Lipman Bros, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1342 (N.L.R.B. 1964)

1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lipman Bros., Inc., Lipman Poultry Products , Inc., Riverside
Poultry Farms, Lipman Poultry Farms, Inc., By-Products, Inc.,
Samuel Lipman Sons, Pine Crest Hatcheries, Inc. and Local
385, Amalgamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO
Lipman Bros., Inc., et al. and Local 385, Amalgamated Meat
Cutters and Butcher Workmen of North America, AFL-CIO,
Petitioner. Cases Nos. 1-CA-3931, 1-CA-4080, and 1-RC-7052.
June 30, 1964
DECISION AND ORDER
On June 14, 1963, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, and recommending further
that the representation election conducted on September 20 and 21,
1962, in Case No. 1-RC-7052 be set aside, and a new election held, as
set forth in the attached Intermediate Report. He further found
that the Respondents had not engaged in certain other unfair labor
practices alleged in the complaint and recommended that the com-
plaint be dismissed with respect thereto. Thereafter, both the Re-
spondents and the General Counsel filed exceptions to the Intermedi-
ate Report with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
'ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in this pro-
and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner except as modified herein.
The Trial Examiner found, intern alia, that after employee Charles
Bolduc became active in the Union, he was discriminatorily assigned
onerous duties by Foreman Rafford and Assistant Foreman Duperry,
and that by condoning this conduct the Respondents violated Sec-
tion 8 (a) (1) of the Act. However, the Trial Examiner also found
that the General Counsel failed to prove by a preponderance of the
evidence that Bolduc was discriminatorily terminated, and recom-
mended that this allegation of the complaint be dismissed. The Gen-
eral Counsel excepts to this latter finding of the Trial Examiner,
147 NLRB No. 139.
LIPMAN BROS., INC., ETC. 1343
contending that Bolduc was discriminated against and constructively
discharged in violation of Section 8(a) (3) of the Act. We find merit
in the General Counsel's exceptions.
Bolduc worked without criticism or censure for the Respondents
for approximately 4 years. In July 1962 he took a 1-week vacation.
During that period he was induced by Lucian Matthew, a union
organizing official, to sign a union authorization card and to accept a
supply of cards to distribute among his coworkers. Thereafter,
Bolduc was appointed a member of the 11-man union organizational
committee, approached about 100 of the employees in the course of
his organizational activities, and secured about 35 signed cards.
Bolduc returned from his vacation the fourth week in July. The
record shows he commenced working at this regular job of releasing
birds from the killing line, a function he had been satisfactorily per-
forming for approximately 2 years. Some time later, Foreman
Rafford came to Bolduc's work station and said to Bolduc, "I hear
you are a Union man." Bolduc replied that he was. Rafford then
left the work area, but within a half hour returned and, without prior
explanation or discussion, told Bolduc that his job of releasing birds
had been discontinued and that Bolduc was to be reassigned. Rafford
then assigned him to a job known as pushing feathers, commenting,
"You have had it easy enough around here long enough. You're go-
ing to do some work." This job assignment required Bolduc to work
in an area between two scalders where the temperature was in excess
of 100 degrees. When Bolduc complained to Rafford that he should
not be forced to do this work in view of his seniority, Rafford replied,
"The Union isn't in here . . . there is no seniority." About 2 hours
later Rafford then assigned Bolduc to a job of hanging chickens on
the conveyor line. This job also entailed working in another very
hot, uncomfortable location. Bolduc remained on this job about 6
weeks. Thereafter, Assistant Foreman Duperry told Bolduc that his
job of hanging chickens was discontinued and that he was to cut
chicken legs. This latter job was performed with a pneumatic cutter
and required a great deal of difficult, tiring effort. Throughout his
first day at this job, Duperry remained close by Bolduc and fre-
quently criticized his work.
That evening Bolduc went to his doctor and secured a certificate in-
dicating that he was under treatment for a heart condition and should
not perform strenuous work. The following morning Bolduc left this
certificate with the nurse on duty in the first-aid room at the plant
and then reported for duty. After he had been at work cutting
chicken legs for some time he asked a fellow employee, Maddox, to
relieve him for a few minutes while he secured a drink of water.
Foreman Duperry immediately appeared, ordered Bolduc back to
work, and admonished Maddox, stating, "Don't you relieve him again,
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or you know what you are going to get." Maddox also credibly testi-
fied that on this same occasion Duperry told him that Bolduc was a
"union agitator and that he was going to see that he did some work."
Later that morning, Personnel Director Desjardin asked Bolduc to
report to the office where Coowner Frank Lipman questioned him about
his heart condition. Lipman asked why he did not call this condition
to the Respondents' attention earlier. Bolduc explained that his heart
had not bothered him on his earlier jobs, and that it was only after he
had been assigned to more strenuous work, after he returned from his
vacation, that he had difficulty. Lipman told him to take the rest of
the day off with pay, and said that he would contact Bolduc's physician.
Lipman then contacted the physician by telephone and discussed
Bolduc's physical condition. The doctor confirmed that Bolduc's
present work was too strenuous and that he should be doing only
"light" work. Lipman asked the doctor if Bolduc could handle a
night watchman job and the doctor responded, "Yes, definitely, that's
the type of job he should have." It does not appear that Lipman asked
the doctor whether Bolduc's original work of releasing birds, or com-
parable work within the unit, would be satisfactory.
The following morning Lipman offered Bolduc the job of night
watchman at Respondents' grain mill.' The employee objected to
solitary, night work in a location several miles from the main plant
and requested that he be placed back in his old job of releasing b rids,
a function which at that time was being performed in the plant. The
Respondents replied in effect that the watchman job was the only work
suitable for him. When Bolduc refused to accept the night watchman
job, he was given his final paycheck and told to leave the plant.
For the reasons expressed by the Trial Examiner, we agree that the
harassment of Bolduc by his supervisors and his assignment and trans-
fer to various onerous duties after he became active in the Union were
discriminatorily motivated, and by condoning the conduct of its super-
visors the Respondents violated Section 8 (a) (1) of the Act. However,
as this unlawfully motivated conduct also affected Bolduc's conditions
of employment, we additionally find that the Respondents violated
Section 8( a) (3).'
1 The grain mill where Bolduc would have been on duty as a night watchman was sev-
eral miles from the main plant. It also appears that this job would have removed Bolduc
from the bargaining unit 1 week prior to the election.
2 See, e.g ., Anderson-Rooney Operating Company, et al., 134 NLRB 1480 , 1492 ; Minne-
sota Manufacturing Company, Inc ., 132 NLRB 1398, 1413 ; Southern Electronics Com-
pany, Inc ., 131 NLRB 1411 , 1425-1426; Des Moines Foods, Inc., 129 NLRB 890, 901,
enfd . 296 F. 2d 285 ( C.A. 8) ; L. E. Schooley, Inc., 119 NLRB 1212, 1220.
Although the complaint did not allege the harassment , assignment , and transfer of
Bolduc to various onerous duties as violative of Section 8(a) (1) and ( 3), these matters
were litigated during the course of the hearing . See Thompson Manufacturing Co., Inc.,
132 NLRB 1464, footnote 1. Moreover , we note that the Respondents excepted to the
Trial Examiner 's 8(a) (1) findings in this regard only on the ground that such finding was
not "based . upon substantial evidence in the record as a whole."
LIPMAN BROS., INC., ETC. 1345
We further find, contrary to the Trial Examiner, that Bolduc was
constructively discharged on September 14, 1962, in violation of Sec-
tion 8(a) (3) and (1) of the Act. We are unable to accept the Trial
Examiner's conclusion that while Respondents may have welcomed
Bolduc's decision not to accept the job of night watchman and may
have been gratified by his decision to quit, they were relieved of any re-
sponsibility because the medical certificate was sufficient justification,
for their action.
As noted above, Bolduc satisfactorily performed his job of releasing
birds for approximately 2 years. On learning of his union adherence,,
he was reassigned to various onerous jobs, harassed, and criticized.. He
was forced to call attention to his physical disability by respondents'
series of illegal acts, and thereafter such notice of disability, in our
view, was seized upon by the Respondents as a pretext to offer him a
job at the grain mill, several miles from the main plant and outside the
bargaining unit. On these facts, and the record as a whole, we find
that on'September 14, 1962, Bolduc was constructively discharged and
that the Respondents thereby violated Section 8 (a) (3) and (1) of the
Act.3
Our dissenting colleague would also find that Jane Sullivan was
constructively discharged on January 25, 1963, when she quit the Re-
spondents' employment because of alleged harassment in reprisal for
her testimony at the hearing on January 8, 1963, in Case No. 1-CA-
3931. Accordingly, he would find that Respondents violated Section
8(a) (1), (3),and (4) of the Act. We do not agree.
Our colleague apparently places much reliance upon Sullivan's
contention that after her testimony in the above hearing, she was not
reassigned to the job she had been working since January 1962, mak-
ing boxes in the cooking room, but was thereafter reassigned to vari-
ous "onerous" jobs. Credible testimony shows that the cookroom was
not in normal production between the date Sullivan testified on Janu-
ary 8, and the date she left the Respondents' employment on Janu-
ary 25. Indeed, the record shows that the cookroom did not resume
production until a month and a half later. Moreover, it is clear that
the cookroom was closed down for purely economic reasons unrelated
to the union activity of Sullivan or any other employee.
As for the contention that Sullivan was transferred frequently to
various jobs within the plant, the record is clear that such transfers
were not unusual in view of the type of operations and the unskilled
a The Board has consistently held that where, as here, an employee is harassed and
transferred to onerous duties because of his union activity, he need not submit to such
discrimination, but may quit and such separation is deemed equivalent to a discharge and
is to be remedied in the same manner. See,e.g., Leggett's Department Store of Princeton,
West Virginia, Inc., 137 -NLRB 403, 415-416; Todd Shipyards Corporation, Los Angeles
Division, a Corporation, 98 NLRB 814, 818-819 ; Macon Textiles, Inc., 80 NLRB 1525,
1531-1532.
756-236-65-vol. 147-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nature of the jobs. Furthermore, it is clear that the timing of work
.of employees was frequent and was performed daily, and no more so
as to Sullivan than the others , and that work quotas were a plant
policy and not specifically directed against Sullivan . The Trial
Examiner personally inspected Sullivan's working area and con-
cluded that her complaints as to difficult working conditions were not
supported by the physical facts.
Nor does the record support the inference drawn by our colleague
that Foreman Violette was under instructions to make Sullivan's
working conditions more onerous than those of other employees. Vio-
lette credibly testified that he realized Sullivan was having difficulty
keeping up on the giblet table on the morning she quit and gave her
some assistance . He also credibly testified that he inquired of plant
officials to obtain additional help for Sullivan , but was told that there
was nobody available and that after the noon break an attempt would
be made to take care of the request . Sullivan quit approximately 15
minutes before the noon break.
Our dissenting colleague appears to place undue emphasis upon the
fact that on the morning of January 25, Harold Lipman, Violette,
and another supervisor had a discussion near Sullivan . Lipman got
red in the face, waved his arms around , walked to the stuffing loca-
tion, and spoke in an agitated manner to Violette . Admittedly noth-
ing was said to Sullivan , nor did she hear what was said ; yet she
infers ( as apparently does our dissenting colleague ) that such dis-
cussion concerned her and that her subsequent treatment was the
direct result of such discussion . The record , in our opinion , warrants
no such conclusion.
Under all the circumstances , we find, in agreement with the Trial
Examiner , that the General Counsel has failed to prove by a pre-
ponderance of evidence that the Respondents caused the termination
of Sullivan in violation of Section 8(a) (1), (3 ), and (4) of the Act,
and adopt his recommendation that the amended complaint in regard
thereto be dismissed.
THE REMEDY
Unlike the Trial Examiner, we have found that the Respondents
constructively discharged Charles Bolduc on September 14, 1962, in
violation of Section 8(a) (1) and ( 3) of the Act . Accordingly, we
shall order the Respondents to cease and desist therefrom , and require
that they take certain affirmative action which we find necessary to
remedy and remove the effects of this unfair labor practice and to
effectuate the policies of the Act.
As noted herein , Bolduc's physician recommended that Bolduc be
assigned "light" work in view of a coronary insufficiency . It also
appears from the record that the job of releasing birds which Bolduc
LIPMAN BROS., INC., ETC. 1347
had satisfactorily performed , despite his physical disability , for some
2 years prior to Respondents' discrimination against him , was com-
pletely eliminated prior to the hearing herein. However , we shall
order that Bolduc be offered immediate and full reinstatement to a
position within the unit suitable to his physical condition , without
prejudice to his seniority and other rights and privileges , and that the
Respondents make him whole in accordance with the Board's remedial
policies (The Chase National Bank of the City of New York, San
Juan, Puerto Rico, Branch, 65 NLRB 827; Crossett Lumber Company,
8 NLRB 440; F. TV. tiVoolworth Company, 90 NLRB 289; A.P.TV.
Products Co., Inc., 137 NLRB 25; and Isis Plumbing cf Heating Co.,
.138 NLRB 716 ) for any loss of wages he may have suffered by reason
of the discrimination against him 4 We shall also order that Respond-
ents make available to the Board , upon request , payroll and other rec-
ords in order to facilitate the checking of the amount of backpay due.
Apart from the foregoing, we shall otherwise adopt the section set
forth in the Intermediate Report entitled "The Remedy."
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
.Respondents, Lipman Bros., Inc., et al., their officers, agents , successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 385, Amalgamated Meat
'Cutters and Butcher Workmen of North America, AFL-CIO, or any
other labor organization of their employees , by discriminating in re-
gard to their hire, tenure , or any other terms or conditions of their
employment.
(b) Discharging or otherwise discriminating against any employees
'because of their testimony given under the Act, or interfering with
or attempting to influence the testimony of employees in any National
Labor Relations Board proceeding.
(c) Harassing, transferring , or assigning onerous jobs to employees
.because of their exercising rights specified in Section 7 of the Act.
(d) Interrogating employees regarding or in connection with their
union membership , sympathies, or activities in a manner constituting
interference , restraint, or coercion within the meaning of Section
.8(a) (1) of the Act.
(e) Threatening employees with discharge or any other form of
.reprisal because of their membership in, sympathy for, support of,
See Roxboro Cotton Mills, 97 NLRB 1359 , 1371; The Chase National Bank of the City
.of New York, San Juan, Puerto Rico, Branch, supra.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or activity on behalf of any labor organization ; or threatening to
contract out the work of its employees if the employees select a labor
organization as their collective-bargaining representative.
(f) Promising benefits or holding -out the possibility of conferring
benefits upon its employees for the purpose of thwarting their exercise
of or deterring them from exercising any of the rights of employees
specified in Section 7 of the Act.
(g) Assaulting union representatives engaged in organizational
activities involving Respondent's plant.
(h) In any other manner interfering with , restraining , or coercing
their employees in the exercise of their right to self -organization, to
form, join , or assist any labor organization , to bargain collectively
through representatives of their own choosing , to engage in concerted
activities for the purposes of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities , except to,
the extent that such right is affected by the provisos of Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Simon Gilbert, Robert Duplessis , and Leo Levasseur
immediate and full reinstatement to their former or substantially
equivalent positions , without prejudice to their seniority or other'
rights land privileges , and make them whole in the manner set forth
in the section of the Intermediate Report entitled "The Remedy."
(b) Make whole Jane Sullivan , Girard Pare, and Edward Blair'
for any loss of pay suffered by reason of their discriminatory suspen-
sion by the Respondents in the manner set forth in the section of the
Intermediate Report entitled "The Remedy."
