Nabisco Brands, Inc.

National Labor Relations Board - Board Decisions

Dec 4, 1987

286 N.L.R.B. 1402 (N.L.R.B. 1987)

1402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Nabisco Brands , Inc. and Norberto Arsenio and
International Brotherhood of Firemen and
Oilers, Local No. 3, AFL-CIO. Cases 1-CA-
23953, 1-CA-23966, and 1-CA-24152
4 December 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 25 June 1987 Administrative Law Judge
Frank H. Itkin issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed a brief in support of the
judge.
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, to modify the remedy, 2 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Nabisco
Brands, Inc., Cambridge, Massachusetts, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
1 The Respondent has excepted to some of the judge 's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings We also find no merit in the Respondent 's allegations of bias
and prejudice on the part of the judge. Thus, we perceive no evidence
that the judge prejudged the case , made prejudicial rulings, or demon-
strated a bias against the Respondent in his analysis or discussion of the
evidence. Similarly , there is no basis for finding that bias and prejudice
exist merely because the judge resolved important factual conflicts in
favor of the General Counsel's witnesses . NLRB v. Pittsburgh Steamship
Co, 337 U S. 656, 659 (1949).
In fn. 2 of his decision, the judge found that employee Arsenio's 10
May 1985 disciplinary writeup referred to a 13 May 1985 incident Our
review of the record, however, indicates that the writeup referred to an
alleged incident that occurred on 10 May 1985; that the writeup was
signed on 10 May 1985 by Supervisor Rigby, and that a 1-day suspension
was to be served on 13 May 1985 . This correction does not affect our
agreement with the judge's ultimate conclusions
2 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short -term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621 . Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U.S C. § 6621) shall be computed in accoidance with
Florida Steel Corp, 231 NLRB 651 (1977)
Thomas J. Morrison, Esq., for the General Counsel.
Barbara Ann Sellinger, Esq., for the Employer.
Thomas Brassil, Esq., for the Union.
286 NLRB No. 136
DECISION
STATEMENT OF THE CASE
FRANK H. ITKIN, Administrative Law Judge. Unfair
labor practice charges were filed in the above cases on
June 13 and 18, July 29, August 20, and September 19,
1986. An amended consolidated complaint issued on Oc-
tober 9, 1986. The General Counsel alleged that Re-
spondent had violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act by asking an employee how
many employees had signed union authorization cards;
by telling an employee that employees should have gone
to their supervisor and asked for a raise and should not
have filed for the Union; by telling an employee that he
had lost his job and his supervisor would lie about an in-
cident involving the employee; by telling an employee
that if the Union won a Board-conducted representation
election, the Employer would not give the Union and
the employees what they wanted, the employees would
go on strike, and the Employer would replace them; by
threatening to shorten employee breaks and lunch peri-
ods and to give employees additional chores if the Union
won the representation election; by telling employees
that the Employer had a very good lawyer and will
never allow the Union to come into its facility; and by
discriminatorily suspending employee Norberto Arsenio
on June 12 and firing him on June 19, 1986. The Em-
ployer denied violating the Act as alleged.
Hearings were held on the issues raised in Boston,
Massachusetts, on January 14 and 15, 1987. On the entire
record, including my observation of the demeanor of the
witnesses, and after due consideration of the briefs filed
by counsel, I make the following
FINDINGS OF FACT
Respondent Employer is admittedly an employer en-
gaged in commerce as alleged . Charging Party Union is
admittedly a labor organization as alleged. Thomas Bras-
sil, as he testified, is the business agent for the Union,
which represents a unit of some 12 plant maintenance
employees at the Employer's facility in Cambridge, Mas-
sachusetts. The remaining 200 to 300 employees working
at the Cambridge facility are not represented by a labor
organization. Brassil is assisted by steward Jim Cooper
and assistant steward Joe Arruda. Cooper previously had
apprised Brassil "that there may be some people" at the
Employer's Cambridge facility "who are interested in or-
ganizing." In April 1986, Arruda notified Brassil that
"these guys [the porters and janitors] wanted to meet"
with Brassil.
On May 10, 1986, Brassil , as he further testified, met
with assistant steward Arruda and employee Norberto
Arsenio. Arsenio was a porter or janitor at the Employ-
er's Cambridge plant. Arsenio then explained to Brassil
that "he had been talking with the employees and they
. .. were interested in getting into [the] Union."; Ar-
senio "had a list of people who . . . definitely wanted
the Union."; Arsenio's list contained some 12 names; and
the proposed unit of porters or janitors at the Cambridge
plant consisted of about 21 persons. Later, on May 12,
Brassil furnished Arruda with union membership cards.
NABISCO BRANDS
The cards were given to Arsenio who solicited the signa-
tures of his fellow employees. The signed cards were re-
turned to Brassil shortly thereafter. Brassil explained that
there were no "other employees involved in getting sig-
natures" on the authorization cards.
On May 23, 1986, the Union filed a representation pe-
tition with the Board seeking to represent a unit of some
21 porters or janitors at the Employer's Cambridge plant.
(See G.C. Exh. 2.) A representation hearing was later
conducted on June 19, 1986.
Norberto Arsenio testified that he was hired by the
Employer as a porter or cleaning , person in May 1980;
that his hours of work were from 9:30 p.m. until 6:30
a.m; that he was born in Portugal and has only been in
the United States for about 9 years; and that he works
with approximately 20 to 22 other janitors at the Cam-
bridge plant. Arsenio recalled that about February 1986,
he spoke to Company Supervisor Robert Rigby on
behalf of coworker Fernando Nunes. "We asked for the
raise .. .." Rigby then informed Arsenio that "he
couldn't give it to us . . . if [the employees] wanted to
continue working at the same rate [they] could . . . if
[they] didn't want to . . . the door was there . . . or to
look for a Union."
Arsenio discussed joining a union with his coworkers.
He later met with union agent Brassil , obtained union au-
thorization cards, and solicited the signatures of his co-
workers. Arsenio signed his union card on May 13, 1986.
(See G.C. Exh. 3.) Arsenio recalled the following con-
versation with employee Antonio de Chavez:
I [Arsenio] told him I had a paper . . . with the
names of the people who had signed up, so that we
could know how many people they [the Union]
have, enough to go ahead with the necessary papers
for the Union. He [Chavez] said, he wasn't interest-
ed in the Union, but he would sign if all the others
had signed.
