DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brookfield Dairy, a Division of Hawthorn Mellody,
Inc. and Office and Professional Employees In-
ternational Union, Local No. 33, AFL-CIO.
Case 6-CA-15389
May 2, 1983
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On December 13, 1982, Administrative Law
Judge Benjamin Schlesinger issued the attached
Decision in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief in opposi-
tion to Respondent's exceptions.
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,l and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have careful-
ly examined the record and fund no basis for reversing his findings.
We are satisfied that Respondent's contention that the Administrative
Law Judge was biased is without merit. There is nothing in the record to
suggest that his conduct at the hearing, his questioning of witnesses, his
resolutions of credibility, or the inferences he drew were based on either
bia or prejudice. Further, we find no merit in Respondent's assertions
that its rights were infringed by its failure to be granted a postponement
of the hearing in this proceeding.
s Respondent has excepted to the Administrative Law Judge's failure
to cite Wright Line, 251 NLRB 1083 (1980), in his Decision. As we stated
in Limestone Apparel Corp, 255 NLRB 722 (1981), it is unnecessary to set
forth formally the Wright Line analysis in cases in which the administra-
tive law judge's findings and conclusions fully satisfy the analytical ob-
jectives of Wright Line. In this case the Administrative Law Judge reject-
ed Respondent's proffered reason for dismissing Mary Kitch as false and
pretextual. Implicit within this determination is his finding that Respond-
ent failed to meet its Wright Line burden of establishing that it would
have taken this action had Kitch not engaged in protected union activi-
ties. Accordingly, Members Zimmerman and Hunter agree that the Ad-
ministrative Law Judge's analysis conforms with the requisite of Wright
Line. However, Member Jenkins finds Wright Line inapplicable to the
resolution of this case. In his view a Wright Line analysis is appropriate
only in dual-motive cases; that is, where there exist both a genuine lawful
reason and a genuine unlawful reason for Respondent's action. In view of
the Administrative Law Judge's determination that Respondent's asserted
lawful reasons for terminating Kitch are pretexts, there is no genuine
lawful motive for its action and all that remains is the unlawful one. In
such circumstances applying Wright Line becomes confusing and mislead-
ing.
266 NLRB No. 131
Order of the Administrative Law Judge and
hereby orders that the Respondent, Brookfield
Dairy, a Division of Hawthorn Mellody, Inc.,
Sharpsville, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in said recommended Order.
DECISION
STATEMENT OF FACTS AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge:
This proceeding was heard before me in Sharon, Penn-
sylvania, on October 21, 1982, on an unfair labor practice
complaint' alleging that Respondent Brookfield Dairy, a
Division of Hawthorn Mellody, Inc.,2 discharged em-
ployee Mary Kitch on January 8, 1982, in violation of
Section 8(a)(3) of the National Labor Relations Act, as
amended, 29 U.S.C. § 151, et seq. (the Act), and violated
Section 8(a)(1) of the Act by announcing that Kitch's
discharge was caused by her union activities and by dis-
continuing its "open door" policy whereby employees
were free to discuss with Respondent all matters pertain-
ing to their employment. Respondent denied that it vio-
lated the Act in any manner.
On September 10, 1981, the Union filed a petition to
represent Respondent's office and clerical employees.
Kitch, who had previously signed a union authorization
card and talked with one employee about the possible
benefits of representation, was not at the forefront of the
Union's organizing campaign. Indeed, on November 9 or
10, she told Respondent's vice president and general
manager, Thomas R. Bohlender, that she did not know
whether she was going to vote for the Union in the elec-
tion then scheduled to be held on November 12. But, on
the day before the election, she accepted the responsibil-
ities of union observer and so acted. Several days later,
on November 17, she and employee Tenoria "Tena"
Sapala were harshly and abruptly told by Bohlender that
there was a new policy starting that day-that, contrary
to all prior practice and the "open door" policy that
Bohlender had previously followed and had reaffirmed
in preelection campaign speeches to employees, they
were no longer to enter his office, nor to peek in, and
that they were not to speak to him directly ("not even to
say good morning or good night") but to speak only to
Respondent's office and credit manager, Ernie Stefan-
ovsky, or to Bohlender's secretary, Judy Griffiths, both
of whom were in attendance.