(c) Offer to Charles Bolduc immediate and full reinstatement to,
a position within the unit suitable to his physical condition , without
prejudice to his seniority or other rights and privileges , and make'
him whole in the manner set forth above for any loss of pay he may
have suffered by reason of the Respondent 's discrimination against him..
(d) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the'
Universal Military Training and Service . Act of 1948 , as amended,.
after discharge from the Armed Forces.
(e) Preserve and, upon request, make available to the Board or its:
agents, for examination and copying , all payroll records, social se-
curity payment records, timecards , personnel records and reports, and
all other records necessary or appropriate to analyze the amount of
backpay due and the right of employment under the terms of this
Order.
LIPMAN BROS., INC., ETC. 1349
(f) Post at its plant in Augusta, Maine, copies of the attached
notice marked "Appendix." I Copies of said notice, to be furnished
by the Regional Director for the First Region, shall, after being duly
signed by the Respondents' authorized representative, be posted by the
Respondents immediately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by any material.
(g) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps Respondents
have taken to comply herewith.
IT IS FURTHER ORDERED that the election in Case No. 1-RC-7052, held
on September 20 and 21, 1962, be, and it hereby is, set aside, and that
Case No. 1-RC-7052 be, and it hereby is, remanded to the Regional
Director for the First Region for the purposes of conducting a new
election at such time as he deems that circumstances permit the free
choice of a bargaining representative.
MEMBER FANNING, concurring in part and dissenting in part:
I agree with my colleagues except that I would find a constructive
discharge not only as to Charles Bolduc, but also as to Jane Sullivan.
Thus, I also would find that Respondent violated Section 8 (a) (1),
(3), and (4) as to Sullivan based upon her "quitting" on January 25,
1963, shortly after testifying adversely to the Respondent, as well as
the 8(a) (1) and (3) violations found by the Trial Examiner based
upon Sullivan's suspension for a week without pay immediately fol-
lowing the September 1962 election.
Sullivan was an active adherent of the Union, was appointed to the
negotiating committee in August 1962, and asked 20 or 30 employees
to sign union application cards thereafter. On September 21, 'the
second day of the election, she acted as an observer for the Union.
Immediately thereafter she engaged in an altercation with an employee
who, although not in the unit, had attempted to vote. Sullivan's
suspension by Personnel Manager Desjardin resulted. That evening
Rollins, her foreman at the time and also her landlord, came to her
apartment to tell her that he regretted the suspension and said that
Harold Lipman, treasurer of the Respondent and maintenance head
of the Lipman operation, wanted her discharged, and that he, Rollins,
had been trying to keep Sullivan out of sight whenever Lipman came
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, the notice shall be amended by substituting for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order."
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the cookroom.e Actually, Sullivan had been aware of Lipman's
animosity since August when Bragdon, the production foreman, twice
warned her about union activity and told her Lipman knew she was
a union committee member and wanted to get rid of her. Also, on
September 20, Harold Lipman had been present on an occasion in the
cookroom when Desjardin charged Sullivan with intimidating em-
ployees to vote for the Union and she, in turn, challenged ^ him to
produce witnesses to prove it.
At the hearing in early January Sullivan gave testimony adverse to
the Respondent. About this time she and approximately 60 other
employees received a 5-cent an hour raise in pay, which the record
indicates was a routine matter based upon a monthly supervisory rec-
ommendation. At the May hearing Bernard Lipman, the Respond-
ent's president, testified he considered Sullivan and Levasseur-the
two former employees alleged as 8(a) (4)'s after the January hear-
ing-to be disloyal. Also pertinent in this connection is Harold
Lipman's direction to Supervisor McLeod, on January 4, that Lipman
wanted McLeod's brother to "be on his side" at the hearing. The
latter incident was included by the Trial Examiner with numerous
others in his finding of 8 (a) (1) violations.
After Sullivan's testimony on January 8, less than 3 weeks inter-
vened before she quit on January 2.5. She was ill at home for 1 week.
During her working time in this posttestimony period she was assigned
for 2 days to the gizzard peeler, a job which bothered her back be-
cause of her height but about which she did not complain. She also
worked under Supervisor Violette at the giblet table filling bags with
giblets, and finally on the job of stuffing. Stuffing involved placing
bags of giblets into chickens as they passed on a conveyor line at 2-
foot intervals, about shoulder height. On this job, it was customary to
use two girls, keeping them on stuffing for 11/2 or 2 hours, and then
assigning them to a "slow line," as indicated by Violette's testimony.
On January 24 Sullivan was assigned to stuffing for the whole day,
along with another girl whose "primary" job was stuffing and who
gave her a chance to rest when her shoulders got tired. On the next
day, her last day, Sullivan reported to work at the giblet table-where
the employees start work 15 or 20 minutes earlier than on stuffing-
and found Harold Lipman and Desjardin talking with Violette and
Clem Poulin, the foreman of the eviscerating room. Lipman was
red in the face and was waving his arms in the air. Sullivan observed
Lipman walk to the stuffing location and talk in an agitated manner
to Violette. Nothing was said to Sullivan and she did not hear what
6 There is some 'confusion in the Trial Examiner 's analysis of Sullivan's testimony at
the second hearing in May, concerning what Rollins said to her after the January hear-
ing about the cookroom reopening . Although Rollins was not working then due to his
December 15 injury , he was Sullivan 's landlord and may well have told her as she testi-
fied-he did not testify-that when the cookroom reopened , she would not be on the crew.
LIPMAN BROS., INC., ETC. 1351
was being said, but before the morning was over she was subjected
to four transfers ending with a 2-hour stint on stuffing, without the
customary assistance on stuffing and without relief despite two re
quests to Violette. Her first request was for a 30-minute relief be-
cause her shoulders ached and her back hurt. When Violette informed
her that Poulin had refused, she asked to be allowed to talk to Poulin
herself, and that also was refused. Thereupon she worked 10 or 15
minutes longer before she decided that she "couldn't stick it out" and
went home. Her testimony that "it was unusual to be shifted that
much in one morning" was not controverted. I note also that Violette
admitted it was customary to grant relief when it was asked for; that
Sullivan did not ask for relief often; that on this occasion he did not
come back "right away" but walked by her to another table before
telling her that Poulin said there was no spare girl, and did not tell
her there might be relief after the noon break ; and that although he,
Violette, could have placed Sullivan on the giblet table and shifted a
girl from there to stuffing, he did not say anything about that to
Sullivan because, as he phrased it, he did not have a "chance" to do so.
The latter explanation implies that Sullivan's departure was too pre-
cipitate for him to effect a shift, but the record is equally susceptible
of the inference that Violette was under instructions to make Sulli-
van's working conditions more onerous than those of other employees.
Other statements attributed to Violette by Sullivan-not referred to
when he was testifying-attest to this. These were that during this
January period Violette told Sullivan that it would do her no good
to make production on the giblet table (12 bags filled and sealed per
minute), on another occasion that "especially she" should make the
quota, and, on the last day, that she would have to work on stuffing
"alone" and would "have to keep up."
From the above, I am of the opinion that the General Counsel has
proved his case of constructive discharge of Sullivan based upon the
onerous working conditions she was subjected to on the last day of
her employment, entirely apart from other alleged discrimination to
which she was subjected after she had testified, such as being timed
more closely and for longer periods than other girls, or not being re-
assigned to the job she had before the election 7 The Trial Examiner
in recommending dismissal of the 8(a) (4) as to Sullivan appears to
have been unduly impressed by the raise she received on January 12.
Though he credited Violette, he attached no significance to parts of
Violette's testimony and seems to have ignored the failure to question
Violette on important aspects of Sullivan's testimony. Thus I would
7 Although apparently not clear to my colleagues, my reliance solely upon Sullivan's
onerous working conditions the last day of her employment , and not upon failure to re-
assign her to the cookroom, could be no more explicit.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grant reinstatement and additional backpay to Sullivan to remedy
the 8(a) (4) discrimination against her which, in my view, the record
:supports.
APPENDIX L^
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership of our employees in, or
activities on behalf of, Local 385, Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, or any other
labor organization, by discharging or otherwise discriminating
against any of our employees.
WE WILL NOT discharge or otherwise discriminate against any
employees because of their testimony given under the Act, or
interfere with or attempt to influence the testimony of our em-
ployees in any National Labor Relations Board proceeding.
WE WILL NOT harass, transfer, or assign onerous jobs to employ-
ees because of the exercise of rights specified in Section 7 of
the Act.
WE WILL NOT unlawfully interrogate our employees concerning
their union activities or sympathies.
WE WILL NOT threaten our employees with discharge or any
other form of reprisal because of their membership in, sympathy
for, support of, or activity on behalf of, Local 385, Amalgamated
Meat Cutters and Butcher Workmen of North America, AFL-
,CIO, or any other labor organization, or threaten to contract out
,our work if our employees select a labor organization as their
'collective-bargaining representative..
WE WILL NOT promise benefits or hold out the possibility of
'conferring benefits upon our employees for the purpose of thwart-
ing their exercise of, or deterring them from exercising any of
the rights of employees specified in Section 7 of the Act.
WE WILL NOT assault union representatives engaged in organiza-
tional activities involving our plant.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the rights of self-organization,
to form, join, or assist the above-named or any other labor or-
ganization, 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 protec-
tion, or to refrain from any or all such activities, except to the
LIPMAN BROS., INC., ETC. 1353:
extent that such right may be affected by an agreement requiring
membership in a labor organization as authorized by the Act:
WE WILL offer Simon Gilbert, Robert Duplessis, and Leo Levas-
seur immediate and full reinstatement to their former or sub-
stantially equivalent position, without prejudice to their seniority
or other rights and privileges enjoyed, and make them whole fore
any loss of pay suffered as a result of discrimination against them.
WE WILL make whole Jane Sullivan, Girard.Pare, and Edward
Blair for any loss of pay they may have suffered by reason of
discrimination against them.
WE WILL offer Charles Bolduc immediate and full reinstate-
ment to a position within the unit suitable to his physical con
dition, without prejudice to his seniority or other rights and'
privileges previously enjoyed, and make him whole for any loss:
of pay suffered as a result of discrimination against him.
LIPMAN BROS., INC., LIPMAN POULTRY PRODUCTS,
INC., RIVERSIDE POULTRY FARMS, LIPMAN POUL-
TRY FARMS, INC., BY-PRODUCTS, INC., SAMUEL
LIPMAN SONS, PINE CREST HATCHERIES, INC.,
Employers.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted. for 60 consecutive days from the.
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional'
Office, Boston Five Cents Savings Bank Building, 24 School Street,.
Boston, Massachusetts, Telephone No. 523-8100, if they have any ques--
tion concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10(b) of the Labor Management Relations.
Act of 1947, as amended , 61 Stat . 136, 73 Stat . 519, herein called the Act, was.
heard in Augusta , Maine, on January 8 to 11 and May 7 and 8, 1963, before Trial'
Examiner Robert E. Mullin , pursuant to due notice to all parties . The complaint in'
Case No. 1-CA-3931 , issued by the General Counsel of the National Labor Relations.
Board, and based on charges duly filed and served , alleged that the Respondents
had engaged in unfair labor practices proscribed by Section 8(a) (3) and ( 1) of the.
Act. A hearing on that complaint was held on January 8 to 11, 1963. Subse-
quently, in Case No. 1-CA-4080, the General Counsel issued a complaint alleging
that the Respondents had violated Section 8(a)(4), (3 ), and (1 ) of the Act. A
motion to reopen the record in the first hearing and consolidate the two proceedings
was granted . Thereafter, a hearing on the issues raised in Case No. 1-CA-4080
was held on May 7 and 8, 1963.
In Case No. 1-RC-7052 , pursuant to a stipulation for certification upon consent'
election, an election was conducted under the supervision of the Regional Director
for the First Region . Subsequent to the election , objections having been filed by
both the Employers and the Petitioner , on December 6, 1962, the Board issued an
order which directed , inter alia, that a hearing be held on the factual issues raised
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by one of the Petitioner 's objections.' On December 14 the Regional Director
issued an order consolidating Cases Nos. 1 -RC-7052 and 1-CA-3931 for hearing.
In their respective answers, duly filed , the Respondents conceded certain facts
with respect to their business operations , but they denied the commission of any un-
fair labor practices . At the hearing all parties were afforded full opportunity to be
heard , to examine and cross-examine witnesses , to introduce relevant evidence, and
to argue orally . Various motions to dismiss , made by the Respondents at the close
of the hearings, are disposed of as appears hereinafter in this report . Subsequent
to the original hearing in Cases Nos. 1 -CA-3931 and 1 -RC-7052, thorough and
comprehensive briefs were submitted by both the General Counsel and the Respond-
ents. At the hearing on Case . No. 1-CA-4080 the General Counsel presented oral
argument , but did not submit a brief. The Respondents waived oral argument, and
on June 10, 1963 , filed a brief on the issues raised at the reopened hearing.
Upon the entire record in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondents are Maine corporations with their principal offices and plants
at Augusta and Winslow in that State , where they are now, and for some years have
been , engaged in the hatching, feeding, general care, processing , sale, and distribution
of poultry. In the course and conduct of their business the Respondents have
caused , at all times material herein , substantial quantities of poultry to be sold and
transported from said plants in interstate commerce to States of the United States
other than the State of Maine . Lipman Bros ., Inc., separately and together with all
other Respondents herein , annually sells and transports quantities of poultry valued
in excess of $50,000 directly to States of the United States other than the State of
Maine. At all times material herein , the Respondents have been affiliated businesses
with common officers, ownership , and directors and with a common labor policy that
is formulated and administered for all the employees of all the Respondent corpora-
tions. Upon the foregoing facts, the Respondents concede, and I find, that at all
times material herein they have been a single integrated enterprise and joint employer
engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Local 385, Amalgamated Meat Cutters and Butcher Workmen of North America,
AFL-CIO, herein called Union, is a labor organization within the meaning of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Case No. 1-CA-3931
The complaint alleges that the Respondents discharged Simon Gilbert on August 6,
1962, Robert Duplessis on August 29, and Charles Bolduc on September 14, and
that it suspended Jane Sullivan on September 24 and Edward Blair and Girard Pare
on October 23, all for the purpose of discouraging membership in the Union. It
further alleges that by various other acts and conduct during this period, the Re-
spondents engaged in interference, restraint , and coercion of the employees in order
to discourage membership in, or assistance to, the Union. All of these allegations
are denied by the Respondents.
A. The union campaign
In mid-July 1962, the Union initiated an organizational drive among the employees
Of the Respondents. Arthur LeBel , an organizer for the AFL-CIO, Ben Detweiler,
an International representative for the Union , and Rodney Warren and Lucian
Matthew, officials of Local 385, were instrumental in planning and conducting this
drive. In a meeting with employees the last week of July they appointed an 11-man
organizational committee from among the Lipman employees . This consisted of
Robert Duplessis as chairman and had as members Simon Gilbert , Girard Pare,
Charles Bolduc, Ronald Young, Daniel Lemalin, Laurence Dutil, Harold Carter,
Kenneth Schedule, A. Paul, and Claude Garand. From the latter part of July until
a Board-conducted election held on September 20 and 21, the Union conducted an
intensive campaign to win the support of the Respondents ' employees . The General
1 This was Petitioner 's objection ( b), more fully set forth in that section of this report
which discusses the issues raised In Case No. 1-RC-7052.
LIPMAN BROS., INC., ETC. 1355
Counsel alleged that during this period the Respondents engaged in various conduct
that constituted interference, restraint, and coercion. The testimony in connection
with these incidents will now be considered.