Arsenio also recalled the following conversation with
employee Jose Morer:
I [Arsenio] asked if he would read and sign the
paper . . . and he said he would sign. He made a
cross and I signed my name in front. . . . A few
weeks later he came to me, he didn't want his name
on there because he could see that it was creating
problems. The bosses had called to him and brought
to his attention the problems with the Union and he
didn't want to lose his job because he was old and
he had children, and rent to pay, which was expen-
sive. And for the best to remove his name from the
list. I told him he was free, he could sign or not and
I took his name off.
Arsenio, as discussed below, was summarily suspended
on June 12 and fired on June 19, 1986. Arsenio testified
that, "before I was fired," on or about June 9, Company
Supervisor Antonio Sousa "called some of the employees
to have a meeting" in the "conference room" at the
plant. Arsenio recalled:
1403
He [Sousa] said he wanted to speak with us regard-
ing a letter the Company had received regarding
the Union. . . . I said I knew what was happening.
He said, if you want to hear me sit down, if you do
not want to hear me leave and return to work
.. . . He said that he knew very well a few years
back . . . companies had closed their doors because
of the unions and there were certain problems re-
garding the contract, the Company sometimes did
not accept, people would go into striking, and many
lost their jobs. If there are gentlemen with a certain
age . . . older men, if they entered the Union with
the Company, if the personnel went on strike, the
Company would not stop, would continue on, that
the employees on the second shift would stop to
clean up.
Sousa also "spoke of salary increases." Sousa suggested
that "possibly the personnel would get an increase in
salary" if they had met with the Employer "before the
Union." Arsenio then spoke up: "I said it was too late
because we had aready asked before the Union and they
[the Employer] didn't do anything." Other employee
complaints about their conditions of employment were
then cited to Sousa. Sousa warned: "if the Union entered
into the Company . . . the breaks and the time they [the
employees] took longer than what was allowed . . .
would all be cut out."i
Arsenio then described the events of June 12, 1986,
culminating in his suspension. Arsenio had reported for
work as scheduled that day. "Sousa was at the stairway
waiting for" Arsenio and immediately took Arsenio to
the personnel office. There,
Bob Rigby gave me [Arsenio] some papers, that is
called pink slips, which state certain things that
have happened in the past and others that I have
never seen in Portuguese and English. And then he
asked me if I would agree to sign these papers. I
said I didn't agree, I didn't think that I was guilty in
any of those things. He asked if I had a paper I
would like to write regarding those problems and I
did write a letter, not agreeing with those state-
ments. Then they gave me the checks and they told
me to go home, that they were investigating my sit-
uation, that later on I would receive a notice.
(See G.C. Exhs. 5, 6, 7, 8(a), 8(b) and Tr. 62-68.)
The so-called pink slips, which were cited to Arsenio
on June 12, 1986, at his suspension meeting with Rigby
and Sousa, included the following: General Counsel's
Exhibit 4, dated August 16, 1984, is a disciplinary write-
up purportedly given to Arsenio "for locking another
employee inside the compactor shed." Arsenio was alleg-
edly "warned not to repeat this serious safety violation."
' Arsenio noted that, before this organizational effort, he had discussed
unions in general with Sousa Sousa is Arsenio's brother-in-law and Ar-
senio resides in Sousa's home Arsenio explained
We spoke in his house regarding the union the best that the per-
sonnel could do was to get into a union because the Company wasn't
paying a good salary for the work the employees were doing, but,
himself [Sousa], he could not say anything
1404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsel's Exhibit 5, dated January 11, 1985, is a
disciplinary writeup purportedly given to Arsenio "for
failure to wear a necessary face shield." Arsenio was al-
legedly "reprimanded" for this conduct. General Coun-
sel's Exhibit 6, dated May 10, 1985, is a disciplinary
writeup purportedly given to Arsenio "for refusing to do
work assigned." Arsenio was given "a one-day suspen-
sion" for this alleged conduct.2 General Counsel's Exhib-
it 7, dated May 13, 1985, is a "three-day suspension"
given to Arsenio for allegedly "refusing to leave the
building" while he was on his earlier 1-day suspension.
Arsenio explained that he had not in fact locked an-
other employee in the compactor room during 1984;
however, the employee involved repeatedly had com-
plained about this incident and Arsenio went to Supervi-
sor Rigby and acknowledged responsibility in order to
end the matter. As Arsenio recalled:
I told him that I had done it, but I didn't do it. I
just said it because he [the employee] was always
insisting that I had done it. Bob Rigby took the
paper . . . and told me to forget about the incident.
Arsenio next explained his writeup for failing to wear
a "face shield" in early 1985: "On that day I forgot the
mask" and Rigby stated that "in the future I should not
forget it." Arsenio added: "With that he [Rigby] left and
never spoke of it again."
Arsenio next explained his suspension in May 1985.
General Counsel's Exhibits 6 and 7 concern the same
transaction. Arsenio explained that he had received the
1-day suspension because he had complained to Supervi-
sor Sousa that he "needed someone to help" him while
cleaning "two tanks on the fifth floor" of the plant; the
water pressure was insufficient-"the water wouldn't go
up to the fifth floor"; and Arsenio "called for some
help." According to Arsenio, Sousa then "treated me
badly and I answered him back." On the following day,
Rigby gave Arsenio the 1-day suspension because he
"had treated the boss badly." However, as Arsenio fur-
ther testified:
On that day I had an appointment at the clinic
within the Company . . . I was climbing the stairs
of the Company. Bob Rigby saw me, said I had
been suspended for one day, I could not go into the
Company. I said I had things to take care of for
myself on the third floor . . . I was going to the
nurse.
Arsenio was then given a 3-day suspension.
Supervisor Rigby, at the June 12, 1986 suspension
interview, cited General Counsel's Exhibits 4, 5, 6, and 7
to Arsenio. See General Counsel's Exhibit 8, the writeup
given to Arsenio by Supervisor Rigby on June 12, sum-
marizing the above-cited conduct. Supervisor Rigby also
recited in General Counsel's Exhibit 8 the following:
2 Supervisor Rigby signed this writeup on May 10, the wnteup refers
to a May 13, 1985 incident ; and the writeup was witnessed on May 14,
1985.
Recently several employees have complained that
you've threatened, intimidated and harassed them.
In addition, the third shift guard advised us that
you have been abusive refusing to follow his direc-
tions and using the office lobby telephones as well
as going through unauthorized areas against his
orders.
