Cadbury Beverages

National Labor Relations Board - Board Decisions

Nov 7, 1997

324 N.L.R.B. 1213 (N.L.R.B. 1997)

1213
324 NLRB No. 185
CADBURY BEVERAGES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 Dates hereafter refer to 1995.
3 The judge found, and we and our dissenting colleague agree, that
the Respondent violated Sec. 8(a)(1) of the Act by suspending
Matzan in April 1995, because of Matzan’s protected concerted ac-
tivities on behalf of employee Lisa Dennis.
4 Employees are permitted to leave the plant during their
lunchbreak if they clock out.
5 Meador was the individual responsible for Matzan’s unlawful
suspension in April.
Cadbury Beverages, Inc. and Eugene A. Matzan.
Cases 3–CA–19380 and 3–CA–19597
November 7, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On February 11, 1997, Administrative Law Judge
Jesse Kleiman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order.
In adopting the judge’s findings that the Respond-
ent’s September 19952 suspension and discharge of
electrician Eugene Matzan violated Section 8(a)(3) and
(1) of the Act, we note that our dissenting colleague
has misconstrued or ignored certain facts concerning
the discussions and understanding between Matzan and
his supervisor preceding the Respondent’s unlawful ac-
tions, as well as certain aspects of the Respondent’s
established operating procedures.
First, the Respondent was well aware of Matzan’s
involvement in union affairs.3 Among his union activi-
ties, Matzan participated in the investigation and prep-
aration of the discharge arbitration case of fellow unit
employee, Bill Gowan. The arbitration hearing was
scheduled to take place at the Respondent’s office fa-
cility on the morning of September 11. Matzan agreed
to Gowan’s request that he attend the hearing. Matzan
was scheduled to work a 4 a.m. to 12:30 p.m. shift.
A few days prior to the arbitration, Matzan asked
his supervisor, Jim Fischette, for permission to come
in (and therefore, to leave) 2 hours early on September
11. When Fischette asked why, Matzan replied only
that he needed to tend to ‘‘personal business.’’
Fischette acquiesced. A day or so later however, on
September 8, Fischette told Matzan that he could not
accommodate his request because September 11 was
going to be the Respondent’s busiest workday. When
Matzan insisted that he needed the time, Fischette told
him that if he could not reschedule his business, to let
him know how much time he would need to accom-
plish his tasks. On September 9, Matzan told Fischette
that he needed a couple of hours at most and that he
might be able to complete his task during his
lunchbreak. Later that day, employee Tony Peluso told
Fischette that the reason Matzan needed time off was
to attend Gowan’s arbitration.
On September 11, Fischette again asked Matzan
why he needed time off. Matzan again told him that
it was for personal business. Fischette then asked di-
rectly if he planned to attend the Gowan arbitration.
Matzan replied that he could go anywhere he wanted
during his lunch hour while he was off the clock.4
Fischette nevertheless admonished him against attend-
ing the arbitration and warned that he could be sus-
pended for leaving his shift without permission. Fol-
lowing this exchange, Fischette sought advice from
Human Resource Director Meador, who told him to
suspend Matzan if he walked off the job.5
Although electricians were not required to seek per-
mission to alter their lunchtimes as long as they ar-
ranged for coverage, Matzan tried unsuccessfully there-
after to page Fischette to let him know he intended to
take an earlier than usual lunchbreak. In accordance
with established practice, Matzan had arranged with
another electrician to cover for him during his absence.
Meanwhile, Fischette tried to page Matzan to direct
him to an electrical problem within the plant. Matzan
credibly testified that he did not respond to the page
because the established practice was that the electrician
covering him would respond to the call. Fischette then
contacted the plant guard and directed her to tell
Matzan that his services were needed. As Matzan
passed by the guard’s desk after clocking out, the
guard told him that Fischette wanted to see him.
Matzan replied that he was going to lunch and would
see him on his return.
Within moments of his arrival at the conference
room where the arbitration was being held, Matzan
was asked to leave. On returning to the plant, Matzan
encountered Fischette, who promptly suspended him
and escorted him from the plant. Without further in-
vestigation, Matzan was terminated by letter of Sep-
tember 15.
While our dissenting colleague is correct that
Fischette told Matzan, prior to learning that Matzan
wanted to attend the arbitration, that he could not ad-
just his schedule precisely as requested, i.e., by moving
his shift up by 2 hours, Fischette did not at that time
foreclose the possibility of Matzan taking some time
off for his ‘‘personal business.’’ Indeed, on September
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1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 We find misplaced the dissent’s reliance on the fact that Matzan
did not ‘‘participate’’ in the arbitration and his characterization of
Matzan’s presence at the arbitration as ‘‘not necessary.’’ It was the
Respondent’s attorney who prevented Matzan from participating in
the arbitration by ordering him to leave, and our dissenting colleague
does not question the judge’s finding that Matzan’s attendance at the
hearing constituted protected concerted activity.
8, Fischette told Matzan that if he could not take care
of his personal business outside of scheduled work
hours, he should let him know how much time off he
would need. In response to this inquiry, on September
9, Matzan told him that he might be able to do what
he needed to do within his lunch hour. According to
Matzan’s credited testimony, Fischette told him that if
he ‘‘got it done in time, to come back and punch in
and continue to work.’’ Notably, this was Fischette’s
official response to Matzan’s request before learning
the nature of Matzan’s personal business was to attend
the Gowan arbitration.
By contrast, after Fischette learned that Matzan in-
tended to use the time off to attend the arbitration
hearing, he refused even to consider accommodating
Matzan’s request and expressly forbade him to attend
the hearing. Such an abrupt reversal of position clearly
evidences the Respondent’s animus toward Matzan’s
protected activities and its retaliatory intent.
Despite our colleague’s effort to paint Matzan’s con-
duct on September 11 as insubordinate,6 the credited
evidence establishes beyond dispute that he acted in
complete compliance with the Respondent’s long-es-
tablished practices. Because electricians were free to
schedule their lunchbreaks, Matzan did not have to
seek or obtain approval to take it when he did as long
as he had arranged for coverage by another electrician.
Matzan complied with this requirement. Further, to en-
sure that electricians would not lose their lunchbreaks,
the Respondent did not require electricians to respond
to pages when they were en route to lunch. Matzan
followed this accepted practice on September 11. Sim-
ply put, Matzan’s conduct on September 11 comported
with established company procedures, and he did not
act in derogation of these procedures by using his
lunchtime to engage in protected union activities. Ac-
cordingly, the judge’s findings that the Respondent
violated Section 8(a)(3) and (1) of the Act by suspend-
ing and discharging Matzan is fully supported by the
record in this proceeding.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Cadbury Beverages, Inc.,
Rochester, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
MEMBER HIGGINS, dissenting.
I conclude that the General Counsel has not estab-
lished that Matzan was fired because he went to an ar-
bitration hearing. Instead, he was fired for clear insub-
ordination. Accordingly, I dissent.
On September 6 or 7, Matzan asked his supervisor
for a change of schedule for September 11 so that
Matzan could take care of ‘‘personal business.’’ On
September 8, his supervisor declined because Septem-
ber 11 would be the Respondent’s busiest workday.
Significantly, the supervisor acted without any knowl-
edge that Matzan’s ‘‘personal business’’ consisted of
his going to an arbitration hearing.
