Nabisco, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1983

267 N.L.R.B. 1236 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nabisco, Inc. and Millwrights Local Union 2232,
United Brotherhood of Carpenters and Joiners
of America, AFL-CIO. Cases 23-CA-8726 and
23-CA-8727
15 September 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 18 October 1982 Administrative Law Judge
Richard J. Linton issued the attached Decision in
this proceeding. Thereafter Respondent filed ex-
ceptions and a supporting brief; the General Coun-
sel filed cross-exceptions and a supporting brief;
and both filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
Respondent operates a bakery in Houston, Texas,
where the Charging Party Union represents the
maintenance and repair employees. Respondent and
the Union are parties to a collective-bargaining
agreement which contains a grievance/arbitration
provision which is applicable to "all grievances and
disputes arising out of the application or interpreta-
tion of this Agreement" and to employee suspen-
sions and discharges. This provision also provides
for final and binding arbitration. The contract does
not contain a "no-strike" clause.
The conduct alleged here as unfair labor prac-
tices arose in response to two events which oc-
curred in September 1981.2 First, the Union filed
an unfair labor practice charge, unconnected with
the instant case, based on Respondent's having
warned several employees for leaving work early.
In response to the charge, Respondent's plant man-
ager, Cocco, summoned Kenneth Higgins, an em-
ployee and the Union's chief steward, to his office
and asked him why the Union had filed a charge
rather than a grievance. Higgins replied that they
did not know how to bring it under the contract.
Cocco then told Higgins that he should not go to
I The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions 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
his findings.
2 Hereafter, all dates refer to 1981.
267 NLRB No. 196
the Board in the future but should use the griev-
ance procedure "whether it pertains to the contract
or not." Cocco then said that he would discuss the
underlying matter if the Union would withdraw
the charge.
The General Counsel alleges that in this conver-
sation Cocco had committed three separate viola-
tions of the Act. The Administrative Law Judge
found that Respondent, through Cocco, had violat-
ed Section 8(a)(1) by (1) admonishing Higgins not
to go to the Board, and (2) questioning Higgins as
to why a charge had been filed. The Administra-
tive Law Judge noted that such a question would
not always be illegal, but found it to be so here be-
cause it occurred in a coercive context in that Hig-
gins had been summoned to the plant manager's
office and the question was followed by an illegal
admonishment. The Administrative Law Judge also
found that Cocco's offer to discuss the disciplinary
warnings if the Union withdrew the charge did not
violate the Act. While we agree with this dismissal,
we find merit in Respondent's exception to the Ad-
ministrative Law Judge's finding that Cocco's
asking Higgins why a charge, rather than a griev-
ance, had been filed was violative of Section
8(a)(l). In this regard, we note that Cocco's ques-
tion was unaccompanied by any threat of reprisals.
The question itself appears to have been simply a
non-threatening manifestation of Cocco's curiosity
as to why the Union would choose to file a charge
over a matter which Cocco perceived to be at
most a routinely grievable matter. Accordingly,
under these circumstances, we find that Cocco's
question was not coercive and we shall dismiss this
allegation of the complaint. However, for reasons
detailed later in this Decision, we agree with the
Administrative Law Judge's further finding that
Cocco's admonishing Higgins not to go to the
Board in the future was violative of Section 8(a)(1).
The second event giving rise in this proceeding
to allegations of unfair labor practices was an em-
ployee-staged sick-out. On 30 September, most of
the first-shift maintenance and repair employees left
work early, claiming illness. Several others earlier
had phoned in sick and did not report to work.
Cocco advised the Union of this and met with Hig-
gins and the Union's business manager, Price, that
same day in an attempt to contain the situation.
Higgins told Cocco that employees were disgrun-
tled over supervisory harassment and over a job as-
signment dispute, a matter then being processed
through the grievance procedure. The sick-out
lasted 1 day. Cocco agreed to meet with employees
to listen to their complaints and did so on 7 Octo-
ber. The parties then met again 8 October to dis-
cuss the harassment allegation and the job assign-
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NABISCO, INC.
ment dispute. The harassment charge appears to
have been resolved at this meeting but the job as-
signment dispute was not.
Meanwhile, on 2 October Respondent's assistant
plant manager, Muscarello, had asked Respondent's
personnel manager, Michael, to verify the names of
the sick-out participants and to draft a warning
notice to be issued to them. On 14 October Mi-
chael and Muscarello met with Cocco and got his
approval of the proposed warnings after advising
Cocco that the former plant manager had issued
warnings to participants in a similar sick-out in
1980. Thereafter, on 20 October Cocco met with
the Union to discuss the job assignment dispute,
but the parties were unable to resolve it. At the
conclusion of the meeting, Price announced that
the Union would proceed to arbitration on the
matter. Cocco then announced that sick-out partici-
pants would be issued warnings for their sick-out
activities. The warnings issued on 27 October to
those who participated in "a protest to a job as-
signment." These warnings were alleged by the
General Counsel to have violated Section 8(a)(3) of
the Act.
Based on credited testimony, the Administrative
Law Judge first found, contrary to the General
Counsel's contention, that Cocco had not promised
to grant anmesty to sick-out participants. Neverthe-
less, he still concluded that Respondent had violat-
ed Section 8(a)(3) by issuing warnings to the em-
ployees in retaliation for the Union's having chosen
to pursue the job assignment grievance to arbitra-
tion. In so concluding, he found that Respondent's
unlawful motivation was evidenced by the timing
of Cocco's announcement of the warnings, just
after the Union had announced its decision to pro-
ceed to arbitration. The Administrative Law Judge
noted that Cocco had approved the warnings on 14
October and Respondent proffered no explanation
for delaying until 20 October to advise the Union
of this decision. The Administrative Law Judge
concluded that Cocco withheld the warnings and
waited to see if the Union would acquiesce in Re-
spondent's position on the grievance. The Adminis-
trative Law Judge thus found that the warnings
would not have issued had the Union not declared
its intent to arbitrate the dispute. He further con-
cluded that, regardless of Respondent's motive, its
issuance of the warnings was also independently
violative of Section 8(a)(l) because the sick-out
was protected concerted activity. In reaching this
conclusion, he noted that the parties' contract did
not contain a no-strike clause, and he found that
the employees had employed no unlawful means in
the sick-out, and that the sick-out had no unlawful
end. He also found that even though the Union had
not authorized the sick-out, the employees were
not acting in derogation of their collective-bargain-
ing representative.