On the afternoon of July 31, LeBel and Matthew began distributing leaflets in
front of the plant.2 Shortly thereafter, Clement Desjardin, personnel manager for
the Respondent, appeared. According to LeBel, Desjardin told him, "Mr. Lipman
wants you to leave." 3 LeBel did not leave, but continued to hand out pamphlets.
Thereafter Frank Lipman drove an automobile to this entrance of the plant which
he parked there with two posters prominently displayed on the car that caricatured
the union effort to sign up the employees.4 Frank Lipman testified that although
he parked near the center of the entrance, the sidewalk was not completely blocked
to the employees. LeBel testified that at this time he could see employees inside
the plant waiting to leave via this exit but that no one came out the door. Simon
Gilbert, an employee, testified that at this time on that afternoon, when he and
other workers attempted to leave the plant through this exit, they found Harold and
Bernard Lipman nand Foreman Walter Frazier there. According to Gilbert, Harold
Lipman ordered Frazier to have the employees leave through a back door and there-
after the latter stood at this exit ,and directed them toward another door at the rear
of the plant. Daniel Lemalin, another employee, testified that when he attempted
to go out the front door, Frazier told him and other employees, "Anybody who
leaves through the front entrance will be fired." Although Frazier appeared as a
witness at the hearing he did not deny Lemalin'is testimony. Bernard Lipman could
not recall anything about this incident. Harold Lipman, on the other hand, testified
that he told the employees on this occasion to use any door. He offered no ex-
planation, however, as to why it should have been necessary for him to give the
employees any directions as to the exit they could or should use. Desjardin testified
that he did not think he interfered with LeBel's pamphleteering, but Harold Lipman
stated that LeBel had been close to the entrance "before he was driven off . . . I
think Mr. Desjardin drove him off .. . LeBel, Gilbert, and Lemalin were
credible witnesses. On the basis of the foregoing evidence, it is my conclusion, and
I find, that on this occasion when LeBel was distributing organizational leaflets in
front of the plant the action of the Respondents in partially blocking the exit with
an automobile and ordering the employees to use another door in departing from
the plant was designed to thwart LeBel's efforts to disseminate his organizational
literature. For this reason, it is my conclusion that it constituted unlawful inter-
ference and a violation of Section 8(a)(1) by the Respondents.
On August 16, Ben Detweiler, Lucian Matthew, and Simon Gilbert were passing
out handbills at the plant. During the course of their efforts they walked to a lot
adjoining the plant where many of the employees' cars were parked. When they
did so, Harold Lipman came toward them and ordered them off the property.
Detweiler disputed Lipman's order with a statement to the effect that the Respondents
did not own the property.5 According to Detweiler, at that point Lipman, who was
standing at the edge of an embankment some 20 to 25 feet above the union repre-
sentatives, threw a rock at them. Harold Lipman testified as to the incident and
conceded that he was angered at the refusal of Detweiler and the others to leave
the parking lot, but he denied having thrown a rock or anything else at them.
Based upon my observation of the witnesses and the apparent credibility of the
principals, it is my conclusion that Detweiler's account is the more accurate.6
On August 30, after the Union filed a representation petition in Case No. 1-RC-
7052, the parties entered into a stipulation for certification upon consent election.
2 This was the Employers' facility in Augusta, the site of the dispute Involved herein.
All dates are to events which occurred in 1962, -unless otherwise stated.
3 Three of the Lipman brothers, Bernard, Frank, and Harold, all of whom are officers in
the various Respondent Corporations and active In the day-to-day management of the
business, figure prominently in the case.
'LeBel attributed this action to Harold Lipman, but Frank Lipman testified that he
was the one who parked the car at this entrance on the day in question.
5 Bernard Lipman testified that the land in question was leased by the Respondents
from Central Maine Power Company.
e LeBel testified that on an occasion about a week before the election, while distributing
leaflets in front of the plant, Harold Lipman took one from him and then tore it up while
standing in front of several of the employees. Harold Lipman testified that he had taken
from 5 to 10 pamphlets from LeBel and that since he had no use for them he had torn
them up, although this latter act had been unintentional.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to this agreement , an election was held at the Respondents ' facilities on
September 20 and 21. Several. incidents which figure in this case occurred in the
period immediately prior to that election.
The Respondents had a substantial number of men employed on what was known
as the road crews, whose job it was to transport poultry from the surrounding area
to the Respondents ' plants. The general foreman of this operation was Edward
McLeod. At one time, some 6 or 7 years earlier, the Respondents had under con-
sideration a plan to abolish this department and contract out the work. The General
Counsel alleged , and the Respondents denied , that during the preelection period
Foreman McLeod told some members of his crews that the Respondents again were
considering this plan. Several witnesses for the General Counsel testified to that
effect. Thus, Gerald Turcotte, a member of the road crew in August and September,
testified that during the last week in August, McLeod told him and several other
crew members that "if the Union got in the [work of] the road crew would be con-
tracted out." Leo Levasseur, another crew member, testified to the same effect.
LeLand Klinnie, also an employee working under McLeod, testified that about a
week before the election, McLeod told him and several other employees that "one
time they was thinking about contracting them out, but that they had changed their
mind because they didn't think that the road crew was behind or backing the Union,
or for the Union any more."
William McLeod, a younger brother of Foreman McLeod, was a rank-and-file
employee in the packing department. He had started to work with the Respondents
over 4 years earlier, after having come from Bangor, Maine. When the organiza-
tional campaign began he became active on behalf of the Union. He testified that
on an occasion during the first week of September he was engaged in a conversation
with his brother, Edward, when Fred Talbot, the plant manager, and Personnel
Director Clement Desjardin came into the room. According to William McLeod,
as they did so, Talbot observed "there is another union man" and Desjardin com-
mented that if the Union was unsuccessful in attempting to get in the plant he
(William McLeod) would "be going back to Bangor." 7 Talbot did not testify at
the hearing. Desjardin denied that he made the comment attributed to him by
William McLeod. Foreman McLeod did not testify with respect to any of this
alleged conversation. However, he denied that at any time during the course of
the organizational campaign had he stated to any of the crews, directly or indirectly,.
that the Respondents had under consideration any plan to contract out their work.
He further denied that at any time had he stated that the Respondents had abandoned
such plans because the employees under him were no longer interested in the Union.
At the hearing, Edward McLeod testified at great length as to his relations with his
younger brother and the extent to which the involvement of the latter in the union
movement had provoked a family quarrel. It was apparent from his highly emo-
tional testimony that relations between the two brothers were severely strained. It
was equally clear that Edward McLeod bitterly resented his own brother's participa-
tion in the union campaign. The testimony of Turcotte and Levasseur, related above,.
was credible, although neither of these witnesses was completely persuasive .8 The
testimony of Klinnie, however, was convincing in every respect and withstood a
searching cross-examination. Since his testimony was largely corroborative of the
substance of the testimony of Levasseur and Turcotte, I shall also credit their testi-
P The quotations are from the testimony of William McLeod.
8In his brief, counsel for the General Counsel urges that Turcotte's pretrial affidavit,
rejected at the hearing, and placed in the rejected exhibit file, should be received in evi-
dence. Prior to cross-examination of this witness, counsel for the Respondents requested
and were given this affidavit. Although this document remained in the possession of the
attorneys for the Respondents throughout Turcotte's cross-examination, the latter was
not asked any questions about this affidavit. Thereafter, General Counsel offered the
affidavit in evidence on the ground that it would corroborate the witness and explain any
conflict in his testimony. Since opposing counsel had asked Turcotte no questions about
his affidavit on cross-examination, there were no conflicts about it in the record which
rendered the entire affidavit admissible. Equally unpersuasive is the General Counsel's
argument that it should be received for corroborative purposes. Turcotte having been at
the hearing and available for examination, the affidavit has no more standing than any
other self-serving statement. For these reasons, the original ruling, whereby this exhibit
was rejected, is now reaffirmed.
LIPMAN BROS., INC., ETC. 1357
crony, which I find to be more credible than that of Edward McLeod .9 ' It is also
my conclusion that the testimony of William McLeod as to statements which he
attributed to Talbot and Desjardin is credible , notwithstanding the denials of the latter.
For these reasons I find that during the preelection period , Edward McLeod did tell
various members of the road crews that if the Union came in the Respondents would
contract out the work and that later; during the month . of September, he told Klinnie
and others that the Respondents had decided that this would not be necessary be-
cause it did not appear that the road crews were backing the Union any longer.lo
Lester Dutil , one of the employees active in the organizational campaign , testified
that on or about July 25, he was accosted in the plant by Clem Poulin , foreman of
the eviscerating room , who questioned him about some authorization cards which
he had in his pocket . According to the employee , the cards were protruding from
his pocket when Poulin came up and asked that Dutil hand the cards to him. Dutil
testified that when he told Poulin that he had not been passing out the cards, the
latter then questioned him as to what he was doing with them . Poulin did not testify.
The testimony of Dutil was both credible and undenied . Personnel Manager Des-
jardin testified that he had spoken to several of the employees , including Dutil, about
handing out cards while at work. He stated that in so doing he was acting in con-
formity with a management rule which forbade solicitation for the Union during
working hours. He conceded , however, that he had never told the employees about
such a rule and, further , that the Respondents had never posted a notice to the
employees that such a rule was in effect.
One other incident must be considered . LeBel testified that about 3:45 a.m. on
September 21, the second day the election was scheduled , he went to the Respondents'
Augusta plant to engage in a last-minute campaign effort . According to LeBel, as
he was crossing the highway in front of the plant, he narrowly escaped being run
clown by a car which was driven by Frank Lipman . As LeBel described the incident,
while he was walking across the road, Lipman 's car swerved toward him and came
to a stop within inches of where he was standing . Frank Lipman testified that on
this morning he received a report that someone was trying to break in the plant
and that as a result he hurried to the premises and parked near the entrance where
LeBel happened to be. Lipman denied that he had come near LeBel or that he had
deliberately attempted to run him down. Although Lipman 's account as to the
alleged break-in was rather implausible , I am wholly unconvinced that on this occa-
sion he made an attempt to inflict any bodily harm or injury on LeBel or on any
other union organizer.
B. The discharges; findings and conclusions with respect thereto
1. Simon Gilbert
This employee was first hired in March 1962. He worked in the eviscerating room
at an operation which was known as reversing and drawing. When originally em-
ployed he received $ 1.15 an hour . At the time of his discharge , on August 6, he
was getting $1.30.
Gilbert was one of the first employees to become active in the Union, and was
,one of those whom LeBel appointed to the plant organizing committee . He actively
solicited his coworkers to join the Meat Cutters and credibly testified that from the
latter part of July until his dismissal he secured signed authorization cards from some
35 to 40 ,fellow workers . On one occasion about 2 weeks before his discharge when
° In making this finding , I have considered the testimony of Clifford Wilson III , Richard
Shaw, and Ernest Mason . The three last named were also members of the road crew and
testified on behalf of the Respondents . All of them testified that they had never heard
Foreman McLeod make any of the statements which the General Counsel ' s witnesses
.attributed to him. On the other hand, Wilson testified that the crew members often saw
McLeod for only a few minutes each day, and spent the rest of their time on duty on the
road . According to McLeod , he had over 50 employees in his supervision . Under these
circumstances , I have not considered significant the fact that the three foregoing named
-crew members stated that they had never heard him make the remarks in question.
10 William McLeod also testified that on January 4, 1963 , and after his brother learned
that he had been subpenaed to testify, Edward McLeod told him that "Harold Lipman
wants you to go on his side in court ." This statement was denied by Edward McLeod.
However, in this instance , as earlier , I find that William McLeod was the more credible
.of the two.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he met with LeBel and Matthew as they were distributing handbills in front of the
plant, he was observed by Harold Lipman and Clement Desjardin . About a week
later Gilbert was outside the plant assisting in the distribution of union leaflets
when he was again observed by Personnel Manager Desjardin . On August 6 he was
discharged.
Gilbert 's duties required that he work at a trough where running water was
sprayed out from an adjacent pipe for use in the eviscerating process. According
to Gilbert , early on the morning of his dismissal he noticed that the water was
flowing too rapidly from the outlet and he immediately sought out Gertrude Keller,
his forelady, to ask for a pair of pliers to reduce the water flow. Gilbert testified
that Keller told him she did not have a pair of pliers at the time.ll According to
Gilbert, at this point , because the water was spraying out over the trough , he located
a poultry shears , known as a neck -cutter , and, using this, he adjusted the water flow.
Immediately thereafter, Raymond Duperry , assistant foreman of the eviscerating
room , came to Gilbert and ordered that he report to Clem Poulin , the foreman.
When the employee complied , Poulin told him that he was being dismissed for
having used the neck-cutters to turn down the water.
Roger Lavallee, another employee in the eviscerating department , who was also
on the union organizing committee , testified that on the day after Gilbert 's discharge,
Assistant Foreman Duperry came to him and warned , "Draw your birds right, or
you are going to get fired . You're next on the list. . . . We fired one yesterday." 12
Gilbert and several other employee witnesses for the General Counsel, Roger
Lavallee , Daniel Lemalin , and Laurence Dutil , testified that other employees, and
even Forelady Keller, had occasionally used neck -cutters to turn down the water.
According to Keller , although there was no written rule against the employees ad-
justing the water flow, she had told all of them not to do this . She testified, how-
ever, that she had never specifically pointed this out to Gilbert . When asked whether
she herself had ever used a pair of neck -cutters to turn off the water she replied,
"Not to my knowledge ." Miss Keller conceded that she had never seen Gilbert
use the neck-cutters for that purpose prior to the morning in question . She also
testified that she could not recall that any other employee had been discharged for
having done this.
Personnel Manager Desjardin testified that Gilbert was discharged for having
damaged the neck-cutter in adjusting the water faucet. The Respondents offered a
pair of poultry shears in evidence . Gilbert denied that they were the same as the
pair he had used. However , he conceded that they were the same type. I will accept
the Respondents ' testimony that the exhibit is the identical shears which Gilbert had
used . An examination of this exhibit establishes that it was clearly an abuse of the
tool for Gilbert to use it as a pliers substitute , for in so doing he could not avoid
damage to the sharp cutting edge . On the other hand , it is equally apparent that
the blade of the exhibit is not damaged irreparably and that it could be resharpened
or, if necessary , the damaged blade could be replaced . Desjardin testified that the
blades are repairable and that the entire cost of a new pair of shears is $2.95.
The General Counsel alleges that Gilbert was discharged for his union activities
and not for destruction of company property , as alleged by the Respondents. The
evidence is clear that Gilbert damaged the pair of poultry shears in question. It
is equally manifest that the damage was somewhat less than $ 3. The Act, of course,
in no way compels an employer to tolerate , or condone , negligence or willful destruc-
tion of tools, equipment, or property . On the other hand, such an alleged cause for
an employee 's dismissal is not a defense if it is a pretext and not the real reason.
Here, the discharge of Gilbert for damaging a tool valued at less than $ 3 would
be a severe penalty in the absence of a history of repeated violations of a rule on
that subject . There was no contention , or evidence , that he was a habitually care-
11 The water pipe had a faucet from which the faucet :handle had been removed . Accord-
ing to Desjardin , there were 115 such faucets in the eviscerating room. Several years
earlier the supervisors had removed all of the faucet handles in an effort to prevent in-
discriminate control of the water by the employees . Since that time an employee seek-
ing to change the water flow must get a faucet handle or a pair of pliers from one of
the supervisors.
12 The quotation is from Lavallee 's testimony . The latter was a credible witness.
Duperry acknowledged that he knew about Lavallee 's union activities , but he denied hav-
ing made the remark in question. I find that Lavallee was the more credible.
