Steinerfilm, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1981

255 N.L.R.B. 769 (N.L.R.B. 1981)

STEINERFILM. INC. 769
Steinerfilm, Inc. and District 2, International Union
of Electrical, Radio & Machine Workers, AFL-
CIO. Cases 1-CA-16548 and 1-CA-16917
April 9, 1981
DECISION AND ORDER
On August 20, 1980, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, both Respondent and
the General Counsel filed exceptions and support-
ing briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions of the Administrative Law
Judge to the extent consistent with the following,
and to adopt his recommended Order as herein
modified. 2
The Administrative Law Judge found, inter alia,
that Respondent violated Section 8(a)(3) and (1) of
the Act by discharging employee Michael Gazaille
because of Gazaille's union activities. We affirm
this finding. The General Counsel clearly estab-
lished a prima facie case of discriminatory dis-
charge. The evidence presented below, as fully de-
scribed in the attached Decision of the Administra-
tive Law Judge, established that Respondent knew
of Gazaille's activities on behalf of the Union and
that these activities were the motivating cause in
Respondent's decision to discharge Gazaille. Re-
spondent failed to present credible evidence indi-
cating that Gazaille's discharge was motivated by
legitimate business considerations or that the rea-
sons Respondent advanced for the discharge were
more than pretext.3 Accordingly, we find that Re-
spondent's discharge of Michael Gazaille constitut-
ed a violation of Section 8(a)(3) and (1) of the Act.
The General Counsel has excepted to the Ad-
ministrative Law Judge's dismissal of the com-
plaint's allegations that Respondent violated Sec-
tion 8(a)(l) of the Act by twice requesting that the
key union organizer, Michael Gazaille, leave its
employ, and by granting its employees wage in-
creases immediately after their initial union meeting
for the purpose of discouraging union membership.
I 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces 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.
2 We have substituted our own notice for that of the Administrative
Law Judge.
3 This is a case of pretextual justification for an unlawful discharge in
which the asserted reasons do not exist, rather than a mixture of lawful
and unlawful reasons for the discharge. See Limestone Apparel Corp., 255
NLRB 722 (1981).
255 NLRB No. 17
For the reasons explained below, we find merit to
these exceptions.
Michael Gazaille gave unrefuted testimony that
Respondent's plant manager, Glenn Walters, twice
requested that Gazaille leave Respondent's employ.
The first such request was made on November 13,
1979, after Gazaille had complained to Walters that
the second-shift slitters were not being paid a 10-
percent differential as required in the employee
handbook, that a former employee had not re-
ceived payment from the profit-sharing plan, and
that Respondent's job-posting plan was ineffective.
According to Gazaille's unrefuted testimony, Wal-
ters responded to Gazaille's complaints by telling
him "if I didn't like it here, why didn't I go some-
place else?"
The second request to quit occurred on Novem-
ber 20, 1979, after Walters had issued Gazaille a
warning letter stating that Gazaille had been guilty
of poor job performance, insubordination, misrep-
resentation of work hours, absenteeism, and misuse
of coffeebreaks, and informing him that any further
violation of company policy would result in his im-
mediate discharge. Following the issuance of this
warning letter, which the Administrative Law
Judge found to have been written solely for the
purpose of fabricating a record of legitimate moti-
vation for Gazaille's discharge, Glenn Walters
walked into the area in which Gazaille was work-
ing. An emotional and angry confrontation be-
tween Walters and Gazaille ensued, which is well
described in the attached Decision of the Adminis-
trative Law Judge. During this confrontation, Wal-
ters told Gazaille that if he did not like the situa-
tion, he should leave.
It is the established policy of this Board to find a
violation of Section 8(a)(l) of the Act where an
employer asks an employee to quit and such re-
quest has a tendency to interfere with the free ex-
ercise of the employee's Section 7 rights. 4 Our
review of the circumstances under which Gazaille
was asked to quit, particularly in the context of Re-
spondent's other unfair labor practices, convinces
us that these requests had a tendency to interfere
with Gazaille's exercise of his Section 7 rights and
implied that the free exercise of those rights was
incompatible with his continued employment with
Respondent. The record in this case leaves no
doubt that Walters' requests that Gazaille quit
were, in essence, thinly veiled threats of discharge
for engaging in protected acitivity.
For these reasons, we reverse the Administrative
Law Judge's dismissal of paragraph 8(c) of the
4 Bell Burglar Alarms. Inc., 245 NLRB 990 (1979); Stoughton Trailers.
Inc.. 245 NLRB 190 (1979); Jobbers' Supple Inc. 236 NLRB 112 (1978);
726 Seventeenth Inc.. /a Sans Souci Restaurant, 235 NLRB 604 (1978).
STEINERFILM. INC.
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint and find that Respondent threatened Ga-
zaille with discharge by asking him to leave its
employ, in violation of Section 8(a)(l) of the Act.
As noted above, we also find merit in the Gener-
al Counsel's exception to the Administrative Law
Judge's dismissal of the complaint's allegation that
Respondent violated Section 8(a)(l) of the Act by
granting its employees wage increases for the pur-
pose of discouraging union membership. Respond-
ent's employees held their initial union meeting on
September 4, 1979. That evening, immediately fol-
lowing the union meeting, Respondent's plant man-
ager, Glenn Walters, had a conversation with em-
ployee Michael Gazaille, during which Walters
stated that there would never be a union at Steiner-
film and that the Company would respond to
unionization by moving its operations. Gazaille in-
formed Walters that he had seen a copy of the col-
lective-bargaining agreement of one of Respond-
ent's competitors which indicated that the competi-
tor's employees were receiving higher wages and
benefits than those paid by Respondent. Walters re-
plied that he would look into the matter and, if the
employees of the competitor were receiving higher
compensation, he would adjust Respondent's rates
accordingly.
On the following day, Respondent's president,
Gordon Walters, called a meeting of the large-slit-
ter operators and distributed copies of a new em-
ployee handbook and, on a separate sheet of paper,
a revised pay schedule. Under the new pay sched-
ule, Respondent's employees were granted substan-
tial progression increases.
The Administrative Law Judge found that the
wage increase had been under active consideration
since late July or August and was occasioned by
the fact that Respondent's employees were learning
their jobs faster than had been originally expected.