We find merit in Respondent's exceptions to the
Administrative Law Judge's unfair labor practice
findings regarding the sick-out. In so doing, we
note that the sole basis for the Administrative Law
Judge's finding of an 8 (a)(3) violation was the
timing of the announcement of the warnings. From
this, the Administrative Law Judge inferred an un-
lawful motivation. Absent other evidence, we find
that timing alone does not provide sufficient basis
from which to infer unlawful motivation in Re-
spondnt's issuance of the warnings, particularly
where Respondent had a past practice of issuing
warnings for this sort of infraction. Thus, we note
that the record reveals that, when confronted with
a similar employee sick-out in 1980, the Company
responded by issuing warnings to those participat-
ing in it. Accordingly, Respondent's conduct with
respect to the sick-out at issue here is consistent
with its past practice. We note, moreover, that on
2 October Plant Manager Muscarello decided to
recommend to Cocco that the sick-out participants
be warned in accordance with this past practice.
On that day, Muscarello asked Personnel Manager
Michael to verify the names of the participants and
to draft a warning for Cocco's approval. While
some 6 days elapsed between Cocco's approving
the warnings on 14 October and his advising the
Union of his decision on 20 October we find no
basis on which to conclude, as did the Administra-
tive Law Judge, that Cocco was holding back, i.e.,
"desk drawering," the warnings to await the out-
come of the grievance meeting. We note particular-
ly that, at the 8 October meeting where employee
complaints about supervisory harassment were dis-
cussed, Cocco himself instructed one of his super-
visors to refrain from holding back warnings and
to destroy any that the supervisor was then hold-
ing. We find it highly unlikely that only 12 days
later Cocco would engage in the same activity that
he had just counseled his supervisors against. In all
the circumstances, we find that Respondent did not
violate Section 8(a)(3) by issuing warnings to em-
ployees who participated in the sick-out, and we
shall dismiss this allegation.
We also disagree with the Administrative Law
Judge's finding that the sick-out was protected con-
certed activity and that the issuance of the warn-
ings was an independent violation of Section
8(a)(1). Thus, we note that the contract's
grievance/arbitration provision gives rise to an im-
plied obligation not to strike over matters subject
to final, binding arbitration. Cf. Teamsters Local
174 v. Lucas Flour Co., 369 U.S. 95 (1962); Goya
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foods, 238 NLRB 1465 (1978). In the instant case,
the sick-out was, in large part, a protest of the job
assignment dispute, a matter then being processed
through the grievance/arbitration machinery.
Under these circumstances, we reverse the Admin-
istrative Law Judge and find the sick-out to be un-
protected and that Respondent's warning to its par-
ticipants was not independently violative of Section
8(a)(1).
Following our disposition of all of the above, the
sole violation remaining of those alleged is Cocco's
admonition to Higgins to refrain from filing
charges with the Board. We find the seriousness of
this violation warrants a remedial order notwith-
standing its being the sole violation found. Thus, a
Board proceeding involves the effectuation of a
public policy and it is not the mere adjudication of
a private right. We cannot initiate our own pro-
ceedings but are dependent upon the initiation of
charges by individuals. NLRB v. Shipbuilders, 391
U.S. 418 (1968); Minnie E. Nash v. Florida Industri-
al Commission, 389 U.S. 235 (1967). Access to the
Board is therefore critical to the fulfillment of our
statutory duties and, accordingly, Cocco's attempt
to limit Higgins' access to the Board was a serious
violation which must be remedied. We note that
Cocco's admonishment to Higgins not to file
charges with the Board was not limited to matters
arguably contractual in nature but was a blanket
proscription covering all matters arising in the
future. Since Higgins is an employee of Respond-
ent, we find this admonishment no less serious by
virtue of his also being a union steward. Accord-
ingly, we shall order Respondent to refrain from
this conduct in the future.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Nabisco, Inc., Houston, Texas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Telling employees that they are not to seek
assistance from the National Labor Relations Board
but instead should proceed under the contractual
grievance procedure on any complaint whether it
pertains to the contract or not.
(b) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Post at its Houston, Texas, bakery copies of
the attached notice marked "Appendix."3 Copies
of said notice, on forms provided by the Regional
Director for Region 23, after being duly signed by
an authorized representative, shall be posted by it
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure
that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 23,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
3 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant 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
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represent-
atives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WILL NOT tell you to refrain from seek-
ing assistance from the National Labor Rela-
tions Board and that you should proceed in-
stead under the contractual grievance proce-
dure on any complaint whether it pertains to
the contract or not.
1238
NABISCO, INC.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of the rights guaranteed by Section 7
of the Act.
NABISCO, INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge: This
case was tried before me in Houston, Texas, on May 27
through 28, 1982, pursuant to the February 4, 1982, con-
solidated complaint issued by the General Counsel of the
National Labor Relations Board through the Regional
Director for Region 23 of the Board. The consolidated
complaint is based on a charge filed November 12, 1981,
in Case 23-CA-8726 by the Millwrights Local Union
2232, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Union or Local 2232), against Na-
bisco, Inc. (the Respondent or Nabisco), and on a second
charge filed November 12, 1981, in Case 23-CA-8727 by
Local 2232 against Nabisco.'
In the complaint, the General Counsel alleges that the
Respondent violated Section 8(a)(1) of the Act by certain
conduct, including interrogating and threatening employ-
ees with disciplinary action, Section 8(a)(4) of the Act by
conditioning discussion of certain grievances on the
Union's withdrawal of pending unfair labor practice
charges relating to the Respondent's conduct leading to
the grievances, and Section 8(a)(3) of the Act by issuing
warning notices to named employees because they en-
gaged in a work stoppage on September 30.
By its answer, the Respondent admits certain factual
matters but denies that it has violated the Act.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due consider-
ation of the briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS OF FACT
I. JURISDICTION
A New Jersey corporation engaged in the bakery busi-
ness, Nabisco operates a bakery in Houston, Texas.
During the past 12 months, Nabisco purchased goods
and materials valued in excess of $50,000, and such
goods and materials were shipped to the Respondent's
Houston facility directly from points located outside the
State of Texas. The Respondent admits, and I find, that
it is an employer within the meaning of Section 2(2), (6),
and (7) of the Act.
II. LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that Millwrights
Local Union 2232, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
I All dates are for 1981 unless otherwise indicated.
III. THE ALL EGED UNFAIR LABOR PRACTICES
A. Events Leading to the September 30 Strike
Beginning partly as a dispute over the supervisory
methods of Third Shift Foreman Charles Youngblood,
and partly as the outgrowth of a disputed understanding
of a supplemental agreement between Local 2232 and
Nabisco concerning the work to be performed on the
fourth shift, the events herein have ripened into this liti-
gated case.