LIPMAN BROS., INC., ETC . 1359
less workman . Nor was there any evidence of prior complaints against him.13 The
record is clear that Gilbert had been extremely active on behalf of the Union. It is
also plain that the Respondents had knowledge of this fact . Neither Desjardin nor
Harold Lipman denied Gilbert's testimony that both of them had been nearby when
he had been talking with LeBel and Matthew, on one occasion, and that, a short
while later, Desjardin had been nearby when Gilbert was distributing union hand-
bills. In addition , there is the evidence that the day after his termination , Duperry
warned Lavallee, an associate of Gilbert 's on the organizing committee , "You're
next on the list ..... We fired one yesterday." In the light of the foregoing facts,
it is my conclusion, and I find, that the reason offered by the Respondents for the
abrupt dismissal of Gilbert was a pretext and that the real reason for the extreme
penalty imposed on him was the fact that he was one of the most active advocates
of the Union among the employees. Angwell Curtain Company, Inc. v. N.L.R.B.,
192 F. 2d 899, 903 (C.A. 7); N.L.R.B..v. J. A. Booker, d/b/a Atlantic Stages, 180
F. 2d 727, 730 (C.A. 5); N.L.R.B. v. English Mica Company, 195 F. 2d 986, 987
(C.A. 4). By such conduct the Respondents violated Section 8(a)(3) and (1) of
the Act.
2. Robert G. Duplessis
This employee was hired in June 1958 . Thereafter he worked in the eviscerating
department . Although his employment was not continuous , at the time of his dis-
missal he had worked at the Augusta plant for over 3 years.
Duplessis signed a union card in mid-July when LeBel and Matthew came to his
home. A short time later he was appointed to the organizing committee and in the
following weeks he actively solicited his coworkers to join the Union. During this
period he secured from 35 to 40 signed cards from fellow employees. On two oc-
casions he assisted LeBel and others in. distributing handbills at the plant entrances.
In both instances he was observed by Poulin, foreman of the eviscerating room, and
by Barney Lipman, president of Lipman Brothers. On another occasion, during
a noon hour when Duplessis was passing out authorization cards to employees in
the plant lunchroom, both Poulin and Duperry watched him.14 On August 29 he was
discharged. The General Counsel alleges that Duplessis was discriminatorily ter-
minated, whereas the Respondents aver that he was dismissed for kicking Mary
Tuttle, a lady coworker.
Duplessis, Tuttle, and many other employees worked side by side on a processing
line in the eviscerating department. According to Duplessis, while at his job on
the morning of August 29, he needed Tuttle's attention for a moment in connection
with their work. Another employee, Roger Lavallee, had the station between him
and Tuttle. Duplessis testified that because of the noise in the room, it was difficult
to hear anyone speak and in order to attract Tuttle's attention he leaned behind
Lavallee and nudged Tuttle's boot with his foot.is According to Duplessis, at that
point, Tuttle turned to him and stated, "Just because you're in the Union, that doesn't
mean you can boss everybody on the line." 16 Apparently nothing further was said
at the time. According to Duplessis, however, about 15 minutes later Assistant Fore-
man Duperry spoke to Tuttle and shortly thereafter, following a conference between
Duperry and Poulin, the employee was ordered to the main office.
Duplessis testified as follows with respect to the subsequent developments: When
he arrived at the plant headquarters, Frank and Harold Lipman were talking with
three policemen. Immediately upon his arrival the police took Duplessis into one
of the private offices where he was asked if he had signed a union card. After
Duplessis answered in the affirmative, he was asked if he had kicked Mary Tuttle.
"The Respondents in their brief refer to certain ambiguous testimony on the part of
Lemalin, another employee, to the effect that he had heard that Gilbert had been warned
prior to his discharge. An examination of this testimony, however, discloses that Lemalin
was repeating no more than hearsay which had come to him subsequent to Gilbert's dis-
missal. As noted earlier, Forelady Keller could not recall having seen Gilbert misuse the
poultry shears on any other occasion and she gave no testimony of having reprimanded
him in any earlier instance.
14 This finding is based on the credible testimony of Duplessis.. Poulin did not testify.
Duperry denied that he ever observed Duplessis in the lunchroom on the occasion in ques-
tion, but he did not deny having knowledge of Duplessis' union activities.
11 From the record it appears that because of the amount of water used on the process-
ing line, most of the employees wore aprons and boots.
11 A short time before Duplessis had asked Tuttle to sign a union authorization card
but she had declined.
-1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This he denied, with the statement that he had only nudged her. At that point Tuttle
was brought into the room and asked if Duplessis had kicked her. She denied that
he had and stated that he had only nudged her on her left ankle. The police then
asked if she cared to press charges and she declined with the statement that she did
not want to go to court. At this point Duplessis was taken out of the room and
Lavallee was brought in for an interview.
Lavallee testified as follows: One of the foremen ordered him to report to the
office that morning where he was questioned by the police in the presence of Mary
Tuttle. One of their first questions was whether he was trying to drive Tuttle to
sign a union card. After Lavallee denied that he had such an intention the police
asked if he had seen Duplessis kick the lady. Lavallee replied that at the time he
was busy at his own job and had seen nothing. At this point, the police again
:asked Mary Tuttle if she cared to press charges sand she replied in the negative.
Duplessis testified that at the conclusion of the police interview with Lavallee,
Frank Lipman asked Tuttle to step into his office and that about 20 minutes later
Lipman came out of his office and stated, "We'll press charges." Duplessis was
discharged immediately. Frank Lipman testified that on the morning in question,
after he had talked with the police officers, with Tuttle and with counsel for the
Company, he decided to terminate Duplessis at once.
The testimony of Duplessis and Lavallee as to their interviews with the police and
-as to Tuttle's statements in their presence was credible and it was neither denied
nor contradicted . Tuttle was not called as a witness and no explanation was given
for her nonappearance.
The Respondents offered testimony as to a plant policy whereby any employee
involved in a fight while on duty is subject to immediate discharge. Desjardin testi-
fied as to several instances when employees who had engaged in fighting were
discharged. He conceded, however, that in none. of these cases were the police
called to the plant, nor did the Company volunteer to provide counsel for the person
assaulted, as was done on behalf of Tuttle.17
There is no evidence that Duplessis had been a disciplinary problem at any time
in the past. He himself testified, without contradiction, that Poulin, foreman of
the eviscerating room, had, on occasion, complimented him on his work. The
Respondents urged the gravity of the offense with which this employee was charged.
On the other hand, in view of the fact that Tuttle did not testify, in the present
state of the record there is nothing to establish that on the day in question Duplessis
did anything more than nudge his coworker. Duplessis had been very active in the
union campaign. It was undenied that his organizational efforts among the em-
ployees and his handbill-distributing activities had been observed by the plant
management . In the light of the foregoing evidence , in particular , his satisfactory
work record and the fact that there had been no previous complaints about his
conduct, it is my conclusion that the Respondents' explanation for his sudden and
peremptory dismissal was a pretext. I find, instead, that the real reason for the severe
penalty meted out to Duplessis was the Respondents' desire to rid the plant of a
well-known organizer for the Union. In discharging this employee for that reason
the Respondent violated Section 8(a) (3) and (1).l8
17 Frank Lipman testified that this was done for Mary Tuttle.
18 On October 23, 1902, at a hearing of the Superior Court for Kennebec County,
Duplessis pleaded guilty to assault and battery and was sentenced to pay a fine of $10
and costs of $2. This record was offered by the Respondent and received in evidence.
Upon consideration of this evidence it is my conclusion that in view of the fact that
Duplessis was discharged on August 29 and that the Respondents ' decision to terminate
him was not dependent on the outcome of any criminal action , the subsequent outcome
of the assault and battery case can have no relevance to the question of what was the
real motive for the Respondents ' dismissal of this employee 7 weeks earlier. It is true,
of course, that if , on October 23, Duplessis had pleaded guilty to aggravated assault and
battery and had been sentenced to pay a heavy fine and /or serve a jail term there would
arise the question of whether he had forfeited his right to reinstatement , even if he had
been unlawfully terminated . Here, however , the imposition of no more than a $10 fine
makes manifest that no such serious crime was involved. The mere touching of another
person can constitute an assault in law. Duplessis ' guilty plea admitted no more than
that. In addition , there are many factors , apart from actual guilt , that may have
prompted the defendant to enter such a plea , rather than go to trial and incur the expense
of litigation in the superior court and perhaps an appellate tribunal as well. Con-
sequently , it is my further conclusion that the record of Duplessis ' -conviction for this
minor offense does not warrant any provision in the remedial order that would bar his
reinstatement.
LIPMAN BROS., INC., ETC. 1361
3. Charles Bolduc
This employee wasterminated on.September 14, 1962. At that time he had been
working for the Respondent approximately 4 years. Bolduc went on a vacation
during the third week in July and during the course of this period Matthew induced
him to sign a union authorization and to accept a supply of cards for soliciting his
coworkers to do likewise. Thereafter he actively supported the campaign for or-
ganizing the plant . According to Bolduc, he approached about 100 of the employees
in the course of his canvass and secured about 35 signed cards from this number.
Bolduc returned to work the fourth week of July. He testified that shortly after
reporting for duty, Roger Rafford, his foreman , told him, 'I hear you are a union
man" and that he replied in the affirmative . 19 According to Bolduc, his troubles
began immediately thereafter . Within a half hour Rafford told him that his old
job of releasing birds from the killing line, a function he had been performing for
some while prior to , his vacation , had been discontinued . The foreman then
assigned him to another job known as pushing feathers and in so doing commented
to Bolduc , "You have had it easy enough around here long enough . You're going
to do some work ." Bolduc testified that he was .compelled to perform this job in a
very hot, uncomfortable room and that when he complained to Rafford that he
should not be doing this in view of his seniority , the foreman replied , "The Union
isn't in here . . . there is no seniority ." According to Bolduc, after about 2 hours
on this job, he was assigned to hang chickens in another very hot , uncomfortable
location . He remained on this latter work for about 6 weeks. Then , Duperry,
assistant foreman of the eviscerating room , told Bolduc that his current job was
discontinued and that thereafter he was to cut chicken legs. According to the
employee, this work had to be performed with a pneumatic cutter and required a
great deal of difficult, tiring effort . Bolduc further testified that throughout his
first day on the new assignment , Duperry remained close by and frequently criticized
his work in a loud, profane manner.
That evening Bolduc went to his doctor and secured a certificate to the effect that
he was under treatment for a chronic coronary insufficiency and should not perform
any strenuous work . The following morning Bolduc left this ' certificate with the
nurse on duty in the first-aid room at the plant, and then reported for duty. Accord-
ing to the employee , after he had been at work for some time he asked Edward
Maddox , a coworker , to relieve him for a few minutes while he secured a drink of
water . Bolduc testified that almost immediately Duperry appeared , ordered Bolduc
back to work , and admonished Maddox, "Don 't you relieve him again , or you know
what you are going to get ." This testimony was corroborated by Maddox who also
testified that on this same occasion Duperry told him that Bolduc was a "union
agitator and that he was going to see that he did some work." 20
Later that morning Desjardin came to Bolduc and asked that he report to the
company offices. When the latter did so, Frank Lipman questioned Bolduc about
his heart condition and asked why it was that he had waited so long to call it to
their attention . Bolduc told him his heart had not bothered him on his earlier jobs,
and that it was not until he had been given the strenuous work which Duperry had
assigned to him that he had difficulty . The conference was concluded when Frank
Lipman told the employee that he should take the rest of the day off, with pay, in
order that Bolduc 's doctor could be contacted?'
19 The quotation is from Bolduc's testimony . Raiford denied that be had asked this ques-
tion of the employee, but in this respect I find that Bolduc was the more credible witness.
20 Duperry denied that . he made this comment to Maddox. The latter, however , was the
more credible witness and I find that the conversation occurred substantially as he
testified.
21 Bolduc further testified that during the course of this meeting Frank Lipman ques-
tioned him as to why he had timed the speed of the processing line in the plant, com-
mented on a speech which Bolduc made at a union meeting the night before , engaged in
a lengthy discussion as to the merits of the organizational movement and during this
latter part of their conference ,, pointed out sections of a newspaper article while on his
knees beside Bolduc's chair . Frank Lipman denied that he had any such discussion with
the employee . According to the latter , the meeting ended with a promise to Bolduc that
his problem would be investigated and a request to the employee that he report to the
plant the next morning. Bolduc was not a persuasive witness . He was exceedingly
voluble and plainly given to exaggeration . On direct examination he testified that several
of his supervisors had treated him with a great deal of abusive profanity . Nothing about
this alleged profanity appeared in the prehearing ,affidavit which he had given the General
756-236-65-vol. 147-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of September 14, when Bolduc returned to the plant, Desjardin
told him to report to Bernard Lipman's office. There, Bernard Lipman told him
that the only work available was a night watchman's job at the Respondent's grain
mill. When Bolduc protested that he wanted his old job in the plant, Bernard
Lipman told him that because of Bolduc's heart condition, for humanitarian reasons
he did not think the Respondents should send him back to the processing line and
also because of their insurance liability under the Workmen's Compensation Act
he could not permit a man in Bolduc's physical condition to work in the plant.
Bolduc refused to accept the offer of employment as a watchman and received his
final paycheck that morning.
Bernard Lipman testified that after Bolduc brought to the plant health office a
certificate from Dr. Z. E. Matthews, he personally contacted the latter by telephone
and questioned him about the type of work best suited for an individual with Bolduc's
disability. According to Bernard Lipman, Dr. Matthews told him that Bolduc's
current work was too strenuous and that only "light" work would be satisfactory.
According to Lipman, he then asked the doctor if it would be safe to assign the
employee to a night watchman's job and that the response was, "Yes, definitely,
that's the type of job he should have." This testimony was undenied. Bernard
Lipman testified that Bolduc was never fired, but that he voluntarily quit when
offered a transfer to the watchman's post.
The General Counsel alleges that Bolduc was discriminatorily and constructively
discharged and ,that he was offered a night watchman's job at a remote facility of the
Respondents' 22 in order to isolate him from the rest of the employees and thus
curtail his organizational efforts. The Respondents contend that after Bolduc's claim
to bad health had been substantiated, he voluntarily quit when they offered him the
only type of work for which he was physically suited.
Although the General Counsel contends that the job which Bolduc had before
his vacation is still in existence there is no clear evidence to that effect. Rafford
testified that whereas for some while prior to his vacation Bolduc had been releasing
poultry from the line, after Bolduc came back from his vacation, a reorganization
of the processing line cut the number of employees in this unit from 22 to 10. For
this reason, according to Rafford, there was a need to retrain several of the men
who were left and Bolduc was one of them. Rafford further testified that for some
while prior to the hearing the job of releasing poultry on the line had been completely
eliminated.
On the evidence set forth above, it is clear that subsequent to his vacation Bolduc
was questioned about his union affiliation by Rafford and that later when the employee
complained about the working conditions Rafford's response included the comment
that "The Union isn't in here . . Thereafter, when Bolduc was assigned to
Duperry's supervision he was similarly harassed and that supervisor told Maddox,
another employee, that Bolduc was "a Union agitator and that he [Duperry] was
going to see that he did some work." On the foregoing findings, as well as the earlier
conclusions as to Duperry's involvement in the discriminatory. discharge of Gilbert,
it is my conclusion that after Bolduc became active in the Union, Rafford and Duperry
discriminatorily assigned onerous duties to this employee and that by condoning this
conduct the Respondents violated Section 8(a)(1) of the Act.