The relevant docket entries are as follows: The unfair labor practice
charge was filed by Charging Party Office and Professional Employees
International Union, Local No. 33, AFL-CIO (the Union), on March 30,
1982; and the complaint was issued on May 18, 1982.
2 Respondent admitted that it is a Delaware corporation with an office
and place of business in Sharpsville, Pennsylvania, where it engages in
the processing and nonretail sale and distribution of dairy and related
products. During the 12 months preceding April 30, 1982, it purchased
and received at its Sharpsville facility products, goods, and materials
valued in excess of $50,000 directly from points outside the Common-
wealth of Pennsylvania. I conclude that Respondent is an employer en-
gaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the
Act and that the Union, as Respondent also admits, is a labor organiza-
tion within the meaning of Sec. 2(5) of the Act.
698
BROOKFIELD DAIRY
Neither Bohlender nor Griffiths testified; and Stefan-
ovsky, who did, did not deny Bohlender's comments. In-
stead, Stefanovsky merely testified that a new policy had
been enacted due to Bohlender's increased responsibil-
ities and desire to shift some of his duties to his two sub-
ordinates. However, I find that the new policy was not
made known to any of Respondent's other employees,
one of whom specifically testified that she was never in-
formed of it, and she and other employees continued to
talk with Bohlender. Because Sapala had that same day
moveds to the cashier's room, had previously testified as
a union witness in the representation proceeding, and
had previously complained to Bohlender that there was
favoritism shown to certain employees, and Kitch (in ad-
dition to being the Union's observer at the election) had
complained to Bohlender in her November 9 or 10 con-
versation about the assignment to her of too much over-
time and to others of too little, I find that Bohlender
wanted to isolate these two apparent union supporters in
one room, by themselves, and close the "open door"
only to them to demonstrate his displeasure with their
activities. I conclude that the formality and strictness of
his order was an attempt to intimidate them in order to
discourage their exercise of Section 7 rights in violation
of Section 8(aXl) of the Act.4
Kitch was laid off from her job on January 8, 1982,
after 21 years of employment. Actually, the term "laid
off" is a misnomer because Respondent stipulated at the
hearing that there never was any intention to recall her
to her job. That action is the subject of the principal alle-
gation of the complaint and involves, as all alleged
8(aX3) violations do, an inquiry into Respondent's moti-
vation. That task is made easier in this proceeding be-
cause it was uncontested that Bohlender announced at a
cocktail-dinner meeting of its office and clerical employ-
ees on February 25, 1982, that he made the decision to
"lay off" Kitch, contrary to Stefanovsky's wishes, be-
cause she was either "not a loyal" or a "disloyal employ-
ee." There was no explanation of why he deemed her
"disloyal" and it is not incumbent upon me, as Respond-
ent suggests, to engage in fanciful suppositions.
The American Heritage Dictionary of the English lan-
guage describes "disloyal" as applying to "one who is
false to persons or things due allegiance" and "loyalty"
as the state or quality of being "steadfast in allegiance,"
in this case, to one's employer. Kitch testified that, as far
as she could ascertain, she had never been disloyal to
Respondent. Because Bohlender did not testify, and there
is nothing else in the record which might prove other-
wise, I conclude that Kitch's disloyalty could only have
been her allegiance to the Union, which Bohlender op-
posed. Respondent argues that Kitch complained of Ste-
fanovsky's Saturday scheduling as being the possible
cause of union organization. But, without Bohlender's ex-
planation of what he meant, the word must be given its
s Sapala had been told by Stefanovsky on Monday, November 16, to
move that day or the following morning.
I find itrevealing that, although Sapala was transferred to the cash-
ier's office, she performed exactly the same duties as she did before, and
the room she worked in was not critical to her work. Bertha Nurse, who
was transferred from that office, was being trained by Kitch as a cashier;
yet she was removed from the very location which would have aided her
in learning the functions of the cashier.
reasonable meaning; and, in the circumstances of this
proceeding, including Bohlender's immediate action of
forbidding Kitch to talk with him and other employees
having complained of overtime work, I construe that her
disloyalty consisted solely of taking the Union's side in
the election process.
