Marico Enterprises, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1987

283 N.L.R.B. 726 (N.L.R.B. 1987)

726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Marico Enterprises, Inc. and Local 14, Service Em-
ployees International Union , AFL-CIO. Cases
2-CA-21619 and 2-CA-21703
24 April 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 23 December 1986 Administrative Law
Judge Joel P. Biblowitz issued the attached deci-
sion. The General Counsel filed exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings , findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
1 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge 's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect . Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951) We have carefully examined the record and find no basis for re-
versing the findings
Because we agree with the judge and adopt his finding that the dis-
charge of Pauyo was not unlawful, we find it unnecessary to pass on the
judge's alternative finding that even if the discharge were found to have
been unlawful, Pauyo's altercation with employee Mitchell disqualified
Pauyo from reinstatement.
Chairman Dotson agrees with the judge's alternative finding.
James Wasserman, Esq., for the General Counsel
Harry N. Turk, Esq. (Epstein, Becker, Borsody & Green,
P. G), for the Respondent.
Roger H. Madon, Esq. (Sturm & Perl), for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was tried before me in New York, New York, on 29
and 30 September 1986.1 The order consolidating cases,
consolidated complaint, and notice of hearing issued on
25 July, and was based on charges filed on 14 April and
4 June and amended charges filed on 16 April and 2
July. The consolidated complaint alleges that Marico En-
terprises, Inc. (Respondent) violated Section 8(a)(1) and
(3) of the Act by discharging employee Joseph Pauyo
because he joined and assisted Local 1-J, Service Em-
1 Unless indicated otherwise, all dates referred to herein relate to the
year 1986
ployees International Union, AFL-CIO (the Union), and
engaged in other concerted, activities for the purpose of
collective bargaining or other mutual aid or protection.
The consolidated complaint further alleges, that certain
of Respondent's employees concertedly ceased work and
went on strike commencing 2 April in protest of the
above-mentioned unfair labor practice and although the
employees unconditionally offered to return to work on
21 May (actually 27 May), Respondent refused, and con-
tinues to refuse, to reemploy employees, also in violation
of Section 8(a)(l) and (3) of the Act.
On the entire record, including my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
There being no dispute , I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
II. THE FACTS
In about mid-March, the Union began organizing Re-
spondent's production and maintenance employees, most
of whom are Haitian and speak Creole. On 27 March the
Union filed a petition with the Board to represent Re-
spondent's production and maintenance employees; the
parties stipulated that Respondent received this petition
on Monday, 31 March. The events in question occurred
on Wednesday, 2 April. On that day, shortly before 3
p.m. an announcement was made over the plant's loud-
speaker system informing the employees that representa-
tives of the U.S. Immigration and Naturalization Service
(Immigration) had arrived at the facility. That announce-
ment triggered a confrontation between Pauyo and Jules
Cohen, Respondent's president, which resulted in
Pauyo's discharge within the hour. The General Counsel
alleges that this discharge resulted from Pauyo's union
and protected concerted activities on behalf of the other
employees, although Respondent contends that Pauyo
was discharged solely because of the dangerous condi-
tion he was creating at the plant.
Shortly before 3 p.m. that day, an announcement was
made over the loudspeaker stating: "Wedler, your
mother is on the phone," or some similar words, which
was a signal to alert the employees that Immigration was
at the facility. At that time, employees began leaving the
plant through all available means. Pauyo testified that his
supervisor, Wilfred Guillome, told the employees that
Immigration was at the facility, and anyone who did not
have their green card should follow one of the employ-
ees who would take them out of the plant. About four
employees from his department left. Shortly thereafter,
after most of the employees returned, two fellow em-
ployees spoke to Pauyo in Creole and told him that they
felt that Cohen had called Immigration and they wanted
him to speak to Cohen because he speaks English well.
At that point Pauyo walked to the shipping department;
283 NLRB No. 112
MARICO ENTERPRISES 727
Cohen was already there, not far from- where his office
is.
Cohen testified that shortly before 3 p .m. that day, he
was "advised" that Immigration was at the plant (al-
though he never saw them) and when he walked out of
his office he saw employees running out of the door.
Martin Fishman, Respondent's controller; testified that,
the two Immigration agents came into the first entrance
of the building; he noticed them and spoke to • them
before they entered the plant itself . They, said that they
were from Immigration, and
said they were not here at this time to do anything
-they would like to come back at another time
and they would like to have a list of our payroll
and at that time anyone they would ask , they would
want to see if they had a green card or not.
