Massachusetts Coastal Seafoods, Inc

National Labor Relations Board - Board Decisions

Mar 30, 1989

293 N.L.R.B. 496 (N.L.R.B. 1989)

496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Massachusetts Coastal Seafoods , Inc and United
Food and Commercial Workers Union, Local
15, AFL-CIO Cases 1-CA-21429, 1-CA-
21579, 1-CA-22171, 1-CA-22242, and 1-RC-
18015
March 30, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On December 31, 1986, Administrative Law
Judge Richard A Scully issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief
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 briefs and has
decided to affirm the judge's rulings , findings,' and
conclusions only to the extent consistent with this
Decision and Order
1 We agree with the judge's finding that the
strike that commenced on September 19, 1983,2
was an unfair labor practice strike As the judge
pointed out, a strike will be considered an unfair
labor practice strike if the record establishes that
an unfair labor practice was a contributing cause of
the strike C & E Stores, 221 NLRB 1321, 1322
(1976), Larand Leisureltes, 213 NLRB 197 (1974),
enfd 523 F 2d 814 (6th Cir 1975) The record here
supports such a conclusion
In mid-August 1983, the Respondent's employees
began discussing the possibility of union representa-
tion These discussions continued on a daily basis
' The Respondent has excepted to some of the judge s credibility find
mgs The Board s established policy is not to overrule an administrative
law judges 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 reversing
the findings
In the absence of exceptions we adopt pro forma the judge s finding
that when Lucinda Symonds kicked nonstriker Billy McDonald s car as
he was exiting the plant she did not engage in a serious act of misconduct
that would justify the Respondent s refusal to reinstate her
In light of the judge s finding that sinker Donald Steward kicked the
car of a nonstnker in a reflex reaction to his almost getting hit by the car
we find that Steward did not engage in a serious act of misconduct that
would justify the Respondents refusal to reinstate him Cf GSM Inc
284 NLRB 174 (1987) in which a strikers unprovoked kicking of a vehi
cle crossing the picket line constituted a serious act of misconduct justify
mg an employers refusal to reinstate the striker
Member Cracraft did not participate in the decision in GSM Inc Al
though she agrees with the judge that the conduct engaged in by striker
Donald Steward did not warrant his discharge and she also agrees with
her colleagues that Stewart s conduct is distinguishable from the conduct
engaged in by strikers Attanasio and Ernckson in GSM Inc she does
not pass on whether she would have found that the discharges of Attana
sio and Ernckson in GSM Inc were not violative of the Act
2 All dates are in 1983 unless otherwise indicated
and were held openly in the plant Duarte Medina,
the Respondent' s foreman admitted that he was
aware of the employees' discussions
According to testimony credited by the judge, in
late August, employee Karen Anderson was told
by Medina that if the plant became a union shop,
she would not get away with coming in late to
work 3 On September 7, Medina told employee
Judy Rocha that Michael Kobialka, the Respond-
ent's president, did not want a union in the plant
and that he would shut down the place if a union
came in Later that week, Medina told employee
Hazel Ellis that if a union came into the plant, the
Respondent would close down
On September 9, Medina asked employee
Donald Stewart whether he was one of the new
union members and then, after Stewart responded
that the plant needed a union , Medina stated that
Kobialka would close the plant On that same day,
Plant Manager Paul Harrington told Anderson that
the Company could not afford a union , that 30 em-
ployees would lose their jobs if a union came in,
and that in 6 months the plant would close
On September 12, the Respondent's president,
Michael Kobialka, responded to information that
his employees were preparing to contact the Union
by assembling them in a group just before quitting
time and making a speech about the possible prob
lems if a union came into the plant Among other
things, Kobialka told the employees that if the
Union came in, only 24 employees would remain,
that he would be giving a 60-cent raise in January,
that he would be willing to meet with five or six
employees to discuss grievances, that he would go
bankrupt if he had to pay union wages, that it
would be futile to select a union because a union
would not be able to obtain better terms of em-
ployment, and that he was thinking about moving
the plant to a new location but the decision to
move would be "a function of whether or not
someone was hanging a big gun over" his head
Shortly after the meeting, Kobialka talked with
three employees and told them that if the Union
came into the plant all three would be laid off and
that if the employees chose a union to represent
them, he would move the plant out of town
On September 14, Plant Manager Harrington
similarly told employee Josephine Jacobs that if the
Union came in, the plant would close down
During that same week, Supervisor Nelson Har-
rington told employee Michael Muniz that if the
Union got in, Muniz would be laid off
9 Anderson was habitually late for work however the evidence shows
that the Respondent condoned this behavior in the past
293 NLRB No 47
MASSACHUSETTS COASTAL SEAFOODS
In addition to these statements, there were inci-
dents of interrogation Based on credited testimony,
the judge found that Foreman Joe Tavares asked
his brother, in the presence of Plant Manager Har-
rington, if he was `part of the group," whether he
was involved in "this mess , ' and whether he had
"signed " On Friday, September 9, Medina asked
employee Donald Stewart if he was one of the new
union members and what the latest rumors were
about the Union
The above statements and interrogations by
Medina, Harrington, Kobialka, and Tavares were
all found by the judge to be 8(a)(1) violations 4
The judge additionally found that the Respond-
ent violated Section 8(a)(3) by changing employees'
working conditions in retaliation for their union ac-
tivity According to credited testimony, the Re
spondent had a long established practice of allow-
ing employees to leave the production line, one at
a time , for a short period to relax, smoke a ciga-
rette, or use the restroom The Respondent admit
tedly changed this practice on September 13 and
no longer allowed these informal breaks The judge
found that the Respondent's alleged reason for
changing its break policy-that employees were
abusing the policy-was pretextual and he thus
concluded that the motivation for changing the
break policy was to retaliate against the employees
because of their union activity
The judge further found that the Respondent
violated Section 8(a)(3) when it implemented a new
tardiness policy on September 14 Based on
Carmen Glidden's credited testimony, the judge
found that when Glidden arrived late to work on
September 14, she was told not to punch in but
rather to go home Glidden inquired as to whether
she was fired and was told by Kobialka that he
would get back to her When Glidden then at-
tempted to empty her locker, Kobialka escorted
her out the door Glidden returned to the plant
later that day to pick up her paycheck and was in
formed by Kobialka that he had started a new
policy that day that if anyone came in late, they
would be sent home for the day 5 Kobialka further
added that he had not fired her Although Ko
bialka testified that he sent Glidden home because
her place on the line had been filled, the judge dis-
credited Kobialka's testimony as Kobialka later ad
mitted that he had no knowledge about whether
Glidden's job had been filled Because no justifica
tion was offered for the new, more stringent tardi
4 The Respondent has not excepted to the judges findings that the
above described conduct violated the Act
6 No evidence was presented indicating that the Respondent had a
company rule in effect prior to the incident that would have prescribed
such a penalty
497
ness policy implemented the day after the Union
first requested recognition, the judge found that the
new rule was imposed in retaliation for the em-
ployees' union activity The judge further conclud-
ed that the Respondent's conduct in sending Glid-
den home from work pursuant to the unlawfully
implemented new rule violated Section 8(a)(1) and
(3)
The judge also concluded that the Respondent
violated Section 8(a)(3) by refusing to give employ-
ee Michael Muniz an advance on his vacation pay
Although the Respondent's policy was to give em-
ployees vacation with pay after they reached their
first anniversary, the record shows that the Re
spondent frequently allowed employees to take
their vacation prior to their anniversary date and
on those occasions would advance the employees'
pay for the vacation Based on credited testimony,
the judge found that Paul Harrington approved
Muniz' request for a week's vacation, with pay,
and that sometime after September 9, the day that
Kobialka admittedly was aware of the employees'
union activity, Kobialka revoked that approval
After finding that Kobialka's alleged reasons for
denying the vacation pay-Muniz' allegedly bad at-
titude and work performance-were pretextual, the
judge concluded that Kobialka refused to grant the
vacation pay because the employees contacted the
Union
It was amid this atmosphere of numerous, blatant
violations of the Act that the employees began
their organizational campaign They met with
union agents almost daily during the week of Sep
tember 12 to discuss organizational goals and what
was happening at the plant At their Friday, Sep-
tember 16, meeting the employees voted on wheth-
er they should strike According to the credited
testimony, the strike was designated neither as an
unfair labor practice strike nor as a recognitional
strike prior to the vote However, the record testa
mony indicates that the Respondent's unlawful ac-
tivities, as well as the employees' recognitional
goals, were discussed prior to the vote Cathy
Cabral, an employee present at the union meeting,
testified that one of the purposes of the strike was
to support Carmen Glidden, the woman who had
been unlawfully sent home earlier that week be-
cause of her tardy arrival at work Employees
Ellen McDonald, Hazel Ellis, Doris Rowe, and
Carmen Glidden all testified that the employees
present at the September 16 meeting discussed
what had happened at the plant that week prior to
taking the strike vote Specifically, they discussed
Kobialka's statements about not letting the Union
in, the denial of vacation pay to Muniz, and how
working conditions had changed at the plant Fi-
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nally, Ralph Hannibal, the Union's secretary-treas-
urer, who was taking notes of the meeting, record-
ed that the employees voted to strike because of
their concerns over recognition and job security
and the harassment that had recently been taking
place at the plant
Based on the foregoing evidence, we agree with
the judge that at least one of the reasons the em-
ployees went out on strike was to protest the Re-
spondent's unfair labor practices Although the em-
ployees admittedly had a recognitional goal for
their picketing, the discussions held prior to the
strike vote clearly indicate that the employees were
protesting the Respondent's unfair labor practices
as well when they voted to go out on strike
We are not persuaded by the Respondent's asser-
tion that the Union's classification of the strike as a
recognitional strike, and the fact that no unfair
labor practice charges were filed against Respond-
ent until September 30, 2 weeks after the strike
vote had been taken, shows that the strike was not
an unfair labor practice strike The Union's charac
terization of the strike and the date that the unfair
labor practice charge was filed in no way lessen
the import of the employee sentiment expressed
prior to the vote The employees, in rehashing the
events of the week, clearly expressed their frustra
tion with the Respondent's unlawful activities and
their need to show support for those employees
who had been victims of the Respondent's unlaw-
ful conduct The employee sentiment , clearly re-
flected in the record, supports our finding that the
strike was an unfair labor practice strike from its
inception
2 The judge, in considering election objections
filed by both the Union anti the Respondent, found
that the Union did not engage in any misconduct
that would require that the election be set aside if
the Union received a majority of the votes cast-in
which case he recommended the Union's certifica-
tion-but that the Respondent committed various
unfair labor practices during the critical preelection
period that did require setting aside the election if
the Union lost The judge further concluded that
the Respondent's unfair labor practices were of
such nature that there was little likelihood that
there could be a fair rerun election Thus the judge
determined that issuance of a bargaining order was
warranted In doing so, he rejected the Respond-
ent's argument that the Union engaged in miscon-
duct sufficient to preclude it from receiving a bar
gaining order For the reasons stated below, we
agree that a bargaining order should issue
In determining whether a bargaining order is
warranted to remedy the Respondent's misconduct,
we apply the test set out in NLRB v Gissel Packing
Co, 395 US 575 (1969) There, the Court identi-
fied two categories of cases in which a bargaining
order would be appropriate absent an election re-
sulting in a union 's certification as the employees'
bargaining representative The first category of
cases involves "exceptional cases" marked by
unfair labor practices that are so "outrageous" and
"pervasive" that traditional remedies can not erase
their coercive effects thus rendering a fair election
impossible The second category involves "less ex-
traordinary cases marked by less pervasive prac-
tices which nonetheless still have the tendency to
undermine majority strength and impede the elec-
tion processes " In this second category of cases,
the Court reasoned that "the possibility of erasing
the effects of past practices and of ensuring a fair
election by the use of traditional remedies,
though present, is slight and that employee senti-
ment once expressed through cards would, on bal
ance, be better protected by a bargaining order "
Id at 613, 614-615 We agree with the judge's con
elusion that the Respondent's misconduct here falls
within the second category
The record indicates that the Union obtained
valid authorization cards from at least 39 of the 52
unit employees on September 12 and 13 Based on
those cards, the Union requested recognition from
the Respondent on September 13 and again on Sep
tember 15 In both instances, the Respondent re-
fused to recognize the Union The Union then filed
an election petition on September 15 and the strike
began on September 19
As detailed above, the Respondent engaged in
various unfair labor practices right from the start
of the organizational campaign For example, on
September 7, Supervisor Medina told an employee
that Kobialka would close the plant if a union
came in On September 12, Kobialka himself, on
learning of the employees' interest in the Union, as-
sembled them in a group and unlawfully threatened
loss of jobs and plant closure if the Union came in,
solicited grievances, promised a wage increase, and
warned that it would be futile for the employees to
select a union because a union would not be able to
obtain better terms of employment for them On
September 13, the Respondent unlawfully imple-
mented a new "no informal break" policy in retal-
iation against the employees because of their union
activity That same day, the Respondent unlawfully
denied to Muniz an advance on his vacation pay
On September 14, the Respondent unlawfully im
plemented a new policy regarding tardiness and
unlawfully disciplined an employee pursuant to
that policy Paul Harrington, Nelson Harrington,
Joe Tavares, and Duarte Medina (the latter, besides
the incident mentioned above) also made unlawful
MASSACHUSETTS COASTAL SEAFOODS 499
threats of plant closure or engaged in unlawful in
terrogations
The Respondent's unlawful conduct continued
after the employees went out on strike On Septem-
ber 19 and 28 and October 7, the Respondent un-
lawfully threatened to permanently replace the
strikers6 and, throughout the strike, the Respond
ent continued its threats to close the plant Further-
more, the Respondent continued its unlawful con-
duct after the election by continuing to maintain its
position that the strikers had been permanently re-
placed and by refusing to reinstate the strikers after
they made an unconditional offer to return to
work, thereby in effect discharging them
It is clear that from the very start of the employ-
ees' organizational campaign , the Respondent en-
gaged in a pattern of misconduct designed to in
timidate its employees in their support for union
representation The Respondent made repeated
threats of plant closure and job loss, in addition to
implementing more onerous working conditions
and refusing to reinstate the unfair labor practice
strikers after their unconditional offer to return to
work This conduct affected virtually all the unit
Many of the violations were committed by the Re
spondent's owner and top management official, Mi
chael Kobialka I Furthermore, the Respondent's
unlawful conduct continued even after the election
and the strike were over
4 These threats were made by the Respondent in its letter to the strik
ing employees on September 19 in its letter to the replacement employ
ees and nonstrikers on September 7 and in its want ad of September 28
We also agree with the judge that the Respondent violated Sec 8(a)(3)
by discontinuing Jean Harrington s unpaid sick leave status It is undis
puted that at the time the strike commenced Harrington was on unpaid
sick leave status and according to Harrington s credited testimony had
been told by Kobialka that her job would remain available for an indefi
mite period of time until she was able to return to work An agent of the
Respondent spotted Harrington on the picket line on September 20 and
immediately sent her a letter demanding that she return on September 21
or be replaced The Respondent did not inquire whether Hamngton had
been medically released to return to work In fact she had a doctor s cer
tification that she should wait until October 5 to return Although the
Respondent might have grounds for inquiring into her medical fitness to
return to work its automatic curtailment of her leave status based simply
on her appearance on the picket line constitutes discrimination in viola
tion of Sec 8(a)(3) and (1) of the Act The Respondent has not shown
that in the absence of the strike the mere sight of Harrington walking
outdoors would have resulted in the immediate cancellation of her leave
status Indeed because the record indicates that she had earlier been
physically capable of coming to the plant but had to leave after 2 days of
work because she was unable to continue the Respondent knew that
Harrington s ability to walk did not necessarily signify her ability to
return to the job Given these circumstances we conclude that neither
Emerson Electric Co 246 NLRB 1143 (1979) enfd as modified 650 F 2d
463 (3d Cir 1981) cited by the judge nor Texaco Inc 285 NLRB 241
(1987) which overruled Emerson is applicable here
7 The Board has found that [t]he effect of unfair labor practices is in
creased when the unlawful conduct is committed by top management of
ficials who are readily perceived as representing company policy and in
positions to carry out their threats and when that conduct envelopes a
significant number of employees (Footnote omitted ) Bakers of Paris
288 NLRB 991 992 (1988)
In view of the nature of the Respondent's viola-
tions , we conclude that the possibility of erasing
the effects of the unfair labor practices and of con
ducting a fair election is slight Under these cir
cumstances, simply requiring the Respondent to re
frain from unlawful conduct will not eradicate the
lingering effects of the hallmark violations Fur
thermore, we find that the employees' representa
tion desires expressed through authorization cards,
on balance, would be better protected by a bar
gaining order than by traditional remedies
We realize that the original threats of plant clo
sure made by Kobialka and some of the other man-
agement officials occurred not only prior to the
critical period, but also prior to the employees
signing authorization cards for the Union Indeed,
as the judge noted, "the employees went to the
Union hall en masse, spontaneously, as a result of
Kobialka's speech a few minutes earlier in which
he threatened them with plant closure and massive
layoffs " And there is evidence that Kobialka's
speech may have caused some employees who
before were not in favor of the Union to change
their minds In any event, by 10 o'clock that night
the Union had received 35 signed cards Thus it
can not be said that these initial threats in fact nul
lified majority support for the Union However,
these threats were not the only unfair labor prac
tices committed by the Respondent 8 Threats of
this nature and additional unfair labor practices, in
cludmg 8(a)(3) violations, were committed by the
Respondent after the signing of the authorizations
cards and the strike occurred Most notably, there
were the unlawful threats of discharge of the unfair
labor practice strikers, threats that eventually cul-
minated in their actual discharge when the Re-
spondent refused them reinstatement on their un
conditional offer on November 10 to return to
work Surely, the wholesale discharge of the strik-
ers drove home to all employees, replacements and
nonstrikers as well as strikers, that the Respondent
was prepared to take whatever steps were neces
sary to prevent its work force from being union-
ized Clearly, this unlawful conduct tended to un
dermine support for the Union and to extinguish
any vestige of employee defiance that may have
survived the Respondent's initial unfair labor prac-
tices For the strikers learned that supporting a
union would lead to their removal from the Re
8 PBA Inc 270 NLRB 998 (1984) in which the Board denied a bar
gaining order relying on inter aha a widely supported strike and the
signing of additional authorization cards after the unfair labor practices
occurred is distinguishable from the instant case as there the employers
unlawful conduct consisted solely of two unlawful threats neither of
which was carried out In denying the bargaining order the Board ex
pressly noted that the unlawful statements were not accompanied by any
unlawful disciplinary action against any employee Id at 999
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent's employ, a lesson they were not likely to
forget if eventually rehired As for the replace-
ments and nonstrikers, the fate of the strikers likely
impressed on them that future support for a union
could result in similar action being taken against
them Thus, notwithstanding that the initial threats
of plant closure did not destroy employee support
for the Union, we conclude that the Respondent's
latter violations not only evidence the Respond-
ent's continuing resolve to retaliate against the em-
ployees for their union activities but serve to
render slight the likelihood that a free election can
now be conducted 9 Accordingly, we find that a
remedial bargaining order is appropriate See
Armon Co, 279 NLRB 1245 fn 2 ( 1986) 10
Having found that the Respondent's unlawful
conduct necessitates the issuance of a bargaining
order, however, does not end our inquiry here, for
the Union and striking employees engaged in mis-
9 In reaching these conclusions we note that an election was held on
October 14 at which inter alia the ballots of the striking employees and
their replacements respectively were challenged The fact that the sink
ing employees voted in that election which we have set aside for the rea
sons stated below does little to persuade us that a free election can now
be held if for no other reason because it was after that election that the
Respondent struck its crowning blow by unlawfully refusing to reinstate
the strikers after their unconditional offer to return to work
10 The judge properly ordered the Respondent to recognize and bar
gain on request with the Union as of September 13 the date that the
Union initially demanded recognition as the record shows that at that
time the Respondent had already embarked on a clear course of miscon
duct designed to intimidate the employees in their union activities See
Trading Port 219 NLRB 298 (1975)
The Respondent has filed a motion to reopen the record for the put
pose of adducing evidence of employee turnover In support of this
motion the Respondent asserts that it will be able to demonstrate that
50 percent of the bargaining unit employees no longer worked for the
Respondent as of the date of the Administrative Law Judge s decision
Citing two decisions of the Second Circuit the Respondent states that
the courts have held that evidence of employee turnover as well as the
lapse of time are relevant in determining the propriety of a bargaining
order The Respondent claims that the evidence it wishes to produce
was not available or relevant at the time of the hearing
We deny the Respondents motion because the evidence sought to be
adduced would not require a different result See Sec 102 48(d)(1) of the
Board s Rules and Regulations Under Board precedent the validity of a
bargaining order depends on an evaluation of the situation as of the time
the unfair labor practices were committed Highland Plastics 256 NLRB
146 147 (1981) Thus the evidence the Respondent seeks to produce is
irrelevant With regard to the Second Circuit precedent relied on by the
Respondent we note that this case does not arise in the jurisdiction of
the Second Circuit and that that circuits requirement that the Board con
cider postheanng developments conflicts with the views of other circuits
E g Piggly Wiggly Y NLRB 705 F 2d 1537 1543 fn 9 (11th Cir 1983)
Chromalloy Mining & Minerals Y NLRB 620 F 2d 1120 1131-1133 (5th
Cir 1980) Finally even assuming arguendo the relevance of posthearing
evidence of turnover we find that the evidence the Respondent seeks to
introduce would not warrant withholding an otherwise appropriate bar
gaining order As described above the Respondents violations were ex
tremely serious and affected virtually the entire bargaining unit The con
tinued presence of approximately one half of the employees who were
subject to the Respondent s unlawful conduct creates a potential that the
inhibitive effects of the unfair labor practices remain and serves to render
unlikely the holding of a fair election
Member Johansen joins in denying the motion to reopen but finds it
unnecessary to address the general relevance of turnover and passage of
time He like his colleagues is satisfied that the evidence the Respondent
offers to adduce would not alter the need for a bargaining order in this
proceeding
conduct that the Respondent asserts precludes our
granting a bargaining order 11
As the judge found, the Union engaged in mis-
conduct when Union Representative Thomas Wil-
kinson stopped his car in such a manner as to block
a bus carrying nonstriking employees and replace-
ment workers into the plant The judge found that
this was the only incident directly attributable to
the Union, however, the judge also considered
conduct by striking employees As a group, the
strikers engaged in misconduct when they pelted a
bus, carrying nonstriking employees and replace
ment workers, with eggs, tomatoes, and other
vegetables for a period of about 30 seconds while
the bus was leaving the plant Additionally, two
strikers engaged in picket line misconduct, justify
ing the Respondent's refusal to reinstate them,
when one threw tomatoes at a bus carrying non
striking employees and replacement employees to
work and the other telephoned the home of non
striking employee Barbara Murphy and threatened
Murphy's 16-year old daughter saying, "[T]ell Kim
and your mother that if they show up for work,
they're dead "12
" The Respondent also asserts that the Unions misconduct requires
that the election be set aside We find merit in the Respondents position
as we conclude that in light of the conduct of the Union and various
striking employees described infra and the likely effect of the conduct
on the election process we are unwilling to issue a certification of repre
sentative even if the tally of ballots were to show that the Union won the
election Therefore because of the misconduct engaged in by both the
Respondent and the Union the election must be set aside Our refusal to
certify the Union based on election results does not conflict with our
granting a bargaining order Here the Union achieved majority status
among the unit employees as represented by authorization cards prior to
any objectionable conduct by the Union during the critical preelection
period Thus while the Union s conduct may have interfered with the
employees exercising a free choice in the election no such stigma at
Caches to the Union s achievement of majority status among the unit em
ployees as represented by authorization cards The cards and hence the
Union s majority standing were obtained free of union restraint and coer
cion
The practical effect of our decision is that the Respondent will be re
quired to bargain for a reasonable time but the Union will not have the
extended protection provided by the certification year Given the se
quence of events and the manner in which both parties destroyed condi
tions for a valid election we find this to be the most appropriate among
our limited choices of remedies
12 There was also evidence of vandalism to automobiles however be
cause the evidence failed to establish the party responsible for the vandal
ism we find that that conduct cannot be attributed to the Union Thus
we disavow the judge s conclusion that the vandalism was related to the
strike
The Respondent in its exceptions alleges that the judge failed to make
any findings concerning various other alleged incidents of striker miscon
duct These alleged incidents included doing damage to vehicles making
harassing or threatening statements to striker replacements and manage
ment officials blocking the driveway to the Respondents facility hitting
or kicking vehicles attempting to enter the plant spreading roofing nails
in front of the home of a nonstriker and throwing coffee in the face of a
police officer assigned to monitor the picket line The record reveals con
flicting testimony regarding these incidents In light of the judge s failure
to credit any witnesses regarding these incidents we are unable to con
elude whether such events occurred We find it unnecessary to do so
however because these incidents even if they occurred although provid
Continued
MASSACHUSETTS COASTAL SEAFOODS 501
In Laura Modes Co, 144 NLRB 1592 (1963), the
Board withheld a bargaining order based on the
union's use of violent tactics to compel its repre-
sentation rights There the Board stated that the
withholding of a bargaining order constituted "an
extraordinary remedy" against a union which
would otherwise be entitled to a bargaining order
In New Fairview Convalescent Home, 206 NLRB
688, 689 (1973), enfd 520 F 2d 1316 (2d Cir 1975),
cert denied 423 U S 1053 (1976), the Board stated
We do not condone any picket line violence,
and the processes of the Board are available to
prevent its recurrence But we are also
reluctant to deprive a substantial group of em
ployees of the benefits of collective bargaining
because of the misconduct of a few miscreants
Here, looked at in perspective, there were but
few instances of misconduct by a relatively
small proportion of strikers against a
background of Respondent's frequent and re-
curring unfair labor practices Viewed in that
light we have concluded that the extraor
dinary sanction of withholding an otherwise
appropriate remedial bargaining order would
not best effectuate the policies of the Act
In determining whether a union's misconduct is
the type that justifies withholding a bargaining
order, the Board has considered the extent of the
union's interest in pursuing legal remedies, the
extent to which the evidence shows deliberate
planning of violence and intimidation on the part of
the union, the extent to which the assaults or other
misconduct were provoked, the duration of the
union's conduct, and the relative gravity of the
union's misconduct vis a-vis the employer's miscon
duct Grede Foundries, 235 NLRB 363 (1978), enfd
as modified 628 F 2d 1 (D C Cir 1980)
In the instant case, it is apparent that the Union
was interested in pursuing legal recourse as evi-
denced by its filing of an election petition and its
filing of unfair labor practice charges Further
more, we find that the evidence does not establish
that the Union pursued a deliberate course of
action intended to intimidate employees Rather,
the one incident of misconduct directly attributable
to the Union was a relatively minor blocking inci-
dent and the incidents of misconduct attributable to
various strikers were sporadic in nature and not the
type which would evidence a deliberate plan to in-
mg further support for our decision to set aside the election would not
warrant withholding a bargaining order None of this alleged misconduct
was attributable to union officials and it does not rise to the level of the
misconduct found in Laura Modes 144 NLRB 1592 (1963) where the
Board denied a bargaining order after a union official and several union
members entered a plant they were attempting to organize and physically
struck a management official and pushed around a company secretary
timidate employees Finally, in considering the
Union's misconduct vis-a vis the Respondent's mis-
conduct, we find the Union's conduct not to be as
egregious as that of the Respondent, which violat-
ed Section 8(a)(1), (3), and (5) of the Act In so
finding, we note that the Respondent engaged in
numerous 8(a)(1) violations from the initiation of
the employees' organizational campaign and unlaw
fully implemented more onerous work rules in re-
taliation against the employees because of their
union activities, the Respondent's conduct contin
ued after the Union made a valid showing of ma-
jority support as evidenced by signed authorization
cards by a majority of unit employees, and, the Re-
spondent, even after all the strikers made an uncon
ditional offer to return to work, continued to vio-
late the Act by refusing to reinstate them In con-
trast, the Union's misconduct and the misconduct
of the strikers consisted of one blocking incident,
one incident of pelting a bus containing replace
ment workers with eggs and vegetables, and mis-
conduct by 2 out of 35 strikers As in New Fairview
Convalescent Home, supra, we find that here there
were only a few instances of misconduct against a
background of frequent, serious unfair labor prac
tices by the Respondent Therefore "the extraordi
nary sanction of withholding an otherwise appro-
priate remedial bargaining order," id at 689, would
not effectuate the purposes of the Act in the instant
case
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent , Massachusetts Coastal Seafoods, Inc,
Magnolia , Massachusetts, its officers, agents, suc-
cessors, and assigns , shall take the action set forth
in the Order as modified , except that Case 1-RC-
18015 is not remanded and the petition in Case 1-
RC-18015 is dismissed
1 Insert the following as paragraph 1(o) and re-
letter the subsequent paragraph
'(o) Refusing to recognize and bargain with
United Food and Commercial Workers Union,
Local 15, AFL-CIO as the exclusive collective-
bargaining representative of all of its employees in
the appropriate unit with respect to rates of pay,
wages , hours, and other terms and conditions of
employment "
2 Substitute the attached notice for that of the
administrative law judge
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT threaten to impose more onerous
working conditions on employees for engaging in
activities in support of United Food and Commer-
cial Workers Union, Local 15, AFL-CIO or any
other labor organization or for engaging in activi-
ties protected by Section 7 of the Act
WE WILL NOT threaten employees with layoffs
or plant closures and loss of employment if they
select the Union or any other labor organization as
their collective-bargaining representative
WE WILL NOT coercively interrogate employees
concerning their union or other activities protected
by Section 7 of the Act
WE WILL NOT offer employees a wage increase
in order to dissuade them from supporting the
Union or any labor organization
WE WILL NOT threaten to forgo plant expansion
or to move our plant from its present location in
order to dissuade employees from supporting the
Union or any other labor organization
WE WILL NOT solicit grievances with the implied
promise of adjusting such grievances in order to
dissuade employees from supporting the Union or
any other labor organization
WE WILL NOT tell employees directly or by im-
plication that it would be futile to select the Union
or any other labor organization as their collective-
bargaining representative
WE WILL NOT threaten to permanently replace
unfair labor practice strikers if they do not abandon
a strike
WE WILL NOT impose a more restrictive policy
concerning employees taking informal breaks be
cause they engage in union or other activities pro
tected by Section 7 of the Act
WE WILL NOT impose more onerous work rules
concerning tardiness because employees engage in
union or other activities protected by Section 7 of
the Act
WE WILL NOT discriminatorily deny employees
advanced vacation pay because they engage in
union or other activities protected by Section 7 of
the Act
WE WILL NOT discontinue employees' sick leave
benefits because they engage in union or other ac-
tivities protected by Section 7 of the Act
WE WILL NOT refuse to reinstate unfair labor
practice strikers on their offer to return to work
WE WILL NOT discipline or otherwise discrimi-
nate against employees with regard to their hire or
tenure of employment or any term or condition of
employment for engaging in activities in support of
the Union or any other labor organization or in
other activities protected by Section 7 of the Act
WE WILL NOT refuse to recognize and bargain
with United Food and Commercial Workers
Union, Local 15, AFL-CIO as the exclusive col-
lective-bargaining representative of all our employ
ees in the appropriate unit with respect to rates of
pay, wages, hours, and other terms and conditions
of employment
WE WILL NOT in any other manner interfere
with , restrain , or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act
WE WILL reinstate the practice and policy that
existed prior to September 13, 1983, whereby em
ployees could take informal breaks
WE WILL rescind and abrogate the work rule an-
nounced September 14, 1983, punishing tardiness
with time off from work
WE WILL recognize, effective September 13,
1983, and on request, bargain with the Union as the
exclusive collective-bargaining representative of all
employees in the appropriate unit with respect to
rates of pay, wages, hours, and other terms and
