Pioneer Fishing Corp.

National Labor Relations Board - Board Decisions

Feb 21, 1980

247 N.L.R.B. 1299 (N.L.R.B. 1980)

PIONEER FINISHING CORPORATION
Pioneer Finishing Corporation and Kenneth Pacheco,
Richard M. Drolet, and John Moniz.Cases 1-CA-
14495-1, 1-CA-14495-2, and 1-CA-14526
February 21, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On June 6, 1979, Administrative Law Judge Ber-
nard Ries issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, General Counsel filed cross-excep-
tions and a brief in support thereof and in partial
support of the Administrative Law Judge's Decision,
and Charging Party filed a brief in opposition to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, to
modify his remedy,2 and to adopt his recommended
Order, as modified herein.'
The General Counsel excepted to the Administra-
tive Law Judge's failure to find that a remark made to
employee Cummings by Supervisor Kitchen violated
Section 8(a)(1) of the Act. We find merit in this
exception.
Cummings and employee Rapoza had distributed a
leaflet, as had Pacheco. As found by the Administra-
tive Law Judge, Respondent's suspension and later
discharge of Pacheco for engaging in this protected
activity was unlawful. Following Pacheco's suspension
and prior to his discharge, Kitchen told Cummings
that he had "better go to a lot of novenas, because if
Pacheco-pending further investigation, if Pacheco
went, me and Dave Rapoza would be next."
We disagree with the Administrative Law Judge
that such a remark was not coercive because, follow-
ing Pacheco's discharge, no punishment was inflicted
on Cummings or Rapoza. Rather, we find that
Kitchen's remark constituted a clear threat of dis-
' Respondent 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 respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products,. Inc., 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.
See Isis Plumbing d Heaing Coa. 138 NLRB 716 (1962), for rationale on
interest payments.
'In light of our Decision in Hicknott oods. Inc., 242 NLRB 1357 (1979).
247 NLRB No. 182
charge for engaging in protected activity, and was in
violation of Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
herein, and hereby orders that the Respondent,
Pioneer Finishing Corporation, Fall River, Massachu-
setts, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
I. Delete paragraph l(b) and add the following as
paragraphs l(b) and (c):
"(b) Threatening employees with discharge for
engaging in activities protected by Section 7 of the
Act.
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed in Section 7 of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer Kenneth Pacheco, Richard Drolet, and
John Moniz immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges
previously enjoyed."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER TRUESDALE, concurring in part and dissent-
ing in part:
Like my colleagues, I would affirm that portion of
the Administrative Law Judge's Decision which de-
clines to defer to the arbitration award concerning
employee Pacheco and finds that Pacheco's discharge
for engaging in protected concerted activity violated
Section 8(a)(3) and (1) of the Act.' I also join in my
colleagues' finding that Respondent violated Section
8(a)(l) of the Act when employees Cummings and
Rapoza were threatened with discharge for their
participation in protected concerted activity.
However, I dissent from my colleagues' adoption of
the Administrative Law Judge's findings with respect
to employees Drolet and Moniz. In my view, since
there is insufficient evidence that Respondent knew of
which issued after the Administrative Law Judge's Decision in this case. we
will substitute "In any like or related manner" for "in any other manner" il
par. I(b) of the recommended Order and will correct the notice accordingly.
' In view of the Administrative Law Judge's finding. with which I agree.
that Pacheco was engaged in protected activity when he distributed certain
leaflets, I find it unnecessary to consider whether, as a union official. Pacheco
had a higher duty to uphold the contract, as asserted by Respondent. Such an
inquiry is relevant only where an employee is engaged in unprotected activity.
See my dissent in Gould Corporation. 237 NLRB 881 (1978)
1299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either employee's protected concerted activity, the
General Counsel has not established a key element of
his prima facie case. While the inconsistencies in
Respondent's defense are cause for suspicion, the
absence of an element of the General Counsel's case
makes it unnecessary for Respondent affirmatively to
rebut the evidence presented by the General Counsel.
Accordingly, inasmuch as the General Counsel has
not sustained his burden of proof as to this aspect of
the case, I would dismiss the complaint allegations
concerning the discharge of employees Drolet and
Moniz.
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 parties had the opportuni-
ty to present evidence, it has been decided that we
violated the Act. We have been ordered to post this
notice. We intend to carry out the Order of the Board
and abide by the following:
The National Labor Relations Act, as amended,
gives all employees the following rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT fire or otherwise discipline any
employee for engaging in concerted activities
protected by Section 7 of the Act, and WE WILL
NOT fire or otherwise discipline employees to
discourage union activity.
WE WILL NOT threaten to discharge employees
for engaging in concerted activities protected by
Section 7 of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in Section 7
of the Act.
WE WILL offer to take Kenneth Pacheco,
Richard Drolet, and John Moniz back at their old
jobs or, if those jobs no longer exist, substantially
similar jobs, without prejudice to their seniority
or any other rights or privileges previously
enjoyed, and WE WILL pay them for any wages
lost, with interest, during the period of their
discharges.
PIONEER FINISHING CORPORATION
DECISION
BERNARD RIES, Administrative Law Judge: These conso-
lidated cases were heard on December 4-6, 1978, in Boston,
Massachusetts, and on January 29-30, 1979, in Fall River,
Massachusetts. Presented for resolution are allegations that
Respondent violated Section 8(a)(3) and (1) of the Act by
discharging Kenneth Pacheco on May 5, 1978, Richard
Drolet on May 12. 1978. and John Moniz on May 17, 1978,
and that Respondent violated Section 8(a) (1) by statements
made to employees in February, March, and May 1978.'
For the reasons given below, and based on my recollection
of the witnesses, my study of the record, and consideration
of the briefs filed by all parties, I reach the following findings
and conclusions.2
I. THEI I)ISCHARGE OF KENNETH PACHECO
Respondent operates a textile dyeing and finishing busi-
ness in Fall River, Massachusetts. where it employs about
140 workers. It has recognized the Union as the bargaining
representative of its production and maintenance employees
since around 1955.
In late 1977 the parties bargained for a collective contract
to replace the one then expiring. Agreement-or at least
ostensible agreement-was reached in November, and the
new wage rates, together with other increased benefits,
became operative at that time. However, not until around
April 1978 was the contract finally put into written form by
Henry D. Marzilli, Respondent's labor relations representa-
tive, who had undertaken to perform that task.
Employee Kenneth Pacheco, who had begun employment
in 1973, was elected shop chairman of the Union at
Respondent's plant in May 1977, and he participated in the
negotiations in the fall of that year. When Pacheco saw the
contract prepared by Marzilli, he noted that it omitted
provision for a health and safety committee which, Pacheco
thought, had been agreed to by the parties.
Pacheco spoke to the Union's general manager, Kenneth
Dufault, about the omission. Since Dufault had only
recently assumed his position, and was not familiar with the
1977 negotiations, he consulted Respondent's representa-
tives. The latter ultimately took the position that there had
been no agreement to include the health and safety clause
and told Dufault that the Company had only agreed
informally to establish a safety committee on a trial basis.
Although the timing of Dufault's actions is not clear from
the record, at some point he spoke to the other union
negotiators and concluded that, as he testified, Respondent
had not agreed to inclusion of the clause.
It would seem that Dufault (who testified under subpena
by Respondent) had not reached the foregoing conclusion by
early May, the significant time period here, since, at
' The pleadings establish the appropriateness of the assertion of jurisdiction
by the Board in this case: they also authorize a conclusion that the Union
involved here. Local 1057. Textile Workers Union of America. AFL-CIO, is a
labor organization within the meaning of the Act.
Certain errors in the transcript are hereby noted and corrected.
1I(x)
PIONEER FINISHING CORPORATION
Pacheco's urging, Dufault scheduled a membership meeting
for Sunday, May 7. Dufault testified that the purpose of the
meeting was "[t]o discuss taking action" with regard to the
clause, and further stated that, as of May 7, the question
whether the clause was to be included in the contract "was a
matter of dispute as far as [he] was concerned."
Respondent operates on three shifts, although not all
departments maintain a three-shift schedule. Pacheco regu-
larly worked the first shift, from 7 a.m. to 3 p.m. On May 2,
he decided to distribute to employees on the second shift a
leaflet pertaining to the health and safety issue. The leaflet
had been drafted by two or three other employees, with
Pacheco's consultation, but his was the only name shown on
the document, with the title "Shop Chairman" appearing
below his name.
Pacheco entered the plant at or about 7 p.m. and first
sought out George Cummings, a shop steward who had
helped prepare the leaflet and who was then performing
some overtime work. Pacheco asked Cummings if the latter
wished to accompany him in distributing the leaflets;
Cummings accepted the invitation.
The two went to a location on the first floor of one of
Respondent's several conjoined buildings. Pacheco and
Cummings testified that they entered the office of David
Querim, the foreman in that location, showed Querim the
leaflet, and received permission, tacit or otherwise, to pass
out the leaflets. 3 Querim testified that no permission was
asked. He said that he saw Pacheco (alone) enter the
department and hand out a few leaflets before coming to his
office. Pacheco then entered the office and, handing him a
leaflet, asked what Querim thought; Querim replied, "It
seems to be pretty good." Pacheco then left the office and
passed out leaflets to the remaining employees in the
department.
Pacheco and Cummings testified that they proceeded to
the fourth floor of an adjoining building where William
Querim, David's father, was the foreman on duty. Pacheco
and Cummings said that Pacheco handed Querim a leaflet;
the latter jokingly asked, "Ken, you causing trouble again?";
and Pacheco proceeded to hand out the leaflets to employees
in that location. William Querim could recollect little about
the incident: he "might have said something" to Pacheco,
and Pacheco "probably" said something to him, but he did
not remember; and he did not "recall" seeing Cummings.
The distribution of leaflets on each of the two floors took
no more than 10-15 minutes.
On May 5, Respondent's President Thomas Melucci
handed Pacheco a letter announcing the Pacheco's suspen-
sion pending review. The letter assigns several reasons for
the suspension. Point I states that Pacheco distributed the
letter without "prior clearance with management," and then
refers to a provision in the bargaining agreement establishing
the Union's right to post "official notices" on bulletin
boards; this provision does not in fact, require "prior
clearance with management."' After emphasizing that the
' The versions of the two employees differed. Pacheco said that, when
Querim read the leaflet, he said that he agreed with it "100 percent," after
which Pacheco told Querim that the two were going to hand the leaflets out to
the employees" and [Querim] nodded in the affirmative"; Pacheco assertedly
further asked and received permission for Cummings to accompany him to
the fourth floor for additional distribution when they had finished distributing
on the first floor. Cummings testified that Pacheco handed Querim the leaflet
contract provision restricts the publication of official no-
tices" to posting on bulletin boards, and noting that Pacheco
is a union official, this point ends with a statement
contradicting the implications of the preceding comments:
"Also, we have no indication that this circular is an official
notice of the Union."