On the other hand, when Bolduc on September 13, sought to establish his in-
ability to perform strenuous work and supplied the Respondents with evidence of
his coronary trouble, 'the plant officials immediately contacted his doctor. Bernard
Lipman testified that the latter told him that the work which the employee had been
performing was too strenuous and that only light work, such as the proposed watch-
man's job, would be appropriate. Lipman's testimony in this regard was credible
and it was neither contradicted nor denied. The following morning Bolduc was
offered this type of employment. There is no evidence that any cut in wages was
involved. The employee, however, declined to accept the transfer. The Respondents
may have foreseen this development and may have welcomed his departure. Bolduc,
however, had provided them with the medical evidence on which the Respondents
Counsel. On cross-examination he was questioned as to why there was no reference to
this alleged profanity in the affidavit . Later , when asked if he had read through the
affidavit before he signed it, Bolduc flippantly replied, "I glanced at it." Although I have
given credence to some of Bolduc's earlier testimony , as noted above, his account of the
meeting with Frank Lipman on this morning was not convincing. Accordingly , I credit
Lipman's denials.
O The grain mill where Bolduc would have been on duty as a night watchman was
several miles from the main plant.
LIPMAN BROS., INC., ETC. 1363
could justify their decision to reassign him.- Under these circumstances it is my'
conclusion, and I find, that the General Counsel has failed to prove by a prepon-
derance of the evidence that Bolduc was discriminatorily terminated. Accordingly,
I shall recommend that the allegation to this effect in the complaint be dismissed.
C. The suspensions; findings and conclusions with respect thereto
1. Jane Sullivan
This employee was hired in February 1962.23 At the time in question she was
employed at general utility work in what was known as the cooking room where
prepared food products were processed and packaged. Sullivan attended a union
meeting on August 2 and signed an authorization card at that time. On this same
occasion she was appointed to the Union's negotiating committee. Thereafter she
actively campaigned among her coworkers for their support in the organizational.
drive and in the course of her efforts asked from 20 to 30 of them to sign
authorizations.
Sullivan testified that on August 18, Thomas Bragdon, one of her foremen, warned
her that her job was in jeopardy. According to the employee, on that date, after
Harold Lipman had come to the cooking room and had a conversation with Bragdon,
the latter told her that thereafter she was not to engage in any further conversation
with the other employees, that Harold Lipman knew she was on the "committee,"
and "that he wanted to get rid of you." Sullivan testified that later that same day,
Bragdon spoke to Sandra Kittredge, an employee in the adjoining section, and
thereafter this individual refused to speak to her. According to Sullivan, she sub-
sequently asked her foreman if he had told Kittredge to stop speaking to her and
he answered in the affirmative with the explanation that he had done so "For your
own good, because they will fire you if they catch you talking to her." 24
According to Sullivan, on September 20, she was ordered to appear before Harold
Lipman, Desjardin, and Talbot who were in the cooking room at that time. She
testified that when she did so, Desjardin stated that he had.learned that she had
threatened three of the girls who had signed union cards that unless they voted for
the Union it would be "tough" on them and that he would not tolerate this conduct.
According to Sullivan, she demanded that any of the employees who made this
allegation be compelled to repeat the charge in her presence, but that Desjardin
concluded the conference with the statement that he could not do this. Sullivan's
account of this meeting was credible and it was neither denied nor contradicted.
On September 24, Desjardin suspended Sullivan for 1 week, allegedly for having
used foul and abusive language toward Sandra Kittredge, a fellow employee. The
General Counsel contends that this suspension was discriminatorily motivated. To
the facts in connection with this matter we will now turn.
On September 21 Sullivan was a union observer at the election. During the course
of the day, when Sandra Kittredge appeared at the polls to cast a ballot, Sullivan
challenged her eligibility to vote. After the polls closed that afternoon -these two
employees encountered each other in the cooking room and it was there that the
incident in question took place. According to Sullivan, Kittredge inquired as to
the outcome of the balloting and she responded to this question with the comment,
"How rotten can you get. You were not eligible to vote and you voted anyway."
Sullivan testified that when Kittredge started to belittle the significance of this action,
she (Sullivan) started to leave the room and as she did so, Kittredge then declared,
"You have caused nothing but a stink since this started. I'll be glad to see you get
out of here."
On September 24, a Monday and her. next regular work shift, Thomas Rollins,
Sullivan's foreman at the time, told her to report to Desjardin's office. There,
according to Sullivan, Desjardin told her that he understood that in her argument
with Kittredge she had implied that that employee was a prostitute, that it was neces-
sary to take some -disciplinary action, that they would not discharge her, but that
23 Prior to this time she had worked at the plant for a short while in September 1961.
24 The quotations in this paragraph are from the credible testimony of Sullivan.. At
the hearing Bragdon denied having made any of the comments attributed to him and
further denied any knowledge that Sullivan was connected with the union effort or on one
of its committees. Bragdon, however, was not a convincing witness and I do not credit
his denials. Harold Lipman testified that he frequently visited the cooking room in the
course of his duties, but he denied having told Sullivan's foreman that he wanted to get
rid of this employee.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would use her as an example because she was "an agitator." Sullivan was then
told that she was being put on leave without pay for 1 week. The employee testified
that that evening Rollins, her foreman, came to her home to tell her he was sorry
about what had happened but that Harold Lipman ". . . wants you fired" and that
he had tried to keep her out of sight whenever Lipman came into the cooking room zs
Desjardin denied that he told Sullivan that he was making an example of her.
According to the personnel manager, the sole reason for his suspension of this em-
ployee was the character of the language she used in her argument with Kittredge.
At the hearing, the latter testified as to the terms which Sullivan allegedly applied to
her on the afternoon in question, and stated that she had never heard them used
before. In a prehearing affidavit she had averred that Sullivan had said to her,
"You cheap SOB you got your vote in didn't you?" When Kittredge testified,
however, the list of epithets which she attributed to Sullivan was considerably more
extensive 26 For a short while during the conversations between these two employees,
two men, Randolph Bourisk, a foreman, and Julius J. Goose, a customer of the
Respondents', were in the same room, and some distance from the participants.
Goose testified that he heard Sullivan use the terms, "You dirty b-" and "s
o- b-." Bourisk testified that he heard the first term used. Neither of these
witnesses was in the room throughout the entire exchange and both conceded
that they had not heard Kittredge's reply.
From the testimony of Bourisk and Goose it is my conclusion that, notwithstand-
ing her denials, Sullivan did use the language which they testified to having heard.
On the other hand, Kittredge was neither frank nor forthright in her appearance
on the stand and I do not credit her testimony insofar as she attributed various other
comments and obscenities to Sullivan. Equally unconvincing was Desjardin's ex-
pression of concern over the language used. Apart from the testimony of Bourisk
and Goose, there was evidence in the record that profanity and swearing among the
employees was not uncommon. This is a fact of industrial life which the Board has
noted more than once. Nebraska Bag Company, etc. d/b/a Nebraska Bag Process-
ing Company, 122 NLRB 654, 656, 668; Spitzer Motor Sales, Inc., 102 NLRB 437,
446-447, enfd. 211 F. 2d 235 (C.A. 2); Meyer & Welch, Incorporated, 96 NLRB
236, 237, 256. As found above, Sullivan's union activities had come under the
scrutiny of Harold Lipman over a month earlier. At that time Foreman Bragdon
told her that Lipman knew that she was on the union committee and that he wanted
to get rid of her. On September 20, •Desjardin charged her with having tried to
coerce three other girls at the plant into voting for the Union. Finally, the evening
after her suspension, Foreman Rollins came to her home to confide that he was sorry
about her difficulties at the plant and to tell her that Harold Lipman "wants you
fired." In the light of the findings set out above, it is my conclusion that Desjardin
did not suspend her because of the profanity she may have used in her exchange with
Kittredge, but because, as her foreman had told her, Harold Lipman knew she was
a union committee member and wanted to get rid of her. Accordingly, I find that
by her suspension the Respondents violated' Section 8(a) (3) and (1) of the Act.
2. Girard J. Pare and Edward Blair
On October 23, 1962, the foregoing named employees were suspended for 2 weeks.
without pay by the Respondents. The General Counsel alleges that this was for
discriminatory reasons and the Respondents aver that it was because both of these
employees were causing a disturbance among their coworkers in the packing
department.
Pare was a weigher in the aforesaid department where he earned $1.55 per hour.
He signed a union authorization card in July and thereafter actively solicited his
fellow employees to join in the organizational movement. He induced a number of
them to sign authorization cards and in August Pare was appointed to the plant
organizing committee. He testified that on one occasion during this period, Walter
Frazier, his foreman, questioned him as to whether he knew if any employees had
signed cards and that he responded in the negative 27 Soon thereafter Pare found
that his contacts with other employees were closely observed. Thus, early in
25 The quotations in this and the preceding paragraphs are from Sullivan's testimony.
w While on the stand, Kittredge wrote these out on a piece of paper which appears In
the record' as Respondents' Exhibit No. 14.
27 Frazier conceded that he knew Pare was actively working for the Union prior to the
election, but he denied having interrogated him about the matter. Frazier's dental, how-
ever, was not convincing and I do not credit it.
LIPMAN BROS., INC., ETC. 1365
September he had a conversation with Gilbert Marshall, an employee under Foreman
Roger Rafford. At the time, Harold Lipman was only a short distance away.
About 30 minutes later. Rafford came to Pare and told him, "You had better be
careful who you talk to around here . . . You know this morning when you was
talking to [Gilbert] . . . they called me upstairs and wanted to find out what you
was talking about." 28
On September 17, 1962, Pare was called to the plant office for a meeting with
Frank and Bernard Lipman. According to the employee, the following discussion
ensued: Frank Lipman announced at the outset, "We have been calling up a few
guys, asking them about their troubles and about the Union. What seems to be
your trouble?" Pare then told them that since his return to work following an
illness he had been getting no overtime. One of the Lipmans then replied, "Well,
if that's all you want, we'll fix you up." Frank Lipman thereupon commented that
if the Union came in the management would no longer be able to talk to the
employees directly and then stated: "We need your help. We can give you between
55 and 60 hours a week." Bernard Lipman then said, "I'll talk to your foreman,
Walter [Frazier] and tell him to give you between 55 and 60 hours a week." One
of the Lipmans concluded the meeting with the statement, "We'd like you to talk to
your boys and get them to change their mind, vote against the Union." After Pare
returned to his job, he told Frazier that he had, been promised from 55 to 60 hours
a week and the latter commented, "If that's all you wanted was time, why didn't you
tell me." Virgil Libby, farm supervisor for the Respondents, was in Frank Lipman's
office when Pare first entered the room. The following. day Libby saw Pare and
asked, "How did you make out with your boys?, Did you get any of them to change
their minds yet and vote against the Union?" Pare answered in the negative with a
comment that the employees had minds of their own and he could not change that.
A few days later Pare acted as an observer for the Union at the election.
The foregoing account by Pare was denied, almost in its entirety, by Frank and
Bernard Lipman, Frazier, and Libby. The Lipmans testified that they had had a
conference with the employee at the time and place in question but that it had
been concerned solely with reprimanding him' about a customer complaint. Thus,
Frank Lipman testified that this meeting was precipitated by a complaint from a
customer in Jamaica, New York, to the effect that several short-weight crates of
poultry had been received, that Pare had weighed the boxes before they left the
plant, and that he called the employee in that day to reprimand him about the mat-
ter. Bernard Lipman corroborated his brother about the occasion for the conference
with Pare and also testified that during the discussion the employee commented on
his lack of overtime. Bernard Lipman, however, denied that either he or his brother
offered Pare overtime or any other benefits if the employee would solicit his co-
workers to vote against the Union. The Respondents offered in evidence a tabula-
tion on Pare's hours of employment which established that he had had no overtime
subsequent to this conference. On the other hand, this document also proved that
he actually had not had any overtime since the week ending August 3, 1962, when
he had worked over 60 hours. Bernard Lipman conceded that he had heard rumors
about Pare's union activity and that at the time of this conference with the employee
he was engaged in the preparation of an election-eve speech to all the workers. He
denied, however, questioning Pare about the Union. Frazier denied having the
conversation with Pare which the employee attributed to him. Libby, while conced-
ing that he had been in the plant office for a short while on the morning that Pare
was there, denied that he had subsequently questioned the latter about the Union.
Although Frank Lipman manifested concern about the alleged customer complaint
on short weights, and' insisted that that was the sole purpose for summoning Pare to
the office on September 17, he conceded that he was not in charge of Pare's depart-
ment. Moreover, although he had summoned Pare to the office on this occasion
to talk directly to him about the alleged error in weights, Frank Lipman conceded
that he did not know whether Frazier, the employee's immediate foreman, or Talbot,
the plant superintendent, had ever discussed the matter with Pare. ' After a careful
review of the testimony of the witnesses as to this conference and its aftermath, as
well as my conclusions based upon their comparative demeanor at the hearing, I
find that Pare's account is the more credible and that the events of September 17
and 18 occurred substantially as he related them at the hearing.
Blair also worked in the packaging department. He signed an authorization card
on August 2 and thereafter actively campaigned for the Union. About 3 weeks
before the election, Frazier, his foreman, told'Blair, "If the Union comes in, you
28 The quotation is from Pare's credible, undenied testimony. Safford testified but was
asked no questions about this conversation.'
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
let me know what your pay will be for the next three months." 29 About t-a week
before the election Frazier ordered Blair to report to the plant office. According to
.the employee, on this occasion Bernard Lipman told him, "I hear you been passing
out papers," and when Blair denied this allegation, Mr. Lipman declared, "Don't
do it." Blair testified that early that day. and before starting to work he had, in
fact, placed some union pamphlets in the plant lunchroom. Bernard Lipman's testi-
mony in connection with this meeting was in substantial accord with that of the
employee. Thus, the plant president testified- that he had a complaint that Blair was
passing out union leaflets during working hours. When he questioned the employee
about the matter and the latter denied that he had been doing this, Lipman stated
that he concluded the discussion with the admonition to Blair, "Make sure. you
don't." At the hearing, Lipman testified that the Respondents had no objection to
employees' passing out union literature in the plant provided this was not done on
working time. However, he conceded that a rule to that effect had never been
posted and, further, that he had no knowledge as to whether the employees had any
knowledge of such a prohibition.
Blair. testified that on October 12, while at work in the plant, he made a comment
about professional employees which was overheard by Foreman Frazier. Accord-
ing to the employee, at that point, Frazier stated to him, "You're a professional
employee, too . . . you' go around house-to-house passing out leaflets, trying to
organize the Union." Blair testified that he then asked Frazier to whose home he
was referring, but that the foreman's only response was the statement "I
know " 30
On October 23, both Blair and Pare were suspended without pay for 2 weeks.
According to Blair, he was ordered to the plant office that morning and upon his
arrival there found Bernard and Harold Lipman, Desjardin, and Talbott in the room.
At the outset Bernard Lipman charged him with calling the other employees in his
department "company men." Blair testified that after Lipman had admonished him
in this connection he assumed the meeting was over and started to leave when Harold
Lipman ordered him back with the declaration, "We're not through with you
yet . No more. privileges for you." 31 According to Blair, Bernard Lipman
then concluded the meeting with the statement, "I don't know, but you may be
paying union dues . . . I am going to give you two weeks vacation." Bernard
Lipman testified with respect to the foregoing meeting: "I told him (Blair) that he
was causing a disturbance, taunting and raising particular cain down in this area,
interfering with production and for that reason I suspended him for two weeks . . .
he started to protest, but I don't remember what he said."