However, after a careful examination of the facts,
we are convinced that such a conclusion is unsup-
portable. First, we note that Gordon Walters was
informed on September 4 by a key union activist
that Respondent's wage rates were a principal
cause of employee dissatisfaction leading to the
union meeting. We note also that while Gordon
Walters chose to discuss Respondent's wage rates
with Michael Gazaille, he never mentioned an in-
tention to make an immediate announcement of
wage increases or that such wage increases were
already being considered. The timing of the Sep-
tember 5 wage increase is also significant. It was
announced on the day immediately following the
initial union meeting and Gordon Walters' conver-
sation with Michael Gazaille, and clearly supports
the General Counsel's contention that the wage in-
creases were designed to defuse the union activity
which Respondent knew was brewing. The fact
that the revised wage schedule was distributed
along with the new employee handbook, which
had been in preparation for several months, offers
no support to, but rather contradicts, Respondent's
claim that the wage revisions had been planned
prior to the initiation of union activity. The new
wage schedule was not published as a part of the
employee handbook but was instead distributed on
a separate piece of paper. This procedure is entire-
ly consistent with a newly conceived plan to un-
dercut the employees' nascent union activity. Last,
we find that Respondent has not offered any credi-
ble explanation as to why previously unexpected
wage increases were granted immediately after Re-
spondent's employees held their initial union meet-
ing.
Accordingly, we hold that Respondent violated
Section 8(a)(1) of the Act by granting wage in-
creases on September 4, 1979, for the purpose of
discouraging its employees from engaging in union
activity.
AMENDED CONCLUSIONS OF LAW
The Conclusions of Law of the Administrative
Law Judge are modified by deleting Conclusion of
Law 4 and adding the following:
"4. By requesting on November 13, 1979, and
November 20, 1979, that Michael Gazaille leave its
employ because of Gazaille's protected concerted
activities, Respondent violated Section 8(a)(l) of
the Act.
"5. By granting wage increases to its employees
on September 5, 1979, for the purpose of discour-
aging union activity, Respondent violated Section
8(a)(1) of the Act."
AMENDED REMEDY
Having found that Respondent had engaged in
certain unfair labor practices in addition to those
found by the Administrative Law Judge, we shall
order that it cease and desist therefrom and that it
take certain affirmative action designed to effectu-
ate the policies of the Act.
Having found that Respondent unlawfully re-
quested that Michael Gazaille leave its employ on
November 13 and November 20, 1979, we shall
order that it cease and desist from such unlawful
conduct.
Having found that Respondent unlawfully grant-
ed a wage increase to its employees on September
5, 1979, for the purpose of discouraging union ac-
tivity, we shall order that it cease and desist from
such unlawful conduct. However, nothing herein
shall be construed as authorizing or requiring Re-
STEINERFILM, INC. 771
spondent to vary or abandon any benefits previous-
ly conferred.
As the unfair labor practices committed by Re-
spondent were widespread and demonstrated disre-
gard for the fundamental rights of its employees,
we shall order that it cease and desist therefrom
and from interfering with, restraining, or coercing
its employees in any other manner in the exercise
of the rights guaranteed them in Section 7 of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Steinerfilm, Inc., Williamstown, Massachusetts, its
officers, agents, successors, and assigns, shall take
the actions set forth in the said recommended
Order, as so modified:
1. Delete paragraph I(g) of the recommended
Order and add the following new paragraphs:
"(g) Unlawfully requesting employees to leave
the Company's employ because of their union or
other protected concerted activities.
"(h) Unlawfully granting or denying wage in-
creases for the purpose of discouraging union mem-
bership. However, nothing herein shall be con-
strued as authorizing or requiring Respondent to
vary or abandon any benefits previously conferred.
"(i) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the
Act."
2. Delete the paragraph immediately following
paragraph 2(e) of the recommended Order.
3. Substitute the attached notice for that of the
Administrative Law Judge.
s Hickmott Foods. Inc.. 242 NLRB 1357 (1979).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT do anything that interferes
with, restrains, or coerces employees with re-
spect to these rights. More specifically,
WE WILL NOT threaten employees that there
will never be a union at our plant because we
would move our operations and our employees
would then lose their jobs.
WE WILL NOT threaten employees with re-
prisals because they support District 2, Inter-
national Union of Electrical, Radio & Machine
Workers, AFL-CIO, or any other labor orga-
nization, or because they in concert complain
about our wages and benefits policies.
WE WILL NOT threaten employees that there
will never be a union at our plant or that we
will get rid of union supporters.
WE WILL NOT unlawfully question employ-
ees as to why they have gone to the Union or
in regard to the filing of unfair labor practice
charges with the National Labor Relations
Board.
WE WILL NOT maintain or enforce our rule
prohibiting solicitation or distribution on com-
pany property without permission or any other
rule which unlawfully restricts employees'
rights to solicit membership in or distribute lit-
erature on behalf of District 2, International
Union of Electrical, Radio & Machine Work-
ers, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT discharge or otherwise dis-
criminate against our employees because of
their union activities or because of other pro-
tected concerted activities on their part.
WE WILL NOT unlawfully request that em-
ployees quit their jobs because of their union
activities or other protected concerted activi-
ties on their part.
WE WILL NOT unlawfully grant or deny
wage increases for the purpose of discouraging
union activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
WE WILL offer to Michael Gazaille immedi-
ate and full reinstatement to his former posi-
tion or, if that position no longer exists, to a
substantially equivalent position, without prej-
STEINERFILM, INC.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
udice to his seniority and to his other rights
and privileges previously enjoyed.
WE WILL make Michael Gazaille whole for
any loss of earnings or other benefits he suf-
fered as a result of our discrimination against
him, together with interest thereon.
STEINERFILM, INC.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: On
a charge of unfair labor practices filed by District 2, In-
ternational Union of Electrical, Radio & Machine Work-
ers, AFL-CIO, herein called the Union, in Case -CA-
16548 on September 6, 1979,1 and an amended charge on
October 23, and a charge of unfair labor practices in
Case 1-CA-16917 on December 3, an order consolidat-
ing these cases and an amended complaint was issued on
January 30, 1980. Alleged were violations of Section
8(a)(l), (3), and (4) of the National Labor Relations Act,
as amended, by Steinerfilm, Inc., herein called the Com-
pany or Respondent.
In substance, the complaint, as further amended at the
hearing, alleges that Respondent on November 20 issued
a written warning to its employee Michael Gazaille and
on November 27 discharged Michael Gazaille because he
joined or assisted the Union or engaged in other concert-
ed activities protected by Section 7 of the Act and be-
cause he filed charges or gave testimony under the Act,
and that by the foregoing and by other conduct set forth
in the complaint Respondent also interfered with, re-
strained, and coerced its employees in the exercise of the
rights guaranteed them by Section 7 of the Act. Re-
spondent duly filed an answer denying that it has en-
gaged in the alleged unfair labor practices. A hearing in
these proceedings was held in North Adams, Massachu-
setts, on March 12, 13, and 14 and April 11, 1980. Fol-
lowing the close of the hearing, briefs were filed with
me on behalf of the General Counsel and Respondent.
