Schneider's Dairy, Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1980

248 N.L.R.B. 1093 (N.L.R.B. 1980)

SCHNEIDER'S DAIRY, INC. 1093
Schneider's Dairy, Inc. and David J. Reilly. Case 6-
CA- 12004
April 10, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On January 10, 1980, Administrative Law Judge
Stephen Gross issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed limited cross-exceptions and briefs in sup-
port thereof and in answer to Respondent's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,' find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The Administrative Law Judge found that em-
ployee William Swierczek, who was hired at a
wage lower than that provided for in the collec-
tive-bargaining agreement, filed a grievance re-
questing backpay at the contract rate. When Re-
spondent's supervisor, White, found out about the
grievance, he asked Swierczek "what the shit was
with the grievance" and told Swierczek that he
might get the money, but might also be out of a
job. Swierczek eventually received his backpay
without losing his job.
The Administrative Law Judge found that
White's statement constituted a threat of discharge
for protected activity in violation of Section 8(a)(1)
of the Act. We agree. We also agree with counsel
for the General Counsel's argument that White's
questioning of Swierczek concerning the grievance
necessarily interfered with Swierczek's right to
representation from the Union and would tend to
inhibit Swierczek in the exercise of rights guaran-
i In affirming the Administrative Law Judge's conclusion that Respon-
dent violated Sec. 8(a)(1) of the Act by discharging David Reilly, we
find it unnecessary to reach his dismissal of the 8 (aX3) allegation of the
complaint, inasmuch as the remedy for the two violations would be iden-
tical.
2 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
248 NLRB No. 135
teed by Section 7 of the Act.3 We, therefore, find
that this interrogation constituted a separate viola-
tion of Section 8(a)(1) of the Act and will modify
the Administrative Law Judge's recommended
Order and notice accordingly.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Schneider's Dairy, Inc., Washington, Pennsylvania,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph l(d) and re-
letter the remaining paragraph accordingly:
"(d) Interrogating any employee concerning his
or her union and/or protected concerted activi-
ties."
2. Substitute the following for paragraph 2(a):
"(a) Offer David J. Reilly immediate and full re-
instatement to his former position, or, if that posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make
him whole for any losses he may have suffered by
reason of his unlawful discharge, in the manner set
forth in the section of this Decision entitled 'The
Remedy."'
3. Substitute the attached notice for that of the
Administrative Law Judge.
3 See Clinton Foods, Inc., d/b/a Morton's IGA Foodliner, 237 NLRB
667 (1978).
4 We shall also modify the Administrative Law Judge's recommended
reinstatement order to conform to Board language, and shall correct his
inadvertent omission of par. (c) of his recommended Order in the notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the oppor-
tunity to present their evidence, the National
Labor Relations Board has found that we violated
the National Labor Relations Act, as amended, and
has ordered us to post this notice and to abide by
the following:
WE WILL NOT discharge our employees be-
cause they file grievances with their union.
WE WILL NOT threaten employees with dis-
charge for filing grievances with their union.
Schneider's Dairy, Inc. and David J. Reilly. Case 6-
SCHNEIDER'S DAIRY, INC.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT tell any employee that an-
other employee may be discharged for filing a
grievance.
WE WILL NOT interrogate employees con-
cerning their union and/or protected concert-
ed activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights under Section
7 of the National Labor Relations Act.
WE WILL offer David J. Reilly immediate and
full reinstatement to his former position, or, if
that position no longer exists, to a substantially
equivalent position, without loss of seniority or
other rights and privileges previously enjoyed,
and WE WILL make him whole for any losses
he may have suffered because we discharged
him.
SCHNEIDER'S DAIRY, INC
DECISION
STATEMENT OF THE CASE
STEPHEN GROSS, Administrative Law Judge: Upon a
charge filed by David J. Reilly, the Board's General
Counsel, by the Acting Regional Director for Region 6,
issued a complaint on March 28, 1979, against Respon-
dent Schneider's Dairy, Inc. (hereafter called the Dairy)
alleging that the Dairy had engaged in and was engaging
in unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of
the Act.
The Dairy's answer admitted that the Diary is an em-
ployer engaged in commerce within the meaning of the
Act and admitted that Local 585 of the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (hereafter called Local 585 or
the Union), which represents the employees at the
branch of the Dairy where Reilly had worked, is a labor
organization within the meaning of the Act. But the
Dairy denied committing any of the alleged violations of
the Act.
