International Packings Corp.

National Labor Relations Board - Board Decisions

Nov 14, 1975

221 N.L.R.B. 479 (N.L.R.B. 1975)

INTERNATIONAL PACKINGS CORPORATION
International Packings Corporation and Doris Patricia
Woodward
Local 1362, Textile Workers Union of America, AFL-
CIO, and Textile Workers Union of America,
AFL-CIO and Doris Patricia Woodward. Cases 1-
CA-10000 and 1-CB-2789
November 14, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On July 29, 1975, Administrative Law Judge-Henry
L. Jalette issued the attached Decision in this
proceeding. Thereafter,, all Respondents filed excep-
tions and supporting briefs,' and counsel for the
General Counsel resubmitted her brief to the
Administrative Law Judge as an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondents, International
Packings Corporation, Bristol, New Hampshire, its
officers, agents, successors, and assigns; Local 1362,
Textile Workers Union of America, AFL-CIO, its
officers, agents, and representatives, and Textile'
Workers Union of America, AFL-CIO, its officers,
agents, and representatives, shall take the action set
forth in said recommended Order.
1 Inasmuch as the record and briefs adequately present the issues and
positions of the parties, the Respondents' request for oral 'argument is
hereby denied.
2 The Respondents had 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA 3, 1951). We have
carefully examined the record and find no basis for reversing his findings
1 The complaint alleged that the above-named Respondent International
Union (herein called International) also caused Woodward's discharge, but
this allegation was withdrawn by General Counsel at the hearing.
2 Unless otherwise indicated, all dates hereinafter are 1974.
DECISION
STATEMENT OF THE CASE
479
HENRY L. JALETTE, Administrative Law Judge: This case
involves allegations that the- above-named Respondent
Employer (herein called the Company) threatened with
discharge and discharged Dons Woodward, the Charging
Party, because she engaged in protected concerted activity,
and because` the above-named Respondent Local Union
(herein called Local) demanded her discharge, thereby
violating Section 8(a)(1) and (3) of the Act. It also involves
allegations that the Local" caused the Company to
discharge Doris Woodward because she engaged in
protected concerted activity in violation of Section 8(b)(2)
and (1)(A) of the Act,', and that the Local and the
International (collectively referred to as Respondent
Union) made threats violative of Section 8(b)(1)(A) of the
Act. The proceeding was initiated by a charge filed against
the Company by Woodward in Case 1-CA-10000 on July
31, 1974,2 which charge was amended on November 4 and
on January 21, 1975, and a charge filed against the
International in Case I-CB-2789 on December 9, which
charge was amended on January 21, 1975, to name the
Local as a Respondent. On April 1 through 4, 1975,
hearing was held in Bristol, New Hampshire.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs of the
parties, I make the following:
FINDINGS OF FACT
1. THE FACTUAL SETTING
The Company is engaged in the manufacture of seals,
gaskets, and related products at its plant in Bristol, New
Hampshire .3 It employs about 900 employees who, since
the 1940's or early 1950's, have been represented by
Respondent Union. At all times material herein, the
Company and Respondent Union have been parties to a
collective-bargaining agreement which provides for rates of
pay on certain jobs according to an incentive system.
Under this system, employees working on rated jobs (some
jobs have no incentive rate and are day rated), acquire
through their work performance an individual average,
referred to in the record as an IA. Depending on her work
assignments and her performance, an employee will have
an IA which may fluctuate from time to time.
Phyllis St. Lawrence is 'president of the Local and is
considered by the Company to be assigned to the trim
department. However, unlike other employees in the trim
department, she receives a constant IA of 157 (that is, her
wages are calculated at 157 percent of,base rate). This
constant IA was established in 1971 by mutual agreement
(oral) between the Company and St. Lawrence for the
asserted reasons that the Company utilized St. Lawrence in
the performance of clerical duties and St. Lawrence was
required to perform duties as union president during
3 Jurisdiction is not in issue. The complaint alleges, the Respondents
admit, and I find that the Company meets the Board's direct inflow and
outflow standards for the assertion ofjunsdiction.
221 NLRB No. 104
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
working hours. These intrusions on her regular duties made
it impossible for St. Lawrence to maintain her productivity
and she complained to the Company. As a result, the
agreement was made to give her a constant IA of 157.4
Doris Woodward was employed by the Company in
January 1969, became a member of Respondent Union in
1972, and was employed in the trim department at the
times relevant herein. In late February or early March,
Woodward asked Wood how an employee could get out of
the Union. He told her, he could give her a copy of the
contract and she could find out how on the last page.'
Woodward testified that thereafter she studied the
contract and discussed with other employees their views on
various provisions. She also began questioning Foreman
Roy Chellis about the contract's provisions on transfers
and seniority, the' exclusion of office clerical employees
from the Union, and the requirement that employees make
rates when assigned to work in other departments.
Woodward was not satisfied with Chellis' answers and
obtained permission to speak to Don Thomann, trim
department supervisor. According to Woodward, she
raised the same questions -at a meeting with Thomann
sometime' before June 11. She was not satisfied with his
answers (which she described as a statement that it was a
matter of management, prerogative) and obtained permis-
sion to speak to Production Superintendent Robert
Fletcher. His response was the same as Thomann's, and
Woodward asked whom she could go to next and Fletcher
said she could go no higher.
Woodward's IA had been 138 for a long period of time.