On the following day, the supervisor again told
Matzan that the schedule for September 11 could not
be changed. Again, the supervisor did not know the
nature of Matzan’s ‘‘personal business.’’ Although
Matzan suggested that he might need only the lunch
hour, he never confined his request to the lunch hour.
On September 11, Matzan repeated his request. The
supervisor again denied the request. Although the su-
pervisor then knew that Matzan wanted to attend the
arbitration, the supervisor’s position was the same as
it had been before such knowledge. The supervisor
warned that Matzan could be suspended if he left his
shift without permission.
Later that day, Matzan sought to change his lunch
schedule, so as to be able to attend the arbitration. Al-
though an employee need not get advance permission
to change his lunch schedule, there is nothing to sug-
gest that the Respondent cannot give advance refusal
for such a change, where work requirements warrant
the refusal. As noted above, this is precisely what the
Respondent did in this case. Further, even as Matzan
was leaving the plant, his supervisor tried to page him
to tell him that he was needed to deal with an elec-
trical problem. Matzan declined to answer his page. In
addition, the Respondent’s guard gave this message to
Matzan before he (Matzan) clocked out for lunch.
Matzan went to the arbitration despite all of these
directives and warnings. There is no suggestion nor is
it contended that his presence at the arbitration was
necessary. Indeed, it does not even appear that he par-
ticipated in the arbitration.
In these circumstances, I conclude that the General
Counsel has not shown that Matzan was fired because
he went to the arbitration. The orders that he stay at
work were issued before the Respondent knew that
Matzan wanted to go to the arbitration. The orders
were repeated to Matzan before he walked out the
door. Matzan ignored all of this, and proceeded to the
arbitration proceeding, where his attendance was not
necessary.
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1215CADBURY BEVERAGES
1 Johnson is a full-time representative of the International Union.
In sum, Matzan was properly discharged for insub-
ordination, rather than being improperly discharged in
retaliation for his desire to go to the arbitration.
Ronald Scott, Esq., for the General Counsel.
Richard N. Chapman, Esq. and Edward A. Trevvett, Esq., for
the Respondent.
Eugene A. Matzan, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On the basis
of a charge and amended charge dated May 22 and June 26,
1995, respectively, in Case 3–CA–19380, and a charge and
amended charge dated September 15 and 21, 1995, respec-
tively, in Case 3–CA–19597, by Eugene A. Matzan, an indi-
vidual (Matzan), a consolidated complaint and notice of hear-
ing was issued on December 6, 1995, against Cadbury Bev-
erages, Inc. (the Respondent) alleging that the Respondent
violated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act). By answer dated December 15, 1995, the
Respondent denied the material allegations in the consoli-
dated complaint.
Also included in the consolidated complaint was Case 3–
CB–6819 based on a charge filed by Matzan on May 22,
1995, against the Retail, Wholesale and Department Store
Union, Local 220, AFL–CIO (the Union or Local 220). By
answer dated January 11, 1996, the Union denied the mate-
rial allegations in the consolidated complaint. On June 25,
1996, the Acting Regional Director for Region 3 issued an
order severing cases since Case 3–CB–6819 was settled with
the Union.
A hearing was held before me on July 1 and 2 , 1996, in
Rochester, New York. Subsequent to the closing of the hear-
ing, the General Counsel and the Respondent filed briefs.
On the entire record and the briefs of the parties, and on
my observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, at all times material here, is and has been
a corporation with an office and place of business in
Williamson, New York (Cadbury’s Williamson facility) en-
gaged in the business of processing, canning, and /or bottling
food and beverages. Annually, the Respondent sells and
ships from its Williamson facility goods valued in excess of
$50,000 directly to points outside the State of New York. I
therefore find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is undisputed that the Retail, Wholesale and Department
Store Union, Local 220, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaint alleges that the Respondent
suspended Eugene A. Matzan on April 10, 1995, because he
engaged in protected, concerted activities and suspended
Matzan and discharged him on September 11 and 15, 1995,
respectively, because he engaged in union activities and pro-
tected, concerted activities and to discourage employees from
engaging in these activities, in violation of Section 8(a)(1)
and (3) of the Act.
A. The Evidence
Matzan became employed by the Respondent as an elec-
trician on January 5, 1994, a bargaining unit position. He did
not become involved in the affairs of the Union until January
1995 when he questioned the infrequency of union meetings
and the Union’s finances. On January 19, 1995, Matzan
asked Larry Graffius, the Union’s then vice president, for
copies of the Union’s bylaws, a financial statement of the
past year, and a copy of the current collective-bargaining
agreement. On January 20, 1995, he also asked George
Blackmon the union president, for the bylaws. Failing to re-
ceive any of this information he then wrote to International
Representative Myron Johnson on January 27, 1995, request-
ing the same information. In response to his request, Matzan
was given a copy of the Union’s LM-3, a financial document
filed by labor organizations with the United States Depart-
ment of Labor. Not satisfied with this Matzan asked Union
Treasurer Harold De Santo for permission to inspect the
Union’s books which was refused. On February 11, 1995,
Matzan again wrote to Johnson, asking that he and Steward
Chris Smart be permitted to review certain of the Union’s fi-
nancial records for the past year, the underlying records on
which certain entries in the LM-3 were based. When the
Union did not respond Matzan, to ‘‘put pressure on them to
open the books’’ reproduced the LM-3 and distributed be-
tween 50 and 60 copies to unit employees. At a union meet-
ing in April 1995, the Union did ‘‘open the books.’’
On February 17, 1995, at about 9:30 a.m. Matzan was ad-
vised by his supervisor, James Fischette, that he was to at-
tend a meeting of the Union’s executive board. Blackmon,
Graffius, and several other members of the board were
present in the conference room as was International Rep-
resentative Johnson.1 Matzan testified that he was told by
Graffius or Johnson that the meeting had been called to ‘‘put
pressure’’ on him. Johnson asked Matzan to stop handing out
to employees or posting copies of the LM-3 on bulletin
boards because ‘‘it was bad for the Union’’ and ‘‘the com-
pany thought it was a joke.’’ Matzan denied posting the LM-
3 on the bulletin boards.
On February 28, 1995, Matzan circulated a petition, which
114 unit employees signed. The petition called for a special
meeting to consider proposed bylaw changes and to review
an audit of the Union’s financial records by Johnson. Within
a few days, Fischette, with reference to the petition, told
Matzan that it was against company rules to conduct union
business on company time. However, Matzan assured
Fischette that his activities had been conducted during lunch
and break periods. In the course of soliciting signatures on
the petition, Matzan informed the employees that he intended
to run for election for the office of union president.
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1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 It would appear that while the transcript reads ‘‘he’’ Matzan
probably said ‘‘we’’ meaning the Respondent, since Graffius as a
union official had no authority to fire Dennis.
3 Both Matzan and Dennis testified that Matzan had told her the
conversation was between Graffius and DeGroote. Meador, Smart,
and Bailey believed that Dennis had related that Matzan placed the
conversation as between Graffius and Meador. While Blackmon and
Graffius were present at the March 31, 1995 meeting throughout,
neither testified at the hearing.
4 It is interesting to note that although Dennis assured him he was
not implicated, Blackmon mentioned himself on March 31, 1995, as
one of those whom Matzan was reported to have spread falsehoods
about conspiring to discharge Dennis.
