NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Northeast Beverage Corporation and B. Vetrano Distributors, Inc., a wholly-owned subsidiary of Northeast Beverage Corporation and International Brotherhood of Teamsters, Local 1035. Cases 34–CA–10139 and 34–CA–10156

May 25, 2007

DECISION AND ORDER

By Chairman Battista and Members Liebman
and Schaumber

On August 7, 2003, Administrative Law Judge Eleanor MacDonald issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed an answering brief, and the Respondent filed a reply brief.1

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions, and to adopt the recommended Order.

i. facts

In October 2001, the Respondent purchased Soft-Drink Distributor B. Vetrano (Vetrano), a unionized facility, and in April 2002, purchased Burt’s Beverages (Burt’s), a nonunion facility. After the purchases, the Respondent decided to close the Vetrano facility and merge the operations into the Burt’s facility. The Union and the Respondent commenced bargaining over the effects of the merger.

The judge credited the testimony of the Vetrano drivers that before May 29, 2002, despite their having repeatedly asked the Respondent and the Union whether they would retain their employment, seniority, and current pay after the merger, they had not received answers to their questions. On May 29, drivers Paul Johnson, Chris Fedor, Jerzy Marczweski, Russell Towle, Robert Collins, Ricardo Bosques, Gary Everett,3 and Joe Pignatella, still unsure whether they would have jobs after the merger, left the Vetrano facility to attend a bargaining session scheduled for 10 a.m. at the union hall.4 The Union did not authorize this action. The judge credited the drivers’ testimony that they decided to attend the May 29 meeting because they wanted answers to their questions, as well as to draw attention to their anxiety, to show that they were “not just names on the list and they wanted to show that they were capable of doing the job.”

The drivers stopped at a diner to formulate the questions that they wanted to ask at the meeting. The drive to the union hall took about 30 to 40 minutes. After meeting briefly with the Union’s and the Respondent’s representatives, the drivers who were scheduled to work returned to the Vetrano facility.

The Respondent suspended, for the remainder of the day, those drivers who had gone to the meeting while they were scheduled to work. On May 31, the Respondent sent a letter to those drivers informing them that it was investigating their May 29 conduct, and would “impose appropriate discipline up to and including discharge.” On June 14, the Respondent discharged five of the six drivers who had had scheduled deliveries when they left work on May 29. The facility closed the following day. The Respondent offered Fedor,5 Everett, and Pignatella jobs at Burt’s, but did not offer jobs to any of the other drivers who attended the May 29 meeting.

ii. the judge’s decision

The judge found that the drivers’ May 29 conduct was protected by Section 7. The judge also found that the Respondent violated Section 8(a)(1) by threatening the drivers with discipline and discharge and violated Section 8(a)(1) and (3) by suspending, discharging, refusing to consider for hire, and refusing to hire the drivers because of that protected activity. We affirm the judge’s findings. As discussed more fully below, contrary to our dissenting colleague, we find that the drivers’ conduct was protected activity as it was “mutual aid” directly related to a labor dispute—the anticipated closing of the drivers’ work facility and the associated effects-bar-gaining. We also find that the drivers’ conduct was not otherwise of a type that warrants the loss of the protection of the Act.6

iii. discussion

In finding that the drivers’ conduct on May 29 did not constitute a strike, the judge stated that, when the drivers left the Vetrano facility, “they did not have a plan to pressure the employer to grant any concessions or to take any action.” Our dissenting colleague agrees that the drivers’ action on May 29 was not a strike.7 He nonetheless finds the employees’ actions to be unprotected. In this regard, he says that the drivers did not have “a dispute with their employer.” He contends that this lack of a dispute removes the drivers’ May 29 conduct from the protection of Section 7 because “it clearly would not serve the Act’s purposes to extend the reach of Section 7 to protect represented employees to absent themselves from work and stop customer deliveries for a significant period simply for informational purposes. . . .” Finally, our dissenting colleague contends that his conclusion is consistent with the principle that the Act does not prevent an employer from enforcing reasonable rules covering the conduct of employees, that “working time is for work.”8 For the reasons discussed below we disagree with our colleague’s conclusion that the drivers conduct in this case was not protected activity.

Section 2(9) of the Act defines a “labor dispute” as “any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.” In the instant case the employees were concerned about the anticipated closing of their work facility and about the effects bargaining between their collective-bargaining representative and their employer. The employees were not receiving answers to their questions regarding such issues as whether they would retain their employment, what their seniority status would be, and what their pay would be after the merger. They decided to attend the meeting to demonstrate their anxiety about these matters, and to seek answers to their questions. These are issues concerning terms and conditions of employment and the employees sought to have these terms “arranged” to their satisfaction. Thus, their attendance at the meeting was in furtherance of their “mutual aid” to obtain information about the most fundamental of concerns to any employees—whether they would continue to have employment with the Respondent, and under what terms and conditions.9 As the judge recognized, the reasonableness of the drivers’ concerted action is not relevant. See NLRB v. Washington Aluminum Co., 370 U.S. 9, 16 (1962).

Concededly, the drivers did not have a dispute with their employer in the sense of their employer taking one position and the employees taking another. Rather, the problem was that the employees wanted definitive answers to their employment-related concerns, and their employer was not providing such answers. Their departure from work was aimed at resolving this very matter. Section 7 protection was not lost, because the employees chose simply to ask what was going to happen rather than to challenge the employer with a confrontational work stoppage.10

Our colleague is correct that some cases have found that employees who took time from work for union-related purposes were not engaged in protected concerted activities. See Gulf Coast Oil Co., 97 NLRB 1513, 1515–1516 (1952); GK Trucking, 262 NLRB 570, 572–573 (1982); Terri Lee, Inc., 107 NLRB 560 (1953). However, these cases are clearly distinguishable. In Gulf Coast Oil Co., 97 NLRB at 1513, 1516, the Board found that an absence from work during working time was unprotected. The Board relied on the fact that the late arrival was for the purpose of engaging in union activity that was “customarily done during nonworking time” and “violated the employer’s known established work rule.” By contrast, in the instant case, the drivers’ earlier unsuccessful attempts to obtain information confirmed that there was no “customary” way for them to ascertain the progress of negotiations which vitally affected them.