In late May, she was assigned to a job in the circomat
department on which she was told by Chellis that she
would not be receiving her IA. She was told this after 2
days on the job and she protested that had she known this
she would have insisted on her seniority and remained in
the trim department.5
Later, Woodward spoke to Phyllis St. Lawrence about
this and St. Lawrence's reply was a reference to a time
when Woodward had worked in the case treat department
and had' criticized the morals of the other female
employees in that department, and she told Woodward to
`-`get the hell out of here. Get lost "6 Later the same day,
Woodward spoke to St. Lawrence again and told her she
did not` think it was right for the president of the Union to
tell a member to get lost. -
Still that same day, Woodward `spoke to Local Union
Vice President Nancy Bliss about her loss of IA and asked
what she'could do about it. Bliss told her, she could file a
grievance, and when'Woodward asked her what she meant
Bliss explained that it was a form you filled out when you
had a complaint. She said, however; that she could not give
Woodward a grievance form because she could not go over
the head of the union president .7
The 'next 'day, Woodward asked St. Lawrence for a
grievance form and was given one. However, in giving it to
4 How the figure of 157,for her IA was determined is not clear. Personnel
Director Walter Wood testified that at the time of the agreement St.
Lawrence's IA was at least 150 and may have been higher at other times.
5 According to Chellis, Woodward had no seniority right respecting such
assignment.
6 Employee Linda Morse overheard part of this conversation and
corroborated Woodward.
her, St. Lawrence remarked that she hoped some day
Woodward's husband became disabled and Woodward
had to pay the bills (this apparently was St. Lawrence's
situation), adding "furthermore,, you, can go f- yourself."
Woodward reported this to Foreman Chellis who said he
would speak to St. Lawrence. Later, St. Lawrence came to
Woodward, denied she had made the vulgar remark and
asked Woodward why she was "trying to f- her."
According to Woodward, sometime thereafter, she asked
employees to join Respondent Union on the premise that
with more members the Union would be stronger. The
employees laughed at her and told her the Respondent
Union had been there a long time and had done nothing
for them, what made her think it could'do anything now.
Woodward then asked employees if they would be
interested in another union and some expressed an interest.
On June 11, as a result of her contacting him, Woodward
met with Thomas Pitarys, regional director and vice
president of the International, and with St. Lawrence at the
plant. According to Woodward, she submitted a grievance
over her loss of IA. Pitarys read the grievance and it was
discussed. Pitarys expressed the view that it was wrong for
the Company not to notify Woodward in advance of
reassignment that her IA would be taken away.
As this was going on, St. Lawrence kept interjecting that
Woodward was a troublemaker and as long as she was
there it would mean nothing but trouble for them. She said
Woodward was trying to knock Respondent Union out of
the, plant and replace it with another union. At this, Pitarys
angrily told Woodward, "If you , so much as cause me-
endanger-me of losing this Local in this plant I will
blacken your name and 'see to it that you do get fired."
The record does not indicate that Woodward made any
reply. At some point in the meeting, she asked for a list of
the union members, but Pitarys refused to give her one. St.
Lawrence remarked that if they gave her such a list the
members would withdraw from membership.
After this discussion, a meeting was held with Personnel
Director Wood at which Pitarys advised Wood of the
Union's position that Woodward and other 'employees
similarly situated should be paid IA 'for the period of time
they worked on a new position without prior notice of loss
of IA. The parties also discussed with Wood and a
timestudy man the payment of IA on assignments to jobs
not previously performed, and they discussed St. Law-
rence's constant IA of 157 and the reasons for it. -
According to Wood, a few days later Thomann reported
they were still having problems with Woodward and she
was called to the office to discuss the matter. Wood
testified they again discussed the same items discussed on
June 11 and adjustments were made or promised on the
first two items. As to the third item, St. Lawrence's IA,
Woodward remained unsatisfied and continued to voice
the view that it was unfair. It is undisputed that at that time
Thomann orally warned Woodward that she would be
7 According to-Bliss, she gave two grievance forms to Woodward. She
admitted refusing to go over the head of St. Lawrence, but asserted that was
in reply to Woodward's request that Bliss accompany her to the office to
find out about St Lawrence's IA. I have concluded that Woodward was
generally a trustworthy 'witness and I can perceive no'reasor for her to
fabricate on this point Bliss, on the other hand, appeared very hostile to
Woodward. I credit Woodward
INTERNATIONAL PACKINGS CORPORATION 481
replaced if she persisted in this type of behavior, which he
described as "... pursuing these matters that we could not
resolve."
Woodward was on vacation for the first 2 weeks of July.
When she returned to work on July 15, Thomann gave her
a written warning for conduct and attitude, dated June 28,
which stated: "Must stay at workplace and stop disrupting
other employees. Has been talked to by R. Fletcher-W.
Wood and D. Thomann. D. Thomann has issued two
verbal warnings." The warning was signed by Thomann
and Chellis. Woodward protested that she did not deserve
a warning, that she was doing her job, making more than
her rate, and had quieted down. She denied ever disrupting
anyone.
On the morning of July 25, Joseph McGrath, vice
president in charge of manufacturing for the Company,
was accosted by St. Lawrence as he was leaving his office.
She was upset and in tears and told him she could not
stand the abuse any longer. He asked her what abuse and
she replied, "The girls are abusing me. Mrs. Woodward is
telling them that we're just going through the motions,
we're not doing-the union hasn't done anything for
them." She said she had been approached by two girls who
said they had been upset by Woodward. She also said that
Woodward was continuing to do this (apparently protest-
ing St. Lawrence's IA) and she could not take it anymore
and was going to quit. McGrath told St. Lawrence she
should return to work, that he needed a little time but he
would take care of the problem. McGrath attended to
some other business and thereafter learned St. Lawrence
had not returned to work, but instead had left the building.