The case went to hearing on June 26 and July 19,
1979. Both the Dairy and the General Counsel submitted
briefs. l
FINDINGS OF FACT
I. THE DAIRY'S EMPLOYMENT ARRANGEMENT WITH
REILLY
The Dairy is owned and managed by William
Schneider. Its principal location is in Pittsburgh, Penn-
sylvania, and it has a branch in Washington, Pennsylva-
nia. The Washington operation is managed by James
By motion dated August 31, 1979, the General Counsel notes that a
number of documents (of record in this proceeding bear the case number
"6-CA-12204." which is incorrect. The General Counsel moves that I
correct all such documents. The Dairy does not object. The motion is
hereby granted.
White. (The Dairy admits that White is a supervisor
within the meaning of Section 2(11) of the Act.)
The employees at the Dairy's Washington branch are
represented by Local 585. The collective-bargaining
agreeement between Local 585 and the Dairy provides
that persons coming to work for the dairy will begin as
probationary employees, with the probationary period
lasting between 120 and 220 days, depending on the date
of hire. For the time period in question, the agreement
provided for wages of $5.25 per hour for probationary
employees and $5.65 per hour for all other employees
(see Jt. Exh. 1).
In late June or July 1978, White spoke to Schneider
about expanding the Washington operation by delivering
dairy products to schools. White felt that the school
routes would not be profitable if the drivers on the
routes had to be paid $5.25 per hour, but that the routes
would be worth serving if the drivers were paid $4 per
hour during the routes' startup periods. White claimed
that it was his experience that the Union would not
object if Schneider used new drivers over the routes,
paid them $4 per hour at the start, and then increased
their pay to $5.25 or $5.65 per hour after those drivers'
probationary periods came to an end. Schneider agreed
to let White give his plan a try.
Reilly was hired in July 1978 as a direct result of that
conversation. According to White, he told Reilly that
Reilly would have a job at the Dairy as a school route
driver at a wage of $4 per hour until Reilly's probation-
ary period ended, at which time his pay would be in-
creased to $5.25 or $5.65 per hour.
Reilly's testimony was somewhat different. Reilly
agreed that he was hired as a school route driver. But he
denied being told by White that he would start at wages
below the wage level spelled out in the Dairy-Local 585
collective-bargaining agreement.
II. REILLY'S GRIEVANCE
Reilly knew from the very start of his employment at
the Dairy that he was being paid at a rate of $4 per
hour. In fact, his timecards had that wage rate written
on them. Reilly complained about the wage in August,
saying that under the agreement with the Union he
should be receiving higher wages. White responded by
referring to what he considered to be the agreement be-
tween himself and Reilly that Reilly would start at $4
per hour. Reilly did not go further with his complaint at
the time since he was aware that he was a probationary
employee and, thus, vulnerable to discharge.
By November, however, Reilly had been with the
Dairy for more than 120 days. Since he thought (incor-
rectly) that his probationary period ended after 120 days,
he felt more secure about his position at the Dairy. 2 Ac-
cordingly, on November 8 Reilly filed a formal, written
grievance pursuant to the provisions of the collective-
bargaining agreement asking to be paid the level speci-
fied in the collective-bargaining agreement and demand-
ing backpay. When Reilly gave a copy of the grievance
to White, White got angry and upset and told Reilly that
2 There is no dispute that, under the terms of the collective-bargaining
agreement, Reilly's probationary period ended in January 1979.
SCHNEIDER'S DAIRY, INC. 1095
Reilly had an agreement to work at $4 per hour. Later,
in fact, White emphasized his feelings about the matter
by telling Reilly that Reilly "wasn't going to get the
God damn money."
Meanwhile Reilly's situation was complicated when
Reilly fell while making a delivery and fractured his
wrist. That occurred on November 15. The fracture, of
course, prevented him from working.
Reilly's grievance led to a meeting on December 14
between White, Schneider, and the president of Local
585, Jon Pushkarich. Schneider and White argued that
the Dairy was entitled to pay Reilly $4 per hour since he
was a probationary employee. Pushkarich rejected that
position out of hand, pointing to the explicit language of
the collective-bargaining agreement. When White re-
ferred to his "understanding" with Reilly about a $4-per-
hour wage, Pushkarich said that he "didn't care what
kind of an understanding [the Dairy] had with Mr.