Respondent also contends that union activities could
not have been the cause of Kitch's discharge because the
most open union supporter, Debbie Gertner, was not
only not disciplined but promoted to assistant supervisor
of the computer department. Whatever appeal that argu-
ment may have 5 is outweighed by Bohlender's stated
and uncontradicted reason for Kitch's discharge and the
fact that Gertner was considered an excellent keypunch
operator and, I infer, irreplaceable. Kitch apparently was
replaceable, and it was evident that she, too, was a union
adherent. Finally, it is not necessary, in finding a viola-
tion, that Respondent discipline only the most vocal
union supporter. Sufficient damage may be done by se-
lecting a lesser, but more vulnerable, candidate in order
for an employer to discourage union activities. Brown &
Connolly, Inc., 237 NLRB 271, 285 (1978), enfd. 593 F.2d
1373 (1st Cir. 1979).
An assessment of Respondent's alleged justification for
Kitch's discharge must begin with the missing witness,
Bohlender, who was clearly in charge of Respondent's
operation, but whose absence was explained by his at-
tendance at a Colorado elk-hunting trip in Colorado. Re-
spondent had moved as early as September 20, 1982,6 for
an adjournment of the hearing. That motion and two re-
newals thereof were denied by the Regional Director.
No application to the Board to take a special appeal was
filed, and Respondent renewed its motion before me at
the hearing. I denied it, noting that once the Regional
Director had made his decision not to grant an adjourn-
ment, and no appeal having been taken, Bohlender had
to make a choice between going on vacation and attend-
ing this hearing. That he chose the former, and was actu-
ally out of the State when the hearing occurred, does not
preclude me from making an adverse inference regarding
his failure to testify, particularly in light of his participa-
tion with Stefanovsky (if he is to be believed) in the de-
cision to discharge Kitch. Maxwell's Plum, 256 NLRB
211, 213 fn. 9 (1981); NLRB v. Lantz, 607 F.2d 290, 296
(9th Cir. 1979). Because motivation is at the heart of this
matter, it could be expected that Bohlender's explanation
of his reasons would be critical; and I conclude that an
adverse inference is warranted.7
Because of Bohlender's absence and the adverse infer-
ence I draw from it, the only remaining issue is whether
the testimony of Respondent's two witnesses, Stefan-
' It appears that the "promotion" was one in name only, not salary or
responsibility.
6 The motion was made approximately 4 months after the complaint
was issued and the answer was filed. That was more than ample notice of
the date of the hearing herein.
I I would be remiss if I did not note that in one of its earlier applice-
tions for an adjournment Respondent set forth November 17, 1982, as the
first date Bohlender could appear. At the hearing, Respondent's counsel
stated that Bohlender would be returning on October 23 or 24 and could
appear at the hearing on October 25. 1 infer that Bohlender really did not
want to testify.
699
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ovsky and Grace Sutton, its data processing manager,
was so compelling that I should nonetheless find that
Bohlender should not be taken at his word and that Re-
spondent had a legitimate reason for discharging Kitch.
Both Stefanovsky and Sutton attended the February 25,
1982, meeting, but both refused to affirmatively deny
that Bohlender made the statement about disloyalty that
two current employees attributed to him. I find that Ste-
fanovsky's and Sutton's professed lack of recall was con-
venient and not candid, especially when compared with
their recollection of other statements made at the same
time as the "disloyalty" remark. In addition, Stefanovsky
was quite insistent that both he and Bohlender made the
decision to discharge Kitch despite Bohlender's state-
ment at the meeting that he alone made the decision, to
which Stefanovsky objected. When asked when the deci-
sion had been made, under what circumstances, and
what his conversations were with Bohlender, Stefan-
ovsky answered so evasively and inconsistently, and with
a lack of recall of such magnitude, that I am persuaded
that he never discussed the matter with Bohlender or, if
he did, he opposed Bohlender's decision, just as Boh-
lender admitted at the meeting. I am constrained general-
ly to discredit Stefanovsky's testimony in its entirety,
except when supported by more reliable witnesses.
Independent of this general credibility resolution, Ste-
fanovsky's attempt to justify Kitch's discharge for rea-
sons other than her union activities has no credible basis.