Point 2 of the letter asserts a violation of the "purpose and
scope" clause of the bargaining contract, which recites
several general objectives of the agreement, including "to
maintain a harmonious relationship between the Union and
the Company." The letter contends that the circular "does
not contribute to this harmonious relationship and contains
libelous, misleading, false and inflammatory statements."
The basis for this claim is then specified in detail, as
discussed infra.
This seems an appropriate juncture at which to describe
the leaflet, which is attached as "Appendix A" hereto.
[Appendix A omitted from publication.] Titled "Fight For
Safety Now . . . Before It's Too Late," the leaflet first
asserts that Respondent's plant "is a dangerous place to
work," as "we Pioneer workers know who face these dangers
day in and day out." It then states:
In 1977 alone, there were 28 serious accidents resulting
in 2,248 hours of lost time and wages! Which of us will
be victims of these crippling accidents in 1978? How
many of us risk accidents daily because of holes in the
floor, falling lights, defective trucks and machinery,
etc.? Only an effective Health & Safety Committee can
ensure a safer future for us all.
The circular goes on to state that the Union thought it had
won the safety clause during the negotiations, but that now
Respondent's owners were refusing to sign the agreement
unless they could delete the clause from the contract and
substitute a trial period for the safety committee. The leaflet
charges that management wanted to forestall an effective
committee because "forcing the company to fix the hazards
affecting you and I is bound to cost them money," and
because "the company is especially afraid of having to
interrupt production in order to make these necessary
repairs." The circular then claims that management desired
to "control" the proposed trial committee by itself choosing
the union members to be appointed.
Finally, under the heading "What Must We Do To Force
The Company To Back Down," four courses of action are
indicated: attendance at the May 7 meeting "to reject this
proposal"; encouraging fellow workers to attend the meet-
ing; notifying union representatives of employee displeasure
with the "unsafe working conditions" and of employee
desire to have "the company proposal rejected"; and
reporting to Pacheco any health and safety problems in the
departments.
In his May 5 letter, Melucci found objectionable the
reference to "28 serious accidents," which he labeled "false,"
pointing out that, of the 28 accidents logged in 1977, 19
and asked "permission to pass it out"; when Querim had looked at it for a few
seconds, he said "Yeah. Okay." After this, Cummings asked Querim "[C] an I
go with [Pacheco]?," and Querim said "Sure."
' The clause reads: "Bulletin Boards: The Employer agrees to provide space
on its bulletin board for the posting of official notices relating to Union
meetings and other Union affairs."
1301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involved no lost worktime, 5 involved 1-6 days of lost time,
and only 4 involved more than 7 days of lost time. He
further took offense at the use of the adjective "crippling,"
noting that "[o]f the 4 accidents involving a long period of
lost time, only I employee is still out." The letter then
branded as "libelous" the claim that an effective committee
would force the Company to fix hazards and would cost the
company money, pointing out that Respondent engages a
safety engineer to make monthly inspections and that "the
company's policy is to eliminate hazards whereever they
exist without regard to cost."
The letter thereafter characterized as "false" the assertion
that Respondent did not intend to live up to commitments
made during contract negotiations. Finally, the letter closed
by setting out Respondent's "contention that our contract
was legally in force an [sic] effect as of the time of
completion of negotiations and ratification by the members
and that this inflammatory circular is being used to incite
workers to possible illegal acts or actions."
The Union's efforts after May 5 to restore Pacheco to
employment were unavailing, and he was discharged on May
11. Subsequently, the Union took Pacheco's case to arbitra-
tion, and the Respondent prevailed before the arbitrator, a
disposition which, Respondent here contends, should put to
rest Pacheco's claim in this proceeding. That contention will
be addressed infra.
As set out above, the principal reasons given for the
discharge of Pacheco were that he had violated the bargain-
ing agreement in several identified respects, relating to the
fact or manner of distribution of the leaflets and to their
content.
It is obvious that the bulletin board clause to which the
letter refers had no application to Pacheco's activity, and he
could therefore not rationally be thought to have "violated"
that provision. If a liberal construction be given to the claim
of "violation," it might amount to an argument that the
Union, by contract, waived all Section 7 distribution and
solicitation rights of employees aside from those expressly
preserved in the agreement. The Board, however, in a broad
reading of N.L.R.B. v. Magnavox Co.. 416 U.S. 952 (1974),
has held that a union is not empowered to make a waiver of
any such rights. Ford Motor Company, 221 NLRB 663, 665
(1975).
For purposes of considering all arguments, however, and
because questions pertaining to the vitality of the bargaining
agreement and its contents are raised at more than one point
in the case, I shall discuss whether the bargaining agreement
was actually in effect on May 5 and 12, 1978. That issue was
litigated only rather allusively. Pacheco was obviously of the
opinion that any contract which did not contain the safety
committee provision did not reflect the agreement of the
parties. President Melucci, on the other hand, testified that
the negotiators had decided "to try the Health and Safety
Committee for a year, that it would not be included in the
contract." Union General Manager Dufault appeared to
have reached a similar conclusion as to the status of the
' The signature blocks do not disclose the dates of signing.
' This provision reads:
A representative or representatives of the Union shall have access to the
plants of the Employer for the purpose of adjusting grievances,
negotiating the settlement of disputes, investigating working conditions
clause after consulting other union representatives, although
he was not in a position to present any direct testimony on
the question.
The evidence indicates that a contractual wage increase
and other new benefits were put into effect in November
1977; on the other hand, Dufault testified to certain changes
in the typed agreement to which Respondent's negotiators
acceded before the contract was finally signed. Furthermore,
the January 8, 1978, minutes of the Union's joint board, put
into evidence by Respondent, state that the union general
manager reported that the Pioneer contract had been ratified
and "that the formality of actually signing the contract [
would be done after final details were worked out on them as
is per our usual practice." That signing took place, accord-
ing to Dufault, some time in August or September 1978.
While Melucci initially testified that he probably signed the
agreement in the first 3 months of 1978,' he later said it was
"possible" that he had not signed as of May. The contract
contains signature spaces for the Union, the Respondent,
and the "Negotiating Committee"; only the first two blocks
were signed as of the time of the hearing.
These sparse facts leave room for debate whether the
agreement was operative as of May 1978. Even if Melucci
were to be credited in his testimony that the safety clause
had been shelved, the question remains essentially unlitigat-
ed whether the parties understood that the contract was to
take complete effect in the absence of a written agreement.
The fact that increased benefits were given in November
suggests that there was to be no such delay; the fact that
there were matters other than the safety clause which had to
be further negotiated suggests that the parties might have
held a contrary view.
Assuming the effectiveness of the agreement, however, it
provides no warrant for the actions assertedly taken in its
name. Confining discussion now to the face of Melucci's
May 5 letter, the "bulletin board" clause relied upon plainly
does not, as previously stated, prohibit Pacheco from passing
out leaflets. Not only does the clause not refer to "prior
clearance with management," as Melucci's letter seems to
indicate, but it has nothing to do with distribution of
unofficial literature, and Melucci testified that his predis-
charge investigation disclosed that the leaflet was "not an
official notice from the Union."
The only other provision of the agreement which possibly
relates to Pacheco's activity is one called "Access to
Premises."' While Melucci did not cite this clause in his May
5 letter, it may be Respondent's position that this clause,
together with the "bulletin board" provision, implicitly
constituted a concession by the Union that, outside of these
privileges expressly enumerated in the contract, the Union
agreed to waive any other rights pertaining to solicitation,
access, or distribution which might be afforded employees by
Section 7 of the Act.
As previously stated, the Board has held that unions are
unauthorized to make such waivers. Furthermore, the cases
make clear that a union will not be held to have surrendered
and generally for the purpose of carrying into effect the provisions and
aims of this agreement. He shall make an appointment in advance for
such visits. In any event the representative of the Union shall on arrival
at the plant clear through the regular channels of the Employer for
receiving visitors and may be accompanied by a representative of the
Employer on any visit into the plant.
1302
PIONEER FINISHING CORPORATION
the statutory rights of employees in the absence of "a clear
and unmistakable showing of a waiver of such rights," Tide
Water Associated Oil Company, 85 NLRB 1096, 1098
(1949). There is no evidence that the negotiators discussed
any such waiver; the contract itself, which contains no
"zipper" or management rights clauses, does not refer to a
waiver of stautory rights; and, by the standard enunciated
above, there can be no merit in a claim of waiver grounded
on the mere existence of the bulletin board and union access
clauses. Thus, even assuming the vitality of the contract in
May 1978, there is no basis for asserting the primacy of the
contract over the right to engage in Section 7 activity.
The protection given by Section 7 to employees who
"engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection"
implies the right to communicate with fellow employees
concerning their common working conditions. A body of
regulatory principles has evolved over the years; as pre-
scribed by the Board in Stoddard-Quirk Manufacturing Co.,
138 NLRB 615 (1962), an employer may publish an enforce
presumptively valid rules forbidding employees from engag-
ing in union solicitation during working time (but not,
ordinarily, during nonworking time) and from engaging in
distribution of literature during working time and in
working areas of the plant (but not, ordinarily, during
nonworking time and in nonworking areas).
The distribution by Pacheco on May 2 was the sort of
conduct as to which an employer could promulgate a
presumptively valid restriction. Pacheco passed out the
leaflets both on the working time of the recipients (although
not his own) and in working areas of the plant. The fact is,
however, that there was no rule in effect barring such
activity. As found above, the contract did not, and perhaps
could not, amount to a waiver of the right to engage in
solicitation and distribution. The record shows that Respon-
dent has never issued written or oral rules prohibiting
solicitation or distribution. While Melucci testified that he
had repeatedly cautioned Pacheco about not entering areas
of the plant other than his own without obtaining permis-
sion, "the gist" of these admonitions was, as Melucci
testified, that Pacheco was to "seek permission of his
foreman before he leaves his job to seek out union matters."
In the present case, of course, Pacheco was not "leav[ing] his
job" in distributing the leaflets on May 2.
The Board has taken an expansive view of the right of
employees to engage in concerted activities in the absence of
a clear rule tailored to the contours of the law. Thus, in
Daylin Inc.. Discount Division d/b/a Miller's Discount Dept.
Stores 198 NLRB 281 (1972), enfd. 496 F.2d484 (6th Cir.