During all relevant times the Respondent and the
Union were parties to a collective-bargaining agreement
covering the Respondent's maintenance and repair em-
ployees at Nabisco's Houston bakery. The Respondent's
production employees apparently are represented by a
different union in a separate bargaining unit. The bakery
operates its production in four shifts around the clock 7
days a week except for the period from 11 p.m. on
Sunday nights to 7 a.m. Monday mornings.2 The basic
purpose of the fourth shift on Sunday nights is to check
the repair and maintenance of the production equipment
in order to prepare for the production process to resume.
On occasion, however, some production on the extruder
line takes place.
During their bargaining negotiations concluding on
March 30, 1978, the Respondent and the Union agreed to
a specific number of mechanics, pipefitters, and oilers to
work on the fourth shift depending on whether the ex-
truder line is operating (a total of seven employees) or
not (a total of five employees). In either event, one oiler
would work. This agreement, apparently not specifically
detailed in any overall collective-bargaining contract, is
set forth in a May 1, 1978, letter from Nabisco's labor
relations staff assistant to Local 2232. The parties refer to
this letter as the preparatory shift agreement (PSA
herein). The final two paragraphs of the PSA read:
Preparatory shift duties will be to check out
and make ready all production lines scheduled
to run. Normal maintenance will not be as-
signed to this shift.
But normal maintenance shall include work
that could have been performed by scheduling
as weekly or weekend work.
As we shall see, a dispute arose in September 1981
concerning the interpretation of the PSA. The disagree-
ment centered on whether the oiler could be assigned
certain types of greasing and even, apparently, whether
the oiler was intended to be covered or excluded by the
PSA. While the general nature of this agreement/dispute
is relevant background, we need not explore it in detail.
a References in the record to the fourth shift are a bit confusing. While
these references suggest that the fourth shift is confined only to Sunday
nights, Art. 7 of the most recent contract described the fourth shift as
being a full shift of 8 hours a day 7 days a week. What the parties and
witnesses apparently have reference to in this case is the single 8-hour
shift on Sunday nights. That 8-hour period falls within the fourth shift.
Throughout this Decision, reference to the fourth shift means the 8-hour
period on Sunday nights.
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At a meeting on October 20, a Local 2232 expressed a
desire to proceed to arbitration on the matter. As of trial
time herein, Nabisco and Local 2232 had not selected an
arbitrator.
On August 20, an unspecified number of employees
signed a petition complaining that Foreman Charles
Youngblood was cursing employees, harassing them, and
hiding behind columns watching them, among similar
conduct. Chief Steward Kenneth Michael Higgins credi-
bly testified that he was present when the petition was
given to Charles Burke, the then superintendent of the
maintenance and repair (M & R) department. 4 Although
Higgins attached a grievance form to the petition, Burke
told Higgins that he considered the document a petition
rather than a grievance, that he would not answer on the
grievance form, but that he would meet with the em-
ployees individually. A couple of employees did meet
with Burke, but the majority told Higgins they did not
want to follow that course for fear of intimidation. Hig-
gins did not attempt to carry the matter forward to the
next grievance step because of a perceived procedural
problem in not obtaining a written answer from Burke.
On Wednesday, September 16, the Union, through
Business Manager Shelton D. Price, filed a charge in
Case 23-CA-8669 alleging that on September 10 Re-
spondent had violated Section 8(a)(1) and (3) of the Act
by Supervisor M. A. Curb's singling out B. J. Albright
and R. K. Williams by issuing written warnings to them
because they clocked out early (thereby) coercing mem-
bers of Local 2232.
When Anthony F. Cocco, plant manager since July 1,
arrived at work on September 18 he found a registered
letter enclosing the charge in Case 23-CA-8669. Cocco
testified that he walked into the office of Richard R. Mi-
chael, personnel manager at the bakery, and learned that
Michael was not aware of the matter. Cocco then went
to Superintendent Burke's office and asked him about it.
Burke replied that he and Higgins had discussed the
matter, that he thought the issue had been resolved, and
that he was unaware that a charge was going to be filed
over it with the NLRB.
Several people were in Burke's office when Cocco en-
tered. 5 When Cocco turned from speaking with Burke,
he noticed that Higgins was present. Cocco testified that
he then asked Higgins if he were aware of the charge.
Higgins answered affirmatively. Cocco asked why the
grievance procedure was not utilized. Receiving no re-
sponse, Cocco commented that he thought they should
settle matters like this "within house" by going through
the grievance procedure. 6 Cocco testified that Higgins
a While witnesses for the General Counsel placed the meeting date as
October 20, the Respondent's witnesses testified that it was October 19.
The difference is immaterial because it is clear that all parties described
the same meeting. Although a representative of the Respondent took
notes at the meeting, such notes were not identified or offered at trial. In
its answer, the Respondent admitted the correctness of the October 20
date. Under all the circumstances, I shall use that date rather than Octo-
ber 19.
4 The parties stipulated that Burke died in February 1982.
r Present were Burke, Assistant Plant Manager Anthony Muscarello,
General Foreman Louis Hawthorne, and Higgins.
8 Although the transcript quotes Cocco as saying that "he," meaning
Higgins, made the comment about settling matters in house, it is clear
reacted by dropping his head without saying anything.
At that point Cocco left.
It is undisputed that on Wednesday, September 23,
Cocco and Higgins had a conversation concerning the
Curb-Albright-Williams matter. According to Higgins,
Cocco summoned him to the office and asked why
charges had been filed with the NLRB for Albright and
Williams. Higgins replied that it was because they had
been treated unfairly in the disciplinary warning over
leaving their work stations 3 minutes early. Cocco in-
quired why the Union7 did not use the grievance proce-
dure. Higgins replied that they did not know how to
bring it under the contract and therefore went to the
Board. Cocco admonished Higgins that in the future he
should not go to the NLRB but should file under the
grievance procedure "whether it pertains to the contract
or not."
Higgins testified that Cocco then stated that, if the
Union withdrew the NLRB charge, he would talk to
them about the Albright-Williams situation. Higgins said
that if Cocco were making a commitment to pull the dis-
ciplinary warnings then "we" would be more than happy
to withdraw the charge. Cocco responded he was not
making such a commitment, but that if the NLRB charge
were withdrawn he would talk about the Curb-Albright-
Williams matter. Higgins said they could not do that, and
the meeting ended.8
Denying that he told Higgins not to go to the Labor
Board, Cocco testified that on September 18 he tele-
phoned Business Manager Price about the charge.
During their conversation, Cocco stated that he would
confer with Curb when the supervisor reported to work
on Monday afternoon, September 21, to investigate the
facts. Price told Cocco not to respond to the charge, that
he would advise the NLRB's Regional Office, and for
Cocco to call him on Tuesday.