As I understand his testimony, supported by Respond-
ent's brief, the thrust of its case is bottomed on a con-
tinuing effort to reorganize its staff, streamline its oper-
ations, and make its business profitable. It is true that in
June 1981 Respondent laid off six office and clerical em-
ployees. Despite its recall of two of them in the follow-
ing month or two, the remaining employees (including
Kitch, who became Respondent's chief cashier) had
more tasks to do than they did before the layoffs. Em-
ployees worked overtime and some (including Kitch)
were required to work on Saturdays in addition to 5
weekdays. Obviously, there was more than sufficient
work for all the employees at the time of Kitch's dis-
charge.
I find that Respondent's defense of a continuing reor-
ganization has not been proved. Only Kitch was dis-
charged from the office and clerical department from
June 1981 until the date of the hearing in this proceed-
ing. Her cashier's job was assumed by Bertha Nurse,
whom Kitch had been instructing in those duties for 3
months or more. Other employees helped out Nurse in
her cashier's duties, including Linda McMath, who was
formerly a full-time laboratory technician, s left Respond-
ent's employ on maternity leave, and returned on May
17, 1982, as a part-time cashier. Kitch's other duties were
assumed by other employees, including Kathleen Blasko,
who was one of the two employees laid off in June 1981.
She was recalled to work in July 1981 and quit in Sep-
tember. About a month after Kitch was discharged,
* Stefanovsky testified that he "believed" that McMath was employed
in the customer order department. However, McMath was classified on
Respondent's Excelsior list as a laboratory technician, where she checked
the butter fat content of and performed bacteria counts on Respondent's
products.
Blasko was rehired to take customer phone orders, work
which Kitch had performed and was capable of perform-
ing. Her rehire, after she had quit 5 months before, is
most persuasive evidence that Kitch was not released be-
cause of any business consideration or necessity.
That Blasko had no experience in data processing
work also belies Stefanovsky's contention that Respond-
ent needed to employ persons with such a backgrounds
In fact, no one had been hired to do such work up to the
date of the hearing and it was not anticipated that
anyone would be hired to work with the computer until
at least January 1983. Stefanovsky's final reliance upon
the fact that a new telephone system was being installed
was wholly unsupported; indeed, on January 8, 1982, the
day Kitch was discharged, she was scheduled to be
trained on the new telephone system on January 19.10
Finally, there is some suggestion that Respondent was
dissatisfied with Kitch's work and lack of skills. That is
belied by the fact that, after the June 1981 layoff, she
was given more work to do and greater responsibilities,
and no one complained that she was doing her assigned
work badly or untimely; the fact that Respondent in-
creased her wages in August 1981, when Bohlender
commented that she "deserved" the increase; and the
fact that Nurse, who had formerly been a chief cashier
with another employer, had to be trained for 3 months
or more to learn Respondent's cashier's job. I infer that
when Nurse learned what Kitch had been doing Kitch
became expendable and Respondent discharged her for
her union activities.
Respondent complains that the General Counsel's case
is, at best, circumstantial. Even if it were, employers
rarely are so outspoken and daring that they publicly an-
nounce that disciplinary action was taken for reasons
which violate the Act. Shattuck Denn Mining Corp. v.
NLRB, 362 F.2d 466, 470 (9th Cir. 1966). Here, the cir-
cumstances are overwhelming and by no means create
mere suspicions. Bohlender came as close to openly stat-
ing an illegal motivation as one can imagine. Respond-
ent's professed reasons for firing Kitch are not only pre-
textual but also false. I conclude, therefore, that Re-
spondent violated Section 8(aX3) and (1) of the Act by
discharging Kitch and by announcing that its discharge
was because of her union activities." Operating Engi-
neers Local 12, 237 NLRB 1556 (1978); H. B. Zachry Ca,
261 NLRB 681 (1982).
0 Stefanovsky's niece, who was hired in late January 1982, a few
weeks after Kitch was discharged, had some experience in word process-
ing and data entry. She was not hired, however, to do that work. Rather,
she was a telephone operator and a secretary, having typing and "other"
skills, stated Stefanovsky. She, too, performed work formerly done by
Kitch.
10 Earlier, Respondent distributed a schedule for Saturday work
during December 1981 and January 1982. Kitch was scheduled to work
on January 9, 23, and 30, 1982.