Terri Lee, 107 NLRB at 560, is also distinguishable. There, the employees took off time from work but not to seek anything from the employer, and they were specifically warned that they could not use worktime to meet offsite with the union. The Board concluded that their leaving work was therefore unprotected. By contrast, in the instant case, the drivers were seeking information directly from the Respondent concerning the effects of the merger and the Union was engaged in bargaining with the Respondent on the same subject. The bargaining concerned such matters as pay and seniority. The employees sought information as to the Union’s bargaining with the Respondent. They also sought assurances from the Respondent. Thus, Terri Lee is markedly different from the instant case.

Our colleague states that, consistent with the cases cited above, there is no reason why the drivers here could not have questioned the shop steward or other union representatives on nonwork time. However, as the judge found, the drivers had been unsuccessful in seeking definitive information from their Union, their shop steward, and the Respondent’s on-site representative regarding what their employment status would be once the operations of the Vetrano facility were merged with those of the Burt’s facility. Our dissenting colleague also ignores the obvious urgency of the drivers’ need for the information. The drivers were seeking prompt information regarding their imminent financial future, including whether they needed to search for alternative employment. Moreover, as the judge found, the drivers also sought to meet with management representatives, rather than with only representatives of the Union. The drivers, who had worked for the Respondent for a relatively short period of time, sought to establish that they were “more than names on a list.” In short, they hoped to influence their employer to retain them after the merger.

The drivers were absent from work for approximately the length of time it took to formulate questions, drive to the meeting, meet briefly with the representatives of the Respondent and the Union, and return to work. The judge found from the credited evidence that the Respondent’s delivery requirements were highly flexible, permitting drivers to make deliveries hours after scheduled delivery times and even an entire day later. In fact, no driver had ever before been disciplined for making late deliveries. The judge also found that, based on the time that the drivers returned to the facility, they could have completed most of their deliveries had they been allowed to work. Under all the circumstances of this case, we find that the drivers’ 3-hour absence from their worksite did not constitute the sort of “indefensible” conduct that removed them from the protection of Section 7. Washington Aluminum, supra at 17.11

We therefore conclude that the Respondent violated Section 8(a)(1) by threatening drivers with discipline and discharge, and violated Section 8(a)(1) and (3) by suspending, discharging, refusing to consider for hire, and refusing to hire the drivers due to their attending the May 29 effects bargaining session.12

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Northeast Beverage Corporation and B. Vetrano Distributors, Inc., a wholly owned subsidiary of Northeast Beverage Corporation, Bristol, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

Dated, Washington, D.C. May 25, 2007

______________________________________

Robert J. Battista, Chairman

______________________________________

Wilma B. Liebman, Member

(seal) National Labor Relations Board

Member Schaumber, dissenting in part.

Introduction

The unfair labor practice allegations in this case arise out of the Respondent’s purchase of two beverage distributorships. The Respondent closed the smaller, unionized facility, B. Vetrano Distributors (Vetrano), and relocated and consolidated its operations with those at the larger nonunionized facility, Burt’s Beverages (Burt’s). Before the closing, the Respondent and the Union engaged in bargaining over the effects of the Vetrano closing. During one such bargaining session, eight Vetrano delivery drivers, six of whom were scheduled to drive that day, walked off the job and drove to the union hall to seek information at the negotiating session about their job prospects. They were away from their jobs for more than 3 hours. The Respondent suspended for the rest of that day the six drivers who were to be at work and subsequently terminated five of them for their walkout. It subsequently refused to consider the five discharged drivers for hire or to hire them at Burt’s.

The judge found that the Respondent violated Section 8(a)(1) by threatening the drivers with discipline and discharge, violated Section 8(a)(1) and (3) by suspending and discharging the drivers, and also violated Section 8(a)(1) and (3) by refusing to consider for hire, and refusing to hire, the five discharged drivers. My colleagues adopt these findings. I respectfully disagree. I would reverse the judge and dismiss the allegations because I find that the walkout by these represented employees was not protected.1

Moreover, contrary to my colleagues, I find that the General Counsel failed to prove that the Respondent’s reasons for discharging and subsequently refusing to consider or hire the drivers were pretextual. Even assuming that the General Counsel met his initial burden of proof, the Respondent has proven that its actions were motivated by a legitimate business justification. The five discharged drivers left work without permission for 3 hours; contrary to the judge, I do not find their actions comparable to routine breaks taken by other Vetrano drivers throughout the course of the workday. Accordingly, I find that the Respondent would have discharged these five drivers and refused to rehire them even in the absence of the alleged plan to avoid employing a significant number of union-represented employees at the merged Burt’s facility.

1. The relevant facts

In October 2001, the Respondent purchased Vetrano, located in Bristol, Connecticut. The Vetrano drivers were represented by the Charging Party Union. The following April, the Respondent purchased Burt’s, a larger nonunion company, located 30 miles away. On or about May 13, 2002,2 the Respondent decided to close the Vetrano facility and merge its operations with Burt’s. In part because the closing date at Vetrano depended on state approval of operating licenses for Burt’s, the Vetrano drivers did not know when they would stop working. During the period between the decision to close Vetrano and the end of operations on June 14, the Respondent and the Union engaged in bargaining over the effects of the closing. The parties scheduled one such bargaining session at the union hall in South Windsor, Connecticut, to commence at 10 a.m. on May 29. South Windsor is approximately 30 miles from the Vetrano facility, with an estimated driving time of 45 minutes.