That same morning, Pare was called to the plant office for the same purpose, and
with the same officials of the management. According to Pare, Bernard Lipman. told
him that he had been "agitating" the employees and calling some of .them company
men. Pare testified that after he asked why he could not respond when others called
him a union man, Bernard Lipman concluded the meeting with the statement, "I'm
giving you two weeks layoff and if any more of this goes on, you will be laid off
again." At the hearing, Bernard- Lipman testified that he- told Pare "that he was
.causing a disturbance down there, and that they have been taunting the help . . .
•this was weeks after the election."
Frazier testified that prior to October 23, he warned Pare and Blair not to argue
with their coworkers. Both of these employees, however, testified that they had
received no such warnings- from Frazier or from any other supervisory personnel
prior to their suspension. Their testimony in this connection was credible and
2D The quotation is from the credible testimony of Blair. Frazier denied having made
this comment, but it is my conclusion that the employee is the more credible. The General
Counsel also alleges that this statement constituted an unlawful threat to reduce Blair's
wages. Perhaps if more testimony as to the circumstances of this conversation were
offered this contention could be -established. - The record, however, has nothing further.
Standing by itself this comment is, at the most, ambiguous. For that reason I find no
merit in this allegation of the General .Counsel.
30 The foregoing quotations are from Blair's testimony . Frazier denied that he had had
such a conversation with the employee. However, I do not credit this denial. Blair's
testimony was corroborated in part by Harold It. Collins, another employee who was
called as a 'witness by the Respondent . The latter testified that be heard Frazier talking
to Blair about contacting employees at their homes to organize the Union.
ai Harold Lipman denied that he had made the comment , "No more privileges for
you ... On cross -examination of Blair , h is pretrial affidavit was offered and this
contained no reference to such a statement by Harold Lipman . I credit the denial of
Harold Lipman that he made any such comment.
LIPMAN BROS., INC., ETC. 1367
persuasive. The Respondents called several employees in the packaging department,
Edgar Pooler, Sr., Richard Harrington, and Harold R. Collins, to support the con-
tention that Pare and Blair had become a morale problem for their coworkers.
Harrington testified that "They never swore at me or anything, just called me a
company man, things like that." Collins testified that they had called him a
"company man," "rat," and "stooley." Pooler testified to the same effect. In a pre-
trial affidavit this *same witness averred that there was considerable "ribbing" by all
sides. From the testimony of these witnesses it was apparent that fa debate about
the merits and demerits of the Union was carried on with considerable intensity
by the protagonists of both points of view. Collins, for example testified that he told
his coworkers in the packaging department that he would quit his job before he would
join a union.
The Respondents endeavored to establish that production suffered because of the
conduct of Pare "and Blair. This, however, was never substantiated. Bernard Lip-
man testified, "I don't know exactly what it was. There was definitely antagonistic
behavior there that wasn't conducive to any sort of operation . . . with threats
of.all kinds." On the other hand, the Respondents never offered any other evidence
of any decline in production that would support the contention that the two em-
ployees in question merited a 2-week layoff. Although the Respondent expressed
great concern about the prounion arguments and comments of Pare and Blair, no such
concern was manifested about the contrary and procompany points of view expressed
by other employees in their department. Moreover, Bernard Lipman conceded that
the Respondents had no rule against solicitation. Nor was there any evidence that
any other employees had been warned that they were not to discuss such matters
during working hours. From the record in this case, it is apparent that there was
much debate on the question of unionization by many of the employees on the
packing crew. Only Pare and Blair, however, were singled out for discipline. The
Respondents offered no evidence that any effort was made to mete out this type
of reprimand to any of the antiunion groups. Further, the Respondents offered
no conclusive evidence that either Blair or Pare had provoked the loss of any pro-
duction in that department. Consequently, it is my conclusion that their suspension
was discriminatory and that by such conduct the Respondents violated Section
8(a)(3) and (1) of the Act32
D. Concluding findings with respect to the alleged violations by the Respondents
of Section 8(a) (1) of the Act
Earlier herein I have found that the Respondents violated Section 8(a) (3) and (1)
by the discriminatory termination of Simon Gilbert and Robert Duplessis, and the
discriminatory suspension of Jane Sullivan, Girard Pare, and Edward Blair. I have
further found that the Respondents violated Section 8 (a)(1) by the discriminatory
harassment of Charles Bolduc and by the efforts used on July 31, 1962, to block the
normal exit doors and thus prevent the employees from being solicited by the Union.
In this context and with this background,'it is my conclusion, and I find, on the
facts set forth above, that the Respondents also violated Section 8(a)(1) of the Act
in the following instances:
(1) Harold Lipman's assault on Union Representative Detweiler on August 16.
(2) Personnel Manager Desjardin's statement to William McLeod, a known
union sympathizer, early in September that if the Union did not win the election
McLeod would be going back to Bangor, his home city.
(3) Supervisor Frazier's questioning of Girard Pare in July as to whether the
latter knew anyone who had signed union cards.
(4) The request by Frank and Bernard Lipman, on September 17, that Pare assist
them in 'getting employees to vote against the Union, coupled with a promise on
their part that Pare would get more overtime.
31 Both Pare and Blair testified that when they were suspended Harold Lipman ordered
them out the front door of the plant and forbade their return through any other section
of the building. Harold Lipman testified that although he could not recall whether be
had made this announcement to either of these employees, that no one, on the way out
of the building, Is permitted to return through the plant and contact, or bother, the other
employees. In his brief the General Counsel appears to contend that this conduct con-
stituted a separate act of discrimination by the Respondents. Apart from the fact that
this type of argument appears to fragmentize unduly the allegations in the complaint, it
Is my conclusion that Harold Lipman's explanation of the rule should be accepted.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) The admonition. to Edward Blair ,. given- by Bernard Lipman approximately
1 week before the election, that the employee was not to pass out leaflets 33
(6) Supervisor Edward McLeods statement to his road crew at various times in
July, August, and September that if the Union got in the work of the road crew
would be contracted out by the Respondents.
(7) Supervisor Edward McLeod's subsequent statement to Klinnie and other
employees approximately 3 weeks before the election that the Respondents were
giving no further consideration to contracting out the work of the road crews
because they had concluded that the latter were no longer for the Union.
(8) Supervisor Poulin's interrogation of Laurence Dutil, an employee, on July
25, as to the union application cards which the employee then had in his pocket.
(9) Supervisor Bragdon's threat to employee Sullivan on August 18 that if she
did not stop talking to employees about the Union she would be discharged.
(10) Supervisor Rafford's interrogation of employee Bolduc during the last week
of July as to whether Bolduc was a union man.
(11) Supervisor Edward McLeod's statement on January 4, 1963, to his brother,
employee William McLeod, that Harold Lipman wanted the latter to be on the
Respondents' side at the hearing.34
E. The alleged unlawful interrogation of an employee by the Respondents'
counsel; findings and conclusions with respect thereto
After the hearing opened and following the testimony of the witness Edgar Maddox,
the General Counsel amended the complaint to allege that under the pretext of
preparing the Respondents' defense to the complaint, its counsel had engaged in un-
lawful interference, restraint, and coercion. This was denied by the Respondents.
Support for the General Counsel's position rests solely on the testimony of the
above-named witness. According to Maddox, on January 7, 1963, the day before
the hearing opened, he was called from his work to a meeting in the plant con-
ference room where, in the presence of Personnel Manager Desjardin, he was
interrogated by Attorney Murray Brown, counsel for the Respondents. Maddox
testified that one of the first questions asked was whether he knew anything about
any union activities in his department and that he disclaimed any such knowledge.
According to this witness, he was then asked whether his foreman, Raymond Duperry,
had ever asked him about the Union and he replied to counsel in the negative.
Maddox testified that after Attorney Brown told him that Raymond Duperry, his
foreman, was charged with having interrogated employees as to their union activities,
he then asked him whether Duperry had so questioned him or threatened any
employee with discharge because of such activities. According to Maddox, he
told counsel for the Respondents that he knew of nothing which Foreman Duperry
had said which was either for or against the Union. On direct examination, Maddox
was asked the following questions and gave the answers which appear below:
Q. Was there any question by Mr. Brown in any fashion as to what you were
going to testify here today?
A. Well, he couldn't seem to understand why I was subpoenaed.
Q. What did he say to you?
A. Wanted to know what I was doing there, what I had to do.
Q. Where?
A. In the Courtroom.
Q. What did you answer to him?
A. I said I will find out tomorrow.
Desjardin, who was present throughout this interview, testified that at no time did
Attorney Brown ask Maddox any questions as to what his testimony would be, nor
3$ Lipman did not tell the employee when he could or could not pass out leaflets. At
the hearing he conceded that the Respondents had no published rule on the subject. A
blanket rule, such as the Respondents' official enunciated to the employee, forbids the dis-
tribution of literature by. employees at any time and violates Section '8 (a) (1) of the
Act. Stoddard-Quirk Manufacturing Co., 138 NLRB 615; Elias Brothers, 137 NLRB 1057.
as At the time, Supervisor McLeod knew that his brother had been subpenaed by the
General Counsel and that his testimony would be, presumptively, adverse to the Respond-
ents' Interests. McLeod's statement to his younger brother must, therefore, be construed
as an attempt to interfere with the testimony of a witness at a Board hearing. This con-
stitutes a violation of Section 8(a) (1). Duralite Co., Inc., 128 NLRB 648, 651.
LIPMAN BROS., INC., ETC. 1369
did he ask whether the employee belonged to a union. Desjardin further testified
that at the conclusion of the meeting Maddox volunteered the information that
he had been subpenaed by the General Counsel and that he would be at the hearing.
Earlier in this report, I have found that Maddox was, in general , a credible witness.
With regard to the instant matter, however, Desjardin's testimony, set out above,
was the more convincing. Accordingly, I find, contrary to the contention of the
General Counsel, that Attorney Brown did not interrogate Maddox as to what his
testimony would be at the Board hearing. In this connection, it is significant that
William McLeod, another witness for the General Counsel who was interviewed
by Attorney Brown on the same day as Maddox, testified that he was asked no
questions as to the subject matter of his forthcoming testimony. Although the
General Counsel called 16 witnesses to the stand, only Maddox offered any testi-
mony to support the allegation that counsel for the Respondents engaged in un-
lawful interrogation. As a result, the General Counsel plainly failed to establish
any pattern of unlawful conduct by opposing counsel . There remains for considera-
tion only the question as to whether Attorney Brown violated Section 8(a)(1) when
asking Maddox if he knew anything about union activities in his department. It
should be noted that this initial question asked of Maddox was not followed by others
about the employee's own union membership, organizational activities, or personal
involvement in the union campaign. Instead, this first question, as is obvious from
the record, was preliminary to a series of questions as to whether Maddox had any
knowledge of the facts in connection with Foreman Duperry's alleged unlawful ac-
tivities. The latter were related to the issues raised by the complaint and manifestly
permissible. Considered in this context, this single introductory question on which
the General Counsel so heavily relies, is most inadequate support for the serious
allegation which he has pressed with much vigor and determination both at the hearing
and in his brief.
It is indeed true that a respondent's counsel does not have unlimited latitude in the
interviewing of employee witnesses, all in the guise of preparing his case. Joy Silk
Mills, Inc. v. N.L.R.B., 185 F. 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914. On the
other hand, counsel may proceed freely with his pretrial preparation so long as his
investigation is concerned with the issues raised by the complaint. N.L.R.B. v. Katz
Drug Co., 207 F. 2d 168 (C.A. 8). On the,basis of the above findings, it is apparent
that the lines of inquiry pursued by counsel for the Respondents were "restricted
to questions relevant to charges of unfair labor practices and of sufficient probative
value to justify the risk of intimidation which interrogation as to union matters
necessarily entails .. (Joy Silk Mills v. N.L.R.B., supra, at 743.) More-
over, under the circumstances revealed in the present case, I am convinced that the
interrogation here involved was not for the "purposeful intimidation of employees"
(Joy Silk Mills, idem) which would put it beyond the pale of an attorney's privilege.
It is likewise relevant to note that all of this interrogation occurred after the com-
plaint had issued and the case set for hearing. The credible testimony here involved
reveals no more than a thoroughgoing effort on the part of an able and diligent
attorney to learn the facts "within the limits of the issues raised by [the] complaint"
solely for the sake of preparing a defense to the charges made against his client.
May Department Stores Company, dlbla Famous-Barr Company, 70 NLRB 94, 95,
enfd. 162 F. 2d 247 (C.A. 8), cert. denied 332 U.S. 808; The Great Atlantic &
Pacific Tea Company, 123 NLRB 747, 755-756, enfd. as to this point 277 F. 2d 759
(C.A.'5); Babcock & Wilcox Company, 108 NLRB 1622, 1624; C. W. Partee, dlbla
Partee Flooring Mill, 107 NLRB 1177, 1180; Carl S. Shields, dlbla Shields Engi-
neering & Mfg. Co., 85 NLRB 168, 175-176 .35 I shall, therefore, recommend that
paragraph 12 of the complaint be dismissed insofar as it alleges that the Respond-
ents' counsel violated the Act by. unlawful interrogation of Maddox as to his future
testimony at a Board meeting.
1. Case No. 1-RC-7052
On August 8, 1962, the Union filed a representation petition in the above-
numbered case. On August 30, the parties executed a stipulation for certification
upon consent election, pursuant to which an election by secret ballot was conducted
'° In his brief, the General Counsel relies , inter alia, on Hilton Credit Corporation, 137
NLRB 56, footnote 1; Texas Industries, Inc., etc., -139 NLRB 365; and Jackson Tile
Manufacturing Company, 122 NLRB 764, 766. These cases involved the questioning of
an employee as to statements made to a Board agent and, on their facts, are plainly
distinguishable from the issue here involved.
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among all employees of the Respondents (except for the statutory exclusions and
certain others) in a production and maintenance unit on September 20 and 21. The
tally of ballots cast showed that there were approximately 378 eligible voters and
that 378 ballots were cast, of which 175 were for the Petitioner, 169 were against
the Petitioner, and 34 were challenged. On September 26, the Petitioner filed timely
objections to conduct affecting the results of the election and on September 28 the
Respondents filed timely objections to the ruling of the Board agent as to the validity
of one- ballot. On November 2, the Acting Regional Director issued his consolidated
report on objections and challenged ballots, and in this report found merit only in
Petitioner's objection (b).86 Thereafter, the Respondents filed timely objections to
the aforesaid report. On December 6, in Case No. 1-RC-7052, the Board issued
an order wherein it directed a hearing on the issues raised by the petitioning Union's
objection (b). On December 14, 1963, the Regional Director ordered that the
above-numbered case and Case No. 1-CA-3931 be consolidated for hearing.
In its objection (b) the Union alleged that "The Company exercised surveillance
of union activities, called workers into their office for interrogation, made threats
and promises, both economic and otherwise." In his brief, the General Counsel con-
tends that evidence on this objection must encompass all incidents which occurred
between August 8, 1962, when the petition was filed, until the election. (Citing
Goodyear Tire and Rubber Company, 138 NLRB 453.) This assumes the appli-
cability of the rule established by the Board in the cited case. However, in Good-
year the Board included a proviso that the rule therein announced would be applica-
ble only to those cases wherein the petition was filed on or after September 17, 1962.
See Rockwell Manufacturing Company, Kearney Division, 142 NLRB 741, foot-
note 1. The petition in the instant matter having been filed on August 8, 1962,
the earlier rule announced in The Great Atlantic and Pacific Tea Company, 101
NLRB 1118, must be applied. In the latter case the Board established the cutoff
date for consideration of objections as the date on which a consent agreement was
executed. Accordingly, in the present instance, I find that the critical period in-
volved all dates from the time that the stipulation for a consent election was signed
on August 30 until the election.