Upon the entire record in these cases and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Steinerfilm, Inc., a Massachusetts corporation, which
maintains its principal office and place of business in Wil-
liamstown, Massachusetts, is engaged in the manufacture,
sale, and distribution of metalized dielectric capacitor
film and related products. In the conduct of its business
Respondent annually receives goods valued in excess of
$50,000 which are shipped to its Williamstown plant
through channels of interstate commerce from points
outside the Commonwealth of Massachusetts and annual-
ly ships from its Williamstown plant products valued in
excess of $50,000 through channels of interstate com-
I Unless otherwise indicated all dates refer to the calendar year 1979.
merce to locations outside the Commonwealth of Massa-
chusetts. The answer admits, and I find, that Respondent
is an employer within the meaning of Section 2(2) en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, District 2, International Union of Electri-
cal, Radio & Machine Workers, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Company began production operations in its pres-
ent plant in Williamstown, Massachusetts, in February
1978. However, it started its business on a very small
scale in 1973, then employing only three persons. Expan-
sion was gradual until 1978 during which time the
number of employees increased to eight or nine. In 1978
the Company moved into its present quarters and its em-
ployee complement began to increase rapidly so that by
the end of 1978 it had 25 employees. By the end of 1979
it had 50 employees and as of the time of the hearing
there were between 89 and 100 employees. In 1979 the
Company obtained a permit to build a 30,000-square-foot
addition to its present building and construction of this
addition was in progress during the late summer and the
fall of 1979.
The Company produces dielectric tape, the manufac-
ture of which involves two steps: first, affixing aluminum
to one or both sides of polypropylene film and, second,
slitting the film into widths which vary from 6 to 100
millimeters. The operators who slit the film into the
smaller widths are known as small slitting operators and
the operators who slit the film into the larger widths are
known as large slitting operators. The Company normal-
ly operates two shifts: the first from 6:30 a.m. to 3 p.m.
and the second from 3 to 11:30 p.m., although in the fall
of 1979 the metalizers worked three shifts.
As of the times relevant to these proceedings the presi-
dent and principal operating official of the Company was
Gordon Walters and in charge of day-to-day operations
was his son, Glenn, who is the plant manager. Ronald
Brown supervised the six maintenance and the nine meta-
lizing employees and Norman Barber was in charge of
the slitters. The latter supervised the first shift and also
the second shift until around September 24 when John
LeFebvre was promoted to supervisor of the second
shift. (LeFebvre was suspended on December 28 and
was discharged on January 14, 1980). John Sawyer, who
was employed as a slitter, was promoted to supervisor as
of February 4, 1980. Also employed by the Company
was a second son of Gordon Walters, Duncan Walters,
who did not hold a supervisory position but performed
various rank-and-file jobs in the course of several periods
of employment and reemployment with Respondent.
Duncan Walters resided with his father.
From the inception of its business in 1973 the Compa-
ny's personnel practices were informal. As it employed
fewer than 10 persons prior to 1978 it was not necessary
STEINERFILM, INC. 773
to use timeclocks, to keep attendance records, or to have
a formal disciplinary system. However, with the rapid
growth following its move into its present, larger facility
the Company began to realize the need for a more struc-
tured personnel program. Thus, in the fall of 1979, Glenn
Walters began holding monthly meetings with the em-
ployees to discuss production and other problems; the
Company installed a timeclock and hired a consultant to
prepare an employee handbook.
The principal witnesses for Respondent were its chief
executives, Gordon Walters and Glenn Walters. Both
strove to present their testimony in a manner most favor-
able to Respondent's position. In so doing, however,
they distorted or misrepresented certain of the events
they were describing as is reflected, in particular, by var-
ious self-contradictions in their testimony and by some
farfetched, improbable explanations of their actions. I
agree with the General Counsel that these witnesses
were "combative, hostile and evasive" and I find that
they were unreliable witnesses.
B. The Organizational Effort
In August some company employees began to indicate
an interest in obtaining union representation. In mid-
August employee John LeFebvre made an appointment
to speak with Plant Manager Glenn Walters. LeFebvre
told Walters that the employees were having difficulty
living on their wages and that several employees had
been talking about contacting a union but that LeFebvre
first wanted to try "to settle things" with Walters. Glenn
Walters inquired whether that was an ultimatum that
either he did something or the employees were going to
get a union. LeFebvre responded that it was not an ulti-
matum but that the possibility of unionization was a
matter for consideration. Subsequently, LeFebvre and
another employee, James Mohl, contacted the Union.
Thereafter, on September 4, a meeting was held at the
Cozy Corner, a restaurant in Williamstown. Present were
a union representative, Patricia Pezze, and about 30 em-
ployees including Michael Gazaille. The latter signed an
authorization card for the Union and spoke in favor of
the Union, stating that he had worked in union shops
before and that the employees could have greater secu-
rity and better benefits with the Union.2
A second public union meeting was held on Sunday,
September 9, at the Greylock Community Club in Wil-
liamstown. LeFebvre acted as chairman of the meeting
as he did on September 4. Gazaille again spoke about the
employees' need for the protection and the benefits
which the Union offered. Union Representative Pat
Pezze offered to answer questions from the employees.
However, Duncan Walters began talking and created a
commotion which ultimately broke up the meeting.
Duncan Walters stated that there was no need for a
union, that the Company treated its employees well. He
pointed out that he and James Mohl had been reinstated
without any help from the Union and the Company had
never discharged anybody. He further stated that 12
years earlier Steinerfilm had started an operation in Wil-
2 Gazaille was scheduled to work on the night of September 4 and at-
tended the union meeting from 6:30 to 7 p.m. during his meal break.
liamstown but when a union attempted to organize its
employees the Company moved out of the town, even
though it had been making a million dollars per year,
and the Company would do the same thing again if nec-
essary. He said that the people who had signed union
cards should demand the return of their cards. Also, he
insisted that there be a show of hands on whether the
employees wanted a union or did not want a union. The
meeting became boisterous and broke up.
The Company was opposed to representation of its
employees by a union. In its employee handbook there is
a section entitled "STEINERFILM, INC. POLICY ON RE-
MAINING NONUNION," which begins:
We prefer to deal with people directly rather than
through a third party. Steinerfilm is a NON-
UNION organization. It always has been and it is
our desire that it always will be that way.
Glenn Walters testified that he learned of the Septem-
ber 4 meeting the same week. On September 7 he distrib-
uted a 2-1/2-page letter to the employees which in gen-
eral terms talks about the benefits the Company offers its
employees and states that while unions are free to make
promises they often are unable to fulfill their promises.