The practice at Vetrano was for the drivers to arrive between 5:30 and 6 a.m., or earlier, to load their trucks. After the loading was finished, the drivers clocked out to make deliveries. According to the credited testimony of driver Chris Everett, drivers generally began their routes between 7:45 and 8:30 a.m., occasionally as late as 9 a.m.

On May 29, while the drivers loaded their trucks, they discussed their concerns about their jobs and the possible loss of seniority when the facility closed. They then decided as a group to leave their jobs and attend the effects bargaining session scheduled that day. The judge credited their testimony that their intent was to get answers to questions about their employment prospects and that they intended to return to their jobs. The drivers punched out of the warehouse sometime after 8 a.m.3 They stopped at a diner on the way to go over the questions they planned to ask. They arrived at the union hall at approximately 9:45 a.m. Union representatives at the hall strongly urged them to return to work, but ultimately decided to permit them to ask some questions during the meeting. The union representatives, the eight drivers, and the Respondent’s representatives met from about 10:30 to 10:45 a.m. It is unclear from the record what transpired afterwards, except that the drivers drove back to the Vetrano facility, arriving sometime before 11:30 a.m. In response to their walkout, the Respondent suspended for the balance of the day the six drivers scheduled to work that day.

On May 31, John Vetrano, a manager at the Respondent, sent a letter to the six suspended drivers informing them that the Respondent viewed their walkout as an illegal job action and that it was investigating the matter, after which it would impose “appropriate discipline up to and including discharge.”4 Friday, June 14, was the last day of work for the Vetrano unit employees. On that day, the Respondent terminated five of the six drivers whom it suspended on May 29. The sixth employee was disciplined with a 1-day suspension.5

The terminated Vetrano drivers subsequently applied for work at Burt’s but none was offered a position. The Respondent did offer employment to the driver it suspended for 1 day and to the two drivers who attended the bargaining session with the other drivers but who had not been scheduled to work that day.

2. The judge’s findings

The judge found that the drivers’ conduct was protected concerted activity, rejecting the Respondent’s claims that it was barred by the contractual no-strike clause, and was in derogation of the employees’ bargaining representative. According to the judge, the drivers were not engaged in a strike because they did not have a plan to pressure their employer to take any action or to make a change in their working conditions, and the employees planned to return to their duties immediately after they spoke to the Respondent’s representatives at the union hall. The judge found that the drivers’ actions fell under the “broad wording” of the Supreme Court in NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962). She reasoned that the drivers knew that their jobs were going to be the subject of the effects bargaining session, they wanted information about it, and they wanted to “spotlight” their anxiety over the situation to the Respondent’s representatives. The judge rejected the Respondent’s argument that there had to be an “existing adverse working condition” present to make their action protected. She found that the “aim of obtaining answers to important questions such as for how long one will continue to have a job and under what conditions of seniority and pay is as strong a reason to take action as is a miserably cold working environment [as prevailed in Washington Aluminum].” The judge also found that Mancini’s May 31 letter to all the Vetrano unit employees was a condonation of the employees’ conduct.6 Finally, she concluded that Respondent did not want to hire unionized employees at Burt’s and that its refusal to consider for hire and hire the five terminated drivers who applied for employment there was discriminatory.

3. The Respondent’s exceptions

The Respondent contends that the judge erred in finding the walkout protected under Washington Aluminum. It argues further that it did not condone the May 29 walkout and that its failure to consider and hire the Vetrano drivers was not unlawfully discriminatory. I find merit in these exceptions.7

4. Discussion

a. The Respondent’s discipline of the drivers for
walking off the job was not unlawful

I agree with the judge that the drivers were not engaged in a strike. They left the warehouse not to pressure the employer to grant concessions or to take any other action but to gather information. I find, however, that the judge erred in equating the drivers’ desire to know more about their future and “spotlight” their anxiety about their job prospects with the conflict between the employer and the employees in Washington Aluminum. The same factor on which the judge relied in part to find that the walkout was not a strike—the drivers’ lack of a dispute with their employer—also removes the conduct from the range of activity that Congress intended to protect under Section 7 and that the Supreme Court addressed in Washington Aluminum.8

In Washington Aluminum, the Supreme Court held that the spontaneous work stoppage by unrepresented employees to protest the bitter cold they were being forced to work under was protected Section 7 activity. The Court’s finding was based on an ongoing dispute between the employees and the employer over the issue.

The Court said:

[W]e think the walkout involved here did grow out of a ‘labor dispute’ within the plain meaning of the definition of that term in Section 2(9) of the Act, which declares that it includes ‘any controversy concerning terms, tenure or conditions of employment.’ . . . [A] running dispute [existed] between the machine shop employees and the company over the heating of the shop on cold days—a dispute which culminated in the decision of the employees to act concertedly in an effort to force the company to improve that condition of their employment.

Id. at 15–16 (footnotes omitted).

Nothing in Washington Aluminum supports the interpretation, adopted by the judge, that employee walkouts that are not undertaken as part of an ongoing labor dispute to demand a change in employment conditions are also protected. And, it clearly would not serve the Act’s purposes to extend the reach of Section 7 to protect represented employees who absent themselves from work and stop customer deliveries for a significant period simply for informational purposes, i.e., to get “answers” from management and union representatives engaged in effects bargaining about their employment prospects.

This conclusion is consistent with a basic principle of Federal labor law, long acknowledged by the Board and the courts—that “[t]he Act, of course, does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time. Working time is for work.” Peyton Packing Co., 49 NLRB 828, 843 (1943). Accord: Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 fn. 10 (1945).