1974), two employees were discharged for "admittedly
soliciting union support during working time." Because the
no-solicitation rule invoked by the employer was overbroad,
however, the Board held that the discharges pursuant to it
were unlawful, and announced the following doctrine (198
NLRB at 281):
' Although the leafletted employees probably stopped to read the I-page
broadside given them on May 2, testimony by Supervisor William Powell
indicates that such breaks are accepted: [Olff and on during the day, I see
two or three talking, yes, for maybe two or three minutes. and then they are
gone." The record also contains testimony by employee Thomas Vining, only
vaguely denied, that prior to May 2, and in the presence of supervisors, certain
religious organizations sold candy, and Girl Scouts sold cookies. to employees
The Chairman's view appears to be that, because the
employer may in a presumptively valid way limit
solicitation, there can be no interference with employ-
ees' rights by discharging them for soliciting on work-
time. The correct view, however, is that any prohibition
of solicitation, by rule or discipline, interferes with
employee rights, and that such interference must-in
the absence of a valid rule-be supported by an
affirmative showing of impairment of production.
No showing of impairment of production was made in this
case (and, indeed, Melucci's May 5 letter did not rely on any
such impairment). Nor can I perceive any basis for distin-
guishing between simply solicitation by one employee of
another while both are on working time, as in Daylin, and
the dissemination of literature by an off-duty employee to
working employees, as in this case; the Daylin analysis
would seem to apply with equal force to distribution in work
areas where no presumptively valid plant rule forbids it.
The record, indeed, strongly negates any employer con-
cern with the distribution of literature in work areas on
working time, and, in point of fact, reflects a tolerance of
such behavior. Pacheco testified that on a number of
occasions between December 1974 and July 1977, he had,
while off duty, and with the knowledge of supervisors,
passed out to working employees literature pertaining to
intramural union affairs. Although Pacheco testified that he
had not secured permission to engage in such distribution,
Melucci stated that Pacheco had asked for approval in 1974
and 1976 to hand out election materials, and that such
approval had been granted. Melucci said that he had also
granted permission for such distribution to other union
officials who wanted to hand out election materials and
further stated, "It's always been the past practice of the
Company to grant permission when asked to hand out
leaflets . . ."
The question of whether or not Pacheco had previously
requested permission for such distribution is irrelevant to the
issue under discussion, although I would be inclined to
credit Pacheco in this regard. What is of interest here
(although, in the absence of a valid rule barring distribution,
it is not material) is that Respondent's prior policy of
allowing intraunion materials to be distributed by off-duty
employees and nonemployees to working employees evi-
denced a lack of concern on Respondent's part that such
dissemination might have any disruptive effect on produc-
tion.'
It next seems appropriate to consider whether Pacheco's
off-duty status is a pertinent factor here. In GTE Lenkurt.
Incorporated, 204 NLRB 921, 922 (1973), the Board (then-
Member Fanning and Member Jenkins dissenting) held that
where an employer promulgates a no-access rule which is
"nondiscriminatory, i.e., it denies off-duty employees access
to the premises and is not disparately applied against union
activities, it is presumptively valid absent a showing that no
adequate alternative means of communication are avail-
engaged in work. Robert Pacheco. unrelated to Kenneth. testified that.
although a nonemployee, he had accompanied Kenneth through the plant
handing out literature several times, being introduced to foremen along the
way, and on one occasion, went through the plant passing out leaflets by
himself, without hindrance. Although this testimony is not easily subject to
refutation. Robert Pacheco was an impressive witness.
1303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able." In the present case, Respondent has not maintained
any "no-access" rule pertaining to off-duty employees, and
in fact has permitted them, as well as nonemployees, to enter
the premises and engage in distribution to working employ-
ees. The Board's appraisal in Lenkurt that an off-duty
employee's "status is more nearly analogous to that of a
nonemployee, and he is subject to the principles applicable
to nonemployees" seems intended to be operative only when
an employer has established a rule barring off-duty employ-
ees from entering the premises ("whether, notwithstanding
an employer rule to the contrary, [an employee] has a right to
enter or remain on an employer's premises if he wishes to do
so for this purpose"). 204 NLRB at 921. [Emphasis
supplied.]"
I conclude, accordingly, that insofar as Pacheco's dis-
charge was based on the manner in which he distributed the
leaflets, that discipline constituted an abridgement of his
Section 7 rights.
It seems debatable whether it is necessary to consider the
protected nature of the content of the May 2 leaflet. Since
Pacheco was terminated in part, as Melucci's letter states,
because he made the distribution at a time and in a manner
which Section 7 safeguards, it may be argued that such
partial causation suffices to make out a violation.' However,
since the claim that the leaflet "contains libelous, mislead-
ing, false and inflammatory statements" may relate to the
proper remedy as well as to the question of a substantive
violation, and since it seems most improbable that the
discharge would have occurred had it not been for the
wording of the leaflet, as counsel for the General Counsel
convincingly argues, further analysis is in order.
In El Mundo Broadcasting Corporation, 108 NLRB 1270,
1278-79 (1954), the Board held that inaccurate and defama-
tory statements uttered in the course of otherwise protected
activity cause that activity to forfeit the protection of the Act
only if the remarks are "deliberately or maliciously false."
Accord: Walls Manufacturing Company, Inc., 137 NLRB
1317, 1319 (1962), enfd. 321 F.2d 753 (D.C. Cir. 1963);
Owens-Corning Fiberglas Corporation, 172 NLRB 148, 155
(1968), enfd. 407 F.2d 1357 (4th Cir. 1969). In Linn v.
United Plant Guard Workers of America, Local 114, 383
U.S. 53, 62 (1966), the Supreme Court held the following
language to be an appropriate standard in a labor dispute
(there, in the context of a libel suit): "[T]he most repulsive
speech enjoys immunity provided it falls short of a deliberate
or reckless untruth."
Melucci's May 5 letter took umbrage at four passages in
the May 2 leaflet. As will be recalled, the leaflet stated, "In
1977 alone, there were 28 serious accidents resulting in 2,248
hours of lost time and wages! Which of us will be victims of
these crippling accidents in 1978?" Employee Richard
Drolet testified that the cited figures were taken by him from
a posted notice summarizing injuries and illnesses for 1977."'
which is in evidence, does not characterize the 28 occupa-
' Even if one could assume that there was an ad hoc "rule" in existence,
arising out of Melucci's claim that he had always granted permission for
incursions by off-duty employees, the Board would consider a rule of such
narrow reach to be invalid. M Restaurants. Incorporated. d/b/a The
Mandarin. 221 NLRB 264 (1975); Barney's Club, Incorporated. 227 NLRB
414 (1976).
'' "It follows, therefore, that since the arbitrator found that Richardson was
partially discharged for writing and distributing the handbill, the effect of his
tional injuries as "serious" or otherwise; the only breakdown
is by classifications of "deaths" (0), "total lost workday
cases" (9)," cases involving days away from work" (9),
"days away from work" (281), "days of restricted work
activity" (0), and "nonfatal cases without lost workdays"
(19).
Melucci's May 5 letter offers an analysis as to why the 28
accidents should not be considered "serious." Evidence on
the issue was presented at the hearing only in the form of a
more detailed record kept by Respondent for the Occupa-
tional Safety and Health Administration. That document
shows that 9 of the 28 accidents recorded in 1977 caused the
following loss of workdays: a back injury--210 days; a head
injury-2 days; an internal injury-9 days; a swollen knee
and ankle-2 days; a cut finger-6 days; a back injury-3
days; a strained back muscle-5 days; a pulled muscle-43
days; and a back injury-I day."
I myself would not objectively classify these 28 accidents
as "serious." Whether an employee working at the plant
could justifiably do so is another question. Similarly, would
not consider most of these accidents to have been "crip-
pling," in the common acceptation of that word; but,
assuming that the word "crippling" was intended to embrace
all 28 accidents (as to which there is room for argument), I
cannot conceive that Pacheco intended the recipients of the
leaflets to take literally-nor do I believe that they did-that
28 employees had been "crippled" in 1977. Obviously, if that
many employees in a unit of 140 had been "crippled," the
others would have been aware of this catastrophe in their
ranks; Melucci agreed at the hearing that the employees
themselves "would know whether or not" Pioneer was a
dangerous place to work, although he then argued that a
statement by the shop chairman would be influential.
It seems to me, in short, that the remarks about the nature
of the 28 injuries were not objectively factual and were not
intended to be taken as "representations of fact"; they were,
rather, mere "rhetorical hyperbole," Old Dominion Branch
No. 496, National Association of Letter Carriers, AFL-CIO v.
Austin, 418 U.S. 264, 284, 286 (1974), understood to be so by
the readers of the leaflet. Compare Great Lakes Steel,
Division of National Steel Corporation, 236 NLRB 1033
(1978), whee the leaflet in question several times accused
the company of "murder"; and Greenbelt Cooperative
Publishing Assn. Inc. v. Bresler, 398 U.S. 6, 14 (1970).
Pacheco, an employee of 5 years' tenure, had the right, I
think, to consider each accident a "serious" one; the
difference between a burn which causes loss of 1 day's work
and one which results in permanent disability may be
nothing more than one second in time or a fortunate reflex.
While every accident was not a "crippling" one, Pacheco
both knew that and further knew that the other employees
shared his knowledge. Pacheco was surely no fanatic,'
2 but
he was, as clearly, vitally interested in an important
condition of employment. The zealous and dramatic expres-
findings is to uphold a discharge for engaging in protected activities." Pincus
Brothers. Inc.-Maxwell. 237 NLRB 1063 (1978)
"' The hours of lost time were computed by multiplying the number of lost
days by 8 hours.
" The other injuries, which sound potentially harmful (e.g., "chemical
burn," "sprained ankle," "back strain"), caused no loss of workdays.
': Fanaticism consists according to Santayana, of "redoubling your efforts
when you have forgotten your aim." "The Life of Reason," vol. I.
1304
PIONEER FINISHING CORPORATION
sion of his concern does not deprive him of the Act's
protection. "
The suspension letters also complained of the following
passage from the leaflet: "After all, an effective Health &
Safety Committee forcing the company to fix the hazards
affecting you and I is bound to cost them money." Although
Melucci's letter states that Respondent has monthly safety
inspections by its insurance company and complies with all
recommendations, there was no testimony on this point.
Some evidence that this alleged system is not impeccable is
found in citations issued by OSHA against Respondent in
August 1978, one finding "serious" violations of regulations
at 10 places in the plant, and the other listing a total of more
than 40 "other" violations." The assertion in the leaflet that
Respondent's fear of increasing costs lay behind its opposi-
tion to a safety committee is part of the traditional stuff of
labor disputes. Compare, again, Great Lakes Steel. supra,
where similar rhetoric was employed: "This is murder to
save profit"; "Safety, not profits, first!"
Finally, Melucci's letter objected to the underlying claim
in the leaflet that Respondent did not "intend to live up to
commitments made during contract negotiations," and
further asserted that "our contract was legally in force an
[sic] effect as of the time of completion of negotiations and
ratification by the members and that this inflammatory
circular is being used to incite workers to possible illegal acts
or actions."