On Tuesday, September 22, Cocco called Higgins in,
showed him the (undescribed) notes he had taken in talk-
ing with Curb. Higgins, exhibiting a look of surprise,
stated, "Gee, this is sure a different story than I got." In
Higgins' presence Cocco telephoned Price and reported
the (undescribed) facts of Cocco's investigation to Price.
The latter told Cocco not to respond to the NLRB
charge until Price had a chance to discuss the matter
with Higgins.
On Wednesday, September 23, Cocco, in his version,
"called" Higgins (they apparently conferred in person
rather than by telephone) and asked him if he thought
they could settle this issue without involving the NLRB.
When Higgins responded affirmatively Cocco proposed
that they get the lead people together to discuss such
from the context and Muscarello's account that the "he" should be "I"
for Cocco.
' Higgins testified with the pronoun "we." Cocco probably used the
word "you" as a collective reference to Higgins and the Union.
s Complaint par. 8 alleges that the Respondent violated Sec. 8(aXl)
and (4) in the foregoing conversation by Cocco's (a) asking Higgins why
the NLRB charge had been filed rather than a grievance, (b) telling Hig-
gins that in the future not to go to the NLRB but to use the grievance
procedure for all problems regardless of whether contractual, and (c)
conlditioning discussions concerning the disciplinary action (against Al-
bright and Williams) on withdrawal of the charge in Case 23-CA-8669.
1240
NABISCO, INC.
matters and even hold meetings of small groups of me-
chanics to discuss issues. Higgins opined that it was a
fine idea.
The following day, Thursday, September 24, Price
called and told Cocco he was proceeding with the
charge. Cocco repeated his discussion of the previous
day with Higgins about meetings with lead people in
small groups. Once again Price said he would hold up
until he had conferred with Higgins. On Friday, Septem-
ber 25, Cocco called Price who advised that he was pro-
ceeding with the charge. That ended the series of their
conversations on the matter. The charge was withdrawn
on October 7, 1981 (Jt. Exh. 3).
Although Price was not called as a rebuttal witness to
controvert any of the foregoing, Higgins, during the
General Counsel's case-in-chief, expressly denied that
Cocco suggested meeting with lead people or small
groups on the Albright-Williams matter in their confer-
ence of September 23. Cocco, explained Higgins, did
offer at the October 8 meeting to meet with the lead
people relative to their assuming more responsibility, but
that had nothing to do with the issue of some employees
leaving work early. Higgins also testified that in the bal-
ance of the week after the September 23 meeting Cocco
twice complained to him that Albright and Williams had
been observed leaving their work stations early again.
Higgins investigated and reported back to Cocco that
leadman Travis Sanford had assigned the two, plus an-
other employee, to take parts to the machine shop area
and that is why they left early. Cocco admitted that Hig-
gins did make such a report to him on one occasion.
Based on Higgins' superior demeanor on this topic, I
credit his version. I therefore find that on September 23,
1981, the Respondent violated Section 8(a)(1) of the Act
when Cocco, in a coercive context, asked Higgins why
an NLRB charge had been filed rather than a griev-
ance,9 and admonished him not to go to the NLRB in
the future but to use the grievance procedure even for
noncontractual grievances. Although Higgins, in his tes-
timony, did not address the September 18 conversation
about the NLRB charge with Cocco in Burke's office,
Cocco's description of that conversation is not inconsist-
ent with Higgins' version of the conversation they had
about the matter on September 23. As no basis either ap-
pears or is advanced for finding such conduct also con-
stitutes a violation of Section 8(a)(4) of the Act,'° I shall
dismiss complaint paragraphs 8(a) and (b) to the extent
they allege a violation of Section 8(a)(4).
Respecting the allegation of Cocco's attaching the pre-
condition of withdrawal of the NLRB charge before he
would discuss the underlying problem, I shall dismiss the
allegation even though I credit Higgins. This is because
his version shows that, in essence, Cocco merely offered
to discuss the problem if the Union withdrew the charge.
Higgins countered by suggesting that the Respondent
should first commit to pulling the disciplinary warnings
9 It would not appear that such a question would always be violative
of the Act. But the circumstances here. Higgins summoned to the plant
manager's office, with the question followed by an illegal admonishment
not to go to the NLRB with such matters rather than using the grievance
procedure, render the question coercive.
'° The remedy would be the same Zero Corp., 262 NLRB 495, 497 fn.
9 (1982).
before the Union withdrew the NLRB charge. Neither
acceded to the position of the other, and the matter was
dropped. I therefore shall dismiss complaint paragraph
8(c).
B. The September 30 Strike
1. Preliminary events
On September 21, Higgins, as chief steward, signed a
grievance (G.C. Exh. 2) protesting the Respondent's fail-
ure to abide by the PSA by assigning excessive work on
the fourth shift to Billy Yawn, Jr. Yawn also signed the
grievance. General Foreman Louis Hawthorne, inscrib-
ing his undated answer on the grievance form, denied
the grievance. Higgins testified that he attended a step 2
meeting regarding the grievance on September 28, pre-
sumably with Cocco, but that no resolution was ob-
tained.
On either September 28 or 29 Higgins learned from
employees that they were contemplating a work stop-
page, or sickout, because of perceived harassment by
certain foremen and because of the fourth-shift work as-
signment dispute resulting from the PSA disagreement.
They asked Higgins if they could be fired. Not knowing
the answer, Higgins telephoned Price and reported the
situation to him. Price told him that under no circum-
stances could the Union condone a walkout or sickout or
sanction it in any fashion, that he did not know whether
they could be fired, but that there was no way Higgins
(or anyone) could bodily stop the employees if they actu-
ally wished to walk out. Higgins relayed to several em-
ployees the answer Price had given him. He testified that
he did not specifically tell them not to leave, nor did he
alert management that a strike was brewing over the un-
resolved problems upsetting the employees. 2
2. The sickout and meeting of September 30
There is no dispute that on Wednesday, September 30,
most of the employees on the first shift of the M & R
department engaged in a sickout. Some called in sick,
while others left "sick" at different times that morning
after reporting to work. As we shall see, on October 27,
1981, the Respondent issued written warnings to 48 em-
ployees for engaging in the sickout.
Around 9:30 a.m., Cocco, through Muscarello, sum-
moned Higgins to the office where, in the presence of
Muscarello, Burke, and Hawthorne, Cocco interrogated
Higgins regarding whether Higgins had organized the
sickout. Higgins, whom I credit, testified that he told
Cocco that he was not at liberty to answer at that time.