conditions of employment and, if an understanding
is reached, embody such understanding in a signed
agreement
WE WILL, if we have not already done so, offer
Joyce Amero, Karen Anderson, Sharon Auclair,
Mildred Aubrey, Donald Babine , Geraldine Bod
well, Edith Brown, Catherine Cabral, Evelyn
Cabral, Pauline Cabral, Clara Curtis, Hazel Ellis
Carmen Glidden , Jean Harrington, Josephine
Jacobs, Nancy Lumbard, Antonio Lentini, Ellen
MacDonald, Edna MacFarland, Jacqueline Me-
deiros, Janet Miller, Michael Muniz, Michael Patn-
can, William Porter, Janice Rigney, Judith Rocha,
Doris Rowe, Robert Sheehan, Donald A Stewart,
Eduardo Tavares, Maria Lucia Tavares, Barbara
Theriault, Albert Tognazzi, and Alberta Trefry im-
mediate and full reinstatement to their former posi-
tions of employment, discharging, if necessary,
anyone who was hired after September 19, 1983, or
if their former positions no longer exist, to substan-
tially equivalent positions, without prejudice to
their seniority or other rights and privileges previ
ously enjoyed and WE WILL make them whole for
any loss of earnings suffered as a result of our dis-
crimination against them , plus interest
WE WILL make whole Carmen Glidden and
Dons Rowe for any loss of earnings suffered by
MASSACHUSETTS COASTAL SEAFOODS 503
reason of our having unlawfully taken disciplinary
action against them, plus interest, and WE WILL
remove from our records and files any documenta-
tion concerning such disciplinary action, and WE
WILL notify them that it will not be used as a basis
for future disciplinary action against them
MASSACHUSETTS COASTAL SEAFOODS,
INC
APPENDIX B
The following employees made an unconditional
offer to return to work effective November 10,
1983
Joyce Amero Ellen MacDonald
Karen Anderson Edna MacFarland
Sharon Auclair Jacqueline Medeiros
Mildred Aubrey Janet Miller
Donald Babine Michael Muniz
Geraldine Bodwell Michael Patrican
Edith Brown William Porter
Catherine Cabral Janice Rigney
Evelyn Cabral Doris Rowe
Pauline Cabral Robert Sheehan
Clara Curtis Donald A Stewart
Hazel Ellis Eduardo Tavares
Carmen Glidden Maria Lucia Tavares
Jean Harrington Barbara Theriault
Josephine Jacobs Albert Tognazzi
Nancy Lumbard Alberta Trefry
Antonio Lentini
The following employee made an unconditional
offer to return to work, effective March 26, 1984
Judith Rocha
answer to the consolidated complaint denying that it
committed any violation of the Act
The Union filed a petition in Case 1-RC-18015 on 15
September 1983 An election was held on 14 October
1983, pursuant to a stipulation for certification upon con
sent election executed by the parties and approved by
the Regional Director on 5 October 1983 Approximate
ly 94 people were tentatively eligible to vote and the
tally indicates 93 ballots were cast, 4 for the Union Peti
tioner, 12 against, and 77 challenged On 21 October
1983 both the Union and the Respondent timely filed
objections to the election On 29 December 1983, the
Acting Regional Director issued a report on objections
and challenged ballots concluding that the Respondent s
objections should be consolidated for hearing with Case
1-CB-58382 and that the Union s objections and chal
lenges to ballots should be consolidated with Cases 1-
CA-21429 and 1-CA-21579 for hearing before an admin
istrative law judge The Respondent filed exceptions to
the report on 2 March 1984 which were overruled by
the Board on 14 March 1984 On 27 March 1984, the Re
gional Director issued an Order consolidating Case 1-
RC-18015 with Cases 1-CA-21429 and 1-CA-21579
During the course of the trial, the Union filed a charge
in Case 1-CA-22171 on 28 June 1984 and an amended
charge on 31 July 1984 and it filed a charge in Case 1-
CA-22242, on 24 July 1984 Thereafter, the General
Counsel moved to consolidate all of these cases and this
unopposed motion was granted by me in an Order dated
10 September 1984
A hearing was held at Gloucester and Danvers, Mas
sachusetts, on 42 dates between 7 May 1984 and 27 Feb
ruary 1985, at which all parties were given a full oppor
tunity to participate to examine and cross examine wit
nesses and to present other evidence and argument
Briefs submitted on behalf of the parties have been given
the consideration On the entire record in these consoli
dated cases and from my observation of the demeanor of
the witnesses, I make the following
Gary S Cooper and Susan F Cole Esqs for the General
Counsel
Harold N Mack and Nathan L Kaitz Esqs of Boston,
Massachusetts for the Respondent
Ira Sills Esq of Boston, Massachusetts, for the Charging
Party
DECISION
RICHARD A SCULLY, Administrative Law Judge On
charges i filed by United Food and Commercial Workers
Union, Local 15 AFL-CIO (the Union), the Regional
Director for Region 1 National Labor Relations Board
(the Board), issued a consolidated complaint on 30 Janu
ary 1984, alleging that Massachusetts Coastal Seafoods,
Inc (the Respondent) committed certain violations of
Section 8(a)(1), (3), and (5) of the National Labor Rela
tions Act (the Act) The Respondent filed a timely
i The original charge in Case I-CA-21249 was filed on 30 September
1983 and amended charges were filed on 4 and 21 October 1983 The
original charge in Case 1-CA-21579 was filed on 17 November 1983 and
an amended charge was filed on 28 December 1983
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
At all times material the Respondent was a corpora
tion engaged in the business of processing frozen fish at
its plant in Magnolia Massachusetts Annually in the
course and conduct of its business the Respondent pur
chases and receives at its Magnolia facility goods materi
als, and supplies valued in excess of $50 000 shipped di
rectly to it from points outside of the Commonwealth of
Massachusetts The Respondent admits and I find that it
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The Respondent admits and I find that at all times ma
tenal the Union was a labor organization within the
meaning of Section 2 (5) of the Act
2 Case t-CB-5838 is not a part of this consolidated matter
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III THE ALLEGED UNFAIR LABOR PRACTICES
A Background
The Respondent had been in the business of processing
frozen fish for several years at its plant in an industrial
park in Magnolia Massachusetts just outside the city of
Gloucester For some time prior to September 1982, the
Company was in precarious financial condition which
had resulted in the employees pay being reduced by $1
per hour At that point, Michael Kobialka became inter
ested in the Company and along with Michael Mineo
took over its management Mineo acquired 50 percent of
the Company s stock from Owner Lee Harrington in
September 1982 and Kobialka purchased the remaining
50 percent from Harrington in March 1983 In January
1984, Kobialka bought out Mineo and became the owner
of 100 percent of the Company's stock
All of the Company s products emanate from blocks of
frozen fish which are unwrapped and prepared by em
ployees known as block openers The blocks are cut
with saws operated by cutters into the appropriate
portion size at the head of production line 3 After being
cut the fish is collected and stacked up by stackers
Next the fish goes into a wire mesh table known as the
scramble, where the pieces are flattened and separated
before they go into a batter machine 4 After being bat
tered and breaded, the pieces of fish go down a convey
or where they are picked up and into boxes by pack
ers After being packed the boxes go through a wrap
ping machine known as the shrink' and then are put
into cartons for shipping When filed the cartons are
lifted into racks by rackers Because of the nature of
their jobs, cutters and rackers receive higher pay than
other employees
The Company s normal production hours are from
7 00 a in until 3 25 p in There are regularly scheduled
15 minute breaks known as mug ups in the morning
and afternoon, in addition to a 35 minute lunch period
All production employees must punch a timeclock at the
beginning and end of the workday and at the beginning
and end of the lunch period
Discussions among employees about seeking union rep
resentation began about mid August, 1983,5 and contin
ued on a daily basis in the lunch room during mug ups
and lunch periods and on the production lines Among
the topics being discussed was lack of the job security,
the fact that longtime Foreman Butch Burbridge, who
had been out of work due to illness for an extended
period, no longer was guaranteed a job and a recent re
duction in insurance benefits These discussions were car
ried on openly in the plant and at least one line foreman,
Duarte Medina had overheard some of the conversa
tions and had even discussed the possibility of their seek
ing union representation with production employees
during late August On Thursday, 8 September a group
of employees decided to contact the Union and during
the afternoon mug up employees Karen Anderson called
3 At all times matenal the Company was operating two production
lines
* Some products would also be put through a shaping machine
5 All dates are in 1983 unless otherwise indicated
the union hall and spoke with Union President and Bust
ness Agent Helen Tarr about meeting to discuss the pos
sibility of representation Tarr suggested meeting the
next afternoon however, the meeting was scheduled for
the following Monday at 3 30 p in because several em
ployees were planning to take a boat cruise on Friday
evening During Thursday afternoon, the fact that the
meeting had been arranged was circulated among the
employees on the two production lines Duarte Medina
learned of the scheduled meeting and reported it to Mi
chael Kobialka on Thursday or Friday and told him he
thought Kobialka should speak to the employees before
they met with the Union Medina also told Plant Manag
er Paul Harrington and Line Foreman Jose Tavares
what he had learned
On Monday, 12 September, just before quitting time
Kobialka assembled the production employees and made
a speech to them about their seeking union representa
tion Thereafter, approximately 30 to 35 employees went
to the union hall to meet with Helen Tarr There was a
general discussion in the conference room concerning
Kobialka s speech, what the employees were concerned
about the plant, and what the Union could do for them
During the meeting Helen Tarr received a telephone
call Tarr told the employees that the caller had identi
feed himself as a CPA named James Cawley and told
her that many of the Mass Coastal employees were good
friends of his and he did not want to see them get hurt
He said that there was a blacklist with 15 names on it of
people who were going to be let go and he wanted to be
sure that the Union could protect them Some of the em
ployees told Tarr that they did not know anyone named
James Cawley but that it might be James Corbett the
company comptroller They said that he was a cowork
er but not a good friend During the course of the
meeting Tarr called International Union Representative
James Lee who spoke to the employees by speaker
phone Lee said that if two thirds of the employees
signed union authorization cards, the Union could go to
the company and talk about representing them Tarr had
placed authorization cards on the table and several em
ployees filled them out and returned them to her
Around 7 p in, at the request of employees who doubted
that James Corbett would have made the call Tarr had
told them about earlier, Tarr called Corbett s home
When he answered Tarr identified herself and said that
she had talked with him earlier When Corbett said he
had not talked with Tarr she said ' sorry' and hung up
Some of the employees took union authorization cards to
the homes of others who were not at the union hall and
returned them to Tarr that evening By the time Tarr left
the union hall after 10 p in that night she had received
approximately 35 executed cards
About 10 am on 13 September Tarr, Lee and local
Union Vice President Robert Moore went to the Mass
Coastal plant and asked to speak with Michael Mineo
They were told that Mineo was not there but that Mi
chael Kobialka was expecting them They went into Ko
bialka s office and Tarr told him that the Union repre
sented a substantial number of the employees and that
she would like to sit down and talk with him Kobtalka
MASSACHUSETTS COASTAL SEAFOODS
told them that he would not talk with them until he had
an opportunity to consult with an attorney That after
noon approximately 30 to 35 employees met with Tarr
and Lee at the union hall after work Tarr introduced
Lee to them and reported what had occurred during
their meeting with Kobialka that morning The employ
ees told the union representatives what had occurred at
the plant during the day and there was a discussion
about their future course of action There was another
meeting of employees at the union hall on the following
afternoon, 14 September
On 15 September, Tarr and Lee went to the Board's
office in Boston and filed the petition On 16 September,
Tarr and Lee went to meet with the Respondents attor
ney at his office as had previously been arranged When
they arrived, the attorney met them in a hallway and
told them that he was no longer representing the Compa
ny and that he had been asked to inform them that the
Respondent was not going to voluntarily recognize the
Union There was another meeting with the employees
that evening at the union hall at which they voted to go
on strike beginning the following Monday, 19 Septem
ber
The strike did commence on 19 September with at
least 35 employees participating in picketing the plant
The Respondent sent all strikers a letter, dated 19 Sep
tember, informing them that if they did not return to
work on Wednesday, 21 September, the Company would
start hiring replacements and a letter, dated 20 Septem
ber, stating that it had started hiring replacements Sev
eral replacements were hired and went to work at the
plant
On 8 November 35 strikers gave the Respondent writ
ten notice to their unconditional offer to return to
work 6 By letter of 10 November, the Respondent in
formed the Union that all strikers had been permanently
replaced Thereafter at various times, some of the strik
ers were recalled and returned to work for the Respond
ent
B Supervisory Issue
1 Status of Duarte Medina and Jose Tavares
During the summer of 1983, up to the date of the
strike 19 September the Respondent operated two pro
duction lines on which fish products were cut, prepared
and packed Line one normally employed 21 or 22
people under the direction of Line Foreman Duarte
Medina Line two on which Jose Joe Tavares was
line foreman, had between 10 and 20 workers Medina
had served as line foreman on one line or the other for
over 8 years Tavares had previously worked as line
foreman on a third line the Company had once operated
and had filled in as foreman on line two when Butch
Burbridge was out due to illness during the summer of
1983 Toward the end of August, Tavares was perma
nently designated as foreman on line two Medina re
ceived a salary of $415 in September 1983 and was paid
time and a half for overtime based on an hourly rate Ta
6 Employee Judith Rocha made an unconditional offer to return to
work on 23 March 1984
505
veres was paid $7 25 per hour plus $50 per week for per
forming his duties as line foreman until he was put on
salary in December 1983 The line foreman shared an
office in the production area with Plant Manager Paul
Harrington and Quality Control Person Nelson Harring
ton Male production employees wore blue shirts provid
ed by the Company which had their names and the com
pany name on them, while the plant manager , quality
control person, and line foreman wore white shirts simi
larly inscribed Medina and Taveres met most mornings
with Kobialka and Paul Harnngton to discuss the day's
production Sometimes employee performance was also
discussed 7 They also attended monthly production
meetings with Kobialka and other management officials,
some of which were held at a restaurant Medina took
over as plant manager whenever Paul Harrington was on
vacation or away from the plant for some other reason
Both Medina and Tavares initialed timecards for em
ployees when they were unable to punch their cards due
to a clock malfunction or in instances where they forgot
to punch in or out and when an employee had been as
signed to a job which was paid at a higher rate, such as
cutting or racking 8 The employees were generally paid
on the basis of the line foreman s initials on the timecards
although occasionally an office worker would have to
ask the line foreman to clarify what a designation on a
card meant Medina testified that, on occasion, employ
ees have come to him when they did not receive the
extra pay to which they were entitled and he would go
into the office to find out why and, if necessary initial
the timecard or put the proper information on it
Generally the employees had specific jobs and places
on the production lines and could switch places on the
line with other employees if they wished without the line
foremen s prior approval However it was the line fore
men's responsibility to see that the lines operated effi
ciently and they could and did assign employees to spe
cific jobs on a line, such as cutting, opening blocks, or
working on the scrambler' or from one line to another
when they determined that additional people were
needed on a particular job The line foremen reassigned
workers who could not keep up with the jobs they
were doing They also gave employees directions con
cerning production requirements the speed at which
they were to work and taking breaks When there was a
question of whether a piece of fish of marginal quality
should be packed or rejected the line foreman made the
final determination When the quality controller found a
problem with the product on a given line, he brought it
to the attention of the line foreman who was responsible
for correcting it Although they spent up to half of each
day working at various positions on their lines, either
filling in for employees taking breaks or helping out
whenever they felt an extra worker was needed the line
' Medina and Tavares denied attending production meetings however
the testimony of Kobialka and Nelson Harrington establishes that such
meetings occurred and that Medina and Tavares attended
8 Both Medina and Tavares denied having any authority to initial time
cards notwithstanding the fact that they regularly did so Michael Ko
bialka acknowledged that the line foremen were authorized to do this I
found this reflected adversely on the line foremen s credibility
506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
foreman s principal responsibility was, in Tavares words
to see that the people do the right job
Several employees testified that when they wanted to
leave work early or had to do so because they were ill,
they spoke to their line foreman who usually granted
their requests without consulting with anyone else
Medina testified that he had granted requests for time
off, however, Tavares, while acknowledging that he
could deny such requests, stated that whenever he grant
ed them he would tell Paul Harrington who always ap
proved Tavares action
Analysis and Conclusions
The General Counsel and the Charging Party contend
that Medina and Tavares are supervisors within the
meaning of Section 2(11) of the Act, while the Respond
ent denies this The burden of proving supervisory status
rests with the parties alleging that such status exists 9 It
is not necessary for an individual to possess all the crite
na outlined in Section 2(11) in order to be considered a
supervisor Possession of one or more of these criteria is
sufficient to establish an individual s supervisory status
and the Board will not engage in balancing the supervi
sory aspects of the job with the nonsupervisory in order
to determine his status 10 I find that both Medina and
Tavares are statutory supervisors
One aspect of supervisory status is the authority to
assign and responsibly direct employees with the use of
independent judgment Medina and Tavares directed the
employees working on their production lines and in
doing so they exercised independent judgment in assign
ing the employees to specific jobs on the lines and reas
signing them in cases where they felt an employees fail
ure to keep up with a job impeded production 1 i Al
though there was evidence that employees could some
times switch positions on a line on their own and that to
some extent the nature of the product being run dictated
the number of people needed on a given job such as cut
ting, it is clear that the line foremen had the final say as
to where a given employee worked Besides assigning
positions on the line they could and did assign additional
people to jobs such as racking, which called for in
creased pay when they determined it was necessary
Likewise, the foremen determined when and where they,
themselves, would work on their lines, based on their
perception of the needs of the moment They gave direc
tions concerning the length and frequency of informal
breaks and the speed at which employees should work
On one occasion Tavares ordered a packer who was
packing with only one hand to pack with two hands or
go home 12 The line foremen had the overall responsibil
8 Soil Engineering Co 269 NLRB 55 (1984) RAHCO Inc 265 NLRB
235 247 (1982)
10 Gurabo Lace Mills 249 NLRB 658 (1980)
11 See Han Dee Pack, Inc 249 NLRB 725 727-729 (1980)
12 Tavares acknowledged that he gave the packer such an order
during questioning by counsel for the General Counsel Following a
recess in response to questions from Respondents counsel Tavares
claimed he gave this order only after conferring with Paul Harrington
who told him what to say to the packer I do not credit this later testimo
ny
ity for seeing that quality standards were being met and,
when a question arose about the quality of the product
being produced on their lines, they made the final deter
mination about whether particular items met those stand
ards Their discretionary authority to assign and to direct
the work force indicates supervisory status 13
Several other factors lead to the conclusion that the
line foremen were statutory supervisors Employees were
paid on the basis of the line foremen' s initials on their
timecards, either indicating that employees had done
work calling for pay at a higher rate or that they were
on the job but had not had their timecard properly
stamped This was not a routine, clerical function and
evidenced supervisory authority 14 There were occasions
when employees who did not receive the pay to which
they were entitled spoke to Medina who went to the
office and resolved the problem without the involvement
of higher management This authority to adjust gnev
ances is an attribute of supervisory status 15
Although the Respondent denies that line foreman
could grant time off, the record establishes that Medina
and Tavares often granted employees' requests to leave
work early without first conferring with Paul Harrington
or Kobtalka There was no evidence that any employee s
request to leave work early was ever refused once the
line foreman had approved it Granting time off is indica
tive of supervisory authority 16 While there was appar
ently little necessity for disciplinary action in the plant
described one incident in which he observed an employ
ee he considered too intoxicated to work and report this
fact to Kobtalka The employee was sent home Al
though Kobialka testified that he made an independent
determination' to send the employee home, he offered
no description or details as to any independent investiga
tion or observation he made of the employee's condition
From all that appears, Kobialka relied on Medina's judg
ment that the employee was unfit to work in making his
determination It was Medina who actually sent the
employee home The authority to effectively recommend
action without independent investigation by superiors
qualifies one as a statutory supervisor 17 Medina had
such authority
I found that throughout their testimony both Medina
and Tavares attempted to create the impression that they
had no supervisory responsibility whatsoever and that
just about every action they took was at the direction or
with the approval of Plant Manager Paul Harrington
Kobialka too tried to make it sound like Paul Harnng
ton was solely responsible for supervising production
Their testimony was in marked contrast to that of sever
al production line employees who identified the line
foremen as their principal source of supervision and was
not credible 18 Although he was still employed as plant
1 3 Washington Beef Producers 264 NLRB 1163 (1982) Serendipity Un
Ltd 263 NLRB 768 (1982)
14 ITT Lighting Fixtures 249 NLRB 441 442 (1980) Monroe Mfg Co
200 NLRB 62 66-67 (1972)
15 HS Lordships 274 NLRB 1167 1174 (1985)
18 HS Lordships supra
17 ITT Lighting Fixtures 265 NLRB 1480 1481 (1982)
18 Kobialka gave the Board an affidavit on 26 September in which he
identified Medina and Tavares as supervisors along with Paul and Nelson
Continued
MASSACHUSETTS COASTAL SEAFOODS
manager at the time of the hearing, Paul Harrington was
not called as a witness by the Respondent and did not
corroborate the testimony of the line foremen and Ko
bialka As a practical matter, if the line foremen were not
supervisors then Paul Harrington would have been the
sole supervisor of over 50 employees working on two
different production lines and in other areas of the
plant 19 Given the facts that the Respondents fish pack
ing business was subject to strict governmental quality
standards and that since Kobialka's arrival there had
been a concerted effort to increase production and maxi
mize product recovery, a much lower employee supervi
sor ratio would be expected In this regard, it is notewor
thy that the line foreman s positions were never left un
filled for any significant periods Whenever one of the
line foremen was out or if Medina was filling in as plant
manager in the absence of Paul Harrington , Nelson Har
nngton took over as a line foreman Nelson testified that
when he did so, although he was still responsible for his
quality control duties, running the line was his `prime
responsibility
The line foreman were paid on a different basis and
significantly more than production employees Medina
was on salary and Tavares received $50 extra a week
after being promoted to the foreman s position until he
eventually was put on salary They wore white shirts
similar to that of Paul Harrington and had access to the
Harrington's office on a regular basis While other em
ployees may have used the office on occasion to use the
telephone located there, their access was much more lim
ited than the foreman's Medina and Tavares determined
their own breaks and did so even after Kobialka restrict
ed informal breaks during the week of 12 September
Medina regularly filled the position of plant manager
whenever Paul Harrington was not working and was
generally considered to be part of management It was
Medina who approached Donald Steward about taking
on additional cleanup duties in early summer 1983 rather
than hiring additional help In this regard Stewart negoti
ated the amount of additional pay he was to receive with
Medina He finally agreed to take the additional duties
when offered $20 by Medina and Paul Harrington Al
though Tavares did not have as much experience as
Medina as a line foreman and probably did not receive
the same deference, there was no indication that his su
pervisory authority as a line foreman was any less than
that of Medina when he was filling the same position
Based on all the foregoing reasons I conclude that both
Durate Medina and Jose Joe Tavares were statutory
Harrington Interestingly Nelson Harrington who was no longer em
ployed by the Respondent when he testified readily acknowledged that
when he served as a line foreman he had authority to do some of the
things Medina and Tavares claimed they were not authorized to do he
arranged with the other line foreman to get people for his line if produc
tion was not keeping up and vice versa and he allowed employees who
were not feeling well to go home without consulting anyone He also ac
knowledged attending monthly production meetings with members of
management and said Medina and Tavares also attended Nelson testified
that there was a team of people consisting of himself Paul Harrington
Medina and Tavares who were responsible for getting the product out
on a daily basis Paul Harrington was the top man while the other
three were a little lower echelon
19 Although Kobialka was often present in the production area he did
not engage in direct supervision of rank and file employees
507
supervisors within the meaning of Section 2(11) and
agents of the Respondent within the meaning of Section
2(13) of the Act 20
2 Status of Nelson Harrington
Nelson Harrington was the brother of Plant Manager
Paul Harrington and the son of the former owner of the
Company From at least 1978 and continuing through
the summer and fall of 1983, his regular position was that
of quality control person In that position he had the re
sponsibility to see that the blocks of fish the Company
processed and its finished products met quality standards
and that employees complied with health regulations He
was paid a salary of $390 per week and was not required
to punch a timeclock His immediate supervisor was Paul
Harrington He testified that he regularly tested the
products to see that they were properly battered and
breaded and met size and weight requirements If he
found that an employee was doing something that would
adversely affect the quality of the product, he would
first ask the employee to stop and if they did not, he
would bring it to the attention of the line foreman or the
plant manager He attended monthly production meet
ings with Kobialka and other members of management at
the plant and, on occasion, at the restaurant, and had
told employees that he had done so He took his breaks
when he determined that his work was caught up, but he
was given no special privileges and had no ownership in
terest in the Company The terms of the sale of the buss
ness from his father to Kobialka and Mineo did not guar
antee him continued employment with the Company and
his status and duties did not change when they acquired
ownership Prior to becoming the Company s quality
controller in 1978, Nelson served as a line foreman and,
after that date, continuing through September 1983
whenever one of the line foremen was out, he filled in
for him During the summer of 1983 when Line Fore
man Butch Burbridge was out due to illness, he ran one
of the production lines until Tavares was appointed line
foreman Even when he was acting only as quality con
troller and not serving as a line foreman he sometimes
initialed timecards for employees when Paul Harrington
or a line foreman was not available although as quality
controller, he had no responsibility to do so Nelson con
sidered himself a member of the Company s management
team responsible for getting out the Company s product
He wore a white uniform shirt as did the plant manager
and line foremen
Analysis and Conclusions
The position of quality controller did not involve a
significant amount of supervisory activity and, in and of
itself probably would not qualify the incumbent as a su
pervisor within the meaning of Section 2(11) However,
the evidence indicates that Nelson Harrington was in a
unique situation with the Respondent, in that, for years
he had regularly filled in as a line foreman a position
which I find does meet the criteria of a statutory super
visor There was no clear delineation as to what function
20 Pacific Coast International Meat Co 248 NLRB 1376 1377 (1980)
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nelson performed on a day to day basis He might be
simply quality controller one day and a combination
quality controller and line foreman the next The facts
that while functioning as quality controller he initialed
employee timecards (something the line foremen were
authorized to do but the quality controller was not) and
employees were paid on the basis of his doing so, that
Nelson, himself and other employees considered him a
part of management , and that Kobialka identified him as
one of the Company s supervisors, confirm this His
salary , not having to punch a timeclock , white uniform
shirt , use of the plant managers office attendance at
production meetings , and freedom to take his breaks
whenever he chose , all served to set him apart from the
rank and file employees Considering all the circum
stances, I find that Harrington was a statutory supervisor
and that the Respondent should be held responsible for
his conduct even when he was not acting as a line fore
man as the employees would reasonably believe that he
was acting on behalf of management because of the posi
tion in which the Respondent had placed him and that
he was an agent within the meaning of Section 2(13) of
the Act 21
C Alleged Violations of Section 8(a)(1) and (3)
1 Incidents involving Karen Anderson
a Warning by Paul Harrington
On 7 September employee Karen Anderson called the
plant at 6 45 am and informed Nelson Harrington that
she would be an hour late for work because it was her
son s first day of school and she wanted to get him off
to the bus Nelson told her he would tell the foreman
When Anderson arrived at work her timecard was not
in its slot and she was told to see Plant Manager Paul
Harrington in his office Harrington in a loud , angry tone
of voice told Anderson that if she was late one more
time she would be fired When she tried to explain about
getting her son off to school , Harrington said he did not
care about what she had to say and repeated that she
would be fired if she were late again Anderson had a
history of being late for work two or three times a week
for at least 2 years If she was less than 7 minutes late no
action was taken , but if more than 7 minutes her pay
was docked 15 minutes and so on for each quarter hour
after that Anderson usually worked on the scrambler
and when she was late one of the foreman Paul Harring
ton, or , on occasion Kobialka would work the scram
bler until she arrived Prior to the summer of 1983 none
of the supervisors had ever spoken to her about her tar
diness except in a joking manner Anderson testified that
one day in July 1983 she came in late and Kobialka,
who was working the scrambler in her absence told her
she would have to start getting out of bed in the morn
ing like everyone else Also, some time in August Paul
Harrington spoke to her during lunch and said that she
had better try to get into work on time In neither case
was Anderson given a formal warning nor was any disci
plenary action taken The General Counsel alleges that
Anderson was given a warning and threatened with dis
charge for her tardiness on 7 September because at that
point the Respondent had become aware that the em
ployees were discussing the possibility of seeking union
representation and that this disciplinary action was taken
in retaliation for the employees union discussions in vio
lation of Section 8(a)(1) and (3) of the Act
Given the evidence of union animus on the part of the
Respondent, the fact that the formal warning to Ander
son occurred about the time the employees began their
union activity and the fact that for the most part her ha
bitual tardiness had been condoned I find that the Gen
eral Counsel has made out a prima facie showing under
Wright Line 22 which is sufficient to support the infer
ence that protected conduct was a motivating factor in
the Employers decision to give Anderson a warning for
her tardiness
Although the employees had not yet decided to con
tact the Union about representation as of 7 September
since the latter part of August there had been discussions
in the breakroom and on the production line about such
a possibility Supervisor Duarte Medina was aware of
these discussions and had , in fact , as is discussed below
made a threatening comment to Anderson a few days
before However I am not convinced that the stirrings
of union activity influenced the Respondents decision to
give Anderson a warning Kobialka testified that on 7
September he became aware of Anderson s absence
when production began and there was need for a scram
bler He asked Paul Harrington where Anderson was and
was told she had called in to say she would be late Ko
bialka told Harrington to tell Anderson that the next
time she was late would be her last Kobialka testified
that he had personally spoken to Anderson about her tar
diness on two occasions during the summer of 1983 and
that Paul Harrington had also done so Although I do
not credit Kobialka s denial that he was aware of the
union activity going on in the plant at that point there is
no reason to believe that he was specifically aware of
Anderson s involvement that she was a leader of such
activity or that she would be singled out for disciplinary
action because of it Although there was testimony that
Anderson s frequent tardiness was regarded as something
of a joke it does not appear that Kobialka considered it
to be such Both he and Harrington had previously
spoken to Anderson about the problem in an informal
nonthreatening manner and had explained that her tardi
ness was hampering production There was general
agreement that Anderson was a very good scrambler a
position near the head of the line which had a bearing on
how efficiently the line operated Anderson s tardiness
on 7 September was not a spontaneous occurrence but
one which she obviously could have anticipated since it
involved her sons first day of school Given her tardi
ness problems and the comments she had had from both
Kobialka and Harrington it appears reasonable to
assume that Anderson did not seek prior approval of her
absence on 7 September because she feared it would not
be granted This warning to Anderson appears to be the
21 RAHCO Inc supra at 248 Han Dee Pak Inc supra at 728-729 22 251 NLRB 1083 1089 (1980)
MASSACHUSETTS COASTAL SEAFOODS
logical next step in the Respondents attempts to get her
to work on time as she had not only ignored informal
suggestions that her tardiness was unacceptable but had
deliberately come in an hour late without permission
Nothing Harrington said to Anderson when he gave her
the warning indicated that it had anything to do with
union activity at the plant or her involvement in it
While the timing of the warning may seem suspect '23 It
was Anderson s voluntary action not the Respondent s
that resulted in the warning being given on 7 September
There is no support for the argument that Anderson was
the victim of disparate treatment as there is no evidence
that any other employee had the kind of tardiness record
Anderson had I find that the evidence establishes that
the Respondent would have taken the same action in for
mally warning Anderson that her tardiness would no
longer be tolerated even in the absence of protected con
duct on the part of the employees and I shall recommend
that this allegation be dismissed
b Threat by Duarte Medina
As noted above, Anderson and other employees on the
production lines had been openly discussing their dissat
isfaction with certain matters such as what some per
ceived as unfair treatment of Foreman Butch Burbridge,
and the reduction in insurance benefits, and they were
exploring the idea of seeking union representation during
the latter part of August and early September Duarte
Medina admitted that he was aware that these discus