Supervisor Rigby concluded General Counsel 's Exhibit 8
with the following statement:
Previously, I clearly warned you that any further
violations would result in your being fired. As a
result, you are indefinitely suspended pending fur-
ther investigation.
Arsenio denied the above and related cited acts of mis-
conduct. (See G.C. Exh. 9, Tr. 65-68.)
On June 19, 1986, the day of the scheduled representa-
tion hearing, the Employer notified Arsenio by letter
that its "investigation confirmed that you did commit se-
rious violations of Company policies." This letter also
accused Arsenio of "threatening a supervisor." Arsenio
was fired. Arsenio denied threatening any supervisor. He
testified that he in fact had spoken with Supervisor
Sousa "on the day I received the letter." Arsenio ex-
plained:
I [Arsenio] told him [Sousa] . . . that I had also re-
ceived a letter from the Company that I had at-
tacked a supervisor and that I was suspended from
work. He [Sousa] started to laugh and he said he
didn't know about anything, but when the day came
. .. for him to say that I had attacked [him] . . . if
it were ncessary he would bring his wife as a wit-
ness. [He, Sousa,] had to defend himself and he
didn't want to lose his work and I had already lost
mine.
Fernando Nunes is employed by the Company as a
janitor on the night shift. Arsenio requested Nunes to
sign a union authorization card. (See G.C. Exh. 11.) Ar-
senio and Nunes then "arranged another sheet of paper
and gathered names [of] people interested in the Union."
Nunes recalled that earlier Arsenio had spoken to Super-
visor Rigby "about getting an increase in salary." Rigby
then informed Arsenio: "We should look for our own
rights or go into the Union or the door was right there."
Nunes also recalled similar conversations with supervisor
Sousa:
One time we were playing dominos right in his
[Sousa's] house and we were speaking as friends,
and at that time he is the one who led us to believe
to join the Union would be to our benefit, we
would earn more money . . . that would be the best
thing for us to do but not to mention that he sug-
gested it.
After Nunes had signed his union authorization card,
Sousa spoke with Nunes at work about the Union. Nunes
recalled:
NABISCO BRANDS 1405
He [Sousa] said he had a lot of workers there
that were his friends, and no one had mentioned
anything and no one had spoken about the Union,
and he didn't have to go to New Jersey because of
the problems of the Union."
He asked me how many men had signed the
paper.
I told him 13, 14.
He said that if we had gone and speak with him
before that, it was possible they could have gotten a
raise.
In addition , Nunes attended a meeting in the con-
ference room at the plant where Sousa made the
following statements:
The Union would bring various problems.
The factory would not stop working even if they
did go to the Union.
If we had gone on strike the factory would not
stop, it would continue to work because the second
shift was prepared to do the cleaning, and if we
thought we were going to make a lot of money the
Company would not agree to what we wanted even
if the Union did come in.
Nunes went on vacation and visited Portugal between
mid-June and mid-July 1986. After Nunes had returned,
Sousa had the following conversation with Nunes while
"sitting on the benches in front of the house":
Norberto had already been fired, but he [Sousa]
wasn't going to lose his job because of him [Ar-
senio] . There was some lies and it was necessary to
lie, he was even able to say that he [Arsenio] had
attacked him at home, because he had worked in
that Company for 20 years and he wasn't about to
lose . . . his job.
Nunes lives one house away from Sousa's home.4
Robert Skoff, labor relations manager for the Employ-
er, is stationed at the Employer's headquarters in New
Jersey. Skoff was "involved" in the decision to suspend
and discharge employee Arsenio. As Skoff put it, "this
was far from a routine discharge." The Cambridge plant
management-Cambridge Plant Manager George
Murray, Section Supervisor Rigby, and Supervisor
8 As discussed below, Sousa was referring to a trip that he and other
company officials had to take to the Employer's headquarters in New
Jersey during the Union 's organizational campaign
4 Nunes also recalled that Sousa had stated " . the Company would
not stop . the Union would never come in the Company had
good attorneys "
Nunes further recalled that Sousa had warned:
If the Union came in the breaks would only be 10 minutes and
lunch would only be a half an hour.
Nunes explained : "Presently , it [the breaks] have been 10, 15 minutes
Previous to that , sometimes it was an hour . [B]efore [the union
campaign] they [the bosses] never said anything , only after this started."
Sousa-"came to [Skoff] in New Jersey" and "indicated
they wanted to discharge Arsenio for threats . . ." Skoff
placed this visit "some time in late May." Later, Skoff
explained:
Let me back up. There may have been more than
one meeting . There were meetings after the petition
was filed to discuss that aspect and then I believe it
was later in June after the threats were made we
had this subsequent meeting dealing with the discus-
sion of discipline.
Skoff initially opposed the "discharge" of Arsenio-"we
were considering a discipline something short of dis-
charge." Skoff was "very aware and extremely sensitive
to the fact that we were in a pre-election mode . . . and
we had reason to believe that [Arsenio] was one of the
organizers."
Skoff related the "events," assertedly called to his at-
tention between June 12 and 19, that "caused" him "to
go along with the decision" made at Cambridge to fire
Arsenio:
The disclosure that other threatening and special
violence had been inflicted on other employees
prior, years ago, months ago.
The threats made by Arsenio to Sousa on or
about June 18.
Skoff, during the June 12-19 investigative period, made
no attempt to "contact Mr. Arsenio . . . to get his ver-
sion of the events." And, Skoff admittedly learned of the
alleged threats to Sousa on June 19, "the day of the dis-
charge" and the day of the scheduled representation
hearing.
Skoff generally denied that Arsenio's union activities
were a reason for his suspension and discharge. Skoff
claimed "that the discharge letter was the same date as
the representation hearing was a coincidence." "We
weighed that and I would say in spite of the Union orga-
nizing attempt we had no other recourse but to discharge
the employee." Skoff thereafter "advised Mr. Sousa that
he should tell the employees that Arsenio was not dis-
charged for his Union activity and that he was dis-
charged for making threats." Further, although the Em-
ployer has collective-bargaining relationships with vari-
ous labor organizations , Skoff noted that only 12 of the
Employer's some 300 employees at the Cambridge plant
are unionized; these 12 employees are represented by the
Charging Party Union; and "there were some problems"
in the recent contract negotiations between the Employ-
er and the Union.
