Local 20, Bakery and Confectionery Workers, etc.

National Labor Relations Board - Board Decisions

Jan 8, 1960

126 N.L.R.B. 22 (N.L.R.B. 1960)

22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warner, upon returning to work for the week ending February 18, worked 32
hours, having started 1 day late for that pay period During the week ending Febru-
ary 25 he worked 36 hours, having quit early on Saturday For the week ending
March 4, he worked 40 hours On March 11 he quit
Analysis of the payroll records further reflect that nonunion men such as Barnett,
Claunch, Gruhler, Arthur Shaw, and David Shaw also had short workweeks during
this same period of time
Contrary to the General Counsel's contention the record reveals no discrimination
in assignment of duties to strikers who returned to work Woodley testified that he
had been switched from mechanical work to painting and body work By his own
admission this transfer was made at his request
Guy, who was a helper on the third shift prior to the first strike, was transferred
to a more desirable shift upon his return to work in February
Likewise, the record fails to sustain the General Counsel's contention that after
the men returned to work in February, Respondent discriminated against the ad-
herents to the Union in the allotment of overtime work.
The General Counsel's further contention that Brandon was discriminated against,
upon his return to work in February, by being refused field work is not supported by
the record as a whole ii This change in job duties wassolely brought about at the
request of Long's general superintendent who requested Patterson not to send
Brandon into the field to change tires or to do any other work there because Brandon
interfered with Long's employees by engaging them in extensive conversation
The record is also devoid of any credible evidence that Respondent failed or re-
fused to bargain collectively with the Unions after the execution of the settlement
agreement or in any manner unlawfully interfered with the employee's statutory
rights
E Concluding findings
Upon the entire record in the case, the Trial Examiner is convinced, and finds,
that the General Counsel has failed to prove by a fair preponderance of the credible
evidence that Respondent has violated the terms of the settlement agreement or
has committed any unfair labor practices since its execution Therefore, pursuant
to the long standing Board policy,ia the Trial Examiner honors the settlement agree-
ment and declines to consider any incident which took place prior thereto as a basis
of a finding of an unfair labor practice Accordingly, the Trial Examiner will recom-
mend that the consolidated complaint be dismissed, in its entirety
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
the Trial Examiner makes the following
CONCLUSIONS OF LAW
1 Eveready Garage, Inc, Phoenix, Arizona, is engaged in, and during all times
material was engaged in, commerce within the meaning of Section 2(6) and (7) of
the Act
2 Local 428 and Local 83 are labor organizations within the meaning of Section
2(5) of the Act
3 The allegations of the consolidated complaint that Respondent has engaged in
and as engaging in unfair labor practices within the meaning of Section 8 (a) (1),
(3), and (5) of the Act have not been sustained by substantial evidence
[Recommendations omitted from publication ]
n This job pays more per hour and a field worker normally receives overtime work
19 See, for example, Wooster Brass Company, 80 NLRB 1633, and cases cited therein
Local 20, Bakery and Confectionery Workers International
Union of America [Berwick Cake Company ] and Samuel
Iannuzzi. Case No 1-CB-525 January 8, 1960
DECISION AND ORDER
On July '27, 1959, Trial Examiner John H Eadie issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
126 NLRB No 3
LOCAL 20, BAKERY AND CONFECTIONERY WORKERS, ETC. 23
Respondent had not engaged in the alleged unfair labor practices,
and recommending that the complaint herein be dismissed, as set
forth in the copy of the Intermediate Report attached hereto. 'There-
after, the General Counsel and the Charging Party filed exceptions
to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and adopts the Trial Examiner's findings and conclusions only
to the extent consistent herewith.
1. As set forth in the Intermediate Report, on October 14, 1958,
Samuel Iannuzzi, the Charging Party herein, spoke to Mr. Goodale,
president of the Company, and to Raymond Ferazani, its foreman,
about a job. As a result of these convensations, Iannuzzi was told to
report to work at 3 :30 the following morning. Thereafter, lannuzzi
called the Respondent's business office and talked to Stanley Mirowski,
its secretary-treasurer. He told Mirowski about his offer of a job with
the Company and asked what it would cost him to transfer from Local
348 1 to the Respondent. Mirowski replied that he did not know, but
indicated no objection to Iannuzzi's working for the Company. That
afternoon Fred Cabuzzi, the Respondent's business agent, called
Ferazani and berated him for hiring a man without having called
the union hall, and stated that he would also have a man at the plant
the following morning.