sions were going on among the employees Karen An
derson testified credibly and without contradiction that
some time in late August after she had returned from
vacation on a morning when she had been late for work,
Medina came to her while she was working on the
scrambler and told her that if it was a union shop she
would not get away with coming in late the way she did
The General Counsel contends that this was an unlawful
threat while the Respondent argues that it was friendly,
bantering comment and, in any event was a lawful ex
pression of opinion regarding consequences of unioniza
tion
Unlike the situation in Tri Cast Inc 24 relied on by
the Respondent Medina s remark was not phrased in
terms of explaining the change in the relationship of em
ployer and employees when a bargaining representative
is selected nor was there any reference to the possible
effects of a collective bargaining agreement on the Re
spondent s tardiness policy 25 It was a flat statement that
if a union were selected the Employer would terminate
an existing beneficial situation that is it would no longer
permit her to get away with coming in late This was
an unlawful threat of retaliation in violation of Section
8(a)(1) 26 Although Medina spoke to Anderson in a
friendly manner, it does not change the fact that it was
Medina who raised the subject of union representation
and stated that it would directly and adversely affect
Anderson s employment situation
23 See Limestone Apparel Corp 255 NLRB 722 736 (1981)
24 274 NLRB 377 (1985)
25 See Nice Pak Products 248 NLRB 1278 (1980)
26 See Greensboro News Co 257 NLRB 701 (1981)
2 Duarte Medina s conversation with Judy Rocha
and Hazel Ellis
509
Employee Judy Rocha testified that on 7 September
she was working on line 1 putting stickers on packages
as they came off the line Foreman Duarte Medina was
working nearby and Rocha told Medina that the girls
had been talking about the fact that they needed a union
in the plant Medina left and returned about 5 minutes
later while Rocha and others were still talking about a
union At that point, Medina said to Rocha that Kobialka
did not want a union in there and that he would shut the
place down if a union came in Rocha repeated Medina s
comments to the employees on line 1 immediately after
wards Employee Hazel Ellis testified that one day
during the same week she was working on the shrink
about 3 to 5 feet from where Judy Rocha was working
putting stickers on packages During the course of a con
versation in which she told Medina the employees felt
they needed a union, Medina said that if a union came
into the plant it would close down
Medina denied ever telling either Rocha or Ellis that
the plant would close if a union came in He denied ever
discussing the subject of a union with Ellis He recalled
once talking to Rocha when she raised the subject of
how unfairly she felt the Company had treated Butch
Burbridge and said she was thinking of calling in a
union According to Medina, he told her if he was in her
place, maybe he would do the same thing
Based on their demeanor and testimony I find the tes
timony of Rocha and Ellis more credible than that of
Medina27 and I find that Medina did threaten that the
Respondent would close the plant if a union came in
Ellis in particular impressed me as an honest witness
with a good recollection of the incidents she testified
about I find it likely that both Rocha and Ellis were de
scribing the same incident, given Ellis testimony that
when the incident occurred Rocha was nearby putting
labels on packages and Rocha s testimony that other em
ployees were around It appears that there was a general
conversation going on in which the need for union repre
sentation was being discussed and it is not surprising that
each employee considered Medina s remarks to be direct
ed to her I find that Medina s remarks concerning plant
closure which did not purport to be based on any objec
tive facts constituted an unlawful threat of retaliation in
the event the employees chose union representation and
violated Section 8(a)(1) of the Act
27 Although he denied having any interest in whether the employees
sought union representation Medina admitted interrogating Ed Tavares
about whether he had signed a union authorization card and asking
Donald Stewart for the latest rumors about the Union He also admitted
informing Kobialka about the union activity in the plant and asking Ko
bialka to speak to the employees about it His threat that the plant would
close was similar to those made by Paul Harrington and Michael Ko
bialka at about the same time I did not find Medina to be a credible wit
ness In several instances he admitted much of the substance of remarks
attributed to him in conversations with other witnesses but then flatly
denied making the statements alleged to be unlawful
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Medina s conversation with Donald Stewart
On the afternoon of Friday 9 September, Medina
spoke to employee Donald Stewart near the freezer area
of the plant Medina asked Stewart what the latest news
was Stewart asked what Medina meant and he said
'aren t you one of the new union members9" Stewart
said that was the first he had heard about it, but said it
would be a good thing that they needed a union
Medina responded that Kobialka would close the plant
and they would all be out of a job, then walked away
Medina admitted asking Stewart what the latest rumors
were and when Stewart said he did not understand,
Medina said about the union Stewart said he did not
know and nothing further was said He denied telling
Stewart that the plant would close if a union came in As
indicated above, I did not consider Medina to be a credi
ble witness and I did not believe his testimony about this
incident While Stewart was sometimes argumentative
and evasive on cross examination, I believe his testimony
about this incident in which Medina made a threat of
plant closure almost identical to that he made to Rocha
and Ellis at about the same time The Respondent con
tends that Medina s questioning of Stewart was not coer
cave and did not violate the Act, citing the Board s deci
sion in Rossmore House 28 However unlike the circum
stances in that case Stewart was not known to be an
active and open union supporter Medina sought him out
and raised the subject of a union Even if Medina s in
quiry about the latest rumors might have been innocu
ous his question as to whether Stewart was a union
member which Stewart denied, was not This question
was immediately followed by a threat of plant closure in
the event a union came in I find Medina s interrogation
of Stewart to be coercive and a violation of Section
8(a)(1) under the criteria set forth in Rossmmore House,
supra I also find Medina's threat of plant closure to be a
violation of Section 8(a)(1)
4 Actions of Paul Harrington
a Conversation with Karen Anderson on 9 September
On the evening of 9 September several employees at
tended a 3 to 4 hour boat cruise around Gloucester
harbor During the course of the cruise Karen Anderson
and other employees had discussed the Union among
themselves As the boat was docking at the end of the
cruise Plant Manager Paul Harrington who was on
board went up to Anderson and while pointing his
finger at her and speaking in a loud, angry voice told her
that the employees were crazy if they went union, that
the Company could not afford a union , that 30 employ
ees would lose their jobs, that in 6 months the plant
would close and that, then, Harrington would also lose
his job Anderson responded that she did not see how he
could say this without knowing what the employees
wanted and that they did not want more money, but
wanted job security There were at least three other em
ployees who overheard the exchange between Harring
28 269 NLRB 1176 (1984)
ton and Anderson 29 Harrington had apparently con
sumed several alcoholic beverages during the cruise
The Respondent contends that Harrington s remarks to
Anderson were not unlawful because they were made in
the context of a friendly social event, he linked the shut
down of the plant to the Company s inability to afford
the Union and because Harrington was intoxicated at the
time Whatever the nature of the cruise, the evidence is
clear that Harrington did not simply mention the Union
in the course of general conversation He sought out An
derson, who had not previously spoken to him about the
Union, and in a loud, angry manner threatened that she
and other employees would lose their jobs and that the
Company would close down in 6 months if the Union
came in While he may have been intoxicated, there is no
indication that Harrington was incoherent or not respon
sible for what he said Predictions of layoffs and plant
closure as the result of union activity are unlawful unless
they are statements of provable factual consequences
outside of the employers control As in the case of Mi
chael Kobialka's speech to the employees on 12 Septem
ber, discussed below, Harrington s comments did not
purport to be based on objective facts and figures, noth
withstanding his statement that the Company could not
afford the Union He offered no factual basis for his con
clusions that 30 employees would lose their jobs or that
the plant would close 6 months after the Union came in
His statements, which were remarkably similar to those
Kobialka would make a few days later, were unlawful
threats of economic reprisals for engaging in union activ
ity and violated Section 8(a)(1)
b Conversation with Josephine Jacobs on 14
September
On 14 September, during the lunch period employee
Josephine Jacobs was sitting at a picnic table outside the
plant with a group of employees including Supervisors
Joe Tavares and Paul Harrington Speaking to Jacobs,
Tavares said that the employees did not need a union
and others at the table agreed with him Jacobs respond
ed Why not they 11 probably give us the shaft At
that point Paul Harrington said that if the Union came
in the plant would be closed down Paul Harrington s
brother, Kevin, an employee who was also present, told
Harrington to hush and they stopped talking Jacobs
credible testimony about this incident was not contra
dicted and the Respondents brief indicates that it does
not contest the allegation in the complaint concerning
this incident I find that Paul Harrington s threat of plant
closure on 14 September, which was similar to the one
he made to Karen Anderson on 9 September and to the
threats of closure made by Kobialka on 13 September,
violated Section 8(a)(1)
29 The findings concerning this conversation between Paul Harrington
and Karen Anderson are based on the mutually corroborative testimony
of Anderson Hazel Ellis Pauline Cabral and Sharon Auclair Although
he was still employed as plant manager at the time of the hearing Paul
Harrington was not called as a witness I infer that had he been called
Harrington s testimony would have been adverse to the Respondent See
Martin Luther King Sr Nursing Center 231 NLRB 15 fn 1 (1977)
MASSACHUSETTS COASTAL SEAFOODS
c Alleged threat to Joyce Amero
Employee Joyce Amero testified that one day during
the week of 12 September near the end of the lunch
period she sat down at a picnic table where Paul and
Nelson Harrington and Joe Tavares were seated She
overheard the last bit of a conversation that was going
on' She heard Paul Harrington say if a union comes in,
no way will this place keep running Harrington s re
marks were not directed to Amero, who he may not
even have known was present, but to his brother Nelson,
and Tavares, who were both supervisors Amero was not
aware of what had been said before she sat down I find
this evidence is insufficient to establish a violation of the
Act, since without knowing the conversation that pre
ceded that part Amero overheard, it is not possible to
put Harrington s remarks in their true context before de
termining whether or not they were unlawful, which
fairness requires I shall recommend that this allegation
be dismissed 30
5 Michael Kobialka s speech to employees on 12
September
After learning that employees planned to meet with
representatives of the Union, on 12 September, Michael
Kobialka called a meeting of all employees in the pro
duction area of the plant prior to quitting time that after
noon According to the transcript of a tape recording
made of the meeting 31 Kobialka began by telling the
employees that he was not trying to threaten them, but
he wanted the employees to be aware of certain facts
before they made a decision He stated that although the
Company had been bankrupt 12 months earlier, it had
been brought back to the point that it was a viable
entity, but that it `cannot and will not support 52
people," the number of nonsupervisory employees, `on
union wages He said that the Company only had so
many dollars that are allocable to payroll and that the
amount was not going to change This meant the
Company would have to cut back to one production
line, employing exactly 24 people as otherwise the
Company would be bankrupt within 12 months of
going union He went on to say that the Company s
competitors were not union shops and that Gorton s
and 0 Donnell Usen, which paid union wages' were
not competitors of the Company in the food service buss
ness they could not afford it and would lose money if
they tried He said that employees should vote as they
saw fit on a Union, but he could tell them for certain"
that if the Company became a union plant there would
be 24 people still employed who would be chosen strict
ly on the basis of seniority The person 25th on the se
niority list would probably' not be working and he
knew for sure that number 30 on the list would not be
working He went on to say that it was a question of
whether the Company paid 24 or 52 employees the same
amount of money and that he could not do anything
about it It was not that he did not want to pay them or
90 See Burlington Industries 257 NLRB 712 726 (1981)
31 The parties have stipulated that the transcript is an accurate account
of what transpired at the meeting
511
that he did not think they were worth it, it was a
simple economic fact that he did not have the money
At that point an employee pointed out that if the em
ployees voted in a union there was no guarantee that the
Company would have to pay union wages To this
Kobialka responded that he presumed that money was
the number one factor' because he did not `jump all
over people', therefore, the underlying reason for seek
ing a union was the benefits and the money He went
on to say he had read the union contract very, very,
very carefully and the only thing it would give the em
ployees that they did not already have was pension and
benefits and money' Consequently, if a union were
voted in and did not require the Company to pay these
wages, Kobialka asked, what did you gain?" When an
employee answered job security, Kobialka responded
You mean to tell me that you're going to be a union
shop and I in telling you that 36 of you are going to lose
your jobs Where the hell is the security in that? An
employee commented that if wages did not go up, there
would be no layoff, Kobialka responded that if a union
got in, he would have no control over wages, the union
could demand union wages and he would pay them
as far as the money will go and the rest of the employ
ees would be laid off He repeated that 36 employees
would be laid off and that the only thing the union can
give you that would be a benefit would be more money
and a pension fund At that point, Kobialka reiterated
that it was all right with him if the employees wanted a
union , but he was going to run one production line in
perpetuity because he could not afford to turn the
other line on After some questions and discussion con
cerning seniority and the status of Line Foreman Butch
Burbridge, an employee asked about a raise Kobialka re
sponded that a 60 cent raise would be given on 1 Janu
ary, saying that it had been in the plans for a long
time, ' but that it still left them short of the union
After responding to a question about the Company get
ting additional business, Kobialka again repeated that
there was only enough money to keep 24 employees,
based strictly on seniority He then said that if the em
ployees had grievances he had no problem with five or
six of you forming a committee to come and meet with
me once a week The discussion turned to Kobialka s
plans to build a new $2 5 million facility at the Head of
the Harbor in Gloucester which would involve about
40 additional jobs Kobialka stated in connection with
this that he had a buyer for the present plant and wheth
er he kept the plant built a new one at the Head of the
Harbor, or would move this plant out of town is a func
tion of whether or not someone is hanging a big gun
over my head " He went on to say "I don't have to be in
Gloucester" and all I need is a freezer," although I d
like to stay in Gloucester " There was some further dis
cussion of the proposed new plant during which Ko
bialka stated that he anticipated that current employees
would be employed at the new plant at their same rates
of pay and that he anticipated approval of the project by
the Gloucester City Council because we've got a good
financial statement "
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that during this meet
mg Kobialka violated Section 8(a)(1) of the Act in sever
al instances by threatening that the plant would close or
move or that there would be layoffs if a union came in
and that the employees selection of a union to represent
them would be futile by promising employees a wage in
crease and by suggesting that the employees form a com
mittee to discuss their grievances with him The Re
spondent contends that Kobialka s remarks did not con
stitute an unlawful threat of reprisal for seeking union
representation but simply pointed out the adverse conse
quences unionization would have based on objective
facts, that the reference to a wage increase was simply
the lawful announcement of a decision previously arrived
at and unrelated to the issue of unionization and that the
suggestion that the employees form a committee to meet
with Kobialka was not unlawful because there was no
actual or implied promise to remedy grievances
Analysis and Conclusions
In NLRB v Gissel Packing Co 32 the Supreme Court
established the standard to be used to determine whether
an employers predictions concerning the effect of union
ization are lawful or not The Court stated 33
Thus, an employer is free to communicate to his
employees any of his general views about unionism
or any of his specific views about a particular
union so long as the communications do not con
tarn a threat of reprisal or force or promise of ben
efit' He may even make a prediction as to the pre
case effect he believes unionization will have on his
company In such a case however, the prediction
must be carefully phrased on the basis of objective
fact to convey an employers belief as to demonstra
bly probable consequences beyond his control or to
convey a management decision already arrived to
close the plant in case of unionization If there
is any implication that an employer may or may not
take action solely on his own initiative for reasons
unrelated to economic necessities and known only
to him the statement is no longer a reasonable pre
diction based on available facts but a threat of retal
Cation based on misrepresentation and coercion and
as such without the protection of the First Amend
ment We therefore agree with the court below that
[c]onveyance of the employers belief, even though
sincere, that unionization will or may result in the
closing of the plant is not a statement of fact unless
which is most impropable the eventuality of closing
is capable of proof ' As stated elsewhere, an em
ployer is free only to tell what he reasonably be
lieves will be the likely consequences of unioniza
tion that are outside his control and not threats of
economic reprisal to be taken solely on his own vio
lation
When Kobialka told the employees that the Company
would be bankrupt within 12 months of going union if it
32 395 US 575 (1969)
33 Id at 618-619
had to pay union wages to the people currently em
ployed he gave the employees no explanation of what
he meant by union wages or about how he made the
calculations which led him to this conclusion His failure
to present any objective facts or figures as a basis for his
conclusion that bankruptcy was the inevitable conse
quence of unionization made it an unlawful threat of
business closure rather than a prediction capable of
proof 34
Equally coercive as well as equally lacking in sup
porting facts and figures, was Kobialka s statement that
the only alternative to bankruptcy was for the Company
to operate a single production line employing exactly 24
people According to Kobialka, the Company had only
so many dollars allocable to payroll and at union wage
rates these dollars would cover only 24 people He re
peatedly stated that only 24 employees would be work
ing if a union came into the plant This meant that a ma
jority of the employees would be laid off At the hear
ing Kobialka testified that Company Comptroller James
Corbett had analyzed the provisions of a union contract
the Company had in its files and concluded that applying
the wages and benefits called for in that contract to the
Respondents employees would result in labor costs of
$180 000 to $200,000 annually, which was 250 percent of
the Company s anticipated profit for 1983 and it was on
this basis that he reached his conclusions However he
gave no such figures in his speech to the employees The
union wage rate he claimed to have used in making his
calculations was taken from a contract between the
Union and Gorton s, a large corporation in nearby
Gloucester which in his speech Kobialka acknowledged
was not a competitor of the Respondent or even engaged
in the same type of business There was no basis for Ko
bialka s use of the wage rates in the Gorton s contract
since it was not a comparable business or a competitor
and he had no reason to presume that the Union would
insist on similar rates Consequently his predictions were
not based on objective facts 35 Furthermore his insist
ence that the amount of money allocable to payroll
would not change, did not purport to be based on factors
beyond his control, but on his determination not to
change them Thus the dire consequences he was pre
dicting would result from his own volitional act Ac
cording to Kobialka the Company was capable of gener
ating at least as many payroll dollars while operating
only one production line as it had been generating with
two lines However his unwillingness to increase the
Company s payroll meant that the second line would be
closed down and the employees laid off This was clearly
a threat of economic reprisal and a violation of the
Act 36 Although during his speech employees suggested
that the economic consequences he was predicting would
not follow if wages were not increased Kobialka ig
nored the implications of such suggestions and dismissed
them by saying that increased wages and benefits were
the only things that a union could give them When an
36 Fred Lewis Carpets 260 NLRB 843 849 (1982) El Rancho Market
235 NLRB 468 471 (1978)
31 See Starkville Inc 219 NLRB 595 (1975)
36 NLRB v Gissel Packing Co supra
MASSACHUSETTS COASTAL SEAFOODS 513
employee stated that a union could provide job security
Kobialka responded that if a union came in 36 people
were going to lose their jobs and where the hell is the
security in that? I find that rather than being a state
ment of the provable economic consequences of union
ization, Kobialka s comments were simply unlawful
threats to close the plant or lay off a majority of the em
ployees if they chose the Union to represent them 37 and
violated Section 8(a)(1) 38
Kobialka s speech also violated the Act by telling the
employees their organizing efforts would be futile As
noted above he emphasized that if a union came in there
would be no change in the amount of money the Re
spondent would spend on payroll, only in the number of
employees who would remain on the job According to
Kobialka, regardless of collective bargaining by their
chosen representative, there would be only one result
the Respondent would operate a single production line
employing exactly 24 people and would run it for
perpetuity Further denigrating the collective bargain
ing process, he stated that the entire matter was simply
a question of whether we pay 24 of you more or 52 of
you less-that s what it boils down to I can t do any
thing about it The clear implication was that neither
the employees nor a union could do anything about it
either On the subject of job security, Kobialka told the
employees flatly the union is not going to give you any
more security than you have today By saying that they
would end up with no better terms and conditions of em
ployment than if they had no union representation Ko
bialka told the employees it was futile to select the
Union as their bargaining representative His statements
violated Section 8(a)(1) as
During his speech, Kobialka responded to one employ
ee s question about a pay raise by stating that the Com
pany was going to give a 60 cent an hour raise on 1 Jan
uary He went on to say that this raise was something
that s been in the plans for a long time The announce
ment of new benefits during a union organizing cam
paign is viewed by the Board as an unlawful attempt to
influence the employees in their choice of a bargaining
representative unless the employer establishes that the
timing of its announcement is governed by factors other
than the Unions appearance on the scene 4O The Re
37 I have considerable doubt that Kobialka s predictions of layoffs and
plant closure had any objective basis Although he testified they were
based on Corbett s analysis of a contract between the Union and Got
ton s this contract was never produced Although Kobialka claimed to
have made his analysis over the weekend on the afternoon of 9 Septem
ber 3 days before Kobialka s speech Supervisors Robert Tomer and
Duarte Medina made unlawful threats of plant closure and that evening
Plant Manager Paul Harrington told an employee that if the Union came
in 30 employees would immediately lose their jobs and in 6 months the
plant would close This suggests that the Respondents management had
already decided upon a strategy of combatting the emerging union activi
ty with threats of economic reprisals before any financial analyses were
even begun
38 Fred Lewis Carpets supra Thurston Motor Lines 257 NLRB 1325
(1981)
se E. I du Pont & Co 263 NLRB 159 165 (1982) Evans Bros Barber
& Beauty Salons 256 NLRB 121 128 (1981)
40 American Gen Care 270 NLRB 95 96 ( 1984) Essex International
216 NLRB 575 576 (1975)
spondent contends that the wage increase Kobialka an
nounced had been planned long before the advent of
union activity The evidence does not support such a
conclusion It is true that at sometime prior to Kobialka s
coming to the Company, the employees wages had been
reduced by $1 per hour because of financial problems
and that one of Kobialka s first actions upon taking over
ownership in conjunction with Michael Mineo, was to
raise the hourly wage rate by 50 cents in April 1983 Ko
bialka testified that before he took over ownership he
had discussions with Mineo and Company Comptroller
Corbett concerning devising a business strategy that
would enable the Company to restore all or more of the
$1 wage reduction in acceptable increments The first
step was the April 1983 increase and they hoped to grant
another similar increase around the beginning of 1984, if
they `were financially able to do so It is clear that it
was this so called strategy to restore the wage reduc
tion that Kobialka was referring to as having been in the
plans for a long time It is also clear that the details of
this strategy had not been finalized and that there had
not actually been a final decision to give a 60 cent in
crease at the first of the year, which was made prior to
12 September At that point there was, at most a propos
al which was contigent on both the Company s financial
performance throughout 19834 i and the approval of its
bank Consequently, Kobialka s unequivocal statement42
that a wage increase of 60 cents an hour would be grant
ed cannot be considered a lawful announcement of a de
cision to increase wages arrived at prior to the advent of
union activity,43 but was an off the cuff promise made
with the intention of influencing the employees in the
choice of a bargaining representative 44 This promise
was a violation of Section 8(a)(1) of the Act 45
Near the end of his speech Kobialka referred to the
fact that the Company was considering opening a new,
large plant at the Head of the Harbor in Gloucester and
stated that if this plant were to open it would mean
about 40 additional jobs He said that current employees
would continue to be employed at the new plant at the
same wages He also stated that whether the Company
built the new plant stayed at the old one or moved the
plant out of town is a function of whether or not some
one is hanging a big gun over my head ' He added that
he did not have to operate the business in Gloucester and
that all he needed was a freezer The discussion of the
" As it turned out no wage increase was granted in January 1984 be
cause the Company did not show a profit for 1983
42 In his testimony Kobialka denied that he had promised the em
ployees the raise saying that they were contemplating giving a wage
increase in January The text of his speech to the employees on 12 Sep
tember as stipulated by the parties is a flat statement that a 60-cent raise
would be given on 1 January Kobialka s testimony supports the conclu
ston that there had been no final decision to grant the wage increase at
the time he announced it
4' See Cardivan Co 271 NLRB 563 (1984)
44 The fact that Kobialka stated that the promised increase would still
leave employees short of the union wage did not lessen the coercive
impact of the promise since he had already told them that payment of
union wages would mean business closure or layoffs while this raise
presumably would not
45 NLRB v Exchange Parts Co 375 U S 405 (1964) Century Moving &
Storage 251 NLRB 671 (1980)
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proposed new plant at the Head of the Harbor was not
in and of itself unlawful as it was merely a factual state
ment of a proposal for expansion of the business which
had been under consideration before the beginning of
union activity and which was generally known to the
employees However, Kobialka s statement that what the
Company did in the future depended on whether or not
there was a big gun hanging over his head, an obvious
reference to the possibility of union representation of the
employees, implied that he would forego expansion if a
union were in the picture His statement that he did not
have to be in Gloucester and could move the business
out of town because all he needed to operate was a
freezer was a veiled threat to cease operations in the
Gloucester area, whether it be at the present plant or at
the Head of the Harbor location, if the employees opted
for union representation A threat of reprisals against em
ployees if they engage in union activity is no less unlaw
ful because it is implied rather than direct 46 Here, Ko
bialka s threats to forego plant expansion and to move
the business violated Section 8(a)(1) of the Act 47
The General Counsel contends that Kobialka s sugges
tion that the employees should form a representative
committee to meet with management to talk about prob
lems in the plant was an unlawful solicitation of griev
ances , while the Respondent argues that there was no
violation because there was no actual or implied promise
to remedy their grievances The Board has held that it is
not necessary for an employer who has solicitated gnev
ances to have actually committed itself to specific cor
rective action in order for there to be unlawful interfer
ence with the employees rights, reasoning that em
ployees would tend to anticipate improved conditions of
employment that would make union representation un
necessary "48 However, because it is not the solicitation
of grievances but the promise to correct them that is co
ercive, the employer can rebut the inference that it has
made such a promise 49 That has not been done here
Unlike the situation in Uarco Corp supra where the em
ployer affirmatively emphasized that it could make no
promises, Kobialka made no such disclaimer On the con
trary he referred to previous instances in which employ
ees had talked to him about problems, pointing out that
in one case he took care of it and in another he had
given the employees a break He said nothing to sug
gest that future grievances would not similarly have fa
vorable results The Respondent, having failed to rebut
the implied promise that grievances would be remedied,
I find that Kobialka s statement violated Section
8(a)(1) so
6 Kobialka s postspeech meeting with three
employees
Shortly after Kobialka s meeting with the employees
ended , three employees , Karen Anderson , Mildred
Aubrey, and Evelyn "Pearl" Cabral asked to meet with
46 Elias Mallouk Realty Corp 265 NLRB 1225 (1982)
47 Fisher Haynes Corp of Georgia 262 NLRB 1274 (1982) Guerdon In
dustries 255 NLRB 610 (1981)
48 Uarco Corp 216 NLRB 1 2 (1974)
48 Ibid
10 Hi Lo Foods 247 NLRB 1079 1088 (1980)
him in his office The three were concerned about their
relative standing on the Company s seniority list The
complaint alleges that during the course of this meeting
Kobialka told the three employees that "if they voted for
the Union they d be laid off and he would shut the plant
down in 180 days and move to Burlington The testimo
ny of the three employees was in general agreement
about the purpose of this meeting and that Kobialka said
that their standing on the list was unimportant because if
the Union came in they would all be among those laid
off anyway As to the details of what was actually said
at the meeting , all three versions differed Based on their
demeanor while testifying and the content of their testa
mony, I consider Karen Anderson's testimony to be the
most credible since she appeared to have a better
memory of the incident than Aubrey and Cabral Ander
son testified that during the discussion about where they
stood on the seniority list Kobialka said that he would
check into it, but that it did not really matter because if
they voted in the Union all three of them would be laid
off because of the necessity of cutting back to one pro
duction line Kobialka went on to say that in 180 days he
could be moving to Burlington He pointed to plans of
the proposed facility at the Head of the Harbor which
were hanging on the wall and said he would rather be
moving to the Head of the Harbor but if they voted in a
union, in 180 days he would move to Burlington
Kobialka testified that the three employees asked about
the seniority list and that one or two of them felt they
had not received credit for time worked on a night shift
He showed them what the company records he had indi
cated their positions to be and said he would check fur
ther on the following day and give them an official de
termination as to their status on the list He told them
that in the event a union were to come into the plant
and the union contract were negotiated as per the
Gorton contract and we did cut back to one produc
tion line because of what he considered the cut off point
to be, all three of them would be laid off Evelyn Cabral
asked him about the plans on the wall and Kobialka re
sponded that it was a drawing of the proposed Head of
the Harbor building that he hoped would be their new
plant but that they were a long way from completing
the first step which was to get the approval of the Rede
velopment Authority and that would take 180 days
Kobialka denied that he ever said anything about moving
the plant to Burlington, which be described as a town
about 35 or 40 miles inland in a high technology area
which to his knowledge, had no fish processing plants
He testified that he did not recall even mentioning Bur
lington to the employees, but that he was about to go to
Burlington that afternoon for an appointment and might
have told them so He specifically denied saying that he
would rather move to the Head of the Harbor, but that
if the Union was voted in he would move to Burlington
in 180 days
Analysis and Conclusion
I find that Kobialka told the three employees that if
the Union did come into the plant all three would be laid
off and that his statement was a violation of Section
MASSACHUSETTS COASTAL SEAFOODS
8(a)(1) Anderson s testimony was credible and corrobo
rated on this aspect of the meeting by that of Cabral and
Aubrey Kobialka did not really contradict Anderson,
but put his remarks in the context of a layoff necessitated
by a union contract similar to the Gorton's contract he
claimed that he and Corbett had analyzed I do not
credit Kobialka's testimony on this point as he did not
refer to the Gorton's contract by name in his speech a
few minutes earlier and I find it unlikely that he would
do so here He did not give anything more in the way of
objective facts and figures than he gave earlier His
remark about cutting back to a single production line
was no more a lawful prediction of consequences beyond
his control based on provable facts here than it was
during the previous meeting with all the employees He
was simply repeating the same unlawful threat of eco
nomic reprisal in the event a union came into the plant
and bringing it home to these employees in an even more
direct manner by telling them point blank that the three
of them would be among those laid off I also find, based
on the credible testimony of Anderson, that Kobialka
made an unlawful threat to move the plant to Burlington
in 180 days in the event the employees chose a union to
represent them This expanded on his earlier statement
that whether he moved to the Head of the Harbor de
pended on whether there was a "big gun' pointed at his
head and made it clear that a new plant would be a sig
nificant distance from where the current employees re
sided While Burlington may be located some distances
inland and an unlikely spot for a fish processing plant,
Kobialka had just emphasized in his speech that all he
needed was a freezer" to operate the business Kobial
ka s explanation of his references to "180 days and to
Burlington' while speaking to the three employees was
strained and struck me, as did his testimony in several
other instances as an attempt to revise unlawful state
ments in order to render them innocuous I find that Ko
bialka made a threat to move the plant in violation of
Section 8(a)(1)
7 Change in policy concerning informal breaks
As noted above all employees were give two 15
minute breaks during the day known as mug ups Be
sides the mug ups, it was a long established practice for
employees working on the production lines to leave the
line one at a time for 5 to 7 minutes go to the restroom,
relax and/or smoke a cigarette It was also the practice
that the cutters would take similar informal breaks about
every hour or whenever there was a sufficient amount of
fish cut If necessary on occasion, the line foreman
would fill in on the line or take the place of a cutter so
that the employees could take these informal breaks On
the morning of 13 September, during the first hour the
Respondent, through its Supervisors Paul Harnngton
and Duarte Medina5 i informed the employees that they