From the findings set forth above, in connection with Case No. 1-CA-3931, it is
my conclusion that there is merit to the Union's objection (b). This conclusion is
based on the evidence as to the following incidents which occurred within the
critical period and all of which have been more fully discussed earlier in this report:
(1) On September 13, employee Bolduc was discriminatorily harassed by Fore-
man Duperry when the latter described Bolduc as "a union agitator" and stated that
he (Duperry) "was going to see that he did some work."
(2) Early in September Personnel Manager Desjardin threatened employee William
McLeod, a known union supporter, that if the Union did not get in, after the election
McLeod would be returning home.
(3) Early in September, Girard Pare, a known union adherent, had a conversation
with another employee which was observed by Harold Lipman. Later that same
day, Roger Rafford, foreman of the other employee, told Pare, "You had better be
careful who you talk to around here . . You know this morning when you was
talking to [the other employee] . . . they called me upstairs and wanted to find out
what you was talking about."
(4) On September 17, Frank and Bernard Lipman Basked Girard Pare that he.help
turn the employees away from the Union and at the same time promised him the
benefit of more working hours.
(5) Approximately 1 week before ' the election, Bernard Lipman told employee
Edward Blair that he had heard that the employee was passing out union leaflets
and that Blair was not to do it again.
(6) In September and during the period immediately before the election, Super-
visor Edward McLeod told Gerald Turcotte, Leo Levasseur, and various other
members of the road crews that if the Union came in the Respondents would con-
tract out the work. Later that month and prior to the election, McLeod told em-
ployee Klinnie and others that the Respondents had decided that this would not be
necessary because it did not appear that the road crews were backing the Union
any longer.
In the light of the foregoing findings, it is my further conclusion that the Respond-
ents' preelection conduct interfered with the employees' freedom of choice in the
selection of a bargaining representative.
se The Acting Regional Director made no ruling on another objection raised by the
Petitioner which concerned the alleged discriminatory discharge of Charles Bolduc, Simon
Gilbert , and Robert Duplessis.
LIPMAN BROS., INC., ETC. 1371
2. Case No. 1-CA-4080
Subsequent to the original hearing in Cases Nos. 1-CA-3931 and l-RC-7052,
Jane Sullivan quit the Respondent's employ and Leo Levasseur was discharged. The
General Counsel alleges that because both of these employees had testified in support
of the complaint in the aforenumbered cases, the Respondent constructively dismissed
Sullivan and discriminatorily terminated Levasseur. These allegations are denied
in their entirety by the Respondents.
A. The termination of Jane Sullivan
This employee worked in the cooking room at the job of making boxes from a
time shortly after she was hired in February 1962 until that department was closed
shortly before the election in the fall of that year. Sullivan was then transferred
to what was known as the cutup room in the eviscerating department where she
worked under Assistant Foreman Tom Rollins. In December, the latter supervisor
suffered a fractured hip and during the following month, at the time of the original
hearing in this proceeding, Sullivan's supervisor was George Violette.
Sullivan testified that the cookroom was reopened in January 1963, but that no
management representative asked that she return to work there. She further testified
that about a week. before that section was reopened, Rollins told her that four of
the original crew would not be reemployed in the cookroom and that she was one
of them. Sullivan testified that thereafter she continued to work in the eviscerating
department where she was harassed and overburdened to the point that she finally
quit on January 25, 1963.
According to Sullivan, for some time before and after the hearing she was assigned
to work on the giblet table and that, subsequent to the date when she testified at the
original hearing, her supervisors began timing her work. She further testified that,
whereas at one point there was no production quota at that table, after the hearing,
Violette first required that she fill 10 bags of giblets per minute and later increased
the requirement to 12 bags. According to Sullivan, on one occasion after Poulin,
head of the eviscerating department, had been at the table, Violette told her that
the foreman had been timing her and that if she did not keep up the required speed
she would be taken off the giblet table. She testified that when she protested that
she was meeting the production minimum, Violette commented, "I know it, but it
won't do you much good."
About the middle of January Sullivan was assigned to work on a machine known
as a gizzard peeler. She testified that because the table was very low, she had
difficulty stooping over it to perform the work and that this caused her to have
backaches. She remained on the gizzard peeler for 2 days and thereafter was off
work for a week because of illness.37 When Sullivan returned to the plant she was
sent back to the giblet table where her work was timed every day. On January 24,
she reported for work at the same location and after about 1 hour at the giblet table
she was assigned to do "stuffing" on the line. This was an operation that required
her to stand on a platform beside the eviscerating line and insert or "stuff" a bag
of giblets in each bird as it moved by her station. Sullivan testified that she had
performed this work on only a few occasions prior thereto. However, on this day
she was assisted by one other girl with whose help she was able to maintain the
necessary speed and keep up with the line.
Sullivan testified that when she reported for work on the morning of January 25,
she was on duty at the giblet table for only a short while when Raymond Duperry,
assistant foreman of the eviscerating room, told her that he wanted her to work
for him that day and that when he needed her he would come and get her. There-
after, Sullivan continued to work at the giblet table until the midmorning rest period
about 9:30. Then, shortly after resuming work at the giblet table, Violette again
assigned her to the production line where he told her to resume the "stuffing" work
she had been doing the day before. This time, however, she had no assistant and,
notwithstanding this fact, Violette told her that she 'would have to keep up with
the line. According to Sullivan, she was able to maintain the necessary speed for
a time, but when her shoulders began to ache she asked Violette to assign another
girl to help her. She testified that Violette did not answer immediately, but a few
minutes later, after an absence from the area, he returned to tell her that he had
no one to, assist her and that Poulin would not permit him to take her off. Accord-
ing to Sullivan, she then asked that she herself be permitted to speak to Poulin,
e' It was not alleged, however,, that this illness was related to her work or that any of
the alleged discrimination caused her to be oft sick.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but Violette told her that she would have to wait until the noon hour before she
could talk to the foreman of the department 38 Sullivan testified that she remained
on duty for another 10 or 15 minutes and then, when it was no longer possible
for her to keep up with the production line as it moved by, she went to Violette and
told him that she was quitting. She thereupon left the plant and did not return.
Foreman Violette testified that on the last day of Sullivan's employment he realized
that she was having difficulty keeping up with the line and that he himself had
helped her for awhile. He also testified that at the time he had no extra girls
whom he could assign to help her and that during the course of the morning he
asked both Duperry and Poulin to send him an additional employee to help Sullivan,
but that neither of those foreman had any extra personnel for such duty. He
further testified that Poulin, however, had promised that he might be able to send
him another girl to help out that afternoon. At that point, however, Sullivan quit.
Violette testified that other girls, experienced at "stuffing" work had stayed on the
line for as long or longer than Sullivan had on the morning in question. He also
testified that insofar as work on the giblet table was concerned, he timed all the
girls working there at least once a day for 1 minute each and that this was a practice
which he had been following for a long while. According to Violette, the quota of
12 bags of giblets per minute which he established was a uniform requirement which
all the female workers had to meet and that it was not difficult for them to reach
this minimum. Violette described work on the giblet table as relatively easy and
stated that there were other jobs in the room as well as in other sections of the plant
that were much more difficult. On cross-examination, Sullivan conceded that work
at the giblet table was considered one of the easiest jobs in the plant. She also
conceded that the same observation might apply to work at the gizzard peeler, had
she been of short stature. Her complaint in this last regard, however, was not borne
out by other. testimony in the record as to the height of the gizzard peeler, or by a
view of the machine at the plant.39 Violette did not testify at the original hearing.
He impressed me as a frank and honest witness whose testimony'must be credited.
The allegation that Sullivan was discriminated against was grounded, in part, on
her testimony that the cookroom was reopened in January and that she was never
recalled to work there. Her testimony as to the reopening of this department,
however, found no corroboration in the record. Thus, Bernard Lipman testified that
after the cookroom was closed in September 1962 it did not go back into production
until about March 15, 1963, that it was not in production in January 1963 and that
during that month no one at the plant was at work making boxes, the job which
Sullivan had performed in the cookroom during the preceding year. Bernard Lip-
man further testified that when the cookroom was reopened in March, production
was resumed, with some 15 to 20 employees and that at the time of the second hear-
ing they were on duty from 2 to 3 days per week. The plant president's testimony
was corroborated by Desjardin. On the basis of this testimony, it is my conclusion,
and I find, that the cookroom was not in production at any time from the date when
Sullivan testified at the original hearing on January 8 and the date when she left the
Respondents' employ on January 24 40 .
The Respondents established that within a week after Sullivan testified at the origi-
nal hearing she was given a 5-cent an hour pay increase. Desjardin testified that
during the second week in January, in conformity with his standard practice of
reviewing the .personnel records of all the employees at least once a month, he had
conducted such an examination and that, as a result , Sullivan and some 60 other
employees had been granted a 5-cent an hour raise . According to Desjardin, this
increase was effective on January 12. The employee's paycheck stub reflected gross
pay, total hours, various deductions, and her net pay, but it did not set out the hourly
rate. Apparently, none of the employees received a formal notification of the 5-cent
raise. In any event, Sullivan testified that she had never received any notice that
her wage rate had been increased.
as Poulin was general foreman of the eviscerating department.
'* Prior to the close of the bearing, I, accompanied by counsel, had a view of the plant
premises.,
40 On cross -examination , Sullivan was questioned extensively about her conversation
with Rollins after January 8. During the course of this examination she testified that he
told her at that time that "he was trying to keep me out of sight, that Harold Lipman
wanted me fired." This phrase was almost identical with testimony Sullivan gave at the
original hearing in January and which she attributed to a conversation with Rollins the
preceding September . Rollins obviously could not have made the comment to her in
January , for at that time he was not on duty at the plant , due to the hip injury which
he had sustained in December. '
LIPMAN BROS., INC., ETC. 1373
The General Counsel's theory that Sullivan had been the object of discriminatory
reprisal for her testimony and for her union activities appeared to proceed on the
assumption that the cookroom resumed production in January, that Sullivan was
discriminatorily denied an opportunity to return to her job of boxmaking in that
section, and that thereafter she was harassed and overworked by Violette and other
supervisors to the .point where she was forced to quit. As found above, however,
the cookroom did not go back into production until March. During the short period
that elapsed from January 8 to 25 she worked at several assignments, but the record
established that this was not unusual in a plant where much of the work did not
require a high degree of skill and the employees frequently had to be prepared to act
as replacements for absentees. It is also true that Violette timed her work, but the
evidence is equally clear that he also timed the work of the others with the same
frequency at least once each day. Finally, there is the undisputed fact that on
January 12 Sullivan was given a pay raise. On the basis of the foregoing, it is my
conclusion, and I find; that the General Counsel has failed to prove by a preponder-
ance of the evidence that the Respondents caused the termination of Jane Sullivan
in violation of Section 8(a)(4), (3), and (1) of the Act. I shall, therefore, recom-
mend the dismissal of so much of the amended complaint as sets forth this allegation.
b. The discharge of Leo Levasseur
This employee was a leadman on one of the Respondent's road crews. Harold
Lipman was the plant official who had overall responsibility for this operation and
Edward McLeod was the general foreman in charge of the road crews which, as
found earlier, included some 50 men. McLeod had, among others, 3 road foremen,
each one of whom had a crew of 12 or more men. These crews included several
employees classified as "catchers," two leadmen designated as "head catchers," and
the necessary number of truckdrivers. At an early hour each morning the crews
were dispatched by McLeod to the numerous poultry farms from whence they
transported the chickens to the Respondent's Augusta plant. Alfred Benner was
the foreman of the crew on which Leo Levasseur was one of the leadmen. Benner
testified that his crew picked up an average of 80,000 birds 41 a week.
Benner testified that Levasseur had been his leadman for about a year and that
he "did [his work] all right." On January 9, 1963, Levasseur appeared as a witness
for the General Counsel at the original hearing. At that time he testified that
General Foreman McLeod told the employees prior to the election that if the Union
won the election the work of the road crews would be contracted out. As found
earlier herein, I credited this testimony over the denial of McLeod.
On February 4, 1963, Levasseur was discharged. The General Counsel contends
that the employee was discriminatorily terminated for having testified on behalf of
the General Counsel the preceding month. This is denied by the Respondents,
according to whom Levasseur was dismissed for failure to perform his duties as a
leadman. The evidence in connection with this issue will now be considered.
Levasseur testified that about January 15, Foreman Benner told him that Harold
Lipman wanted to see him at the plant headquarters and that on reporting to that
official, Lipman asked him, "How come you testified at the hearing?" According
to Levasseur, the conversation was quickly concluded after he replied that he had
appeared as a witness "because I wanted to." On or about January 25, Levasseur
went to the plant office to get the paycheck for a relative who was absent due to
illness. While there he again met Harold Lipman who, according to the employee,
once more asked him "How come I [Levasseur] testified against the Company at
the hearing." A few days later, about February 1, when Levasseur chanced to
meet both Harold Lipman and Personnel Manager Desjardin in•a corridor, Levas-
seur's concern caused hum to ask if he would be discharged for having testified at the
Board hearing. He was assured by the two officials that the Respondents would not
do this. Harold Lipman did not testify at the second hearing and Levasseur's testi-
mony as set forth above was undenied. His testimony as to the last meeting at
which Desjardin was present was. corroborated by the personnel manager. Since
Levasseur's testimony in this connection was credible and uncontradicted, I find that
the conversations with Harold Lipman occurred substantially as he related them.
Levasseur testified as to several conversations with Foreman Benner that are
relevant here. During the period of Levasseur's employment with the Respondents,'
Benner or McLeod frequently stopped at Levasseur's home and brought him to work.
"Throughout the hearing all witnesses referred to chickens as "birds." Hereinafter
they will be referred, to in the same manner.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Occasionally Benner had to wait for Levasseur when he had overslept. The em-
ployee testified that about 3 weeks before his discharge, Benner told him that McLeod
had ordered that henceforth he was not to wait in the event Levasseur overslept.
About this same time, according to the employee, Benner likewise told him that
McLeod had directed that his hours of overtime be reduced. Levasseur also testified
that about 2 weeks before his discharge Benner questioned him as to whether he had
been talking with any of the men about the Union and warned that "if anything
should happen, the least little mistake, it would be some way to get rid of me."
Levasseur's testimony about these conversations with Benner was neither denied
nor contradicted by the latter when he was on the stand. As a consequence I credit
the employee's testimony as set forth above42
Early on the morning of 'February 4, Benner and his crew left the plant for a
scheduled pickup at the farm of one Archi'lle Bisson located approximately 35 miles
from Augusta. They arrived at their destination shortly after 3 a.m. In keeping
with their usual practice, on arrival at the farm, Benner contacted Bisson to get the
necessary information as to the particular barn and pens where the birds were to be
found. Immediately thereafter Benner relayed his instructions to Levasseur and the
latter, accompanied by Calvin Lewis, another crew member, proceeded to the barn
in question.
The process of loading poultry requires some degree of skill and among the hazards
that the crew members must endeavor to prevent is any degree of panic among the
birds. Thus, the loading operation is carried out in the early hours of the morning
when, with only a minimum of light and with all possible quiet, the crew of catchers
enter a barn, fill a large portable crate with birds, and slip it through an open
window onto a trailer truck that is parked outside. This process is repeated until
the entire pickup project is completed. Any untoward noise, too much light, or
various other factors may cause the birds to become excited and panic. When this
happens several thousand may rush to one side or the other of their pen and the
ensuing confusion, referred to by the crew members as a "pile up," may result
in the birds scrambling on top of one another in a welter of poultry 2 or 3 feet high.
In an emergency of this character the catchers must act quickly to separate the birds
and to prevent those at the bottom of the pile from smothering.