Also, on September 10, following the union meeting
on the previous night, Glenn Walters distributed another
letter to the employees which, in pertinent part, states:
I have just recently been informed that last night
there was a union organizing meeting where by a 5
to I ratio Steinerfilm employees overwhelmingly
told the union organizers that we are uninterested in
their third party interventionism.
I would like to say that I hope that this is the end
of it ....
I have not asked anyone for any type of list show-
ing union versus non-union employees and I have
actually refused to look because I am uninterested
and do not want my judgments influenced ...
Although John LeFebvre was one of the leaders of
the union movement among the employees, nevertheless,
as of September 24 he was promoted to supervisor for
the second shift. When he was offered the position Le-
Febvre advised Glenn Walters that although he would
not take a prounion stand he also would not take an an-
tiunion stand.
C. Interference, Restraint, and Coercion
Paragraph 8(a) of the complaint alleges:
On or about September 4, 1979, Plant Manager
Glenn Walters told an employee in the William-
stown plant that there would never be a union at
the plant because Respondent would move its oper-
ations and that employees would lose their jobs.
The employee referred to is Michael Gazaille who tes-
tified that, on or about 7:30 p.m. during the second shift
on the night of September 4, Glenn Walters spoke with
employees James Mohl, Craig Gregory, and Dennis St.
STEINERFILM, INC.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pierre, separately calling each away from his work, and
then spoke with each of these employees a second time.
Mohl did not return to work after his second conversa-
tion with Glenn Walters. Following these incidents
Glenn Walters had a conversation with Gazaille at his
place of work. According to Gazaille:
I asked [Glenn Walters] where is Mr. Mohl. He said
Mr. Mohl is not going to be with us until Friday. I
asked him why. He didn't say nothing. I said it is
because of the union, isn't it? He then stated to me
that there will never be a union in Steinerfilm be-
cause they will move the machines back to Ger-
many or down south and then the people in the
plant will wonder what happened to their jobs.
The conversation continued. Gazaille stated that at the
union meeting he had seen a competitor's contract which
showed that the employees at that company had better
benefits and were getting higher pay than Steinerfilm's
employees. Walters asked who showed him the contract
and Gazaille answered that he was not at liberty to tell.
Walters responded that he would contact that company
to ascertain whether in fact they were paying more than
Steinerfilm and if they were he would adjust the wages
at Steinerfilm accordingly.
Although Walters did not direct himself to the specific
incident referred to by Gazaille, he testified that since
August 1979 he did not tell or threaten employees that
Steinerfilm would close its plant. Respondent in its brief
argues that among the reasons Gazaille should not be
credited is that "Walters testified that he did hear about
the September 4 union meeting sometime during the day
of September 5. Walters testified that he did not learn of
the first union meeting until sometime later that week."
However, Glenn Walters' testimony is ambiguous as to
when he first learned of the September 4 union meeting.
Early in the hearing when he was examined by the Gen-
eral Counsel, Walters testified:
Q. When did you become aware of the Septem-
ber 4th meeting?
A. Sometime later that week.
Q. That was the meeting at Cozy Corners, is that
correct?
A. That's what I'm told.
Q. When did you find out where the meeting
took place?
A. I really don't recollect. It was an insignificant
thing where it took place to me. I don't remember
the insignificant things.
Later during the hearing when questioned by Respond-
ent's counsel, Glenn Walters testified:
Q. Did you know of any union activity at all
during that meeting? [Referring to a meeting on
September 5.]
A. I had heard of supposedly a union meeting on
the night of September 4, but ....
Contrary to Respondent, I find that on the night of
September 4 Glenn Walters knew that employees had at-
tended a union meeting. I am of the opinion that Gazaille
was a more truthful witness than Glenn Walters and I
credit his testimony concerning their conversation on the
night of September 4 and I further find that the General
Counsel has proved the quoted allegation of the com-
plaint.3
Section 8(d) of the complaint alleges:
On or about September 5, 1979, Glenn Walters
asked an employee at the Williamstown plant why
he had gone to the union; told him there would
never be a union at the plant; and threatened to get
rid of union supporters.
The employee referred to is John LeFebvre who testi-
fied that on or about 2:30 p.m. on September 5 after he
finished work he was invited into the office by Glenn
Walters and the two then engaged in a conversation
which continued for 2 to 3 hours. According to Le-
Febvre, among other things:
He asked me about the union and he wanted to
know which union was contacted. He wanted to
know why I was involved in a union. I told him
that I wasn't . . . he said, well by your presence at
the meeting you were.
I said the only things I did at that meeting was
introduce Pat Pezze who was the rep for the union
and he told me there would never be a union at
Steinerfilm; that there were only a couple of instiga-
tors that he was going to get rid of. I told him that
if he wanted to get rid of anybody that he should
have done it before they started organizing a drive,
because at this point if he was going to get rid of
anybody who was involved in organizing a union
then we would bring charges against him....
Glenn had said that there was no need for a union
because in Germany they had a group of employees
who settled grievances and he was thinking of set-
ting up the same thing over here.
Glenn Walters' version of his meeting with LeFebvre
differs substantially from the latter's. According to Glenn
Walters, LeFebvre requested the meeting. In respect to
their discussion about a union, according to Glenn Wal-
ters, "I explained to him that both our plants in Germany
and Ireland were non-Union and that we had a policy of
remaining non-Union. We would try to continue because
it's our belief that having a Unionized company would
3 Michael Gazaille is a high-strung, emotional individual. He reflected
more than the usual nervousness of an individual who is not accustomed
to giving testimony at formal proceedings. Nevertheless, his testimony
was given straightforwardly and without equivocation. Although in
giving his testimony Gazaille tended to ramble somewhat about matters
that were not directly called for by the question asked, he did not appear
to be shaping his testimony or contriving a story. I am of the opinion that
Gazaille was a truthful witness.
-- -- --
STEINERFILM, INC. 775
prevent or would inhibit our competing in the market-
place, from a competitive standpoint." Also, Glenn Wal-
ters denied that he then or at any other time said to Le-
Febvre that he would "take care of" Mike Gazaille.
In its brief Respondent argues that LeFebvre's testimo-
ny should be rejected because it is "tainted by his dem-
onstrated bias and animosity towards Respondent. As
noted above, LeFebvre was discharged by Respondent
for cause on January 14, 1980." However, LeFebvre was
a composed, articulate, and candid witness and his testi-
mony was not impeached. I am of the opinion that John
LeFebvre was a more reliable witness than Glenn Wal-
ters. I credit his testimony and find that the General
Counsel has proved the allegations of the complaint
quoted above.