51 Medina denied telling employees that they could no longer take
these informal breaks on 13 September He said he did not know about
any change regarding such breaks when he went home sick at about 9
am and only learned about it a day or two later when he spoke with
Nelson Harnngton by telephone I credit the testimony of the several em
ployees who heard Medina tell them they could no longer take breaks
515
could no longer take these informal breaks They were
told that if they had to use the restroom they should do
so and come right back Cutters were told that if they
got ahead of the line they should remain at their work
station and clean up rather than taking a break No
reason was given to the employees for the change in
practice concerning informal breaks which continued at
least up until the employees went out on strike on 19
September
The Respondent does not deny that there was a
change in the practice concerning these informal breaks
beginning on 13 September, but contends that it clamped
down because employees were abusing the break privi
leges According to the testimony of Kobialka, when he
arrived at the plant shortly after 7 a in on 13 September,
he was told by Paul Harrington and Medina that the em
ployees were in turmoil because of what had occurred at
the union hall the previous night At about 7 20 a in Ko
bialka noticed a group of cutters and packers taking a
break in the lunchroom Kobialka told Harnngton to get
everyone back on the job and Harnngton told him that
he was having trouble keeping people working on the
line Kobialka told Harrington to report back to him in
an hour and a half When Harrington did report back
about 9 30 am, he said that there was a problem with
the cutters cutting for a break, meaning , they were cut
ting at an excessive speed or cutting two pieces of fish at
a time in order to get ahead of the production line and
take time off Kobialka told Harrington to stop this by
telling the employees they should go to the washroom if
they had to but come right back to their places on the
line Kobialka said this action in restricting the informal
breaks was similar to that taken on other occasions when
employees were abusing break privileges
I do not credit Kobialka s testimony about this mci
dent Once again , although he was allegedly directly in
volved in the matter he was the person in the best pose
tion to corroborate Kobialka s testimony and he was still
employed as Respondent s plant manager , Paul Harnng
ton was not called as a witness I infer that his testimony
would have been adverse to the Respondents position
Medina, Kobialka s other alleged source of information
about the employee turmoil that morning, testified that
he was not aware that any employees were abusing
break privileges that morning and he was never told the
reason why breaks were restricted Joe Tavares the
other line foreman likewise, was not aware that there
was anything unusual about the break situation that
morning and he was not told why the Respondent was
clamping down on the breaks Similarly the employees
were never given any explanation of why breaks were
being restricted Less than 24 hours earlier in his speech
Kobialka had praised the employees for their excellent
production and hard work I do not doubt Kobialka s
testimony that cutting for break was an unacceptable
practice because cutting at an excessively fast pace cre
ated a greater risk of injury and because cutting more
than one piece of fish at a time caused distortion which
prior to the time he left the plant that morning and do not credit Me
dma s denial as I found him to be an unreliable witness in many instances
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resulted in more rejections and a lower rate of product
recovery However I do doubt that this was the reason
for his action He did not tell Harrington to stop the cut
ters from cutting for breaks, but instead, told him to
stop all informal breaks for all employees There was
evidence that cutters had always been encouraged to
take a break at least every hour because there was
danger that prolonged, uninterrupted cutting with a saw
increased the risk of injury Kobialka s order to stop all
breaks, except in the case of someone needing to use the
restroom, could only have served to increase the risk of
injury When confronted on cross examination as to why
all employees' breaks were restricted, if cutting for a
break was the problem to be remedied, Kobialka then,
said that Harrington had also told him that more than
one packer was going off the production line at a time I
did not believe this apparent afterthought The credible
evidence also indicates that the order to stop informal
breaks was given about 2 hours before Kobialka claimed
to have found it necessary to issue it
I find that the Respondent has failed to establish any
reasonable basis for changing its work rule with respect
to taking informal breaks, which previously permitted
employees on a rotating basis to take from 5 to 7 minutes
off to use the restroom smoke a cigarette and/or simply
relax , to one which required employees to remain at
their workstation except when they needed to use the
restroom The reason given, that employees were abus
ing their breaks, was clearly a pretext It is well estab
lashed that where the stated motive for an employer s
action is false another motive may be inferred from the
facts in the record as a whole 52 I infer that the Re
spondent s motivation in restricting the employees infor
mal breaks was to retaliate against them because of their
union activity The timing of an employers action is per
suasive evidence of its motivation 53 Here, the employ
er s action came immediately after it learned that a sub
stantial number of employees had sought the Union s
representation and that the Union was coming to the
plant that morning to seek recognition Although the Re
spondent seems to argue there was no real change in
break policy because employees were still allowed to go
to the restroom whenever necessary it is clear that a de
sirable benefit the opportunity to take an informal break
of up to 5 minutes of relaxation had been eliminated An
employer violates Section 8(a)(3) and (1) of the Act by a
diminution of benefits or worsening of working condi
tions in retaliation for engaging in protection conduct 54
That is what the Respondent did by putting into effect
on 13 September and enforcing thereafter a rule which
eliminated informal breaks that employees previously en
joyed 55
8 Threat to Eduardo Tavares
Eduardo Tavares the brother of Line Foreman Joe
Tavares was employed as a cutter He testified that he
52 See Shattuck Denn Mining Corp v NLRB 362 F 2d 466 470 (9th
Cir 1966)
53 Limestone Apparel Corp supra at 736
54 South Nassau Communities Hospital 262 NLRB 1166 1174 (1982)
55 See Heads & Threads Co 261 NLRB 800 808-809 (1982)
was informed by Duarte Medina during the week of 12
September that there were to be no more breaks On
Friday of that week, Eduardo went to use the men s
room No one else was present and before leaving he lit
a cigarette and puffed twice At that point, Joe Tavares
entered the room, saw him and asked what he was
doing Eduardo said that he had used the restroom and
lit the cigarette and was on his way out Joe said, you
know you re not supposed to have any breaks Eduardo
said he knew that but he was exhausted Joe said,
don t think because you re my brother, I in not able to
fire you ' Eduardo threw away the cigarette and went
back to his job Joe Tavares testified that he saw his
brother Eduardo smoking a cigarette in the men s room
on Tuesday, the day Kobialka had told him no more
breaks, and told him that the rule against taking breaks
applied to him as well as everybody else and he should
not be taking a break He denied telling Eduardo that he
could fire him
I credit the testimony of Eduardo concerning this mcf
dent based on their demeanor while testifying and the
content of their testimony 56 I find it likely that in telling
Eduardo he could not take a break, he would have re
ferred to their relationship and made it clear that it did
not protect Eduardo from the consequences of violating
the ban on breaks While Joe may not have had author
ity to fire him, I believe the thrust of his comment was
not that he could personally fire Eduardo but that the
fact of his being Joe's brother would not protect him
from dismissal for violating the rule The evidence does
not establish that Joe s comment could be considered a
disciplinary warning to Eduardo, but was simply a threat
of disciplinary action in the event he violated the Re
spondent s new no break rule I find that this was a
violation of Section 8(a)(1) I also find that the incident
occurred on Tuesday, 13 September as Joe appeared to
have a good recollection of the date, based on his con
versation with Kobialka that day about abolishing the
breaks, while Eduardo had no present recollection of the
date I find Joe s testimony to be more probative than
Eduardo's past recollection recorded that it happened on
Friday
9 Medina s conversation with Eduardo Tavares on
13 September
Eduardo Tavares testified that on 13 September, while
he was working as a cutter, Duarte Medina came up to
him and said did you vote or sign anything? Tavares
asked why he wanted to know and Medina replied `I
just want to know Tavares told him that he had
signed like everybody else and their conversation
ended Medina did not deny that when he heard that em
ployees had signed union cards he asked Tavares if he
had done so At the time Tavares and Medina and their
wives were good friends, belonged to the same social
club and socialized together away from the plant
56 Joe Tavares appeared intent on denying anything that might identify
him as a supervisor Although acknowledging that Kobialka told him em
ployees could no longer take informal breaks he claimed he did not tell
this to the employees working on his line Yet he spoke to Eduardo not
withstanding the fact that he did not work on Joe s line
MASSACHUSETTS COASTAL SEAFOODS
There is no evidence that Medina did anything more
than ask Tavares if he had signed a union card He did
not say or do anything that could be interpreted as a
threat or a promise of a benefit or that might otherwise
be considered coercive The conversation took place
early on the morning following the employees first
meeting at the union hall, which was being talked about
throughout the plant Considering this conversation in
the light of the Board s ruling in Rossmore House, supra
I find that there was no violation of the Act Even
though at that point Eduardo Tavares could not be con
sidered an open and active union supporter the casual
nature of the inquiry by a close friend without any
threats or promises at a time when just about everyone
in the plant was talking about the Union convinces me
that Medina s question was not improperly motivated
and would not reasonably tend to restrain coerce or
interfere with rights guaranteed by the Act and, there
fore, I shall recommend that this allegation be dis
missed 67
10 Interrogation by Joe Tavares
Eduardo Tavares testified that, during the week of 12
September, his brother Joe called him into Paul Harring
ton s office and, in Harrington s presence asked in Por
tugese if he was part of the group When Ed asked
what he meant, Joe said are you in this mess? and
asked if he had signed Ed replied that he had signed,
said that Medina had asked him the same question, and
asked why Joe wanted to know Joe answered that he
just wanted to know and said, maybe Kobi wants to
know Joe Tavares admitted asking his brother if he
had signed a union card, but denied that he said that Ko
bialka wanted to know I credit the testimony of
Eduardo Tavares Unlike the interrogation of Ed Ta
vares by Duarte Medina, which I found to be noncoer
cive, I find that this interrogation was coercive and un
lawful This incident occurred a day or two after Joe
had threatened Ed when he caught him violating the Re
spondent s new rule restricting employees from taking in
formal breaks Ed Tavares could not be considered an
open and active union supporter at that point and al
though he was questioned by his brother when asked
why he was inquiring, Joe Tavares gave no reason but
implied that he was asking on behalf of Michael Ko
bialka His reference to the employees union activity as
this mess suggested hostility and contempt In addi
tion the interrogation, which was not a part of a casual
conversation but was specifically initiated by Joe Ta
vares, took place in the plant in the presence of Plant
Manager Paul Harrington While Harrington may not
have understood what was being said in Portugese it
was reasonable to assume that Joe Tavares would tell
him what his inquiry revealed as well as telling Ko
bialka Considering all of these circumstances under the
Board's criteria in Rossmore House supra I find that Joe
Tavares interogation of his brother was coercive and
violated Section 8(a)(1) of the Act
57 See Atlas Metal Parts Co 232 NLRB 205 210 (1980)
517
11 Medina s conversation with Maria Tavares
Maria Tavares testified that prior to the lunch period
on 13 September while she was working on the scram
bier she asked Duarte Medina in Portuguese if he could
replace her so that she could take a break Medina re
sponded in Portuguese, saying, You wanted a union
Now you don t have no more breaks I cant replace
you Medina denied making these statements to Tavares
and testified that he went home sick about 9 a in on 13
September Although I found much of Medina s testimo
ny unworthy of belief, I did believe his testimony that he
went home sick on 13 September and was out the next 2
days as well Consequently I do not believe Medina was
working at the time this incident allegedly took place
Maria was not a convincing witness and I do not credit
her testimony about the incident which differed from an
affidavit she had given the Board I also find it unlikely
that Tavares who admittedly heard Paul Harrington say
there would be no breaks other than to go to the rest
room, would, on the same morning ask Medina to re
place her in order that she might take a break
Maria Tavares also testified that on the afternoon of
Friday, 16 September she was working with her hus
band Ed and employee Donald Babine, doing a job that
required three people at one time She asked Duarte
Medina in Portuguese, if he would replace her so that
she could go to the ladies room Medina said no that
she had gotten herself into this mess and he could not
help her Medina denied making the statements attributed
to him by Tavares Having found that Maria Tavares
probably fabricated the incident she described as occur
ring on Tuesday, I am unable to credit her uncorroborat
ed testimony concerning the alleged incident on Friday
Neither Babine nor Ed Tavares, who speaks Portuguese
were asked about this incident I find that there is insuffi
dent credible evidence to establish that the alleged viola
Lions of the Act by Duarte Medina on 13 and 16 Septem
ber ever occurred and I shall recommend that these alle
gations be dismissed
12 Incident involving Michael Muniz on 13
September
Employee Michael Muniz testified that he wanted to
begin a weeks vacation on 15 September and about 2
weeks before that he spoke with Paul Harrington about
getting the time off and a week s vacation pay They dis
cussed the fact that Muniz had some breaks in his service
with the Company which might affect his anniversary
date 58 However, Harrington said that since Muniz had
worked the necessary hours it would probably be okay
Muniz asked Harrington about the vacation a second
time and Harrington said there was no problem and he
would write it on Muniz s timecard
On 13 September Muniz asked Fran Ruta the person
who prepared the paychecks, if she had made out a va
cation check for him and was told that she had not
58 The Company s policy on vacations was that to be entitled to vaca
tion with pay an employee must have worked at least 1200 hours during
the year and have reached his anniversary date of employment with the
Company
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When Muniz asked why, she said because Kobi said
no and that Muniz would have to talk to him about it
Later that day when Kobialka came into the production
area, Muniz asked why he was not getting his vacation
pay and Kobialka said he would not get it until his anni
versary date in November Muniz said that Paul Harring
ton had approved it Kobialka said that Muniz had not
asked him about it and he did not approve it Muniz said
that he was not aware that he had to ask anyone other
than Paul Harrington with whom he always dealt He
said that Harrington had taken into consideration the
facts that Muniz had a break in service due to a broken
leg, that he had enough hours worked, and that he had
over a year of service Kobialka responded consider
ation, I would like a little fucking consideration, which I
haven t got " Muniz asked if he could have the pay as a
favor Kobialka said he had done a few favors for people
by approving vacations for employees who had the
hours in but had not reached their anniversary date and
`this could have been your favor this time, but now,
no Muniz said you mean if the Union stuff didn't
come up I might have got my vacation Kobialka re
plied I can t say that Kobialka also said 111 tell you
this, you people want to play hard ball' and pointing to
the production line said if that lady over there farts and
farts wrong she is gone The conversation ended and
Muniz went over and told the girls on the production
line what Kobialka had said
Kobialka testified that on Thursday or Friday of the
week before Muniz wanted to start his vacation, Paul
Harrington told him and James Corbett that Muniz
wanted the time off and vacation pay Kobialka and Cor
bett discussed this privately and decided that Muniz
could have the time off but that he would not receive
his vacation pay at that time They reached this conclu
sion because they considered Muniz to be a malcon
tent who had a bad attitude about the company and
had complained to Kobialka about unhappiness with the
Company and with his job They also considered the fact
that at that point, because of his breaks in service
Muniz only had about 8 or 9 months of continuous serv
ice with the Company Kobialka did not feel that, given
Muniz s length of service and performance on the job he
could receive his vacation pay before his anniversary
date Kobialka did not communicate this decision to
Muniz and did not ask anyone to do so On Tuesday of
the following week, Muniz approached Kobialka as
people were starting to punch out at the end of the day
and said that Harrington had told him he could have the
time off but he would not receive vacation pay and
asked if Kobialka could do something about getting the
pay for him Kobialka said no and Muniz asked why
he could not do a favor for him like he did for others
Kobialka responded it s not a question of a favor we
don t feel you re entitled to your check early" and start
ed to walk away Muniz again asked him to do it as a
favor and said `has this got anything to do with this
union Kobialka responded It had absolutely nothing to
do with any union and said that they had to follow the
company rules He also said that since Muniz had men
tioned a union he was going to tell him something,
saying
We live by certain rules and if a union comes in,
they re going to have certain rules Those rules
have to be followed As a matter of fact, they are
very specific If the union gets in and part of the
union contract says that a packer will not fart on
the line and that girl farts, she s going to be fired
Muniz again asked for the money and Kobialka said the
matter was closed
James Corbett testified that it was he who made the
decision that Muniz would not be given vacation pay
before his anniversary date During the first week of
September Corbett overheard Paul Harrington ask Fran
Ruta to check on whether Muniz had a sufficient number
of hours worked to qualify for vacation pay Ruta deter
mined that Muniz had enough hours but did not have a
full year of service Harrington left the office and Ruta
asked Corbett what to do Corbett made the decision
that Muniz could take the time off, but would not get
the vacation pay until his anniversary date A minute or
two later Kobialka came into the office, heard Corbett
and Ruta talking and asked if there was a problem Cor
bett explained the situation to Kobialka and said he had
just told Paul Harrington of his decision Kobialka said
okay, fine Kobialka and Corbett continued to have a
conversation about Muniz in which Corbett told Ko
bialka about Muniz breaks in service and Kobialka out
lined certain problems with Muniz job performance
Corbett testified that this occurred on the Wednesday or
Thursday of the week before Muniz was to start his va
cation and that as of that time he had no knowledge of
any union activity in the plant
Analysis and Conclusions
The General Counsel contends that Muniz was unlaw
fully denied advanced vacation pay in retaliation for the
employees union activity and that Kobialka s remark to
Muniz during their conversation on 13 September violat
ed the Act The Respondent contends that the decision
to deny Muniz vacation pay was in accordance with the
established company policy and was made before the
Company had any knowledge of union activity on the
employees part and that nothing Kobialka said to Muniz
was unlawful
I do not credit the testimony of either Kobialka or
Corbett as to how, when, or why the decision to deny
Muniz vacation pay until November was made Kobialka
claimed he made the decision during a private conversa
tion with Corbett on 8 or 9 September and that his
reason was Muniz bad attitude On direct examination
Kobialka testified at length about Muniz bad attitude his
constant complaining and his work performance short
comings However on cross examination he admitted
that Muniz had been transferred to the higher paying job
of batterman in June or July 1983 59 that although he
observed Muniz failing to do a conscientious job on
more than one occasion he never said anything directly
to Muniz about it, and that while he told Paul Harring
59 Kobialka would not characterize the transfer as a promotion even
though the pay was higher
MASSACHUSETTS COASTAL SEAFOODS
ton to speak to Muniz about his job performance he did
not tell Harrington to warn Muniz that if his job per
formance did not improve he would be subject to disci
plinary action and did not recall why he failed to do so
Duarte Medina, who was the foreman on line one and
Muniz direct supervisor testified that he was not aware
that Kobialka was not satisfied with Muniz performance
as a batterman and that he, Medina, thought Muniz was
doing a good job ' When Muniz confronted Kobialka
about his vacation pay on 13 September, Kobialka said
nothing to Muniz about his attitude or job performance
even when, according to Kobialka's description of the
scene, Muniz was pleading for a favor Rather, Kobialka
told Muniz, it was simply a matter of following the
Company's rules I find that the Respondent's alleged re
fusal to grant vacation pay because of his bad attitude
and work performance was a pretext
Corbett claimed that he made the decision to deny
Muniz' vacation pay request on 7 or 8 September He
testified that he got involved when he heard Paul Har
rington discussing Muniz' request with Fran Ruta After
Harrington had left the office, Ruta asked Corbett what
to do and Corbett decided to deny the request Within a
minute or two, Kobialka came in and Corbett told him
what was going on and that I just told Paul he d have
to wait until the [anniversary] time ' If Paul Harrington
had already left the office before Corbett made his deci
sion, he could not have told him about it Later on in his
testimony on cross examination Corbett said that Har
rington may still have been in the area and heard him tell
Ruta of his decision but that `my conversation primarily
was with her When Muniz asked Ruta why he was not
getting his check, she told him because Kobi said no
and said Muniz would have to talk to him about it If in
fact it was Corbett who made the decision during his
conversation with Ruta, there is no reason why she
would attribute it to Kobialka If Corbett made the deci
sion at the time and in the manner he says, it could have
easily been corroborated by Kobtalka Paul Harrington
and/or Fran Ruta Neither Harrington nor Ruta was
called as a witness Harrington was still employed as
plant manager at the time of the hearing and there was
nothing to establish that Ruta was unavailable Kobial
ka s testimony conflicts with rather than corroborates
that of Corbett
Other circumstantial evidence casts further doubt on
the testimony of both Kobialka and Corbett Although
company policy called for an employee to work 1200
hours during the year and have reached his or her em
ployment anniversary date in order to be eligible for a
paid vacation the Company s records indicate that nu
merous exceptions to this policy were made during the
20 months preceding September 1983, including several
since the time Kobialka and Mmeo acquired ownership
According to Kobialka and Corbett, there was no estab
lished policy as to when an exception would be made
and it was apparently done on a case by case basis Re
markably neither Kobialka, himself nor Corbett to
whom Kobialka attributed the responsibility for approv
mg such exceptions, could explain, except in one in
519
stance,°O how approval of these exceptions to the policy
came about Both denied that Paul Harrington had au
thority to approve an exception to the vacation policy a]
though he had primary responsibility for scheduling va
cations according to the Company s manpower needs
According to the testimony of Muniz, which I credit, he
asked Paul Harrington if he could get vacation pay in
advance of his anniversary date Harrington said that he
would take into consideration the fact that Muniz most
recent break in service was due to a broken leg and that
it should be alright When Muniz asked Harrington
about it again he was told it was `okay, and that Har
rington would mark it on Muniz timecard Harrington
turns in the timecards to Ruta on either Friday or
Monday and checks are distributed on Wednesday
Muniz timecard for the week ending 10 September has
printed thereon, in what is stipulated to be the hand of
Paul Harrington, 1 week vac pay ph ' Next to those
words in different but unidentified printing are the words
not till Nov' In the lower left hand corner of the time
card there is printed, in what Corbett acknowledged was
probably Ruta s handwriting 1386 3/4 and 11-7-82,
which in all likelihood were the number of hours Muniz
had worked and his employment anniversary date If as
either Kobialka or Corbett claimed, there had already
been a determination pursuant to Harrington s oral in
query on 7 8, or 9 September that Muniz would not be
paid his vacation pay until November, there would be no
reason for Harrington to have put 1 week vac pay on
the card when he turned it in to Ruta on 9 or 12 Septem
ber and even less reason for Ruta to have noted Muniz
hours and anniversary date on the card after she re
celved it Also unexplained is the failure of Paul Harring
ton to tell Muniz that his request had been denied Har
rington knew Muniz was concerned about it He had
told Muniz first that it should be alright and later that
it was okay but then, according to either the version
of Kobialka or Corbett, although Harrington knew that
the request had been denied he never bothered to tell
Muniz about it
Having rejected the self serving, conflicting, and un
corroborated stories of Kobialka and Corbett concerning
the decision to deny Muniz advanced vacation pay and
considering all of the evidence concerning this incident,
I find that Paul Harrington either approved or if he
lacked authority to do so obtained the necessary approv
al of Muniz request informed Muniz it was okay and
noted the fact of its approval on Muniz timecard so that
a vacation check would be prepared Sometime thereaf
ter, the approval was revoked The evidence leads to the
conclusion that the decision to revoke that approval was
made by Kobialka as he so informed Muniz and was
made at a time when he was aware that the employees
were planning to or had already contacted the Union 61
80 Corbett testified that he personally approved an exception to the
policy in the case of Billy McDonald an employee who came directly to
Corbett in 1983
81 Kobialka was admittedly aware not later than Friday 9 September
that employees were going to contact the Union That was the earliest
that Paul Harrington would have turned in Muniz timecard to the office
520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Having found that reasons the Respondent gave for re
jecting Muniz request were pretextual, I find that the
real reason was to retaliate because of the employees
union activities Although there is no direct evidence to
establish that Kobialka knew of any specific union activi
ty on Muniz part I am convinced that he acted on the
belief that Muniz, whom he considered a malcontent
was involved 62 Kobialka told Muniz that he wanted a
little consideration from the employees, but was not
getting it and that he would have approved the pay re
quest, as had been done for the other employees, but that
something had changed his mind saying, this might have
been Muniz turn for a favor but now, no There can
be little doubt that the circumstance that caused him to
refuse to do Muniz the favor was the employees having
contacted the Union This incident was one of the series
of retaliatory actions taken by the Respondent immedi
ately after the employees contacted the Union and
sought representation Considering all of the circum
stances, I find that the Respondents disparate and dis
criminatory63 denial of Muniz request for vacation pay
was the result of its belief that Muniz was among those
involved in union activity and violated Section 8(a)(3)
and (1) 64 I also find that Kobialka s statement outlining
the Respondents response to what he considered the em
ployees playing hard ball by contacting the Union
that if an employee on the production line farts wrong
she would be fired was a threat of retaliation for engag
ing in protected activity which violated Section
8(a)(1) ss
13 Incidents involving Carmen Glidden on 14
September
Carmen Glidden had worked for the Company for
over 10 years as packer stacker and cutter She testified
that during September she had been working as a stack
er On the morning of 14 September she overslept She
telephoned the plant and spoke with Paul Harrington
telling him that her clock did not go off and that she
would be in as soon as she could Harrington said he did
not know what Kobi was going to say about it Glid
den arrived at the plant at approximately 7 35 a in and
entered through the front office area which was her
usual practice As she entered she saw Michael Mineo
sitting at his desk in his office and told him she was
sorry she was late As Glidden approached the door to
62 Kobialka was apparently being informed of what was happening
with the Union as he claimed that later in the week he learned that the
Union had promised Muniz would receive his vacation pay and an apol
ogy from Kobialka by 3 30 p in on Friday
63I credit Muniz testimony that when he asked if he would have
gotten his vacation pay if the Union stuff didn t come up Kobialka re
plied I can t say that which implies that it was the reason over Ko
bialka s version in which he emphatically denied to Muniz that the Union
had anything to do with it and said it was simply a matter of following
the Company s rules
64 Gourmet Foods 270 NLRB 578 (1984) Riverfront Restaurant 235
NLRB 319 320 (1978)
65 1 do not credit Kobialka s testimony in which he claimed he was
merely telling Muniz what would happen if the Union came in and there
was a contract that prohibited farting on the production line I consider
this testimony a strained far fetched attempt to revise remarks which
several witnesses testified to having heard and which he could not credi
bly deny having made to avoid the illegality involved
the production area Kobialka, whom she had not no
ticed standing in Mineo s office, said to her if this hap
pens again and there is a union in here you are fired
Mineo immediately spoke to Kobialka saying no, no
Kobialka then told Glidden not to punch in and to go
home Glidden asked if she was fired and Kobialka re
sponded that he would have a meeting about her that
morning and would get back to her When Glidden tried
to enter the production area to clean out her locker, Ko
bialka told her to go home and escorted her to the door
Glidden left the plant and drove to the union hall, arriv
ing there about 7 50 a in, before it opened When Helen
Tarr arrived, Glidden told her that she had been late for
work and that Kobialka had sent her home Tarr asked
her to wait until Jim Lee came and to tell him what hap
pened and she did so At about noon, she returned to the
plant to pick up her paycheck as it was a payday She
entered directly into the production area and met her
foreman Joe Tavares, who asked her where she had
been that morning and said that he had been waiting for
her to arrive When she told him that Kobialka had sent
her home, Tavares said he did not know about that
Glidden and Tavares entered the foremen s office where
Paul Harrington was present Harrington told Glidden
that Kobialka had not fired her Glidden asked why he
was doing this to her and Harrington responded that Ko
bialka was upset with the Union and all the girls talking
about it in the plant Shortly thereafter Kobialka came
into the office and told Glidden she was not fired Glid
den asked why he was singling her out and Kobialka
said that he has started a policy that day that if anyone
came in late, they would be sent home He told Glidden
that he had no gripes about her work that if she had any
problems she should come into the office and talk to
him and that he wanted to be her friend Kobialka then
remarked that he had come in late himself that morning
and Glidden responded that he was getting paid for the
day After Kobialka left the office Glidden remained
and talked to Harrington and Tavares Harrington said
that Kobialka was going to stop all breaks and any extra
weeks off during the year were going to be stopped
Harrington also commented that the girls were making a
big mistake if the Union came in and Tavares nodded in
agreement Harrington told Glidden to go home and
return to work the next day
Kobialka testified that at approximately 8 a in he was
having a meeting with Mineo and Corbett in an office
facing the front door when Glidden came in When
Glidden reached the door of the office, she said she had
overslept and was sorry she was late Kobialka told her
that she was too late to punch in, that her place had
been taken on the line, and that she should go home He
did not recall who had taken Glidden's position as a
cutter on the line When Glidden said she was going to
her locker to get her personal things Kobialka told her
she was not fired but that she should go home and come
back tomorrow He walked her to the door and asked
her to leave The subject of the Union was not men
tioned in their conversation and he denied telling Glid
den that if she was late again and there was a union, she
would be fired Kobialka told Paul Harrington he had
MASSACHUSETTS COASTAL SEAFOODS
sent Glidden home and was told she had called Harring
ton to say she would be late Around noon, Glidden
came back to get her paycheck Kobialka went to the
foremen s office where Glidden, Joe Tavares, and US
Commerce Department Inspector Paul Silverman were
talking Paul Harrington was not in the foremen s office
Kobialka saw that Glidden was upset He said he was
sorry if he upset her, but he could not allow people to
come to work whenever they felt like coming to work
He told her she was a good employee and Glidden re
sponded that she was not involved in any union activity
Kobialka said that he did not care about union activity
and that she should go home and come in on time to
morrow He did tell Glidden that he had started a new
policy that if anyone was late they would be sent home
He was aware of no employee being sent home for being
late before this incident On cross examination, Kobialka
testified that when he told Glidden that her place on the
line had been taken, he did not know that to be the case
and he was never told that anyone had taken her place
He agreed that Glidden usually came to work on time
James Corbett testified that he was in Mineo s office
on 14 September when Glidden came in about 8 am
Glidden said she was sorry she was late and Kobialka
told her not to bother punching in She asked if she was
fired and Kobialka said no you re not fired, just go
home We re quite sufficient on the line today Glidden
then said I don't have anything to do with this union
thing, Mike Kobialka said, It's got nothing to do with
the Union Glidden started to go into the plant to pick
up her things and Kobialka again said she was not fired
to go home, and to come in tomorrow on time
Analysis and Conclusions
The Respondent contends that Glidden s testimony
about these incidents should not be credited It points
out that a statement Glidden wrote out for Union Repre
sentative Lee does not refer to Kobialka saying if she
was late again and a union was there she would be fired
I do not consider this particularly significant as it ap
pears that Glidden was very upset on the morning of 14
September and wrote the statement, on her own at a
time when she was not certain whether she had been
fired or not 66 After observing her demeanor while testi
fying, I do not doubt that she was testifying truthfully
about this incident and the second encounter with Ko
bialka in the foremen s office The fact that her recollec
tion needed refreshing as to one statement made by Paul
Harrington in the foremen s office does not as the Re
spondent contends, render it unworthy of belief I found
Glidden s testimony about these incidents more credible
than that of Kobialka or Corbett Kobialka testified that
he sent Glidden home because she was too late and her
place as a cutter had been filled However, he admitted
that he had no knowledge that Glidden s job was being
filled or that she was not needed It appears that he tests
Be Since Kobialka did not respond when she asked several times if she
was fired but told her he would have a meeting about her status and get
back to her I do not find it surprising that Glidden focused her statement
on being sent home on 14 September rather than on the threat of a future
discharge
521
fled that she was a cutter because the nature of the cut
ter s job is such that those positions must be filled in
order for the line to operate Glidden s regular job had
been a stacker for several weeks prior to 14 September
Although Kobialka claimed Paul Harrington was not
present in the foremen s office when he spoke to Glidden
there and that Paul Silverman was, neither Harrington
nor Silverman was called as a witness to corroborate
this Joe Tavares, who was present and was called as
witness by the Respondent, was not asked about the inci
dent I did not credit Corbett s testimony generally, and
here, specifically, because he claimed to hear Glidden
make a statement denying any involvement with the
Union when Kobialka sent her home in the morning
However, according to Kobialka, she made that state