Thereupon, he instructed Thomann to discharge Wood-
ward. At the end of the workday, Woodward was called to
Thomann's office and discharged. Thomann gave no
reason but simply stated he had to let her go.
II. ANALYSIS AND CONCLUSIONS
In the foregoing factual setting, I have described the
activities of Woodward beginning in late February and
continuing through June 1974. Except where otherwise
indicated, the account I have set forth is, in the main,
Woodward's account, and while in its general outline that
account is undisputed it stresses aspects of her activities
different from those stressed by the Company. Thus,
Woodward's testimony under direct examination about her
inquiries about the contract and transfers and seniority
gives the impression that her inquiries were general in
nature, academic, and aimed merely at an understanding
of the contract's terms. It is not until Woodward describes
a meeting with Fletcher that' one becomes aware that her
inquiries had a specific focus, namely, the favored
treatment accorded St. Lawrence. It is I seen then that
Woodward's questions about seniority and transfers were
related to the fact that for more than 6 months St.
Lawrence had been assigned to work outside the trim
department, yet St. Lawrence maintained her trim depart-
ment seniority contrary to what Woodward understood the
contract to provide; the question about he exclusion of
office clericals was related to the fact that St. Lawrence
was performing office clerical duties part of the time; and
the question about IA related to the fact that St. Lawrence
had a constant IA of 157. It was this disparity of treatment
which Woodward deemed unfair and which was at the root
of her complaints. The record indicates that her inquiries
into this matter preceded any personal grievance over her
working conditions, but they apparently became more
urgent when Woodward as assigned to a new job and lost
her IA. The record indicates, as the Company contends,
that despite her discussions with Chellis, Thomann,
Fletcher, and Wood, and despite management's explana-
tions, Woodward remained unconvinced and unsatisfied
and persisted in talking about the favored treatment
accorded St. Lawrence. The Company contends that such
activity was unprotected.8
Before addressing myself to the issue of the protected
nature of Woodward's activity, I would dispose of the
principal credibility issues posed by the record. Such
substantial variances as exist involve Woodward versus St.
Lawrence and Pitarys; McGrath versus St. Lawrence and
Pitarys; Wood versus Pitarys; and certain employees
versus St. Lawrence. As far as St. Lawrence and Pitarys are
concerned, I deem their testimony to be unworthy of
credence. In the case of St. Lawrence, not only did she
convey a strong feeling of vindictiveness towards Wood-
ward, but also her testimony was at odds with that of
witnesses who appeared to me to have no motive to lie. For
example, she denied talking to McGrath on the morning of
July 25 and telling him the girls were abusing her because
of Woodward. Yet, McGrath had no reason to lie about his
conversation with her, and employee Jean Taylor, who
testified she witnessed the encounter between McGrath
and St. Lawrence, also had no reason to lie. Moreover, I
am convinced that the grievance allegedly filed by case
treat employees against Woodward was sponsored by St.
Lawrence in view of the fact that, despite all the testimony
about Woodward's alleged slanders of the case treat
employees, none of the slandered employees who signed
the grievance was called to testify. The only support
offered for the'grievance beyond St. Lawrence's was that of
the Local's vice president who was herself hostile to
Woodward.
in the case of Pitarys, apart from the fact of variances
between his testimony and that of McGrath and Wood on
matters about which neither had reason to lie, I find his
testimony respecting his knowledge of the discharge of
Woodward and the incident that provoked it too implausi-
ble to be credited. I view his efforts to file a grievance over
Woodward's discharge as a charade played for appear-
ance's sake. Where his testimony differs from that of
Woodward, McGrath, and Wood, I do not credit him. In
making this determination, I have taken into consideration
Pitarys' suggestion to McGrath that he not discharge
Woodward, but that he only suspend her. I consider this
fact outweighed by Pitarys' inaction after the discharge
until it was too late to file a grievance. Even then, Pitarys
was strangely acquiescent in the Company's rejection of
8 The record contains considerable testimony respecting the alleged which displeased Foreman Chellis. Both matters are irrelevant to the issues
slander of case treat department employees by Woodward and some in the case; neither issue was considered by McGrath who made the
testimony about her persistent complaints about the rate on machine 6284 decision to discharge Woodward
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the grievance on the ground of untimeliness . The Company
had entertained Woodward's grievances on June 11
without a written grievance and on July 23, when it had no
obligation to do so, it had bargained for acceleration of
benefits m the contract . Arguably, Pitarys could have
reasoned with the Company to entertain a belated
grievance over Woodward 's discharge.
I turn now to the issue of the protected nature of
Woodward's activities , an issue which has several facets.
First of these is the matter of Woodward 's disruption of the
work force, the asserted reason for the Company's oral
threat of discharge , the written warning, and the discharge
itself. This matter is itself divisible into two parts: did
Woodward disrupt the work force and did she engage in
improper conduct . To answer the second part first, I find
no evidence that Woodward engaged in any improper
conduct in protesting St. Lawrence 's favored treatment.
Testimony was adduced about her being away from her
machine and talking to other employees on company time,
but there is no showing that she disrupted the work of any
employee or affected production . Of course , worktime is
for work and the Company had a rule against employees
being away from their machines without permission.
However , it is too clear to require detailed discussion that
the Company's concern was not over , the fact that
Woodward was away from her machine , but rather over
the subject matter of her discussions with other employees.