After several unsuccessful attempts on that tack, Cocco
switched to the different question of what was the cause
of the walkout. Higgins responded that it concerned the
breach of the PSA and the (supervisory) harassment on
I Under the contractual procedure, step I is with the foreman and
step 2 is with the superintendent. Higgins testified, however, that in prac-
tice the foreman is bypassed and the grievance is presented to the super-
intendent (as step I) Higgins described the presentation to the plant man-
ager as step 2.
12 The collective-bargaining agreement does not contain a no-strike
clause.
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the third and fourth shifts. About that point the group
was informed that Shelton Price and Clarence Bean, as-
sistant business representative, were at the guard
shack. 3 Higgins went to meet Price and Bean.
When Higgins returned to Cocco's office with Price
and Bean the parties discussed the sickout. At the begin-
ning of the plenary meeting Cocco asked Price about the
cause of the sickout. Price stated that, while he did not
know the nature of the problem, it appeared that some
employees "had taken [it] on themselves to perform a
concerted activity." Higgins remarked that the employ-
ees were disgruntled over violations of the PSA and
upset over supervisory harassment at night. Cocco asked
both Price and Higgins if they could intercede and keep
the strike from carrying over into the second and third
shifts. Price said he did not know what he could do
other than talk with the employees, and that the strike
possibly would extend to the other two shifts that day.
Higgins said he thought that it would probably last
through the other two shifts and that there was nothing
he could do at this time to stop it.
From that point the evidence is critical and is highly
disputed. According to Higgins, Cocco asked Higgins
whether the strike was going to continue into other days,
and Higgins answered that it would not "if we could
work something out beneficial to both parties." Higgins
then asked Cocco whether any disciplinary action would
be imposed on the employees engaging in the activity.
Cocco replied that there would be none because he just
wanted to get the problem over with. Both Price and
Higgins testified that Cocco did promise amnesty, al-
though at one point Higgins expressed an inability to
recall whether it was he or Price who asked Cocco
whether there would be any retaliation. Bean did not tes-
tify. Muscarello and Cocco vigorously denied that
Cocco said anything about amnesty.
As counsel for the General Counsel argues, in effect,
Price's and Higgins' version is inherently probable in
view of Cocco's concern that the strike might continue
into succeeding days. To "get the problem over with,"
Cocco allegedly promised amnesty. Although the Re-
spondent issued disciplinary warnings to certain employ-
ees who walked off the job in April 1980, Cocco testified
that as late as the week of October 12, 1981, he was un-
aware that any warnings were issued for the 1980 walk-
out. Unaware of the past precedent, Cocco clearly could
have felt free to avoid an extension of the strike by
promising amnesty.
The asserted promise of amnesty was followed by a
discussion of the underlying problems of the perceived
harassment by Foreman Youngblood and the alleged
breach of the PSA. It was agreed that Cocco would
meet personally with the affected employees on October
7, that no other management or supervisory employees
would be present, that not even Higgins would be
present, and that while the notes would be recorded
about the employees' complaints, but not their names,
there would be no retaliation against the employees who
13 Cocco had telephoned Business Manager Price earlier, advised him
of the sickout, and requested Price to come to the plant.
expressed their dissatisfaction in that meeting. 14 The
sickout did not resume after September 30.
C. Cocco Meets with Employees on October 7
Beginning shortly after 7 a.m. on Wednesday, October
7, Cocco met with about 12 employees from the third
shift in the bakery's conference room. It is undisputed
that he told them that, while he would have to take
notes about their complaints, he would not record their
names, that no action would be taken against them for
what they said, and that he would respond the next day.
The principal complaint expressed during the 2-hour
meeting was that Foreman Charles Youngblood was har-
assing employees by "birddogging" them, summoning
them from the cafeteria, and not going through the lead-
men to issue work orders. Oiler Billy Yawn complained
that he was being given excessive work on the fourth
shift.
After the meeting Cocco organized his notes into cate-
gories and set a meeting with his supervision for the fol-
lowing day at 6 a.m. Cocco testified that he later tore up
the notes he took at the meeting he held on October 7
with the employees.
D. The Followup Meeting on October 8
At his early morning meeting with the third-shift su-
pervision, plus General Foreman Hawthorne and Super-
intendent Burke on October 8, Cocco reported on his
conference the previous day with the third-shift employ-
ees. He gave instructions to the supervisors to work
through the lead people and, apparently, not to harass
employees.
Shortly after 7 a.m. Cocco and several management-
supervisory representatives, including Foreman Young-
blood, met with Price, Higgins, and several employees.
The harassment allegation was discussed in detail, with
Youngblood saying he thought the employees were pos-
sibly harassing him. An employee complained that super-
visors were calling employees uncomplimentary nick-
names. It also was developed that Superintendent Burke
had a practice of preparing 1056s forms (disciplinary
warning forms) and holding them inactive in his desk
drawer to use at some later date. Oiler Yawn complained
of being given work outside the PSA and wanted to
know the status of his grievance on the matter. He was
told the grievance was being processed. Cocco said,
however, that the oiler was expected to do normal rou-
tine maintenance on the fourth shift.
Cocco resolved the complaints, other than the PSA
matter, by instructing Superintendent Burke to destroy
the 1056s he was holding and to cease the practice of
holding back warnings, and by urging everyone to call
each other by their given names and to cease calling
others by nicknames or other uncomplimentary names.
He also possibly said that the supervisors would work
14 The Respondent's witnesses agreed that Cocco promised no retalia-
tion as to his October 7 meeting with employees. Indeed, Nabisco argues
that this promise has been extended in bad faith by the General Counsel's
witnesses to cover the sickout.
1242
NABISCO, INC.
through the leadmen. Cocco stated that the parties were
turning over a new leaf.
Although Higgins testified that he could not recall
Cocco reiterating at this meeting that there would be no
reprisals over the sickout, Price, oiler Billy Yawn, and
pipefitter Thomas Lee Allen testified that Cocco did.
Allen testified that, when Cocco made this remark of no
retribution for the sickout because a "new era" was to
begin, employee Louis Frey, Jr., asked him to repeat his
statement and that Cocco complied, concluding with
"Trust me." Frey did not testify, and Allen admitted that
in his 11-page pretrial affidavit, in which he apparently
covered the October 8 meeting, he did not mention the
no retaliation statement of Cocco. 15
Cocco, Hawthorne, and James Brown, currently a
maintenance foreman but a leadman at the time, denied
that Cocco stated that there would be no reprisals over
the sickout. Indeed, Hawthorne asserted that the sickout
was not even discussed. Hawthorne's assertion conflicts
with the testimony of Allen who testified that the strike
was brought up in order to ascertain the "effects" of the
sickout.