My colleagues find significance in the fact that the drivers had not received answers to questions regarding their continued employment. I am not disputing this fact, nor am I disputing the importance of the answers to the concerned drivers. Concededly, the drivers had a right to act in concert to pose these questions to their union and their employer during nonworking time. Nonetheless, Section 7 does not give the drivers the right to take an unauthorized 3-hour absence from work at anytime they so choose, to seek answers to their questions in this manner. Notwithstanding how dissatisfied the drivers may have been with the information they had received from the Union or from the Respondent, this dissatisfaction did not diminish the Respondent’s management right to maintain order and discipline, including the right to expect drivers to perform their scheduled deliveries during their scheduled hours of work.

In Gulf Coast Oil Co., 97 NLRB 1513, 1516 (1952), and Terri Lee, Inc., 107 NLRB 560 (1953), relied on by the Respondent, the Board held that an employer does not act unlawfully in discharging employees who use worktime to engage in union activities. In Gulf Coast Oil, the respondent’s 11 drivers met with union representatives and joined the union, as a result of which they arrived at work approximately 3 hours late. During their absence, the respondent hired eight new drivers before it knew the old drivers had returned, and refused to rehire the other three drivers. The Board rejected the General Counsel’s argument that the respondent’s refusal to reinstate the three drivers it did not replace was unlawful, finding that “the concerted activity of the old drivers was [not] of a type which immunized them against discharge. [It] amounted to an unwarranted usurpation of company time by the employees to engage in a sort of union activity customarily done during nonworking time . . . [and] violated the Respondent’s known established reporting rule.” 97 NLRB at 1515–1516 (footnote omitted).

Contrary to my colleagues’ assertion, the absence of an established work rule setting forth a “‘customary’ way for [employees] to ascertain the progress of negotiations which vitally affected them” does not distinguish this case from Gulf Coast Oil. It is axiomatic that employees are expected to work during working time. A specific rule describing this obligation is not a necessary prerequisite to an employer’s exercise of its basic management prerogative to discipline employees who walk off the job for 3 hours. Nor does the Respondent’s prior flexibility in allowing its drivers to adjust their deliveries around reasonable break periods and customer-related exigencies entitle employees to leave work for 3 hours when they feel compelled to discuss terms of employment.

In Terri Lee, Inc., 107 NLRB 560 (1953), the respondent’s employees felt aggrieved over a cut in their piece-rate pay. Several employees planned to consult a union with respect to the cut in rates during the workday. One of the respondent’s managers told an employee that she had the right to go to the union, but on her own time, and that if she took the day off she would lose her job. When the respondent was informed that employees took the day off to consult with the union, it discharged the employees involved. The Board found that the discharges were not unlawful under the Act. According to the Board, the discharged employees did not “engage in a strike or other concerted withholding of work. . . . [T]hey merely intended to take the day off to obtain information from the Union, without any purpose thereby of protesting the cut in piece rates or of seeking any concession from the Respondents.” Id. at 562 (footnote omitted). Since grants of time off are a management prerogative, the Board held that there was no interference with protected activity or discriminatory motivation in discharging the employees. Again, contrary to my colleagues, I find that this case is not distinguishable merely because the drivers sought information directly from the Respondent. As in Terri Lee, the decision whether to grant time off from work to seek information about conditions of employment is a management prerogative.

I agree with the Respondent that these cases govern the outcome here.9 The work stoppages in those cases, like the walkout here, stand in stark contrast to the ongoing labor dispute over being forced to work in the cold in Washington Aluminum. Here, as in Gulf Coast Oil Co. and Terri Lee, Inc., the employees’ conduct usurped part of the workday—“working time”—for their own purposes. There is no reason why the employees could not have questioned Shop Steward Everett or the Union’s business agents on nonworktime with respect to their concerns. Instead, they walked off the job, leaving their customer delivery duties to attend the effects-bargaining session. As a result, their walkout was not protected and their suspensions and subsequent discharges did not violate the Act.10

b. The Respondent did not condone the drivers’ actions

The judge found that the Respondent condoned the drivers’ actions. I again disagree. “The doctrine of condonation applies where there is clear and convincing evidence that the employer has agreed to forgive the misconduct, to ‘wipe the slate clean’ and to resume or continue the employment relationship as though no misconduct occurred.”11 The Respondent did not do so.

In his May 31 letter, the Respondent’s manager, Vetrano, explicitly informed the six drivers who had been scheduled to work that there was an ongoing investigation and the Respondent “would impose appropriate discipline” at the end of the investigation. To find condonation, the judge relied on another letter of the same date sent to all the unit employees. In that letter, the Respondent’s president, Mancini, told the employees that a severance package was under negotiation and that severance pay depended on an orderly shutdown of the Vetrano facility “in which employees continue to work until they are released by the company.” According to the judge, the two letters could not be reconciled and the six employees would rely on the Mancini letter to all unit employees rather than the Vetrano letter to them, because Mancini was Vetrano’s superior. The judge’s reasoning is strained.

The Mancini letter was to unit employees generally. It did not purport to address any ongoing disciplinary issues in the Vetrano work force. Indeed, it would not be reasonable to expect a letter to all unit members that was seeking cooperation in the shutdown of operations to address such matters. The Vetrano letter was written to the six drivers and was in response to their walkout. The Mancini letter to all employees in no way cancelled or otherwise negated the special letter to the six drivers notifying them of possible further discipline.

For the foregoing reasons, I believe my colleagues in the majority err, and I respectfully dissent.

Dated, Washington, D.C. May 25, 2007

______________________________________

Peter C. Schaumber, Member

National Labor Relations Board

Margaret A. Lareau, Esq., for the General Counsel.