The first issue subsumed in these two statements is
whether the leaflet misrepresented the results of the negotia-
tions. Pacheco testified that there was agreement "in
principle" upon the establishment of a safety committee,
with the language to be worked out, and that the employees
were so told at the ratification meeting. Melucci testified
that there was no such agreement, and Dufault testified,
without objection, that his subsequent investigation led him
to believe that there was not. While I would credit Pacheco
on this score, I do not think the resolution of the conflict is
material, for, even assuming a contrary determination, I feel
certain that Pacheco did not deliberately, maliciously, or
recklessly assert that such agreement had been arrived at.
The record before me, and my evaluation of Pacheco. leads
me to believe that, at worst, Pacheco was acting under a
mistaken impression of the agreement reached; Respondent,
which must shoulder the burden of disqualification, has not
satisfactorily shown that Pacheco was pressing this claim
mischievously or with careless disregard of facts known to
him."
As earlier noted, the record is less than clear on the issue
of whether the parties intended all of the agreement,
including the no-strike clause, to take effect immediately
upon ratification. But even assuming that they did, and also
assuming, contrary to Pacheco, that they did not intend to
incorporate the health and safety provision into the contract,
there is no perceptible basis for Melucci's claim that "this
inflammatory circular is being used to incite workers to
possible illegal acts or actions." by which Melucci meant, as
' Indeed, as counsel for the General Counsel points out. Respondent failed.
in attempting to show malice on Pacheco's part, to elicit any evidence from
Pacheco as to his knowledge and assumptions ahout the 1977 safety record.
"Respondent did not appeal these citations.
Pacheco testified, for example. that he presented the clause at an
employee ratification meeting as part of the agreement: no employee was
he testified, a "strike issue." Although the leaflet poses the
question, "What Must We Do To Force The Company To
Back Down?," none of the answers given remotely indicate
that a strike should be considered. Further, to the extent that
Respondent argues that Pacheco was attempting to force
abrogation of a ratified contract, it can as easily be said that
he was trying to mount an effort for voluntary renegotiation,
a perfectly legitimate objective. Timpte. Inc.. 233 NLRB
1218 (1977); N.L.R.B. v. KDI Precision Products, Inc.. 436
F.2d 385, 386 (6th Cir. 1971)
I am thus led to conclude that, in distributing a leaflet on
May 2 which invited employees to join in common cause
about a condition of their mutual employment, Pacheco was
engaged in concerted activity protected by Section 7 of the
Act. It follows that Respondent violated Section 8(a)(1) '" by
suspending Pacheco on May 5 and thereafter, on May 12,
discharging him. The foregoing analysis has been undertak-
en without regard to the possibly relevant factor of Melucci's
degree of personal animosity toward Pacheco's conduct, to
be discussed below.
The complaint alleges that on two occasions in early 1978,
Melucci made statements to an employee which had the
effect of coercing him in the exercise of Section 7 rights; the
remarks purportedly referred, directly or implicitly, to
Pacheco. Employee Jesse Ferreria testified that during an
orientation interview with Melucci on February 20, 1978,
Melucci "warned me about a group of radicals and trouble-
makers that worked at Pioneer and told me that I should
stay away from them if I wanted to stay out of trouble ....
He didn't mention anyone by name. He did mention at one
point that the Shop Chairman, that he considered the Shop
Chairman a radical." Some 2 or 2-1/2 weeks later, according
to Ferreria, Melucci approached him at work and, while
inquiring about his progress, "again warned me to stay away
from troublemakers and said that 'We're going to get rid of
the troublemakers, union or no union."' Melucci recalled
telling Ferreria in the first interview that he should not get
involved with "troublemakers," but testified that he spoke
similarly to all new employees whom he interviewed, and
made no reference to the shop chairman when talking to
Ferreria. He denied that the second conversation occurred.
Although Melucci made a generally honest appearance,
certain aspects of his testimony were unreliable. For exam-
ple, he began his May 5 letter, "On or about May 2nd and
3rd, 1978, Mr. Pacheco distributed or caused the distribu-
tion on company premises...." When asked about this,
Melucci denied any knowledge of distribution of the leaflet
on May 3. There is evidence in the record that distribution
by Ferreria and by Shop Vice Chairman David Rapoza
occurred on that date. Melucci said that he used the wording
"May 2nd and 3rd" because he was, at the time he wrote the
letter, "not exactly sure" of the date on which Pacheco had
passed out leaflets. That problem, of course, would have
been more sensibly resolved by using "or" instead of "and,"
especially since "On or about" was being used to precede the
phrase. Moreover, the use of "or caused to be distributed"
called to contradict this, nor were the minutes of the meeting offered in
evidence. Melucci gave only the most conclusionary testimon) on this point,
and none of Respondents other negotiators were called to present evidence on
It.
'^ And. as well. Sec. (a)(3). Repubhc .4Itatfion Corp. . N.L.R.B.. 324 U.S.
793. 805 (1945.
1305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seems plainly meant to cover the activities of May 3. It
appears most probable that Melucci was fabricating this
explanation, perhaps because he was uncomfortable about
having punished only Pacheco while knowing about other
culpable employees.
In like measure, however, while Ferreria's demeanor was
commendable, his testimony seemed to conflict materially
with that given by Richard Drolet, an alleged discriminatee.
Drolet testified in passing that on March 14 or 17, in the
course of consulting with Melucci, the latter told him that
Pacheco "used to be a troublemaker, Ken used to give us a
lot of trouble, but he bought a house and now he is paying
off a mortgage, and he no longer gives us any trouble."
Thus, Melucci was purportedly telling Drolet that Pacheco
"no longer gives us any trouble" on March 14 or 17, and
also purportedly telling Ferreria within the same time frame
that he "considered the Shop Chairman a radical." This is
too substantial a contradiction to be ignored, and I am
constrained to disregard Ferreria's testimony about the
latter remark."
A similar disposition of the comment made 2 weeks
later-"We're going to get rid of the troublemakers, union
or no union"-is in order, but even if it was made, I question
whether it was violative. Here, Melucci is not said to have
attributed any illicit connotation to the word "troublemak-
ers," and his asserted vow to eliminate them despite possible
opposition from the Union does not suggest that those who
ally themselves with the Union will suffer by doing so. I find,
accordingly, that Melucci did not offend the Act in either
alleged conversation.
There is room for argument in this case, over and above a
simple application of legal principles relating to an employ-
ee's Section 7 right to distribute literature, that Melucci's
decision to discharge Pacheco was animated by a desire to
retaliate against Pacheco's aggressive performance of his
duties as shop chairman. Pacheco testified, without contra-
diction, that he had often complained to Melucci about
working conditions during the year in which he had served
as chairman. The evidence, as set out below, suggests that
Pacheco may have been treated disparately about this
distribution issue.
Melucci testified that on May 2, Pacheco had been seen in
the company of George Cummings "by Mr. David Querim
who did not see Mr. Pacheco actually handing the leaflets to
the employees." David Querim, on the other hand, contra-
dicted both of these factual assertions, testifying that he did
not see Cummings with Pacheco, but that he did see Pacheco
pass out leaflets. I am inclined to believe that Querim did see
I further note that Ferreria's pretrial affidavit makes no reference to
Melucci specifying that the shop chairman was one of the "radicals"
' Querim, asked whether he had testified at Pacheco's arbitration that he
had seen Cummings, said that he did not "recall," but refused to say flatly
that he gave no such testimony. This obviously allows an inference that he saw
Cummings.
" The complaint alleges this statement to be violative of Sec. 8(a)(l).
Kitchen substantially conceded the remark, saying that he told Cummings,
"I'm sure you know everyone knows that you were one of the people that
passed out the pamphlets .... If you're worried about the job, Id say a
couple of novenas." I credit the version given by Cummings. It would seem
that the lawfulness of the remark, the coercive thrust of which is the
announced peril to the jobs of Cummings and Rapoza. depends initially on
whether the distribution by them, in contradistinction to the distribution by
Pacheco, was statutorily protected. That question was not expressly explored,
and I need not examine it here. The fact is that the limited warning-that
Cummings, and so told Melucci.'" Further, based on the
suspicious opening sentence of the May 5 letter, as previous-
ly discussed, I deduce that Melucci was aware that there had
been distribution by Ferreria and David Rapoza on May 3.
This conclusion is supported by the testimony that on May
5, Supervisor Robert Kitchen told George Cummings that
he had "better go to a lot of novenas, because if Pacheco-
pending further investigation, if Pacheco went, me and Dave
Rapoza would be next.""
The foregoing indicates that Melucci treated Pacheco
differently from others who had participated in the distribu-
tion. There was not much emphasis on this point at the
hearing, however, and Melucci was never asked why he did
not also punish Cummings and Rapoza. Two obvious
distinctions are that Pacheco's name appears on the pam-
phlet, and he was patently at the helm of the venture. See
Chrysler Corporation, Dodge Truck Plant, 232 NLRB 466
(1977). While the evidence here discussed may be sufficient
to establish that Pacheco was singled out for discipline on
the basis of his past protected conduct," I see no need, in
view of my primary conclusions, to so find.2'
Not long after Pacheco's discharge, General Manager
Dufault, Pacheco, and Respondent agreed to submit the
issue of the propriety of the discharge to an arbitrator,
outside of the regular arbitration procedure set out in the
contract. The arbitrator, a staff mediator for the Massachu-
setts Board of Conciliation and Arbitration, concluded that
Pacheco had been "justifiably discharged." Respondent now
urges that deferral to the arbitral decision is appropriate
under the doctrine of Spielberg Manufacturing Company,
112 NLRB 1080 (1955).
In Spielberg, the Board held that it would honor a private
arbitration award disposing of a controversy before the
Board if "the proceedings appear to have been fair and
regular, all parties had agreed to be bound, and the decision
of the [arbitrator] is not clearly repugnant to the purposes
and policies of the Act." 112 NLRB at 1082. A further
showing must be made that the arbitrator considered and
resolved the underlying unfair labor practice issue. Raytheon
Company, 140 NLRB 883 (1963), enforcement denied 326
F.2d 471 (Ist Cir. 1964); Oakland Scavenger Company, 241
NLRB 1, fn. 1 (1979).
The first two Spielberg criteria were probably satisfied
here. I do not believe, however, that the third standard was
met.
Briefly summarized, the arbitrator's decision rests upon
principles of arbitral jurisprudence and articles of the
bargaining agreement to conclude that Pacheco's discharge
something might happen to the two employees, based on their past activity-
was predicated on a precondition, the discharge of Pacheco. That precondi-
tion was quickly accomplished, and it soon was apparent to Cummings that
neither he nor Rapoza was to be punished for their roles in the activity of May
2 and 3.
:" Contrary evidence may be found in Drolet's report that in March,
Melucci no longer considered Pacheco to be a troublemaker.
:' I also see no merit in Respondent's argument that Pacheco's position as a
union official imposed some higher duty upon him.
