
On December 19, 1960, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
130 NLRB No. 130.
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached hereto.' Thereafter, the General Counsel filed exceptions to
the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
[The Board dismissed the complaint.]
CIIAIRMAN MCCULLOCH and MEMBER JENKINS took no part in the
consideration of the above Decision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Carlos V. Garcia, an individual, the General Counsel of the
National Labor Relations Board issued his complaint against Certified Grocers of
California; Ltd., Los Angeles, California, herein called the Respondent, alleging
that the Respondent had by discharging Garcia committed unfair labor practices
within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the
National Labor Relations Act, 61 Stat. 136, 73 Stat. 519, herein called the Act.
Pursuant to notice, the matter was tried before me in Los Angeles, California, on
September 6 and 7, 1960.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
j FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in the Los Angeles, California, area in the purchase and
wholesale distribution of dry groceries, frozen foods, delicatessen products, house-
wares, toiletries, and soft goods to retail stores by which it is wholly owned. Re-
spondent's annual gross volume of business exceeds $500,000 and it annually pur-
chases goods and materials valued in excess of $50,000 from points outside the State
of California. I find that the operations of the Respondent are in and affect com-
merce within the meaning of Section 2 (6) and (7) of the Act.
IL THE UNFAIR LABOR PRACTICES
Carlos Garcia was hired by the Respondent on June 10, 1952, and remained in its
employ until his discharge in late May or early June 1960. During these years
Garcia progressed to order man, order checker, forklift operator, and leadman. Be-
cause of economic considerations Garcia lost his last-mentioned status and reverted to
forklift or towmotor operator. He was working in the last classification at the time
of his dicharge. A member of Food, Drug and Beverage Warehousemen and Cleri-
cal Employees' Union, Local No. 595, herein called the Union, Garcia was elected
to the post of shop steward for his shift in August 1959, and reelected to that position
in December of that year. Because it is the contention of the General Counsel that
Garcia's actions as shop steward moved the the Respondent to discharge him, a
resume of them follows.
In August 1959, a fellow employee, Donald Green, told Garcia that his foreman,
Earl Anderson, had notified Green of an intention to demote him. In an attempt to
avoid the demotion, Green asked Superintendent Roland Renaud for an opportunity
to discuss the matter with him and Anderson. Renaud agreed. Before the meeting
took place, at the suggestion of Garcia, Green asked Renaud if Garcia might be
present. Renaud answered that he throught it unnecessary for Garcia to attend and
remarked, according to the credited and undenied testimony of Green, that he didn't
care to have "the damned blabbermouth present." The meeting was started with
three representatives of the Respondent, Foreman Anderson, Superintendent Renaud,
and Operations Superintendent John Alexander confronting Green. Observing this
and considering, he testified, that Green was "outnumbered," Garcia walked into the
CERTIFIED GROCERS OF CALIFORNIA, LTD. 1257
meeting and told Alexander that he felt it to be unfair for Green not to have assist-
ance in the 'circumstances . The meeting broke up at this point . About a week later
a. further meeting was held on ' the same problem . A business agent of the Union
and Garcia attended , along with Green . The Respondent was represented by two
officers, Bob Thomas_a vice president , and Richard Holderness , its secretary, as well
as Superintendents Alexander and Renaud and Foreman Anderson . Anderson pre-
sented his reasons for the demotion and, according to Garcia , cited one occasion in
which Green had demonstrated an incapacity to perform his job properly. Garcia
interrupted to assert that the incident described by Anderson involved a different
employee and that Green had not been concerned in it. Holderness , according to
Garcia, said , "That is a lie." Garcia said that he resented being called a liar, and
Holderness denied that he had so characterized him. Holderness testified that he
didn 't call Garcia liar on the occasion described but did say that a statement made
by Garcia "was not so." The meeting, a heated one , ended with no further clashes.
In the same month, Garcia was absent from his work for about 45 minutes on mat-
ters relating to his stewardship . Upon his return Foreman Rhodes asked him where
he had been . Garcia answered that he had been discussing union business. Ac-
cording to Garcia 's undenied and credited testimony , Rhodes said that he was being
paid to work for the Respondent and not for the Union.
In October 1959, an employee, Don Palmer , having given notice of voluntary
termination and desiring to work about a month longer than the date he had first
selected for leaving Respondent 's employ, asked Garcia to assist him in gaining Re-
spondent 's consent to the extension . Garcia requested Superintendent Robert Walz
to arrange this. Walz refused to do so and, according to Garcia 's undenied and
credited testimony , refused to give Garcia any explanation for his decision.