Paragraph 8(b) of the complaint alleges:
On or about September 5, 1979, President
Gordon Walters told an employee in the conference
room of the Williamstown plant that the employee
was an instigator and a rabble-rouser and threatened
the employee with unspecified reprisals because the
employee supported the Union and complained
about Respondent's wage and benefits policies.
On September 5 Michael Gazaille was called to a
meeting in the Company's conference room with Gordon
and Glenn Walters. Present also was employee James
Crawford, who was a witness for the General Counsel,
although he was opposed to the Union. 4 There are three
conflicting versions of what occurred at the September 5
conference, that of the Walterses, of Gazaille, and of
Crawford.
Gazaille testified that after salutations were exchanged
Gordon Walters said:
I have been told that you are a spokesman for the
third party. And I said what third party? He says
come on now, I have been told that you are an in-
stigator and a rabble-rouser.
I replied I have never been elected to any such
post and I do not want to be put in the middle ...
He said well, he had heard differently, that I am the
spokesman for this third party. I again told him I
was not ...
He asked me what some of the basic problems
were with the people. I told him money . . . was a
pretty big issue with the people and that Glenn
Walters had taken our radio out of the slitting room
and had promised to replace it with a better one
... and we still had no radio ....
Gordon Walters inquired how Gazaille knew so much
about employee gripes if he was not the spokesman for
this third party. According to Gazaille:
I told him that I am one of the longest term em-
ployees . . . that people have approached me with
their problems and their grievances ....
4 Crawford attended the September 9 union meeting with a group of
employees, including Duncan Walters, who were opposed to the Union
and at that union meeting Crawford spoke against the Union.
Gordon Walters then told me that he would con-
duct an investigation into the allegations . . . about
[my] being a spokesman for the third party and he
would get back to me on Friday, and that if he was
wrong that he would personally apologize to me,
but if he found that he was right, that I would
pay ...
Also, during the conversation, "Gordon told me he
didn't like my smart-aleck remarks about asking for more
money." Gazaille denied that there was any discussion of
his production, tardiness, attendance, or abuse of coffee-
breaks. 5
According to the Walterses, the meeting was called
for the purpose of discussing Michael Gazaille's poor
performance on the job and also to discuss certain inci-
dents of misconduct on his part. Thus, Gordon Walters
testified that he began the meeting by referring to prob-
lems the Company had with Gazaille's performance and
with Gazaille's attitude and that he wished to find some
solution. Gazaille responded, belligerently remarking,
"[G]o ahead and do what you have to do . . . [it]
doesn't matter to me." Gordon Walters warned Gazaille
that if his performance and attitude did not improve cor-
rective steps would be taken. Again Gazaille responded,
"I don't care." According to Gordon Walters' further
testimony, "Mike implied that he was the spokesman for
the group, and I guess I told Mike, like we're working
with him, on a one to one basis, if people in the area had
problems, I'd appreciate them coming into [the] office
and talk to me, one to one, rather than going through a
third party." Gordon Walters further testified:
Q. Did you ever investigate to see if some of
these allegations he was acting for others was true?
A. Yes, sir.
Q. And, what was the result of that investigation?
A. The result proved to be more talk than valid-
ity.
Q. Would you explain that?
A. The only one that seemed to have a problem
was Mr. Gazaille and he was trying to put himself
off as a spokesman for other people in the facility.
In general, Glenn Walters corroborated the testimony of
his father. Glenn Walters denied that the Union was a
subject of discussion at the meeting. However, he testi-
fied:
Q. Did Mr. Gazaille say to you, at that point in
time, that he was a Union leader?
A. No, sir. He claimed just the opposite. He
claimed he was no way directly involved and that
he didn't intend to get involved. But, it was brought
up by Mr. Gazaille and it was not mentioned or-
never Gordon or myself brought the subject up.
James Crawford testified that he was called to the
office by Glenn and Gordon Walters and was asked to
I Gazaille also testified that on Friday. September 7, he asked Glenn
Walters what decision was made regarding his tenure and Glenn Walters
replied that Gazaille was not going to be fired.
STEINERFILM, INC.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remain as a neutral observer during a meeting with an
employee. Michael Gazaille was then summoned.
Gordon Walters did most of the talking. He asked Ga-
zaille why he was unhappy and why he was constantly
grumbing. Gazaille responded that Glenn Walters did
not keep his word and did not supply a stereo system for
the slitting room. Also, Gazaille asked for more wages.
It appeared that Gazaille believed that he was called into
the office to be discharged and several times said, "[Y]ou
called me in to fire me. Why don't you fire me." Before
the meeting was over Gordon Walters said that he
would think it over and would get back to Gazaille.
Crawford further testified:
Q. Do you recall any discussion of anyone being
a spokesman?
A. It seems like Gordon asked Mike if he was
setting himself up as a spokesman for the group.
Q. Was there any response?
A. Yeah. I believe Mike said no, that he wasn't.
Q. Was there any relationship between the dis-
cussion of Mr. Gazaille being a spokesman and the
investigation or decision that Management was
going to make?
A. I don't believe so.
A. Well, I do believe it was brought out that
Mike Gazaille wasn't helping the company with all
his grumbling and his being so discontented and let-
ting his fellow workers know this, of course.
Q. Do you recall any mention of anyone being a
rabble-rouser?
A. No, I don't think so.
Q. Do you recall any discussion of if not the
word rabble-rouser, something to that effect?
A. Well yes, in that apparently Mike's grumbling
and his being discontent was keeping other people
upset also.
Crawford also testified that there was no discussion of
Gazaille's production, tardiness, absenteeism, or abuse of
coffeebreaks and that the subject of the Union was not
mentioned at the meeting.
Although Crawford's recollection of the meeting dif-
fers to some degree from Gazaille's, he does corroborate
the substance of Gazaille's testimony. He confirmed that
there was no discussion of Gazaille's performance on the
job and that the discussion related to Gazaille's com-
plaints and attempts to speak for other employees. Thus,
while Crawford did not remember that the word
"rabble-rouser" was used, he testified that statements to
the same effect were made, that is, Gazaille was accused
of setting himself up as a spokesman for the employees
and of causing discontent among the employees. He also
remembered that Walters stated that they were going to
conduct an investigation. He did not testify what would
be the subject of the investigation although he did not
believe that it would be related to the accusation that
Gazaille was the spokesman. However, Gordon Walters,
in effect, corroborated Gazaille's testimony that at the
September 5 meeting Gazaille was told that an investiga-
tion would be made regarding Gazaille's position as a
spokesman. The difference between the testimony of
Gordon Walters and that of Gazaille is only that Ga-
zaille testified that Walters threatened that he would
conduct an investigation as to whether Gazaille was a
spokesman for a third party whereas Gordon Walters
testified that, in fact, he conducted an investigation to
determine whether the allegations were true that Ga-
zaille was acting for others.