While we were talking, they noticed a lot of
people were leaving the building . One of them casu-
ally, _ jokingly remarked , is it a coffeebreak, I have
never seen people running so fast in all my life, and
I said no again he assured me that they were not
here to do anything at that time . Again they wanted
a list of payroll at a future date. He -would not give
me a date, it would be somewhere in the near
future . At that time .they would ask people for
green cards. If people did not have , a green card,
they would not stop anyone from working, they
would not arrest anyone or take anyone out of the
buiilding . The only thing they would do, they would
ask people to make appointments to go downtown
to fill out necessary papers .and if need be, to go,
before a hearing , and that's the only thing, they,
asked if we would voluntarily comply , with that,
which I told them we would.
Fishman asked them why they were at the plant and
they said that they could not tell him , but that they rou-
tinely do investigations in Rockland County because -of
the large number of Haitians there. They left without en-
tering the plant.
Pauyo testified ' that on the "prior day, for the first time
since he had been employed by Respondent (December
1985), the supervisors were asking employees for their
green cards and, those that did not have ''it,' were told to
bring it in the following day. Cohen testified that there
was a "green card check" on 1 April ; his son, Howard
Cohen was in charge of it . "We do that occasionally" to
keep their employment records timely . Howard Cohen-
did not testify on this subject. Bruce Tucker, Respond-
ent's distribution manager ," testified that Howard Cohen
was responsible for green -card checks at the facility; al-
though he is not directly involved in them , they take
place every 4 or 5 months.
There was testimony ' from four witnesses ! (Pauyo,
Cohen, Tucker, and Supervisor Pauline Garbelotto) re-
garding the subsequent confrontation between Pauyo and
Cohen. Pauyo testified that he approached Cohen in a
large area adjacent to the shipping and receiving depart-
ment; at the time, approximately 45. employees were mill-
ing about nearby. Pauyo told Cohen that he would like
to talk to him; Cohen asked what he wanted to talk
about and Pauyo said that some of the employees felt
that Cohen had something to do with Immigration's
presence at the plant. Cohen asked, "You want to have a
discussion?" and when Pauyo said that he did, Cohen
turned to the large group of employees' standing nearby
and asked, "Do you want him to be your spokesperson?
Do you want-him to talk for you?" The employees who
understood English answered, "yes" immediately; the
others, after having Cohen's question translated, an-
swered "yes" in "French and Creole. Cohen' then said,
"Let's have a discussion right here and now."
Pauyo said that the employees were wondering about
the coincidence of Respondent being notified on Monday
of the Union's petition, Tuesday the supervisors were
checking green cards and telling those employees with-
out one 'to bring it, to work the following day, and on
Wednesday the Immigration agents appeared at the
plant. "I told him that seemed too much like a coinci-
dence, and the people think that you had something to
do with it." Cohen said that he had,nothing to do with
Immigration 's presence at the plant that day; he had
orders to get out, and their presence messed up his pro-
duction. Pauyo said that the employees were unhappy
about other things as well; Cohen asked what they could
be unhappy about, "They,got a job and they 're getting
paid." -Pauyo said that,the employees were fearful that if
they speak to him about a grievance they could be fired
and that if they want a raise they have to speak to a su-
pervisor about it; on occasion, instead of a raise, the em-
ployees' pay has been decreased. He said that the 'em-
ployees need somebody to represent them, someone who
could speak for them and -get things accomplished.
Cohen then accused Pauyo of being one of the employ-
ees who brought the Union in; Pauyo denied it and re-
peated that the employees -needed somebody to speak for
them. Cohen then said, "You must be one of the ones
who started this whole shit about the Union." Pauyo said
that -he, did not say anything about a union, he was talk-
ing about "somebody" representing the employees, but
"maybe a union may be the best thing 'for them." Cohen
then made an obscence gesture with his middle finger in
front of Pauyo's face. Pauyo told him it was "very child-
ish" to make such a gesture and he could see why the
employees would want ' a union and he made the same
gesture to Cohen. - Cohen then said: "I want you out of
my place, get out of here, you're fired."' Pauyo 'said that
he had done nothing wrong and was not going any
place; they could punch his timecard; but he, was not
leaving the plant. Cohen then told the, employees to
either return to work or, go home. Pauyo returned to his
department and saw Cohen walk to -where the timecards
were located.
Shortly thereafter some fellow -employees told Pauyo
that Cohen took his timecard. Pauyo went to the office
and saw that his card was, not with the others; he ap-
proached Cohen and asked' him,. Why did you fire me,
why, did you punch out my card.", Cohen said that he
did it because Pauyo was creating a riot and disturbance.