In January 1960, at the request of an employee whom Walz had suspended , Garcia
asked Walz to explain the reason for the suspension . Walz answered , according to
Garcia, "I'm sending the man home on a disciplinary measure. It seems to me that
should be enough for anybody." Garcia persisted in his request for enlightenment
and Walz retorted that he did not feel that he had to explain his action , that he was
running the night shift , and that he was getting tired of listening to Garcia.
In the same month , an employee, Ronald Trujillo , reported to work 30 minutes
late. At the end of his shift he was told by his foreman to work an additional 30
minutes to make up for the time lost. Trujillo did not do so. Reporting for work
the next day, Trujillo was taken to Walz' office and there was questioned by Walz and
Superintendent Alexander about his failure to follow that instruction . Trujillo ex-
plained that he did not think that the direction from his foreman was meant
seriously . Uninvited, Garcia came to the office . Alexander asked Trujillo if he
wanted Garcia to represent him and, after some hesitancy , Trujillo replied that he did.
Garcia then entered into a discussion with Alexander on the problem , asserting that
under the Union 's contract , Trujillo could not be compelled to make up the 30
minutes lost by his tardiness . Both Walz and Alexander exhibited anger, according to
the credited and substantially undenied testimony of Trujillo and Garcia . Garcia tes-
tified that at one point Alexander threatened to fire Trujillo if Garcia did not "shut
up." Alexander and Walz then announced that Trujillo would be given a verbal
reprimand . Garcia answered that it should first be ascertained whether any discipline
was justified arguing that he believed the contract protected Trujillo in his refusal or
failure to work beyond the quitting time of his shift . Walz, after asking Garcia why
he did not "shut up ," left the room . Anderson said that Trujillo would be repri-
manded. When Garcia continued to protest , Alexander said that he was making a
nuisance of himself adding, "You know you are getting to be a pretty unpopular
bastard around here." When Garcia chided Alexander for using such a characteriza-
tion , Alexander said that he did not mean it in the way that Garcia had taken it.
After a few more words from Garcia to the effect that Alexander should be more
careful in his choice of words, Alexander said , "I have already told you to get the
hell out of here and stay out . Furthermore, if you have any more business to dis-
cuss with anybody, it 's going to have to be with Bob Thomas because either I or Bob
Walz have nothing to do with you."
In February 1960, observing Garcia to be away from his regular work, in posting
union notices, Foreman Anderson said that Garcia was taking unfair advantage of
his office as steward and that if he had time to waste on such projects he would see
to it that Garcia had less help on his job.
On May 26, 1960, Garcia was scheduled to report for work at 3 : 30 p.m. Feeling
depressed , nervous, and upset, Garcia testified , he decided not to work his shift and
telephoned the Respondent about 2:50 p.m . to report his intention to Foreman Wilson
Smith . Smith answered , according to Garcia 's undenied and credited testimony,
that he would pass the information on to Garcia's foreman , Earl Anderson . Garcia
had telephoned from a nearby restaurant and bar , a place frequented by a number of
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's employees . From his arrival at 2:45 p.m., Garcia remained at the bar
eating and drinking beer, until about 9: 30 p.m . During this period a number of Re-
spondent 's employees came off . shift and others, during their lunch periods came to
the bar where they saw and spoke to Garcia. Among them was a foreman, John
Dinielli . Employee Harold Nixon testified that he observed Garcia that afternoon
and that he appeared to be somewhat intoxicated . Another employee, James Hag-
erty, testified that he saw Garcia there about 7 p.m., that Garcia was intoxicated, and
that the bartender removed Garcia's beer and gave him a cup of coffee . Garcia
admitted to having a number of beers during his stay at the bar but denied that he
became intoxicated. However, leaving the bar, Garcia slept .in his car for,about an
hour and then after a visit home returned to the bar about 1 a.m., May 27. -
Friday, May 27, was a day off for Garcia but he came to the plant to get his
paycheck. During an apparently amicable conversation with Superintendent Alex-
ander, Garcia mentioned that he had not worked the previous.day.