This is evident from Chellis' failure to speak to her at any
time about being away from her machine and from
Thomann's testimony that he gave Woodward two oral
warnings in which he told her "I wanted her to drop her
continual insistence about the IA not being fair...: . He
said nothing to her about the fact that her talking was
during worktime , or that she was leaving her machine.
According to Woodward 's uncontradicted testimony, on
one occasion when Thomann spoke to her, he said , "Look,
we want you to come in here, work your eight hours, take
your paycheck , go home and keep your mouth shut .'' This
statement was made followmg a remark that Thomann had
heard Woodward was not leaving the St . Lawrence matter
alone . No mention was made about worktime or Wood-
ward 's leaving her machine . Even in the meeting with
Woodward in Wood's office after June 11, the discussion
was not about Woodward 's being away from her machine
and talking during worktime, but rather about the nature
of her questions . According to Woodward's uncontradict-
ed testimony, Thomann said ". . . these questions Were
causing quite a disruption and if I didn't stop that I would
be replaced."
In short , there is substantial evidence in the record to
support the finding that Woodward was orally threatened
with discharge and given a written warning, not because
her activities occurred during worktime, but because of the
nature of her activities . This is not to say that Woodward
was not disrupting the work force as the Company
contends . She was. However , the disruption of the work
force of which she was guilty was infecting other employees
with her dissatisfaction with the treatment accorded St.
Lawrence , which was not provided for in the written
agreement . As General Counsel points out, citing from
Cement Transport, Inc., 200 NLRB 841, 845-846 (1972),
"This activity [of the employee ]- may well have engendered
a degree of unrest and general dissatisfaction. But such
unrest or dissatisfaction often precedes or accompanies
certain concerted activity for mutual aid or protection;
indeed concerted activity often springs from the employ-
ees' dissatisfaction with their working conditions. If an
employer were free to discharge an employee who, in the
exercise of the statutory rights, sought to induce concerted
activity . . . simply by characterizing that exercise as
`disturbance ' or the other invective used by Respondent,
the guarantees which the Act extends to concerted activity
for mutual aid and protection would be largely nullified." 9
The Company may not then defend its conduct vis-a-vis
Woodward on the ground she was disrupting the work
force, unless it can be held, as the Company contends, that
Woodward's activities were unprotected.
Preliminarily , it should be noted that Woodward's
protests were not addressed solely -to the - St. Lawrence
situation . Thus, she complained about her loss of IA on her
assignment to circomat in May and she complained about
the practice of assigning new employees to new jobs
without affording them an opportunity to learn the job
without loss of IA. There is no contention these protests
did not constitute protected concerted activity; however,
these complaints were remedied and there is no evidence
that the Company entertained any animus against Wood-
ward because she voiced them . The record clearly indicates
that it was Woodward's protests about St . Lawrence which
formed the basis of the warnings and threat of discharge.
According to the Company , Woodward's complaints
about the preferential treatment accorded St. Lawrence
were not protected because they were not work related, but
rather were expressions ' of ill will and a personal feud
between Woodward and St . Lawrence . In support of this
contention, the Company cites Northeastern Dye Works,
203 NLRB 1222 ( 1973). In myjudgment , Northeastern Dye
Works is inapposite . In the first place , apart from the issue
of St . Lawrence 's preferential treatment , there is no
evidence of the existence of a personal feud between
Woodward and St . Lawrence . The evidence adverted to by
the Company all relates to an animosity that arose between
Woodward and St . Lawrence because Woodward was
protesting the preferential treatment St. Lawrence was
receiving . Secondly, Woodward 's complaints about St.
Lawrence were not based on the mere fact that the
Company appeared to favor her, but on the further fact
that the favored treatment appeared to be if not in breach
of the contract, at least, at variance with its provisions. In
Northeastern Dye there was no contract. In this case, there
was a contract which provided for transfers , departmental
seniority, and incentive rates and , in protesting St.
Lawrence's favored treatment, Woodward was seeking to
enforce the bargaining agreement between the Company
and Respondent Union . Her efforts in this regard would
tend to affect the rights of all employees in the bargaining
unit. The Board has held on numerous occasions that the
discharge of an employee for seeking to enforce a
9 See also Chas. Ind Co, 203 NLRB 476,479 (1973).
INTERNATIONAL PACKINGS CORPORATION 483
collective-bargaining agreement is violative of the Act
whether he acts singly or in concert with other employ-
ees.10
It appears to be the Company's position that the favored
treatment of St. Lawrence could not affect Woodward or
any other unit employee; that, in paying St. Lawrence a
constant IA of 157, the Company did not deprive
Woodward or any other employee of any of their rights
under the contract. I am not certain that it can be readily
determined whether or not other employees were adversely
affected by St. Lawrence's constant IA of 157; at first
blush, it would appear no one was. However, Woodward's
complaints also related to the application of the contract's
transfer and departmental seniority provisions. If St.
Lawrence was accorded rights greater than those accorded
other employees under the contract, their departmental
seniority may well have been affected.
Apart from the foregoing, there is a significant fact
which compels a finding that Woodward's activity was
protected concerted activity and that fact is St. Lawrence's
status as president of the Local. In my judgment, it is one
thing to complain about the treatment accorded another
employee, yet another thing when such employee is also
union president . Employees are entitled to the undivided
loyalty of their bargaining agents. If their agent receives
favored treatment from the employer, his loyalty to the
employees is compromised. Employees who have reason to
believe their representative is receiving favored treatment
have a right to question and protest such favored
treatment , if not because of its effect on their contract
rights, because of its possible effect on the quality of the
representation they receive.