ment around noon in the foremen s office and not during
the morning conversation Corbett acknowledged that he
was not present when Kobialka and Glidden were in the
foremen s office
Kobialka admitted that he had never sent anyone
home for being late before 14 September There was no
evidence of any company rule in effect prior to that time
that prescribed such a penalty On the contrary the
record establishes that Karen Anderson often came in
late and simply had her pay docked according to the
extent of her tardiness Even when Anderson s excessive
tardiness reached the point where the Respondent would
no longer tolerate it, she was first informally counseled
by both Kobialka and Paul Harrington and finally given
a formal warning that disciplinary action would be taken
if she was late again In Glidden s case, although she was
considered a good worker with no tardiness history she
was summarily sent home on the day after the Union de
manded recognition pursuant to a new rule on tardiness
because her position on the line had been filled, a reason
that was patently false This was done after she was
warned that if she was late again and a union was in the
plant, she would be fired Although Kobialka denied
making such a statement, the fact that Michael Mineo
said no no" to him immediately upon hearing what was
a flagrant threat is further evidence that he made the
statement Mineo was not called as a witness
I find that the General Counsel has made a prima facie
case under Wright Line, supra, that Glidden was sent
home on 14 September pursuant to a new policy on tar
duress instituted that day in retaliation for the fact that
the employees were attempting to have the Union repre
sent them There is ample evidence of the Respondent s
union animus Again the timing of this change in policy,
instituted immediately after the Union demanded recog
nition is persuasive evidence Also persuasive are the
facts that the announcement of this new policy was cou
pled with a blatant threat of reprisal in the event union
representation came about and the admission by Paul
Harrington to Glidden, when she asked why Kobialka
had done this to her, that it was because he was upset
about the Union The only reason offered by the Re
spondent as justification for sending Glidden home, that
her place on the line had been taken was untrue Ta
vares was filling in for Glidden that morning but only on
an interim basis while waiting for her to arrive It is
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
clear that had Glidden gone to work that morning, on
time or tardily she would have taken her place on the
line and Tavares would have resumed his foreman s
duties No justification of any kind was offered as to
why Kobialka imposed this new, unprecedentedly stun
gent tardiness policy 67 I find that it was for the reason
Harrington gave Glidden, that Kobialka was upset about
the Union By imposing a new, more onerous rule con
cerning tardiness in retaliation "or its employees union
activity and in order to discourage support for the
Union, the Respondent violated Section 8(a)(3) and (1) of
the Act 68 Sending Carmen Glidden home from work
pursuant to this unlawful change in the tardiness policy
also violated Section 8(a)(3) and (1) Kobialka's threat
that if Glidden was late again and there was a union in
the plant, she would be fired, violated Section 8(a)(1) of
the Act, as did Paul Harrington's statements to Glidden
that the Respondent would no longer permit breaks and
extra weeks off and his statement that the employees
were making a big mistake by seeking to bring in the
Union, which threatened unspecified retaliation if they
did so
14 Actions of Robert Tomer
Robert Tomer is the Respondents purchasing agent
and an admitted supervisor within the meaning of Sec
tion 2(11) of the Act Donald Stewart testified that on
the evening of 9 September, while he was doing clean up
work he commented to Tomer that it was getting
warm around here referring to the union activity going
on at the plant Tomer responded that it was getting
warm all right and said it is going to get a lot hotter
too with this union Tomer went on to say that the
plant would close if it went union and they would all be
out of a job On the following Friday afternoon, 16 Sep
tember, Tomer told Stewart that a policemen would be
on the plant premises that night and that once Stewart
left the plant, he should not return or he would be ar
rested for trespassing Later in the evening, after the po
liceman had arrived and Stewart was preparing to leave
he said to Tomer, "I will see you Monday Tomer said
I don t know if you will see me maybe we will be out
of a job by Monday
Tomer testified that he could not recall a conversation
with Stewart on 9 September in which he said it would
be `a lot hotter with a union and said he had no knowl
edge of telling Stewart the plant would close Tomer
also testified that he could not recall any conversation
with Stewart on the afternoon of 16 September in which
he told him a policeman would be coming to the plant
although he acknowledged that he had made the ar
rangements for a policeman at Kobialka s request Tomer
returned to the plant that evening and spoke to the po
liceman, but did not give him any instructions He did
not talk to Stewart at that time and did not recall saying
anything about not seeing him Monday or that maybe
67 The policy was apparently abandoned sometime after the Respond
ent hired replacements for sinking employees This is further evidence
that it was instituted in order to dissuade employees from seeking union
representation
66 Brenal Electric 271 NLRB 1557 1567 (1984) John Cuneo Inc 253
NLRB 1025 1026 (1981)
they would be out of a job Tomer went on a previously
scheduled vacation during the week of 19 September
when the strike commenced
Based on their demeanor while testifying I credit
Stewart s version of these incidents as he appeared to be
testifying truthfully Tomer on the other hand, was ex
tremely nervous, hesitant and evasive throughout his tes
timony His testimony that he could not remember
whether or not he was aware of union activity in the
plant prior to 9 September, that he did not know or in
quire as to why Kobialka wanted police protection on
the following weekend and that he did not tell the po
liceman why he was there to guard the plant premises
was not believable The Respondent's attacks on Stew
art's credibility are not persuasive One is based on Stew
art's raising the subject of union activity with Tomer
after telling Duarte Medina a few hours earlier on 9 Sep
tember that he was not aware of any such activity Stew
art s statement to Medina was a not unexpected denial in
response to a supervisors unlawful interrogation about
his union membership 69 Another is directed to Stewart s
testimony that Tomer said something about the plant
being sold to Rule Industries and moving elsewhere It
appears that Tomer sought to add emphasis to his threat
of plant closure by suggesting that Rule Industries,
which was located next to the Respondent, might buy its
plant At the time, the Respondent was seriously consid
ering building a new plant at the Head of the Harbor in
Gloucester Kobialka told the employees in his 12 Sep
tember speech that he wanted to move and that he had a
buyer for the plant I find these details in Stewart s testi
mony add to rather than detract from his credibility
Tomer s statement concerning plant closure on 9 Sep
tember was similar to those made to employees by
Duarte Medina that afternoon and Paul Harrington that
evening, as well as the threats contained in Kobialka s
speech to the employees on 12 September the next
working day As noted above this suggests that the Re
spondent s initial strategy to combat the employees
union activity was to raise the spectre of plant closure
and loss of jobs if a union were to come in I do not be
lieve the fact that Tomer was going on vacation on 17
September and did not expect to be at the plant the next
week negates the possibility of his making the statement
to Stewart on 16 September about being out of a job on
Monday He was admittedly concerned about the possi
bility of losing his job, he had already told Stewart that
Kobialka would close the plant if a union came in and he
had arranged for police protection of the plant for the
weekend at Kobialka s direction Although Tomer
denied knowing the reason for the police protection, Ko
bialka testified he told Tomer it was related to the em
ployees' union activity Considering all of these factors, I
credit the testimony of Stewart and find that Tomer
made a statement threatening plant closure in retaliation
for the employees' union activity on 9 September, in vio
lation of Section 8(a)(1) of the Act His statement to
69 There was evidence that Stewart and Tomer who were often alone
together in the plant after production ceased were friendly and had dis
cussions occasionally sharing a drink together Stewart apparently felt
more at ease with Tomer than he did with Medina
MASSACHUSETTS COASTAL SEAFOODS
Stewart on 16 September about being out of a job on
Monday, when considered in the context of his previous
threat, was a further unlawful threat of plant closure
15 Nelson Harrington s remarks to Michael Muniz
Michael Muniz testified that one day during the week
of 15 September, he asked Nelson Harrington, who was
a friend of his, to go to lunch with him and Harrington
declined because he had to attend a meeting After the
meeting involving Kobialka and the foremen, Harrington
looked unhappy and Muniz asked him what was wrong
Harrington replied that if the Union got in, he, Harnng
ton, would probably take a $4 cut in pay, he would
probably be running Muniz machine, and Muniz would
be laid off Muniz testimony about this incident was
credible and uncontradicted Nelson Harrington testified
he could not recall the conversation, but did not deny
that it occurred
As indicated above, I find that Nelson Harrington was
a supervisor and an agent of the Respondent and that it
is responsible for his conduct This is particularly true in
this instance since Muniz testified that on that day,
Nelson was serving as a line foreman and he had just re
turned from a meeting with Kobialka 70 Harrington s
statement was an unlawful threat that if the Union came
into the plant as the employees bargaining representa
tive, Muniz would be laid off His statement was similar
to that made by Kobialka on 12 September concerning
layoffs in the event the employees chose the Union and,
like Kobialka s remarks, it did not purport to be based on
any objective facts or figures I find that Nelson Harnng
ton s statement to Muniz violated Section 8(a)(1)
16 Medina s conversation with Eduardo Tavares
during the strike
Eduardo Tavares testified that he went out on strike
on 19 September and was on the picket line during the
strike About a week after the strike began Duarte
Medina went to Ed Tavares home where he told Ta
vares that he had come to speak to him like a friend
and was not paid by Kobi to do so Medina asked Ta
vares if he knew what he was doing He said that the
plant would never be union because Kobi will never,
never allow the Union inside the plant and that the
plant would close before the Union would be allowed in
He told Tavares that if he went back to work he could
still have his job as the Company would take him back
Medina testified that he went to Tavares to try to con
vince him to return to work because the Company was
starting to hire replacements Medina denied telling Ta
vares that Kobialka would never allow the Union in the
plant and that he would close the plant before the Union
got in Tavares was a credible, convincing witness
Medina was just the opposite I credit Tavares testimony
and find that Medina s threat of plant closure, which was
similar to others he made, and his statement implying
that the employees' activity was futile because the Re
spondent would never allow the Union in the plant vio
70 Nelson Harrington filled in as a line foreman whenever Medina Ta
vares or Paul Harrington was out Medina was out sick at least 2 days
during the week of 15 September
523
lated Section 8(a)(1) of the Act Neither the fact that
Medina and Tavares had been friends prior to the strike
nor Medina s statement that Kobialka was not paying
him to come to talk to Tavares served to lessen the coer
cive nature of Medina s message The fact that Kobialka
may not have asked him to deliver the message threaten
ing plant closure and suggesting that union activity was
futile is meaningless He was clearly telling Tavares what
the Respondent's intentions were and, as a supervisor, he
was presumably in a position to know what they were
17 The nature of the strike
The General Counsel and the Union allege that the
strike which commenced on 19 September was an unfair
labor practice strike, while the Respondent contends that
it was purely an economic strike In order to be an unfair
labor practice strike, it is not enough that the strike and
the employers commission of unfair labor practices co
incide in time, 71 there must be a casaul connection be
tween them 72 The evidence must establish that the
strike was at least in part the direct result of the Re
spondent s interference with the employees protected ac
tivities 7 3
Union Representative James Lee testified that he told
the employees as early as the meeting on 13 September
that he thought the Respondent had committed several
unfair labor practices, that they could file charges with
the Board and that they could have ` an effective unfair
labor practice strike He asked the employees to give
him written statements about various incidents Accord
ing to Lee, at a meeting on the following day the em
ployees discussed going on strike and he told them that
although he felt they could have a successful unfair labor
practice strike, they should take a break to clear their
heads and should meet on Friday, 16 September to plan
their next move At the meeting on Friday, at which the
employees voted to go on strike Lee said he discussed
the fact that the petition had been filed and the tentative
timetable for the election and was asked if anything
could be done to speed up the election process He testi
feed that he told the employees one way for it to be
quicker would be to go out on the street in an unfair
labor practice strike and this might result in recognition
by the Respondent or a quicker election possibly within
72 hours
I do not credit Lee s testimony concerning his alleged
statements about going out on an unfair labor practice
strike inasmuch as none of the employee witnesses tes
tified to any such clear cut statements or discussions con
cerning an unfair labor practice strike, as such Union
President Helen Tarr emphatically denied that there was
any mention of a strike at the 13 September meeting and
testified that there was no discussion at the meeting on
14 September about what action might be taken if the
Respondent did not agree to recognize the Union at the
meeting with the Company s attorney scheduled for 16
71 Tufts Bros 235 NLRB 808 810 (1978)
72 See Soule Glass & Glazing Co v NLRB 652 F 2d 1055 (Ist Cir
1981)
73 C & E Stores 221 NLRB 1321 1322 (1976) Larand Leisurehes 213
NLRB 197 (1974)
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
September Also the fact that the first unfair labor prac
tice charge was not filed until 30 September and that
documents prepared and submitted by Lee and Tarr to
the International Union seeking its sanction for the strike
immediately after it commenced, refer to it as a recog
nition strike , further undermine Lee s testimony sug
gesting that the strike vote on 16 September was clearly
delineated as a vote to engage in an unfair labor practice
strike While there is evidence that Lee did ask for and
received some written statements about incidents alleged
as unfair labor practices, his testimony indicated that he
intended to use them in negotiations with the Respond
ent
The fact that the employees did not specifically vote
on 16 September to engage in an unfair labor practice
strike does not necessarily resolve the matter or establish
that it was strictly an economic strike 74 The entire fac
tual situation which pertained at the plant at the time
must be reviewed 75 Consideration of all the circum
stances surrounding the employees decision to go on
strike convinces me that their decision was motivated in
large part by the Respondents unlawful conduct during
the week preceding the strike vote Their decision to
strike was not solely in support of the Union s request
for recognition but was also motivated by the employ
ees desire to protest the Respondent's attempts to under
cut their support for the Union Consequently, I find that
despite its recognitional aspect the strike was an unfair
labor practice strike from its inception 76
I have found that the Respondent committed numer
ous unfair labor practices during the week preceding the
strike vote, commencing as soon as it learned that the
employees planned to meet with the Union and before
they had even done so On Friday 9 September, supervi
sors threatened several employees with plant closure and
job loss in the event of union representation, and on
Monday just prior to their first meeting with the Union
Kobialka gave a speech to all employees in which he
threatened plant closure and/or massive layoffs and as
serted the alleged futility of their seeking union represen
tation He repeated his promise of layoffs and threatened
to move the plant in a private meeting with three em
ployees a short time later On Tuesday morning follow
ing a meeting at the union hall in which over 30 employ
ees signed authorization cards, they were told by super
visors that they could no longer take the informal breaks
they had previously been allowed Later that day Ko
bialka denied employee Michael Muniz advanced vaca
tion pay in retaliation for the employees union activity
and told Muniz in the same conversation that if produc
tion workers so much as farted wrong they would be
fired, a threat which was overheard by some employees
and was repeated to many others by Muniz On Wednes
day in obvious retaliation for the employees having en
gaged in union activity, Kobialka sent Carmen Glidden
home following her unusual and isolated tardy arrival at
work, told her she would be discharged if she was tardy
74 See Brooks, Inc 228 NLRB 1365 1367 (1967) C & E Stores supra
75 Trading Port 291 NLRB 298 299 (1975)
76 See PBA Inc 270 NLRB 998 (1984) Tall Pines Inn 268 NLRB
1392 (1984) Juniata Packing Co 182 NLRB 934 (1970)
again and there was a union present and announced a
new work rule penalizing tardiness with time off That
afternoon, Plant Manager Paul Harrington told Glidden
that Kobialka had acted as he had because he was upset
about the employees seeking union representation and
said that they were making a big mistake by doing so
The evidence establishes that all of these incidents were
among the matters discussed by the employees during
meetings at the union hall throughout the week At the
meeting on Friday, 16 September before employees
voted to strike, they rehashed the events of the week
particularly, Glidden s being sent home and Kobialka s
threat to fire anyone who farted wrong While there was
also discussion as to the effect or strike might have on
gaining voluntary recognition or speeding up the elec
tion, there is no reason to conclude that this was `the
sole operative factor behind the strike' 77 To do so
would require ignoring the bulk of the evidence which
establishes that the employees had before them, thor
oughly discussed, and were influenced by the Respond
ent s unlawful conduct in reaching their decision to
strike on 16 September 78
On 9 November the Union sent a mailgram to the Re
spondent on behalf of 35 striking employees79 in which
they made an unconditional offer to return to work The
Respondents counsel sent the Union a letter dated 10
November, stating that all of those employees had been
permanently replaced Inasmuch as the employees were
unfair labor practice strikers from the outset once they
made an unconditional offer to return to work, they
were entitled to immediate reinstatement to their former
jobs or, if such jobs no longer existed, to substantially
equivalent positions, even if this meant terminating strik
er replacements to make room for returning strikers The
Respondent's failure to provide immediate and full rein
statement to returning unfair labor practice strikers even
though based on its view that they were economic strik
ers violated Section 8(a)(3) and (1) of the Act 80
18 Newspaper advertisement and letters to
employees
After the strike commenced the Respondent sent all
employees a letter dated 19 September, signed by Ko
bialka which stated inter alia that their jobs would be
open for them until such time as we hire your replace
ments and that it would start hiring replacements for
workers who did not return to work by 7 am on 21
September On 28 September, the Respondent ran a help
wanted ad in a Gloucester newspaper which stated that
79 Juniata Packing Co supra at 935
78 See Larand Leisurelies supra at 198
7a Those employees were Joyce Amero Karen Anderson Sharon Au
clair Mildred Aubrey Donald Babine Geraldine Bodwell Edith Brown
Catherine Cabral Evelyn Cabral Pauline Cabral Clara Curtis Hazel
Ellis Betty Favazza Carmen Glidden Jean Harnngton Josephine
Jacobs Nancy Lumbard Antonio Lentini Ellen MacDonald Edna Mac
Farland Jacqueline Medeiros Janet Miller Michael Muniz Michael Pa
tncan William Porter Janice Rigney Dons Rowe Robert Sheehan
Donald A Stewart Lucinda Symonds Eduardo Tavares Mana Lucia
Tavares Barbara Theriault Albert Tognazzi and Alberta Trefry On 23
March 1984 employee Judith Rocha made an unconditional offer to
return to work in writing to the Respondent
80 Gourmet Foods supra at 613 Atlas Metal Parts Co supra at 205
MASSACHUSETTS COASTAL SEAFOODS
there was a strike in effect at its plant and that it was
accepting applications for full-time, permanent pose
tions On 7 October, the Respondent sent a letter to em
ployees working at that time which stated that replace
ment workers were permanent and would have jobs as
long as you want to work here and we have work to
offer '
Because I have found that the strike was an unfair
labor practice strike from its inception, the Respondent
could not permanently replace the strikers or threaten to
do so 81 Although the letter of 19 September did not
specifically state that the replacements the Respondent
would hire for any employee who did not report for
work on 21 September would be permanent, any ques
tion about the status of the replacements was answered
by the want ad the Respondent ran on 28 September
While the letter of 7 October was not sent to strikers, it
was sent to working employees, some of whom may
have been considering joining the strike and could have
been intimidated by the threats of permanent replace
ment contained therein I find that the Respondents let
ters of 19 September and 7 October and the want ad it
ran in the newspaper on 28 September constituted threats
to permanently replace unfair labor strikers in violation
of Section 8(a)(1) 82
19 Alleged discontinuance of sick leave and
vacation benefits
Jean Harrington had been employed by the Respond
ent as a cutter for 11 years She suffered an in jury to her
back while at work and was on unpaid sick leave begin
ning on 2 August 83 She informed Paul Harrington of
the injury at the time it happened After seeing a doctor
she telephoned Harrington and told him she would be
out for 2 weeks At the end of 2 weeks she saw the
doctor again and was told it would be another 2 weeks
before she could return to work and she so informed
Harrington At some point she returned to work for 2
days but was unable to continue Thereafter she saw the
doctor again and was told to stay out another 3 weeks
When Paul Harrington told her he did not know if Ko
bialka would like it she gave him the doctor s name and
telephone number and asked them to contact him
During the week of 13 September she brought in a note
from her doctor 84 She was eventually cleared to return
to work by the doctor as of 5 October Jean Harrington
signed a union card on 13 September and appeared on
the picket line on 20 September, the second day of the
81 Mastro Plastics Corp v NLRB 350 U S 270 278 ( 1956) Laredo
Coca Cola Bottling Co 241 NLRB 167 177 (1979)
82 Gourmet Foods supra at 611 Jacques Syl Knitwear 247 NLRB 1525
1533 (1980) Trading Port supra at 299-300
83 She had suffered a work related back injury 3 years earlier and had
been paid workmen s compensation benefits while she was out She made
no claim for such benefits in connection with this injury
84 There is evidence that the Respondent accepted the fact that she
was disabled and that her job was being held open for her as indicated
by Kobialka s statement in his speech on 12 September that if Jean came
back tomorrow she d go on a saw Although there may have been a
limit as to how long the Respondent would be willing to hold Harring
ton s job open as there had been in the case of Line Foreman Butch Bur
dridge there was no evidence that the limit had been reached prior to
the date the employees went on strike
525
strike When she returned home that evening she found a
letter from the Respondent dated 19 September, signed
by Kobialka which was identical to those described
above as having been sent to all employees and informed
her that if she did not return to work by 21 September
she would be replaced James Corbett testified that the
letter was sent to Harrington only after she was ob
served on the picket line
Nancy Lumbard has been employed by the Respond
ent as a packer for 7 years She signed a union authonza
tion card on 12 September On 19 September she began 2
weeks paid vacation, having received her vacation pay
before she left When her vacation was over she went
on the picket line She received a letter from the Re
spondent, dated 19 September, addressed to all employ
ees which was identical to those received by Jean Har
nngton and others She also received a letter from the
Respondent signed by Kobialka and Michael Mineo,
dated 20 September, postmarked 23 September, which
was addressed to all employees and stated that the Re
spondent was beginning to hire replacements and if you
wish to come back to work, we urge you to report to
work promptly'
The General Counsel contends that by sending these
letters to Jean Harrington and Nancy Lumbard the Re
spondent violated Section 8(a)(1) and (3) of the Act by
terminating benefits previously accrued to them because
of the strike The Respondent argues that the letters
were addressed only to striking employees that the let
ters do not threaten the cancellation of any accrued ben
efits of its employees, that they were not the result of un
lawful motivation on its part and that the Respondent
had the right to ask Lumbard to return from her vaca
tion because of business necessity
Analysis and Conclusions
In the case of Jean Harrington, the Respondent had
unilaterally granted her a sick leave benefit in connection
with her injury, based on the work she had previously
performed for the Company Although she was not re
ceiving any compensation the Respondent acknowl
edged that her job would remain available for an indefi
nite period (which had not ended as of the date the
strike began) until she was physically able to return to
work On seeing Harrington on the picket line on 20
September it notified her that she had to return to work
by 21 September or she would be replaced The effect of
this was to unlawfully terminate the sick leave benefit
she had accrued prior to the strike at a time she was still
disabled This was a violation of Section 8(a)(3) and (1)
of the Act, whether the Respondent canceled her sick
leave benefits because other employees went on strike or
as Corbett s testimony indicates, because it believed Har
nngton approved of or participated in the strike 85 The
letter to Harrington violated the Act regardless of
whether the strike was an unfair labor practice or an
economic strike
8s Conoco Inc 265 NLRB 819 (1982) Emerson Electric Co 246
NLRB 1143 (1979) modified 650 F 2d 463 (3d Cir 1981)
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In the case of Nancy Lumbard she went on vacation
prior to the date the strike began and she had already re
ceived her vacation pay There was no evidence that the
Respondent sought to recoup any of it from the pay
check she received after the strike began Inasmuch as
Lumbard was not deprived of any previously accrued
benefits by the Respondent, the letter of 19 September
did not constitute a violation of the Act except as dis
cussed above, insofar as it unlawfully threatened to ter
minate the jobs of unfair labor practice strikers Lumbard
had not participated in the strike as of the time the letter
was sent to her and the Respondent was not precluded
from calling nonstriking workers back from vacation be
cause of business necessity I shall recommend that this
allegation be dismissed
20 Threats to strikers
Eduardo Tavares testified that while he was on the
picket line on a date after the election, a fellow picketer
asked him if he needed a job fixing a car Tavares re
sponded, I have a job, meaning his job with the Re
spondent Kobialka who was standing nearby turned
around and said to Tavares, There s no job for you in
here, I m sorry Kobialka denied having any recollec
tion of such a conversation with Tavares
Robert Sheehan testified that on the morning of 15
October, he arrived outside the plant in his van with
Donald Stewart and Albert Tognazzi to picket As he
got out of the van and placed a sign on the windshield
Kobialka, who was standing in front of the plant, walked
toward Sheehan, shook his fist at him and told him he
was all done and was never going to get back Ko
bialka then went over and spoke to a policeman on duty
there and went back into the plant The testimony of
Stewart and Tognazzi corroborated that of Sheehan con
cerning Kobialka s telling Sheehan he was all done al
though their testimony as to when they arrived and how
long they stayed at the picket line differed Kobialka tes
tified that the three arrived at the plant in a van and
when Sheehan got out to put a sign on the van Kobialka
said to him that there were no nails in the driveway
when they arrived and if there were any there when
they left he would have them arrested He then went to
the policeman and told him he wanted them arrested if
there were nails in the driveway when they left
Alberta Trefry testified that on the morning of 26 Oc
tober she was picketing near the employee entrance
driveway with two other women At about 7 30 a in Mi
chael Mineo, who was walking toward the plant said to
them in an angry tone Why don t you ladies go home,
you re all done You re all done why don't you grow
up Mineo did not testify and Trefry s credible testimo
ny is uncontradicted
Joyce Amero testified that on the morning of 27 Octo
ber at about 11 am Michael Kobialka approached a
group of pickets at the employee entrance driveway He
asked them what they were doing there and said
There s no job for you here any longer Go find jobs
someplace else He then spoke directly to Amero and
told her she would never work at Mass Coastal again
He told Amero, if it takes the rest of my life I will keep
you on the street " He said that he had enough money to
keep her there for 10 years and that if he were to die his
son would take over and keep her on the streets He then
looked at Evelyn Cabral and asked her how much vaca
tion pay she was getting Michael Mineo who was
standing outside the plant hollered I in sick of looking
at your funking [sic] ugly face, get the fuck out of here
Mineo then walked toward the picket line and said A
hell of a bunch you are, you could have come to me
first, instead you went to the Union I ve been good to
you all those years, you re getting what you deserve
now, a dollar an hour from the Union As he walked
back to the plant Mineo said, okay lets start moving
the machinery out of here right now Let s go Amero
testified that she did not recall saying anything to Ko
bialka before he spoke to her, but that after he asked her
why she was there and said that there was nothing there
for them, she told Kobialka I just want to stay here
and watch you go down the tubes with us Josephine
Jacobs testified that she was at the truck entrance when
she heard Kobialka shouting and she walked down
toward the other driveway to see what had happened
As she approached she heard Kobialka say never,
never, never When she saw him hollering and waving
his arms, she began to laugh Kobialka saw her and said,
Josie, its not funny and you 11 never work in this
plant as long as I live She said that Amero then said
something to Kobialka, but she got nervous and walked
away and did not hear what she said Pauline Cabral tes
tified that she heard Michael Mineo tell the pickets that
he did not know why they were there and that they
should go home He said they looked like shit out
there and that he was sick of seeing their ugly faces
Kobialka told the strikers they will never get back in
and said why did not they go down to the Fish Pier and
work for $6 an hour Cabral responded that the pay was
$6 60 an hour there and Kobialka asked her if she got va
cation and benefits
Michael Kobialka testified that during the early after
noon of 27 October he was told there were nails in the
driveway and he and others went out to pick them up
He picked up several large nails near the picket line, held
them up in his hand and said to the pickets What are
you doing here? This kind of activity was supposed to
have stopped To this Amero responded Mr Kobi
we know we are beaten but we re going to drag you
down We re going to break you financially We re going
to take you down with us Kobialka then said Joyce
you 11 never get back in this plant When Amero started
to say something he said You will never ever get back
in the plant" and started to walk over to the policeman
to show him the nails Amero and the other pickets
began screaming at him, Amero repeatedly saying
Well get you, we re going to take you down Ko
bialka said that she would never get back in the plant
and that his son would run the plant before she got back
in He said he did not recall making any comment to Jo
sephine Jacobs or discussing the pay or benefits the pick
ets were getting He said he recalled hearing Mineo say
something, but he did not know what he said
Carmen Glidden testified that on a date after the elec
tion but before the strikers requested reinstatement she
MASSACHUSETTS COASTAL SEAFOODS
was on the picket line with Janet Miller and Pauline
Cabral in the driveway of the employees entrance MI
chael Kobialka who had been watching the pickets
stamped his foot, pointed at Miller, and said to her
never never are you getting back in here He then
walked back to the plant Neither Miller nor Cabral testa
fled concerning this incident Kobialka denied any recol
lection of such an incident although the question by the
Respondents counsel was phrased in terms of it having
happened the day after the election
Analysis and Conclusions
I found Eduardo Tavares to be an honest and convinc
ing witness and credit his testimony that Kobialka told
him there was no job for him with the Respondent Ko
bialka did not really deny making the statement, but said
he did not have any recollection of it I do not consider
the fact that Tavares was later offered reinstatement by
the Respondent to negate his testimony that Kobialka
made this threat to him as I find the evidence establishes
that Kobialka was prone to making such threatening
statements to picketers when he was unhappy with
them 86 I also find that Kobialka told Robert Sheehan on
15 October that he was all done and was never going
to get back Although there were discrepancies in the
details of what occurred that day, the testimony of Shee
han, Donald Stewart, and Albert Tognazzi87 is mutually
corroborative as to Kobialka's threat to Sheehan While
Kobialka may well have spoken to the policeman about
arresting Sheehan, whom he apparently suspected of
spreading nails I also find that he told Sheehan that he
was all done ' Alberta Trefry s testimony that Michael
Mineo told her and other pickets they were all done
and should go home is uncontradicted and the Respond
ent does not dispute it I find that the Respondent violat
ed Section 8(a)(1) of the Act in each of these incidents
by unlawfully threatening unfair labor practice strikers
with job loss 88 Further even if the strike was not an
unfair labor practice strike these threats violated the
Act 89 Had the strikers been economic strikers that had
been permanently replaced once the strike concluded
and they applied for reinstatement they were entitled to
get their jobs back when openings for which they were
qualified became abailable 90
Several employees gave credible testimony concerning
the incident involving Kobialka and Mineo at the picket
line on 27 October It appears that they viewed the inci
dent from different perspectives and that some saw or
heard only a portion of what occurred Considering all
of the testimony I find that Kobialka in all likelihood
did find some nails in the driveway that day and was
provoked by it However, his description of his actions
86 A subsequent offer of reinstatement does not effect the unlawfulness
of the threat Brooks Inc supra at 1367 fn 11
87 Contrary to the argument of the Respondent I do not interpret
Tognazzi s testimony to be that Kobialka said Sheehan was all done be
cause he put up a picket sign Rather considering all his testimony what
he heard Kobialka say to Sheehan was you re all done Tognazzi ap
patently believed Kobialka s comment was triggered by Sheehan s put
tmg up the sign
88 Gourmet Foods supra
89 Peat Mfg Co 251 NLRB 1117 1137 (1980)
90 NLRB Y Fleetwood Trailer Co 389 U S 375 378 (1967)
527
and statements was unpersuasive and not credible Here
again , his testimony was stilted and appeared to be an at
tempt to recast his statements and actions For example
Kobialka testified he said to the picketers What are you
doing here? This activity was supposed to have
stopped, while allegedly holding a handful of nails,
rather than, What are you doing here? There s no job
for you here, as testified by Joyce Amero I find from
the credible testimony of Amero and the other employ
ees that Kobialka began the exchange with the pickets
by telling them there were no jobs for them any longer
and they should find jobs somewhere else sentiments
similar to those expressed to strikers by Michael Mineo
the previous day I find Kobialka s statements violated
Section 8(a)(1) While he may have been provoked by
finding nails in the driveway, he had no knowledge as to
who put them there and it did not justify his threat to
terminate the employment rights of everyone on the
picket line I find that after Kobialka made his initial
threat to all the pickets, Amero responded that she
wanted to watch him go down the tubes with the
strikers, which resulted in his statements directed specifi
cally to Amero that she would never work in the plant
again and that after him, his son would run the plant and
would keep her out About the same time he observed
Josephine Jacobs laughing and told her that she would
never work for the Respondent again I find that neither
Amero nor Jacobs was guilty of conduct that day which
was so egregious as to terminate their employment rights
or to justify Kobialka s threats to do so I find that these