Thomas W. Budd, Esq. and G. Peter Clark, Esq. (Clifton Budd & DeMaria), of New York, New York, for the Respondent.

Gregg D. Adler, Esq. (Livingston, Adler, Pulda, Meiklejohn & Kelly), of Hartford, Connecticut, for the Charging Party.

DECISION

Statement of the Case

Eleanor MacDonald, Administrative Law Judge. This case was tried in Hartford and New Haven, Connecticut on five days between December 9, 2002 and January 17, 2003. The Amended Complaint alleges that the Respondent, in violation of Section 8(a)(1), (3) and (5) of the Act, by passed the Union and dealt directly with employees, threatened its employees with discipline for engaging in concerted activities, suspended its employees, discharged its employees and refused to consider for hire and refused to hire its employees because they engaged in concerted activities and because they joined and assisted the Union. The Respondent denies that it has engaged in any violations of the Act and asserts that the Complaint is barred by Section 10(b) of the Act.1 On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filled by all the parties, I make the following2

Findings of Fact

i. jurisdiction

The parties stipulated that during the period October 1, 2001 to June 17, 2002, Northeast Beverage Corporation and B. Vetrano, Inc., a wholly-owned subsidiary of Northeast Beverage Corporation were affiliated business enterprises. During the period April 1, 2002 to June 17, 2002, they constituted a single employer within the meaning of the Act.

The parties stipulated that during the period April 1, 2002 to June 17, 2002, Northeast Beverage Corporation, B. Vetrano, Inc., and Burt’s Beverages, Inc., a wholly owned subsidiary of Northeast Beverage Corporation were affiliated business enterprises. During the period April 1, 2002 to June 17, 2002, they constituted a single employer within the meaning of the Act.

The parties stipulated that during the period June 17, 2002 to the present Northeast Beverage Corporation and Northeast Beverage Corp. of Connecticut, a wholly owned subsidiary of Northeast Beverage Corporation have constituted a single employer within the meaning of the Act.

The parties agree that at all material times the single employer Respondents described above have met the dollar amount and out-of-state purchase requirements for assertion of Board jurisdiction. The parties agree, and I find, that the single employer Respondents described above have been engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. The parties agree and I find that International Brotherhood of Teamsters, Local 1035, is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

A. Background

This case arises from the purchase of two Connecticut beer and soft-drink distributors by Northeast Beverage Corporation, a Rhode Island based company. In October 2001 Northeast Beverage Corporation purchased B. Vetrano, a company located in Bristol, Connecticut. The Vetrano drivers had for many years been represented by the Local 1035. Kenneth Mancini, the president of Northeast Beverage met with the Vetrano employees and told them that the future was bright now that they were part of his organization. In April 2002 Northeast Beverage Corporation purchased Burt’s Beverages, Inc., a company located in Bethel, Connecticut. The Burt’s employees were not represented by a Union.

After the purchases described above, Mancini retained Alex Reveliotty to advise him on methods of merging the two Connecticut operations to insure their profitability. Reveliotty recommended that the operations be merged in Bethel at the Burt’s facility, a decision which would entail closing the B. Vetrano facility. Local 1035 and Northeast Beverage began effects bargaining. The Vetrano employees, now unsure of their futures and feeling anxious about their jobs, decided on the spur of the moment to go to a bargaining session that was scheduled for 10 am at the Local 1035 Union hall on May 29, 2002. Management viewed this attendance with the concomitant absence of the employees from their jobs for a few hours as an illegal strike. The drivers were suspended for a day and ultimately discharged, with one exception, at the time that the Vetrano facility closed.

During the effects bargaining, which continued until the B. Vetrano facility closed on Saturday, June 15, 2002, management engaged in a direct communication with an employee which is alleged to constitute bypassing the Union.

The effects bargaining dealt with many matters not relevant to the instant proceeding. As much as possible, I shall omit discussion of these extraneous matters in the discussion of this case.

The parties stipulated that the following individuals are supervisors of the single employer within the meaning of Section 2(11) of the Act.

Kenneth Mancini: President and Chief Executive Officer, Northeast Beverage Corporation

Alex Reveliotty: Transitional Operations Manager/Consultant, April to August 2002

John Vetrano: Manager at B. Vetrano until June 17, 2002. Manager, Northeast Beverage Corp. of Connecticut, June 2002 to present

James Davenport: Manager, Northeast Beverage Corp. of Connecticut

Diane Scott: Office Manager, Northeast Beverage Corp. of Connecticut

The record shows that various employees of B. Vetrano in Bristol were hired to work at the Burt’s facility in Bethel. These included John Vetrano, foreman Fred Bergeron, and the sales manager and four sales people.

The collective bargaining agreement between B. Vetrano and Local 1035 applied to the following unit of employees:3

All regular drivers, regular helpers, regular warehousemen, driver’s assistants, seasonal employees, temporary employees and spares; excluding office clerical employees and guards, professional employees and supervisors as defined in the Act.

The collective bargaining agreement contained the following language:

Article XVI

NO STRIKE-NO LOCKOUT

Section 1. The Union guarantees the employer that there will be no authorized strikes, work stoppages or other concerted interference with normal operations by its employees during the term of this Agreement.

Section 2. The employer guarantees that it will not lock out its employees during the term of this Agreement. For the purposes of this section, an authorized strike, work stoppage or other concerted interference with normal operations is one that has been specifically authorized or ratified by the General Executive Board of the International Union or one which has been called or sanctioned, directly or indirectly, by representatives of teamsters Local No. 1035.

Section 3. In the event that the above job actions occur, the International Union shall not be liable, financially or otherwise, provided, however that within twenty-four (24) hours after actual notice in writing or by telegram from the employer that the International Union notify the local officers that such action is unauthorized and instruct such officers to bring it to the attention of the involved employees. The Local Union whose members are involved in such unauthorized action shall not be held liable thereafter, if it would otherwise be liable, provided that it meets the following conditions:

(a) the Union promptly posts notices in conspicuous places at the affected company and at the Local Union office stating that such action is unauthorized.