" The Oeneral Counsel alleges that illegal motivation is also support-
ed by Respondent's removal of Kitch's desk in the cashier's room and its
request of Kitch to move her work location to the cashier's counter,
which Kitch found uncomfortable to sit at. Because customers would
come to the counter to be serviced, I do not find Respondent's direction
to be without business justification or imposed because of Kitch's union
activities.
700
BROOKFIELD DAIRY
The activities of Respondent set forth above, occur-
ring in connection with its operations, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to result in
labor disputes burdening and obstructing commerce and
the free flow thereof.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(aX3) and
(1) of the Act, I shall recommend that it cease and desist
therefrom, post an appropriate notice, and take certain
affirmative action designed to effectuate the purposes
and policies of the Act, including an order requiring Re-
spondent to offer Mary Kitch immediate and full rein-
statement to her former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to her seniority or other rights and privi-
leges, and to make Kitch whole for any loss of earnings
she may have suffered by reason of her discharge on
January 8, 1982, by paying her a sum of money equal to
that which she normally would have earned absent the
discharge, less earnings during such period, to be com-
puted in the manner prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest thereon to be com-
puted in accordance with Florida Steel Corp., 231 NLRB
651 (1977).12 I shall also recommend, in accordance with
Sterling Sugars, 261 NLRB 472 (1982), that Respondent
expunge from its records any reference to its unlawful
discharge of Kitch and so notify her in writing.
Upon the above findings of fact and conclusions of
law and the entire record '3 in this proceeding, including
my observation of the demeanor of the witnesses as they
testified and my consideration of the briefs filed by the
General Counsel and Respondent, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER 14
The Respondent, Brookfield Dairy, a Division of
Hawthorn Mellody, Inc., Sharpsville, Pennsylvania, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discontinuing its "open door" policy in order to
discourage its employees from engaging in union activi-
ties and to retaliate for their having engaged in union ac-
tivities.
(b) Informing its employees that other employees have
been laid off, discharged, or otherwise disciplined for en-
gaging in union activities.
(c) Discharging and laying off its employees because
of their membership in, assistance to, or activities on
" See, generally, Isis Plumbing & Heating Ca, 138 NLRB 716 (1962).
I The General Counsel moved to correct the official transcript in cer-
tain respects. There being no objection, the motion is granted and the
transcript is hereby amended accordingly.
"4 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.
behalf of Office and Professional Employees Internation-
al Union, Local No. 33, AFL-CIO, and in order to dis-
courage them from supporting the Union.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer Mary Kitch immediate and full reinstatement
to her former position or, if such position no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges, and
make her whole for any loss of earnings she may have
suffered by reason of Respondent's discrimination against
her in the manner set forth in '"The Remedy" section of
this Decision.
(b) Expunge from its files any reference to the dis-
charge or layoff of Mary Kitch and notify her in writing
that this has been done and that evidence of her unlawful
discharge will not be used as a basis for future personnel
actions against her.
(c) 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
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its facility in Sharpsville, Pennsylvania,
copies of the attached notice marked "Appendix."1'
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
Respondent 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 ensure that said notices are
not altered, defaced, or covered by any other material.
(e) 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.
" 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discontinue our "open door"
policy in order to discourage our employees from
engaging in union activities and to retaliate for their
having engaged in union activities.
701
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT inform our employees that other
employees have been laid off, discharged, or other-
wise disciplined for engaging in union activities.
WE WILL NOT discharge and lay off our employ-
ees because of their membership in, assistance to, or
activities on behalf of Office and Professional Em-
ployees International Union, Local No. 33, AFL-
CIO, and in order to discourage them from support-
ing the Union.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer Mary Kitch immediate and full
reinstatement to her former position or, if such posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to her seniority or other
rights and privileges, and make her whole for any
loss of earnings she may have suffered by reason of
our discrimination against her, with interest.
WE WILL expunge from our files any reference to
the discharge or layoff of Mary Kitch and notify
her in writing that this has been done and that evi-
dence of her unlawful discharge will not be used as
a basis for future personnel actions against her.
BROOKFIELD DAIRY, A DIVISION OF HAW-
THORN MELLODY, INC.
702