I find, contrary to the testimony of the Walterses, that
the September 5 meeting was not concerned with Ga-
zaille's job performance or with his attitude in relation to
his work but was directed to Gazaille's activities on
behalf of himself and other employees and that Gazaille
was accused of developing discontent among the em-
ployees and was threatened with an investigation which
implied that, if the results were adverse, reprisals of
some kind would be taken against Gazaille. I find, there-
fore, that the substance of the allegations in paragraph
8(b) of the complaint have been proved.
Paragraph 8(c) of the complaint alleges:
In late October and early November, 1979, on
several occasions at the Williamstown plant, and
once by telephone to Mike Gazaille's home, Glenn
Walters asked Gazaille why he didn't leave Re-
spondent's employ.
In his brief the General Counsel states that he relies on
two incidents, one that occurred on November 13 and
another on November 20, to support this allegation of
the complaint. General Counsel argues that "[t]he sug-
gestions that Gazaille quit were unlawful, because they
were motivated by Gazaille's protected concerted activi-
ty, his union activity, and his protest of the unlawful
written warning. John Dory Boat Works, Inc., 229 NLRB
844, 848-849 (1977)." The portion of the John Dory deci-
sion to which the General Counsel alludes is as follows:
In the course of polling employees, Finkelstein
also told several employees that if they wanted the
Union they should not work at John Dory and
should go to work in a union shop. He also told
them, as he had told the union officials a few min-
utes earlier, that he could not afford a union and
would simply close the shop if the Union came in.
Such threats are manifest from the record and are
clear and serious violations of Section 8(a)(1) of the
Act.
The John Dory case does not support the General Coun-
sel's contention that an employer who merely asks an
employee why he does not leave its employ violates the
STEINERFILM, INC. 777
Act, even if the remark were motivated by the employ-
ee's pursuit of a protected concerted activity. According-
ly, I shall recommend that paragraph 8(c) of the com-
plaint be dismissed.
Paragraph 8(e) of the complaint alleges:
On or about September 5, 1979, Glenn Walters
interrogated employees in his office at the plant as
to whether they had signed union cards; told an em-
ployee to get back her union card; told employees
he had a list of everyone who signed union cards
and he would get them; and told them Respondent
would transfer work or close the plant and keep the
union out.
The General Counsel called on two witnesses, Sandra
Koch and Joan Braman, to give testimony in support of
this allegation. Koch testified that on September 5 or 6
she and employees Joan Braman and Lucille Lillie went
to the office where they spoke to Glenn Walters in order
to make him aware of the union activities in the plant.
According to Koch, Walters said that the Company
could send its business to Ireland, could shut its door,
and would do that before it would let the Union in. He
also mentioned with reference to employees who wanted
the Union that "revenge was sweet." Koch further testi-
fied that on that day or the next there was another meet-
ing with Glenn Walters. In attendance at this meeting
were Koch, Joan Braman, and Cynthia Scalise. The em-
ployees informed Glenn Walters that the Union was
making more progress than they originally had thought.
According to Koch, "Glenn asked us if we knew of
anyone who had signed cards and Cindy Scalise ad-
mitted that she had signed a card. He told her that she
should get it back and he left the room."
Joan Braman who also was called as a witness by the
General Counsel recalled only one meeting with Glenn
Walters at which were present, in addition to herself,
Koch, Scalise, and Lucille Lillie. According to Braman,
"We were talking to Glenn about the Union. He asked if
anybody had signed any cards and we said no. Cindy
had signed a card and he told Cindy to get it back ...
He said he had a list of the people who had signed the
Union cards and he said, 'Remember, revenge is sweet'
and he would get everyone on the list." Thus, while
Braman corroborated Koch's testimony to the extent that
she also testified that Glenn Walters asked about employ-
ees who had signed cards and directed Cindy Scalise to
get her card back, she did not corroborate Koch in
regard to the alleged threat to shut the plant and her tes-
timony describing the context in which Glenn Walters
made the remark to the effect that "revenge is sweet" is
different from Koch's.
Cynthia Scalise, who was called as a witness by Re-
spondent, testified that she attended only one meeting at
which Koch, Braman, Lucille Lillie, and Glenn Walters
were present. According to Scalise, she asked Glenn
Walters if she could get her union card back and "he
said, he didn't know why not." She denied that Walters
asked if anyone knew who signed union cards and
denied that Glenn Walters instructed her to get her card
back from the Union. Also, she denied that Glenn Wal-
ters said that he had a list of employees who had signed
union cards and that he would get everyone who was on
the list.
Glenn Walters denied having made the incriminatory
remarks attributed to him by Sandra Koch and Joan
Braman and his testimony regarding Scalise's desire to
retrieve her union card was similar to her testimony. I
find that the General Counsel's witnesses Koch and
Braman are less reliable than Respondent's witnesses in
regard to the event in issue and thus that the General
Counsel has not proved the allegations of paragraph 8(e)
of the complaint by a preponderance of the evidence.
Accordingly, I shall recommend that that allegation of
the complaint be dismissed.
Paragraph 8(f) of the complaint alleges:
On or about September 5, 1979, Respondent
granted a pay increase to employees in order to dis-
courage them from joining or supporting the Union.
In support of this allegation the General Counsel intro-
duced into evidence a pay scale for slitting operators
which was effective as of September 3, 1979, and devel-
oped testimony through Michael Gazaille purporting to
establish that the change in pay for the slitters was made
in response to the organizational activities which were
taking place and in order to discourage employee sup-
port for the Union. The exhibit shows a wage progres-
sion beginning at $4 for I to 3 months' employment, then
$4.40 for 3 to 9 months, $5 for 9 to 15 months, and $5.25
for 15 months and longer, plus appropriate adjustments
reflecting a 15-percent differential for the second shift
and a 25-percent differential for the third shift.6
Relative to this question Michael Gazaille testified that
he had a conversation with Glenn Walters sometime
after 7:30 p.m. on September 4 during which Walters
stated that there would never be a union at the Compa-
ny. According to Gazaille, he informed Walters that at
the union meeting held earlier that evening he had seen a
contract of a competitor, Schweitzer's, which is located
in Lee, Massachusetts, that revealed that Schweitzer's
employees were receiving higher pay and better benefits
than the employees at Steinerfilm and "[h]e told me that
he would contact this plant and check it out and see that
it was true that they were getting benefits and that he
would adjust our rates accordingly." Then, according to
Gazaille's further testimony, about 3:30 p.m. on Septem-
ber 5 the large slitting operators were called into a meet-
ing during which Gordon Walters passed out to the em-
ployees a copy of an employee handbook and a paper
containing the proposed pay scales and said that "after
careful consideration by management that they realized
that the learning curves for the job should have been ad-
justed [as] the people learned the job quicker than they
e John LeFebvre testified that on September 7 or 8 he was given an
envelope marked "personal and private" which included a new pay scale
for metalizing employees. No other evidence appears in the record re-
garding the alleged new pay scale for metalizing employees and the Gen-
eral Counsel in his brief does not refer to the testimony of LeFebvre as
supporting the allegation of the complaint quoted above. I find that Le-
Febvre's testimony does not support a finding that the metalizing em-
ployees were notified about September 5 of an increase in their wages.