:: The fact that the arbitrator did not allow proposed witnesses for Pacheco
to testify about safety conditions at the plant does not necessarily indicate that
the proceeding was less than "fair and regular." although a reasonable
argument to that effect could be made. At one point in his decision. the
arbitrator seemed to regard the issue as whether "Pioneer was an unsae
plant," which, if so, would make material the excluded testimony. His
primary reliance, however, appears to be on his conclusion that the 1977 plant
1306
PIONEER FINISHING CORPORATION
was justified. He finds that Pacheco passed out the circulars
in the plant "without permission" and without authorization
from "the Union General Manager [or] the assembled Union
membership," and that this conduct was contrary to
"Article I, and Article 1I, Sections (D) and (E)" of the
bargaining agreement. He further concludes, based on the
actual facts pertaining to plant injuries in 1977, that Pacheco
"grossly exaggerated, with the intent to deliberately mis-
lead," Respondent's safety record, and "damned the man-
agement of the plant, impugned their integrity and attempt-
ed in a very serious way to destroy any 'harmonious
relationship . . ."' He terms "clearly too much" Pacheco's
refusal to repent his conduct. The decision does refer to the
concept of "protected activity," but the arbitrator defines
that term in a sense totally at odds with the statue, and his
statement of the issue presented indicates that he felt
confined solely to contractual questions: "The issue before
me was not whether certain employees thought unsafe
conditions existed, but whether Pacheco exceeded the
Contract in doing what he did."
The earlier analysis of Pacheco's rights under the Act
concludes, on basically undisputed facts," that the discipline
of Pacheco violated his statutory right to engage in concert-
ed activity. The arbitrator nowhere conveys an awareness of
the statutory principles implicated in such an issue, and his
decision, in my view, abridges those principles. Member
Truesdale wrote, in his concurring opinion in The Kansas
City Star Company. 236 NLRB 866 (1978): "[The Board]
examines the arbitrator's legal conclusion to see if, on the
facts he has found, it is consistent with Board law. Finding
that it is, and that the arbitrator actually considered Board
law in ruling . . . the majority defers to the arbitrator's
decision." Since I conclude that the disposition made by the
arbitrator was not consistent with the determination the
Board would make, I believe that deferral is not appropriate
in this case. Dreis & Krump Manufacturing. Inc.. 221 NLRB
309, 314 (1975), enfd. 544 F.2d 320, 330 (7th Cir. 1976);
Pincus Brothers, Inc.-Maxwell, supra.
II. THE DISCHARGE OF RICHARD DROLET
On May 12, the day after the discharge of Pacheco
became final, Respondent discharged Richard Drolet, and
soon thereafter, on May 17, terminated John Moniz. Both
employees were in their probationary period. The General
Counsel asserts that the work-related reasons for the
discharges proffered by Respondent are sham, and that the
two were fired for, inter alia, protesting the discharge of
Pacheco (and, as to Moniz, for having in addition protested
the interim discharge of Drolet).
safety record was distorted. Furthermore, the arbitrator did permit the
employees to submit written statements, which his decision then held were
irrelevant to the issue before him.
Even if it were true that, as Pacheco testified, the arbitrator told him that he
had to sign the submission agreement, which included a finality provision, in
order for the arbitration to "go forward," that would not infect the
proceeding; Respondent would be entitled to demand such a concession The
arbitrator testified that. to the contrary, he told Pacheco that he did not have
to sign the agreement, and I credit his testimony. I do not believe, however,
that Pacheco was attempting to lie about this unessential matter, especially in
view of the fact that he knew the arbitrator could be called to rebut such
testimony: I think rather that Pacheco, an admirable witness. mistook the
import of the arbitrator's remarks.
Drolet was first employed by Respondent on February 6,
1978. He worked as a tuber inspector until around March 9,
when he was discharged. He grieved his discharge, and
Melucci relented. Drolet returned to work, as a new
employee on a new probationary period, on March 20. this
time as a beck operator.
The concerted activities relied upon by General Counsel
as the true cause of Drolet's second discharge on May 12 are
set out below. Drolet testified that he was involved in
drafting the May 2 leaflet, but that was done at an
employee's home, and there is no reason to believe that
Respondent's agents were aware of his asserted role. Drolet
testified that after Pacheco was suspended on May 5, he had
conversations with other employees at work protesting the
discipline and suggesting "some kind of job action" if
Pacheco were not reinstated; there were "[p]robably around
five to ten [such conversations] in that instance, too; maybe
more. I don't know." He also discussed with fellow
employees "[m]aybe five to ten different times" before the
May 7 union meeting the importance of a large attendance at
that meeting. At the meeting, according to the testimony of
several employees, the subject of Pacheco's suspension
replaced the safety clause as the topic of discussion, and
Drolet, arguing that the contract was not in force, told the
employees that they had the right to "pull some kind of job
action" to protest Pacheco's suspension. An estimated 40-60
employees attended the meeting, and employee Timothy
Reid testified that at least 16 of them spoke out about the
treatment accorded Pacheco. There is no direct evidence
that Respondent's officials became aware of what happened
at the meeting.
Respondent's explanation of the second discharge of
Drolet as simply that he made too many errors. As a beck
operator, Drolet's job consisted of dyeing cloth by running it
through a large vat. Over him were three levels of supervi-
sion, all somehow involved in his discharge: Robert Kitchen,
who supervised a total of around 7 employees on the third
shift (11 p.m.-7 a.m.) of the beck dyehouse; William Powell,
superintendent over all three shifts of the beck dyehouse;
and President Melucci.
As narrated by Powell, who worked daytime hours and
therefore not coincidentally with Drolet and Kitchen, 2-3
weeks after Drolet began his second employment, an
employee on the first shift told Powell of some red stains on
a batch of goods dyed the previous evening. He investigated,
discovered that Drolet had handled the dyeing of the cloth,
concluded that the stains had been caused by Drolet having
failed to properly line the box into which he deposited the
cloth after dyeing it, told Kitchen to warn Drolet to take
more care, and later followed up to ascertain that Kitchen
The arbitrator discredited Pacheco's testimony that he obtained permis-
sion from David Querim to distribute the leaflets. While I would conclude
that permission was at least tacitly sought and given. I believe that the issue is
irrelevant to the legal issues here. In no other respect does it appear that the
primary facts are in dispute: the arbitrator's conclusion that Pacheco grossly
exaggerated, with the intent to deliberately mislead." Respondent's 1977
safety record, is, so far as the record shows, a legal inference based on
Respondent's explanation of the 1977 accidents, and takes no account of the
materiality. or lack thereof, of the exaggerations, or of Pacheco's true state of
mind
1307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had cautioned Drolet. Powell said that rehandling of the
damaged goods required 6-8 hours of work."
About 2 weeks later, said Powell, the same sort of error
was brought to his attention, involving some 2,000 yards of
cloth; the stains on 1,300 yards were adequately rehandled,
but 700 yards had to be dyed black. The same warning
procedure outlined above was followed.
There followed, in the same week, an identical staining
error, which was capable of being completely corrected.
Powell said that the same warning, followed by his verifica-
tion, was again given by him to Kitchen and thence to
Drolet.
The fatal error, said Powell, occurred on May 10. Drolet,
as he conceded, failed to add 100 pounds of salt to a batch
being dyed. When a test of a patch in the early part of the
process disclosed that the color had not adhered to the cloth,
Kitchen told Drolet to add the salt. Powell testified that
Kitchen told him about the omission having occurred, and
the possibility of streaks being caused thereby; and after the
cloth had dried, Powell saw that the damage had eventuated.
Correction of the error required about 8 hours.
Powell testified that he spoke to Melucci on May 10, in
the course of a routine meeting, and recommended that
Drolet be discharged. Melucci said he wanted to think it
over. The following day, May Il 1, Melucci, having spoken to
Kitchen about Drolet's work performance, authorized Po-
well to discharge Drolet. That evening, Powell called
Kitchen at the plant and told him to have Drolet wait after
the shift ended the next morning. At that time, Powell says,
he told Drolet that he was being let go because of his
production errors.
Powell was, personally, an unusually impressive witness.
At the hearing, even after noticing that certain portions of
his testimony seemed questionable, I was, when he had
completed his appearance, prepared to believe him. After a
very thorough study of the record, however, I find many
inexplicable discrepancies in Powell's testimony, Melucci's
testimony, and Kitchen's testimony. Together with admis-
sions by Kitchen, and evidence presented by the General
Counsel, these factors lead me reluctantly to believe that I
must discredit Powell. I hope that I do him, Kitchen, and
Respondent no injustice in so concluding.
The most noticeable discrepancy is Kitchen's contradic-
tion of Powell on a key point-the number of errors made by
Drolet. Powell at first testified that only two staining
incidents and the salt incident occurred, and agreed that
these were "the only incidents that [he] based his decision
on." When shown his pretrial affidavit, however, alluding to
three stain problems, he corrected himself and said there
were indeed three stain problems, and that he had so stated
previously; the record shows that he had not. Thereafter, he
described the third stain incident, and recalled speaking to
Kitchen, telling him, "I had to have more control over the
men on that shift than he had, and he had to inform Mr.
Drolet that he had to be careful unloading boxes." He also
followed up on this, speaking to Kitchen "the next day in
[Powell's] office," at which time Kitchen told Powell that
Kitchen "had informed [Drolet] that he had to be more
:' It appears from the transcript that Respondent keeps no written records
of such errors.
!' I note also,. as to this first error, that while Powell clearly recalled leaving
careful, it had happened three times and . . . he went over it
again as far as lining the boxes and that he had to be more
careful."
As earlier noted, Powell testified that he followed this
same communication and verification procedure on each of
the three stain occasions. The problem here is that Kitchen
made it quite clear that there was a total of only three Drolet
errors: "[t]wo stains and the omission of salt." In view of the
obvious discomfort which the discharge of Drolet caused
Kitchen, as we shall later see, it seems quite unlikely that he
would have forgotten so much about the discharge by
December, when he testified, that he could not have recalled
a third staining incident in which he pointed out to Drolet
that "it had happened three times"; but if he could not recall
it, how could Powell remember Kitchen recounting to him
that he had warned Drolet "it had happened three times?"
I recognize that, at least, this divergence indicates that
Kitchen and Powell did not try to conform their testimony
on this point (Kitchen testified the day after Powell); this is a
favorable factor which might allow for argument that
nothing more happened here than a clash of the dimmed
memories of busy men. Drolet having filed his charge on
May 17, however, and the complaint having issued on June
29, it would seem that an attempt to keep memories sharp
would have been in order. Kitchen's complete failure to
recall a third stain incident, which was remembered in full
detail by Powell, a much busier man, suggests to me an
effort by Powell to fortify Respondent's case.
That predilection also seems apparent in Powell's testimo-
ny about the first stain incident. He said that Drolet
"absolutely" moved the cloth into the box which caused the
stain. Yet it is clear from the evidence regarding the process
that at the point at which Powell was informed of the stain,
when it reached the dryer man, the opener man himself
could have caused the stain in the interim, and Kitchen later
conceded that there was a "slight chance" of that being so.