Logic would support a finding that, if Cocco made a
promise of amnesty on September 30, he would reiterate
that amnesty promise at this meeting of October 8. It
must be remembered that Cocco, by his own admission,
was not told until the week of October 12 (apparently
Wednesday, October 14) that warnings had issued for the
April 1980 walkout. Clearly everything Cocco was
doing was directed toward eliminating sources of friction
and starting a "new era" of cooperation. We know that
the employees had expressed concern of possible dis-
charge even before they walked out on September 30,
and proceeded with their job action even in the face of
no reassurance on the issue. Higgins testified that he told
some employees of Cocco's September 30 no discipline
reassurance, but it seems only natural that the employees
would want to hear it directly from Cocco and therefore
asked him what effects the sickout would have.
Without attempting to resolve all credibility aspects
here, I credit Brown's testimony that he never heard any
employees reporting or discussing the promise of amnes-
ty. Brown, it should be noted, participated in the sickout.
One could expect that the no amnesty promise would be
widely disseminated, yet at least one participant, Brown,
did not hear of other employees telling each other about
Cocco's no reprisal position. To a limited extent, this fact
is inconsistent with any requested finding that amnesty
was promised.
E. Cocco's October 14 Approval of Disciplinary
Warnings
Anthony Muscarello, assistant plant manager, testified
that on Friday, October 2, several supervisors, including
Foreman Bill Curb and General Foreman Louis Haw-
thorne, asked him if the strikers were going to be given
'I Counsel for the General Counsel represented that Allen is not
named in the complaint as receiving a warning because he did not partici-
pate in the sickout Allen testified that his concern (attention) was with
other matters when giving his affidavit.
written warnings as were the 1980 strikers. 6 Hawthorne
testimonially confirmed that he made such an inquiry on
October 2.
Muscarello told the foremen that the 1980 precedent
would be followed. That same day he went to Personnel
Manager Michael and asked him to verify the names of
the strike participants and to draft the warnings. He con-
cedes that he said nothing to Cocco on the subject at
that point. Michael's investigation included a review of
the weekly timesheets to ascertain who had clocked out
early that day. He compared and cross-checked this with
a list received from the M & R department of the em-
ployees who had given their foremen reasons for leaving.
Hawthorne testified that he compiled a list of the strikers
at the request of Superintendent Burke.
On Wednesday, October 14, the investigation complet-
ed and the text of the sample 1056 (personnel action
form) typed, Muscarello and Michael went to Cocco to
let him know what they proposed. Cocco asked what
had been done by the previous plant manager the last
time and was told that warnings had issued. Asserting
that the Respondent had to be consistent, Cocco gave
approval for the warnings to issue to those who engaged
in the sickout of September 30. The text of the drafted
warning reads (Resp. Exh. 4):
On 9-30-81 46 M & R department employees re-
ported to their department foreman that they had to
leave work. Although most of the employees who
left gave illness as the reason for having to leave
(several other excuses were also used) investigation
revealed the employees had left work in this
manner as a protest to a job assignment. [Emphasis
supplied.]
You were one of the employees who participated in
this protest and left work prior to the end of your
shift.
You are a member of a union that has a contractual
agreement with the Company. The grievance proce-
dure, as outlined in your contractual agreement
with the Company should be followed. You should
understand that further action of this nature by you
could result in your being disciplined.
The phrase "as a protest to a job assignment" seems
rather clearly to refer to the PSA dispute over the fourth
shift job assignment of the oiler.
Digressing for a moment, we perhaps should note that
there is a slight difference in numbers. The drafted warn-
ing asserts that 46 employees participated. Michael testi-
fied that one other name, that of J. Coffee, subsequently
was discovered, making a total of 47. By trial amend-
ment Coffee's name was added to the list of employees
16 Both Muscarello and Richard R. Michael, personnel manager, testi-
fied that a similar walkout by M & R Department employees occurred on
April 29, 1980, and that the approximately 23 to 26 strikers were issued
written warnings. Michael testified that the warnings actually issued on
May 20, 1980. While no copy of any such warning was offered as an ex-
hibit, both counsel for the General Counsel and the Charging Party rep-
resented that the Respondent had made the records available at trial for
their inspection and that the documents did exist.
1243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
named in complaint paragraph 14 as having received the
warnings on October 27. Coffee's name brought the
paragraph 14 total to 49. The record contains warnings
for 48 employees-for all those in complaint paragraph
14 with the exception of S. Wilson.
Returning now to the drafted notice, the record re-
flects that Michael testified that the drafted language was
modified slightly for the four employees who did not
come to work at all on September 30. The record exhib-
its show these employees to be D. Darnell, J. Farris, A.
Gunter, and J. Wilson. Thus, the drafted language shown
above actually issued on October 27 to 44 employees,
and modified language went to four others.
F. The October 20 Meeting
On Tuesday, October 20, the parties again met in con-
ference to resolve their differences over the PSA and the
consequent fourth-shift problems.1 7 It is undisputed that
after an unspecified time of discussion, but apparently
following a substantial portion of the meeting, the union
people left the conference room for a caucus. On return-
ing, they offered to expand, to a limited extent, the
duties of the oiler on the fourth shift. The Respondent
would not agree to any restriction on the duties of the
oiler. After another short caucus by the Union's side,
Price announced that the Union would proceed to arbi-
tration on the matter. At that point in the evidence, there
is a significant dispute regarding what occurred thereaf-
ter.
According to Cocco, as Price was about to get up and
leave, Cocco told him to wait because there were two
more issues to discuss. First, Cocco complained that the
Union's bulletin board contained a paper reporting wages
of outside contractors and that it did not belong there
because the Respondent had not given permission for the
items to be posted. Price looked at Higgins and asked if
that was correct. Higgins answered affirmatively, stating
that it had been there for some time. Price told him to
remove it. 18
Second, Cocco testified that just prior to the meeting
Muscarello and Michael had given him a copy of the
sample warning, quoted above. Cocco handed the copy
to Price saying:
Mr. Price, I have a 1056 here governing the walk-
out of September 30. I would like you to read it. If
you have any problems with it I would like to
know.
'7 Aside from the immaterial dispute, already noted, on whether the
conference was held on October 19 or 20, the Respondent's witnesses
placed certain portions of this October 20 meeting in another meeting
supposedly held on October 16 to resolve the PSA differences and result-
ing fourth shift problems. The General Counsel's witnesses were unaware
of any meeting on October 16. Once again the discrepancy seems imma-
terial, for it is clear that the General Counsel's witnesses placed the mat-
ters the Respondent ascribes to October 16 as having occurred at the
meeting of October 20. Moreover, as Personnel Manager Michael took
minutes of the October 20 meeting, and as these minutes were not pro-
duced, I draw the inference that such notes would show that these mat-
ters were covered on October 20.
is Art. 24 of the most recent collective-bargaining contract provides
that the Respondent will furnish a bulletin board for the exclusive use of
the Union to post notices of specified union activities. "Other notices
shall be subject to approval by Plant Manager."