(b) The Union promptly orders its members to resume normal operations.

Section 4. The employees who instigate or participate in such job actions in violation of this Agreement shall be subject to discharge or discipline. In this event, their sole recourse to the grievance and arbitration procedure shall be limited to the question of whether, in fact, they did instigate or participate in such strike or work stoppage.

Section 5. In no event shall either the Local or the International Union be held liable for the actions of employees who are not members of the Union, nor shall the International Union be liable for any act or omission not specifically authorized or ratified by its General Executive Board.

B. Consolidation of the Facilities and Effects Bargaining

Kenneth Mancini testified that in May and June 2002 he had primary responsibility for the company’s operations in Connecticut when he engaged Alex Reveliotty to assist him in evaluating efficiencies of operations at B. Vetrano in Bristol and at Burt’s in Bethel and to recommend a business plan.

Reveliotty testified that Mancini has used him as an advisor on various occasions.4 In early April 2002 Mancini contacted Reveliotty to advise him on ways to enhance the profitability of two small Connecticut distributors acquired by Northeast Beverages. Reveliotty and Mancini discussed various options for dealing with the facilities. Reveliotty said that he met with Mancini once a week and called him every few days. Mancini wanted to consolidate the two Connecticut operations under one roof.

On April 15, 2002 Reveliotty visited the Vetrano facility and later in the week he visited Burt’s. Beginning May 15 and continuing to June, Reveliotty met with John Vetrano once a week. Reveliotty testified that staffing is important and that he gave consideration to this subject when completing his tasks for Mancini. Reveliotty discussed staffing with John Vetrano. The key issue was how to work out the routes serviced by B. Vetrano. Reveliotty asked who did what routes and who drove on which trucks. John Vetrano told Reveliotty that he wanted to take care of his drivers as much as possible; he wanted to get jobs for some of his drivers in Bethel. Reveliotty knew that there was a union at B. Vetrano and that the Burt’s employees were not represented.

After getting to know the Vetrano operations, Reveliotty spent much of his time at Burt’s where he dealt with James and Jeff Davenport.5 Reveliotty stated that he was familiar with Burt’s staffing. Reveliotty testified that he placed newspaper advertisements in April and May for drivers at Burt’s. Whether or not there was an actual opening for a driver he wanted to develop a pool of candidates. Although he knew that the Union wanted jobs for the B. Vetrano men, Reveliotty did not discuss with Mancini whether the latter would consider offering positions to the B. Vetrano drivers rather than placing ads in the papers for new employees. Reveliotty said that towards the end of May Burt’s was only advertising for warehouse people.

Reveliotty knew that there was an employee manual at Burt’s. Diane Scott, the Burt’s office manager, told him it was out of date, but she did not say that there had been written changes.

On May 7 or 8, 2002 Reveliotty gave Mancini a written recommendation. In this document Reveliotty recommended that the two Connecticut locations be consolidated at Burt’s in Bethel. Reveliotty wanted to deal with the increase in volume at the Burt’s facility by changing to a system where a night crew was employed to load the trucks. This would allow the drivers more time to make their deliveries. Reveliotty testified that he was the person who decided how many employees were needed for the night loader crew in Bethel.

Mancini met with the Union representatives on May 13, 2002 and informed them that he had decided to consolidate the operations of B. Vetrano and Burt’s.6 Mancini said that 70% of the business volume was closer to the Bethel location of Burt’s and that the operations would probably be consolidated in Bethel. Mancini said that the B. Vetrano Bristol facility was too small. Mancini testified that there was a general discussion of the fate of the Bethel employees. He was thinking of employing them and this may have been talked about. Mancini told the Union that Northeast Beverage was not clear what its needs would be and that he would talk to the Union as soon as more information became available. Mancini remarked that some of the Bristol employees might not want to commute to Bethel. Mancini testified that he asked the Union to provide names of those employees who wanted to work in Bethel although he did not know whether he would employ these drivers in Bethel. Mancini wanted to inform the employees of the consolidation but the Union requested that they wait a day or two.

Mancini testified that on May 13 he told the Union that a probable merger date for Bethel and Bristol was between mid-June and mid-July. Northeast Beverage had applied for the necessary permits from the Connecticut liquor authorities and it was awaiting their issuance. Until Northeast obtained the required permit it could not order employees in Bethel to deliver beer on the Bristol routes previously served by B. Vetrano. Mancini testified that until June 14, their last day of work in Bristol, the B. Vetrano employees did not know when they would actually stop working.

Management attorney Thomas Budd, Esq., testified that at the May 13 meeting the parties discussed a possible merger of the facilities in Bristol and Bethel which would take place in mid-June. The Union suggested that all the work could remain at the B. Vetrano facility in Bristol or could be relocated to a new facility. The company responded that Bethel was the only facility adequate to house a merged operation. The Union said if there was a merger then the company should offer jobs to the B. Vetrano employees. The company suggested that some of the unit employees would not commute to Bethel and Union secretary/treasurer Roos replied that was possible but he did not know. The company said the Union should provide the names of employees who would be interested in going to Bethel if there were a merger. Roos asked that before the company spoke to employees about the merger the Union should be given the opportunity to communicate with them. During this meeting the company did not ask for a written list of unit employees willing to work from Bethel. According to Budd, the Union did not assert at the May 13 meeting that the collective bargaining agreement would apply in Bethel if the employees were transferred there, but Roos said he would check with attorney Adler as to the application of the contract.