It may be argued that it is commonplace in labor
relations to include provisions in collective-bargaining
agreements granting superseniority to stewards, special
leaves of absence, payment for time spent in handling
grievances , and the like. However, the treatment accorded
St. Lawrence was not part of a collective-bargaining
agreement . It was an oral agreement between St. Lawrence
and the Company. Moreover, it was not an agreement for
special treatment of a union official qua union official;
rather, the agreement was personal to St. Lawrence,
nontransferable and nonassignable. Finally, as an oral
agreement, the agreement was apparently revocable at will.
Under these circumstances, the agreement if not wrong,
gave .the appearance of wrong; if it did not purchase St.
Lawrence's loyalty, it appeared to do so." I need not
decide whether the agreement was right or wrong, and' I
only make these observations to point out the compelling
interest of all the employees in the benefits given St.
Lawrence and to reject the contention that Woodward's
protests were not protected 12
The Company contends that Woodward's activity was
unprotected because she did not seek a specific remedy,
citing N.LR.B. v. Washington Aluminum Company, 370
U.S. 9 , (1962), and Mushroom Transportation Company v.
10 See also B & M Excavating, Inc, 155 NLRB 1152 (1965), Interboro
Contractors, Inc., 157 NLRB 1295 (1966).
11 Employee Judy Haggard told McGrath after Woodward's discharge if
one employee was paid more than other employees " . . it looked to me
like a 'company union." She did not mention St. Lawrence' s name , but it is
clear she had reference to St. Lawrence.
N.L.R.B., 330 F.2d 683 (C.A. 3, 1964). I do not read
Washington Aluminum as standing for the proposition
asserted by the Company, and while there is a similarity
between the facts of Mushroom Transportation and the facts
of this case, I do not deem it controlling. In going to the
Company about the St. Lawrence situation, Woodward
was not dust griping; she was seeking to obtain nonprefer-
ential compliance with the contract. She did not have to
suggest a specific remedy; the remedy was evident:
abrogate the special agreement with St. Lawrence. The
Company did not have to accede to her request and it did
not. However, so long as Woodward did not engage in
improper conduct, she had the right, thereafter to seek to
enlist the support of other employees.
As indicated earlier, despite her persistence in protesting
about this matter, Woodward never filed a written
grievance about the matter; instead, she dealt directly with
the Company. The Company and the Respondent Union
contend that by thus seeking to bargain directly,with the
Company in derogation of the Respondent Union's status
as bargaining representative, Woodward was engaged in
activity which the Supreme Court in Emporium Capwelll3
held to be unprotected. I do not agree. In my judgment,
Emporium Capwell is inapposite. Woodward was not
seeking to bargain with the Company. She was merely
presenting a grievance over a colorable claim that the
Company was not abiding by the terms of the contract.
According to the contract, she had the right to present a
grievance without a union representative, and, while the
Company was not required to meet with her as it did, it
chose to do so. It cannot now assert the employee was
trying to deal directly and was therefore subject to
discharge.
For all the foregoing reasons, I find that the Company
violated Section 8(a)(1) of the Act by threatening to
discharge Woodward and issuing a written warning on
June 28 because of her protected concerted activities. This
finding is, in effect, also dispositive of the allegation that
Woodward was discharged in violation of Section 8(a)(1)
of 'Act, because the reason asserted for the discharge is the
same reason given for the warning, namely, disrupting the
work force. The Company asserts, however, that the
discharge may not be found violative of the Act, because it
was attributable to its mistaken belief that Woodward was
engaged in misconduct, namely, a personal feud with St.
Lawrence. N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21
(1964), teaches that an employer who discharges an
employee engaged in protected activity in the mistaken
belief he engaged in misconduct violates Section 8(a)(1)
where the employee was not in fact guilty of the
misconduct. As Woodward was not guilty of misconduct,
her discharge would then be unlawful. The Company
contends, however, that Burnup & Sims is not applicable
because, on Woodward's own testimony, from the time she
received the written warning on July 15 to the date of her
discharge she was not engaged in any activity protected or
12 The wisdom or unwisdom of Woodward's complaints, and their
justification or lack of it are irrelevant to the question of whether employees
are engaging in protected concerted activity. Mushroom Transportation Co,
Inc., 142 NLRB 1150, 1158 (1963).
13 'Emporium Capwell Co. v. Western Addition Community Organization,
420 U.S 50 (1975).
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise . There is support for the Company's theory. In
Loggins Meat Co, Inc., 206 NLRB 303 (1973), the Board
indicated that "under Burnup & Sims there must coexist a
protected activity and an employer's mistaken belief that
the discharged employee had engaged in misconduct in the
course of that activity." However, here, unlike Loggins
Meat, there is a clear and direct connection between
Woodward's earlier protected activity and Respondent's
belief on July 25 that Woodward had engaged in
misconduct . Accordingly, under the principle of Burnup &
Sims, as Woodward was guilty of no misconduct, her
discharge would be violative of Section 8(a)(1) of the Act.
Actually, the facts of this case do not warrant application
of the Burnup & Sims principle for two reasons. First, if the
Company had a mistaken belief it was not one of fact; its
mistaken belief was one of law, namely, that Woodward's
protests about St. Lawrence constituted unprotected
activity. As such activity was protected and as the asserted
reason for discharge was the protected activity, the
discharge was violative of Section 8(a)(1) of the Act.