Reilly, he was still entitled to his $5.25 an hour." When
Schneider argued that the Dairy could not afford $5.25
for new hires in Washington County, Pushkarich said
that he would not oppose a $4-per-hour wage rate for
new drivers in the future, if the union members agreed.
That would only be prospective, however, and Reilly
would have to be compensated for his below-contract
wage level since July.
The meeting did not resolve the issue because
Schneider wanted more time to decide. Subsequently,
however, Pushkarich told Schneider that unless
Schneider agreed to the backpay that Reilly demanded,
the Union would take "economic action" over the
matter. Schneider then agreed to pay the amounts Reilly
had demanded but let Pushkarich know that the Dairy
would take Pushkarich up on his suggestion that the con-
tract be amended to provide for a $4-per-hour-wage rate
for new hires if the members agreed. (A majority of the
members of the unit did subsequently agree to the pro-
posed amendment.)
The discussion at the December 14 meeting was not
limited to matters pertaining specifically to Reilly's
grievance. Rather, White and Schneider used the oppor-
tunity to discuss, between themselves-but in Pushkar-
ich's presence-Reilly's shortcomings as an employee,
and the action the Dairy should take because of those
shortcomings.
White sounded off about the problems he was having
with Reilly. According to White, Reilly came to work
late, left milk that should have been delivered sitting on
the dock or in the Dairy's cooler, called in to say that he
would not be able to cover his route, which meant that
other employees would have to cover some of Reilly's
route for him, and so on. Moreover, White's description
of Reilly's performance left Schneider with the impres-
sion that these problems had been occurring recently.
Schneider got upset about having on his payroll a proba-
tionary employee of such manifest incompetence.
Schneider had made it a practice to permit White to
make the personnel decisions affecting the Washington
branch of the Dairy. But with Pushkarich still present,
Schneider told White that in his opinion Reilly should be
fired considering all the problems that he had caused.
I1I. REILLY'S DISCHARGE
As of December 14, then, Schneider was of the view
that Reilly, a probationary employee, was either unable
or unwilling to handle his route. On top of that, Reilly
was out with an injured wrist during the Dairy's busiest
time of the year. White had advised Schneider that Reil-
ly's physician expected Reilly to be back to work on De-
cember 15. In fact, however, Reilly did not return on
that day but instead, on December 17, brought White a
physician's note saying that Reilly would have to be out
yet another week. Subsequently, sometime in the latter
half of December, White told Schneider that Reilly still
was not back at work. At that point, Schneider did not
merely advise White to fire Reilly, but ordered him to
do so. According to Schneider, if White could do with-
out Reilly during the Christmas season then White did
not need Reilly at all. On top of that, Reilly clearly was
incompetent and, finally, appeared to be malingering.
Schneider told White to wait until Reilly returned to
work before firing Reilly in order to avoid even further
malingering by Reilly that, in turn, would increase the
Dairy's insurance costs. Schneider repeated that order on
December 28 when White advised him that Reilly had
come back to work. That led White to meet with Reilly
on January 2. White told Reilly that Schneider had or-
dered that Reilly be discharged. White went on to say
that he did not personally agree with Schneider's deci-
sion. 3
IV. REILLY'S PERFORMANCE AT WORK
The evidence is clear that White's feelings about Reil-
ly's performance, as expressed to Schneider in Decem-
ber, and in White's testimony at the hearing in this pro-
ceeding, did not accurately reflect Reilly's performance.
No one claims that Reilly's work presented any prob-
lems in July and August, before the schools opened.
When the school season began in September, Reilly did
quickly run into difficulties in completing his route, and
had to call on White twice to finish deliveries for him.
But Reilly testified-and I credit this testimony-that
those problems led White to conclude that the route was
too large and had to be cut down. White did cut down
the size of Reilly's route. Thereafter, Reilly had no prob-
lems completing deliveries except for one time in Sep-
tember, when he came in late. Indeed, White agreed that
Reilly worked quickly enough so that the only reason
for his failing to complete deliveries would be arriving at
work late. Reilly's timecards, in turn, show that, in ac-
cordance with Reilly's testimony, he was late only once
in September and not at all after September.
After Reilly's initial problems with his route in early
September, in fact, the only dispute he had with White
had to do with Reilly getting to work too early, not too
late. Even there White did not contend that Reilly was
loafing on company time. Rather, the disagreement
hinged on how carefully Reilly should check his orders
before going out on delivery.