Pauyo said, "You asked,for a discussion and- J gave you
a discussion and now you want to fire me" Cohen called
Pauyo "a wise ass" who talked about things that did not
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
need to be talked about .and "there's not going to be a
union in my place." He said, "I want you out." Pauyo
said that he would. not leave; Cohen could call the-police
if he wished to do so. Some fellow employees took him
by, the arm and walked out of the plant with him.
Cohen testified that prior to Pauyo stepping forward
and speaking to him, approximately 45 employees were
standing around near the shipping area of the plant; he
asked them to leave and return the following morning.
Someone asked if he had called Immigration; he said that
he did not.
Well, Mr. Pauyo had started chiming in [at] that
point, and he all of a sudden became their spokes-
man and he went to the opening in front of these
people and started going into a harangue about how
we had been treating the people like slaves.
Pauyo said that Cohen was a tyrant who was taking ad-
vantage of the employees because they were poor, and
accused Cohen of - calling Immigration, which Cohen
denied. "I told him that I am very surprised that you are
telling me you want a union representative, I always had
an ' open door, I' always help the people out." He also
said that his wage rate is comparable to union rates and
to answer allegations of wage cuts, when new and faster
machinery is installed, he is entitled to cut the piece-rate
for that machine . Pauyo kept repeating the same argu-
ments and, at one point, "the argument started to get
heated." Pauyo then moved his body back and forth as
though he were engaging in sexual intercourse. The em-
ployees began laughing and Pauyo "got louder and
louder, -and carried on more and more and the people
became more and more excited with all of this."
It was as if he was on stage and, he was having a
ball for himself. I was trying to get the people out
of there because of the fact that there could be
some damage , people are liable to get hurt congre-
gating like that. They are in an area where its a
shipping area, there are rolls of goods around,
there's -boxes around, there's things around there
and they weren't standing in any clear aisle, they
were standing wherever they could stand, and I felt
that it was really an inflammatory situation and I
wanted the people to go home and come back tom-
morrow morning.
Cohen testified that he had two safety-related fears,
one for the employees and one for himself. A large
number of people close together, getting agitated could
fall over each other or cartons if they tried to leave the
area at the same time. "Who knew what was going to
happen? ... My valiant guess at that time, for whatever
it's worth, was that' there could be a problem as far as
people getting hurt." As to the perceived danger to him-
self, he testified that with the recent overthrow of Duva-
lier in Haiti, "the people had a very strong nationalistic
feeling and it, looked terrifying enough' ... I really
didn't know what could happen, but it seemed to my
educated guess that there was a potential there." Cohen
then asked Pauyo to please leave and return the follow-
ing morning; Pauyo said that he would not leave unless
Cohen .punched his card out. Cohen told him to stop
being foolish and to leave. Pauyo repeated four or five
times that he would not leave until Cohen; punched him
out. "At that point I had enough." He instructed his per-
sonnel director to punch his card out and he terminated
Pauyo. "He asked to be fired five different times, and the
fifth time as the situation was getting hotter and hotter,
that's when I did it." Pauyo still refused to leave, but
shortly thereafter, some fellow employees lead him out
of the plant. The other employees left calmly.
Cohen testified that during this confrontation with
Pauyo he never made an obscene gesture at Pauyo; "to
accent a point" during a very heated conversation, "from
Mr. Pauyo's point," he pointed his second fmger toward
Pauyo. "I may have said shit, What kind of bullshit is
this or something like that." Other than that, he did not
raise his voice and used no obscenity and he was "very
calm and collected" during this discussion; he was not
getting upset.
Tucker testified that he was working on the dock
about 40 feet away ' from the incident when he heard
"loud noises"-"people screaming." He walked toward
the area where'-the noise was coming from and saw
Pauyo standing in front of 'Cohen with about 40 to '50
employees surrounding them. Pauyo was "screaming
loudly"' that Cohen had called Immigration and had cut
Pauyo's piece-rate wage on his machine. "Mr. Cohen
was trying to calm him down"; he told Pauyo that he
did not call Immigration as it would not be in his interest
to do so. Pauyo continued to scream at Cohen with his
arms flailing; he said that Cohen was an oppressor who
was taking advantage of his people. Pauyo then made a
sexual gesture of back and forth movements of his hips
and made an obscene gesture with his middle fmger to
Cohen; Cohen returned the gesture. After Pauyo made
the gesture with his hips the employees began laughing.
They became "very agitated, egging Joe on," although
they were speaking Creole, Tucker did not know what
they were saying. Cohen then asked the crowd "if this is
the type of person that they would like representing
them, representing the people as a union member."