The Lisa Dennis Incident
Lisa Dennis, employed as a packer operator by the Re-
spondent, took maternity leave from November 1994 to
about mid-March 1995. Shortly after her return to work she
had a conversation with Matzan in which, according to
Matzan, Dennis told him that she was not getting her bonus
usually distributed to employees at that time of the year.
Matzan asked why that was so and Dennis replied that it was
because she had been on maternity leave and that she in-
tended to speak to Graffius about it. Matzan then told her,
‘‘[D]on’t go to Larry. He was speaking of having you fired.
He said he should have fired you when he had the chance.’’2
While Matzan testified that Dennis did not appear to be upset
at the time, Dennis testified that ‘‘If I stated anything, it was
just out of shock and I was just totally surprised by the com-
ment that was made.’’
Matzan’s warning to Dennis stemmed from an alleged in-
cident which had occurred about 2 months earlier, while
Dennis was still on leave. Matzan testified that while waiting
to pick up his pay check in the human resources office one
Thursday, and standing ‘‘shoulder to shoulder’’ with
Graffius, he heard Graffius tell Jane DeGroote, the Respond-
ent’s human resources coordinator, that
his exact words were, ‘‘We should have fired the bitch
when we had the chance.’’ And he mentioned Lisa
Dennis by name.
Matzan recalled that another individual was standing in line
behind him but could not remember his name. Additionally,
Matzan stated that Graffius’ remark did not elicit any re-
sponse from DeGroote or others present, nor did Matzan re-
port the incident to Michael Meador, the Respondent’s
human resources manager, or to Johnson at the International
Union since he believed that no action would be taken
against Graffius.
The March 31, 1995 Meeting
On March 31, 1995, a meeting was held regarding griev-
ance matters unrelated to Matzan. Present were Meador,
Union President Blackmon, Union Vice President Graffius,
Union Steward Christopher Smart, and Joe Bailey. At the
end of the meeting Blackmon told Meador that Matzan had
been spreading a false rumor, that Blackmon, Graffius, and
Meador were planning to have employee Lisa Dennis fired
because she had taken maternity leave. Meador decided to
investigate the matter immediately by bringing in those in-
volved.
Meador first called in Dennis and asked her whether
Matzan had spoken to her about the Union and the Company
conspiring to fire her. Dennis related that she then told those
present what her conversation with Matzan had been, relat-
ing:
[S]tarted out as being a general conversation, I believe,
and he was asking how I was doing and somehow in
one way or another . . . he informed me that he was
in the office while . . . I was off on maternity leave,
he was in the personnel office, overheard Larry
Graffius speaking to Jane, I’m not sure of her last
name, and it was stated at that time in the office that
because I was out so long, that I ought to just be fired
anyway. . . . Larry Graffius was saying that to Jane.3
When asked if she could recall exactly how this arose in
their conversation ‘‘the context of it, that Mr. Matzan
brought that conversation up to you,’’ she responded, ‘‘I’m
not quite—I don’t know—I don’t remember.’’ Before excus-
ing Dennis from the meeting, Meador assured her that the
Respondent had no intention of firing her and if it had want-
ed to do so it could have previously accomplished this when
she had had an absenteeism problem. Dennis admitted that
when Matzan had first told her about the conversation she
was initially really upset. After that brief conversation Den-
nis returned to work.
Dennis also testified that prior to the March 31, 1995
meeting and about 1 or 2 days after her conversation with
Matzan, Blackmon approached her and asked her if his name
had been mentioned by Matzan; Dennis responded that only
Graffius’ name had been raised and not Blackmon’s.
Blackmon assured Dennis at the time that the Union was not
trying to get her fired.4
Meador next called in Matzan and told him that Meador
had been advised that Matzan was spreading false and mali-
cious rumors and lies about Meador, Blackmon, and
Graffius, and telling employee Lisa Dennis that he had over-
heard a conversation between Graffius in which they were
conspiring to discharge her because she had taken maternity
leave. Matzan denied saying ‘‘any such thing’’ but stated
that he had told Dennis about the conversation he had over-
heard and that the conversation occurred between Graffius
and DeGroote with no mention of Meador’s and Blackmon’s
names.
DeGroote was also called into this meeting. She denied
having had a conversation with Graffius about Dennis or had
contrived or schemed to have Dennis fired because she had
taken maternity leave. When DeGroote testified as a witness
at this hearing she again denied even having talked to
Graffius about Dennis and on being asked if she had heard
Graffius say, ‘‘[W]e should have fired the bitch when we
had the chance,’’ DeGroote answered, ‘‘No.’’ DeGroote tes-
tified that she was ‘‘shocked’’ and ‘‘hurt’’ that she had been
accused of this. However, Matzan testified that he recalled
DeGroote’s answer, verbatim, and that she had said that she
did not recall the conversation. Meador stated that when
DeGroote was accused of conversing with Graffius and talk-
ing about having Lisa Dennis fired for being pregnant, she
just said, ‘‘I mean she just, it was just a kind of look of
panic in her face, and she was actually quite hurt and taken
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1217CADBURY BEVERAGES
5 Meador testified that he believed DeGroote over Matzan because
DeGroote had been a valued employee with the Respondent for 8
years, was knowledgeable regarding employment and antidiscrimina-
tion laws, and not long before the Dennis incident had been involved
in the defense of a prior discrimination charge filed by an employee
against the Respondent who alleged unfavorable treatment because
of her pregnancy and therefore DeGroote would be extra sensitive
to the issue. In light of this it is quite understandable that
DeGroote’s reaction to the alleged accusation that she had contrived
with Graffius to have Dennis fired because of her pregnancy could
be one of hurt and panic.
aback, and you know, said something to the effect of, of
course I didn’t do it.’’
However, on cross-examination, Meador admitted that
DeGroote had not been asked directly if Graffius had made
such a statement about Dennis but that in a later conversation
with her, DeGroote unequivocally denied that Graffius had
done so. Meador stated that at another meeting DeGroote
further told him, ‘‘that she just didn’t remember anything at
all.’’ Nonetheless, according to Meador, DeGroote continued
to maintain that she herself had never suggested that Lisa
Dennis be fired.5
Bailey, a forklift checker and unit employee, has been em-
ployed by the Respondent for over 6 years. At the time of
the hearing he was treasurer of the Union. Bailey testified
that at the March 31, 1995 meeting, he attended as a stew-
ard, and Blackmon complained about Matzan spreading ru-
mors about he and Graffius and Graffius said that Matzan
had told Lisa Dennis that he and Meador were plotting to
fire her. According to Bailey when Dennis was brought into
the meeting she said that Matzan had told her that Graffius
and somebody else, maybe Meador, had been discussing that
she should be fired because of her maternity leave. Bailey
related that Matzan had told them that he overheard Graffius
telling DeGroote that Dennis should be fired for having taken
maternity leave, and that when DeGroote was called into that
meeting her exact words were, ‘‘I do not recall the conversa-
tion.’’