,On October 15, at approximately 3 a.m. Tony DiLimpio reported
for work and told Ferazani that Cabuzzi had sent him. Ferazani put
both DiLimpio and Iannuzzi to work 2 Between 10 and 11 a.m. the
same morning, Mirowski came to the plant and told Ferazani, in
effect, that he should not have hired Iannuzzi without having first
called the union hall, that "we have men that are looking for work,
men in good standing, and they should be put to work first." He also
asked if DiLimpio had reported for work. At the end of the shift, or
about 11:15 a.m., Goodale and Ferazani had a conversation with
lannuzzi in which Goodale told lannuzzi, "I'm sorry, I have to let
you go because Stanley Mirowski of Local 20 came down here ... .
If you can get it straightened out with Freddie Cabuzzi and Local 20,
I'll take you back to work."
As Ferazani testified that the 'Company normally calls the Respond-
ent for men as a matter of convenience rather than compulsion; that
the Company has lured new employees during the 6 months prior to
the hearing who were not members of the Respondent, and that neither
Cabuzzi nor Mirowski had ever told him that he had to discharge
Local 348, American Bakery and Confectionery Workers International Union, AFL-
CIO, a rival union.
2 Ferazani testified that he needed only one man, but that "at that time I just couldn't
send the man home at 3:30 in the morning."
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iannuzzi or that he could not put him to work, the Trial Examiner
concluded that the General Counsel had failed to prove that the Re-
spondent had caused or attempted to cause the Company to discharge
Iannuzzi.
In their exceptions, the General Counsel and Charging Party con-
tend that the Trial Examiner failed to consider the record as a whole,
and particularly Ferazani's admission that he had to let Iannuzzi go
"because that's the way it was put to me . . . by Mr. Cabuzzi." The
General Counsel and the Complainant also contend that the Trial
Examiner should have found the violation as alleged, and also should
have specifically found that (1) the Company had only one job avail-
able for the two men who applied; (2) Mirowski knew there was only
one job available when he visited the plant on the morning of October
15, 1958, the very day Iannuzzi began work and was discharged, and
(3) the Company was satisfied with Iannuzzi's work.
We find merit in these contentions. While the Trial Examiner
credited Ferazanis testimony to the effect that he had never been
told in so many words by either of Respondent's representatives that
he could not hire Iannuzzi or that he would have to discharge him,
at no point in the Intermediate Report did he discredit or even
mention Ferazani's undenied testimony regarding what Cabuzzi
told him prior to the discharge. Concerning this conversation,
Ferazani testified as follows :
A. I told him (Iannuzzi) that he had to be reinstated in Local
20; and if he did so, we'd put him right back to work.
Q. And why did you say that to him?
A. Because that's the way it was put to me.
Q. By whom?
A. By Mr. Cabuzzi.
This specific testimony is in our opinion more probative of the
part played by the Respondent in connection with the discharge than
the testimony which merely negates the use of certain words by the
Respondent's representatives in the course of their discussions with
Ferazani. Accordingly, in view of the above testimony, as well as
the other evidence set forth herein, including the evidence which
clearly discloses that Cabuzzi knew there was only one job available
when he insisted upon sending an additional employee (DiLimpio)
over for the job which had already been assigned to Iannuzzi; that
Mirowski also knew that there was only one job available when he
visited the plant on October 15; and that Ferazani found Iannuzzi's
work satisfactory, we find, contrary to the Trial Examiner, that the
Respondent caused Iannuzzi's discharge, in violation of Section
8(b) (1) (A) and (2) of the Act, as alleged in the complaint.'
3 See Local 776 IATSE (Film Editors ) ( Cascade Pictures of California, Inc ), 124
NLRB 842.
LOCAL 20, BAKERY AND CONFECTIONERY WORKERS, ETC. 25
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section 1, above,
occurring in connection with the operations of the Company de-
scribed in section I of the Intermediate Report, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
THE REMEDY
Having found that, in violation of Section 8(b) (1) (A) and 8(b)
(2) of the Act, the Respondent has caused Berwick Cake Company
to discriminate against Samuel Iannuzzi, we shall direct the Re-
spondent to notify the above-named Company in writing, and fur-
nish a copy of said notification to lannuzzi, that it has withdrawn its
objections to the employment of Iannuzzi by the Company, and re-
quest the Company to reinstate him to the position he formerly held.