threats also violated Section 8(a)(1)
I find there is insufficient evidence that Mineo s re
marks about moving machinery out constituted a threat
to close the plant 9 1 It is not clear from the circum
stances what he was referring to or what he meant by
his remarks I also find that the evidence is insufficient to
establish that Kobialka told Janet Miller she would never
get back in the plant in the face of Kobialka s denial and
the failure of Miller to corroborate the unpersuasive tes
timony of Carmen Glidden about this incident I shall
recommend that both of these allegations be dismissed
21 Alleged condonation of violence against strikers
On 14 October, the date of the election conducted by
the Board, a trailer truck travelling at an excessive rate
of speed drove into the truck entrance of the Respond
ent s plant narrowly missing several pickets who were
standing in front of the driveway and who had to jump
out of the way The truck went off the edge of the
driveway and while backing up at the direction of a po
liceman on duty there damaged the car of one of the
strikers which was parked across the street After park
ing the truck across the street from the plant, the driver
got out and was talking with the policeman The truck
did not belong to and the driver was not employed by
the Respondent Edith Brown, who was injured while
trying to get out of the way of the truck testified that
9 i I assume that Mineo s remarks are the basis for the allegation in par
8(1)(2) of the consolidated complaint that on 27 October Kobialka and/or
Mineo told sinking employees the Respondent would close the doors
etc
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
after the incident she saw Kobialka , Mineo and Medina
walking up the other side of the street to where the
truck was parked and that Kobialka was laughing Janet
Miller testified that she was standing at the edge of the
truck entrance driveway when the truck came through
and had to jump out the way Thereafter , she saw Ko
bialka walk up the driveway and when he got within 2
feet of where the pickets were standing he looked
toward the truckdnver , winked his eye, and made a ges
ture of approval with his hand , making a circle with his
thumb and forefinger and extending his other three fin
gers Kobialka then went over to the truckdriver and
spoke with him Thereafter a police car arrived and the
truckdriver was put inside and driven away James Lee
testified that he saw the truck enter the dnveway and as
it was backing out he saw Kobialka come across the
grass to the street After the driver got out , Kobialka in
troduced himself to the driver shook his hand and told
him he could use the telephone in the office if he had
any problems
Kobialka testified that about 8 30 or 9 that morning he
looked out of the plant and noticed some commotion on
the picket line and saw a truck backing out of the truck
entrance He walked up to the area where Mineo was
present talking to the policeman He asked what was
going on and was told that the truck had come into the
entrance too fast and that the policeman was considering
whether or not to arrest the driver who did not have
the truck registration with him Kobialka told the driver
he could use the telephone in the plant if he wanted to
call someone to bring the registration to him Kobialka
said that he did not give any gesture of approval to the
driver and that he was not smiling when he spoke to the
driver because he thought he smelled alcohol on the
driver s breath and he was unhappy about the incident
I found Kobialka s testimony about this incident to be
the most credible as he seemed to have the best recollec
tion of what had occurred The versions of the other
witnesses who testified about this incident were not con
sistent The only thing that could reasonably be con
strued as condonation of violence on Kobialka s part was
the wink and hand gesture of approval he allegedly gave
the driver Although there were numerous people
present at the time, only Janet Miller testified to having
seen him do this According to Miller Kobialka did this
while up the driveway toward her and other pickets
However , Lee s testimony was that Kobialka did not
come up the dnveway but cut across the grass to reach
the street There is also no credible evidence to contra
dict Kobialka s testimony that he did not see the truck
come through the picket line and did not know what had
happened until he got to where the driver and the po
liceman were standing which was beyond the picket line
Although Lee testified that Kobialka was standing out
side the plant at the time the incident occurred he also
testified that the last time he saw Kobialka outside the
plant was 5 minutes before the incident I find that there
is insufficient credible evidence to establish that Kobialka
said or did anything on 14 October which could be con
strued as indicating that the Respondent condoned or ap
proved of the actions of the truckdriver who drove
through the picket line in a dangerous manner I shall
recommended that this allegation be dismissed
22 Failure to recall Donald Stewart in April 1984
In this and the following section , the violations alleged
depend on whether or not the strike was an unfair labor
strike I have found that it was, however , in the event
that conclusion is not upheld , I have made alternative
findings in order to expedite a final resolution Donald
Stewart had been employed by the Respondent for 10
years prior to the strike He worked as a clean up man
and went to work at 3 30 p in He worked for 5 or 6
hours until the job was completed at a flat daily rate of
pay If only one production line had operated during a
day, Stewart did all of the clean up work himself If
there had been two lines in operation , there was another
person doing clean up and since July it had been Joe Ta
vares who cleaned the shorter line in about an hour and
a half to 2 hours a night No other employee who went
on strike was regularly assigned to do clean up work
Stewart signed a union authorization card on 12 Septem
ber went on strike on 19 September and served on the
picket line during the strike Stewart was one of the em
ployees who gave the Respondent notice of his uncondi
tional offer to return to work on 8 November
On 14 April 1984 , the Respondent hired three new em
ployees to do clean up work Joe Tavares ceased doing
clean up at that time and these new employees perform
the same duties that Stewart and Tavares had done and
are paid a flat daily rate regardless of how long it takes
them to complete the clean up in a satisfactory manner
The Respondents explanation of why Stewart was not
recalled to his clean up job when these new employees
were hired was that it was because of misconduct on the
picket line during the strike As is discussed below I do
not find Donald Stewart engaged in misconduct on the
picket line which was so improper as to terminate his
employment rights I have found that the Respondent s
failure to immediately and fully reinstate the unfair labor
practice strikers on their unconditional offer to return to
work violated Section 8(a)(3) and ( 1) of the Act In the
event that it is determined that the strike was not an
unfair labor practice strike the Respondent violated Sec
tion 8(a)(3) and ( 1) when on 14 April 1984 it hired re
placement workers to do clean up rather than reinstating
Stewart 92
23 Failure to recall senior cutters
On 15 May 1984 the Respondent offered Eduardo Ta
vares the opportunity to return to work as a cutter
which he declined No one else was offered the position
Although at that time Tavares was the senior male cutter
awaiting reinstatement there were female cutters who
had not been reinstated that had more seniority than he
did The General Counsel contends that this action by
the Respondent violated Section 8(a)(3) of the Act
92 NLRB Y Fleetwood Trailer Co supra Laidlaw Corp 171 NLRB
1366 1368 ( 1968) enfd 414 F 2d 99 (7th Cir 1969 ) cert denied 397 U S
920(1970)
MASSACHUSETTS COASTAL SEAFOODS 529
Michael Kobialka testified that Tavares was offered re
instatement after Brian Sierra an employee hired as a re
placement during the strike suffered an injury and was
unable to work Sierra had been a cutter and, in addition,
had worked opening blocks, on some days as much as
30 to 35 percent of the time This was a function which
Tavares had also performed Block opening involves lift
ing boxes containing three or four blocks of fish, weigh
ing up to 66 pounds onto a table and preparing the
blocks for cutting Block opening is not generally done
by female employees because of the strength required to
lift the boxes of blocks, although female employees have
sometimes opened blocks after a box has been put on the
table Kobialka did not consider any of the unreinstated
female cutters who were senior to Tavares for this posi
tion because of the fact that block opening was part of
the job No one was offered the job after Tavares re
fused it because there was a decline in orders at about
that time and there was a layoff a week or so later
I find Kobialka s testimony concerning this incident to
be credible and to establish that the Respondent had le
gitimate business reasons for its actions Although before
the strike the Respondent employed several female cut
ters, as a rule, they were not required to open blocks
The employee whose injury created the vacancy Tavares
was offered reinstatement to fill was doing block opening
as well as cutting a significant percentage of his time It
is questionable that had the Respondent offered the job
to a female cutter, who had not previously been required
to perform this strenuous function, it would have consti
tuted an offer of substantially equivalent employment
Aside from this, there is no indication that the Respond
ent was motivated by other than legitimate business rea
sons in offering the job to Tavares Although one of the
female cutters with more seniority than Tavares was Lu
cinda Symonds, who the Respondent contends is dis
qualified for reinstatement because of misconduct during
the strike, Kobialka credibly testified that he did not con
sider Symonds or any female cutter for the job because
of the strength required to do block opening Tavares
had participated in the strike from the outset had reject
ed his brothers and Duarte Medina s urging to abandon
the strike and return to work, and had previously been
the target of Kobialka s unlawful threat of job loss I find
no basis to conclude that the Respondents offer of the
job to Tavares rather than to Symonds was unlawful I
shall recommend that this allegation be dismissed
24 Allegations concerning Dons Rowe
Dons Rowe was a striker who was reinstated by the
Respondent on 16 March 1984 The evidence establishes
that on 11 July 1984 she arrived at the plant approxi
mately 90 minutes late and began working as a packer A
short time later she was summoned by Paul Harrington
to Kobialka s office where Kobialka and Corbett were
present and she was asked to explain why she was late
Rowe told them that she had had a personal problem
with a family member that morning and could not leave
home until she had straightened it out Kobialka asked
Rowe if she had called in and she said that she asked a
coworker to give Paul Harrington a message Harrington
acknowledged that he received Rowe's message Ko
bialka told Rowe that because of the problems the Re
spondent was having its policy was for employees who
were going to be late to personally telephone Kobialka
or Harrington and say so He also told Rowe that if she
was going to be more than one hour late not to bother
coming in and if she was to be more than 5 minutes late,
to call in and they would let her know whether to come
in or not He said that this was now the Company s
policy and it applied not just to her, but to everyone He
told Rowe that since she had already punched in that
day she could stay A notation in Rowe s personnel file
indicates that she was given an official warning for
coming in late on 11 July On 20 July 1984, Rowe
learned at 6 a in that the employee she was to ride with
was ill and would not be going to work Rowe called
her daughter, who had Rowe s car and asked her to
bring it to her The daughter, who was ill that morning
herself, did not arrive with the car until 6 55 a in Realiz
ing she was going to be late, Rowe called Paul Harting
ton, told him what had happened said she would be
about 15 minutes late, and asked him if she should come
into work Harrington replied, no, I don t thing [sic]
so Rowe again asked Harrington if she should come in
and he said no, so Rowe did not go to work that day
The General Counsel contends that Rowe was given the
warning on 11 July and was told not to come to work
on 20 July pursuant to the tardiness policy announced by
Kobialka on 14 September 1983 and that in each instance
the Respondent violated Section 8(a)(3) and (1) of the
Act
Analysis and Conclusions
Although I have found that the tardiness policy the
Respondent announced and enforced against Carmen
Glidden on 14 September 1983 was an unlawful act of
retaliation against its employees because of their union
activity, it does not appear that that tardiness rule which
provided that anyone who was late would be sent home
was in effect or being enforced in July 1984 If it were,
Rowe would have been sent home on 11 July instead of
being allowed to remain at work Accordingly, I find
that the Respondent s actions regarding Rowe s tardiness
on 11 and 20 July 1984 were not based on that unlawful
policy
Kobialka testified that on 11 July he was aware from
testimony at the trial in this matter that Rowe had signed
a union authorization card and had attended union meet
ings and he was obviously aware of the fact that she had
participated in the strike and had been reinstated pursu
ant to her offer to return to work There is ample evi
dence of the Respondent's union animus and that it had
committed unfair labor practices both during the Union's
organizing campaign and after the election conducted by
the Board I conclude that the General Counsel made
out a puma facie case under Wright Line supra, suffi
cient to support the inference that protected conduct was
a motivating factor in the Respondents decision to give
Rowe an official warning for tardiness on 11 July I also
find that the Respondent has established that it would
have taken the same action even in the absence of pro
tected conduct Rowe was admittedly an hour and a half
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
late that day and the Respondent had a legitimate inter
est in seeing that its employees reported for work on
time and that its production line positions were filled so
that it could operate efficiently Kobialka, who gave
Rowe the warning explained that he happened to see
her arriving late that day, that he felt she was excessive
ly late, and that he told her he wanted her to get to
work on time and to call in if she was going to be late
Unlike the situation involving Glidden, where a normally
punctual employee was sent home for arriving late one
time, without any warning, and pursuant to a new policy
which was instituted to penalize and intimidate employ
ees from engaging in union activity Rowe was simply
told that coming in over an hour late was unacceptable
and warned that in the future excessive tardiness could
result in her not being allowed to work Under the cir
cumstances the Respondents action was not unreason
able, its reasons for so acting were fully explained and
convinced me that it would have taken the same action
even in the absence of protected activities on the part of
Rowe and other employees I shall recommend that this
allegation be dismissed
For the same reasons stated above, I find that the Gen
eral Counsel has made out a prima facie case under
Wright Line, supra, that protected activity was a motivat
ing factor in the Respondents disciplining of Rowe by
not permitting her to work on 20 July Unlike the case of
the warning on 11 July I find that the Respondent has
not borne the burden of establishing that it would have
taken this disciplinary action against Rowe regardless of
protected activity on the part of its employees On the
contrary it has presented no evidence whatsoever to ex
plain or justify its action on 20 July Kobialka testified
that Paul Harnngton was solely responsible for the deci
sion to not permit Rowe to come to work that day Har
rington was not called as a witness and there is nothing
in the record to establish why Rowe was not allowed to
come to work Even under the policy outlined by Ko
bialka to Rowe on 11 July, she was not precluded from
coming to work because she was not going to be more
than an hour late Rowe testified that on 23 July the
next workday, she observed two workers hired as re
placements during the strike, Kevin Leary and Debbie
Sierra, arrive at work approximately 15 to 20 minutes
late and both worked the rest of the day There was no
explanation as to why these employees were allowed to
come to work late but Rowe was not The Respondent
apparently made a determination on a case by case basis
as to how it would treat employees who called in to say
they would be late In the 20 July incident, Rowe called
in and explained that she would be no more than 15 min
utes late for reasons which were beyond her control and
was told to stay home However, one morning during
the first week of September 1984 after a charge concern
ing the incidents on 11 and 20 July had been filed and
the consolidated complaint had been amended to allege
those two incidents as violations of the Act Rowe called
in at 7 20 a m and told Paul Harnngton that she would
be at least another 20 to 25 minutes late because she had
overslept Harnngton told her to come to work The
record contains no evidence of the criteria if any, the
Respondent used in determining whether or not tardy
employees would be permitted to work Its inconsistent
actions with respect to the replacement workers and
even Rowe herself, have not been explained The Re
spondent had previously used tardiness as an excuse for
retaliating against its employees for engaging in union ac
tivity Considering all of these circumstances and, pri
marily, the lack of any explanation about why Rowe was
disciplined on 20 July I find that the Respondent has not
met its burden under Wright Line of demonstrating that
the same action would have taken place in the absence of
the protected conduct 93 I find that the Respondent s
disciplinary action against Rowe on 20 July violated Sec
tion 8(a)(3) and (1) of the Act
D Reinstatement Rights of Certain Strikers
The Respondent asserted as an affirmative defense that
certain employees who participated in the strike have
forfeited their rights to reinstatement and backpay be
cause of their misconduct during the strike Except with
respect to Donald Stewart, there is nothing in the record
that establishes that the Respondent made an actual deci
sion to refuse to reinstate the employees in question or
specifies the reasons why reinstatement is unwarranted
Accordingly, in deciding whether these employees are
disqualified from reinstatement, I have considered only
those incidents which are designated in the Respondent s
brief with sufficient specificity to enable me to identify
the evidence relating thereto
In Clear Pine Mouldings 94 the Board adopted an ob
jective test for determining whether actions by strikers
are such as to justify an employers refusal to reinstate
them Reinstatement may be denied where under the ex
isting circumstances, the misconduct is such that it may
reasonably tend to coerce or intimidate employees in the
exercise of rights protected under the Act 95 Whether
this standard has been met must be determined by evalu
ating the factual circumstances on a case by case basis 96
1 Betty Favazza
During the second week of the strike the Respondent
used a bus to transport certain of its nonstriking and re
placement workers to and from its plant On the after
noon of 27 September as the bus was leaving the plant
premises in a small caravan of vehicles containing other
employees and company officials it was pelted with a
barrage of fruits vegetables and eggs while at the same
time picketers were banging on the sides of the bus The
Respondent introduced into evidence a photograph taken
from inside the bus showing striker Betty Favazza stand
ing on the roadway with her left arm drawn back in a
throwing position and holding what appears to be a
tomato in her hand James Corbett, who was aboard the
bus and took the photograph of Favazza, testified that he
saw her throw the tomato at the bus Favazza did not
testify concerning this incident
93 251 NLRB at 1089
94 268 NLRB 1044 (1984)
ea Id at 1046
96 Catalytic Inc 275 NLRB 97 (1985)
MASSACHUSETTS COASTAL SEAFOODS 531
The Respondent contends that Favazza s action in
throwing the tomato at the bus was misconduct sufficient
to justify its refusal to reinstate her The General Coun
sel contends that Favazza s action caused no real threat
of harm to the passengers did no damage to the bus and
was not sufficiently serious to justify denial of reinstate
ment The testimony of several witnesses concerning the
bus pelting incident on 27 September establishes that a
substantial number of strikers were present and were pre
pared in advance to pelt the bus with vegetable matter
when it exited the plant premises 97 Corbett's uncontra
dicted testimony establishes that Favazza did throw at
least one tomato at the bus Unlike the situation involved
in Giddings & Lewis Inc ,98 relied on by the General
Counsel, Favazza s action was not of a purely impulsive
and trivial nature, but was that of a willing participant
in a preplanned and substantial effort to harass nonstrik
ing employees I find that Favazza s action in throwing a
tomato at the bus, under the circumstances presented
here, was an effort to coerce and intimidate other em
ployees and was sufficiently serious to disqualify her
from reinstatement 99
2 Lucinda Symonds
The Respondent contends that Lucinda Symonds is
not entitled to reinstatement because of the following
acts of misconduct during the strike
1 She made a telephone call to the home of em
ployee Barbara Murphy and in Murphy s absence
told her teenaged daughter, Ken that if Murphy
and another daughter who was an employee Kim
Grover, went into work they re dead
2 She kicked the car of nonstnker Billy McDon
aid as he attempted to enter the plant
3 She banged on a car in which replacement
worker Roger Wilson and employee Barbara Hol
land were attempting to exit the plant and threat
ened to get Holland for crossing the picket line
with Wilson
The General Counsel contends that the evidence does
not establish that Symonds made the telephoned threat to
Ken Murphy and even if she did, under the circum
stances it was not likely to coerce or intimidate anyone
I do not agree with either contention Ken Murphy was
16 years old when she testified and was an impressive
witness She testified that on a Monday during the strike
she answered the telephone and the caller asked if her
mother was home When Ken said she was not the
caller told her to tell Kim and your mother that if they
show up for work, they re dead She told her mother
and sister about the call that same day She said that she
recognized the voice of the caller as that of Lucinda Sy
monds with whom she was acquainted and to whom she
had spoken by telephone before100 and that she was
positive that it was Symonds that spoke to her Symonds
testified that she did not have a telephone conversation
with Ken Murphy during the strike and did not tell her
that if her mother and sister went to work they re
dead ' Based on their demeanor while testifying I find
that Ken Murphy did receive the telephone call she tes
tified to and did recognize the voice of the caller whom
she identified as Symonds 101 I did not believe Symonds'
denial I also find that a death threat made to a teenaged
child directed against her mother and sister if they con
tmue to exercise their Section 7 rights to refrain from
striking goes beyond the bounds of legitimate strike ac
tivity and is a serious act of misconduct which would
reasonably tend to coerce and intimidate nonstriking em
ployees The facts that there was a relationship by mar
nage between Symonds daughter and Barbara Murphy s
son, that Symonds daughter provided daycare for one of
Murphy's grandchildren, that Kim Grover was unsure of
when the telephone call occurred, and that Murphy and
Grover continued to work during the strike do not cast
significant doubt on Ken Murphy's testimony or render
the death threat any less coercive I find that, under the
standard of Clear Pine Mouldings, Symonds is not enti
tled to reinstatement because of this incident
James Corbett testified that on the afternoon of 20 or
21 September as employees were exiting the plant he
saw Lucinda Symonds kick the right rear door or quar
ter panel of nonstriker Billy McDonald s car There was
no evidence of any damage to McDonald s car and Sy
monds denied kicking the car In this instance, I credit
Corbett s testimony, but find that this was not a serious
act of misconduct which would warrant denying rein
statement
On 28 September employee Barbara Holland came to
the plant with her brother Roger Wilson, who was ap
plying for a job As they were exiting the plant drive
way they encountered a group of pickets including Sy
monds Michael Kobialka testified that Symonds banged
on the passenger side windows with a stick or with her
hand and said, We re going to get you for this Bar
bara James Corbett testified that he observed Symonds
banging on the windows of the car Holland testified that
she heard a lot of yelling and there was banging on the
car but she did not attribute it to Symonds Symonds
testified that she spoke to Holland through an open
window and called her a traitor, but did not strike the
car with her hand or an object Photographs of the inci
dent show Symonds with no object in her hands I find
there is insufficient credible evidence to establish that
Symonds did or said anything during this incident to
warrant not being reinstated
94 Despite this finding of preparation by the strikers to pelt the bus I
do not find as the Respondent contends that the preparations included a
plan whereby Donald Stewart would halt the caravan by obstructing the
lead vehicle
98 240 NLRB 441 450 (1979)
99 Cf Harry Hoffman & Son Printing 278 NLRB 671 (1986)
100 Ken Murphy s brother is married to Symonds daughter For a
time Symonds daughter lived in the same house as the Murphys and Sy
monds had called the Murphy home in order to speak to her daughter
101 Symonds testified that she spoke to Ken a number of times when
she called for her daughter and that she thought that Ken would recog
nize her voice
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Carmen Glidden
The Respondent contends that Carmen Glidden should
be denied reinstatement because of the following acts of
misconduct during the strike
1 She was observed kicking nails and a piece of
cardboard containing nails under the tires of a
truck
2 She was observed standing up nails while on
the picket line
3 She banged on the car of Roger Wilson and
verbally threatened Barbara Holland as they exited
the plant driveway on 28 September
James Corbett testified on direct examination that on
the second or third day of the strike he believed he
saw Carmen Glidden kick nails under the tires of a truck
entering the truck entrance driveway, as he saw her
`standing in front of the dual rear wheels kicking objects
under the tire On cross examination , Corbett said that
he was 100 feet from where Glidden was standing in the
midst of 15 to 20 people and that he did not actually see
the nails he claimed she was kicking The Respondent
has not specified any other testimony in support of this
alleged misconduct and I did not find any in the volumi
nous record Glidden acknowledged that she had seen
nails on the driveways, but denied having put them there
or ever having kicked them under the tires of vehicles I
find there is insufficient evidence to establish that Glid
den ever kicked nails or a cardboard containing nails
under the tires of a vehicle I have also found nothing in
the record to establish that Glidden stood nails up while
on the picket line
Kobialka testified originally that he saw Glidden and
Symonds bang on the window of Roger Wilson s car as
it was exiting the driveway on 28 September and heard
both say we're going to get you for this' to Barbara
Holland On cross examination he referred only to Sy
monds banging on the window and said the only person
he could recall saying anything to Holland was Pearl
Cabral Holland, whom Glidden allegedly threatened
did not mention Glidden in her description of the mci
dent Glidden credibly denied having made threats to
Holland I find there is insufficient evidence to establish
that Glidden made a threat to Holland or banged on the
car I find that the Respondent has not established that
Glidden engaged in serious misconduct on the picket line
or any other basis on which she should be denied rein
statement
4 Josephine Jacobs
The Respondent contends that Josephine Jacobs
should be denied reinstatement because on 21 September
she physically assaulted and restrained a representative
from Brodie Equipment Company when he attempted to
cross the picket line to check some rental equipment in
the plant According to Kobialka s direct testimony the
Brodie man was unable to enter the driveway with his
van and parked it across the street He walked over to
the truck entrance and talked to the picketers there He
then walked down to the other driveway and Kobialka
went to meet him The man identified himself and why
he was there and asked a policeman to clear a path
through the picket line At that point, Josephine Jacobs
ran up to the man, shoved him, and put her hands up
and said, you can t cross this line Kobialka s cross ex
animation testimony about this incident, given about a
month later, was significantly different He said that he
was 8 to 10 feet behind Jacobs and did not actually see
her touch the man with her hands, but saw him abruptly
step back 2 to 3 feet At that point the policeman
jumped in and grabbed ' Jacobs and told her if she
did that again she would be arrested James Corbett testi
fled that he observed the same incident from the drive
way near the front steps of the plant, about 40 feet away,
and, at the time , Kobialka was standing next to him Al
though he said there were 10 to 15 picketers present, he
could remember only Jacobs He saw the Brodie man try
to go around the picketers on the right side of the drive
way Jacobs broke away from the others, put her arms
out, and told the man you cant cross our picket line'
As the man started to walk down the driveway, she
lowered her hands and pushed him in the chest ' A po
liceman then said to her, you can t do that, don t do it
again
Jacobs appeared to have no recollection of this par
ticular incident, but she testified that she had on occasion
put her arms out and asked people to please honor the
picket line and not enter the plant She said she did not
remember pushing anyone or touching anyone Ellen
MacDonald testified that she was present on the picket
line during the first week of the strike and observed
Jacobs, who was 5 or 6 feet away speak to a man who
was attempting to cross the picket line Jacobs stood at
the top of the driveway outside what they observed as
the Company's property line with her back to the build
ing and her arms extending out from her sides, she told
the man they were on strike and asked him to not cross
the picket line The man replied that he had business
inside The conversation lasted 30 to 45 seconds and the
man walked around Jacobs and on into the plant She
did not see Jacobs push the man or touch him She did
not recall a policeman being present or saying anything
to Jacobs Hazel Ellis testified that she was present on
the picket line when the Brodie man crossed the line,
that she saw Jacobs put her arms out and heard her ask
the man not to cross the picket line As she did so, she
walked backwards a few steps as the man walked for
ward Jacobs did not push or touch the man and she did
not see a policeman do anything or hear him say any
thing to Jacobs
Neither the Brodie man nor the policeman testified I
found MacDonald and Ellis to be impressive and credi
ble witnesses and I believe their description of the mci
dent Jacobs appeared to have no recollection of it and
seemed genuinely bewildered that she was accused of as
sulting someone on the picket line I did not believe Cor
bett or Kobialka concerning this incident It appears they
took an actual event that was relatively innocuous and
attempted to fabricate it into a basis for denying Jacobs
MASSACHUSETTS COASTAL SEAFOODS
reinstatement, 102 thus attempting to make good on Ko
bialka's picket line threat to Jacobs that she would never
work there again I find nothing in this incident as de
scribed by MacDonald and Ellis which amounted to sen
ous misconduct Jacobs did not push or touch the man or
order him around It appears she extended her arms out
ward as she asked him to honor the picket line, but that
the man had no trouble walking around her when he
chose to do so There is no evidence that the Brodie man
was intimidated or physically impeded or that he made
any complaint about what occurred It defies credulity to
suggest that Jacobs ran up and began physically assault
ing a total stranger while a policeman was standing a
few feet away I find the evidence fails to establish that
Josephine Jacobs engaged in serious misconduct on the
picket line that would justify denying her reinstatement
5 Robert Sheehan
The Respondent contends that Robert Sheehan should
be denied reinstatement because of the following acts of
misconduct during the strike
1 He was observed in the vicinity of nails on
many occasions and was seen standing up nails on
the picket line
2 He caused an undetermined amount of damage
to the vehicle of nonstriking employee Paula
Viator
3 He threatened to cause damage to Frank Ges
naldo s car and implied that he was responsible for
damage to Gesnaldo's pickup truck
4 He threatened to murder Michael Kobialka
5 He threatened to cause body harm to Walter
White
The basis for the allegation that Sheehan was seen
standing up nails is apparently the testimony of Kobialka
and Corbett Kobialka testified that he once saw Sheehan
attempting to stand nails up with his feet On cross exam
[nation, he testified that he had not actually seen Sheehan
do this but from 20 to 40 yards away had observed
Sheehan standing among many picketers moving his
foot in this peculiar manner which appeared to Ko
bialka as though he were attempting to stand up nails
However, Kobiakla did not see a nail at his foot and
could not recall if there were any nails on the ground
that day Corbett testified tht he too had seen Sheehan
move his shoe in a sidewards direction and frontwards
trying to what appeared to me to stand up a nail Al
though Corbett was within 7 or 8 feet of Sheehan he did
not see him stand up any nails Corbett said he found
nails standing up in the area and that there were other
picketers in the same area Sheehan denied that he had
stood up any nails Donald Stewart, whom Corbett iden
tified as being with Sheehan when he saw him moving
his shoe, said that he did not see anyone stand nails up I
find there is insufficient evidence to establish that Shee
102 Each of the three times Kobialka described the incident it got
more violent He first said that as the confrontation ended he may
have asked the policeman to please let him come in In his final ver
Sion the policeman had to jump in and grab Jacobs and threaten her with
arrest in order to get the Brodie man across the picket line
533
han stood up nails while on the picket line There was
evidence that, on occasions, there were nails on the
ground near the picket line when Sheehan was present,
but none that he put there This does not establish mis
conduct on Sheehan's part 103
Paula Viator testified that one morning after the elec
tion, as she drove through the picket line in her hus
band s truck, Donald Stewart, who was standing to the
left with three or four picketers approached and said
something to her At that time she heard a scraping
sound to her right where only Robert Sheehan was
standing After she parked the truck she saw a scrape
about 1 foot long and one eighth of an inch wide on the
lower right side of the truck which had not been there
before Sheehan denied that he had ever scraped a vehi
cle as it drove through the picket line There is no rea
sonable basis on which to conclude that Sheehan did
scratch Viator s vehicle No one testified to seeing him
do it Sheehan's credible denial was substantially more
probative than the Respondents circumstantial evidence
that Sheehan was responsible for the scrape Viator said
it was her husband's truck and it was dark at the time
she drove in While she said the scrape was not there
before, it is not clear when she had last looked at the
side of the truck Under the circumstances, I am unable
to conclude that Sheehan did, in fact, damage Viator s
vehicle
Frank Gesnaldo testified that one morning during the
first week of the strike he discovered that his pickup
truck had been vandalized Three of the tires were flat
and varnish had been poured on the hood, fender, and
grille He drove to work that morning in his car with
employee Jean Gogswell As they were driving through
a picket line of a total of four people Sheehan standing
20 to 30 feet away, asked him how he liked the job they
did on his pickup and said his car would be next Ko
bialka testified that on the morning of 23 September, as
Gesnaldo drove his truck by approximately 20 picketers
he heard someone say I heard they got you last night
Frankie, we 11 get you again, ' He observed spray paint
on the windshield and sides of Gesnaldo s vehicle Ges
naldo told him that that two of his tires had been slashed
during the night According to Kobialka it was a male
voice that made the comments to Gesnaldo and he be
lieved it was Sheehan or Donald Stewart but he did not
see who the speaker was Sheehan denied ever making
any comments to Gesnaldo as he drove through the
picket line and specifically denied saying anything like,
I heard they got you last night
I consider the testimony of Gesnaldo and Kobialka to
be another attempt to fabricate an incident of misconduct
in order to provide a basis for refusing to reinstate some
one Kobialka did not want back It seems obvious that if
Sheehan had from 20 to 30 feet away shouted to Ges
naldo early in the morning, within at most, a few hours
of the vandalism to Gesnaldo s truck, that he knew about
it and that Gesnaldo s car would be next, Gesnaldo
would have mentioned this to the police when he report
ed the incident that morning There is no evidence that
103 Harvey Engineering Corp 270 NLRB 1290 (1984)
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he did or that any action was taken against Sheehan on
the basis of this implied claim of participation or com
plicity in the vandalism Gogswell, who was in Gesnal
do's vehicle at the time and would presumably have
heard Sheehan s statement , was not called to corroborate
Gesnaldo s testimony Instead , the Respondent used Ko
bialka, who testified to hearing a male voice he thought
was Sheehan s or, perhaps, Stewart s talking about the
vandalism, but he really did not know whose it was
Notwithstanding the fact that Gesnaldo testified that his