Cohen then asked Pauyo to leave because everyone was
upset; Pauyo said that he would not leave unless,Cohen
fired him. Cohen again asked him to leave so that every-
one would calm down. "Joe still acting as wild as during
the whole time said that he would .not leave, that Mr.
Cohen would have, to fire him before he would leave."
Cohen asked him, "Do you want me to fire you?" Pauyo
said, "yes," and, Cohen said, "Okay, you're fired."
Tucker did not observe anything subsequent to, that.
Garbelotto testified that while she was working she
heard .the code words for Immigration over the plant's
loudspeaker system and observed employees running out
of the plant. She, then saw Pauyo approach Cohen as he
was coming out of his office, and yell at him, "You
called Immigrations because you do not want the union in
the shop." Cohen attempted to answer, but Pauyo
"never gave Mr'. Cohen a chance to explain. He just kept
yelling and making gestures." -Pauyo then yelled that
Cohen was cutting their wages and they needed more
money "and Mr. Cohen was just standing there, and
MARICO ENTERPRISES
every time he would try to talk to him, he would just
yell right back at him." Pauyo made an obscene gesture
to Cohen with his middle finger; she did not observe
Cohen return the gesture. She never heard Pauyo ask
Cohen to fire him, but "he just said something what are
you going to do, fire me?" She did not hear Cohen tell
Pauyo that he was fired. During this period, "Mr. Cohen
was very calm and talking very nonchalant to him."
About 15 to 20 employees were standing in the area. "As
he was talking and yelling to Mr. Cohen they were all
clapping and telling him, go ahead give it to him, give it
to him ... I mean, it was such a thing, I never saw this
in all my life in factories that I've worked, Never."
About 3:30 pm. as Pauyo was leaving the plant a
large number of employees followed him out of the
plant; at the time, employees told him, "We're not put-
ting up with this and if he is going to fire you and he's
going to do things this way, we all leaving." He testified
that "just about everybody that was in the crowd walked
out"; only the supervisors remained. Someone called the
Union and made an appointment to meet with a union
representative on the following morning. On the morn-
ing of 3 April, about 7 a.m., Sonia Corujo, organizer for
the Union, arrived at her office; about 15 of Respond-
ent's employees were already there. Because the employ-
ees spoke Creole, they chose one of their group to act as
an interpreter; he told Corujo of the events of the prior
day and that they walked, out because Respondent ' fired
Pauyo. Another employee complained about Respond-
ent's lowering the employee's piecework rate while an-
other employee complained that Respondent did not re-
spect them. Corujo then went to the plant with these em-
ployees; when they arrived she saw a large number of
employees in the parking lot; she spoke to, a number of
them; "'the basic thing that they were yelling about.
They had fired Joe because Joe spoke for us." ' She then
passed out picket signs ,to the employees; the picket signs
said union recognition.
On 27 May, the following letters, on union stationery
individually signed by 35 striking individuals, were deliv-
ered by the Union to Respondent, "The undersigned re-
quests to return to work unconditionally and immediate-
ly." By letter dated 28 May, Respondent, by Cohen,
wrote to these individuals:
We received your letter on May 27, 1986 in
which you requested to return to work uncondition-
ally and immediately.
This is to advise you that your job has been -filled
by a permanent replacement and that there is no
other job opening at the present time . However,
your name will be place [sic] on a preferential
hiring list and you will be offered employment
when there is a job opening which you are qualified
to perform.
Carlos Mitchell was hired by Respondent about 7
April as a strike replacement; about 10 April there was
an altercation between him and Pauyo that Respondent
alleges disqualifies Pauyo for reinstatement even if his
729
discharge violates Section 8(a)(1) and (3) of the Act.2
Mitchell (whose employment with Respondent ceased in
July) testified that he was employed on the dock at the
plant and Pauyo yelled from the picket line that he
would get him if he started working for the Respondent.
On 19 April, Mitchell went on his 10 a.m. break; as he
reached the end of Respondent's parking lot and was
about to cross the road, to get to a deli Pauyo drove up
in his car and said, "Carlos, I'm going to kick your ass
later." Mitchell crossed the road and as he got to the
store, Pauyo came behind him and pushed him from
behind; Mitchell turned around and grabbed Pauyo with
his arms around his waist. At that point, a number of
other people joined Pauyo,in hitting- and kicking Mitch-
ell. Shortly thereafter, a van carrying employees arrived,
followed shortly thereafter by Howard Cohen. At that
time the hitting ceased. Mitchell testified that he hurt his
wrist, suffered cuts and bruises, and was treated at a
local medical center. Howard Cohen testified that on the
day in question he observed Mitchell cross the picket
line and saw Pauyo lean out of the window of his car
and say something to Mitchell. Because it was about 100
feet from, the dock to the street he could not hear what
was said. He then observed Pauyo park his car, get out,
run across the street, and push Mitchell from behind.