On the morning of February 4, a pileup occurred at the Bisson farm and McLeod
charged Levasseur with responsibility for the resultant loss. The General Counsel
relied heavily on the testimony of Levasseur as to this incident. It was as follows:
On the morning in question, Levasseur and Lewis proceeded into the poultry barn
and set up two catcher crates in a pen that contained some 2,000 birds. As they
were doing so, the driver of one of their trailer trucks, then outside the building,
suddenly turned on his truck lights and raced the engine to keep from getting mired
in a snowbank. When this occurred the birds, both in the pen where Levasseur and
Lewis were working and in an adjoining pen, began to panic. Levasseur then began
walking along the walls of the pen, where the crates had been deposited. This was
the usual technique of the catchers' in their design to keep the birds from accumu-
lating in a disastrous pileup along one wall. In the meantime, Lewis leaped into
the adjoining pen where a pileup was developing and there began to separate the
birds from a mound of poultry that was already 3 feet high. Levasseur testified
that Lewis asked for his help but that he could not accord any because at that
moment he was himself engaged in preventing a similar occurrence in his own pen.
The entire incident covered only a brief span. Levasseur estimated that it transpired
within 5 minutes. Lewis testified that it occurred within only 2 minutes.
The testimony of Lewis, on which the Respondents rely, was as follows: Almost
immediately after he and Levasseur entered the barn a pileup began in the adjoining
pen. Without waiting for Levasseur to give him any orders he rushed into this pen and
began the process of separating the accumulation of poultry. According to Lewis,
he called to Levasseur for help as he was going into the other pen and twice there-
after, but Levasseur never came to his assistance. Lewis estimated that about' 2
12 In connection with his testimony about the conversation with Benner on reduction of
his overtime, Levasseur also testified that thereafter he did not receive certain overtime
opportunities which, as'a leadman, he had previously enjoyed. This testimony, however,
was not borne out by the payroll records which the Respondents introduced. These
established that Levasseur worked some overtime every week during the month of Janu-
ary. During 1 week when Calvin Lewis, another crew member, was not on duty,
Levasseur's paycheck was higher than it had ever been. During this ' same period
Levasseur continued to receive more overtime than Lewis ' or Arthur Perkins, both fellow
crew members, but whether he received as much , more'than , or less, than , other 'leadmen
In, the Respondents' employ during this period does not appear from the record.
LIPMAN BROS., INC., ETC. 1375
minutes elapsed between the moment when he first called Levasseur and the instant
when he called him the third time. A moment thereafter, Arthur Perkins, another
member of the crew, entered the barn and went to the assistance of Lewis. When
the emergency was over the crew found that 23 birds had smothered 43
Benner testified that when he entered the barn only a few minutes later he ques-
tioned the employees as to what occurred. According to the foreman, Levasseur
told him only that he was going around the pen he was in to prevent the birds there
from piling up and did not offer much further information. Thereafter, Benner
talked to Lewis separately and the latter told the foreman that while he was engaged
in dislodging the birds he had asked Levasseur for help but that the latter did not
come to his assistance and had stood around with his hands in his pockets. Im-
mediately thereafter Benner radioed McLeod at the plant headquarters 44 to inform
him that there had been a pileup at the Bisson farm and to report what Lewis told
him about Levasseur. McLeod testified that he received this message about 3:30 a.m.
and that immediately thereafter he set out for the Bisson farm, arriving there about
1 hour later. The general foreman thereupon launched an investigation in which he
talked separately with all the members of the road crew before he discussed the
matter with Levasseur. Lewis was the first one upon whom he called for an account
of the incident. According to McLeod, Lewis told him that Levasseur had failed
to assist him notwithstanding his call for help. Thereafter he talked with Perkins
and then with Levasseur. After McLeod concluded his investigation he returned to
the plant. Later that morning, when the members of Benner's road crew returned
to Augusta, they were summoned to the office of Personnel Manager Desjardin.
There, Desjardin interviewed Lewis, Perkins, and Levasseur, in that order, and
when he had completed his interviews, the personnel manager told Levasseur that
Lewis had complained about his conduct and that he was being discharged, effective
at once.
Benner conceded that after talking with Lewis on the morning in question he did
not ask Levasseur for any explanation as to why he did not help his fellow employee.
Levasseur testified, without contradiction, that Benner never charged him with
responsibility for the pileup. At the hearing Lewis related the account of the incident
in which he described in considerable detail what Levasseur was doing in one pen
at the same time that he (Lewis) was engaged in dislodging the piled up poultry in
the other pen. On cross-examination he conceded that at the time the building was
only dimly lighted and that his back was turned to Levasseur during most of the
period in question. He further conceded that on the morning of February 4 he and
Levasseur were not on good terms.
Both Levasseur and Lewis were young men. The latter was only 19 at the time
and had been working for the Respondents approximately 3 years. Neither was a
model of rectitude. The preceding year Levasseur had been off work for 4 months
while he served a term in the county jail for passing worthless checks. Lewis, on
the other hand, admitted that he also had been convicted of a felony. A short while
before the date in question, these two employees had been on a drunken spree
which resulted in Lewis' arrest on a charge of driving while intoxicated. As a
further aftermath of this escapade Levasseur was charged with supplying liquor to
a minor. At the hearing, Lewis acknowledged that subsequent to this incident
there had been ill feeling between him and Levasseur.
Benner, who had been a foreman 4 years, testified that the report which he radioed
to McLeod on February 4 was the first of its kind. Levasseur testified that he had
had about a dozen pileups during the course of the period that he had been a leadman
and that on no other occasion had he been criticized. In one instance , when 12 birds
had been lost, Benner had questioned him about the matter, but had never inter-
rogated any member of the crew. Benner admitted that during the course of the year
that Levasseur had been his leadman he could not recall any instance in which the
employee had failed to handle pileups correctly. According to Benner , during the
course of a week's work it was not unusual for his crew to have from 20 to 25 birds
smother. He also testified that the loss of 12 birds in a pileup "isn't considered too
many " Levasseur testified, without contradiction, that on one occasion,
another leadman named George Massey had been involved in a pileup in which
130 birds were smothered and that Massey had- only been reprimanded. Neither
49 This was the figure as to which Foreman Benner testified. It was also the figure
given by Levasseur in his testimony and the same figure was used by McLeod when he
was on the stand . On the other hand , a routine report filed by Benner that morning lists
27 smothered birds. This discrepancy was never explained.
"The foreman of each road crew was equipped with a two-way radio to maintain con-
tact with the dispatcher's office at the plant in Augusta.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Benner nor McLeod testified that Levasseur had ever been warned that any involve-
ment in a pileup would result in his dismissal. On the other hand, Levasseur testified
that after the pileup occurred on the morning of February 4, Benner told him that it
would probably cost Levasseur his job and added, "it's just what they've been waiting
for to happen." Benner testified later in the hearing but never denied or contradicted
this testimony.
Levasseur had been hired in May 1960. In April 1961 he was terminated for
absenteeism, but a few weeks later he was rehired. Thereafter he was off work 4
months while he served the jail term which- has been adverted to earlier. Not-
withstanding his personal difficulties, Levasseur remained a leadman throughout
this period and was paid at the rate of $1.45 an hour while on duty. Further, in
December 1962, Harold Lipman loaned him $200 to enable him to go through
bankruptcy as a means of resolving his personal financial problems. Subsequent to
the hearing in January 1963, when Levasseur testified in support of the Union's
charges, Harold Lipman singled out this employee on two different occasions to
question him as to why he had testified against the Respondents. Levasseur's
testimony had contradicted that of General Foreman McLeod given at the same
hearing. Subsequent to the hearing, Foreman Benner told Levasseur that McLeod
had instructed him that he was not to wait for the employee on any morning when
Levasseur overslept and a short time later Benner warned that "if anything should
happen, the least little mistake, it would be some way to get rid of" him. After the
pileup occurred on the morning of February 4, Benner told the employee that "it's
just what they've been waiting for to happen." As soon as Benner radioed a report
which included Lewis' allegation that Levasseur had not helped him, McLeod set
out for the Bisson farm at once. Lewis, at the hearing, was a very flippant, in-
different youth. As found earlier, on the morning of February 4 when he made
the damaging report on Levasseur he, was still piqued about the aftermath of a
drunken carousal in which both crew members had engaged a short while before.
Nevertheless, when McLeod arrived at the Bisson farm he talked with Lewis and
the other employees first and interviewed Levasseur, his leadman, last. When he
returned to the plant, McLeod recommended that Levasseur be discharged and
Desjardin effected the termination that morning.
The union animus of both Harold Lipman and Foreman McLeod, as found earlier
in this report; was obvious at the original hearing. Manifestly, in the fulfillment of
his supervisory responsibilities McLeod was free to believe Lewis over Levasseur
and act accordingly. On the other hand, the only issue with which we are here
concerned is whether the true motivation for Levasseur's discharge was the em-
ployee's alleged failure to help Lewis avert the pileup or his alignment with the
union campaign and his having testified in support thereof at the Board hearing.
On the basis of the foregoing findings it is my conclusion that it was the latter
reason. In a not dissimilar situation the Court of Appeals for the Third Circuit once
observed that an employee there involved "apparently became intolerable only after
he had joined the union." N.L.R.B. v. Electric City Dyeing Co., 178 F. 2d 980, 993
(C.A. 3). Here an employee who, notwithstanding his numerous difficulties,
occupied a leadman's post and whom Harold Lipman had helped with a substantial
personal loan in December, found himself in disfavor the next month when he
appeared on behalf of the Union's cause at the Board hearing. On the basis of the
foregoing facts, I find that it was this factor, and not Levasseur's alleged dereliction
which motivated McLeod in effectuating this employee's termination. By this con-
duct the Respondent violated Section 8(a)(4), (3), and (1) of the Act and I so
find.45 Minnesota Manufacturing Company, Inc., 134 NLRB 124, 129-130. I fur-
15 One other matter remains to be considered . Lewis testified that on an occasion about
February 15, 1963, he met Levasseur in a tavern and that during their meeting the latter
acknowledged that it had been his fault that the birds had smothered on the morning of
February 4 and further stated that prior to reporting for work that morning he had been
drinking for a day and a half. . This testimony was received over the objection of the
General Counsel . Levasseur never denied having had such a conversation with Lewis,
but be did deny, credibly , that he had been intoxicated either on the morning in question
or the night before. In. this connection it should be noted that McLeod also conceded
that Levasseur' s drinking propensities had nothing to do with his discharge . Apart from
the fact that the circumstances under which Levasseur' s statement was uttered to ,Lewis
do not accord it the dignity of an admission against interest made under oath, I have
considered it against the entire background of this record. Even if it is considered as
an admission by Levasseur that he was negligent in his duty at the time in question, the
record herein , does not establish that under normal circumstances such negligence by a
leadman would result in summary dismissal. Moreover , "a justifiable ground for dis-
missal is no defense if it is a pretext and not the moving cause ." N.L.R.B. v. Solo Cup
Company, 237 F. 2d 521, 525 (C.A. 8).
LIPMAN BROS., INC., ETC. 1377
ther find , in the light of this employee's discriminatory , termination , that Harold
Lipman's interrogation of Levasseur with regard to the appearance of the latter as
a witness at the original hearing was coercive and a violation of Section 8(a) (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above , occurring in con-
nection with the operations of the Respondents described in section I, above, have
a close , intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor practices,
I shall recommend that they cease and desist therefrom and that they take certain
affirmative action of the type conventionally ordered in such cases as provided in
the Recommended Order below, which I find necessary to remedy and to remove
the effects of the unfair labor practices and tq effectuate the policies of the Act.
Since I have found that the Respondents discriminatorily discharged Simon Gilbert
on August 6, 1962, Robert Duplessis on August 29, 1962, and Leo Levasseur on
February 4, 1963, I will recommend that the Respondents offer them immediate and
full reinstatement, without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings that they may have suffered from the
time of their discharge to the date of the Respondents' offer of reinstatement. I will
also recommend that the Respondents make whole Jane Sullivan, Girard Pare, and
Edward Blair for any loss of earnings suffered as a result of their discriminatory
suspension .46 The backpay for the foregoing employees shall be computed in ac-
cordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289,
with interest computed in the manner and amount prescribed in Isis Plumbing &
Heating Co ., 138 NLRB 716. I will also recommend that the Respondents be re-
quired to preserve and, on request , make available to the Board or its agents , payroll
and other records to facilitate the computation of backpay due.
As the unfair labor practices committed by the Respondents are of a character
striking at the root of employee rights safeguarded by the Act, I will recommend
that they cease and desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondents are engaged in commerce and the Union is a labor organiza-
tion, all within the meaning of the Act.
2. By descriminating in regard to the hire and tenure of employment of Simon
Gilbert, Robert Duplessis, Leo Levasseur, Jane Sullivan, Girard Pare, and Edward
Blair, thereby discouraging membership in the Union , the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8(a) (3)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of Leo Levas-
seur because he had given testimony at a Board hearing, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of Section
8(a)(4) of the Act.
4. By interfering with , restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8(a) (1) of the
Act. By such conduct in the period from August 30, 1962, to the date of the
election in Case No. 1-RC-7052, the Respondents prevented the holding of a free
and fair election among the employees.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The General Counsel has not proved by a preponderance of the evidence that
the Respondents : ( 1) violated Section 8 ( a)(3) and ( 1) by the termination of
Charles Bolduc ; (2) violated Section 8 (a) (4) by the termination of Jane Sullivan;
(3) violated Section 8 (a)(1) by the conduct of the Respondents ' counsel; or (4)
i8 As found earlier, on September 24, 1962, Sullivan was laid off without pay for 1 week ;
and on October 23, 1962 , Pare and Blair were put on leave without pay for 2 weeks.
756-236-65-vol. 147 -88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfered with , restrained , or coerced their employees in the exercise of the rights
guaranteed by the Act, except by the acts and conduct found herein to have been
violative.
[Recommended Order omitted from publication.]
Walter Schimmel , A. Q. Schimmel , Edward Schimmel, and
Bernard Schimmel , d/b/a Schimmel Hotel Company and
Hotel , Motel , Restaurant Employees and Bartenders Union,
Local No. 747, affiliated with Hotel and Restaurant Employees
and Bartenders International Union , AFL-CIO . Cases Nos.
17-CA-2338 and 17-CA-2338-2. June 30, 1964
DECISION AND ORDER
On March 30, 1964, Trial Examiner Joseph I. Nachman issued his
Trial Examiner's Preliminary Decision, and, on May 7,1964, a Supple-
mental and Final Decision, finding in the earlier decision that the Re-
spondent, by refusing to bargain with Local 747 after Local 747 was
validly certified as the exclusive bargaining representative of Respond-
ent's employees, violated Section 8 (a) (5) of the Act, and in the latter
Supplemental Decision that the Respondent, by threatening to fire
employees for picketing, and by discriminatorily discharging employee
Robert A. Wolff, violated Section 8(a) (1) and (3) of the Act. The
Trial Examiner recommended that the Respondent cease and desist
from engaging in the unfair labor practices found and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cisions. The Respondent, the General Counsel, and the Charging
Party filed exceptions to the Trial Examiner's Decisions and support-
ing briefs. The Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, asked leave of the Board to file a
brief amicus on behalf of itself and Local 747, in support of the latter's
exceptions, and requested that the Board grant oral argument on the
issues raised by those exceptions. The AFL-CIO joined the Inter-
national in this request and asks that, if the request is granted, it be
permitted to participate in the oral argument and to file a brief amicus.
As in our opinion the exceptions and the briefs adequately present the
issues and positions of the parties, the request for oral argument is
hereby denied.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Members Leedom, Fanning, and Brown]..
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
147 NLRB No. 157.