Smart, the other steward in attendance at the meeting and
currently the Union’s vice president and a group leader in the
Respondent’s sauce department, testified that it was mostly
Graffius talking and he and Blackmon said that Matzan was
spreading vicious rumors by telling Dennis that they said
Meador wanted her fired. When Dennis was called into the
meeting she explained that Matzan said that ‘‘Graffius and
she thinks [sic] Mike [Meador], but at that time she wasn’t
sure . . . who was the other party, were talking about reliev-
ing her of her duties.’’ Smart could not recall to whom he
attributed the remark about ‘‘getting rid of Lisa,’’ to Graffius
or DeGroote, or both. According to Smart, DeGroote denied
having such a conversation with Graffius.
Matzan testified that at the conclusion of this meeting,
Meador told Matzan that he was ‘‘convinced’’ that Matzan
was a ‘‘liar’’ but no disciplinary action was taken against
Matzan at the time. Contrary to Matzan’s testimony as to
this, Meador related that he did not say then whether he be-
lieved Matzan or not. According to Meador after DeGroote
left the meeting he told the four union representatives and
Matzan that he needed to review the matter and would get
back to them. Bailey also testified that Meador also said that
he had ‘‘some severe reservations ‘‘about Matzan’s honesty.
Bailey also testified that during the March 31, 1995 meet-
ing, prior to the Lisa Dennis discussions Meador had men-
tioned the activity of Chris Smart and Bailey himself in try-
ing to change the Union’s leadership, expressing the view
that Bailey and Smart were going about this in the wrong
way thereby undermining the union leadership, and would ul-
timately cost them the support of the rank-and-file member-
ship. Bailey stated that Matzan was involved in the challenge
to the union incumbents, that he supported Matzan in his en-
deavors, and that Graffius was one of the incumbents being
challenged.
Smart testified that subsequently, at Matzan’s grievance
hearing over the suspension he previously received because
of the Dennis incident, Meador spoke to Smart while they
were alone and told him that he was disappointed in Smart
because Smart ‘‘was kind of walking both sides of the fence
with Mr. Matzan and the Union, the present Union that was
there.’’ Meador told Smart that elected union officers were
entitled to support, and that there was a need for labor-man-
agement matters to be dealt with in an orderly way. Smart
agreed with counsel for the Respondent that it was a fair in-
ference that Meador was looking for ‘‘a little order in his
own life and in his relationship with the Union.’’
Meador testified that he had ‘‘very strong suspicioions’’
that the alleged conversation between Graffius and DeGroote
did not occur, discrediting Matzan and believing Graffius and
DeGroote, especially DeGroote. Meador denied that he and
Graffius ever discussed terminating Dennis and that the idea
that the Respondent would fire Dennis because of her preg-
nancy was ‘‘preposterous,’’ ‘‘crazy’’ and ‘‘absolutely bi-
zarre.’’
The steps in the Respondent’s progressive discipline policy
is a first warning, a second warning, suspension, and dis-
charge. Where flagrant or serious conduct is involved, the
warnings may be dispensed with, and an employee may be
suspended or discharged. Meador explained the reasons for
dispensing with any warnings and proceeding directly to a
suspension in Matzan’s case:
The potential damage to, quite frankly, Jane DeGroote,
myself, the HR Department, the possibility of opening
up litigation from an employee who might have be-
lieved, I mean there were all these possibilities that—
because he was accusing us of doing, you know, in our
work, in my line of work, that is the most serious of-
fense you can be accused of is discriminating against
a pregnant woman. I mean it doesn’t get any worse
than that.
On April 8, 1995, at a membership meeting of the Union,
with approximately 40–50 members a committee charged
with rewriting the Local’s bylaws was elected, with Matzan
as chairperson. A motion from the floor for a vote of no con-
fidence and removal of the Union’s current officers was
ruled out of order by International Representative Myron
Johnson after Matzan argued that such a motion was proper.
On April 10, 1995, Matzan was called to meet with
Meador regarding the Dennis matter before any discipline
was imposed. Matzan normally worked until ‘‘around four’’
and was paged about 3 p.m. to attend this meeting. Matzan’s
immediate superior, Jim Fischette, Meador, union recording
secretary Carl Davenport, and Fischette’s supervisor, Terry
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1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The record reveals that the Respondent’s employees are permitted
to leave the facility on their lunch period, provided they punch in
and out.
Redden, were in the office when Matzan arrived. Matzan ob-
jected to the presence of Davenport as not being a steward
and requested Bailey to represent him. Before Bailey could
arrive, and while Matzan and Davenport were waiting out-
side Meador’s office Matzan announced through the door
that he was leaving. Meador testified that he told Matzan that
they were there to investigate the Lisa Dennis incident and
if Matzan left, a disciplinary decision would be made without
his input. Nevertheless, Matzan said ‘‘he didn’t care,’’ and
left testifying that he did so because he had a previously
scheduled appointment with his tax accountant and Meador
could ‘‘tell it all to Joe Bailey.’’ Meador stated that before
Matzan left he advised Matzan that since Matzan was being
uncooperative, he was being suspended for the next 3 days.
Matzan then left the plant before his electrician replacement
arrived.
On April 10, 1995, Matzan never informed anyone (prior
to yelling though the door of Meador’s office) that he had
an appointment and had to leave before his replacement ar-
rived. Earlier in March 1995, Matzan had agreed to alter his
work schedule to 4 p.m. or such earlier time as the next shift
electrician, Tom Zynda, came to work to relieve him. On a
prior occasion when Matzan had to leave earlier then 4 p.m.
he had arranged with a fellow electrician Tony Peluso to
cover for him. However, on April 10, Matzan left before
Zynda arrived leaving the plant without any electrician cov-
erage.
On April 21, 1995, Matzan was given a second 3-day sus-
pension without pay for walking out of the April 10, 1995
disciplinary meeting and leaving the Respondent’s operations
with no electrical coverage at the peak of its daily produc-
tion. The memo advising Matzan of his suspension states
that: ‘‘Further reasons for disciplinary action upon your re-
turn may lead to discharge of your employment.’’ This sus-
pension is not alleged as a violation in the consolidated com-
plaint, was given for an unauthorized absence from the plant,
was on Matzan’s record at the time of his discharge, and the
Respondent alleges to have relied on it in part, in discharging
Matzan.
Matzan’s Suspension and Discharge
Bill Gowan, a unit employee, had been discharged and his
discharge arbitration was scheduled for September 11, 1995,
at the Respondent’s facility. Initially, Bailey had handled
Gowan’s discharge grievance, but after resigning as steward
in May 1995 he gave the file to Matzan, to investigate de-
spite the fact that Matzan was not a steward. Matzan con-
ducted an unofficial investigation of Gowan’s grievance, and
turned his findings over to Jules Smith, an attorney for the
Union handling Gowan’s arbitration. Gowan had asked
Matzan to attend his hearing although Matzan was neither a
union official, a steward, nor a witness for either party, and
Matzan stated that he gave his word that he would do so or
would try to. Matzan was also informed by Smith that his
presence at the Gowan hearing would probably be challenged
by the Respondent’s counsel.
On September 6 or 7, 1995, Matzan was working a 4 a.m.
to 12:30 p.m. shift and asked his supervisor, Jim Fischette,
if he could start (and therefore finish) 2 hours early on Mon-
day the September 11. When Fischette asked Matzan the rea-
son for this request, Matzan responded that it was personal.