Mitchell grabbed Pauyo, who began to punch him. A
number of other strikers also began to punch Mitchell,
while Corujo attempted to stop them. Two dock em-
ployees then drove across the street in one of Respond-
ent's vans and broke up the fight. Howard Cohen then
ran across the street and Mitchell "was a little shaken,
but he was pretty good. He was cursing, he was very
angry."
Pauyo testified that on the day in question, as he was
driving his car into Respondent's parking lot, he saw
Mitchell getting ready to cross the street to go to the
deli across the street from the plant. He told ]'Mitchell
that what he was doing was wrong; by working, he was
taking money out of the strikers' pockets. Mitchell used
some obscenities and made an obscene gesture to Pauyo.
Pauyo then parked his car and crossed the street to
where Mitchell was standing and told Mitchell that what
he was doing was wrong; Mitchell said that he had to
make a living too. Pauyo said that he had informed
Mitchell of the situation 'before he began working there
and Mitchell said that he did not care. Pauyo said, "Why
are you coming off like that? You want to fight me or
something?" Mitchell said that he did, and when Pauyo
began to remove his jacket, Mitchell took his sweater off
and swung at Pauyo while his jacket was halfway down.
Pauyo then grabbed Mitchell around the waist (from the
front) and pushed him onto the trunk, of 'a car where he
held him ,while Mitchell kept punching him or attempt-
ing to punch him. Shortly thereafter, some of the pickets
and Howard Cohen came and broke up the altercation.
As stated,' supra, the 35 employees unconditionally ap-
plied to return to work on 27 May; on the following day,
2 Shortly prior to the commencement of the instant hearing, Region 2
and the Union entered into a'unilateral settlement agreement of a com-
plaint that alleged, inter alua, that "Respondent's pickets, including strik-
ing employee Joseph Pauyo, physically assaulted an employee."
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent informed them that their jobs had been filled
by permanent replacements . Respondent defends -that 'it
failed to reinstate these employees because its _ business
had substantially decreased shortly prior to this time.
Respondent 's payroll states that for the workweek
ending 4 April, it employed 113 unit employees . For the
workweek ending 11 April, 45 employees were em-
ployed. For the workweek ending 30 May, 88 unit em-
ployees were employed by Respondent . For the work-
week ^ ending 19 -September , Respondent employed 48
unit-employees. Received into evidence ,were Statements
of Income of, Respondent for the 6 -month period ending
31 July 1985 and for the year ending 31 January; these
statements were prepared by an accounting firm with the
following caveat:
All information included in these financial state-
ments is the representation of the management of
Marico Enterprises, Inc. A review consists princi
pally of inquiries of companypersonnel and analyti-
cal procedures applied to financial data . It is sub-
stantially less in scope than an examination in acc-
cordance with generally , accepted auditing stand-
ards, the objective of which is the expression of an
,opinion regarding the financial statements taken as a
whole. Accordingly, we do not express such an
opinion.
The sales for the above 6-month period were approxi-
mately $6,800,000, with income before taxes and officers
salary"6f $372,000; the same figures for the year were
$13,800,000 and $463,000. Also received into evidence
were monthly cumulative statements of income for May,
June, and July and monthly sales of Respondent from
February through July ; these were prepared by Re-
spondent's controller Martin Fishman, from Respond-
ent's ledgers and journals. The sales and preofficer salary
loss for the 4 months through 31 May were $3,414,000
and $230,000; through 30 June,, $3,840,000 and $344,000,
and through 31- July, $4,200,000 and $510,000 . Sales by'
month (as compiled by Fishman) were:'
February $963,000
March - • $1,100,000
April - $660,000
May $679,000
June $425,000
July $388,000
.
Fishman testified that prior to April, Respondent's
monthly sales figures ranged from $900,000 to
$1,200,000.
Howard Cohen testified that after the strike com-
menced, Respondent placed an advertisement ' in the
newspaper for employees and he immediately began
interviewing and hiring employees . When he hired
people, he informed them that he was hiring them for a
permanent position with Respondent. The last employee
was hired about the end of May. He also testified that
because business was "horrendously slow " (unlike any-
thing Respondent had previously experienced ) Respond-
ent laid off 4 to 6 employees in mid -May and 8 to-10 em-
ployees in July.