Budd summed up the discussion in a May 14 letter to Roos which stated:

the Company expressed an interest in knowing what B. Vetrano unit members would go to Bethel, assuming the employment conditions are satisfactory, so that the Company could evaluate the necessity of hiring additional employees at Burt’s to cover the anticipated increase in volume.

Roos testified that during the discussion on May 13 the company asked the Union for the names of B. Vetrano employees who would go to Bethel. The Union replied that Respondent should take all the employees by seniority. Mancini said he thought there might be work for some of the unit employees in Bethel but he was not sure how many would make the trip. Roos testified that it would take 30 minutes to drive from B. Vetrano in Bristol to Burt’s in Bethel.

Gregg Adler, Esq., who had not been present at the May 13 meeting, replied to Budd’s letter to Roos on May 15 with a request for information and an assertion that the collective bargaining agreement applied, by its terms, to “any employer who is a replacement as to product and/or routes in territory under the jurisdiction of Local Union 1035.”

Budd replied to Adler by letter dated May 16, providing certain information, questioning the geographic jurisdiction of Local 1035 and stating that there would be a legitimate opportunity for employment in Bethel for the Vetrano employees. Budd said Roos had been asked for a list of employees who would be interested in working in Bethel.

Mancini stated that the Union maintained that the collective bargaining agreement provided that the contract follows the work. He said the Union did not provide a written list of employees who wanted to work in Bethel. Mancini testified that at every negotiation session he informed the Union that the Vetrano employees had the right to apply for jobs in Bethel. He acknowledged that he also said that no jobs were currently available.

C. Events of May 29, 2002

There is no dispute that the unit employees at B. Vetrano were paid by a combination of hourly and commission pay. Drivers would typically come in early in the morning to load their own trucks and help other drivers load trucks. For this portion of the day the drivers would punch a timeclock and would receive hourly pay. After the trucks were loaded, the drivers would punch out. While making deliveries the drivers were paid on a commission basis.

The company and the Union had scheduled a 10 am negotiating session for May 29 at the Union Hall in South Windsor, Connecticut in order to bargain over the effects of the decision to merge the B. Vetrano and Burt’s businesses. That morning the unit employees at B. Vetrano were loading their trucks and discussing their anxieties about the future of their jobs.

Counsel for the General Counsel called the unit employees to testify about their actions on that day.7 Before the first day of the instant hearing, Counsel for the General Counsel had issued a subpoena to Respondent requesting, inter alia, the production of the employees’ timecards and route sheets for that day. The Respondent did not supply these documents until after the employees’ testimony was concluded. Therefore, the employees testified about their start times and routes without the benefit of refreshing their recollections by use of the documentary evidence. Having observed the employees closely I find that each of them made a great effort to be accurate and to set forth the facts as he truly remembered them. Each of these employees is worthy of belief. If the employees’ testimony varied from the actual details noted on their timecards or route sheets that is a result of the passage of time and not out of any desire to shade the facts. In fact, these witnesses were without guile. Most of them testified freely to facts which were not helpful to the General Counsel’s case. It was clear that they had not collusively prepared their testimony.

Paul Johnson8

Paul Johnson, who had worked for over a year at B. Vetrano, testified that he reported to work that morning at about 6:30 am.9 Johnson is a member of Local 1035. He has driven trucks for about 11 years. His CDL has endorsements for tankers, HAZMAT and air brakes. Johnson stated that he usually reported to work between 6 and 6:45 am and that he typically worked a 10 hour day. Johnson recalled that his truck was 95% loaded on the morning of May 29 and that he had about 10 minutes more to go before completing the loading. At this point all the employees were disgruntled. After the purchase of B. Vetrano by Northeast John Vetrano had brought Mancini to the warehouse to speak to the employees who were worried about their jobs and their seniority. Vetrano and Mancini had told the employees that nothing would happen to their jobs as the result of the purchase. Mancini said the jobs would only get better, there would be a lot more product coming into the warehouse, more drivers would be needed, and the future was great. But then in April or May 2002 John Vetrano told the employees that Northeast had bought Burt’s. Vetrano said that the warehouse would be closed down and that all the products would be moved to Burt’s. The men worried about their seniority and their jobs. John Vetrano could not tell them whether they would still be working. During the weeks preceding May 29 the men had been trying to get answers from Vetrano, from their shop steward Gary Everett and from the Union, but no one could supply any answers.

While loading the trucks on May 29 the men were saying they might not have jobs tomorrow. They did not know when the company would be shut down. At that point shop steward Everett said that there was a meeting that morning between management and the Union that might provide some answers. The men decided that it might not be a bad idea to try to go to the meeting and seek answers to their questions. At about 8 am all the men punched out and Everett told mechanic “Butch” that they were going to the Union hall to attend a meeting and that they would be back. The men did not check with any Union officials before leaving the warehouse. They drove to South Windsor in three cars and stopped at a diner to formulate questions that they intended to pose once they reached the Union hall. Johnson said the questions were: would the unit employees have jobs at Burt’s, would they have seniority and would their pay change.

Johnson testified that the trip from the warehouse to the Union hall took about 45 minutes to one hour. He did not recall what time it was when the employees reached the Union hall.10 Once in the parking lot the employees stayed outside to wait for unit employee Joe Pignatella who had been called by cell phone while the men were en route. At that point John Hammond, the Local 1035 business rep, came out from the Union hall and walked to the parking lot, exclaiming, “What the fuck are you guys doing here, you have to get back to work!”11 According to Johnson the men replied that they wanted answers to their questions about what would happen to their jobs. They said they did plan to go back to work. Either Union attorney Greg Adler or Secretary/Treasurer Christopher Roos came outside and said it was a closed meeting and that the employees could not attend. But the Union officials said the men could come in for 10 minutes and maybe get some answers. Several times Union officials told the employees to get back to work. Johnson recalled that the men went inside the Union hall and talked for about 15 minutes. But they got no answers because the Union had no information. Just as the men were getting up to leave for work, Mancini came in with Attorney Thomas Budd. These two looked shocked to see the men. Adler explained what the men were doing there and he said they would go back to work. After being told again that there were no answers to their questions the men drove back to the warehouse. Johnson estimated that the employees had spent 20 to 30 minutes at the Union hall, but he did not know what time it was when they left. The employees drove straight back to the warehouse. When they got there, the trucks were missing and a sales manager named Tony told them that they were suspended until further notice.