Antonio Sousa, supervisor of the Employer's third-
shift cleaning department at the Cambridge plant, testi-
fied that he conducted meetings of his 22 shift employees
during "early June" "after the petition for an election
was filed." During these meetings, according to Sousa,
"I told them that I knew or had been informed that some
of them had signed their names to go Union " and "I had
the right to tell them that the Union [did not] always
[give] them what they promised." Sousa claimed that the
1406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees, during these meetings, asked about being re-
placed while on strike and not being paid while on
strike. Sousa also apprised the assembled employees that
"if anybody . . . wanted . . . conversation . . . I would
be there . . . all night"-"if they had any questions to
ask [or] things like that."
Sousa then testified that employee Fernando Nunes
"voluntarily" came to him and informed him "they had
gotten 14 signatures ." Sousa insisted : "I didn 't ask him
and I wasn't interested in knowing how many had signed
cards." Sousa next testified that employee Jose Frietas
also voluntarily informed him:
that he [Frietas] had signed his name for the Union
but he was not interested, but since there had been
fights and threats . . . he didn't want to be different
from the others . . . and that is why he signed his
name .. .
Frietas, according to Sousa, revealed to Sousa that Nor-
berto Arsenio "had told [employee] Antonio de Chavez
that he was a drunkard" and "deserved . . . a couple of
kicks" and he, Arsenio, "would split his head open and if
necessary would split the heads of the bosses open"; that
Arsenio had called employee Morer "a queer"; and that
Arsenio "had already had a fight with employee Juan
Correia."6
Sousa further testified that, after employee Frietas
"told me these things," Sousa went to the floor where
employees de Chavez and Correia were working. Sousa
"called the two of them" to "his private" room or office
and "I [Sousa] asked them what was going on between
them and Norberto Arsenio . . . . Sousa claimed that,
inter alia, both de Chavez and Correia then "confirmed"
what Frietas had said. Sousa also asserted: "Jose Correia
and Antonio de Chavez had told me that there had been
other abuses." Sousa insisted that "I did not know
about" "these fights" before this evening's conversation
with both de Chavez and Correia. Sousa then "told my
superiors to do an investigation . . . to put him [Arsenio]
out on the street permanently if possible."
Sousa wanted Arsenio "fired" because, assertedly, "we
had warned Arsenio many times personally and we had
four [writeups] against him"; because of the misconduct
related to Sousa following his evening meetings with the
employees; and because Arsenio
told me on the steps to my house that he didn't care
any more about his job, that he only wanted to see
[Rigby and Sousa] in a lot of problems, and that he
was going to say at the Labor Board that we helped
him organize the Union.
Sousa claimed that Arsenio previously had been warned
"that the next time something happened . . . he would
be fired." As explained later, this asserted warning was
5 Frietas and Morer, employed by the Company, did not testify in this
proceeding Counsel for the Employer asserted (Tr. 188-190) that "these
people were petrified" and would not testify Although counsel was af-
forded an opportunity to subpoena these witnesses , she declined to do so.
Further, Sousa claimed that another employee , Oscar Barona , also dis-
closed to him that Arsenio gave Barona "a couple of socks on his chest "
Barona did not testify
never reduced to writing or incorporated in Arsenio's
earlier "write-ups ." (Cf. G.C. Exhs . 4, 5, 6, and 7 with
G.C. Exh. 8(a).)
Sousa was asked by Employer's counsel , would he
recommend that the Company "rehire" Arsenio. Sousa
replied "no,"
because of the actions he [Arsenio ] did in the past
and for the things he continued to do even after the
written warnings and the personal warnings, .. .
and I can see that now the people are all working
like friends and before they were nervous and afraid
to go to work.
Sousa insisted that Arsenio, in effect, had "attacked me
with words." Sousa denied, inter alia, various statements
and conduct attributed to him by Arsenio and Nunes.
On cross-examination , Sousa acknowledged that,
,.when the Company received a letter from the Union I
had a suspicion that Norberto was the one in charge of
the organizing"-"I knew [Arsenio gave employees
union cards to sign] after the employees came to me and
told me who had given them the cards." Sousa's pre-
hearing affidavit states:
Upon information and belief Norberto Arsenio was
the in-plant Union organizer . . . he was the repre -
sentative of the Union . . . all communications be-
tween the Union and the employees was relayed
solely through Norberto Arsenio . . . Norberto Ar-
senio is the Union's agent and gave employees
Union cards to sign.
Sousa further acknowledged that he and Rigby flew
from the Employer's Cambridge plant to the New Jersey
headquarters where "we had a meeting during the
day"-"it was almost all day, one meeting ." Sousa insist-
ed that the Employer did not "discuss" the union cam-
paign:
The reason for the meeting was that Bob Rigby
took with him papers about many things that hap-
pened with various employees at the Company in
Cambridge, including papers written against Nor-
berto.
Rigby brought with him the personnel records of Ar-
senio and of "various employees." The Employer
"wanted to investigate all of the records of the people in
Cambridge."
Robert Rigby, a supervisor of the Employer's Cam-
bridge plant sanitation department, denied, inter alia, var-
ious statements and conduct attributed to him by em-
ployee Arsenio. He reviewed his earlier disciplinary wri-
teups given to Arsenio (G.C. Exhs. 4, 5, 6, and 7). Rigby
claimed that he had warned Arsenio: "it wouldn't be al-
lowed any further and he [Arsenio] could be fired if it
continued." Rigby acknowledged, however, that he had
never "memorialized" this warning of discharge. And,
although Rigby generally observed that writeups do not
last forever, he further testified:
NABISCO BRANDS 1407
There is nothing written on that, but obviously
something that would occur years and years past,
no. Yes there is some consideration on the length of
time [of the writeup], some.
Rigby identified G.C. Exhs. 8(a) and (b) as the docu-
ments presented and read to Arsenio on June 12, 1986,
the date of Arsenio's suspension. Rigby acknowledged:
"Tony [Sousa] held discussions with all employees and at
that point that is when this information carne to light on
the threats." Rigby was "not present during any of those
discussions" with employees. Sousa told Rigby about this
alleged misconduct. Elsewhere, Rigby claimed that
counsel for the Employer "told" him about the alleged
"threats." Finally, Rigby claimed that he "came to the
New Jersey" headquarters on June 4, 19815. There were
no discussions at this meeting "about discharging or sus-
pending" Arsenio. The "first meeting" Rigby had with
"Company officials from New Jersey regarding the sus-
pension or discharge" of Arsenio "was the following
week after Tony [Sousa] held meetings [in the] depart-
ment."