Matzan testified that Fischette agreed at that time to his re-
quest. According to Fischette, he told Matzan that it probably
would not be a problem, and that he would see what he
could do. Fischette also testified that at a production meeting
on September 7, 1995, he was reminded that Monday, Sep-
tember 11, 1995, was the beginning of the ‘‘fall pack’’ sea-
son, the beginning of the apple harvest, with the first day of
the fall pack being the busiest day of the year for all employ-
ees, including electricians. Cooking and packaging machinery
that has remained dorment during the slack season is reac-
tivated, requiring numerous adjustments and repairs.
On Friday, September 8, 1995, Fischette advised Matzan
that he could not work the earlier shift on Monday because
September 11, 1995, was the beginning of the fall pack sea-
son, the busiest day of the year for the Respondent’s oper-
ations. Matzan insisted that he needed the time off for per-
sonal business, and Fischette asked him if he could resched-
ule it, and if not, tell Fischette how much time he would
need to accomplish it. Matzan replied that he did not know
and would get back to Fischette.
On Saturday, September 9, 1995, in discussing Matzan’s
request to change his schedule on September 11, 1995,
Fischette advised Matzan he could not allow him to do so
because the plant would be busy that day. Matzan told
Fischette that he needed to take off a couple of hours at most
‘‘possibly take care of the business I had to attend on my
lunch hour.’’ Again Matzan would only tell Fischette that the
request was for personal business. Matzan testified that
Fischette told him that, if he ‘‘got it done in time, to come
back and punch in and continue to work.’’ However,
Fischette testified that he told Matzan that he did not know
if Matzan could have the time off, and they would have to
see on Monday, September 11, 1995. Fischette related that
later that day, after Matzan had finished his shift and gone
home, Tony Peluso, another electrician, told Fischette that
Matzan’s request was based on his desire to attend the
Gowan arbitration.
On Monday, September 11, 1995, at about 8:30 a.m., after
Fischette asked Matzan what he found out about his need for
time off, and Matzan would only answer that it was for per-
sonal business, Fischette asked Matzan if he was going to at-
tend the Gowan arbitration. Matzan testified that he told
Fischette
that I felt that if I was on my lunch hour I could go
wherever I pleased on my lunch hour, that was my time
if I was off the clock.6
While Matzan could not recall Fischette’s response with cer-
tainty, according to his recollection, Fischette forbid him to
conduct any union activity or to attend the Gowan arbitra-
tion.
Fischette testified that after he asked Matzan if he was
going to attend the arbitration, Matzan ‘‘got upset’’ and said,
‘‘[A]re you interfering with a Union activity?’’ Fischette told
him ‘‘no’’ and asked Matzan what role he had in the Gowan
arbitration. Matzan acknowledged that he was not a union of-
ficial or steward, was not a witness at the arbitration, and
only wanted to attend because he had promised Gowan that
he would if he could. Fischette told Matzan he did not have
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1219CADBURY BEVERAGES
7 While Marty Cressman, a maintenance supervisor, was present
during this conversation, he was not called as a witness to testify.
8 While Matzan testified that Fischette had told the electricians to
disregard a page if they were at lunch, Fischette denied that he had
told the electricians this.
9 Doyle, who had been employed by the contract security agency
for 12 years, became an employee of the Respondent about 2 weeks
before the hearing.
10 Doyle testified that Matzan made no mention to her of his going
to lunch.
11 Gold Standard Enterprises, 234 NLRB 618 (1978); V & W
Castings, 231 NLRB 912 (1977); and Northridge Knitting Mills, 283
NLRB 230 (1976).
12 The Respondent in its brief asserts, ‘‘Because the General Coun-
sel failed to call Graffius as a witness, it must be presumed that he
too would have denied that such a conversation ever took place,’’
(between he and DeGroote). Gatliff Coal Co., 301 NLRB 793 fn. 2
(1991), enfd. 953 F.2d 247 (6th Cir. 1992). (Failure to call a witness
presumably friendly to the party’s cause warrants an inference that
the testimony would not have supported that party’s case); and Inter-
national Automated Machines, 285 NLRB 1122 (1987). However,
the record clearly shows that Graffius cannot be presumed in any-
way to be friendly to Matzan’s case, therefore the General Counsel’s
case. In that regard it is reasonable for the trier of the facts to draw
an inference that Graffius’ testimony would be unfavorable to the
Respondent. 7-Eleven Food Store, 257 NLRB 108 (1981); Publish-
ers Printing Co., 233 NLRB 1070 (1977); Martin Luther King Sr.
Nursing Center, 231 NLRB 15 (1977); and Broadmoor Lumber Co.,
227 NLRB 1123 (1977).
permission to go to the arbitration and that he was expected
to be on the floor working. Fischette related that Matzan said
he was ‘‘leaving anyway’’ and Fischette replied, ‘‘Gene, re-
member what happened to you last spring,’’ referring to
Matzan’s April 21, 1995 3-day suspension for leaving the
plant during his shift without permission, Matzan then said,
‘‘You do what you gotta do and I’ll do what I gotta do.’’
Matzan and Fischette then parted.7
Matzan’s testimony as to what occurred thereafter differs
somewhat from that given by the Respondent’s witnesses.
Matzan testified that he decided to seek out Fischette to
make it clear that he intended to use an early lunch hour to
attend Gowan’s arbitration hearing on his own time. Matzan
had arranged with Peluso, another electrician, to cover for
him during his absence since he was taking his lunch hour
at a different time. Fischette’s approval was not necessary for
electricians to change lunch hours as long as they arranged
with another electrician to cover the plant for them. Mean-
while, Fischette had reported to Meador what had occurred
with Matzan and it was decided to suspend Matzan if he
walked off the job.
Matzan testified that he tried unsuccessfully to page
Fischette several times on his two-way radio, carried by elec-
tricians looking for his supervisor. Fischette testified that at
about 9:25 a.m., needing Matzan to fix a malfunctioning con-
veyor on the single-serve applesauce line A, he paged
Matzan using both the central paging system and the two-
way radio.8 Fischette also heard a juice production line man-
ager paging Matzan. When Matzan failed to respond,
Fischette contacted Pinkerton security guard Laurie Doyle, at
the guard station near the timeclock.9 The time was about
9:55 a.m. and Fischette asked Doyle if she had seen Matzan.
According to Fischette, Doyle told him that she had seen
Matzan going into the men’s locker room, whereupon
Fischette asked Doyle to tell Matzan that he was needed on
single-serve line A.
It is undisputed that Doyle delivered Fischette’s message
to Matzan as he was passing the guard station on his way
to the conference room and the hearing but Matzan was un-
sure as to whether Doyle made reference to the single-serve
line A when he was leaving, or when he returned. Matzan
testified that he told Doyle that he was going to lunch, that
Fischette was aware of it, and that he would see him when
he got back.10 Doyle then reported to Fischette that Matzan,
wearing a business suit, had punched out. Fischette contacted
Meador and related what had happened regarding Matzan,
and Meador instructed Fischette to suspend Matzan on his
return.
Matzan proceeded directly to the conference room where
the arbitration was being held, knowing that in all probability
he would be asked to leave. Matzan explained that he did
so anyway because he had given Gowan his word that he
would be there. At the arbitration hearing, Matzan was asked
to leave by the Respondent’s attorney. While Meador was
also present he did not order Matzan back to work imme-
diately.