3 Reilly testified that in that same conversation, White said that
Schneider ordered Reilly to be fired in part because Reilly "was going
after the grievance," I do not credit that testimony It would be out of
character for Schneider to make a remark of that kind.
SCHNEIDER'S DAIRY. INC. 95
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As far as Reilly's medical problem is concerned, there
is no dispute that he did fracture his wrist, and that he
did do that in the course of his work. And while
Schneider apparently honestly thought that Reilly might
be malingering when he did not return to work around
December 15, there is no evidence whatever of that. In
fact, Reilly did return to work about the time his doc-
tor's note said that he would. Finally, the Dairy obvious-
ly could have checked further with Reilly's physician or
taken other steps to verify Reilly's status. In fact no one
at the Dairy did anything of the sort.
V. OTHER MATTERS
A. The Post-Discharge Period
After Reilly was fired he asked to meet with
Schneider. Schneider agreed to a January 15 meeting,
but Reilly missed it. Reilly later called Schneider and
asked why he was fired. Reilly was fired because of the
grievance that Reilly submitted. Schneider's testimony
was that he told Reilly that Reilly simply had not done a
good job. I credit Schneider, not Reilly. 4
B. The Shop Steward's Testimony
Anthony Melasky is the Union's shop steward at the
Dairy's Washington Branch. Acccording to Melasky,
during the course of Reilly's employment with the
Dairy, White complained to Melasky twice about Reilly
not getting his work done. Melasky also testified that
from what he knows of White, White would not retaliate
against anyone for filing a grievance.
C. Meek's Testimony
One of Reilly's co-workers, Billy Meeks, Jr., testified
that White spoke to him about Reilly after Reilly had
filed his grievance. According to Meeks, White said that
Reilly was a good worker, but that White expected
agreements to be kept, and now that Reilly had "filed a
grievance, he most likely wouldn't be working."
D. Swierczek's Testimony
Swierczek was hired as a school route driver by the
Washington branch of the Dairy in October 1978. As in
Reilly's case, White felt that the arrangement between
the Dairy and Swierczek was that Swierczek would start
at $4 per hour. And as in Reilly's case, Swierczek denied
it, claiming that there was no such deal. In any case,
after Swierczek finished his probationary employment
and became a permanent employee (in February 1979),
he filed a grievance asking for backpay at $5.25 per
hour. When White found out about the grievance, ac-
cording to Swierczek, "he asked me what this shit was
with the grievance, and that he thought we had an
agreement for $4.00 an hour, and he said that I might get
the money, but I might also be out a job."
Swierczek did eventually get the amounts he claimed
and did so without getting fired. As of the time of the
hearing Swierczek was still an employee of Schneider's
Dairy.
4 See fn. 3, above.
Duda, another employee, was also hired at the $4-per-
hour wage rate. Schneider's Dairy eventually paid him
backpay to compensate him for the below-par $4 rate
even though Duda did not file a grievance.
E. Meeks' Grievance
Meeks had a complaint about the amount Schneider
was paying him, although it did not relate to the prob-
lem faced by Reilly. Meeks filed a grievance over the
matter but ultimately lost and did not get any additional
money from the Dairy. Meeks was a witness for the
Dairy, and the point of his testimony on this subject was
that although he filed a grievance over money matters,
he was not discriminated against for the grievance and
was still an employee of the Company at the time he tes-
tified.
F. Dairy-Union Relations
Schneider testified, without contradiction, that the re-
lations between his company and the Unions that repre-
sented his employees were good. The Company has long
been unionized and has never been found guilty of any
unfair labor practice.
G. The Departure of Other Probationary Employees
White testified about the employment histories at the
Dairy of other employees who left the Dairy before their
probationary periods were up. By and large the testimo-
ny indicates mostly that a milkman's job is no picnic. Of
the eight ex-employees of whom White spoke, White
fired one after 2 or 3 months. But all the others quit-
two within 5 days, two within a month, and three within
2 months.
Analysis and Conclusions
From Schneider's point of view, Reilly was fired for a
cause. Based on what White had said, Schneider believed
that Reilly often did not get his job done, and that this
was an ongoing problem. On top of that, Reilly stayed
away from work after injuring his wrist for what
Schneider considered a suspiciously long time during the
busiest part of the year. That adds up to reasonable
grounds for discharging Reilly, particularly since Reilly
was a probationary employee. Since there is no credible
evidence indicating that Schneider harbored any animus
toward unions or toward employees who filed griev-
ances, there would be no basis for finding any violation
of the Act if Schneider's actions were the only ones to
be taken into account.