As Price and Higgins read the Form-1056, Cocco stated
that it was consistent with the action Nabisco had taken
in the last walkout. Price asked Higgins if that was true,
and the latter replied "yes." Price then handed the 1056
back to Cocco with the words, "Tony, I don't see any-
thing wrong with it." The testimony of Michael, Muscar-
ello, and Hawthorne is substantially the same as Cocco's,
although Hawthorne tended to place some of the discus-
sion of that meeting at the earlier conference of October
8. I also note that no two witnesses named the same
people as attendees at this October 20 conference.
Higgins testified that when Price told Cocco that the
Union had intended to take the PSA dispute to arbitra-
tion, Cocco then said:
Well, I have some bad news for you. We are going
to write everybody up for [the] walkout.
Cocco then referred to the item on the bulletin board
and said that it would have to be removed because it
was antagonistic. Higgins said it had been up for 2 or 3
months and was not intended to be antagonistic. Cocco
reiterated his request and Higgins said he would take it
down.
On cross-examination, Higgins initially stated that
Cocco did not show the union group the drafted 1056,
but added, "Not to the best of my memory. No, sir."
The first time he saw anything like the drafted 1056 was
when the warnings were issued on October 27. Still later
he expressed himself in a more positive vein, saying no
warning notice was shown and, explaining the lack of re-
sponse by the union side to Cocco's "bad news," testi-
fied:
When he told us that everybody was going to be
written up, it is true that basically nothing was said.
The three of us were quite stunned, to say the least.
Price testified essentially as did Higgins, but admitted
that Cocco "possibly" handed him a proposed warning
although he did not remember such an event. He stated
that he could not recall one way or the other whether
Cocco made reference to a prior walkout. He further ad-
mitted that he did not voice his objection to the "bad
news" because "I didn't feel that that was the time to
voice it, due to the prior commitments of Mr. Cocco on
two previous occasions that there would be no write-
ups." When asked why he did not remind Cocco of his
commitment on the two previous occasions, Price testi-
fied rather vaguely that:
I figured the man being in the position that he was
that his knowledge was as attainable as mine and
that he had made those statements and not 1, that he
was going to-there would be no reprisals on those
individuals, so I left it at that. I told Mr. Higgins
later that we would file a grievance on it, which we
did.
Higgins testified that he filed two grievances over the
warning notices. They are phrased in terms that the Re-
spondent violated the absentee program guidelines for
leaving early. However, he included no reference to
1244
NABISCO, INC.
Cocco's promise of amnesty. When asked why not, he
explained that he "could not see any reason" to include
it because he presumed that everyone understood that
the statement had been made.
Called in the rebuttal stage by the General Counsel,
millwright Charles Besselman, who attended the October
20 conference on the Union's side, testified to the same
effect as did Higgins, but expressly denied that Cocco at-
tempted to give a piece of paper to Price, and that he
would have seen it had it happened. Like Higgins, Bes-
selman testified that he was unaware of any walkout by
M & R Department employees in 1980. Indeed, he testi-
fied that he had never heard of it even though he was
working in the M & R Department in the period of
April-May 1980.
G. Analysis and Concluding Findings
1. The amnesty issue
Chief Steward Higgins was a persuasive witness in
many respects, yet on the critical amnesty issue he exhib-
ited a strange lapse in the positive and confident nature
of his testimony. For example, after initially omitting the
topic, he testified that he was uncertain whether it was
he or Price who raised the subject at the September 30
meeting. Although Higgins was positive that Cocco
made the comments of amnesty at the meeting, he can-
didly admitted that he was unable to say, as did Price
and Allen, that Cocco repeated his amnesty promise at
the October 8 meeting. It is true that such candor can
assist in persuading the trier of fact that overall, the wit-
ness is believable. Under all the circumstances of this
case, however, including the evidence on subsequent
events, I am persuaded to credit the Respondent's wit-
nesses on the amnesty issue.
On the critical aspects of the October 20 meeting, Na-
bisco's witnesses simply were more convincing. Higgins
and Price exhibited a lack of certainty on points one
would expect clear recollection. And Price admitted that
Cocco "possibly" tendered a copy of a warning notice.
Then there is the strange absence of outrage, or at least a
protest by the Union's side, when Cocco asked what
would amount to his reneging on a promise of amnesty
in the two grievances Higgins filed over the warning no-
tices. The testimony of the other witnesses has been con-
sidered, but it does not call for a different result.
In short, I credit the Respondent's witnesses over the
General Counsel's on the amnesty issue. I have not over-
looked the fact that to some extent the Respondent's evi-
dence was obtained by leading questions, particularly in
eliciting negatives.' 9
2. The question of an 8(a)(3) violation
The complaint alleges that the October 27 warnings to
the strikers violated Section 8(a)(3) of the Act as well as
Section 8(a)( ). To support the motive allegation, the
'1 While a party is entitled to elicit a negative, he aids the credibility
resolution process by first approaching the subject using the normal step-
by-step nonleading procedure. As the witness, by definition of a negative,
has no knowledge of a nonexistent event, the attorney eventually must
phrase the question in a point-blank leading fashion in order to elicit testi-
mony that the event never occurred.
General Counsel points to the fact that Cocco had ad-
mittedly given approval for the warning on Wednesday,
October 14, yet delayed advising the Union until after
Price announced at the October 20 meeting that the
Union would have to proceed to arbitration on the PSA
dispute. According to this argument, the Respondent
condoned the strike, "deciding to impose discipline only
when it became clear that Respondent would be unable
to compel the Union to adhere to its interpretation of the
Agreement." Coupled with this is evidence that Higgins
was warned, even though he remained most of his shift
to participate in the September 30 meeting, and despite
knowledge by the Respondent that Higgins earlier had
told his foreman that he needed to leave to be present at
the hospital that morning when a biopsy report was due
on whether his mother had cancer. Higgins' foreman had
neither granted nor denied him permission to leave.
While Michael admitted that he learned of this before
Higgins was given his warning, he nevertheless included
Higgins because several employees were giving similar
excuses.
Although the circumstances are suspicious regarding
the warning issued to Higgins, the overall record falls
short of demonstrating that the action as to Higgins was
improperly motivated.