Doyle contacted Fischette at about 10:10 a.m. to notify
him that Matzan had returned, attempted to punch in, and
then gone back into the men’s locker room. Fischette went
down to the security guard station near the locker room en-
trance and when Matzan emerged in his work clothes,
Fischette suspended him, escorted him to lock up his tools,
and then walked him out of the plant. Although Matzan
asked Fischette for a reason for the suspension, Fischette did
not give him any nor did he tell Matzan the length of the
suspension.
After Matzan was suspended on September 11, 1995,
Fischette drafted a memo to Meador relating the cir-
cumstances leading to Matzan’s suspension. Fischette met
with Meador and recommended that Matzan be terminated
for gross insubordination, i.e., deliberately leaving the plant
floor after Fischette told him he could not leave and that he
would be subject to discipline if he did. By letter dated Sep-
tember 15, 1995, Matzan was informed that he had been ter-
minated.
Credibility
Based on a careful analysis of the testimony of the wit-
nesses and the evidence presented, my observation of the de-
meanor of the witnesses, the weight of the respective evi-
dence, established or admitted facts, inherent probabilities
and reasonable inferences which may be drawn from the
record as a whole,11 I tend to credit the account of what oc-
curred regarding the Dennis incident as given by the General
Counsel’s witnesses, although I did note some inconsist-
encies in their testimony. Their testimony was given in a
forthright and believable manner and in most respects was
consistent with each others. While this is not to say that I
disbelieved all of the testimony of the Respondent’s wit-
nesses, I did note inconsistencies of an important nature be-
tween that of Meador and DeGroote as set forth here. More-
over of some significance is the failure of the Respondent to
call Graffius as its witness. From the record evidence, it must
be presumed that his testimony would not support the con-
tentions of the Respondent.12 Moreover, the Respondent
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1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 7-Eleven Food Store, supra, and cases cited therein.
failed to call its supervisor, Cressman, as its witness to sup-
port the testimony of Fischette as to his conversation with
Matzan mentioning his lunch hour on September 11, 1995.13
Additionally, based on the demeanor of the witnesses and
other facts in the record, I found the General Counsel’s wit-
nesses more credible.
Analysis and Conclusions
1. The consolidated complaint alleges that Matzan was
suspended on April 10, 1995, because he had engaged in
protected activity. The Supreme Court in NLRB v. Burnup &
Sims, Inc., 379 U.S. 21, 57 (1964), held that:
In sum, Section 8(a)(1) is violated if it is shown that
the discharged employee was at the time engaged in a
protected activity, that the employer knew it was such,
that the basis of the discharge was an alleged act of
misconduct in the course of that activity, and that the
employee was not, in fact, guilty of that misconduct.
This is true even though the employer acts in good faith. Id.
at 23–24. The Board, in applying the standard set forth in
Burnup & Sims, also inquires whether the employer would
have taken the same action in the absence of the protected
activity. KNTV, Inc., 319 NLRB 447 (1995), citing NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983). In
City Disposal Systems, 465 U.S. 822 (1984), the Supreme
Court expressed its approval of the Board doctrine that acts
or statements by individual employees constituted ‘‘concerted
activity’’ within the meaning of the Act when an objective
of the act or statement was to induce or initiate actions bene-
ficial to other employees, as well as he or she.
In Meyers Industries, 281 NLRB 882, 887 (1986) (Meyers
II), affd. sub nom. Prill v. NLRB, 835 F.2d 1981 (D.C. Cir.
1987), the Board enunciated the principles it would apply to
statements by an individual employee alleged to constitute
‘‘concerted activities’’ protected by Section 8(a)(1) of the
Act, by quoting with approval the following language in
Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d
Cir. 1964):
It is not questioned that a conversation may constitute
a concerted activity although it involves only a speaker
and a listener, but to qualify as such, it must appear at
the very least it was engaged in with the object of initi-
ating or inducing or preparing for group action or that
it had some relation to group action in the interest of
the employees.
The Respondent in its brief states that Matzan’s speech
was not concerted activity because there was no proof that
group action of any kind was intended, contemplated, or
even referred to, citing Meyers Industries (Meyers II), supra,
and Daly Park Nursing Home, 287 NLRB 710 (1987). In
Daly Park Nursing the Board noted:
Activity which consists of mere talk must, in order to
be protected, be talk looking toward action. If its only
purpose is to advise an individual as to what he could
or should do without involving fellow workers or union
representatives to protect or improve his status or work-
ing position, it is an individual, not a concerted activity,
and, if it looks forward to no action at all, it is more
likely then to be mere griping, id. at 710 (quoting
Mushroom Transportation Co. v. NLRB, 330 F.2d 683,
685 (3d Cir. 1964).
However, applicable to the facts at issue in this case is the
line of cases establishing the rule that employee discipline or
discharge for discussing with other employees subjects af-
fecting employment interferes with, restrains, and coerces
each discussant in the exercise of his or her right to engage
in concerted activity for material aid or benefit. Express Mes-
senger Systems, 301 NLRB 651 (1991); U.S. Furniture in-
dustries, 243 NLRB 159 (1979); El Gran Combo, 284 NLRB
1115 (1987), affd. 853 F.2d 996 (1st Cir 1988); Jhirmack
Enterprises, 283 NLRB 609 (1987); Scientific Atlanta, 273
NLRB 622 (1986); O’Hare Hilton, 248 NLRB 255 (1980);
Pioneer Natural Gas Co., 253 NLRB 17 (1980); and Gen-
eral Motors Corp., 239 NLRB 34 (1978).
For example, in Jhirmack Enterprises, supra, the dis-
charged employee, Allison, had warned a coworker, Ramsey,
that other employees had complained of his performance at
an ‘‘attitude meeting.’’ The Board affirmed the administra-
tive law judge’s finding at 283 NLRB 615 that the employ-
ee’s purpose was:
to confirm to Ramsey that adverse comments had been
made to management about his work, and to encourage
him to take corrective action. Viewed from this per-
spective, it is clear that Allison’s discussion with
Ramsey was a fundamental form of concerted activity
in aid of a fellow employee.
And, in Express Messenger Systems, supra, employee Haas
told another employee, Finnigan, to delay taking her leave of
absence in order to secure better benefits as suggested by
management. Haas said that the employer was not consider-
ing her best interests in recommending the leave. Both the
Board and the administrative law judge found Haas’ advice
to Finnigan to be protected concerted activity.
In the instant case, Matzan sought to put fellow employee
Dennis on notice of a matter affecting her employment—that
Graffius was not the best person to represent her about her
bonus issue with management in view of what he had alleg-
edly said about her in the presence of management. I there-
fore find that Matzan’s activity was clearly protected and
concerted as well.
Moreover, the record reveals that the Respondent knew of
Matzan’s protected concerted activity on March 31, 1995,
when it was brought to Meador’s attention by union officials
Blackmon and Graffius and then Matzan and Dennis. It is
also clear from the evidence that the basis for Matzan’s sus-
pension by the Respondent was an alleged act of misconduct
in the course of his protected, concerted activity.