This notification will also state that, if the job formerly held by
Iannuzzi, is now held by DiLimpio, or other member of the Re-
spondent, the Respondent will have no objection to the layoff of
DiLimpio or 'such other member of the Respondent, if such action is
necessary in order to effect the reinstatement of Iannuzzi in his
former position. We shall also direct that the Respondent reimburse
Iannuzzi for any loss of pay he may have suffered by payment to
him of a sum of money equal to the amount he would have earned as
wages from the date of the discrimination to the date of the
Respondent's notification to the Company and Tannuzzi, as set forth
above, less his net earnings during said period. Determination of
the amount of back pay due shall be based on the quarterly method
of computation established by the Board in the F. W. Woolworth
Company case.4
Upon the above findings of fact and upon the entire record in the
case, we hereby make the following :
CONCLusION S OF LAW
1. Berwick Cake Company is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The Respondent, Local 20, Bakery and Confectionery Workers
International Union of America, is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By restraining and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent has engaged
4 90 NLRB 289, 291-294. As the Trial Examiner dismissed the complaint herein we
shall, in accord with the Board's customary practice, abate back pay for the period be-
tween the date of the Intermediate Report and the date of our Decision and Order.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and is engaging in unfair labor practices within the meaning of
Section 8 (b) (1) (A) of the Act.
4. By causing Berwick Cake Company, an employer , to discriminate
against an employee in violation of Section 8(a) (3) of the amended
Act, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act.
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 , Local 20, Bakery
and Confectionery Workers International Union of America, its of-
ficers, representative , agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Causing or attempting to cause Berwick Cake Company, or any
other employer , to discharge , terminate , or in any other manner dis-
criminate against employees in regard to hire or tenure of employ-
ment, or any term or condition thereof, except as authorized by Sec-
tion 8 ( a) (3) of the Act, as modified by the Labor Management
Reporting and Disclosure Act of 1959.
(b) Restraining or coercing employees or prospective employees
of Berwick Cake Company, its successors or assigns , in the exercise of
their right to engage in, or to refrain from engaging in, any and all of
the concerted activities listed in Section 7 of the Act, except to the
extent that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act, as modified by the Labor
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify the Company, in writing, and furnish a copy to Samuel
lannuzzi , that the Respondent has no objection to the employment of
lannuzzi by the Company without regard to his membership or non-
membership in the Respondent, or any other labor organization, and
without prejudice to his seniority or other rights and privileges; said
notification shall contain a request that the Company offer Samuel
Iannuzzi reemployment as provided in the section of this Decision and
Order entitled "The Remedy."
(b) Make whole Samuel lannuzzi for any loss of pay he may have
suffered as a result of the discrimination against him in the manner set
forth in the section of this Decision and Order entitled "The Remedy."
LOCAL 20, BAKERY AND CONFECTIONERY WORKERS, ETC. 27
(c) Post in conspicuous places at the business office of the Respond-
ent copies of the notice attached hereto marked "Appendix." I Copies
of said notice, to be furnished by the Regional Director for the First
Region, shall, after being duly signed by the Respondent, be posted
by it immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days thereafter in conspicuous places, includ-
ing all places where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that the
notices are not altered, defaced, or covered by any other material.
(d) Furnish to the Regional Director for the First Region signed
copies of the notice attached hereto as Appendix for posting by Ber-
wick Cake Company, it being willing, at places where it customarily
posts notices to its employees.
(e) Notify the Regional Director for the First Region in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
c In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 20, BAKERY AND CONFECTIONERY
WORKERS INTERNATIONAL UNION OF AMERICA, AND TO ALL
EMPLOYEES OF BERWICK CAKE COMPANY
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our members and the
employees of Berwick Cake Company that :
WE WILL NOT cause or attempt to cause Berwick Cake Com-
pany, or any other employer, to discriminate against employees
in regard to their hire or tenure of employment or any term or
condition to employment in violation of Section 8(a) (3) of the
Act, as modified by the Labor Management Reporting and Dis-
closure Act of 1959.
WE WILL NOT in any manner restrain or coerce employees of any
employer in the exercise of rights guaranteed them in Section 7
of the Act, except to the extent that such right may be affected by
a lawful agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section
8(a) (3) of the Act, as modified by the Labor Management Re-
porting and Disclosure Act of 1959.