John Copera, employed by the Company at its New
Jersey headquarters, advises and counsels the Cambridge
plant personnel manager. Copera recalled meeting with
Cambridge plant supervisors Sousa and Rigby on June 4,
1986, at the New Jersey headquarters. The Employer's
labor relations attorney joined the meeting. The four
then "spent time reviewing personnel files of the sanita-
tion department" workers. Copera noted that previously,
on May 30, he had been advised that the Employer "had
then received a petition for the organization of the Com-
pany." Copera denied discussing ,at this meeting "poten-
tially suspending or discharging Norberto Arsenio."
Copera admittedly reviewed on June 4 "write-ups" and
"warnings" contained in the personnel files of the sanita-
tion department. Copera claimed:
Well, as far as write-ups and warnings, [his concern
was] to look for consistency, to look at how disci-
pline and warnings were administered in the plant
and how they were handled.
Elsewhere, Copera acknowledged that "there was no
one specific that [he was] concerned about at that
time"-"we were looking at the total department of 21
or 22 people." Seven days later, on June 11, Copera
again met with Sousa and Rigby "regarding the suspen-
sion of Mr. Arsenio." Copera claimed:
The meeting [of June 11] was called between the
meeting of the 4th in New Jersey or after the meet-
ing of the 4th, it became known to us that employ-
ees in the plant had been threatened by an individ-
ual in the plant, an employee, and we wanted to
look into the matter further.
Ronald Stadnicki, production manager at the Cam-
bridge plant, testified that he was "involved in reviewing
the discipline" of employee Arsenio. Stadnicki claimed
that Arsenio was "fired for threatening Company em-
ployees." Stadnicki was then asked if he was "aware of
other examples where the Company discharged employ-
ees for threats or fights." Stadnicki could recall "two"
such instances. In one case , an employee had illegally
parked his car in the parking lot, his car was towed, and
the employee then threatened a company director that
"before the day was over . . . he was going to get him."
In the other case, an employee had been told not to
show up for work "since he might be under the influence
of alcohol" after having been observed "drinking an al-
coholic beverage in his car efore his starting time," and
later came into the plant and repeatedly made threaten-
ing statements and gestures to management.
Stadnicki elsewhere testified that "security guard
Green" had reported to him on or about June 11 a
"bomb threat." Green assertedly told Stadnicki that he
"was having a problem" with employee Arsenio at the
time because Arsenio "was cutting through unauthorized
areas and using phones in the offices unauthorized."
Counsel for the Employer acknowledged that "security
guard Green" was not "going to be called as a witness"
(Tr. 285). And, Stadnicki acknowledged that he
"couldn't tell" whether Arsenio was involved in any
"bomb threat"; no one has made "such an accusation";
he had "no knowledge of this until June 11"; and he had
never confronted Arsenio with this claim.
John Correia, employed by the Company at its Cam-
bridge plant, was asked if he could "recall any argu-
ments between Norberto Arsenio and Antonio de
Chavez." Correia replied: "Arsenio arrived [at work] and
said to Antonio de Chavez that he was ordered around
by the women and that he was a drunkard- and that what
he deserved was a good kick." Correia added: "They
were arguing."
Employee Correia was next asked if he "ever had a
fight with Mr. Arsenio." Correia replied:
I went to get the water cart, I went to look for it,
and I found it on the fifth floor, and I got the cart
and started pulling it to leave, and when he [Ar-
senio] saw that I was pulling the cart, he came run-
ning and started holding it back, and I continued
pulling it, and he closed his hand and put his fist on
my head like this, and I went back.
This incident was "about three years ago" and he did not
tell management about the incident.
Employee Correia was next asked if he was "aware of
any argument between Arsenio and Antonio Morer."
Correia replied: "Once again, we were changing our
clothes at night, they had a discussion and he [Arsenio]
pushed him against a closet, but I don't know what the
bad blood was." This incident "was more than a year
ago."
Employee Correia was next asked whether he was
"aware of any argument between Norberto Arsenio and
Jose Frietas." Correia replied:
They were eating at the cafeteria and started to
fight. I don't know why. And Arsenio promised
that he would wait for him outside so that they
could resolve themselves, and when he got outside
he went out on the street and called him out to the
street, and as the other one came around . . . the
1408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other one . . . jumped back on the sidewalk and
continued walking.
Correia added: "This was some time ago also More
or less a year."e
Finally, Correia recalled that Supervisor Sousa "came
to me and he said that Norberto had gone home on pun-
ishment because of problems that he had . . . . Well, the
things that he was doing there that had nothing to do
with the Union." Correia insisted that Supervisor Sousa
has never spoken with employees about "the limiting of
break times." Correia, during his 8 years of employment
with the Company, has been a janitor. His only other
employment in the United States was in a shoe factory
for about 6 months. He insisted that his 20 to 22 cowork-
ers never had "arguments."
Antonio de Chavez, employed by the Company, was
asked if he had an "argument with Mr. Arsenio" "in
June." He replied: "It was at night when we were
changing our clothes. He started to fight with me, [that]
my wife told me what to do, that I was always drunk,
and that he would kick me in the ass."
Antonio de Chavez was next asked if he had seen Ar-
senio "fight with any other employees." He testified:
"With Tony Morer . .. . They were arguing. I don't
know what the words were and then he grabbed him
like this and put him against the closets." He added:
"This was about two years ago." He explained: "I didn't
tell anybody anything." Supervisor Sousa "somehow
. .. found out about it and then he came to ask me to
verify it." Supervisor Sousa, assertedly, "told me [de
Chavez] that Arsenio had been fired because of the com-
plaints the Company had against him . . . . Those
papers that they write, those notes about us." Antonio de
Chavez has worked for the Employer for 11 years. His
only other employment in the United States was for 2
months in a bakery.'
I credit the testimony of Brassil, Arsenio, and Nunes
as detailed above. They impressed me as reliable and
trustworthy witnesses. Their testimony was in significant
part mutually corroborative and was also substantiated in
part by admissions of the Employer's witnesses. Their
testimony withstood cross-examination. I am therefore
persuaded on this entire record that the testimony of
Brassil , Arsenio, and Nunes reflects a complete, reasona-
ble, and trustworthy account of the pertinent sequence of
events.