Prior to the commencement of the strike , Respondent
manufactured sheets and comforters (for waterbeds) at its
Nanuet ' facility and- mattress pads at its Muncey facility
until about May. Since about 1 September ,, Respondent
has sublet the Muncey facility to , Benny's Fashions,
which makes all the mattress pads and about 5 percent of
the sheets for Respondent at this facility . Prior to the
strike, Benny 's. Fashions only made sheets for Respond-
ent.
III. DISCUSSION AND ANALYSIS
The substantial conflicts between the witnesses ' testi-
mony regarding the 2 April confrontation between,
Pauyo and Cohen necessitates credibility findings in that
regard . Careful observation of the - witnesses, and read-
ings of the transcript , convince me that both Pauyo and
Cohen were less than credible in their testimony regard-
ing the incident . They each had good reasons to fabri-
cate their testimony and portions of their testimony is
simply not believable. My observation of Garbelotto and
Tucker convince me that their testimony of, the incident
(although not faultless) is a much more reliable recitation
of the facts; they appeared to be testifying to the facts_a's
best as they could remember them and had less reason to
he than Cohen and Pauyo . That is not to say that I total-
ly discredit Pauyo and Cohen's, version of the incident;
however, where there are major conflicts in- their testi-
mony, I credit the testimony of Garbelotto and Tucker.
Initially I discredit Pauyo 's, testimony that when
Pauyo first told Cohen he would like to ' talkl to 'him
Cohen turned to the other employees and asked ' them if
they wanted Pauyo to be their spokesperson .- My obser-
vation of Cohen (and the fact that a large number of the
employees do' not speak English) convince me that this is
highly unlikely . Rather, I find that (as testified to by
Tucker) ',this occurred near the conclusion
'
of the con-
frontation when Cohen asked ' the employees if Pauyo
was the type of person they wanted to represent them.' I
find that Pauyo began the incident by saying that the
employees felt that Cohen had called Immigration,
which Cohen denied . Pauyo told Cohen that it seemed
like more than a coincidence that Respondent received
notice of the Union 's petition on Monday, there was a
green card check on Tuesday, and Immigration appeared
at the facility on Wednesday . Pauyo then said that the
employees were unhappy about other things as well,
their inability to speak to him - and having their piece-
work rate cut by Respondent, and that was why they
felt that they needed a union . Cohen said that he, always
had an open-door policy for the employees, and he only
cut the piecework rate when he, installed new and faster
machinery . He said that he was surprised that they
wanted a union.
Crediting Garbelotto , Tucker , and (to a lesser degree)
Cohen, I find that Pauyo kept yelling and making ges-
tures (Garbelotto), was screaming loudly with his -arms
flailing (Tucker), or went into a harangue (Cohen).
Pauyo said that Cohen was an oppressor (or tyrant)
taking advantage of his Haitian employees. Pauyo then
made the back and forth gesture with his hips - imitating
sexual intercourse ; these gestures caused the other em-
MARICO ENTERPRISES
ployees to laugh and become agitated, clapping and
giving encouragement to Pauyo. Pauyo then made an
obscene gesture to Cohen with his middle finger, a ges-
ture Cohen returned. Pauyo kept screaming at Cohen
without giving him a chance to answer. Cohen asked the
other employees if this was the type of person they
wanted to represent them . Cohen then asked Pauyo to
leave because everyone was agitated and upset; Pauyo
refused to leave unless he was fired. Cohen repeated the
request to Pauyo ("still acting as wild") who said that
Cohen would have to fire him before he would leave.
Cohen asked, "Do you want me to fire you?" Pauyo said
he did and Cohen said, "You're fired." The issue is,
simply stated, was Pauyo discharged because he stood up
to represent his fellow employees regarding their griev-
ances and recent union organization, or was he dis-
charged because of the way he did it (i.e., the obscenities
and insults he used), and does that deprive him of the
protection of the Act.
In Wright Line, 251 NLRB 1083, 1089 (1980), the
Board set forth the rule it will henceforth apply in dis-
crimination cases such' as the-instant matter : "First, we
shall require that the General Counsel make a prima
facie showing sufficient to support the inference that
protected conduct was a `motivating factor' in the em-
ployer''s decision. Once this is established, the burden
will shift to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct." Initially it should be noted that the
appearance of Immigration representatives at the facility
2 days after Respondent received notification of the
Union's petition, and 1 day after an unusual green card-
check at the facility, although highly suspicious, is not
relevant to the ultimate conclusion herein as it did not
precipitate Pauyo's discharge. What -began the process
that culminated in Pauyo's discharge was his decision
(protected, of course) to discuss that fact, and others,
with Cohen.