WE WILL notify Berwick Cake Company and Samuel Iannuzzi
that we withdraw our objections to the employment of Samuel
Iannuzzi by that Company.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make Samuel Iannuzzi whole for any loss of pay suf-
fered because of our discrimination against him.
LOCAL 20, BAKERY AND CONFECTIONERY WORKERS
INTERNATIONAL UNION OF AMERICA,
Labor Organization.
Dated----- ----------- By-------------------------------------
(Representative ) ( Title)
This notice shall remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by Samuel Iannuzzi, an individual , the General Counsel of
the National Labor Relations Board , by the Regional Director for the First Region,
issued a complaint dated February 27, 1959, against Local 20. Bakery and Confec-
tionery Workers International Union of America , herein called the Respondent,
alleging that the Respondent had engaged in unfair labor practices within the mean-
ing of Section 8(b)(1)(A ) and (2 ) and Section 2(6) and ( 7) of the National Labor
Relations Act, as amended, herein called the Act.
An answer in the form of a letter , dated March 9, 1959, was filed by the Respond-
ent, in which it denied the allegations of the complaint.
Upon the entire record and from his observation of the witnesses , the Trial Ex-
aminer makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Berwick Cake Company, herein called the Company, is a Massachusetts
corporation with its principal office and plant located at Roxbury, Massachusetts,
where it is engaged in the manufacture , sale, and distribution of cakes and related
products. The Company annually ships finished products valued at more than
$50,000 directly to points outside the State of Massachusetts.
The complaint alleges, the parties stipulated at the hearing, and the Trial Examiner
finds that the Company is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 20, Bakery and Confectionery Workers International Union of America
is a labor organization which admits to membership employees of the Company.
III. THE ALLEGED UNFAIR LABOR PRACTICES
During the times mentioned herein the Respondent had a collective -bargaining
contract with the Company . This contract contained a "union shop" clause and
provided that "all new employees of the Employer [ meaning employees hired by
the Employer subsequent to September 10, 1951 ] as a condition of continued em-
ployment shall be members of the Union on the thirtieth day following the beginning
of their employment . .. ..
Samuel Iannuzzi worked for Ward Baking Company for 28 years until it closed
its plant on July 3, 1958. He was a member of the executive board of "Local 348,
American Bakery and Confectionery ," rival union of the Respondent herein. On
October 14 , 1958, lannuzzi spoke to Mr. Goodale, president of the Company, and to
Raymond Ferazani , its foreman . As a result of these conversations , lannuzzi was
told to report to work at 3:30 a in on October 15.
Iannuzzi testified , in substance , that: About 10 a.m. on October 14 he called the
Respondent 's office and spoke to Stanley Mirowski, its secretary -treasurer ; he told
Mirowski about his offer of a job with the Company , asking him what it would cost
for him to transfer from Local 348 to the Respondent ; Mirowski replied that he did
not know; and when he asked Mirowski if he had "any objections" to his going
LOCAL 20, BAKERY AND CONFECTIONERY WORKERS, ETC. 29
to work for the Company, Mirowski replied, "no, ... I know you need a job, and
good luck to you." 1
Fred Cabuzzi, business agent of the Respondent, called Ferazam during the after-
noon of October 14. Concerning this conversation, Ferazani testified credibly and
without contradiction as follows:
Well, he asked me if I had hired a man; and I said I did; and he asked me if
he was working. I says no, he's reporting the following morning at 3:30; and
he said if I had called the office, the union hall, and I said no, I hadn't because
I interviewed this man and he seemed to be the man that could fill the job at
that time. And he said, "well, we have men in good standing that should be
put to work." And I said, "well, I already told the man to report for work."
And he said that he would have a man the following morning also.2
Anthony DiLimpio reported for work on October 15 and told Ferazani that
Cabuzzi had sent him. Ferazani put him to work. lannuzzi also worked that day.
Ferazani testified that about 10 or 11 a.m. on October 15 Mirowski came to the
plant and talked to him. In this connection Ferazani testified, "Well, he told me
I had no right, I should have called the office, the union hall, because we had done
that previously; . And I said, well, the opportunity was there, the man [Iannuzzi]
called, he seemed to qualify, so I put him to work; we have to give a man a 3.0-day
trial, anyway. And he said, `Well, we have men that are looking for work, men in
good standing, and they should be put to work first,' . I told him that this man
was acquainted with Cabuzzi and he had plans of transferring over; and I told him
that I would tell lannuzzi to get his transfer and we'd hire him back, or we'd continue
with him, anyway. . . . He asked me if [DiLimpio] had come in to work... .