6 Correia also claimed that he once heard Arsenio say to employee
John Sousa "I locked you up once and I will lock you up again," refer-
ring to the alleged incident in the compactor room in 1984
7 Renato Cabral, also employed in the Cambridge plant sanitation de-
partment as Sousa 's assistant or leadman, recalled that Supervisor Sousa
faulted employee Nunes for not being at his job and because his machines
were not cleaned Cabral insisted that Sousa "never spoke in my presence
to any employee regarding the Union "
Arsenio was recalled on rebuttal. Arsenio admitted that he had had a
fight with employee Frietas about 1 or 2 years ago Arsenio explained
that this fight with Frietas did not take place at work Arsenio admitted
that he had had an argument with employee de Chavez At the time, de
Chavez "was under the influence of liquor " Arsenio denied that he had
threatened de Chavez Arsenio also admitted to pushing employee Morer
against a closet in the locker room Arsenio explained that they were
"fooling around" and Morer was intoxicated at the time . Finally, Arsenio
denied having had arguments with Correia As Arsenio explained "As I
remember sincerely I have never had any arguments with him "
On the other hand, I find the testimony of Sousa,
Skoff, Rigby, Copera, Stadnicki, and Cabral to be at
times incomplete, contradictory, vague, evasive, and un-
clear. They did not impress me as reliable or trustworthy
witnesses. In particular, I find incredible here Sousa's
claim that the janitor-porters involved asked Sousa at his
June meeting about strikes and strike replacements; that
Nunes "voluntarily" came to Sousa and revealed that the
Union "had gotten 14 signatures"; that Sousa "wasn't in-
terested in knowing how many had signed cards"; that
Frietas and others also voluntarily informed Sousa about
"threats" and "fights" involving Arsenio; and that Ar-
senio had "threatened" or "attacked" Sousa. I find equal-
ly incredible the assertions of Sousa and Rigby to the
effect that Arsenio had been given a final warning of dis-
charge long before the Union's campaign. The "write-
ups" and related documentary evidence of record con-
tain no such final warning.
In addition, I find incredible the assertions of Rigby
and Copera that, although management reviewed "write-
ups" and "warnings" given to the unit janitors at the
meeting of June 4, management did not discuss disciplin-
ing Arsenio at the time. Skoff, at one point in his testi-
mony, characterized the meeting as one in which man-
agement "indicated they wanted to discharge Arsenio for
threats." Indeed, it is undisputed that management was
aware of Arsenio's role in the Union's campaign from
the outset. And, Sousa acknowledged that the one meet-
ing that he attended at the Employer's corporate head-
quarters in New Jersey involved disciplining Arsenio.
In short, I reject as pretextual management's belated,
shifting, contradictory, and unsubstantiated reasons as-
serted for the sudden suspension and firing of Arsenio
during the Union's campaign. I find instead, as discussed
below, that the real and only reason for the Employer's
suspension and firing of Arsenio was to punish and get
rid of Arsenio, the sole union protagonist, and thereby
discourage the remainmg porters and janitors from sup-
porting the Union.8
Discussion
Respondent Company has a plant in Cambridge, Mas-
sachusetts , where it employs about 300 persons . Charg-
ing Party Union represents 12 maintenance employees at
the plant; the remaining employees are not represented
by any labor organization. Charging Party Norberto Ar-
senio has been employed at the Cambridge plant as a jan-
itor or porter since 1980. On May 10, 1986, Arsenio
went to the Union and requested its assistance in organiz-
ing the 21 or 22 janitor-porters at the plant. The Union
agreed. Arsenio was given membership cards and he
alone solicited and obtained the signatures of his cowork-
ers on the cards. On May 23, the Union filed a represen-
8 Insofar as the testimony of de Chavez and Correia conflicts with the
testimony of Arsenio and Nunes, I credit the testimony of Arsenio and
Nunes as more trustworthy I am persuaded that de Chavez and Cor-
reia-having been sought out by Supervisor Sousa in an attempt to find a
reason to fire Arsenio-were attempting to accommodate Sousa and keep
their jobs For, as employee Morer had explained earlier to Arsenio, "the
bosses had called to [Morer] and brought to his attention the problems
with the Union and he didn 't want to lose his fob "
NABISCO BRANDS 1409
tation petition with the Board's Regional Director. On
May 30, the Employer received a copy of the petition at
its New Jersey headquarters.
Management was aware at the outset that employee
Arsenio was the chief union protagonist. Company Su-
pervisor Antonio Sousa admittedly had been "informed"
that employees "had signed their names to go Union"; he
"had a suspicion that [Arsenio] was the one in charge of
the organizing"; and he "knew" that Arsenio gave the
employees the union cards "after the employees came to
[Sousa] and told" him. 9 And, the Employer's labor rela-
tions manager, Robert Skoff, similarly acknowledged
that "we had reason to believe that [Arsenio] was one of
the organizers."
Then, on June 4, following receipt of the Union's peti-
tion, Cambridge Plant Manager George Murray, Super-
visor Robert Rigby, and Night-Shift Supervisor Antonio
Sousa were summoned to the Employer's headquarters in
New Jersey. What was discussed at the June 4 meeting is
not entirely clear on this record and there are, as recited,
conflicts in testimony. Thus, Labor Relations Manager
Robert Skoff acknowledged that the Cambridge plant
management "indicated that they wanted to discharge
Arsenio." Skoff elsewhere claimed that Arsenio's disci-
pline was discussed at "a subsequent meeting." Skoff,
however, initially had opposed the discharge of Ar-
senio-he wanted "something short of discharge" be-
cause "we were in a pre-election mode." Supervisor
Sousa, on the other hand, recalled attending "one meet-
ing" in New Jersey where they discussed employee
"write-ups" involving Arsenio and "various employees."
Supervisor Rigby, in his testimony, insisted that there
was no discussion at the June 4 meeting "about discharg-
ing or suspending" Arsenio-that happened, we are told,
"the following week after Tony [Sousa] held meetings"
of the 21 and 22 janitors and porters. And, Company
Representative John Copera claimed that management,
at the June 4 meeting, "spent time reviewing the person-
nel files" of the janitors and porters including "write-
ups" and "warnings." Copera insisted that "there was no
one specific that he was concerned with at that time"-
"we were looking at the total department of 21 or 22
people." According to Copera, it was 7 or 8 days later,
June 11 or 12, when the Employer decided to suspend
Arsenio. And, it was 7 or 8 days later, June 19, when
management decided to discharge Arsenio, on the day of
the scheduled Board representation hearing.