STEINERFILM, INC.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thought originally, so they should be getting their raises
sooner." Gazaille testified that under the new scale he
received a 60-cent-per-hour increase.
Glenn Walters explained that in late July or August
1979 he had a discussion with Gordon Walters regarding
"the possibility of changing the rates to more accurately
reflect this actual learning curve, which was different
than what our anticipation of the learning curve was."
He further explained that employees were paid under an
automatic progression which was intended to increase
their compensation as their productivity increased and
that experience demonstrated that employees learned to
perform their jobs more quickly than had been anticipat-
ed when the Company's pay structure originally was de-
veloped. Thus, in February 1978 the Company changed
the progression increases for its employees to seven in-
crements over a 24-month period. Then, in December
1978 a second change was made reducing the number of
progression increments from seven to six and the period
from 24 months to 18. Lastly, the pay scale was further
changed effective September 3, 1979, by further reducing
the number of increments from six to four and the period
during which these progressions occur from 18 months
to 15 months.
The General Counsel in his brief argues: "Respondent
admittedly granted an across-the-board wage increase
during the week of the first public union meeting." This
does not correctly reflect the evidence. The starting rate
for the slitting operators of $4 per hour and the maxi-
mum rate of $5.25 per hour were not changed. The testi-
mony of Glenn Walters is that the number of progres-
sions was reduced and the time interval between each
progression was shortened. The effect, as experienced by
Gazaille, was that some employees received an increase
as of September 3, 1979, because they qualified for the
next higher progression as of that date, when under the
prior pay plan they might have had to wait an additional
number of months before receiving the increase. There is
no evidence that all the slitting operators received a
wage increase as of September 3, 1979. However, the
issue is not whether the Company's pay scale which
became effective as of September 3, 1979, was an across-
the-board increase or a mere adjustment in progression
intervals but whether the change was made in response
to the employees' union activities or, as testified to by
Glenn Walters, was the result of a reevaluation of the
pay progression schedule made prior to the advent of
union activity in the plant. The credited testimony of
Gazaille that on the night of September 4 Glenn Walters
stated that he would check the wage rates being paid by
Schweitzer's and if they were higher that he would then
adjust the Company's wage rates accordingly creates a
suspicion that the announcement of a new pay scale the
next afternoon was in response to the conversation be-
tween Glenn Walters and Michael Gazaille. On the other
hand, the lapse of less than 24 hours between the conver-
sation between Glenn Walters and Gazaille and the an-
nouncement of the increase would tend to support Glenn
Walters' testimony that this matter had been under con-
sideration since late July or early August. Further unre-
futed is Glenn Walters' testimony that the September 3
revision of pay scales was the third such revision in little
more than a year and a half. In addition, on September 5
the Company also distributed to the employees a new
employee handbook the preparation of which began
months earlier, before the union activities commenced at
the plant. These factors tend to bolster Glenn Walters'
testimony that the pay scale was changed as a result of
the reevaluation of the Company's wage structure which
was begun more than a month earlier, and not because of
the conversation between Glenn Walters and Gazaille on
the night of September 4. I find that the General Counsel
has failed to prove by a preponderance of the evidence
that the Company on or about September 5 granted a
pay increase to its employees in order to discourage
them from joining or supporting the Union.'7
Accordingly, I shall dismiss this allegation of the com-
plaint.
Paragraph 8(g) of the complaint alleges:
On or about January 29, 1980, Glenn Walters
telephoned an employee and interrogated him re-
garding the filing of a Charge with the Board and
impliedly threatened the Employee by suggesting
that Walters could have fired several employees on
an earlier occasion.
Paul Walsh, a second-shift slitting operator, testified
that on January 14, 1980, Gordon Walters asked him to
sign a written warning which related to an incident that
purportedly occurred on December 21 when several em-
ployees allegedly had been drinking in the plant. Subse-
quently, at a union meeting, there was discussion among
the employees to the effect that the employees who were
given the warnings were compelled to sign them and
they did not understand why they had to do so, that a
charge would be filed about the matter.
About midnight on January 29, 1980, when Walsh had
returned home after having worked on the second shift,
he received a telephone call from Glenn Walters. Wal-
ters inquired if Walsh had filed a charge to the effect
that he had been forced to sign a disciplinary warning.
Walters also asked if anyone else had signed the charge
and Walsh responded that he did not know. Glenn Wal-
ters then stated that the employees should have used the
open door policy, that the matter could have been
worked out and that it was not necessary "to do this."
Walters then asked if Walsh really felt that he was
forced to sign the warning. When Walsh replied that he
did, Walters said that "he should have fired us all back
in December when we were drinking."
I credit Walsh's testimony, which is substantially cor-
roborated by his wife who overheard the conversation.
Accordingly, I find that the General Counsel has proved
the allegations set forth in paragraph 8(g) of the com-
plaint.
Paragraph 8(h) of the complaint alleges:
On or about February 6, 1980, Respondent dis-
seminated to employees a written rule prohibiting
The General Counsel does not contend that the timing of the
changed pay scale, apart from whether it was unlawfully motivated, con-
stitutes a violation of the Act.
I
STEINERFILM, INC. 779
solicitation and distribution on company premises,
which unlawfully restricted employees' rights to
engage in union and protected concerted activity.
A document was distributed to the employees which
was intended to explain company rules in more detail
than appears in the Company's employee handbook. The
document is entitled "Company Rules and Penalties" and
sets forth as violations, among other things, "Solicitation
or distribution on Company property without permis-
sion." Glenn Walters testified that the document contain-
ing the rule in question was distributed to the employees
on January 30, 1980, that the rule had not been enforced,
and that, as it appears on the sheet that was distributed
to the employees, it contains a typographical error in
that left out are the words "Company time." Respondent
adduced no evidence indicating that at any time prior to
the hearing in these proceedings did it advise its employ-
ees of the alleged typographical error or that the rule
would not be enforced as written. Contrary to Respond-
ent, I find that the rule as it appears on the sheet which
was distributed to the employees would tend to inhibit
employees in the exercise of their statutory rights and
the fact that it may not have been enforced between Jan-
uary 30, 1980, when it was promulgated, and March and
April 1980 when the hearing in these proceedings was
held does not overcome the coercive impact of the rule.