The Respondent in its brief asserts in support of its sus-
pension of Matzan that there is no credible evidence in the
record that Graffius and DeGroote ever discussed terminating
Dennis and that Matzan’s statement to Lisa Dennis was not
protected because it was defamatory in nature and made with
knowledge of its falsity. The Respondent alleges that the de-
famatory content of Matzan’s statement to Dennis is ‘‘plain
on it [sic] face.’’ Matzan was accusing the human resources
department and a union representative of conspiring to com-
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1221CADBURY BEVERAGES
14 See Bailey’s testimony regarding the March 31, 1995 meeting
and Meador’s testimony as to his conversation with DeGroote, there-
after.
mit an act of unlawful discrimination. The Respondent con-
sidered this to be a most serious offense. The Respondent
continues, given the gravity of the accusation, Matzan had a
duty to verify its accuracy before repeating it. Because he
did not, he’s false statement was not protected under the Act,
Delta Health Center, 310 NLRB 26 (1993); Martin Marietta
Corp., 293 NLRB 179 (1989); and Sahara Datsun, 278
NLRB 1044 (1986), enfd. 811 F.2d 1317 (9th Cir. 1987).
However, I do not agree. First, the evidence indicates that
the alleged misconduct for which Matzan was suspended—
accusing Meador of conspiring with Graffius to discharge
Dennis—simply did not occur. What the evidence in the
record does show is that Matzan told Dennis that DeGroote
was present when he overheard Graffius make the statement
that she should be fired because she had taken maternity
leave. Matzan never claimed that DeGroote had said or did
anything inappropriate or implicated Meador or DeGroote in
a conspiracy with the Union to do so. As the General Coun-
sel points out, that the conduct Matzan did engage in—re-
porting an indiscretion on the part of a union representative
to an employee who was the subject of that indiscretion—
if true could not have been lawfully punished by the Re-
spondent. Moreover, Graffius was never called as a witness
to deny that such a conversation or remark was ever made
by him.
The Respondent asserts that DeGroote, ‘‘who was a forth-
right and credible’’ witness testified that she never had such
a conversation with Graffius. Her denial is not so clear when
her testimony is considered as a whole at the hearing.14
Moreover, DeGroote’s denial came at a meeting with her su-
periors and employer and from her reaction to the accusation
could have reasonably been based on various reasons: the
presence of Meador, her supervisor, the union officials in-
volved, etc. Additionally, her experience in another anti-
discrimination charge against the Respondent just prior to the
Dennis matter in which she was involved would make her
even more sensitive to any accusation. That DeGroote’s re-
luctance to shoulder a serious accusation in which she would
only have been in effect a bystander is understandable. Addi-
tionally, as indicated above, Graffius was never called as a
witness and while the Respondent alleges DeGroote might
not be involved in an alleged conspiracy to violate the law
or make any statements to that effect, it is not without the
realm of possibility that Graffius would.
Moreover, notwithstanding, that Matzan had no previous
offense on his record the Respondent skipped two steps in
its progressive discipline process to suspend Matzan. While
it is true that the Respondent’s policy reserved to it the right
to proceed to harsher discipline where circumstances warrant,
the Respondent alleges it did so in Matzan’s case because his
statement to Dennis, in which he accused the Employer of
conspiring to terminate her because she took maternity leave
‘‘constituted defamation per se.’’ The Respondent asserts that
Matzan accused the human resources department of the
‘‘most serious offense possible—discrimination against an
employee based on a protected characteristic.’’ However, the
evidence clearly shows that Matzan had only accused union
official Graffius of such conduct and not DeGroote, Meador,
or the Respondent.
Additionally, it should be noted that, it was union officials
Blackmon and Graffius who urged that the Respondent
‘‘stop’’ Matzan. They had complained to Meador on March
31, 1995, that Matzan was spreading false and defamatory
rumors about them and Meador despite the fact that Dennis
had specifically informed Blackmon directly that Matzan had
not mentioned his name, only Graffius’. The union officials
also added Meador’s name to the story about Matzan al-
though Dennis had not.
Also, the Respondent’s preference for the incumbent union
officials at the time is evidenced by the testimony of Bailey
and Smart. While Meador may not have been aware that
Matzan was seeking the Union’s presidency until after his
suspension, the evidence shows that Matzan had been a thorn
in the incumbent’s side for more than 2 months, and also
that the Respondent was aware of his intraunion activities.
Thus, the timing of the Respondent’s action, April 10,
1995, in this connection is also significant. After the March
31, 1995 meeting, the Respondent did nothing in regard to
the Dennis incident for more than a week not continuing its
investigation thereof. However, on the Monday after a Satur-
day union meeting where Matzan was elected chairperson to
head a committee to rewrite the bylaws and argued in favor
of removing the current union officers, the Respondent
scheduled the disciplinary meeting. While the General Coun-
sel in his brief suggests the possibility that Blackmon and
Graffius were in Meador’s office that morning demanding
action against Matzan, there is no evidence in the record to
support this.
When an employer does not follow its own progressive
discipline policy, it is some evidence (though not conclusive
evidence) that the proffered reason for the employer’s action
is not the real reason. McLean Roofing Co., 276 NLRB 830
(1985); and Fast Food Merchandisers, 291 NLRB 897
(1988). The timing of events, the severity of the discipline
in the absence of any prior offense, the elaboration of the
Union’s complaint to Meador and his reaction thereto, and
his evidenced preference for the incumbent union officers, all
indicate that the proferred reasons for the suspension of
Matzan were false, from which it may be inferred that the
true reason was Matzan’s protected, concerted activity.
Shattuck Denn Mining Corp., 151 NLRB 1329 (1965), enfd.
362 F.2d 466 (9th Cir. 1960); Cell Agricultural Mfg. Co.,
311 NLRB 1228 fn. 3 (1993); and KNTV, Inc., supra.
From all of the above, I find and conclude that when the
Respondent suspended Matzan on April 10, 1995, because of
his protected, concerted activity it violated Section 8(a)(1) of
the Act.
2. The consolidated complaint also alleges that the Re-
spondent violated Section 8(a)(1) and (3) of the Act when it
suspended Matzan on September 11, 1995, and then dis-
charged him on September 15, 1995.
In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
299 (1st Cir. 1988), cert. denied 455 U.S. 989 (1982), the
Board announced the following causation test in all cases al-
leging violations of Section 8(a)(3) or violations of Section
8(a)(1) turning on employer motivation. First, the General
Counsel must persuade that antiunion sentiment was a sub-
stantial or motivating factor in the challenged employer deci-
sion. Once, the General Counsel has met that burden, the
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1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
burden of persuasion then shifts to the employer to prove
that the alleged discriminatory conduct would have taken
place even in the absence of the protected activity. Manno
Electric, 321 NLRB 228 (1996); and Wright Line, supra.
The Respondent asserts in its brief that ‘‘Matzan’s act of
attending the Gowan arbitration was not protected activity.’’
I do not agree. The record clearly shows that the Respondent
was aware of Matzan’s union activism generally and pro-
tected, concerted activities. Moreover, Gowan had specifi-
cally requested Matzan’s attendance at the hearing since ac-
cording to Matzan, he did not trust the union representative,
Matzan had been involved in the ‘‘unofficial’’ investigation
of Gowan’s grievance, and presumably Gowan felt that
Matzan’s attendance would be helpful and supportive of him
at the hearing, therefore Matzan’s attendance at the hearing
would constitute protected, concerted activity. This would be
true despite the fact that at the time of the Gowan arbitration,
Matzan was not a witness, not a union steward or officer,
and had given all the information concerning his investiga-
tion to the Union’s attorney representing Gowan.