On the issue of whether Nabisco would not have
issued the warnings had the PSA dispute been resolved
to its liking, Cocco testified that such an idea never en-
tered his mind, and Michael testified that he and Cocco
never discussed any such concept. Yet the Respondent's
witnesses did not explain why they did not alert the
Union between October 14 and 20 that warnings would
be issued. Indeed, as counsel for the General Counsel ob-
serve in their brief, a readymade opportunity for such
notice existed when, according to the Respondent's wit-
nesses, the parties met on October 16 in an attempt to re-
solve the PSA dispute. Cocco failed to give such notice
at that meeting.
I find that Cocco was engaging in the practice of
"desk-drawering" a 1056 warning notice-the very same
practice he admittedly instructed Superintendent Burke
to cease doing at the October 8 meeting. I do not credit
Cocco's denial that he never harbored the idea of not is-
suing the warnings if the PSA dispute were resolved fa-
vorably to Nabisco, and I find that Cocco's bad-faith
purpose in "desk-drawering" the 1056 warnings to the
strikers was to await the outcome of the grievance meet-
ings on the PSA dispute. When that outcome resulted in
Price's announced intention to proceed to arbitration,
Cocco dispensed his own "bad news" announcement.
That Cocco may have well employed the phrase "bad
news" does not require that I credit the Price-Higgins-
Besselman version of the disputed portion of the October
20 meeting. Nor does this finding of Cocco's improper
motivation in "desk-drawering" the 1056 warnings
compel a finding that I credit the General Counsel's wit-
nesses on the alleged promise of amnesty by Cocco. The
two are separate concepts, Cocco could be free of the
amnesty tag, yet possess an intent to impose the 1056
penalty if the Union did not come to terms on the PSA
matter. Such an intent is not inconsistent with his view
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the parties turn over a "new leaf." Had the parties
resolved the PSA dispute, I find that Respondent would
not have issued the 1056 warnings.
As I find that the Respondent would not have issued
the warnings if the Union had not declared its intention
to proceed to arbitration of the PSA dispute, it is clear
that Nabisco punished its employees because they,
through their bargaining representative, so elected to
proceed.20 By such action, Respondent violated Section
8(aX3) and (1) of the Act.21
3. The assumption that the strike was unprotected
The Respondent seems to contend that all parties
agree that the September 30 strike was unprotected and
that they argue their respective positions from there. Al-
though counsel for the General Counsel's position is not
fully articulated, it seems clear from the citation of cases
such as Herbert E. Orr Co., 185 NLRB 1002, fn. 2 (1970),
that they in fact contend that the strike was protected,
and that they advance condonation as an argument in the
alternative.
It is plain that the Union did not authorize the strike.
But this is not to say that the Union opposed the strike.
Price, I find, simply wanted to insulate the Union from
any possible monetary liability (or even the threat of a
damage suit) flowing from a strike the Union had not
recommended.
At page 29 of its brief the Respondent argues:
The Union was in a very sensitive situation in
which its own members had circumvented its proc-
ess by engaging in an unauthorized walkout. The
Union was no doubt conscious of the potential for
discipline as well as the threat to its own status.
Such language hints at the Emporium concept. 2 2 But
that argument is misplaced. The strikers here were not
acting in derogation of the Union. Indeed, Chief Steward
Higgins had sought in August to channel the employees'
concern over supervisory harassment through the griev-
ance procedure, and on September 21 he filed a griev-
ance over the PSA dispute. So far as the actual warnings
indicated, the Respondent issued the 1056 notices be-
cause it considered the strike as a "job assignment" pro-
test-an obvious reference to the PSA dispute over the
fourth-shift job assignments to the oiler. At least in the
Respondent's written estimation, the strike was in sup-
port of the grievance already being processed by the
Union. Accordingly, I find the Emporium rule to be in-
apposite.
a0 In fn. 26, p. 39, of its brief, the Respondent asserts that the com-
plaint contains no 8(aX3) allegation. Although the complaint does not
contain the traditional motivation allegation, par. 17 of the complaint
does allege that the Respondent violated "Section 8(aX3) and (1) . .. of
the Act" by issuing the warnings of October 27, 1981.
" Par. 15 of the complaint, in conjunction with par. 13, alleges that
the Respondent violated Sec. 8(aXI) of the Act by its October 20 an-
nouncement. The allegation, being cumulative, does not affect the
remedy herein.
s" The Emporium, 192 NLRB 173 (1971), affd. 420 U.S. 50 (1975).
There the actions of employees were held unprotected because they were
acting in derogation of their collective-bargaining representative.
As the contract does not contain a no-strike clause,23
the strike here cannot be deemed unprotected on that
basis. Because the strike had no unlawful ends, it cannot
be considered unprotected in that light.
Nor can it be said that the strikers utilized an unlawful
means for their strike. That is, there was no sitdown and
clearly there was no plan for the strike to be of the un-
protected partial or intermittent variety. And Price testi-
fied that to his knowledge the strikers adhered to Nabis-
co's procedures that employees are to follow in leaving
work early. The Respondent offered no evidence to con-
tradict Price's testimony on the matter.
In light of the foregoing, I find that the strike, rather
than being unprotected, was a protected concerted activ-
ity. It therefore follows that Nabisco, irrespective of its
motivation, violated Section 8(a)(1) of the Act by issuing
the disciplinary warnings to 48 employees on October
27, 1981, and that the Respondent must now rescind such
warnings and expunge them from the personnel records
of the affected employees.
CONCLUSIONS OF LAW
1. The Repsondent is an employer engaged in com-
merce within the meaning of Section 2(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.
3. The Respondent has violated Section 8(aXl) of the
Act by interrogating an employee concerning his filing
of a charge with the Board rather than proceeding under
the contractual grievance procedure, and in coercing
such employee by telling him not to go to the Board but
to file all complaints under the contractual grievance
procedure, and has violated Section 8(a)(1) and (3) of the
Act by issuing warnings to employees on October 27,
1981.
4. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
5. The Respondent did not otherwise violate Section
8(a)(1) of the Act and did not violate Section 8(a)(4) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in the
unfair labor practices set forth above, I shall recommend
that it be ordered to cease and desist therefrom, to take
affirmative action designed to effectuate the policies of
the Act, and to post signed and dated copies of an appro-
priate notice to employees.
In view of the foregoing, I shall recommend that the
Respondent be ordered to expunge the October 27, 1981,
warning notices from the personnel records of the 48
employees, and to notify each in writing that it has done
so. If it be determined in the compliance stage that S.
Wilson, or others, received such warning notice also, he
and they shall be deemed as included within the Order.
[Recommended Order omitted from publication.]
"3 Price so testified, and I find none in the contract.
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