Second , I do not believe that Woodward was discharged
because of any mistaken belief she had engaged in
misconduct ; rather, I find that she was discharged because
of her protected concerted activity and St. Lawrence's
constructive demand for her discharge on the morning of
July 25. 1 base this finding on the fact that McGrath did
not investigate the assertion by St. Lawrence to determine
whether it was true, the fact that he called Pitarys to inform
him "We lost our Union President," and the fact that later
that day he called St. Lawrence to tell her Woodward had
been terminated and St. Lawrence could return to work the
next day. Moreover, the report by St. Lawrence was not
that Woodward was still pushing her complaint about St.
Lawrence's IA; rather, the report was that Woodward was
demeaning and undermining the Union, a protected
activity. For these reasons, I find that the discharge of
Woodward was violative of Section 8(a)(1) and (3) of the
Act.
The foregoing is prologue to the allegation that the Local
caused the Company to discharge Woodward in violation
of Section 8(b)(2) and (1)(A) of the Act, and it foretells my
conclusion . As the record clearly indicates, Woodward was
discharged because St. Lawrence went to McGrath and
told him she was quitting because Woodward was telling
the girls that the Union was just going through the
motions, the Union was not doing anything for them, and
as a result the girls were abusing her. To forestall her
quitting, McGrath decided to discharge Woodward. Thus,
the cause and effect are clear. The question, however, is
whether the Local caused the discharge within the meaning
of Section 8(b)(2) of the Act.
The answer to that question depends on the construction
one places on St . Lawrence's conduct. It is clear that she
did not expressly demand that the Company discharge
Woodward; however, a discharge may be caused by less
than an express demand. It may be caused by conduct
which from the circumstances of the case can only be
construed as intended to cause a discharge. Such is the case
here.
According to McGrath, prior to July 25, St. Lawrence
had complained to him about Woodward's activities
(which I have here found to be protected) and he testified
that he had assured her that he would take care of the
problem, by discharge if necessary. From this, St. Law-
rence was on notice that, if it became a matter between her
and, Woodward, McGrath would choose her. According to
employee Jean Taylor, whom I credit, St. Lawrence
expressed that very thought on the morning of July 25
before speaking to McGrath by telling Taylor that "it's me
or her." That she intended to cause Woodward's discharge
by speaking to McGrath is clear from what she reported to
him, namely, that Woodward was telling the girls that the
Union was just going through the motions and wasn't
doing anything for them. St. Lawrence had absolutely no
basis for this statement to Woodward. She had made the
same statement to MacLean and MacLean testified
credibly that she had told St. Lawrence that Woodward
had nothing to do with it. Why then would St. Lawrence
have acted as she did and falsely accused Woodward? The
only inference I can draw is that she intended thereby to
cause Woodward's discharge.
This inference finds support in other conduct of St.
Lawrence before July 25, and after Woodward was
discharged. Thus, on July 23, the Company and Respon-
dent Union met to discuss matters which led to the
agreement to advance the cost of living increase to which
St. Lawrence had reference in her conversation with
MacLean. At this meeting, St. Lawrence sought to present
a grievance against Woodward assertedly filed by the case
treat girls and it was only through Pitarys' intervention that
it was not presented. As I indicated earlier, this matter of
the case treat slander was one sponsored by St. Lawrence
and, in seeking to raise the issue on July 23, St. Lawrence
was obviously seeking some adverse action against Wood-
ward. Failing there, she engaged in her walkout on July 25.
McGrath credibly testified that on July 25, after Wood-
ward's discharge, he called' St. Lawrence to tell her that he
had discharged Woodward. St. Lawrence did not protest.
The following day, according to the credited testimony of
Linda Morse, St. Lawrence boasted she "got rid of the old
bitch."
In short, all the circumstances support a finding that the
discharge of Woodward was not only a forseeable
consequence of St. Lawrence's conduct but also an
intended consequence. Moreover, the predicate for St.
Lawrence's conduct on July 25 was not personal attacks on
her by Woodward so that one could say it was St.
Lawrence the employee who complained to McGrath;
rather, the predicate was the belief that Woodward was
undermining the Union, a belief she had earlier entertained
and expressed at the meeting with Woodward and Pitarys
on June 11. One can only conclude from this that it was in
her capacity as president of the Local that St. Lawrence
complained to McGrath. I so find.
The only remaining issues in the case are the alleged
threats by Pitarys and St. Lawrence. As described earlier,
according to Woodward, at her meeting with Pitarys and
St. Lawrence on June 11, Pitarys threatened to blacken her
name and get her fired if she caused him to lose
representation rights at the' plant. Such a threat is clearly
coercive and violative of Section 8(b)(1)(A), if uttered.
Pitarys denies making such a threat and St. Lawrence
INTERNATIONAL PACKINGS CORPORATION
corroborates him. For reasons, given earlier, I credit
Woodward. Accordingly, I find that the International
restrained and coerced an employee within the meaning of
Section 8(b)(1)(A) of the Act by Pitarys' threat to blacken
Woodward's name and to cause her discharge.
If I understand the complaint, the Local is also alleged to
be liable for Pitarys' threat. General Counsel has not
indicated on what theory -the Local would be held
accountable for the acts of the International and I am
aware of no authority for doing so. In any event, the Local
may not be held guilty of any unfair labor practice for
conduct occurring more ,than 6 months before filing and
service of a charge upon it. The original charge in Case I-
CB-2789, although filed on December 9, 1974 (within 6
months of the June 11 meeting), was not served on the
Local until January 21, 1975. Accordingly, the Local may
not be held liable under the Act for any conduct occurring
prior to July 21, 1974.