During cross-examination by Counsel for Respondent Johnson testified that while the men were at the Union hall they were informed by the Union representatives that the meeting was “a very technical legal meeting that we . . . weren’t invited to.” Counsel for Respondent asked whether Johnson had asked to be able to attend the meeting. Johnson replied “yes.” He said the men were told “that we couldn’t attend the entire meeting but we could go in . . . and they could try to answer some of our questions. . . . That’s why we were there.” Counsel for Respondent then suggested to Johnson “You wanted to attend the entire meeting, . . . the Union attorney . . . told you no, you can’t stay for the whole meeting?” Johnson then tried to recall who told the men they could not stay. Respondent argues that Johnson testified that the unit employees wanted to stay for the several hours that the entire meeting would last and that this proves the drivers had no intention of returning to work. I do not agree that this is what the testimony shows. Johnson did not testify that the men wanted to attend the “entire meeting.” Johnson said the men wanted to attend the meeting and ask questions. They were told by the Union that they could not attend the entire meeting but could go in for a few minutes. Counsel for Respondent never asked Johnson whether he in fact had intended to attend the entire meeting and Johnson’s attention was never directed to that particular aspect of Counsel’s compound question. I believe it would be inaccurate to say that Johnson actually testified that he wanted to stay for the entire meeting.

On cross-examination by Counsel for Respondent Johnson said that he did not believe he was scheduled for a 7:15 am delivery to a customer called Liquor Depot on the morning of May 29, 2002. Johnson stated that Liquor Depot does require an early delivery and he said the drivers try to deliver there by 7:15 am but that it is hard to get out of the warehouse on time. All the trucks cannot be loaded at once and, “We missed that one a lot.” Johnson said the men thought it was OK to leave the warehouse on May 29th. They all had families to support and they all wanted to know if they would have jobs the next day.

Johnson testified about practices at B. Vetrano. He stated that the drivers left the warehouse most days close to 8 am. If a truck had a very large load it might not leave until 10. Johnson was never criticized for leaving after 8 am. Every morning each driver looked at his load sheet for the day and planned the order in which he would deliver the products. Johnson had never been told that there was a limit on the number or duration of breaks he took during the day. Johnson said there was no set time to finish driving a route. Often he was on the road until 8 pm when the package stores closed.

Johnson said he did not try to call John Vetrano on the morning of May 29. Johnson had his cell phone and home numbers but he had not seen Vetrano at the warehouse in weeks. Nobody knew where Vetrano was.

Chris Fedor12

Chris Fedor stated that on May 29, 2002 he arrived at work at 6:30, got his load sheet and began loading his truck.13 Both Pignatella and Everett were there helping with the loading. Fedor spoke to Johnson about their concern for the future of their jobs. The men did not know what to do about getting answers to their questions. They asked Everett and he said there was a meeting with management. When the employees suggested going to the meeting, Everett said they could not do that. Eventually all the employees joined in and said they wanted to attend the meeting despite Everett’s advice that they should not do that. Fedor recalled that the employees left the warehouse between 8:30 and 9 am. Fedor drove with Everett who said that although he did not like what the men were doing as a Union steward he had to support the majority against his better judgment. Fedor testified that it would take 1/2 hour to reach the Union hall so the employees stopped for about 1/2 hour and had coffee in a diner. Written questions were prepared in anticipation of the departure for the Union hall but he did not recall who had the questions. The employees reached the Union hall at 9:45. Hammond told the men to leave when he saw them but they refused; they went into the Union hall at about 9:50 or 9:55 and sat down to wait for the owners to come in. The Union leaders kept telling the employees to leave and get back to work. Adler said the employees’ presence would disrupt the meeting and that it was a bad idea. An understanding was reached that after management arrived and the men were introduced, they would return to work. The employees talked to the Union leaders for about 10 minutes asking about the future of their jobs, but the Union had no answers. Then Budd, Mancini and Reveliotty entered the room. Budd said the men were engaging in an illegal work stoppage. After a brief discussion the employees left. Fedor testified that the employees had always had the intention of returning to work to deliver the loads.

Union shop steward Gary Everett testified that he is familiar with the route Fedor was scheduled to drive on May 29.14 Although Fedor’s route sheet lists a delivery at Price Chopper, Everett said this was an error. The B. Vetrano secretaries often put Price Chopper on a delivery schedule for Wednesdays even though Price Chopper does not normally take deliveries on Wednesday. Everett said that Fedor’s route would take seven hours to deliver and that he could have completed the route if he took the truck out at 11:30. Although Fedor’s route included a Big Y store in Winsted, Fedor could have missed that stop and made it the next day. Everett testified that John Vetrano’s policy concerning all supermarkets was that if a supermarket were missed on one day it was acceptable to make the delivery the next day.

Gary Everett15

Gary Everett began working for B. Vetrano in October 1983. Everett had been a Union shop steward for 5 years when the events material to this case took place. In March 2002 Everett was injured in a serious accident and despite his efforts to return to work on several occasions he always ended up back on disability. While Everett was out on disability, John Vetrano would occasionally ask Everett to open the warehouse in the morning. This was the case on May 29, 2002.