Following the June 4 meeting at the Employer's New
Jersey headquarters, Supervisor Sousa confronted em-
ployee Fernando Nunes at work about "the problems of
the Union." Sousa questioned Nunes, "how many men
had signed the paper." Nunes replied, 13 or 14. Sousa
commented, if the employees had spoken "with him
before that it was possible they could have gotten a
raise." In addition, Sousa also addressed groups of em-
ployees at the plant during the night shift. Sousa warned
the employees that the Union "would bring various
problems"; he referred to strikes, closings, lost jobs, and
replacements; and he observed "the Company would not
agree to what we wanted even if the Union did come
in." As employee Arsenio credibly recalled, Sousa
"spoke of salary increases" to the assembled employees.
Arsenio spoke up and "said it was too late because we
had already asked and [the Employer] didn't do any-
thing." Sousa then admonished the assembled employees:
"If the Union entered into the Company . .. the breaks
and the time [the employees] took longer than what was
allowed . . . would all be cut out." 10
Company Supervisor Sousa claimed that, following his
meetings at work with the employees, various employees
voluntarily revealed to Sousa that employee Arsenio had
threatened and assaulted coworkers. Sousa claimed, inter
alia, that employee Jose Frietas had disclosed this infor-
mation to him. Frietas, however, did not testify. Other
employees who assertedly also had disclosed this infor-
mation to Sousa (Morer and Barona) did not testify. Em-
ployees John Correia and Antonio de Chavez, as shown
above, testified that they had disclosed to Sousa, after he
had questioned them, arguments and disputes with Ar-
senio that had taken place for the most part in prior
months and years. Sousa thereupon related the results of
his inquiries to Section Supervisor Rigby. Rigby admit-
tedly made no attempt to interview any employees re-
garding alleged acts of misconduct on the part of Ar-
senio . In fact, Rigby, at one point in his testimony, ac-
knowledged that counsel for the Employer had "told"
him about Arsenio's alleged "threats."
On June 12, Arsenio reported for work as scheduled.
Sousa "was at the stairway waiting"for Arsenio. Sousa
took Arsenio to Rigby's office. There, Rigby reviewed
"write-ups" and "warnings" that Arsenio had received in
1984 and 1985. Rigby then added that "recently, several
employees have complained that you've threatened, in-
timidated and harassed them." Rigby further added that
the "third shift guard advised us that you have been abu-
sive refusing to follow his direction, and using the office
lobby telephones as well as going through unauthorized
areas ."11 Rigby also added, "Previously, I [Rigby]
warned you that any further violations would result in
you're being fired." Arsenio credibly denied any prior
warning of discharge and the various cited acts of mis-
conduct. In fact, the earlier 1984-1985 "write-ups" to
Arsenio contain no such final warning of discharge. Ar-
senio was "suspended pending further investigation."
(See G.C. Exhs. 8(a) and 8(b).)
Seven days later, on June 19, Arsenio was notified in a
letter that he was discharged. Arsenio was apprised that
the Employer's "investigation confirmed that you did
commit serious violations of Company policies." In addi-
tion, Arsenio was also accused in this letter of "threaten-
ing a supervisor." Arsenio credibly denied this miscon-
duct. Arsenio credibly recalled that he had visited Sousa
"on the day I received the letter." Sousa then made clear
to Arsenio that Sousa was prepared to lie if necessary
and state that Arsenio had "attacked" him-Sousa
9 As noted, Arsenio is Sousa's brother-in-law and lives in Sousa's
home. The two previously had discussed the advantages of union repre-
sentation
10 Employee Nunes also credibly recalled that Sousa had stated- "The
Union would never come in the Company had good attor-
neys. "
i i The "third shift guard " did not testify
1410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"didn't want to lose his work and [Arsenio] had already
lost" his job. Employee Nunes also credibly recalled
how Sousa, in like vein, had explained to Nunes that
Sousa would lie if necessary "because he had worked for
the Company for 20 years and he wasn't about to lose
... his job."
Labor Relations Manager Skoff acknowledged that
"this was far from a routine discharge." Skoff initially
had opposed the discharge of Arsenio. Skoff assertedly
changed his mind on or about June 19, with the "disclo-
sure that other threatening and special violence had been
inflicted on other employees prior, years ago, months
ago," and the "threats made by Arsenio to Sousa on or
about June 18." Skoff admittedly first learned of the al-
leged threat to Sousa on June 19-the date of discharge
and date of the representation hearing. Skoff never at-
tempted to "contact Mr. Arsenio" during the June 12-19
investigative period "to get his version of the events."
And Sousa, in his testimony, incredibly insisted that Ar-
senio had "attacked me with words" on June 18 "on the
steps to my house." 2
On the credible evidence of record, as recited above, I
find that management suspended and discharged employ-
ee Arsenio in an attempt to discourage employee union
activities. Arsenio was chiefly responsible for the Union's
attempt to organize the Company's 21 or 22 janitors and
porters. Management became aware of Arsenio's role in
the unionization effort at the outset. Management imme-
diately embarked on a campaign to find reasons to justify
ridding itself of Arsenio. Management reviewed Arsen-
io's 1984-1985 "write-ups." Arsenio, however, had not
been given any final warning during 1984 or 1985, and
had not engaged in any current infractions of rules.
Company Supervisor Sousa then repeatedly questioned
Arsenio's coworkers about threats or arguments with Ar-
senio . The credible evidence of record shows that the
questioned employees, at most, revealed to Sousa argu-
ments or confrontations with Arsenio and coworkers
that had for the most part taken place months and years
earlier. Sousa nevertheless seized on these incidents as
further reasons to fire Arsenio. Management then at-
tempted to find more recent misconduct on the part of
Arsenio such as, for example, walking through unauthor-
ized areas or improper use of telephones. No attempt
was made to substantiate these asserted claims. Manage-
ment, as noted, even made reference to a "bomb threat"
and Arsenio's suspected involvement. No attempt was
made to substantiate this suggestion. Finally, Sousa then
attempted to claim that Arsenio had threatened him on
June 18. The credible evidence of record does not sup-
port this assertion.
In sum, I reject as pretextual the Employer's belated,
shifting, unsubstantiated , and incredible reasons assigned
for the sudden suspension and firing of Arsenio during
the organizational effort. Management was attempting to
find reasons that would justify the unlawful and discrimi-
natory suspension and firing of Arsenio. And, it is quite
clear that Arsenio would not have been suspended and
discharged if he had not led the Union's organizational
effort at the Cambridge plant. Respondent thereby vio-
lated Section 8(a)(1) and (3) of the Act.