But Schneider's information about Reilly came wholly
from White, and White's actions have to be considered
in light of White's attitude toward Reilly. That attitude,
in turn, stemmed from White's feeling Reilly had broken
his agreement to work for $4 per hour.
White probably did tell Reilly that Reilly's hourly pay
during Reilly's first 4 months at the Dairy would be $4
per hour. When Reilly filed his grievance, White got fu-
rious at what he deemed to be Reilly's lack of good
faith. (Without condoning White's failure to abide by the
collective-bargaining agreement, White's anger is under-
standable. He would not have hired Reilly, after all, had
SCHNEIDER'S DAIRY, INC. 1097
White not felt that Reilly agreed to work for $4 per
hour.)
It was after Reilly filed his grievance that White gave
Schneider the scathing critique of Reilly's performance.
While that, standing alone, may not mean much, the
problem is that that critique was inaccurate.
White badly overstated the number of times that
Reilly failed to get his job done; did not mention that
part of the problem was, initially, that Reilly was given
too big a route; and failed to indicate that the last time
that the problem occurred was 3 months earlier.
(Schneider, in fact, got the impression that the problem
was a current one.)
On the basis of White's demeanor and the record as a
whole, I am convinced that when White spoke so badly
to Schneider of Reilly's performance, White was not
aware that he was being inaccurate. But I am also con-
vinced that White's inaccurate portrayal of Reilly's per-
formance was borne of White's anger at Reilly for reneg-
ing on the $4-per-hour agreement. It is simply inconceiv-
able that absent that situation White would have attacked
Reilly's performance so unfairly and inaccurately.
I have considered Schneider's belief that Reilly might
be malingering, and that if the Washington branch of the
Dairy could get along without Reilly during its busiest
season, then that was proof that the branch did not need
him. But it is unlikely that those considerations would
actually have provoked a discharge, absent White's re-
marks about Reilly. For one thing, I am not persuaded
that, absent Schneider's inaccurate views of Reilly's
work record, Reilly would have been fired for malinger-
ing in the face of a physician's statement that indicated
that he did not do so. For another, even assuming that
Reilly's absence did suggest that the Washington branch
was overstaffed, it did not follow that Reilly was neces-
sarily the one to discharge. For example, Swierczek was
junior to Reilly and, apparently, was having trouble cov-
ering the same route that Reilly had shown himself capa-
ble of handling.
In sum, Schneider was the one who ordered that
Reilly be fired, and he did so, at least in part, because, on
the basis of the information given him, Reilly was an in-
competent employee. White, on his part, would not have
fired Reilly if White had been left to his own devices,
and did not deliberately mischaracterize Reilly's perfor-
mance to Schneider.
But for all that, Reilly's filing of his grievance was the
cause of his being fired. For if Reilly had not filed the
grievance, he would not have provoked White's anger,
and White would not have so badly mischaracterized
Reilly's performance in discussions with Schneider.
Legal issues
The need for proof of conscious coercion. If in order to
show a violation of the Act the General Counsel were
required to prove that agents of the Dairy consciously
and with full awareness discharged Reilly because of
Reilly's grievance, I would have to conclude that no vio-
lation was shown. But I am not aware of any such re-
quirement of proof of conscious intent. In fact, it is evi-
dent that there is, and should be, none.
For one thing, Judge Learned Hand long ago pointed
out that while the Board had to determine motivation in
cases like this one, that motivation may be "frequently
unknown even to the actor himself" N.LR.B. v. Univer-
sal Camera Corp., 190 F.2d 429, 431 (2d Cir. 1951); Cf.
Delco-Remy Division, General Motors Corporation, 234
NLRB 995, 999 (1978); Shattuck Denn Mining Corpora-
tion (Iron King Branch), 151 NLRB 1328, 1336 (1965),
enfd. 362 F.2d 466 (9th Cir. 1966).
For another, the protection that the Act is intended to
afford would not be worth much if an employee could
be assured protection only if the employer's agents con-
sciously discriminated against him because of his concert-
ed activities, and not when the employer's agents did so
unaware of what their true motivation was.
Lastly, requiring proof of conscious discrimination
would impose impossible burdens on the hearing process.
It is hard enough to determine motivation without then
having to determine whether a particular motivation was
conscious or not.