.It requires no citation that Pauyo's initial action of
speaking to Cohen, after being encouraged to do so by
fellow employees, constituted protected concerted activi-
ties; in fact, Respondent, in his brief, agrees, "although
Pauyo's activity may initially have been protected by
Section 7, any such protection was lost because of his in-
subordinate conduct."
Both' the General Counsel and Respondent cite numer-
ous cases in their briefs 'regarding how far an employee
may go in his protected concerted activities before losing
the protection of the Act. This issue generally arises in
two areas: the prosecution of grievances, bargaining, or
other union business by shop stewards or others who are
both union officials and employees of the company and
general, (often spontaneous) concerted activity by an 'em-
ployee outside the realm of union business.
As to the former, Hawaiian Hauling Service., 219
NLRB 765 (1975), principally -a deferral case, quoted ap-
provingly from Bettcher Mfg. Corp., 76 NLRB 526
(1948):
A frank, and not always complimentary, exchange
of views must be expected and permitted the nego-
tiators if collective bargaining is to be natural rather
731
than stilted. The negotiators must be free not only
to put forth demands and counterdemands, but also
to debate and challenge the statements of one an-
other without censorship, even if, in the course of
debate, the veracity of one of the participants occasion-
ally is brought into question. If, an employer were
free to discharge an individual employee because he
resented a statement made by that employee daring
a bargaining conference, either one of two undesir-
able results would follow: collective bargaining
would cease to be between equals (an employee
having no parallel method of retaliation), or em-
ployees would hestitate ever to participate personal-
ly in bargaining negotiations, leaving such matters
entirely to their representatives.
In Thor Power Tool Co., 148 NLRB 11379, 1380 (1964),
enfd. 351 F.2d 584 (7th Cir. 1965), a union committee-
man was discharged because he called the plant superin-
tendent a "horse's ass" during a discussion of an employ-
ee's grievance . The Board found the discharge unlawful
because the characterization "was protected activity be-
cause it was part of the res gestae of the grievance discus-
sion." In Calmos Combining Co., 184 NLRB 914 (1970),
after a grievance discussion had been completed, and
those participating had, apparently, returned to work,
the plant manager heard the shop steward shouting. He
asked him to stop shouting and was told: "You can't shut
me up, I'll, shout all I want to." He -again asked him to be
quiet, but the steward said, "I don't give a damn what
you say, I'll shout all I want to, and if you don't like it,
tell me to leave." The Board found that the steward's'
continued intrasigence was not a part of the res
gestae of the grievance discussion [citing Thor,
supra]. Rather, the order to stop shouting was a rea-
sonable and lawful order that should have been
obeyed, and his refusal to do so was not related to
Harts ' protected processing of the grievance.
In American Telephone Co., 211 NLRB 782, 783 (1974),
the Board stated:
However, we have long recognized that the dis-
agreements which arise in the collective-bargaining
setting sometimes tend to provoke commentary
which may be less than mannerly, and that the use
of strong language in the course of protected activi-
ties supplies no legal justification for disciplining or
threatening to discipline an employee acting' in a
representative capacity, except in the most flagrant
or egregious of cases.
In Southern Bell Telephone Co., 260 NLRB 237, 240
(1982), the administrative law judge (as affirmed by the
Board) stated:
Recognizing that it is generally the employees of
the employer who have been elected or designated
by the union as officers of the union to represent it
in the administration of the contract and the resolu-
tion of grievances, the Board has held that employ-
ees, when engaged in such activity, are protected
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by Section 7 of the Act for conduct, attitudes, and
statements which. might not otherwise be protected.
However, as noted by. the Employer in its brief in
which it largely ignores the fact that Leuckan was
acting in his capacity as chief steward in the con-
frontation here at issue, an employee so engaged
may lose the protection of the Act if his conduct
becomes so flagrant that it threatens the employer's
ability to maintain order and respect in the conduct
of its business or threats to "foul up" the employer's
operations. -
As to employee obscenities, or other strong language,
during general concerted activities (rather than union ac-
tivities), the Board stated in Atlantic Steel Co., 245
NLRB 814, 816 (1979):
The Administrative Law Judge cited no deci-
sions, however, and we know of none, where the
Board has held that an employee's use of obscenity
to a supervisor on the production floor, following a
question concerning working conditions, is protect-
ed as would be a spontaneous outburst during the
heat of a formal grievance proceeding or in con-
tract, -negotiations. To the contrary, the Board and
the, courts have recognized (as did the Administra-
tive Law Judge in passing) that even an employee
who is engaged in concerted protected activity can,
by opprobrious- conduct, lose the protection of the
Act.