The General Counsel also alleges that Respondent, in
opposing the Union's campaign, interfered with, re-
strained, and coerced employees in the exercise of their
Section 7 rights, in violation of Section 8(a)(1) of the
Act. Thus, employee Nunes credibly recalled that Super-
visor Sousa spoke to him at work about the "problems of
the Union"; questioned him about "how many men had
signed the paper"; and stated that if the employees "had
[spoken] with [Sousa] before . . . was possible they
could have gotten a raise." Nunes also credibly recalled
that Sousa had stated: "The Company would not agree
to what we wanted even if the Union did come in"; "the
Company would not stop . . . the Union would never
come in . . . the Company had good attorneys . . . "; "if
the Union came in the breaks would only be 10 minutes
and the lunch would only be a half an hour" unlike in
the past when management "never said anything"; and
he, Sousa, would lie if necessary and say Arsenio "had
attacked him" to save "his job." And, employee Arsenio
credibly recalled, inter alia, that Sousa had spoken "of
salary increases"; threatened to shorten breaks; and made
clear that he, Sousa, would lie to save his job. Such
statements and conduct, assessed in the context of this
record, clearly tended to impinge on employee Section 7
protected activities. Respondent thereby coercively inter-
rogated and threatened employees; impliedly promised
employees increased benefits if they would abandon the
Union; and made clear to the employees the futility of
choosing union representation, in violation of Section
8(a)(1) of the Act.ta
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as
alleged.
2. The Union is a labor organization as alleged.
3. Employer violated Section 8(a)(3) and (1) of the Act
by discriminatorily suspending and discharging employee
Norberto Arsenio.
4. Respondent violated Section 8(a)(1) of the Act by
coercively interrogating and threatening employees; by
impliedly promising employees increased benefits if they
abandoned the Union; and by making clear to employees
that it would be futile for them to chose union represen-
tation . Respondent has not committed other 8 (a)(1) viola-
tions alleged.
5. The unfair labor practices found above affect com-
merce as alleged.
12 Cambridge Plant Production Manager Ronald Stadnicki cited two
instances of firings at the Cambridge plant because of threats I regard
the cited instances of employee misconduct as plainly inapposite to any-
thing proven here Stadnicki , in his testimony, also referred to a "bomb
threat" and the suspicions of a security guard that Arsenio might be in-
volved The security guard , however, never testified Stadnicki agreed
that no one is now accusing Arsenio of any "bomb threat "
13 The General Counsel also cites Sousa 's reference to strikes , closed
doors, lost jobs, replacements, and related consequences as coercive here
In my view, the record is not sufficiently clear to find these additional
statements by Sousa to be unlawful. The General Counsel 's request for a
visitatorial provision in the Order is also demed as inappropriate here.
NABISCO BRANDS 1411
THE REMEDY
To remedy the unfair labor practices found above, Re-
spondent will be directed to cease and desist from engag-
ing in such unlawful conduct or like and related conduct
and to post the attached notice. The notice will be
posted in both English and Portuguese. Respondent will
also be directed to offer employee Arsenio immediate
and full reinstatement to his former job or, in the event
such job no longer exists, to a substantially equivalent
job without prejudice to his seniority or other rights and
privileges and make him whole for any loss of earnings
he may have suffered by reason of his unlawful suspen-
sion and discharge, by making payment to him of a sum
of money equal to that which he normally would have
earned from the date of Respondent's discrimination to
the date of its offer of reinstatement, less net earnings
during such period, with backpay and interest to be com-
puted as prescribed in F. W. Woolworth Co., 90 NLRB
651 (1977), with interest as provided in New Horizons for
the Retarded, 283 NLRB 1173 (1987). See generally Isis
Plumbing Co., 138 NLRB 716 (1'962). In addition, Re-
spondent will be directed to preserve and make available
to the Board, on request, all payroll records and reports
and all other records necessary to determine backpay
and reinstatement under the terms of this Decision and
Order. Further, Respondent Employer will be directed
to expunge from its files any reference to the disciplinary
actions and discharge found unlawful herein in accord-
ance with Sterling Sugars, 261 NLRB 472 (1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
The Respondent, Nabisco Brands , Inc., Cambridge,
Massachusetts, its officers, agents , successors, and as-
signs, shall
1. Cease and desist from
(a) Discouraging membership in the International
Brotherhood of Firemen and Oilers, Local No. 3, AFL-
CIO, or any other labor organization, by discriminatorily
suspending and discharging its employees.
(b) Coercively interrogating employees about their
union activities; threatening employees with loss of
breaks and other reprisals if they support the Union; im-
pliedly promising employees increased benefits if they
abandon their support of the Union; and telling employ-
ees that it would be futile for them to choose union rep-
resentation.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer employee Norberto Arsenio immediate and
full reinstatement to his former job or, if that job no
14 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
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed and make him whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against him, in the manner set forth in
the remedy section.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Remove from its files any reference to the unlawful
discharge and notify the employee in writing that this
has been done and that the discharge will not be used
against him in any way.
(d) Post at its Cambridge, Massachusetts facility copies
of the attached notice marked "Appendix." 15 Copies of
the notice, on forms provided by the Regional Director
for Region 1, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately on receipt and maintained for 60 consec-
utive days in conspicuous places including all places
where notices to employees are customarily posted. The
notices will be printed in English and Portuguese. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) 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 the remaining alle-
gations of the complaint be dismissed.
15 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discourage membership in the Interna-
tional Brotherhood of Firemen and Oilers , Local No. 3,
AFL-CIO , or any other labor organization , by discri-
minatorily suspending and discharging our employees.
WE WILL NOT coercively interrogate our employees
about their protected union activities; threaten our em-
ployees with loss of breaks or other reprisals if they sup-
port the Union; impliedly promise our employees in-
creased benefits if they abandon their support of the
Union; or tell our employees that, in effect, it would be
1412 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
futile for them to support the Union or choose union
representation.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer employee Norberto Arsenio immediate
and full reinstatement to his former job or, in the event
his former job no longer exists , to a substantially equiva-
lent job, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earn-
ings he may have sustained by reason of our unlawful
conduct, with interest.
WE WILL remove from our files any references to the
discriminatory suspension and discharge of Arsenio, and
WE WILL notify him that this has been done and evi-
dence of his unlawful suspension and discharge will not
be used as a basis for future personnel action against him.
NABISCO BRANDS, INC.