However, as the Respondent asserts, ‘‘even assuming
arguendo that Matzan had a protected reason for attending
the Gowan arbitration, that activity lost its protection when
Matzan abandoned his duties after being specifically told by
Fischette that he could not attend the arbitration.’’ Thus, it
is not only clear that the Respondent was aware of Matzan’s
protected and union activities, but that he was disciplined for
disobeying Fischette’s order not to engage in that protected
activity, i.e., attend the Gown arbitration. Thus, the General
Counsel has sustained its burden of persuasion under Wright
Line and the burden then shifts to the Respondent to prove
that the discriminatory conduct would have taken place even
in the absence of the protected activity.
Under the circumstances in this case I am not persuaded
that the alleged discriminatory conduct would have taken
place even in the absence of the protected activity. On Satur-
day, September 1995, Matzan told Fischette that he might be
able to accomplish what he wanted to do on his lunchbreak
on Monday. Fischette told him to try to arrange it so that
he would be available on Monday by rearranging his per-
sonal need. When confronted by Fischette on Monday and
told not to attend Gowan’s hearing that day, Matzan told
Fischette that he could go where he pleased on his lunch
hour. Matzan testified without contradiction that he had made
arrangements with another electrician, Tony Peluso, to cover
for him while he took an early lunch hour, which electricians
are expected to do if they alter their lunchbreaks, and for
which Matzan did not need Fischette’s permission.
Moreover, the Respondent’s reasons for discharging
Matzan seems almost pretextual. At first alleging that Mon-
day was the ‘‘busiest’’ day of the year and he was needed
on the floor, it appears from the record evidence that the Re-
spondent’s main reason for denying him permission to attend
Gowan’s hearing was his protected activity, its desire to pre-
clude his attendance therein since Fischette appears to have
considered the possibility of altering Matzan’s hours for
other reasons without reference to this, especially. Also, it
was the Respondent who challenged Matzan’s appearance at
Gowan’s hearing, who suspended Matzan immediately on his
return to the plant floor on the ‘‘busiest’’ day of the year
when it allegedly needed its full complement of electricians,
and there is no evidence in the record that between 9 and
10 a.m. that there were any major electrical problems
present.
This is not to say that an employer has no right to dis-
cipline employees for insubordination or violation of plant
rules. But an employer cannot discriminate in regard to hire
or tenure or conditions of employment of its employees be-
cause of their protected, concerted activities. From all of the
above, I find and conclude that the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act when it unlawfully suspended
and discharged Eugene A. Matzan because he engaged in
protected, concerted activities and activities on behalf of the
Union and to discourage employees from engaging in these
activities and membership in a labor organization.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring in
connection with the operations of the Respondent described
in section I, above, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent unlawfully suspended
Eugene A. Matzan on April 10, 1995, because he engaged
in concerted activities with another employee for the purpose
of mutual aid and protection by warning the other employee
about matters affecting the terms and conditions of her em-
ployment and to discourage employees from engaging in this
or other concerted activity, and unlawfully suspending
Matzan on September 11, 1995, and discharging him on Sep-
tember 15, 1995, because he engaged in activities on behalf
of the Union and engaged in concerted activities, and to dis-
courage employees from engaging in those activities, the Re-
spondent shall be ordered to rescind the above suspensions
and also to offer Matzan immediate reinstatement to his
former position, discharging, if necessary, any replacement
hired since his termination, and that he be made whole for
any loss of earnings or other benefits by reason of the above
discrimination against him in accordance with the Board’s
decision in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest computed as in New Horizons for the Retarded,
283 NLRB 1187 (1987). See also Florida Steel Corp., 231
NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716
(1962).
Because of the nature of the unfair labor practices found,
and in order to make effective the interdependent guarantees
of Section 7 of the Act, I recommend that the Respondent
be ordered to refrain from in any like or related manner
abridging any of the rights guaranteed employees by Section
7 of the Act. The Respondent should also be required to post
the customary notice.
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1223CADBURY BEVERAGES
15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
16 If 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
CONCLUSIONS OF LAW
1. The Respondent, Cadbury Beverages, Inc., is now and
has been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union, Retail, Wholesale and Department Store
Union, Local 220, AFL–CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent, in violation of Section 8(a)(1) of the
Act, has interfered with, restrained, and coerced its employ-
ees in the exercise of their rights under Section 7 of the Act
by suspending Eugene Matzan on April 10, 1995, because he
engaged in concerted activities with another employee for the
purposes of mutual aid and protection by warning the other
employee about matters affecting the terms and conditions of
her employment, and to discourage employees from engaging
in this or other concerted activity.
4. The Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act discriminating
in regard to tenure or hire or conditions of employment by
suspending Eugene Matzan on September 11, 1995, and then
discharging him on September 15, 1995, because he engaged
in activities on behalf of the Union and engaged in concerted
activities and to discourage employees from engaging in such
activities and membership in a labor organization.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended15
ORDER
The Respondent, Cadbury Beverages, Inc., Rochester, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending its employees because they engage in con-
certed activities and to discourage employees from engaging
in such activities.
(b) Discriminating in regard to the hire or tenure or condi-
tions of employment of its employees suspending and dis-
charging its employees because they engage in activities on
behalf of the Union and in concerted activities and to dis-
courage employees engaging in these activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer em-
ployee Eugene A. Matzan immediate and full reinstatement
to his former job or, if his position no longer exists, to a sub-
stantially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed by
him, and make him whole for any loss of earnings and other
benefits suffered by him as a result of the discrimination
against him in the manner set forth in the remedy section of
this decision.
(b) Rescind the suspensions unlawfully issued to Matzan
on April 10 and September 11, 1995, and make him whole
for any loss of earnings and other benefits suffered by him
as a result of the discrimination against him in the manner
set forth in the remedy section of this decision.
(c) Within 14 days from the date of this Order, remove
from its files any references to the unlawful suspensions and
discharge of Matzan, and within 3 days thereafter notify him
in writing that this has been done and that the suspensions
and the discharge will not be used against him in any way.
(d) Preserve and within 14 days of a request, make avail-
able to the Board or it 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.
(e) Within 14 days after service by the Region, post at its
facility in Williamson, New York, copies of the attached no-
tice marked ‘‘Appendix.’’16 Copies of the notice, on forms
provided by the Regional Director for Region 3, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent and maintained for 60 consecu-
tive days in conspicuous places including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business, or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by
the Respondent at any time since May 22, 1995.
(f) Within 14 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
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1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT suspend employees because they engage in
protected concerted activities with other employees for the
purposes of mutual aid and protection by warning them about
matters affecting the terms and conditions of employment,
and to discourage employees from engaging in this or other
concerted activity.
WE WILL NOT suspend and then discharge our employees
because they engage in activities on behalf of the Union and
engage in protected, concerted activities and to discourage
employees from engaging in such activities and membership
in a labor organization.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Eugene A. Matzan full reinstatement to his
former position or, if his position no longer exists, to a sub-
stantially equivalent position, without prejudice to his senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Eugene A. Matzan whole for any loss of
earnings and other benefits resulting from his suspensions
and discharge, less any net interim earnings, plus interest.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
suspensions and discharge of Eugene A. Matzan, and WE
WILL within 3 days thereafter, notify him in writing that this
has been done and that the suspensions and the discharge
will not be used against him in any way.
CADBURY BEVERAGES, INC.
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