At, this same June 11 meeting, Woodward asked Pitarys
for a list of union members. St. Lawrence remarked that if
they gave her such a list the members would withdraw
from membership. Pitarys refused to give her a list. The
complaint alleges that the International and the Local
violated Section 8(b)(1)(A) of the Act (1) by St. Lawrence's
remark not to give Woodward a list of members because
Woodward would cause all the members to withdraw, and
(2), by St. Lawrence's statement that if they did not get rid
of Woodward they would lose whatever members they had.
I shall recommend dismissal of these allegations in the case
of the Local`becaiise the incident is barred by Section 10(b)
of the Act, and in the case of the International because it is
not accountable for the statements of St. Lawrence.
Employee Linda Morse, testified that on the day
following Woodward's discharge, St. Lawrence remarked
to her, "Well, I got rid of the old bitch." Morse did not
understand who she was talking about, so she asked St.
Lawrence, who replied "Doris" (Woodward). St. Lawrence
denied making, the remark, but I credit Morse who had no
reason to fabricate such a conversation. The complaint
alleges that by this remark the International and the Local
violated Section 8(b)(1)(A) of the Act. Insofar as the Local
is concerned , I agree. Morse was aware that Woodward
was questioning the, fairness of" St. Lawrence's IA and a
remark such as that made by St. Lawrence would impress
upon Morse the•peril,of doing the same or exercising any
rights under Section 7 of the Act inimical to St. Lawrence
or the Local. The remark would tend to'restrain and coerce
her in the exercise of Section 7 rights,and consequently was
violative of Section 8(b)(l)(A) of the Act.
As to Respondent International, there is no basis for
holding it accountable for the statements of St. Lawrence.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company and Respondent Union
set forth in section I, above, occurring in connection with
the operations of the Company as described therein, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to
labor disputes adversely affecting, ^ burdening, and ob-
structing free flow thereof.
IV. THE REMEDY
485
Having found that the Company has engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act, and that Respondent Local has engaged in unfair
labor practices in violation of Section 8(b)(l)(A) and (2) of
the Act and that Respondent International has engaged in
unfair labor practices in violation of Section 8(b)(1)(A) of
the Act, I - shall recommend that they cease and desist
therefrom and take certain, affirmative, action designed to
remedy their unfair labor practices and to effectuate the
policies of the Act.
Having found the Company discharged Doris Wood-
ward in violation of Section 8(a)(1) and (3) of-the Act, I
shall recommend that it be- ordered to offer her immediate
and full reinstatement to her former job or, if such-job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges.
As - I have found that Respondent Local caused the
Company to discharge Doris .Woodward, I shall recom-
mend that Respondent Local and the'Company jointly and
severally make Doris Woodward whole for any loss of pay
she may have suffered as a result of the discrimination
against her by payment to her of a sum of money equal to
that which she would have earned as wages from the date
of discharge to; in the case of the Company, the date of
reinstatement to her former or substantially equivalent
position, and, in the case of Respondent Local, 5 days after
notification to the Company and to Doris Woodward that
it has no objection to her reinstatement, less net interim
earnings. Backpay, including payment of interest at 6
percent, shall be computed in accordance with the Board's
usual practices. F. W. Woolworth Company, 90 NLRB 289
(1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
The unfair labor practices found to have been committed
by Respondents go' to the heart of the Act, and reflect a
purpose, by unlawful means, likely to ' be executed in the
future, to thwart the employees, exercise of their Section 7
rights. In order that the preventive purpose of this
recommended Order be coextensive with the threat of
future violations, I shall recommend that Respondents
cease from in' any manner infringing upon the employees'
rights guaranteed by Section 7 of the Act.
CONCLUSIONS OF LAw
1. International Packings Corporation is engaged in
commerce and is an employer engaged in commerce within
the meaning of the Act.
2. Respondent Local 1362 , Textile Workers Union of
America, AFL-CIO, and Respondent Textile
,
Workers
Union of America , AFL-CIO, and each of them, are labor
organizations within the meaning of Section 2 (5) of the
Act.
3. By threatening Doris Woodward with discharge, by
issuing her a written warning, and by discharging Doris
Woodward because she engaged in activities protected by
Section 7 of the Act, and because Local 1362 , Textile'
Workers Union of America , AFL-CIO, requested' her
discharge because she had engaged in activities protected
by Section 7 of the Act, the Company has engaged in and
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
4. By causing International Packings Corporation to
discharge Dons Woodward because she engaged in
activities protected under Section 7 of the Act, Respondent
Local 1362 has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(b)(2) and (1)(A)
of the Act.
5. By remarking to an employee that it had caused the
discharge of Doris Woodward, Respondent Local 1362
engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act.
6. By threatening to blacken the name of Doris
Woodward and to cause her discharge if she engaged in
activities protected under Section 7 of the Act, Respondent
International engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act.
Upon the foregoing findings of fact and conclusions of
law and the-entire record, and pursuant to Section 10(b) of
the Act, I hereby issue the following recommended:
ORDER 14
A. Respondent, International Packings Corporation,
Bristol, New Hampshire, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge and issuing
written warnings to employees because they have engaged
in activities protected under Section 7 of the Act.
(b). Discharging, or otherwise discriminating against,
employees because they engaged in activities protected
under Section 7 of the Act.
(c) Encouraging membership in Local, 1362, Textile
Workers Union of America, by discharging, or otherwise
discriminating against, employees, in regard to the hire or
tenure of employment of employees, or any term or
condition of employment.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed by Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Remove the written warning dated June 28, 1974,
from the personnel file of Doris Woodward and notify her,
in writing, of such removal.