Reilly's grievance as "concerted activity." Reilly filed his
grievance solely to obtain the backpay that he believed
he was entitled to under the Dairy-Local 585 collective-
bargaining contract. Moreover, he filed the grievance
alone and he did not do so as a representative or on
behalf of any other employee. The Dairy accordingly
argues that Reilly's filing of the grievance was not "con-
certed" activity within the meaning of the Act and that
the Dairy did not violate the Act even assuming that
Reilly was discharged as a result of his grievance.
The Diary points out that at least one Federal circuit
court has said that action by an employee acting solely
by himself and solely on his own behalf is not concerted
activity, even when the employee is seeking to obtain the
benefits he believes he is entitled to under a collective-
bargaining agreement (N.L.R.B. v. Northern Metal Com-
pany, 440 F.2d 881 (3d Cir. 1971)), and that other circuit
courts have suggested that they see things the same way:
see, generally, Aro, Inc., 596 F.2d 713 (6th Cir. 1979).
But the Board, supported by at least one circuit court,
does not agree:
The Board has long held that complaints made or
grievances filed for the purpose of requiring compli-
ance with the provisions of a collective-bargaining
agreement, even if by a single employee acting
alone, fall within the category of concerted activity
which is protected by Section 7 of the Act.5
My duty is to follow Board policy, notwithstanding con-
trary circuit court rulings: Iowa Beef Packers Inc., 144
NLRB 615 (1963). And given cases such as Ernst Con-
struction, Reilly's actions clearly fall within the protec-
tions accorded by Section 7 of the Act.
But beyond that, Reilly's discharge stemmed from con-
certed activity even using the definition of "concerted"
in the circuit court cases cited by the Dairy.
First, Reilly's grievance was made pursuant to a col-
lective-bargaining agreement, a circumstance not present
" Ernst Construction, 212 NLRB 78, 83-84 (1974). Accord: Delta Elec-
tric, 236 NLRB 1108 (1978); NL.R.B v John Langenbacher Co., 398
F.2d 459, 463 (2d Cir. 1968), cert. denied 393 US 1049 (1969), enfg 161
NLRB 258 (1966).
SCHNEIDER'S DAIRY, INC. 97
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in cases such as Dawson Cabinet Co.," Aro, Inc.,?7 North-
ern Metal Co.,8 or Buddies Supermarkets Inc.,9
Second, Reilly clearly had "a reasonable basis for be-
lieving that [his] understanding of the terms" of the col-
lective-bargaining agreement "was the understanding
that had been agreed upon."' ° In fact Local 585 agreed
with Reilly's interpretation, and the Dairy did pay him
the amounts he claimed were due him.
Third, although Reilly did file the grievance for his
own purposes, the grievance had a clear impact upon
other employees, leading to contract negotiations be-
tween the Dairy and Local 585 and the circulating of a
related petition. Moreover, Reilly's grievance almost cer-
tainly contributed to the Diary's decision to grant a ret-
roactive pay increase to another employee-Duda-who
did not file a grievance. II
Fourth, the activity that led to Reilly's discharge was
not limited to Reilly acting alone. Rather, Reilly sought,
and obtained, union help-witness Pushkarich's meeting
with Schneider and White. It is conceivable that Reilly
would have been discharged even if the Union showed
no interest in his grievance. But that is wholly specula-
tive. In fact, Reilly was discharged as a result of white's
expression of his ire to Schneider, and that occurred in a
setting in which Reilly had successfully interested the
Union in his complaint.
By any standard, therefore, the activity that led to
Reilly's discharge was concerted within the meaning of
the Act.
The 8(a)(3) allegation. For the reasons discussed above,
it is evident that, by firing Reilly, the Dairy violated
Section 8(a)(1) of the Act since that action interfered
with, restrained, and coerced "employees in the exercise
of the rights guaranteed in Section 7."
The General Counsel also claims that Reilly's dis-
charge violated Section 8(a)(3). But given the longstand-
ing relationships between the Dairy and Local 585, the
union shop arrangement at the Dairy, and the obvious
disinterest on the part of any party in changing those re-
lationships and arrangements, I fail to see how Reilly's
discharge could "encourage or discourage membership in
any labor organization." Cf. Ernst Construction supra,
Delta Electric, supra. Accordingly, I will recommend that
the 8(a)(3) allegation be dismissed.