Garcia was next scheduled to work on Monday, May 30, and accordingly re-
ported before his shift time. He was then told by Superintendent Walz that he
would not be permitted to work, that an investigation was being conducted concerning
his absence on May 26 following which a decision would be made concerning his
further employment. Walz did not question him about his failure to work. On
May 31, Garcia telephoned Superintendent Alexander and asked when he could
return to work. According to Garcia, Alexander said that he had recently learned
of Garcia's drinking at the bar on May 26, and asked Garcia if the latter had been
sober when he telephoned the plant of his intention not to work. Garcia answered
that he had been and explained that he had felt upset and depressed and for that
reason he did not feel that he could perform his work. Alexander answered that a
further investigation would be made. Alexander's testimony as to this conversation
differs only in that he testified that on this occasion he told Garcia he was discharged.
In any event, Garcia learned within a day or two of his discharge and has not since
been employed by the Respondent.
Among Respondent's posted rules governing employee conduct is one subjecting
them to possible discharge for:
UNEXCUSED ABSENTEEISM
Being absent from the job without permission, such as failing to report to work
without notice, leaving the job without permission, failing to return from vaca-
tion, leave of absence, sick leave (or other authorized absence) as scheduled,
or failing to show a compelling reason for any absence which was not excused
in advance. Failure to file an absentee report results in an absence being re-
corded as personal time off and prohibits the payment of sickness or injury
benefits.
In its answer Respondent alleges that Garcia was discharged because he failed to
appear for work on May 26 without good reason. I think it cannot be doubted but
that Garcia violated the literal meaning of the rule but there is uncontroverted and
credited testimony by Garcia and employees William Lugan and Louis Forman to
the effect that an employee having given notice of intended absence was not there-
after required to show any reason for his failure to work; that the Respondent
appeared to be satisfied in such situations if in filling out an absentee report the
employee put down as a reason for absence, "personal." It is true that the occasions
of absence given in the testimony of the three witnesses last mentioned were
legitimate enough, but there is no evidence that the Respondent was at any time
aware of these reasons. I conclude that it has not been the practice of the Respond-
ent to require an employee to give a compelling reason or any reason for an absence
concerning which advance notice has been given.
Superintendent Alexander was questioned about the discharge of an employee
Rusty DiBernardino. Alexander testified that DiBernardino telephoned the plant
before his shift, on some occasion, to report that he was ill and unable to work. The
Respondent later learned that this assertion was false and DiBernardino in conse-
quence was discharged. About 2 weeks later, because of compassionate circum-
stances; according to Alexander, DiBernardino was rehired.
Alexander testified that on May 30, he first learned that Garcia had spent a sub-
stantial portion of the shift he was scheduled to work on May 26 at a nearby bar
and that he had been seen there by a number of Respondent's employees in an intoxi-
cated condition. Consulting with other members of management , Alexander testi-
fied he came to the conclusion that the rule requiring a valid reason for absence had
been violated and that it had been done in such a notorious and flagrant manner as
to merit severe discipline. According to Alexander he felt that the presence of
Garcia at the bar where he came to the notice of other employees during scheduled
CERTIFIED GROCERS OF CALIFORNIA, LTD. 1259
worktime.migl t be.regar'ded.by the employees as indicating an attitude of'iridiffeience
on the part of the Respondent to the observance of its posted rules and might make
more serious the already existing problem of regular work attendance. According
to Alexander he felt.that the Respondent either must exemplify the vitality of the
rule which Garcia had violated, or by failing to do so signal its practical
abandonment.
Garcia had worked for the Respondent for almost 8 years when his termination
came. There is no evidence and no suggestion of the existence of any that he was in
any respect an unsatisfactory employee. On the contrary Alexander conceded that
Garcia "performed, his work adequately" and the fact of successive advancement
through various' classifications to leadman bespeaks Respondent's satisfaction with
him. I credit Garcia fully in his account of his several experiences' with representa-
tives of the Respondent in his attempts to adjust grievances or otherwise to represent
the interests of the employees on his shift. That Respondent's managerial personnel
resented Garcia's persistence in these matters is clearly evident and not substantially
disputed. Not until Garcia took office as steward is there any suggestion that Re-
spondent considered him to be a "damned blabbermouth" or was he characterized as
any sort of a "bastard."