Even though the incident purportedly occurred prior to the
May concerted activities, the evidently anxious effort at the
hearing to "absolutely" pin the blame on Drolet also
bespeaks an attempt to bolster Respondent's case, and
therefore makes the witness seem less reliable.2
There is conflict about the final error, the omission of salt
on Wednesday, May 10. First of all, when Kitchen told
Powell of the error early on Wednesday, Kitchen had
continued to process the cloth, once the salt had been added.
Powell said that he and Kitchen, at the change of shift, had
discussed the potential problem, "the consequences that
could cause streakiness and blotchiness and he said they
looked good to him in the becks"; however, when "we got
them dry to the dryer, there were streaks and blotches." But
Kitchen gave a different account. He said that he could see,
before he spoke to Powell, that "[t]hey were blotchy," and
(as compared to "they looked good to him in the becks") he
says he told Powell, "[t]they are blotchy but I don't know
how bad."
Furthermore, Powell testified that Kitchen was not aware
that streaks had actually resulted from the error until Powell
spoke to Kitchen on the phone late Thursday night.
Kitchen "a note" about it. Kitchen remembered with equal clarity that Powell
told him about it "in the dyer's office.
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PIONEER FINISHING CORPORATION
According to Kitchen's affidavit, however, Kitchen received
this information from Powell on Wednesday afternoon,
when Powell called him to tell him to see Melucci on
Thursday.
The foregoing contradictions, like the following few
illustrations of discrepancy, do not necessarily involve items
of great consequence; at the same time, certain testimonial
errors seem so unlikely as to raise suspicion about the more
basic reliability of the witnesses. Melucci recalled a conver-
sation with Powell, "maybe a week or two" before the
discharge, in which Powell said he was having problems
with Drolet's work, "that Mr. Kitchen had said something
to [Powell] about the work." But according to Powell,
except for the salt error, he, not Kitchen, was the one who
kept discovering errors in Drolet's work. Powell never
mentioned having had such a conference with Melucci prior
to the discharge week. But, while Powell stated that he first
broached the subject of discharge on Wednesday, May 10,
and was told by Melucci that he wanted to "think it over"
and give him a decision the following day, at which time he
"gave [Powell] permission to do so," Melucci recounted no
such obviously memorable deliberative process. He said that
on May 11, Powell mentioned some damaged goods and said
that "termination was in order." Upon determining that
Powell was "sure," Melucci forthwith "gave him permission
to terminate him."
Somewhere in this summary process, however, according
to Melucci, he "may have had some discussion with Mr.
Kitchen." Powell testified that he told Kitchen on Wednes-
day to go talk to Melucci, and Kitchen testified that he did
so. Kitchen further testified that when he went to see
Melucci, Powell was not present. However, he then testified,
quoting from his affidavit, that "[a]t that meeting, it was
agreed that Mr. Drolet would be terminated. I told them
that I agreed with their decision." Plainly, the words "it was
agreed," "them," and "their" indicate that Powell was
present at the meeting and the decision was made at that
time. Asked about this, however, Kitchen insisted that
Powell was not there. And, although Kitchen said that the
next time he talked to Powell was when he spoke with him
on the telephone Thursday evening and was ordered to have
Drolet stay at the end of the shift on Friday morning, his
affidavit continues to indicate that this instruction was given
at the same early Thursday meeting with Melucci. Thus,
picking up at the last previously quoted sentence of the
affidavit, "I told them that I agreed with their decision. Bill
[Powell] then told me to notify Richard Drolet that Powell
would like to see him before he went home that Friday
morning." The natural flow of these two sentences, and the
word "then," again indicate that all of this happened in a
single meeting. Kitchen insisted that was not so, and said he
should have added to his affidavit an intervening sentence to
the effect that he called Powell at his home at 11:00 that
evening.
It seems grossly improbable to me that a man of Kitchen's
intelligence could have read that affidavit, given only a few
weeks after the events, and not notice all the asserted
inaccuracies in it. Again, this does not seem a matter of great
substantive moment; from Respondent's point of view, it
would seem that either version of this phase of the
termination would serve. It may be that here, Kitchen was
attempting to bring himself into conformity with Powell's
prior testimony and Powell's affidavit. It may also be that
Kitchen's affidavit was out of conformity because he never
was in fact consulted by Melucci, and therefore had to
fabricate when giving his statement, probable something that
Kitchen is not skilled at doing.
Powell testified that in his discharge interview with
Drolet, "I informed him that I was letting him go and he
asked why and I told him because of the mistakes that he
had made since he became, since he got on the shift. And, he
said that he wanted to talk it over and I said there was
nothing further to talk about." Drolet gave a contrary
version; he said that when Powell discharged him and Drolet
asked what complaints there were about his work, Powell
said, "I have no way of knowing how your work is, I'm not
your foreman . . . Mr. Kitchen told Mr. Melucci that there
was some problems with your work . . . so Kitchen must
have told Melucci to fire you and Melucci told me to let you
go." The circumstances persuade me that Drolet's version is
the more accurate one, for the reasons detailed below.
The attitude of Kitchen toward the discharge of Drolet is
an interesting subject. Although he testified at the hearing
that he "agreed" with the decision, the evidence as a whole
strongly suggests that he did not. Drolet testified that 2 days
before he was fired, Kitchen had asked him if he was
receiving "top pay" yet, and indicated that he would ask
that Drolet receive it, being pleased with his work. Kitchen
was not questioned about this, but I assume he would have
denied it. His failure to say anything on the subject does,
however, make it difficult to evaluate his credibility on this
point.
Drolet further said that when Kitchen said that Powell
wanted to see him before he left on May 12, he asked
Kitchen if anything was wrong. Kitchen said that nothing
was wrong. When Drolet continued to express concern,
Kitchen allegedly said, "Don't worry, Bill Powell is not that
way, he would have told me before he fired [you]."
Employee Thomas Vining, who was working overtime on
the third shift, gave confirming evidence, saying that on that
same early morning, when Vining asked Kitchen why
Powell wanted to see Drolet, Kitchen said he did not know
why, "because he was satisfied, he had no idea why Powell
wanted to see him." Kitchen admitted having said to Drolet
and Vining that he did not know why Powell wanted to see
Drolet, but he testified that in fact he did know; he further
denied expressing satisfaction with Drolet's work.
What suggests to me that Drolet gave the accurate
account of the discharge interview, in which Powell attempt-
ed to cast the entire blame on Kitchen as the initiating force,
is that, as Kitchen concedes, on the evening of May 12,
Vining dropped by Kitchen's house to ask about Drolet's
discharge. According to Vining, he told Kitchen that the
employees all thought Kitchen had fired Drolet, to which
Kitchen replied that he "had no complaints with his work,
and it didn't come from him." Kitchen further allegedly said
that he knew nothing of the discharge until it happened, and
that "he didn't like to be used like that." Kitchen, on the
other hand, gave the following version of the conversation:
[H]e asked me why Richard Drolet was fired. And I
says, "We felt that he was not meeting what we
expected of him." And so he says, "Well, were you
1309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
satisfied?" And I said, "The decision was not mine. It
was agreed upon, right."
The significance of this testimony, aside from the nature
of the conversation had, lies in the fact that Vining
concededly visited Kitchen on the evening of May 12. When
I asked Vining, at the very end of his appearance, why he
had done so, he replied, "Because, to the best of my
memory, when Mr. Drolet was let go, he was told that his
foreman was responsible for him being fired; which was Mr.
Kitchen. And when the other people heard that, and asked,
Mr. Kitchen had said the man was doing good work, that he
couldn't understand it."
Thus, Vining's visit to Kitchen on May 12, which is
admitted, dovetails neatly with Drolet's testimony that
Powell, in the termination interview, had put the blame for
the discharge on Kitchen. Since I do not believe Drolet and
Vining were sufficiently Machiavellian to have conjured up,
by the end of the day on May 12, a false discharge interview
and a method of lending it credibility, I think it likely that
Powell did indeed point the finger at Kitchen as the one who
had urged discharge. If that is true, then Powell's version of
the interview must be considered unreliable, and so Powell's
other testimony. I must say that I can see no particular
reason for Powell to have shifted the onus to Kitchen, but
the logic of the events suggests that he did.
It should further be noted that although Kitchen testified
that he "agreed" with the termination decision, his own
account of what he told Vining on May 12 conveys a curious
reluctance: when Vining asked, "Well, were you satisfied,"
Kitchen answered evasively, "The decision was not mine. It
was agreed upon, right."
I thought Vining was an excellent witness, although
Drolet did not make as good a personal impression as Powell
and Kitchen. I am not sure what to make of Drolet's
testimony that Kitchen assured him early on May 12 that
Powell "would have told [Kitchen] before he fired [Drolet]"
and Vining's testimony as to Kitchen's having no complaints
about Drolet and not liking to be "used" by Respondent. As
to the first claim, it seems probable to me that Powell would
have told Kitchen of his intention to remove an employee
from the very small shift overseen by Kitchen, for whatever
reason he did so, and I find it hard to imagine Kitchen, with
that knowledge of imminent removal, so consolingly assur-
ing Drolet that he would not be discharged a second time.
It seems more possible, however, that Kitchen, Vining's
former basketball coach, might have told Vining that he did
not like being "used." That implication is echoed in a
statement which Kitchen admittedly made to his shift
employees on the very evening of the day Drolet was
discharged. Vining testified that several days after the
discharge, he had a discussion with Kitchen in which the
latter said he had "taken his shift into his office and told
everybody on his shift that he had nothing to do with firing
Mr. Drolet." Kitchen gave a somewhat different account,
saying that he had called a meeting of the employees on May
12 to urge them to work more cooperatively with a certain
employee. As the meeting ended, and the employees were
leaving, Kitchen heard one say, "If we do our job, we're
going to get fired anyway." Kitchen says that he replied, "If
: Melucci testified that it is not until the third written warning that a
permanent employee receives the first real discipline-a 3-day suspension.
you're referring to Richard Drolet, and you want an answer,
you'll have to see someone else" (or perhaps, "If you want a
definite answer, you speak to the higher-ups.").
Even on Kitchen's account, he sounds as if he felt he was
being "used." His conceded statement to the employees
denotes a lack of understanding about the Drolet discharge,
contrary to his testimony at the hearing. Although he had,
he says, told Vining earlier that evening why Drolet had
been discharged, he was incapable of explaining at the
hearing why he would not or could not do so to the other
employees a few hours later.