(b) Offer, Doris Woodward immediate and full remstate-
ment to her former job, or, if such job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, and, jointly and
14 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
severally with Respondent Local 1362, make Doris
Woodward whole for all losses she may have suffered by
reason of the discrimination against her in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) 'Preserve and, upon request, make available to the
Board and 'its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of the amount of
backpay due under the terms of this recommended Order.
(d) Post at its Bristol, New Hampshire,` place of business
copies of the notice marked "Appendix A." 15 Copies of
said notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and 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) Post at the same places and under the same
conditions as set forth in paragraph (d) above, and as soon
as they are forwarded by the, Regional Director, copies of
Respondent Local 1362''s and Respondent International's
notices herein marked "Appendix B" and "Appendix C,"
respectively.
(f) Notify the Regional Director for Region 1, in writing,
within, 20 days from the date,of this Order-, what steps have
been taken to comply herewith.
B. Respondent Local 1362, Textile Workers Union of
America, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining and coercing employees in the exercise of
rights guaranteed under Section 7 of the Act by telling
employees that it has caused the discharge, of another
employee.
(b) Causing, or attempting to cause, the International
Packings Corporation to discharge, or otherwise, discrimi-
nate against, employees because they have engaged in
activities protected under' Section 7 of the Act.
(c) In any other manner restraining and coercing
employees in the exercise of rights guaranteed under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Notify International Packings Corporation and Doris
Woodward, in writing, that it -has no objection to
Woodward's employment and requests her reinstatement.
(b) Jointly and severally with Respondent International
Packings Corporation make Doris Woodward whole for all
losses she may have suffered by reason of the discrimina-
tion against her in the manner set forth in, the section of the
Decision entitled "The Remedy."
15 In the event that the Board's 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 "
INTERNATIONAL PACKINGS CORPORATION 487
(c) Post at its offices copies of the attached notice
marked "Appendix B." 16 Copies of said notice, to be
furnished by the Regional Director for Region 1, shall,
after being duly signed by the Respondent Local 1362's
representative, be posted immediately upon receipt thereof
and be maintained by the Respondent Local 1362 for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where no to members are customarily
posted. Reasonable steps shall be taken by Respondent
Local 1362 to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Post at the same places and under the same
conditions as set forth in paragraph (c) above, as soon as
they are forwarded by the Regional Director, copies of the
Respondent International Packings Corporation's notice
marked "Appendix A," and Respondent International's
notice marked "Appendix C."
(e) Forward signed copies of "Appendix B" to the
Regional Director for posting by Respondent International
Packings Corporation at its Bristol, New Hampshire, plant.
(f) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
C. Respondent Textile Workers Union of America, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening to blacken the name of employees and to
cause their discharge if they engage in activities protected
under Section 7 of the Act.
(b) In any like or related manner, restraining or coercing
employees in the exercise of rights guaranteed under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Forward signed copies of "Appendix C" to the
Regional Director for posting by Respondent International
Packings Corporation 17 and by Respondent Local 1362.
(b) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the
complaint not found to have been established by a
preponderance of the evidence be, and they hereby are,
dismissed.
16 See fn 15, supra
17 1 am omitting any requirement that Respondent International post a
notice at its offices because they are located in Manchester, New
Hampslure, some 50 miles distant from the plant where employees of the
Company and members of the Union are undoubtedly rarely to to be found.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
post this notice to you:
WE WILL NOT discharge employees because they
have engaged in activities protected under Section 7 of
the National Labor Relations Act.
WE WILL NOT discharge employees because of the
demand of Local 1362, Textile Workers Union of
America.
WE WILL NOT threaten with discharge nor issue
written warnings to employees because they have
engaged in activities protected under Section 7 of the
Act.
WE WILL remove, the written warning from the
personnel file of Doris Woodward and notify her that
we have done so. - - <
WE WILL offer to reinstate Doris Woodward to her
former job, or, if her job no longer exists, to a
substantially equivalent job. WE WILL, jointly and
severally with Local 1362, Textile Workers Union of
America, make Doris Woodward whole by paying her
the wages which she lost because we discharged her
unlawfully.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed by Section 7 of the Act, or to refrain from
any or all such activities.
INTERNATIONAL PACKINGS
CORPORATION
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and ordered us to post
this notice.
WE WILL NOT restrain and coerce employees in the
exercise of rights guaranteed under Section 7 of the Act
by telling employees that we caused the discharge of
other employees.
WE WILL NOT cause, or attempt to cause, Interna-
tional Packings Corporation to discharge employees
because they have exercised rights protected under
Section 7 of the Act.
WE WILL notify International Packings Corporation
and Doris Woodward, in writing, that we have no
objection to her employment by International Packings
Corporation.
WE WILL, jointly and severally with International
Packings Corporation, make Doris Woodward whole
for any loss of wages she may have suffered by reason
of our having caused International Packings Corpora-
tion to discharge her.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner, restrain, or
coerce employees in the exercise of rights guaranteed
under Section 7 of the Act.
LOCAL 1362, TEXTILE
WORKERS UNION OF
AMERICA
APPENDIX C
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the law and has ordered us to
sign this notice for,posting.
WE WILL NOT threaten to blacken the name of
employees or to cause the discharge of employees if
they seek to exercise rights guaranteed under Section 7
of the Act.
WE WILL NOT, in any like or related manner, restrain
or coerce employees in the exercise of rights guaranteed
under Section 7 of the Act.
TEXTILE WORKERS UNION
OF AMERICA