This disaffection for Garcia no doubt persisted until the date of his discharge. It
is evident, and I find, that the Respondent did not require employees to provide a
satisfying reason for an absence of which prior notice had been given. This may
not have been true of an individual who frequently advised that he would not or
could not come to work but Garcia was not such a person. But it is argued that
had the Respondent condoned Garcia's conduct of May 26 its absentee problem
would in all probability have been accentuated. Had Garcia remained quietly at
home on that day, one may safely assume that no specified compelling reason for
his absence would have been demanded or expected. But he did not 'do so and the
Respondent became aware on May 30, if not before,' that he had spent much of the
afternoon and evening at a bar. Not until then, apparently, did his absence assume
importance. Why did it? The evidence fairly establishes that he was seen by a
number of Respondent's employees and that he at some time during the afternoon
or evening reached a point of intoxication. His speech was blurred and he was not
permitted to finish his beer. I do not think it to be suggested that Respondent's
employees were shocked at such a sight and I do not suppose that they were. The
kernel of the matter seems to be that by his stay at the bar during his normal working
hours Garcia was "flagrantly" flouting Respondent's posted rule. It is clear that he
was. As I have found, the rule against absence without good excuse was not one
closely policed and it seems probable that the Respondent did not find it necessary
to inquire of any individual who worked with reasonable regularity just why he was
absent on the infrequent occasions that he was. Surely without intending it, Garcia
on May 26 by staying at the nearby bar was telling any employee who noticed him
there that he could stay away from work just because he chose to do so and that
Respondent's contrary rule was inoperative.
The circumstances of this case are such as to invite speculations. One wonders if
the Respondent did not welcome this opportunity to impose its rule upon a steward
who had insisted to the Respondent that it could not under its contract with the
Union compel an employee to work beyond his scheduled shift hour. Assuming the
probability that the Respondent could have vindicated its rule by suspending Garcia
for a week or two, one wonders if it is not so that only because he was a steward was
the penalty of discharge visited upon him. But these conjectures are based upon
nuances of evidence too slight to support them. In short, I do not consider that the
allegations of the complaint have been sustained by a preponderance of the evidence.
I will recommend that the complaint be dismissed.
Upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Certified Grocers of California, Ltd., Los Angeles, California, is an employer
within the meaning of Section 2(2) of the Act and its operations are in and affect
commerce within the meaning of Section 2(6) and (7) of the Act.
'Here a curious and puzzling anachronism appears. Alexander testified that the deci-
sion to discharge Garcia was made on May 31. However, a Termination of Employment
form signed by Alexander and Walz is dated May 27. This exhibit came in without
explanation of this discrepancy and none was later offered. Neither Walz nor Alexander
was questioned about it. I doubt that the exhibit is accurately dated. Had the decision
been reached on the earlier date it seems probable that Garcia would have been told of
it when he reported for work on May 30.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Food, Drug and Beverage Warehousemen and Clerical Employees ' Union,
Local No. 595, is a labor organization within the meaning of Section 2'(5.) of the Act.
3. The evidence does not.by its preponderance establish that Carlos V. Garcia
was discharged in violation of Section 8(a) (1) or (3) of the Act.
[Recommendations omitted from publication.]
United Slate , Tile and Composition Roofers, Damp and Water-
proof Workers Association , Local No . 316 and Aldecks Com-
pany, Inc., Charging Party. Case No. 12-CB-350. March 8,
1961
DECISION AND ORDER
On September 14, 1960, Trial Examiner George L. Powell issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and the brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of theTrial Examiner.2
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent United Slate,
Tile and Composition Roofers, Damp and Waterproof Workers Asso-
ciation, Local No. 316, its officers, agents, representatives, successors,
and assigns, shall:
1. Cease and desist from :
(a) Causing or attempting to cause Southland General Builders,
Inc., Aldecks Company,.Inc., their officers, agents, successors, or as-
signs or any other employer over whom the National Labor Relations
i Chairman McCulloch and Member , Jenkins did not participate in this Decision.
2 The Respondent filed no exceptions to the Trial Examiner 's Intermediate Report and
Recommended Order . The General Counsel in his exceptions contends that the findings of
law in the Intermediate Report and Recommended Order therein should be modified be-
cause of the Trial Examiner 's failure to conclude expressly that the Respondent violated
Section 8 ( b) (2) of the Act by causing or attempting to cause Southland General Builders,
Inc., to discriminate against Aldecks ' employees . As we read the Intermediate Report
as having in effect made such finding, we clarify the decision and modify the order
accordingly. -
130 NLRB No. 127.