Drolet testified that when Melucci agreed to reinstate him
from his first termination, he also agreed that he would
make sure that Drolet received sufficient warning of any
peril in the future. Melucci virtually admitted this. When he
was asked whether Drolet had received any written warn-
ings prior to the second discharge, however, Melucci said,
"[niot to my knowledge." He further testified that he did not
investigate the accuracy of Powell's claims about Drolet's
work, although he said that he did make such an investiga-
tion in the case of John Moniz, see infra, to whom he had
made no commitment. In view of his prior promise, one
would imagine that Melucci would have looked into the
question of whether Drolet had been warned and whether he
had committed errors; he apparently did not do so.
Drolet's status might seem to pose a substantial obstacle
to finding a violation here. He was on his second probation.
He obviously had made a bad impression on his shift
foreman the first time around, being allowed to serve out
only 31 days of the 60-day probationary period. Although
Respondent affords substantial leeway to regular employ-
ees,26 and the record further shows that much cloth damage
occurs throughout the year as a result of employee error, it is
not reasonable to apply those standards to Drolet's case. The
purpose of a probationary period is to free an employer to
exercise discretion in judging a new employee's ability.
Drolet, in his second probation, was unquestionably riding
on the razor's edge.
On the other hand, Drolet came pretty close the second
time. He had completed 53 days of the period before he was
discharged. In a case which seemed susceptible to corrobora-
tion of Drolet's alleged errors, Respondent produced none.
Powell was the only witness to directly testify to having
viewed the first three stain errors, although he named
employees who also saw them. In the case of Moniz, as
discussed below, Melucci testified that he may have called
one of several foremen in the finishing department "to be
sure that there was damage," but he did not do so with
Drolet, despite his acknowledgement that Drolet had be-
lieved "that he wasn't given a fair shake by his previous
foreman." Not only was it inconsistent to give Moniz more
favored treatment, but this also indicates the possibility of
corroboration, a critically useful technique in a case like this
one.
The fact, indeed, that Powell sought permission for the
discharge is itself strange; Drolet had been discharged by his
shift supervisor the first time. If it be argued that Powell
took this extraordinary measure to assure that Drolet
received the due process he had complained of not getting in
1310
PIONEER FINISHING CORPORATION
his first discharge, that solicitude is oddly inconsistent with
Melucci's failure to look more thoroughly into Drolet's
discharge than Moniz'."'
It seems to me that there is an arguable problem here of
attempting to use Kitchen for different, and facially conflict-
ing, purposes. The most likely source of Respondent's
knowledge of Drolet's efforts to stir up employees in reaction
to Pacheco's discharge would be his conversations with
other employees on the third shift, which, the argument
goes, would be picked up and transmitted by Kitchen to
Powell. On the other hand, Drolet's proponents attemped to
establish that Kitchen was pleased with Drolet's work and
was truly shocked and amazed when Drolet was discharged.
On reflection, these two possibilities do not seem irreconcila-
ble. Kitchen may well have felt it his supervisorial obligation
to convey the news of such activity to Powell, so that Powell
might know the general situation, and at the same time not
have expected any discipline to result from these reports.
The discharge of John Moniz, another probationary
employee, 5 days after the termination of Drolet, which I
hereafter find to have violated the Act, lends some weight to
my conclusion here. The pattern of the Moniz discharge and
the inconsistencies among Respondent's witnesses on that
subject were similar to the Drolet case. While the prior
discharge of Drolet necessarily detracts from the following
observation, it was highly unusual for Respondent to fire a
probationary employee; to discharge two of them in a 5-day
period was undoubtedly unprecedented."'
In my judgment, therefore, it is proper to resolve this close
question in General Counsel's favor. There is no direct
evidence of unlawful motive in this case; there seldom is. I
cannot say that Drolet did not commit a stain error, and it is
conceded that he failed to add the salt on May 10.29
Nonetheless, in view of the highly suspicious discrepancy,
contrivance, blithely vouched-for inaccuracy, partial admis-
sions, and earnest efforts to bolster Respondent's defense, a
great deal of smoke billows up; I am willing to infer fire from
that smoke, for all the reasons given above.
Accordingly, I conclude that the discharge of Drolet on
May 12, 1978, violated Section 8(aX I) of the Act.
Ill. THE DISCHARGE OF JOHN MONIZ
John Moniz was hired as a jig operator on March 28, and
fired on May 17. I think that the evidence in his case
supports a conclusion of unlawful discharge.
It appears that Moniz' involvement in the controversy
surrounding the health and safety committee and the
discharge of Pacheco and Drolet was more visible and
persistent than was Drolet's concerted activity. Moniz
testified that beginning on May 5, as he waited at the
timeclock with fellow third-shift employees ready to punch
out and first-shift workers preparing to clock in, he had held
repeated discussions with these grouped employees some 15
" Drolet gave some testimony that can be read as an admission that
Kitchen had, on one occasion, cautioned him to improve his work In view of
the context of having just denied receipt of any "oral or written warnings," a
position he later reasserted, I believed that this response to General Counsel's
question was artlessly phrased, and was really intented, as a part of the
Government's case, to indicate that other employees routinely committed
errors
"' As counsel point out on brief, firing probationers may be thought of as
one way to avoid questions, while achieving the desired effect.
feet away from the dyer's desk, where his immediate shift
supervisor, Robert Bousquet, would stand discussing busi-
ness with Michael McCarthy, superintendent of the jig
dyehouse.' °
Moniz had been a union shop chairman with another
employer, and the employees evidently thought of him as
something of an expert in labor relations. During their
conversations at the clock, the employees would ask about
action to be taken to obtain Pacheco's reinstatement, and
Moniz would make recommendations, including attendance
at the May 7 meeting. These conversations continued every
morning until his discharge, expanding after May 12 to
include the subject of the discharge of Drolet. Moniz also
spoke out at the May 7 meeting, saying that Pacheco should
be supported "right or wrong," and that steward Cummings
had better not be harassed because of the incident. While
testimony given by Moniz in another context, as Respondent
argues, might be read to indicate that it would be difficult,
while the machines were running, to understand a conversa-
tion from even 6 feet away in the dyer's light area, it seems
probable that over the period of time described by Moniz, at
the changing of the shifts, the machines would probably be
quiet enough for a sufficient time to allow conversations to
be heard."
Respondent's testimony was that probationary employee
Moniz was fired for inferior performance. As in Drolet's
case, the stories of the two supervisors involved, McCarthy
and Bousquet, do not hang together, and there were
discrepancies too substantial to be disregarded.
Moniz was a jig operator of some 12 years' experience,
although that experience had been obtained perhaps a
decade prior to the instant employment. There is no question
raised by Respondent about Moniz' ability to operate the
machine, and certain undenied testimony by Moniz about
special assignments given him indicates that his expertise
was generally recognized. Respondent's argument is basical-
ly that he simply became careless after being on the job
awhile.
Because of internal and external conflict in the testimony
of McCarthy and Bousquet, it is no easy task to determine
what errors Moniz allegedly committed, when he allegedly
committed them, and how the two men allegedly reacted.
McCarthy testified that the first error of which he became
aware occurred, he "would estimate," about "two weeks
before" the discharge. He said that the first-shift operator,
Chester Kasowitz, brought to his attention color spots on
some rolls dyed on the third shift by Moniz, a defect which
McCarthy concluded was caused by Moniz' failure to wash
out the jigs before running the rolls. His pretrial affidavit,
however, puts this occurrence not around May 3, but rather
about the first week in April. McCarthy testified that he told
Foreman Bousquet to warn Moniz about this error, and the
next morning verified that Bousquet had done so. It took 4-
5 hours to repair the error, but no goods were lost.
"' On the testimony of Kitchen and Drolet as a whole, it appears to me more
likely that Drolet forgot to ask Kitchen whether to add the salt rather than
simply forgot to do it.
"' Bousquet supervised about 9 men; McCarthy. a total of about 31 on the
three shifts, as well as 3 foremen.
" It does seem likely that such conversations would be conducted sotto wvoce
however, group talk of this kind can get out of hand.
1311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The "first" error from Bousquet's point of view was a
"minor" one, involving placing the wrong rolls on the wrong
machine. Bousquet did not mention this to McCarthy.
Bousquet openly testified that he had not been aware of what
McCarthy called the "first" error, set out above, speculating
at the hearing that the note purportedly left for him by
McCarthy concerning this matter must have been lost.
Bousquet said that he did not become aware of this incident
until he read McCarthy's affidavit just before the hearing.'2
Of course, the fact that Bousquet says he received no
contemporaneous information about this "first" incident
means that McCarthy could not, as McCarthy testified, have
been assured by Bousquet that Moniz had been talked to.
Because of the uncertainty in the testimony of the two,
however, it may be that McCarthy's "first" or "second"
incident was Bousquet's "third," about which Bousquet says
McCarthy talked to him and then he to Moniz. McCarthy
testified that there was a second damage incident which may
have been similar in nature to the first, but he remembered
virtually nothing about it, including whether he spoke to
Bousquet. It is apparent that the incident, if it occurred,
made almost no impression on McCarthy.
Bousquet's evident correlative of the foregoing incident-
the first alleged Moniz error involving stains which Bous-
quet recalled-was an occasion when McCarthy told him that
the first-shift operator had again spotted stains (and at this
time McCarthy "mentioned again, to me that he had stains
before, but I was unaware of it at the time"). Bousquet said
that he warned Moniz that he "wasn't cleaning his machines
out properly." This, Bousquet testified, occurred about 6
working days before the termination. He said it took 4-6
hours to rehandle the goods.
Before discussing Moniz' final alleged error, it is appropri-
ate to turn to Moniz' testimony on the subject of his work
performance. Moniz said that the only "mistake" he made
was putting the wrong roll on the wrong jig about 3 weeks
before he was terminated, the incident characterized as
"minor" by Bousquet. He also testified, however, to two
incidents occurring about 3 weeks prior to his discharge,
within a few days of each other, in which Chester Kasowitz
had left notes "saying that I had created dye stains on the
rolls." Moniz attributed the first alleged error to bad
supervision by Bousquet, and further stated that Bousquet
had exonerated Moniz on both occasions.
Bousquet did not rebut Moniz' very detailed account of
these incidents. While I felt that Moniz exaggerated his
testimony at times, I am inclined to accept it here. The fact
is, however, that some cloud of suspicion may arguably have
been raised about Moniz' performance by the very fact that,
as Moniz admitted, Kasowitz did leave these accusatory
notes.
The final, and critical, "error" is attended by sharp
conflict on Respondent's side. McCarthy testified that "a
day or two" before the dismissal the first-shift operator
brought to his attention the presence of "color spots" on
" McCarthy had told him to read the affidavit to "make sure our stories
coincided."
"The affidavits were taken on June 8, only 3 weeks after the discharge.
"The testimony as stated:
Q. No supervisor expressed to you an intent to terminate Mr. Moniz?
A. No.
three rolls. He and Bousquet went over to the machines and
"we clearly saw color spots." These spots were caused by
"undissolved color."