I said I put him to work."
Mirowski testified that: He went to the Company's plant about 11:45 a.m. on
October 15 in order to deliver a message to DiLimpio; he met Ferazani who told
him that two people reported for work and that he needed only one; and he replied,
"Well, you can do whatever you want with the thing; you've got a contract, go
according to the contract."
I credit Ferazani's version of the above conversation. Mirowski did not impress
me favorably as a witness.
Iannuzzi testified credibly that: About 10.45 a.m. on October 15 he saw Mirowski
in the plant; near the end of his shift and about 11:15 a.m. he had a conversation
with Goodale and Ferazani; 3 and Goodale told him, "I'm sorry, I have to let you
go because Stanley Mirowski of Local 20 came down here. . . . If you can get it
straightened out with Freddie Cabuzzi and Local 20, I'll take you back to work." 4
Ferazani testified that: The Company normally calls the Respondent when it
needs men; this is done as a matter of convenience and not of compulsion , because
the Respondent has the qualified men available; within the period of 6 months
before the hearing the Company hired new employees who were not members of
the Respondent; the Company did not call the Respondent as to them; and neither
Cabuzzi nor Mirowski had ever told him that he had to hire members of the
Respondent.
I find that the General Counsel failed to prove that the Respondent caused or
attempted to cause the Company to discriminate against lannuzzi. Ferazani, the
General Counsel's own witness, testified that Cabuzzi did not tell him to discharge
lannuzzi or that he could not put him to work. Cabuzzi merely told him that he
would send a man in the following morning for work. In this connection it is to be
noted that the evidence does not show that Ferazani advised Cabuzzi that the
Company did not need another man.
In his conversation with Ferazani on October 15, Mirowski did not ask him to
discharge Jannuzzi. It appears that he was satisfied as long as DiLimpio had been
put to work. Further, it is not clear from Ferazam's statement to Mirowski, as found
above, that the Company intended to discharge lannuzzi at the time.
1 Mirowski's testimony concerning the above conversation was substantially the same
as lannuzzi's.
2 Cahuzzi did not appear as a witness at the hearing
3 Goodale did not appear as a witness at the hearing
4 Concerning the above conversation. Ferazam testified that lie and Gooda]e said, "That
we were sorry we had to let him go, and had to let him go because of the fact that there
are Union members that we had to lire, and if he could get his transfer and get lute
Local 20, we'd be glad to put him back to work "
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ferazani was the only witness for the General Counsel who testified as to the
Company's practice in the hiring of new employees. I find that his testimony does
not disclose that the Respondent maintained and enforced any illegal practice or
oral agreement with the Company in this respect , as alleged in the complaint.
[Recommendations omitted from publication.]
Rudy Barber, Louis B. Barber and Robert Hamlyn , Co-Partners,
d/b/a Barbers Iron Foundry and International Molders and
Foundry Workers Union of North America , AFL-CIO. Case
No. 4-CA-1649. January 8, 1960
DECISION AND ORDER
On April 15, 1958, Trial Examiner Louis Plost 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
Intermediate Report attached hereto. Thereafter, the Charging
Party and the General Counsel filed exceptions to the Intermediate
Report and briefs in support thereof.
On January 12, 1959, the Board ordered that the record be re-
opened and the case be remanded for further hearing. Thereafter,
the parties entered into a stipulation setting forth certain facts and
waived their rights to a supplemental Intermediate Report. The
General Counsel's motion, that the Board accept the stipulation and
close the record, is hereby granted.
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
Intermediate Report, the exceptions and briefs, the stipulation, and
the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the fol-
lowing additions and modifications.
THE UNFAIR LABOR PRACTICE FINDINGS
1. The Trial Examiner found that the Respondent threatened its
employees in violation of Section 8(a) (1) ; temporarily locked out its
employees from November 21 to 25, 1957, in violation of Section
8 (a) (3) ; discriminatorily discharged employee Henry Hayes in
violation of Section 8(a) (3); and refused to bargain collectively
with the union in violation of Section 8 (a) (5). No exceptions were
taken to these findings. Accordingly, we adopt them pro forma.
2. The Trial Examiner further found that the Respondent dis-
criminatorily discharged its employees in violation of Section
126 NLRB No. 5.