The decision as to whether the employee has
crossed that line depends on several factors: (1) the
place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee's out-
burst; and (4) whether the outburst was, in' any way
provoked by an employer's unfair labor practice.
Likewise, Chrysler Corp., 249 NLRB 1102, 1109 (1980),
which stated: "The employees' right to engage in con-
certed activity may permit some lee-way for impulsive
behavior, which must be balanced` against the employer's
right to maintain order and respect." In Firch Baking
Co., 232 NLRB 772 (1977), the employee was asked by
management what was bothering him. His answer
blamed his difficulties on the lack of competence of the
production supervisor and personnel manager, and did so
in a loud and excited manner . This resulted in a suspen-
sion. The Board found this violated the Act as his com-
ments were not so egregious or outrageous to deprive
him of the Act's protection. The Board stressed two fac-
tors for finding ' no loss of the Act's protection: that the
employee was invited by the company to state his views,
and "the exchange of remarks occurred in a private
office meeting and not on the plant floor where it could
have had a negative effect on these supervisors' status in
the eyes of other employees".
In Webster Men's Wear, 222 NLRB 1262, 1267 (1976),
a 16-year-old employee was fired for profanities and
name calling directed at his store manager. However, the
Board found that- the circumstances there, especially the
fact that the store manager "...freely resorted to the
use of provocative- statements and profanity in resisting
the employee's complaint," warrant finding that the dis-
charge violated the Act:
While the namecalling and profanity participated in
by Schmidt are certainly not to be condoned, nev-
ertheless, such conduct must be evaluated in this
context. And, I am persuaded that, on balance, 16-
year-old employee Schmidt who was attempting to
present an employee grievance was caught up in
this "moment of animal exhuberance." -
In the situation herein, the credited evidence estab-
lishes that Pauyo's actions were unprovoked; other than
returning Pauyo's obscene gesture with his middle finger,
Cohen attempted to answer Pauyo's allegations and have
him leave the area. In addition his outbursts-(not excused
by youth as in Webster Mens Wear supra) were extreme
and on the plant floor in the presence of a large number
of employees. I also find insufficient evidence to establish
that Cohen fired him because he stood up to represent
the employees, and the Union. The only evidence in this
regard is Cohen's statement to the employees, near the
end of Pauyo's presentation: "Is this the type of person
you want to represent you?" However, this,-apparently,
refers to Pauyo's obscene and abusive actions rather than
his union or concerted activities. In addition, Pauyo con-
tinually refused toa leave unless he was fired; it was not
until Cohen made three requests for Pauyo to leave (all
refused) that he fired him. In Pacific Intermountain Ex-
press Co., 264 NLRB 388 (1982), an employee, refused to
obey -his supervisors repeated order, even when warned
that his failure to do so would result in termination. The
Board found the discharge lawful as the employee "bra-
zenly flouted" his supervisors direction, which constitut-
ed "the ultimate challenge to Respondent's authority." I
find the instant situation analogous. -
On the basis of the above, I find that although the
General Counsel sustained its burden under Wright Line,
supra, Respondent also met its burden of -proving that
Pauyo would have been discharged even absent the
union or concerted activity. Having found that this dis-
charge did not constitute an unfair labor-practice, it fol-
lows that the strike that followed was not an unfair labor
practice strike. Therefore, Respondent's refusal to rein-
state the strikers did not violate the Act. Accordingly, I
shall recommend that the complaint be dismissed.3
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2), (6), and (7) of the Act.
' It should be noted that even if I had found that his discharge violated
the Act, I would have found that his altercation with Mitchell disquali-
fied him from reinstatement. I found Mitchell to be a more credible wit-
ness as his testimony seemed more reasonable; as Mitchell was about to
cross the street to go to the deli, Pauyo stopped his cat and made a com-
ment to Mitchell. Pauyo could have left it at that; instead, he parked his
car and crossed the street to get to Mitchell, making it more likely that
Pauyo instigated the altercation. In addition, Mitchell was by himself al-
though Pauyo had his supporters nearby across the street, making it less
likely that Mitchell would -start the fight. I therefore find that Pauyo
began swinging at Mitchell and for this reason, he should be denied rein-
statement. Clear Pine Mouldings, 268 NLRB 1044 (1984).
MARICO ENTERPRISES
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in any conduct in vio-
lation of the Act as alleged herein.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
733
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions,, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses. `