Although McCarthy did not expand on the cause of this
damage at the hearing, his pretrial affidavit is in the exhibits
file, marked as General Counsel Exhibit 9. It goes into detail
concerning the nature of Moniz' final mistake: "The color
spots were on the cloth because the color was not mixed in
properly. The jigger is responsible for mixing in the color.
The spots were on this cloth because Moniz did not mix the
color properly in the jig." I note that although the exhibit
was identified by McCarthy, and offered by counsel for the
General Counsel, without objection, for a certain purpose, I
stated that it seemed unnecessary to receive he document
into evidence for that limited purpose. In the absence of
objection, and because it so clearly documents and describes
the final error claimed by McCarthy, I now receive General
Counsel Exhibit 9.
Bousquet, however, testifying about this last error, said
that he and McCarthy inspected the goods, and the damage
was "fixed stains," caused by "not washing the machines out
properly . . . [a] scum [forms] around the sides of the
machines and that has to be taken off between each set of
rolls and he didn't do it because it came out on the next set
of rolls .... " Bousquet further specified that he himself
saw no error by Moniz caused by "unsettled dye."
This disparity seems to me to be an important one. Here
are two experienced supervisors, purportedly having viewed
the same damaged rolls of cloth, the final straw which
directly led to the dismissal of an employee, and one reports
"spots" caused by improperly mixed color, while the other
sees "stains" resulting from a failure to wash the machine. I
infer that Bousquet felt that he could not change his account
after McCarthy testified because his pretrial affidavit plainly
spelled out "stains," not "spots." But that forced discrepan-
cy between both the affidavits' and the testimony of the two
witnesses raises a serious question about whether any
damage occured in the first place.
The circumstances surrounding the execution of the
discharge compound the suspicion. McCarthy testified that
he "discussed with Mr. Bousquet the discharge or reasons
for the discharge," although he could not recall when;
McCarthy said, however, that Bousquet did not actually
"know" that Moniz was to be discharged until after it
happened. This distinction is not an implausible one. But
Bousquet at first indicated that he had absolutely no idea
that the discharge of Moniz was under active consideration
until it happened; ' thereafter, however, he testified that,
after the final error, he and McCarthy "discussed the
problems of the stains. How many times it has happened and
he asked [me] my opinion of John Moniz, whether he should
let him go or not, and I told him yes." Plainly, in the face of
such a conversation, Bousquet could not sensibly testify that
he had "no idea that [a] supervisor was thinking of
discharging" Moniz.
Q. Or that he was thinking about it?
A. No.
Q. And you had no idea that no [sicl supervisor was thinking of
discharging him?
A. That's right.
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PIONEER FINISHING CORPORATION
The effort made by McCarthy and, as we shall see,
Melucci to convey the idea that Bousquet was ignorant of
the decisional process relating to Moniz termination seems
to relate to the fact that just after McCarthy told Moniz of
the discharge on the morning of May 17, Bousquet, who had
been standing nearby, approached Moniz and asked if he
wanted to work overtime, a question which understandably
astounded the just-discharged Moniz. Melucci's description
of his own role in the discharge, which also attempts to
isolate Bousquet, is most peculiar. He said that McCarthy
came to him and stated that Moniz was doing defective
work, mentioning "two or three errors," and saying that "he
wanted to let him go." Melucci further testified that he
"may have called another foreman in the finishing depart-
ment to be sure that there was damage and they assured me
of that . . . It could have been either of two or three other
foremen .... It could have been Mr. Carlson, it could have
been Mr. Ryan, it could have been a Mr. Simbro." Melucci
was sure, however, that it was not Bousquet that he called.
There are three odd aspects of this testimony. One arises
from Melucci's testimony that "[g]enerally, probationary
employees have been fired in the past without consulting
with me because the superintendent is usually the one who
passes judgment on whether he wants to try [sic] the man or
not." Melucci testified that it just happened that McCarthy
brought the subject up in one of their frequent meetings. But
his testimony-that McCarthy said he "wanted to let him
go"-indicates that a request, not a simple announcement,
was being made. Against the "general" practice declared by
Melucci, no reason suggests itself for McCarthy to single out
Moniz for special treatment other than his participation in
the protests against the two prior discharges.
In like vein, since "the superintendent is usually the one
who passes judgment" on probationary employees, it is hard
to imagine why Melucci "may have called another foreman
in the finishing department to be sure that there was
damage"-why would he not have trusted McCarthy, a
superintendent for 7 years? And the next question, of course,
is, having decided on an independent check, why he would
not have called Bousquet, Moniz' own foreman, who was
allegedly conversant with the damage, who had purportedly
warned Moniz, and who is supposed to have personally and
jointly viewed the final damage along with McCarthy?
A further question arises from the timing of the supposed
final straw. Although Bousquet testified that he and McCar-
thy discussed the question of whether McCarthy "should let
him go or not" immediately after viewing the results of the
last error, Bousquet's affidavit states, "About three days
after Moniz' third mistake, Mike McCarthy approached me
by the dyer lights and asked me if John Moniz was worth
keeping." Since the affidavit was given only 3 weeks after the
discharge, its accuracy would seem more certain. This would
indicate that, if there had been a final error, it was not
considered very significant at the time. That being the case,
the timing of the decision to suddenly discharge Moniz on
May 17-a Wednesday-suggests that some other interven-
ing event gave the error retroactive importance.
McCarthy testified that in firing Moniz, he told him that
his work was "not satisfactory." Moniz said that McCarthy
"The uncontradicted. and likely, testimony is that most of the senior
employees are on the first shift
told him, "I'm not satisfied with your work, and you're
creating problems with the older workers."" Moniz also
testified that at a subsequent grievance meeting between
himself, Melucci, and Joseph Alfonso, a union business
agent, Melucci said that "they wasn't satisfied with my
performance, and I was creating problems." The nature of
the "problems" was not, however, delineated at this meeting,
according to Moniz; but Alfonso testified that at the
meeting, Melucci specified that Moniz was "creating trouble
with the older workers on the first shift." Melucci generally
denied any such reason for discharge.
Although Melucci was a reasonably impressive witness, he
was not, as indicated above, overwhelming; however, that
Alfanso should hear something about "older workers"
during the grievance meeting which Moniz' obviously more
interested ears did not detect creates a suspicion about the
claim that reference was made to problems with the older
workers. McCarthy seemed too intelligent to make such a
damning statement, and so did Melucci." While I do not
necessarily rule out the possibility that these statements were
made, I do not rely on them here.
Nor do I give much weight to testimony by various
employees attributing to supervisors complimentary remarks
about Moniz' superlative performance. Some of this testimo-
ny related to supervisors who would not know much about
Moniz' work, some related to Moniz' familiarity with the
work rather than his punctiliousness, and some did not seem
particularly reliable. While Bousquet conceded having said
that Moniz "could run machines as well as anyone," that
does not seem very meaningful with regard to a machine
which takes 2-4 weeks to master.
The evidence recited above nonetheless presents, in my
opinion, a solid basis for concluding that Moniz was not
discharged for work deficiencies. Although I am reluctant to
discredit Bousquet and McCarthy, whose demeanor made a
favorable impression, the real and inexplicable conflict in
their testimony about the allegedly final and fatal error leads
me to believe that no such error occurred. The other
testimonial discrepancies, and the extraordinary participa-
tion, and its peculiar nature, by Melucci in the discharge
constitute unusual circumstances which are not easily
rationalized. The role played by Moniz in frequently
discussing the two prior discharges, perhaps appearing to
emerge as an incipient leader to replace the departed
Pacheco, occurred within earshot of McCarthy. In this
setting, and on these findings, "proof... that the reason
given was false warrants the inference that some other
reason was being concealed," N.L.R.B. v. Joseph Antell, Inc.,
358 F.2d 880, 883 (Ist Cir. 1966); Shattuck Denn Mining
Corp. (Iron King Branch ) v. N.L.R.B.. 362 F.2d 466, 470
(9th Cir. 1966).
For the foregoing reasons, I conclude that the discharge of
Moniz on May 17, 1978, violated Section 8(a)(1) of the Act.
CONC.USIONS OF LAW
I. The Respondent, Pioneer Finishing Corporation, is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
' Although they were expressly asked to deny these references. their
general testimony clearly comprehends a denial.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 1057, Textile Workers Union of America, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act."
3. By suspending Kenneth Pacheco, and then discharging
him, on or about May 5 and 11, 1978, respectively,
Respondent violated Section 8(a)(1) and (3) of the Act, and
by discharging Richard Drolet and John Moniz on May 12
and 17, 1978, respectively, Respondent violated Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Other than as set out above, Respondent has not
violated the Act in any manner alleged in the complaint.
THE REMI)Y
Having found that Respondent has violated the Act by
committing certain unfair labor practices, I shall recom-
mend that it be required to cease and desist therefrom and to
take certain affirmative action necessary to effectuate the
policies of the Act.
I shall recommend that Respondent be required to offer
reinstatement to Kenneth Pacheco, Richard Drolet, and
John Moniz and to make them whole for any loss of earnings
they may have suffered by reason of their unlawful dis-
charge, by payment to them of a sum of money equal to that
which they normally would have earned from May 5, May
12, and May 17, 1978, respectively, to the date of a valid
offer of reinstatement, less net earnings during those periods,
to be computed in the manner described in F W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977). 1 shall also recommend that
Respondent be required to post an appropriate notice. I
defer to the Board the request made by the General Counsel
for adoption of a new interest rate of 9 percent per annum.
Upon the foregoing findings of fact and conclusions of
law, the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
" The labor organization popularly known as "Textile Workers Union of
America" was, in June 1976, merged into an entity known as "Amalgamated
Clothing & Textile Workers Union, AFL-CIO-CLC." Since the complaint
uses the nomenclature set out in the body and was never amended. I shall
accept the pleading verbatim, as does the answer conceding the allegation.
" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
ORDER'
The Respondent, Pioneer Finishing Corporation, Fall
River, Massachusetts, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or taking other adverse action against any
employee in circumstances constituting interference with,
restraint of, or coercion of employees in the exercise of their
rights under Section 7 of the Act, or constituting discrimina-
tion to discourage union membership.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which is designed
to effectuate the policies of the Act:
(a) Offer to Kenneth Pacheco, Richard Drolet, and John
Moniz immediate and full reinstatement to their former jobs
or, if such jobs no longer exist, to substantially equivalent
jobs, and make them whole in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, all payroll records, social security
payment records, timecards, personnel records and receipts,
and all other records necessary to analyze the backpay due
under the terms of this Order.
(c) Post at its place of business in Fall River, Massachu-
setts, copies of the attached notice marked "Appendix B.""
Copies of said notice, on forms provided by the Regional
Director for Region I, after being duly signed by its
representative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
" 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 Pursuant to a Judgment
of the United States Court of Appeals Enforcingan Order of the National
Labor Relations Board."
1314