6 566 F.2d 1979 (8th Cir. 1977). The company was not unionized. and
the court specifically noted the absence of a collective-bargaining agree-
ment.
' 596 F.2d 713 (6th Cir. 1979). The case involved alleged discrimina-
tion in a refusal-to-hire situation. The court specifically noted the lack of
the employee's rights under a collective-bargaining agreement in that
kind of situation.
8 440 F.2d 881. Unlike the agreement between the Dairy and Local
585, the agreement at issue in Northern Metal provided that complaints of
probationary employees were not subject to grievance procedures: 440
F.2d at 883, fn. 4.
9 481 F.2d 714, 719 (5th Cir. 1973). The company was not unionized
and the court specifically noted the absence of a collective-bargaining
agreement: 481 F.2d at 719.
'o N.L.R.B. v. John Langenbacher, supra, 398 F.2d at 463.
" The dissenting opinion in Northern Metal notes that where an indi-
vidual asserts a right found in a collective-bargaining agreement, it is rea-
sonable to assume that he is "extending" the rights of other employees:
440 F.2d at 888.
Other matters
The Dairy does not deny that White told both Reilly
and Meeks that Reilly's grievance would be likely to
cost Reilly his job. And similarly there is no denial that
White also told Swierczek that his grievance might mean
the end of his job at the Dairy.
White said that in those conversations he meant that
the Dairy would have to drop the new school routes if it
had to pay the drivers of those routes more than $4 per
hour. But what White meant is not particularly relevant,
even assuming that his testimony on point was accurate.
The test is whether White's statements had "a reasonable
tendency to coerce": York Division, Borg-Warner Corpo-
ration, 229 NLRB 1149, 1155 (1977). Accord: Keystone
Pretzel Bakery, Inc., 242 NLRB No. 77 (1979). It is clear
that the foregoing statements, uttered by a branch man-
ager, would have just such an effect. They accordingly
amount to violations of Section 8(a)(1).
CONCLUSIONS OF LAW
Schneider's Dairy violated Section 8(a)(l) of the Act
when, as a result of David J. Reilly filing a wage-related
grievance with Local 585, the Dairy fired Reilly. The
Dairy further violated Section 8(a)(l) when its agent,
James White, stated to Reilly, William Swierczek, and
Billy Meeks, Jr., that the filing of a grievance relating to
wages would, or might, lead to discharge. The Diary did
not violate Section 8(a)(3) of the Act.
THE REMEDY
The recommended Order will require the Dairy to
cease and desist from interfering with employees in the
exercise of their Section 7 rights by discharging or
threatening to discharge employees who file grievances
with their union.1 2
The recommended Order will also require the Dairy
to: (1) reinstate Reilly immediately in the position he pre-
viously held or, if that is not possible, in a substantially
equivalent position; and (2) make Reilly whole for any
loss of earnings he suffered as a result of the Dairy's dis-
crimination against him. Loss of earnings shall be com-
puted as prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), plus interest as set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962), and Florida
Steel Corporation, 231 NLRB 651 (1977).
Finally, the Dairy will be required to notify its em-
ployees of the action being orderd by the Board.13
Upon the foregoing findings and conclusions, and
upon the entire record, and pursuant to Section 10(c) of
the Act, I issue the following recommended:
12 1 will recommend that the Dairy also be required to cease and desist
from violating the Section 7 rights of employees in any like or related
manner: see Hickmott Foods, Inc., 242 NLRB No. 177 (1979)
13 The General Counsel proposed specific language for the opening
paragraph of the notice. See G.C br. at p. 15 The notice adopts that
proposal.
SCHNEIDER'S DAIRY, INC. 1099
Order 4
The Respondent, Schneider's Dairy, Inc., Pittsburgh,
Pennsylvania, and its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging any employee by reason of the em-
ployee's filing of a grievance.
(b) Threatening any employee with discharge for filing
a grievance.
(c) Telling any employee that another employee may
be discharged for filing a grievance.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer David J. Reilly immediate and full reinstate-
ment to his former position or, if that is not possible, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any losses he may have suffered by reason of
14 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
his unlawful discharge, 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, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Washington, Pennsylvania, facility,
copies of the attached notice marked "Appendix."' t
Copies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by Re-
spondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
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.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be di-
missed insofar as it alleges a violation of Section 8(a)(3)
of the Act.
'5 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
SCHNEIDER'S DAIRY, INC. 099