pickup truck could not be driven that morning and he
drove to work in his undamaged car, Kobialka testified
to seeing Gesnaldo drive his truck through the picket
line, complete with spray paint on the windshield and
sides 104 I find there is no credible evidence to establish
that Sheehan made a threat to damage Gesnaldo's car or
implied that he was responsible for vandalizing Gesnal
do s pickup truck
Kobialka testified that on an afternoon during the
week of the election, he and Corbett were sitting in his
car near the picket line waiting for a truck to come in
He heard Janet Miller make a remark about his sitting
comfortably in his fancy car and then he heard Robert
Sheehan say, if it wasn' t a crime , I'd go over there and
murder him right now Sheehan said this to either Betty
Favazza or Josephine Jacobs Corbett testified to hearing
Sheehan say, if it warn t a crime, I'd go over there and
murder him right now Sheehan said this to either Betty
Favazza or Josephine Jacobs Corbett testified to hearing
Sheehan say, `If it wasn't a crime, I d murder him right
here to Clara Curtis and that Sheehan glanced or
nodded toward Kobialka when he said it Sheehan
denied making the remarks attributed to him by Kobialka
and Corbett and said that during the week of the elec
tion he recalled being on the picket line only in the
morning because he had a job that week Janet Miller
denied saying anything to Kobialka about sitting in his
fancy car or hearing Sheehan say ` if it wasn't a crime
I d kill him Clara Curtis denied hearing Sheehan make
these remarks to Kobialka or ever hearing Sheehan
threaten anyone Josephine Jacobs also denied hearing
Sheehan make these remarks I have found that Kobialka
and Corbett have fabricated or distorted other alleged in
cidents to serve the Respondent's purposes and I believe
that is this case here I credit Sheehan s testimony deny
ing that he ever made a threat to murder Kobialka 105
Nonstriker Walter White testified that on a Saturday
morning in October while he was picking up nails in the
driveway of the truck entrance, he saw Sheehan and
Donald Stewart picketing One of them said to him
104 Gesnaldo testified that his pickup truck had varnish on the hood
fender and grille There is no question but that Kobialka was purporting
to describe the same picket line incident as Gesnaldo occurring on
Friday 23 September the morning after the vehicles of Gesnaldo and
Carl Silva had been vandalized
ios There is nothing to indicate that Sheehan made any threatening
gestures toward Kobialka or that Kobialka was intimidated by Sheehan
While a threat may still be serious misconduct even the absence of such
gestures Clear Pine Mouldings supra under the circumstances presented
here it suggests to me that Kobialka and Corbett may well have misun
derstood or misstated remarks which Sheehan did not intend and those
to whom they were addressed did not consider to be a threat to harm
Kobialka
there s no nails out there" and, as he reached the top of
the driveway, Sheehan said, When this is all over, I in
going to kill you " White responded, You and what
army?" and Sheehan said he would do it by himself with
his bare hands
Sheehan denied threatening to kill White and de
scribed an incident involving himself, White, and Stewart
on the picket line on a weekend morning Sheehan testi
feed he was sitting in his van with Stewart when White
approached them, made an obscene gesture towards
them, and taunted them, saying, that he was working and
getting a paycheck White also told Sheehan he was
going to beat him up Sheehan invited White up to the
street because he was not allowed on the company prop
erty and said if he came up to the street they would
pick him up with a shovel White then returned to the
plant Stewart testified that White walked towards them,
gave them the finger, and slammed his fist into his hand
Sheehan responded "if you want to try an old man,
come up here " White then returned to the plant
Based on his demeanor while testifying and the fact
that his claim that Sheehan, without provocation and
with a policeman sitting nearby, threatened to kill him
was implausible at best, I do not credit White's testimony
concerning this alleged threat There was hostility be
tween White and Sheehan dating back before the strike
According to Stewart, the two had more than once
traded insults on the picket line I find, based on the
credited testimony of Stewart, that White began this ex
change with provocative gestures and Sheehan respond
ed in kind There was no indication that White and Shee
han did anything more than exchange unpleasantries
during this incident or that either was seriously seeking
to engage the other in an altercation I find that the evi
dence concerning this and the other incidents cited by
the Respondent does not establish that Sheehan engaged
in serious misconduct during the strike which would bus
tify denying him reinstatement
6 Evelyn "Pearl" Cabral
The Respondent contends that Evelyn Cabral should
be denied reinstatement because of the following acts of
misconduct during the strike
1 She threatened to burn Frank Gesnaldo s boat
2 She threatened to beat up her sister employee
Barbara Holland when Holland crossed the picket
line
Frank Gesnaldo testified that during the strike while
he was near the loading platform and Sheehan, Stewart,
and Pearl Cabral were picketing near the driveway en
trance with some other women, Cabral stated, "we re
going to burn your boat next ' Gesnaldo did not know
what the `next meant as no one had said anything to
him about burning anything else he owned but he did
say that he owned a boat
Cabral credibly denied that she never threatened to
burn Gesnaldo's boat, that she knew that he had a boat
or that she knew where he lived Both Sheehan and
Stewart whom Gesnaldo identified as being present
when the threat was made, denied ever hearing Cabral
MASSACHUSETTS COASTAL SEAFOODS
threaten to burn Gesnaldo s boat I do not credit Gesnal
do s testimony since he appeared to have no personal
knowledge that it was, in fact, Cabral who made such a
threat In an affidavit he gave the Board 4 days after the
incident he said that the threat was made by a woman
who he did not identify I did not believe his testimony
that he did not identify her because he didn t want to
implicate anybody His testimony that it was Pearl
Cabral who made the threat appeared to be based on
what other people told him after he gave the affidavit to
the Board He did not testify to seeing Cabral make the
threat or that he recognized her voice There were other
women present on the picket line when the threat was
made I find that the evidence does not establish that
Cabral threatened to burn Gesnaldo s boat
Cabral is also alleged to have told her sister Barbara
Holland that she would beat her up when Holland
crossed the picket line in the car of Roger Wilson the
brother of both Holland and Cabral The evidence estab
lishes that Holland came to the plant during the second
week of the strike with Wilson who was applying for a
job The car was surrounded by picketers both when it
entered and exited the driveway to the plant and it was
stopped for a few minutes each time until the police
could clear a path
Holland testified that she could not recall anything
that was said when she was passing through the picket
line, but that while she was in the plant for about 20
minutes she heard Cabral yelling, you re hiring a
dummy, he can t read or write, referring to Wilson, and
also, 111 get you Barbara you 11 be sorry 111 get you '
Kobialka testified that, as the car was exiting, he heard
Cabral tell Holland that she would get her and beat her
up Corbett also testified that as the car was leaving he
saw Cabral throw a cup of coffee on the windshield and
that she was slapping her hands on the car and had to be
restrained by a policeman He heard her angrily scream
at Holland that she was going to beat the shit out of
her
Cabral testified that she was very upset and crying
when she learned that her brother and sister had entered
the plant She said that while they were inside she
yelled in a loud voice that Kobialka should not hire
Wilson because he could not read or write She said that
when they left the plant she yelled and screamed at
them speaking mainly to her brother and telling him he
was taking food away from her children She denied tell
ing Holland that she would beat the shit out of her,
that she ever struck the car or that she had to be re
strained by a policeman Lucinda Symonds, Carmen
Glidden and Karen Anderson all testified that they were
present and that they did not hear Cabral threaten to
beat the shit' out of Holland
I do not credit the testimony of Kobialka and Corbett
concerning Cabral's alleged threat to beat the shit out
of Holland when she was leaving the plant Cabral credi
bly denied it and three other witnesses supported her
denial I found Holland to be a credible witness and be
lieve that had she been the target of such a threat, she
would have remembered it She was in a better position
than either Kobialka or Corbett to hear what her sister
was saying to her I also credit Holland s testimony that
535
while she was in the plant in Kobialka s office she heard
Cabral say she would get her ' and that she would be
sorry Although the office did not face the street Hol
land remembered that the window was open and Cabral
testified that she believed that they could have heard her
yelling Holland testified that Cabral never took any
action to physically harm her and that she and Cabral
had had angry words before, saying yes, I guess sisters
do do that thing, you know' There was no evidence
that Holland, who had originally participated in the
stnke, but following this incident, returned to work and
continued to do, was intimidated by her sisters threat
to get' her
While recognizing that under Clear Pine Mouldings a
verbal threat does not have to be accompanied by physi
cal gestures and that a threat to get someone need not
include a specific threat of physical harm in order to
amount to serious misconduct, 108 I find under these cir
cumstances, that Cabral s remarks to Holland did not
constitute serious misconduct which would reasonably
tend to coerce or intimidate Holland or other employees
The circumstances here are unique Cabral was obvious
ly emotionally distraught at having her sister return to
work and bring along their brother to apply for a job as
a strike replacement Just as the surrounding circum
stances can lend credibility to and increase the gravity of
verbal conduct,107 they also can have the opposite
effect Here, the close familial relationship between
Cabral and Holland tends to mitigate any coercive aspect
of Cabral s statements that she would get Holland and
that she would be sorry Unlike a situation when am
biguous statements are made by strangers or unrelated
coworkers and suggest the possibility of bodily harm, be
tween close family members such statements are more
likely to suggest a change or a diminution in the quality
of their relationship than a threat of physical harm That
appears to be exactly what occurred between Cabral and
Holland While no physical harm resulted, there was an
estrangement between them I find that the evidence
does not establish that Evelyn Cabral engaged in serious
misconduct sufficient to forfeit her rights to reinstate
ment by the Respondent
7 Donald Stewart
The Respondent contends that Donald Stewart should
be denied reinstatement because of the following acts of
misconduct during the strike
1 He threw nails at the entrances to the plant
and was observed in the presence of nails on many
occasions
2 He threatened to knock Frank Gesnaldo s
teeth out and on more than one occasion he spat at
the vehicle Gesnaldo was driving
3 He kicked the car of nonstriker Kim Grover
4 He deliberately impeded the passage of Kobial
ka's car which enabled the strikers to pelt a bus car
106 See Georgia Kraft Co 275 NLRB 636 (1985)
107 Clear Pine Mouldings supra at 1046
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rying nonstrikers with debris when it was forced to
stop
Frank Gesnaldo testified that 2 or 3 weeks after the
strike started he observed Donald Stewart throw a hand
ful of nails in the driveway by the office Gesnaldo said
he was 50 feet away when Stewart threw the nails and
he later went up and retrieved them Stewart denied
throwing nails in the driveway Even apart from his
denial , I find there is no credible evidence that Stewart
threw any nails because I did not believe Gesnaldo's tes
timony that he saw Stewart do so This is based on his
demeanor while testifying and the fact that Kobialka s
testimony made it clear he was infuriated by the fact that
nails were being thrown in the driveways and frustrated
by the fact that he could not find out who was doing it
One morning on the picket line after he checked and
found no nails, Kobialka told Stewart and Sheehan that
if there were any nails found while they were there, he
would have them arrested and he told a policeman on
duty the same thing I have no doubt that if Kobialka has
an eyewitness in Gesnaldo, who could identify Stewart
or any other striker as having thrown nails in the drive
way, he would have brought the information to the at
tention of the police and sought to have the person ar
rested There is no evidence that he ever did so Further,
Kobialka testified that while he strongly suspected that
Stewart was responsible for nails in the driveways he
never saw Stewart throw any He did not say that Ges
naldo had claimed to have seen Stewart do so even
though Stewart was someone Kobialka had actually
made a decision not to reinstate in April 1984 when he
hired new cleanup people to do Streart s old job All this
convinces me that Gesnaldo fabricated the story about
seeing Stewart throw nails in the driveway The fact that
Stewart was seen in the vicinity of nails does not estab
lish that he was responsible for them being there
Gesnaldo also testified that during the second week of
the strike , as he was driving out of the driveway in a
company truck Stewart swore at him spat on the truck
window and told Gesnaldo that he was going to punch
him out and punch the rest of his teeth out Gesnaldo
said that employee Jim Sheehan was in the truck with
him at the time but he did not know who else was on
the picket line because he wasp t paying too much at
tention Gesnaldo gave an affidavit to the Board on 27
September in which he described an incident in which he
was assisting a truckdriver by lending him pliers to
remove nails from a tire when Stewart threatened to
punch his teeth out When asked about this affidavit on
cross examination , he said there were two separate inci
dents one, in which Stewart threatened him and an
other in which Stewart spat on the truck window
When confronted with the fact that his affidavit made no
mention of Stewart spitting at him Gesnaldo said that it
might have happened after he gave the affidavit Previ
ously, he claimed to have a vivid recollection of the mci
dent He had also testified that direct examination con
cerning the incident in which he helped the driver
remove nails from a truck tire without saying anything
about Stewart threatening him On redirect Gesnaldo re
spitting at the truck were different incidents saying I
don t even think it was the same day I dtdn t remember
the day Stewart testified that he had called Gesnaldo
obscene names when he passed through the picket line,
but denied threatening to punch his teeth out or ever
spitting at the vehicle in which Gesnaldo was riding
Once again, based on his demeanor while testifying
and the content of his testimony I do not credit Gesnal
do s claims that Stewart threatened to punch his teeth
out and spat at him His testimony about the alleged inci
dent , or two incidents was confused and contradictory
and he never established when the alleged spitting inci
dent took place Jim Sheehan, who he said was in the ve
hicle at the time Stewart spat at it , was not called as a
witness to corroborate Gesnaldo s story Although the
Respondent argues that Stewart spat at Gesnaldo s vehi
cle on more than one occasion Gesnaldo testified that
there was only one incident in which Stewart spas at
him I find the credible evidence fails to establish that
Stewart threatened Gesnaldo or spat at a vehicle Ges
naldo was driving
James Corbett testified that he was present near the
employees entrance on 20 or 21 September, during the
first week of the strike, when a car driven by Kim
Grover crossed the picket line Grover s mother and two
other people were in the car The car was blocked by
picketers until the police cleared a path As the car
crossed the picket line he saw Donald Stewart kick the
rear quarter on the passenger side of the vehicle Stewart
denied kicking a vehicle dunng the first week of the
strike Kim Grover testified that she did not go to work
on 19 or 20 September She returned to work on 21 Sep
tember, but did not drive her car as she rode with
Duarte Medina and Kevin Harrington She gave no tests
mony concerning Stewart kicking her car at the picket
line I find that the alleged kicking incident Corbett de
scribed never happened
Stewart himself testified that sometime in October he
once kicked at a vehicle crossing the picket line when it
nearly ran over his foot The car was driven by a
woman but he did not know who it was A police
report offered into evidence by the Respondent indicates
that, on 13 October Kim Grover told a Gloucester po
liceman that Stewart had kicked her car several times
The report states that the policeman observed Stewart
knee the car , which was old and rusted and that no
damage was done to it Stewart testified that a criminal
complaint was issued against him in connection with this
incident and that he was exonerated There was no testi
mony or other evidence to the contrary Accepting
Stewart s uncontradicted version of this incident I find
that it was an understandable reflex reaction after Stew
art was nearly struck by a vehicle being driven in across
the picket line in a dangerous manner It did not involve
serious misconduct and was too trifling to warrant con
sideration as a basis for denying reinstatement 108
Kobialka testified that on the afternoon of 27 Septem
ber, when he was leading a caravan of vehicles out of
the company premises he was forced to stop his car by
iterated that the threat to knock his teeth out and the 108 Giddings & Lewis Inc supra at 454 fn 34
MASSACHUSETTS COASTAL SEAFOODS 537
Stewart and Union Official Robert Moore who were
standing in the middle of the street with their backs to
him This halted the caravan and, at that point, the bus
carrying nonstriking employees was pelted with debris
As Kobialka began to pull his car around Stewart, he
jumped into the rear left side of the car and fell down
Kobialka stopped the car and got out, but was told by a
policeman to get his car going and get out of there,
which he did, along with the bus and the other vehicles
in the caravan Gloucester Police Sergent Clarence Rob
inson testified that he observed this incident while on
duty at the plant Robinson testified that he saw Stewart
deliberately walk into the front of Kobialka s vehicle and
place himself on the ground He and another policeman
went over to Kobialka and told him to get moving, that
there was no trouble, and that Stewart deliberately ran
into the car The Respondent contends that Stewart in
tentionally obstructed Kobialka s vehicle in order to stop
the caravan so that picketers could pelt the bus with
debris I have found that this pelting incident was a sig
nificant act of misconduct which could coerce and in
timidate nonstriking employees and I would agree that, if
it were established that Stewart was a knowing partici
pant in the pelting, it could justify denying him reinstate
ment However I do not find that the evidence estab
lishes this
Stewart credibly testified that during that afternoon he
had been picketing at the other driveway and that he
and Moore decided to go down and wave the flags they
were carrying at the possession of vehicles leaving the
company premises He denied ever discussing with
anyone plans to obstruct the vehicles so that they could
be pelted According to Stewart, he and Moore were
walking along in the middle of the street when Kobial
ka's vehicle slowly came up behind him As the car
passed him, it bumped him He put his hand on the car
to push himself off and in doing so he lost his balance
and fell down
I do not credit Kobialka s testimony that Stewart
jumped into the side of the car because they admitted
that he did not see what happened but only heard a
thump and looked in his side mirror and saw Stewart on
the ground While Sgt Robinson testified that Stewart
deliberately bumped into the front of the car, Stewart
said the car bumped him and he lost his balance I accept
Stewart s version for two reasons The pelting began
before Stewart fell to the ground Robinson testified that
he was standing by the bus as it was being pelted and he
himself was being hit with debris I do not believe that,
under the circumstances which Robinson described as
looking like D Day,' he was in a position to determine
whether Stewart bumped the car or vice versa It also
appears that Robinson was extremely upset by what he
considered Stewart s disrespect for the American flag he
was carrying, which he dropped when he fell to the
ground I believe this colored his judgment concerning
the incident 109
1 09 Sgt Robinson testified
A To be honest with you sir you know what I was really mad
at?
Q (By Mr Sills) What?
I consider Stewart s credible testimony that he was
bumped by the car and lost his balance to be more pro
bative than Robinson surmise In any event having con
sidered all the evidence concerning the incident I find
Stewart s presence at the scene of the pelting was coinci
dental and was not a ploy to halt the caravan According
to Kobialka, when he reached the point where Stewart
was walking in the street he had some room to pass him
on the right but he chose to stop instead It appears that
Kobialka stopped, not because Stewart prevented him
from moving but because he was waiting for the bus and
other vehicles of the caravan to clear the picket line
The pelting began while the police were clearing a path
for it through the picket line Once the pelting began,
Kobialka started to drive forward When Stewart fell to
the ground, Kobialka stopped the car again and got out
Stewart was lying beside the car and was not blocking it
from going forward According to Corbett, who was on
the bus, the pelting lasted only about 30 seconds It
would appear that Stewart s actions did not prolong the
time the bus was subject to the pelting I find that Stew
art was not a part of the preplanned effort to obstruct
the caravan of vehicles in order to place the bus in a po
sition where it could be pelted and that he did not pre
vent Kobialka s vehicle from passing down the street
either before or after the pelting began He did not do
anything during this incident which could be considered
so egregious as to constitute serious misconduct Further,
it appears that the Respondent did not consider Stewart
to have engaged in serious misconduct at the time or, if
it did, it condoned the misconduct Stewart testified
without contradiction, that about 8 30 or 9 the same
evening as he was walking along the street to his home
a car came along side him with Kobialka and Corbett in
it Corbett asked if he was hurt and Stewart said, no,
just my pride They stopped the car and asked Stewart
what had happened and what the story is Corbett
asked Stewart if he wanted to come back to work, told
him that he could come back and to just give Corbett a
telephone call in the morning Kobialka nodded in assent
Stewart said he would go back in with the Union Ko
bialka asked him what had happened to make the em
ployees seek union representation and offered to walk
away if Stewart wanted to tell Corbett about it alone
Stewart declined and Corbett said no hard feelings' and
shook hands with him Kobialka did the same and they
drove away This exchange convinces me that the Re
spondent either did not believe Stewart had acted im
properly that afternoon or was willing to overlook it if
Stewart would agree to abandon the strike and return to
work When he declined to do so, the Respondent later
refused to reinstate him I find that the Respondent has
A He took the American flag and threw it on the ground That
really burned me I had words with him about it It really made me
mad upset
Q You were more upset about that than the actual brushing of the
car'?
A He obviously did it as a ploy to stop the procession I dust sat
there and watched this whole thing go down He threw the flag on
the ground What a jerki He was an old man probably a veteran too
It made me mad Disgusted I guess you could say
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
failed to establish any basis which would justify its refus
al to reinstate Stewart
8 Joyce Amero
The Respondent raised no affirmative defense in its
answer that Joyce Amero had engaged in misconduct
during the strike and was not entitled to reinstatement
In its posttrial brief, the Respondent contended, for the
first time, that Amero had engaged in such misconduct
and should be denied reinstatement I reject that conten
tion for several reasons Principles of fundamental fair
ness and due process dictate that employees should not
be deprived of employment rights in a Board proceeding
without first being given notice and an opportunity to
answer the allegations against them Although the Re
spondent claims it was not aware of the alleged miscon
duct until a witness identified Amero during the trial of
this matter, it made no effort to amend its answer to
allege this as an affirmative defense or to give notice to
Amero, the General Counsel, or the Charging Party that
it would seek to rely on such evidence as a basis for de
nying Amero reinstatement I find this particularly ques
tionable in this case where Amero was a striker the Re
spondent, through its principal officer Kobialka, has un
lawfully told she would never work for it again because
she said something on the picket line that displeased Ko
bialka The Respondent is apparently attempting to use
this proceeding as a means of carrying out its unlawful
threat
I also find that the evidence the Respondent seeks to
rely on is insufficient to establish that Amero engaged in
picket line misconduct i 10 Sgt Robinson in testifying
about the bus Delting incident which occurred on 27 Sep
tember, stated that he could not identify anybody throw
ing anything at the bus but said I saw one girl, a very
pretty girl big broad shouldered girl with long hair She
sort of looks like an Indian if you will She had some
thing in her hand that she threw at the bus Thereafter
he was shown three photographs taken at the picket line
on days other than 27 September"' and said that
Amero who was in those photographs, was the person
he saw throw something at the bus Based on his de
meanor while testifying I am convinced that, more than
a year after the incident when he was asked to identify
Amero he did it on the basis of the fact that the person
he saw sort of looks like and Indian and not because
he actually remembered Amero In the photographs
Robinson was shown, Amero has long hair parted in the
middle with long braids on either side of her head, in the
style of the stereotypical Indian squaw In the photo
graphs he identified Amero s facial features are almost
indistinguishable however in each her Indian braid hair
style is prominent There was no evidence that Amero
was the only woman on the picket line during the strike
who wore her hair in braids or the only one who sort
of looks like an Indian if that, in fact, is what Amero
I10 Under the circumstances I draw no adverse inference from the fact
that Amero was not recalled to testify concerning this incident since at
the time there was no reason to believe it was in issue in the case
I I I None of the photographs of the scene on 27 September include
Amero
looks like I also find suspect Robinson s powers of ob
servation He testified that in one of the photographs he
was shown Amero was wearing a light colored three
quarter length coat, when, in fact she has no coat on,
but has a picket sign in front of her In another photo
graph of the same scene in which the picket sign is even
more obvious, he identified her as having the same
clothing, same description While I have found the pelt
ing incident constituted misconduct, I do not believe that
the evidence presented was sufficient to establish that
Amero was involved in the incident or to justify denying
her reinstatement
9 Janet Miller
In its posttrial brief, the Respondent for the first time
contended that employee Janet Miller, who it reinstated
on 16 March 1984, had engaged in serious misconduct by
verbally threatening an employee According to the Re
spondent s brief, it was not aware of this misconduct and
had mistakenly believed that another employee was re
sponsible for the threat Aside from the fact that its con
tentions regarding Miller suffer from the same fairness
and due process as those regarding Amero there is a fur
ther problem in that an unfair labor practice proceeding
is not a vehicle for obtaining the declaratory jusgment
the Respondent is apparently seeking There is also noth
ing in the record to establish that its reinstatement of
Miller was due to a mistake Finally, Miller credibly
denied making the alleged threat
IV THE REPRESENTATION PROCEEDING
A Ballot Challenges
A secret ballot election was conducted on 14 October
at which the Union and the Respondent challenged the
ballots of several voters The Respondent challenged the
ballots of 33 employees who remained on strike as of the
date of the election on the grounds that they had ob
tained other employment and/or has indicated an intent
to abandon their jobs prior to the election The Respond
ent produced no evidence in support of these contentions
and in its posttrial brief stated that it was withdrawing its
challenges to all 33 ballots Accordingly these ballots
should be opened and counted 112
The Union challenged the ballots of Duarte Medina,
Jose Tavares and Nelson Harrington on the grounds
that they are supervisors within the meaning of Section
2(11) of the Act and additionally in the case of Harnng
ton on the grounds that he is a relative of a member of
management and enjoys special status Having previously
found that Medina, Tavares, and Harrington were statu
tory supervisors, I recommend that the challenges to
12 These 33 employees are Joyce Amero Karen Anderson Mildred
Aubrey Sharon Auclair Donald Geraldine Bodwell Evelyn Cabral
Pauline Cabral Clara Curtis Hazel Ellis Betty Favazza Carmen Glid
den Jean Harnngton Josephine Jacobs Antonio Lentini Nancy Lum
bard Ellen MacDonald Jacqueline Medenos Janet Miller Michael
Muniz Michael Partican William Porter Janice Rigney Judy Rocha
Dons Rowe Robert Sheehan Donald Stewart Lucinda Symonds
Eduardo Tavares Maria Tavares Barbara Thenault Albert Tognazzi
and Alberta Trefry
MASSACHUSETTS COASTAL SEAFOODS 539
their ballots be sustained The Union challenged the bal
lots of Kimberly Grover, George Holmes and Walter
White, who were employed by the Respondent prior to
the strike and were working on the date of the election,
on the grounds that they engaged in misconduct at or
near the picket line during the strike I find the evidence
is insufficient to establish that any of these employees en
gaged in conduct which would disqualify them from
voting in the election and I recommend that these chal
lenges be overruled and their ballots opened and count
ed The Union also challenged the ballots of 36 persons
hired as replacements for the employees participating in
the strike on the grounds that, as replacements for unfair
labor practice strikers, they were ineligible to vote in the
election Since I have concluded that the strike was an
unfair labor practice strike from its inception, these re
placement workers were not eligible to vote 113 and the
challenges to their ballots should be sustained 114
The Board agents conducting the election challenged
the ballots of Frank Lentini and Edith Brown on the
grounds that their names did not appear on the eligibility
list provided by the Respondent No evidence was pre
sented which would indicate that Frank Lentini was em
ployed by the Respondent as of the eligibility date or on
the date of the election consequently, I recommend that
the challenge to his ballot be sustained The Respondent
contends that Edith Brown quit her job during the
summer of 1983 The evidence establishes that Brown
had worked for the Respondent off and on for the 16
years, her most recent tenure being for about 2 years
She performed several different jobs While on a week's
vacation in July she was accidentally kicked in the
mouth by her child and had several teeth knocked loose
Over the course of the next 2 months she underwent oral
surgery complicated by an infection, which left her inca
pacitated and unable to work On returning from their
vacation, Brown s husband Dana, spoke by telephone
with Kobialka and informed him of Edith s problem with
her teeth According to Brown Kobialka, in two differ
ent telephone conversations, assured him that there was
no problem and that Edith could return to work when
she was ready Brown also spoke with James Corbett
who told him that Edith was eligible for unemployment
compensation and could participate in the Company's
health insurance program Edith Brown testified that
during August she spoke to Paul Harrington and asked
about her job because she had heard that Butch Bur
bridge had been fired Harrington told her that as far as
he knew she still had a job with the Company Brown
signed a union authorization card on 12 September and
participated in picketing at the plant beginning on the
first day of the strike She received in the mail the two
letters sent by the Respondent addressed to all employ
113 Larand Leisurehes supra
114 The challenged ballots are those of Joseph Barbuto Theresa Bar
buto Joe Bernardo Thomas Broderick Roselle Ciaramitaro Sharon
Ciaramitaro Norberto DaRosa Dorothy DaLima Scott Dempsey
Carlos Gil Tammy Hanson Elaine Hiou Rebecca Kelly Myles Lacey
Kevin Leary Filomena Lima Leo Lima Marianne McGillivray James
McKay Sandra Milne Anthony Nicastro Deborah Parsons Gail Perry
Russell Phillips Teresa Raymond Lisa Ruta Kimberly Savoie Brian
Sierra Debbie Sierra, Eugene Silva Mane Silva Isohna Silveira Caro
lyn Tarbox Jordan Thompson Mane Valadao and Roger Wilson
ees, on 19 and 20 September advising them to return to
work or be subject to replacement At no time prior to
the strike did Brown offer to return to work and at no
time was she informed by the Respondent that she no
longer had a job
Kobialka testified that when he spoke to Dana Brown
he told him that when Edith was ready to return to
work she should talk to Kobialka and would see if there
was an opening for her, but that he could not hold a po
sition open for her for 2 months Corbett testified that he
considered Edith Brown to have voluntarily quit her em
ployment before the strike He also identified a notation
he put on Brown s personnel file indicating that Kobialka
had said that she would be out indefinitely and, if she
wished to return to work, she would have to reapply I
find this notation, in all likelihood, was fabricated after
the controversy arose and to be of no probative value
Corbett claimed he could not remember when he made
the notation and Kobialka denied telling Corbett that if
Brown wanted to return to work she would have to re
apply When Brown applied for unemployment compen
sation during the strike, on three different occasions the
Respondent, acting through Kobialka Corbett, and a
secretary answered her claims by indicating that she was
off work because of a labor dispute and, at no time did
it contend that Brown had quit her employment
Considering all the evidence, I find that Kobialka told
Brown s husband that while he could not keep a position
open for her for 2 months, she should contact him when
she was ready to return and he would see if there was an
opening available Under the circumstances I do not
doubt that if the union campaign and strike had not in
tervened, once Brown indicated she was able to return
to work, she would have done so as soon as there was an
opening Although Brown was on an indefinite leave of
absence she had only been off approximately 2 months,
she had not been terminated or laid off by the Respond
ent and she had a reasonable expectation of reemploy
ment Consequently, the challenge to her ballot should
be overruled 115
B Objections to the Election
1 The Unions objections
The Union s objections to the election allege that the
Respondent engaged in objectionable conduct by elimi
nating the employees informal breaks in retaliation for
protected activities threatening plant closure unlawfully
disciplining employees because they had sought union
representation, permanently replacing unfair labor prac
tice strikers, and by improperly campaigning prior to the
election The Union filed the petition for an election on
15 September and any objectionable conduct occurring
prior to that date cannot serve as a basis for setting aside
the election 116 Consequently the elimination of the in
formal breaks on 13 September, the numerous threats in
Kobialka s speech to employees on 12 September the
threats of plant closure by Paul Harrington and Duarte
15 See Capriccios Restaurant 249 NLRB 685 (1980)
1 e Ideal Electric & Mfg Co 134 NLRB 1275 (1961)
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Medina prior to 15 September the disciplinary action
against Carmen Glidden on 14 September the denial of
vacation benefits to Michael Muniz on 13 September and
the threat to Eduardo Tavares on 13 September, all oc
curred prior to the critical period
I have found that on several occasions Medina advised
employees that Kobialka did not want the Union and
would close the plant if they sought to bring it in His
statements were similar to those Paul Harrington and
Robert Tomer made to employees during the week pre
ceding the filing of the petition and the threats of plant
closure layoffs, and futility emphasized by Kobialka to
all employees on 12 September I have also found that
about a week or so after 19 September, within the criti
cal period Medina went to the home of employees
Eduardo and Mana Tavares and stated to Eduardo that
Kobialka would never allow the Union in and would
close the plant before the Union got in The Respond
ent s extensive similar prepetit ►on misconduct may be
considered insofar as it lends meaning and dimension to
the postpetition conduct and assists in evaluating it 117
Here the prepetition conduct makes it clear that Me
divas remark to Tavares was not an isolated incident
but was part of the Respondents strategy to coerce its
employees from supporting the Union by threatening to
close the plant Robert Tomer made a similar threat of
plant closure to Donald Stewart on 16 September, within
the critical period
I have also found that the Respondent violated Section
8(a)(1) and (3) of the Act, during the critical period by
threatening and attempting to permanently replace em
ployees engaged in the strike notwithstanding the fact
that it was an unfair labor practice stnke This objection
able conduct affected a large percentage of the Respond
ent s work force I find that there was misconduct by the
Respondent during the critical period which was suffi
dent to require that the election be set aside in the event
that the Union loses 118
2 The Respondents objections
The Respondent also filed objections to the election al
leging that the Union unlawfully threatened employees
and supervisors , engaged in violence directed at employ
ees and supervisors engaged in mass picketing at the en
trances to the Respondents premises , and that an atmos
phere of fear and coercion was created by anonymous
threats and acts of violence directed at employees and
supervisors
a Union actions
Kobialka testified that on the second day of the strike
employee Maria Costa was driven to the plant by her
husband As their vehicle entered the company property,
Kobialka, who was 40 feet away, heard Union President
Helen Tarr say regarding Marta Costa s husband he
works at Gorton s and we are going to get him No
other witness corroborated the testimony Helen Tarr
testified that she was at the picket line that day but did
not say anything to Costa s husband and, at the time she
did not know either Costa or her husband Later that
day Tarr sent Mr Costa a letter stating that he had vio
lated the Union s bylaws by his action at the picket line
and instructing him to appear at the next union executive
board meeting where he might be subject to disciplinary
action I credit Tarr s testimony that she did not know
who Mr Costa was when he brought his wife across the
picket line, that she did not make a threat to Costa at
that time, and that she did not learn who he was or
where he worked until someone told her later in the day
The fact that Mr Costa a member of the Union, was in
formed of the possibility that internal union disciplinary
action might be taken against him for failing to honor the
picket line does not involve any unlawful action by the
Union
James Corbett testified about an incident in which a
union official allegedly threatened him On 19 or 20 Oc
tober, while he was near the picket line picking up nails
a man identified as Union Representative Robert Rivers
yelled to Corbett in an angry tone of voice that he was
going to kick his ass or beat his head in According to
Corbett, these alleged threats were after the election had
taken place However, Rivers testified that he was not at
the picket line on 19 or 20 October, but that he was
there on four different occasions three of which were
before the election Rivers credibly testified that on one
of those occasions, he observed Corbett near the picket
line and spoke to him, calling him a scab and telling
him to stop harassing the picketers Rivers denied threat
ening to do Corbett any bodily harm Corbett was appar
ently mistaken about the date he encountered Rivers at
the picket line and no one corroborated his testimony
about this incident although at least one nonstriking em
ployee, Kevin Harrington, was with him at the time I
have found his testimony to be untrustworthy in several
other instances and find that to be the case here as well
A photograph of the scene at the time Corbett claims
Rivers made these threats, offered by the Respondent
shows a Gloucester policeman in close proximity to
Rivers and Corbett neither of whom appears to be in
any way agitated Under the circumstances, I am unable
to conclude that Rivers was yelling threats to do Corbett
serious bodily harm while a policeman stood by a few
feet away I do not find that the credible evidence estab
lished any unlawful conduct on Rivers part On the con
trary I find it likely that Corbett fabricated the incident
on the basis of photographs showing he and Rivers to
gether I suspect this is also true of an incident testified
to by Kobialka in which he claimed Union Representa
tive Thomas Wilkinson climbed up on the outside of a
moving tractor trailer truck as it was leaving the Re
spondent's premises, remained there as it drove about 30
or 40 yards down the road, and yelled at the driver
Well get you buddy, we know who you are 119 Al
though Wilkinson did not appear as a witness and Ko
bialka s testimony is uncontradicted, I did not believe
him, based on his demeanor while testifying and the fact
114 Dresser Industries 231 NLRB 591 (1977)
118 Jacques Syl Knitwear supra
119 The Respondent offered photographs of Wilkinson standing on the
side of a truck talking to the driver which although not depicting this
specific incident was said by Kobialka to be a similar scene
MASSACHUSETTS COASTAL SEAFOODS
that I found his testimony to be untrustworthy and fabn
cated in several other instances I find it extremely un
likely that anyone would choose to make threats to a
driver while he is hanging on the outside of that driver s
moving truck and completely at the driver s mercy
While I doubt that Kobialka heard Wilkinson make these
statements to a truckdriver, who was not an employee of
the Respondent, even if he did, they do not amount to
serious misconduct sufficient to set aside the election
One incident involving the Union that I do find to be
established by the evidence occurred on the morning of
27 September when Wilkinson stopped his car in the
street leading to the plant in front of a bus carrying non
striking employees and replacement workers to the plant
Wilkinson's vehicle remained stopped until policemen at
the entrance to the plant came to the scene and ordered
him to move it Although Kobialka testified that it took
10 minutes to get Wilkinson out of the way, photographs
of the scene, which show that the incident happened
only a short distance from the plant driveway where the
policemen were located, make that hard to believe The
photos also show no traffic moving on the street and
there appears to be room to pass Wilkinson s vehicle on
either side, although I can understand the driver of the
rented bus not wanting to risk pulling around Wilkin
son's vehicle While I consider Wilkinson s act of harass
ment to be improper, it was an isolated act involving
little inconveniences and did not involve any danger to
the occupants of the bus It occurred long before the
election and was unlikely to have had any coercive or
inhibiting effect on eligible voters Considering all the
evidence, I find that the Union d d not engage in miscon
duct which would require the election to be set aside
b Employee actions
The Respondent objected that the actions of prounion
employees at and away from the picket line were such as
to create an atmosphere of fear and coercion which pre
cluded a free and fair election Although the Respondent
contends there were verbal threats and acts of violence
at the picket line I find that the credible evidence fails
to establish that there were significant or serious threats
made or that employees were, in fact, coerced by
them 120 The Respondent offered testimony that picket
ers shouted such things as we re going to get you' and
we know where you live or numerous occasions how
ever, there was no evidence that the persons to whom
they were made were subjected to anything beyond
verbal harassment when passing through the picket line
Likewise, while certain of the Respondents witnesses at
tempted to portray the picketers as consistently unruly
and violent, the evidence indicates that there were po
licemen present at the picket line when nonstrikers
crossed in and out of the plant and that no actual physi
cal abuse or harm took place In contrast to the scenes
depicted at the picket line in the testimony of the Re
1201 have considered much of the alleged misconduct cited by the
Respondent in support of these objections in connection with the ques
tions of whether certain sinkers were guilty of misconduct which dis
qualified them from reinstatement I found in most instances that the al
leged misconduct has not been proven to have occurred
541
spondent s witnesses Kobialka and Corbett, Sgt Robin
son testified that with the exception of the single brief
pelting incident discussed above, the police had no trou
ble controlling the picketers Robinson stated that there
was no need for pushing or shoving " and that when
ever we asked them to move they moved They were
pretty good Nonstriker William MacDonald, who was
no longer employed by the Respondent when he testi
fled said that during the course of the strike prior to the
date of the election he had no problem' crossing the
picket line and while, on occasion it might have taken
him a minute or two to get in or out, this occurred
rarely
The Respondent intends that employee Maria Costa
was prevented by picketers from going to work on 19
September Costa, who speaks little English, testified that
when she arrived at the plant that morning her fellow
employees were picketing and told her she could not go
in The only individual Costa could identify as having
spoken to her was Eduardo Tavares, who spoke to her
in Portugese and offered to stay with her He told her
not to worry or be nervous and that she would not be
fired He did not say anything about whether she should
go into the plant, but did ask her to stay with us ' No
one physically prevented her from entering the plant
She came to the plant the next day and went to work
and continued to do so thereafter
I find no evidence that Costa was prevented from
going to work on 19 September Costa had signed a
union authorization card and it appears that when she ar
rived at the plant the picketers urged her to stay out on
the picket line with them She was not physically re
strained and she made no effort to enter the plant prem
ises Her testimony indicates she was unclear about what
was said to her by the pickets in English, whether it was
you cant go in or don t go in The person who
spoke in her native Portugese, Eduardo Tavares, made
no threats, but tried to reassure her I find that there was
no objectionable conduct involved in this incident Ac
cording to James Corbett when Costa came to work on
20 September employee Clara Curtis said to her we re
not going to forget this Maria , we re going to get you
for it Costa did not corroborate this testimony and
Curtis emphatically denied saying this to Costa although
she said she called out scab to persons crossing the
picket line I found Curtis to be a credible witness and
Corbett just the opposite I find that Curtis made no
threat to Costa
As noted above, during the second week of the strike,
a bus carrying nonstriking employees and striker replace
ments was pelted with vegetable matter for about 30 sec
onds while leaving the plant No one was physically
harmed in the incident and it was not repeated During
the first week of the strike, striker Lucinda Symonds
made a threatening telephone call to the home of two
nonstriking employees There is no evidence that the
threat was disseminated to other employees or that it ac
tually intimidated the two to whom it was directed as
they returned to work and continued to cross the picket
line during the strike Also during the first week of the
strike vehicles belonging to Supervisors Duarte Medina
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Joe Tavares and employees Carl Silva, Kim Grover
and Frank Gesnaldo were anonymously vandalized
during the night, having paint sprayed on them and tires
punctured Although it cannot be determined who was
responsible for these acts of vandalism, the timing and
the fact that the word scab" was written on Grover s
car after she crossed the picket line indicates that they
were related to the strike This vandalism is deplorable,
but, even considering it cumulatively with the few minor
incidents of misconduct attributable to the Union absent
any significant evidence that employees were actually
coerced, 12, I am unable to conclude that there was an
atmosphere of fear and coercion which interfered with
the employee's expressing their free choice in the elec
tion I recommend that the Respondent's objection to the
election be overruled
V THE APPLICABILITY OF A BARGAINING ORDER
The General Counsel and the Charging Party contend
that in the event the Union does not win the election,
once the ballots of all eligible voters are counted, a bar
gaining order should be entered The Respondent op
poses this In NLRB v Gissel Packing Co supra, the Su
preme Court held that, in exceptional cases involving
outrageous and pervasive unfair labor practices, a bar
gaining order is justified because traditional remedies
cannot eliminate the coercive effects of the employer s
misconduct and a fair election cannot be held I do not
find the Respondent's conduct here to fall into the ex
ceptional case category I find that it falls into the
second category discussed in Gissel, involving `less ex
traordinary cases marked by less pervasive practices
which nonetheless still have the tendency to undermine
majority strength and impede the election processes 122
In such cases a bargaining order should issue when the
possibility of erasing the effects of past misconduct and
of ensuring a fair election through the use of traditional
remedies is slight and employee sentiment once ex
pressed through authorization cards, would, on balance,
be better protected through a bargaining order
Before a bargaining order can issue the election must
be set aside on the basis of meritorious objections by the
union 123 Although there were numerous unfair labor
practices committed by the Respondent in this case
many were outside the critical period, having occurred
either before the filing of the petition on 14 September
or after the 14 October election, and cannot serve as the
basis for setting aside the election 124 There was howev
er significant objectionable conduct on the Respondent s
part during the critical period and I have recommended
that certain of the Unions objections be sustained and
that the election be set in the event the revised tally of
ballots determines that the Union did not win the elec
121 Employee Paula Viator testified that she received a threatening
telephone call from Janet Miller during the first week of the strike and
was afraid to go to work the next day I credit Miller s denial that she
made the alleged call Viator did in fact go into work the next morning
and thereafter
tion This being the case , the question of the applicability
of a bargaining order must be considered
The Respondent has been found to have committed
several violations of Section 8(a)(1) and (3) of the Act,
the most significant of which involved threats of plant
closure and/or layoffs made by Company Co owner Mi
chael Kobialka and Plant Manager Paul Harrington and
two other supervisors and began before the employees
had even met with union representatives In Kobialka's
speech to all employees at quitting time on 12 Septem
ber, just before employees were to meet with the Union,
he repeatedly emphasized the inevitability of massive lay
offs and plant closure, and the futility of bringing in the
Union At the same time , he solicited grievances, prom
ised benefits in the form of a wage increase to induce the
employees to abandon their union activities, and told
them that his future actions, with respect to business op
erations and location, would be dictated by whether
there was a big gun' pointed at his head a clear refer
ence to the Union Immediately after the meeting with
all employees, Kobialka met with three employees and
expanded on his previous speech by threatening to move
the business to another location outside the Gloucester
area Threats of plant closure and loss of employment
are considered hallmark violations with lasting inhibit
ing effects 125 During the next few days, the Respondent
engaged in a series of unlawful retaliatory actions, in
cluding, curtailing employees informal breaks, coercive
ly interrogating employees, threatening more oneroas
working conditions and discharge, implementing a new
tardiness rule and disciplining an employee for violating
it, and discriminatonly denying an employee's request
for advanced vacation pay The swiftness and timing of
these unfair labor practices, occurring immediately after
the employees began to seriously consider union repre
sentation demonstrated that the penalty for union sup
port would be severe "126 The Respondents unlawful
actions continued during the ensuing strike as it termi
nated the sick leave benefits of an employee because of
her support of the Union threatened unfair labor prac
tice strikers with permanent replacement refused to rein
state those strikers after they made unconditional offers
to return to work and told them they no longer had jobs,
and beyond with the discriminatory disciplining of a re
instated striker on 20 July 1984 Many of these violations
were serious and directly threatened the employment
status or working conditions of employees who support
ed the Union 127 The Respondents threats were widely
disseminated, either because they were made directly to
a majority of the employees, as in the case of Kobialka s
speech and letters to strikers, or were the subject of dis
cussions among the employees in meetings at the union
hall as in the case of the threat to fire anyone who
farted wrong This is also true of the retaliatory ac
tions taken by the Respondent during the first week of
the Union s organizing campaign The restrictions on in
formal breaks affected all employees, while those direct
ed at individual employees, as in the case of Carmen
122 395 U S at 614 125 NLRB v Jamaica Towing 632 F 2d 208 (2d Cir 1980)
121 Irving Air Chute Co
124 Ideal Electric & Mfg
149 NLRB 627 (1964)
Co supra
126 Quality Aluminum Products 278 NLRB 338 339
127 Cf L M Berry & Co 266 NLRB 47 (1983)
(1986)
MASSACHUSETTS COASTAL SEAFOODS 543
Glidden and Michael Muniz, were discussed during
meetings involving numerous employees The Respond
ent's actions "involve the type of severe and pervasive
coercion which has lingering effects not readily dis
pelled "128 The unlawful acts involved the Respondent's
highest officials, Co owners Kobialka and Mineo, and
Plant Manager Harrington , as well as lower level super
visors Tomer, Medina, and Tavares 129 There has been
no significant change in the Company's management
other than Kobialka's becoming the sole owner There is
no indication that the Respondent has changed it policies
or that its union animus has lessened I find it unlikely
that merely requiring the Respondent to refrain from un
lawful conduct will eradicate the lingering effects of its
past misconduct or serve to convince its employees that
they can exercise their Section 7 rights without fear of
retaliation I also find little likelihood that there could be
a fair rerun election in the event the tally of ballots from
the first election goes against the Union
The parties have stipulated that there were at least 55
possible bargaining unit members employed by the Re
spondent on 13 September when the Union made its
demand for recognition Included in that number were
Nelson Harrington, Duarte Medina , and Jose Tavares,
whom I have found are statutory supervisors and should
be excluded from the unit Consequently, there were 52
unit employees The General Counsel has introduced
union authorization cards signed by 40 employees on 12
or 13 September 130 The authorization cards are unam
biguous single purpose cards authorizing the Union to
represent them for the purpose of collective bargaining
With the exception of the card of Antonio Lentini, I find
the cards are valid designations of the Union as the em
ployees' bargaining representative Although Lentini, for
whom English is a second language testified that he
knew it was a union card' and that signing it meant I
am going union ," I was not convinced by his testimony
that he ever read the authorization language on the card
or had it read to him, or that he understood that he was
designating the Union as his bargaining representative
when he signed the card In any event, the evidence es
tablishes that at least 39 out of 52 employees in the bar
gaining unit had chosen the Union to act as their bar
gaining representative on 13 September
The Respondent argues that the authorization cards
are not reliable indicators of the employees uncoerced
sentiments because they were signed after Union Presi
dent Tarr informed those at the union hall meeting on 12
September about the telephone call she received that
afternoon in which the caller, identified by her as James
Cawley, ' told her that the Company had a blacklist with
15 names on it of people to be fired The Respondent
contends that the Union fabricated the telephone call in
order to induce the employees to sign authorization
cards and that, even if the Union was not responsible for
the call, it is accountable for telling the employees about
it It also contends the Union misled employees to sign
cards by telling them they could not be protected from
the effects of a blacklist unless they signed cards
I find there is no evidence to establish that Company
Comptroller James Corbett (who many employees
present at the meeting assumed was the caller since they
knew of no `James Cawley") actually made the call
Corbett denied making the call That denial, combined
with the brief conversation that resulted when Tarr, at
the employees' request, called Corbett the same evening,
in which he denied having previously spoken to her,
convince me that Corbett did not make the call to Tarr
I am equally convinced that Tarr was not responsible for
the call and that the Union did not fabricate it Much of
Tarr's testimony was confused and contradictory, but
her description of this telephone call was neither I be
lieved Tarr s testimony that there was such a call and
that the caller told her the Company had a blacklist,
based, in part, on her demeanor while testifying and the
other evidence which convinces me that fabrication by
the Union was unlikely This was a situation in which
one or two employees had contacted the union hall and
briefly spoken with Tarr to arrange a meeting to discuss
the possibility of representation There is no evidence
that Tarr had any information or knowledge about the
Company that would have enabled her to fabricate the
story about the blacklist Were it a fabrication, one
would have expected her to get the right name of the
company official to whom she was going to attribute the
call and it is doubtful that Tarr would have been willing
to telephone Corbett in the presence of numerous em
ployees if she knew that he never made the call Further,
there is nothing to suggest that the Union or Tarr ever
expected the large number of employees who showed up
at the union hall on 12 September Tarr was expecting a
few representatives and was surprised when a majority
of the work force showed up It appears that the em
ployees went to the union hall, en masse spontaneously,
as a result of Kobialka s speech a few minutes earlier in
which he threatened them with plant closure and mas
sive layoffs 131 Nor do I find anything sinister in Tarr s
having immediately related the fact of this rather ex
traordinary telephone call to the people who were
present when she received it It appears to have been a
natural reaction The evidence indicates that the exist
ence of a blacklist had been rumored at the plant well
before the Union came into the picture 132 Under the
circumstances I do not find that Tarr s reference to a
blacklist was likely to be a decisive factor in the employ
ees decisions to sign cards I also do not find that the
evidence supports the Respondent s argument that the
Union used the threat of the blacklist to induce employ
ees to sign cards by telling them that only those who
128 Kona 60 Minute Photo 277 NLRB 867 870 (1985)
Its See Thrlftway Supermarket 276 NLRB 1450 (1985)
130 The cards of Donald Stewart Albert Tognazzi and Robert Shee
han are not dated however their credible testimony established that each
signed his card on 12 September Carmen Glidden testified that she mis
dated her card as 12 September but she actually signed it on 13 Septem
ber
131 For example employee Betty Favazza testified that she was not in
favor of union representation until she heard Kobialka s speech saying
And then after I heard Mr Kobi s speech I thought-well I took it
more serious I thought-I felt threatened I felt like my job was being
threatened
132 Donald Stewart credibly testified that there was a standard joke
around the plant about a book of bastards with the names of certain
people that were going to get kicked out of the plant
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
signed cards would be protected by the Union It is clear
that the union representatives emphasized the need for a
substantial number of signatures on cards so that it could
represent the employees Throughout the meeting both
Tarr and James Lee speaking by telephone stated that
the Union needed cards from two thirds of the employ
ees so that it could speak to Kobialka on their behalf
While there was some discussion as to the Union protect
ing employees from being fired, it appears to have been
in the context of protecting them from being fired be
cause of their union activity Hazel Ellis testified that she
asked Tarr, if once we signed this card would the
Union repesent us, you know, if in fact we were fired for
union affiliation and that Tarr answered yes I find
no evidence which establishes that Tarr or Lee misrepe
rented the purpose of the cards, why they were needed,
or the use to which they would be put The facts in this
case cannot be equated to the threats of retaliation
against employees who did not sign authorization cards
or the promises of benefits to those who did, which were
involved in the cases relied on by the Respondent'33 in
support of its argument that the authorization cards are
not reliable indicators of the employees sentiments
The Respondent also contends that there should be no
bargaining order because the Union has engaged in mis
conduct and violence during the strike which disqualifies
it from such a remedy, citing the Boards decision in
Laura Modes Co ,134 I find that the credible evidence
fails to establish that the Union was responsible for mis
conduct during the strike that was so egregious and per
vasive as to evidence a total disinterest in enforcing its
representation rights through the peaceful legal process
provided by the Act 135 Despite the Respondents at
tempt to portray the picketers and Union representatives
as continually engaged in picket line misconduct unpro
yoked harassment of nonstriking workers violence and
vandalism the evidence as a whole does not support this
Unlike the situation in Laura Modes supra there were
no physical assaults on nonstrikers or management per
sonnel The most serious acts of misconduct actually es
tablished as having occurred the pelting of a bus carry
ing nonstrikers and the delaying of the bus as it neared
the plant by the car of a union representative even when
considered with the anonymous acts of vandalism against
the vehicles of some nonstrikers and the spreading of
nails near plant entrances do not rise to a level which
would warrant depriving the Union of its collective bar
gaining status ' 136
CONCLUSIONS OF LAW
1 The Respondent , Massachusetts Coastal Seafoods
Inc, is an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
133 E g D H Overmeyer Co 170 NLRB 658 (1968) Trend Mills Inc
154 NLRB 143 (1965)
134 144 NLRB 1592 (1963)
131 Id at 1596
136 Top Form Mills 273 NLRB 1246 fn 2 (1984) See New Fairview
Hall Convalescent Home 206 NLRB 688 (1973)
3 All full time and regular part time production and
maintenance employees employed by the Respondent at
its Magnolia, Massachusetts location, including cutters,
packers, stackers label table cleanup, breader and batter,
warehouse, freezer and quality control employees and
truckdrivers, but excluding office clerical employees
professional employees, salesmen, guards and supervisors
as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act
4 The Respondent violated Section 8(a)(1) of the Act
by
(a) Threatening employees with more onerous working
conditions and loss of benefits in retaliation for engaging
in union activities
(b) Threatening employees with layoffs and/or plant
closure in the event they selected the Union as their col
lective bargaining representative
(c) Coercively interrogating employees concerning
their union activities
(d) Promising employees a wage increase in order to
dissuade them from supporting the Union
(e) Threatening to forgo plant expansion and to move
from its present plant location in retaliation for employ
ees union activities
(f) Soliciting grievances with the implied promise of
adjusting said grievances in order to dissuade employees
from supporting the Union
(g) Telling employees directly or by implication that it
would be futile to select a union to represent them
(h) Threatening unfair labor practice strikers that they
would be permanently replaced
5 The Respondent violated Section 8(a)(3) and (1) of
the Act by
(a) Instituting and enforcing a more restrictive policy
concerning the taking of informal breaks in retaliation
for employees union activities
(b) Discriminatorily denying an employee advanced
vacation pay because its employees had engaged in union
activities
(c) Instituting and enforcing a more onerous rule con
cerning tardiness because its employees had engaged in
union activities and disciplining an employee for violat
ing this unlawful rule
(d) Discontinuing the sick leave benefits of an employ
ee because of her union activities
(e) Failing to reinstate unfair labor practice strikers to
their former positions of employment
(f) Discnmmatonly disciplining an employee for en
gaging in union activities
6 The Respondent violated Section 8(a)(5) and (1) of
the Act by refusing on and after 13 September 1983 to
bargain with the Union as the exclusive collective bar
gaining representative of its employees in the appropriate
unit
7 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec
tion 2(6) and (7) of the Act
8 The Respondent did not engage in any unfair labor
practices alleged in the amended consolidated complaint
not specifically found herein
MASSACHUSETTS COASTAL SEAFOODS 545
9 To remedy the unfair labor practices found herein
the Respondent should be ordered to bargain, on request
with the Union in the appropriate collective bargaining
unit
10 In Case 1-RC-18-015 the Unions objections to
the election have been sustained to the extent consistent
with the violations of Section 8(a)(1) and (3) of the Act
found herein to have occurred during the critical period
between 15 September and 14 October 1983 and the Re
spondent has interfered with and illegally affected the re
suits of the election conducted by the Board on 14 Octo
ber 1983
THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices I shall recommend that it be re
quired to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act
I have found that the strike which commenced on 19
September 1983 was an unfair labor practice strike from
its inception Unfair labor practice strikers are entitled to
return to their jobs upon their making an unconditional
application to do so Consequently, all of the unfair labor
practice strikers who have not been found to have been
disqualified from reinstatement because of misconduct
during the strike, listed in Appendix B, must be reinstat
ed to their former positions and made whole for all earn
ings lost due to the Respondents failure to reinstate
them since the effective dates of their unconditional
offers to return to work 137 All backpay will be comput
ed in the manner prescribed in F W Woolworth Co, 90
NLRB 289 (1950) and Florida Steel Corp 231 NLRB
651 (1977) 138
I have found that employees Carmen Glidden and
Doris Rowe were unlawfully given time off from work
by the Respondent because of union activities They are
entitled to be made whole for the loss of wages resulting
from these unlawful disciplinary actions, plus interest
I have also found that the Respondent has engaged in
substantial and pervasive unfair labor practices which
were calculated to destroy the Union s majority status
that traditional remedies for such unfair labor practices
cannot eliminate the lingering and coercive effects there
from and that there is no reasonable likelihood that a
fair rerun election could be held Under such circum
stances I shall recommend that an order be issued re
quiring the Respondent to recognize and bargain with
the Union as the exclusive representative of the Re
spondent s employees in the appropriate unit Inasmuch
as the Respondents unfair labor practices began immedi
ately after it learned of union activity among its employ
ees in late August and early September, 1983 its obliga
tion to bargain should date from 13 September 1983, the
date by which the Union had attained majority status
among the employees and made a demand for bargaining
upon the Respondent
137 In the case of Edith Brown who was on an indefinite leave of ab
sence when the strike commenced it cannot be determined from this
record if or when after she was physically able to return to work that
the Respondent had an opening which she was qualified to fill This de
termination can be made during the compliance stage of this proceeding
138 See generally Isis Plumbing Co 138 NLRB 716 (1962)
The result of the election is still undetermined In the
event that a revised tally of the ballots of eligible voters
as determined herein, results in a majority of the valid
votes in favor of the Union a certification of representa
tive should issue In the event that the Union does not
obtain a majority of the votes the election should be set
aside and the bargaining order alone should take
effect 139
I believe a broad cease and desist order is warranted in
view of the Respondents numerous, vaned, and serious
acts of misconduct which continued well after the elec
tion and demonstrate a deliberate disregard of its em
ployees Section 7 rights 140
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
edit
ORDER
The Respondent Massachusetts Coastal Seafoods, Inc,
Magnolia, Massachusetts, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Threatening employees with more onerous working
conditions and loss of benefits in retaliation for engaging
in union or other activities protected by Section 7 of the
Act
(b) Threatening employees with layoffs or plant clo
sure and loss of employment if they select the Union or
any other labor organization as their collective bargain
mg representative
(c) Coercively interrogating employees concerning
their union or other protected activities
(d) Promising employees a wage increase in order to
dissuade them from supporting the Union or any other
labor organization
(e) Threatening to forgo plant expansion and to move
from its present plant location in order to dissuade em
ployees from supporting the Union or any other labor
organization
(f) Soliciting grievances with the implied promise of
adjusting said grievances in order to dissuade employees
from supporting the Union or any other labor organiza
tion
(g) Telling employees directly or by implication that it
would be futile to select the Union or any other labor
organization as their collective bargaining representative
(h) Threatening unfair labor practice strikers that they
will be permanently replaced
(t) Instituting and enforcing a more restrictive policy
concerning the taking of informal breaks by employees
to retaliate against them because of their union or other
protected activities
139 American Display Mfg Co 259 NLRB 21 (1981) Jaybil Steel Prod
ucts 258 NLRB 1180 (1981)
140 See Clark Manor Nursing Home 254 NLRB 455 (1981) Hickmott
Foods 242 NLRB 1357 (1979)
141 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
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
0) Instituting and enforcing more onerous work rules
concerning tardiness to retaliate against employees be
cause of their union or other protected activities
(k) Discriminatonly denying employees advanced va
cation pay to retaliate against them because of their
union or other protected activities
(1) Discontinuing employees ' sick leave benefits be
cause they engage in union or other protected activities
(m) Failing to properly reinstate unfair labor practice
strikers to their former positions
(n) Disciplining or otherwise discriminating against
employees with regard to hire or tenure of employment
or any term or condition of employment for engaging in
union or other protected activities
(o) In any other manner interfering with , restraining,
or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Reinstate the practice and policy that existed prior
to 13 September 1983 whereby employees could take in
formal breaks
(b) If it has not already done so , rescind and abrogate
the work rule announced on 14 September 1983, punish
ing tardiness with time off from work
(c) Recognize , effective 13 September 1983, and, on
request bargain with the Union as the exclusive collec
tive bargaining representation of all employees in the ap
propriate unit with respect to rates of pay , wages hours,
and other terms and conditions of employment and, if an
understanding is reached embody such understanding in
a signed agreement
(d) Offer to all employees listed on Appendix B
except those already fully reinstated their former pose
tions, reinstatement to their former jobs or to substantial
ly equivalent positions if their jobs no longer exist, with
out prejudice to their seniority and other rights and
privileges previously enjoyed , dismissing if necessary to
effectuate such reinstatement , any person hired since the
beginning of the strike on 19 September 1983 and make
them whole for any loss of wages they may have suf
fered by reason of the discrimination against them in ac
cordance with the recommendations set forth in the
remedy section of this decision
(e) Make whole Carmen Glidden and Doris Rowe for
any loss of wages suffered as a result of the unlawful dis
ciplinary action taken against them on 14 September
1983 and 20 July 1984 , respectively plus interest
(f) Preserve and on request make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, time
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order
(g) Expunge from its records and files any references
to the disciplinary action taken against Carmen Glidden
and Doris Rowe, referred to above, and notify them in
writing that this is being done and that such evidence
will not be used as a basis for future disciplinary action
against them
(h) Post at its Magnolia, Massachusetts facility copies
of the attached notice marked ' Appendix 142 Copies of
the notice, on forms provided by the Regional Director
for Region 1, after being signed by the Respondents au
thorized representative, shall be posted by the Respond
ent immediately upon receipt and maintained for 60 con
secutive days in conspicuous places including all places
where notices to employees are customarily posted Rea
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that Case 1-RC-18015
be severed and remanded to the Regional Director for
the purpose of opening and counting, together with all
other ballots, the ballots to which challenges have been
overruled, and that a revised tally of ballots be issued
The Regional Director shall issue the appropriate certifi
cation if the Union wins the election In the event that
the majority of the valid votes are not cast for the
Union the election will ber set aside, the bargaining
order granted herein will take effect and the petition in
Case 1-RC-18015 will be dismissed
IT IS FURTHER RECOMMENDED that the amended con
solidated complaint be dismissed insofar as it alleges vio
lations of the Act not specifically found
142 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board