Accordingly, I find that the General Counsel has proved
the allegations set forth in paragraph 8(h) of the com-
plaint.
D. Michael Gazaille
The complaint alleges that on November 20 Respond-
ent issued a written warning to Michael Gazaille and
then discharged him on November 27 because he sup-
ported the Union, engaged in other protected concerted
activities, and filed charges or gave testimony under the
Act.
Gazaille was hired in December 1978 as a large slitting
operator at $3.75 per hour plus a 15-percent differential
when he worked on the second shift. At that time the
large slitting operators worked a swing shift, alternating
each week between the first and second shifts; their su-
pervisor was Norman Barber. Gazaille received his pro-
gression increases as they became due and received an
additional increase of 20 cents per hour in June after he
complained to Glenn Walters that he required more
money because he lived far from the plant and his trans-
portation expenses were high. Glenn Walters testified
that prior to June 6 Gazaille was performing "a reason-
able job" and the increase reflected a merit factor.
In early September Gazaille spoke with James Mohl
and John LeFebvre about seeking union representation.
However, he was not with them when they first contact-
ed the union representatives. Gazaille attended the union
meetings on September 4 and 9 and spoke in support of
the Union on both occasions. He also signed a union au-
thorization card at the first meeting. After the organizing
drive began to fade, following the chaotic September 9
meeting, Gazaille sought to "just [keep] it alive." In Oc-
tober and November he solicited 10 to 20 employees to
sign union authorization cards and succeeded in obtain-
ing 10 signed cards.
Glenn Walters learned of Gazaille's union interest
early in September. On the night of September 4 when
Gazaille returned to work after having attended the
union meeting during his dinner break between 6:30 and
7 p.m., he had a conversation with Glenn Walters.
During their talk Gazaille inquired whether James Mohl
had been released from work because of the Union and
in response Glenn Walters stated that there would never
be a union at Steinerfilm. Also, Gazaille informed Wal-
ters that at the union meeting he had seen the contract of
a competitor, Schweitzer's in Lee, Massachusetts, which
showed that its employees were receiving higher wages
and better benefits than the employees at Steinerfilm.
The next day, September 5, Gazaille was summoned to
a relatively formal meeting in the conference room with
Gordon and Glenn Walters. The Walterses invited em-
ployee James Crawford to attend as an observer. At this
meeting Gordon Walters accused Gazaille of "setting
himself up as a spokesman" for the employees and caus-
ing unrest among the employees, and Walters threatened
to conduct an investigation of his activities. Gordon
Walters specifically expressed his objection to employees
"going through a third party" rather than treating with
him on a one-to-one basis.
On September 6 the Union filed a charge of unfair
labor practices against the Company, an amended charge
was filed (Case -CA-16548) on October 23, and a com-
plaint therein was issued on October 25, alleging viola-
tions of the Act based on Glenn Walters' conversation
with Gazaille on September 4 and the conference with
Gazaille on September 5. The Company knew that Ga-
zaille was the employee referred to in the charges and
the complaint in Case 1-CA-16548 because on October
5, 1979, the Company's attorney transmitted to the
Board's field examiner, Marvin R. Bernstein, a letter
from Glenn Walters purporting to explain the reasons for
the meeting with Gazaille on September 5. In pertinent
part, the letter reads as follows:
Our meeting with Mike Gazaille of 9/5/79 was
prompted by his August performance which
showed the most significant difference of 163% less
than this other production operator who is paid the
exact same rate.
During these six months, Mike Gazaille repeatedly
refused to work overtime when requested unless it
was convenient for him.
These two factors necessitated the need for a meet-
ing which then took place on September 5, 1979.
I find that the reasons set forth in this letter are fabri-
cations in that at the September 5 meeting with Gazaille
there was no discussion of his work performance or of
his alleged refusal to work overtime.
It would appear that by October 5 when Glenn Wal-
ters prepared the above letter for transmittal to the
Board he was concerned about documenting Gazaille's
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged poor performance. Thus, the opening paragraph
in Glenn Walters' October 5 letter states:
In response to your request regarding M. Gazaille's
production performance, we have records over the
last six months which show that M. Gazaille had an
average of 45% lower productivity than someone
who operates the same identical machine and mate-
rial as he, but on another shift.
If such records exist theywere not produced at the hear-
ing.
Respondent introduced in evidence a sheet which
compares Gazaille's production with that of another em-
ployee, Lance Blanchard, who purportedly was doing
identical work but on a different shift. The document
gives production figures for 7 days only in the month of
August and shows total production for Gazaille as
121,600 and for Blanchard as 179,200. However, the
General Counsel introduced into evidence the produc-
tion records for the period from July 7 through October
27 for all the large slitting operators which show that
Gazaille's production over the extended period compares
favorably with the production of all the other slitting op-
erators, including Blanchard's. The comparison Respond-
ent made between the production of Gazaille and Blan-
chard for 7 selected days in August is too limited to
have any bearing on whether Gazaille's performance was
average, below, or above average.
Glenn Walters continued his effort to discredit Ga-
zaille's performance by complaining about Gazaille at a
supervisors' meeting on October 21. According to the
uncontradicted testimony of John LeFebvre, who then
was Gazaille's supervisor, Glenn Walters stated that Ga-
zaille's production was less than Blanchard's.8 LeFebvre
responded that he believed Gazaille's work was good
and that Gazaille's production was good. According to
LeFebvre, "I told [Glenn Walters] that I felt Mike's
[production] was good and that Lance's was superior."
LeFebvre asked whether Walters was saying that Ga-
zaille was not doing his job or that Lance Blanchard was
a super slitter. Glenn Walters did not answer the ques-
tion.
Following the supervisors' meeting LeFebvre met
with Gazaille and told him that Glenn Walters was keep-
ing records of his production, comparing it with Blan-
chard's production; that Glenn Walters was doing this in
order to develop a basis for discharging Gazaille. Le-
Febvre recommended that Gazaille cease working on the
same machine every day and rotate machines so that it
would be more difficult to make direct comparisons be-
tween Gazaille's output and Blanchard's production. This
was done. Subsequently, when Glenn Walters learned of
the change he indicated his displeasure to LeFebvre.
In November a series of confrontations developed be-
tween Gazaille and Glenn Walters. One related to the
shift differential pay for the large slitters. Prior to Octo-
ber these employees worked a swing shift and were paid
a 15-percent premium when they worked on the second
shift. Thus, a slitter who was paid $4 per hour on the
s LeFebvre did not remember the figures that Glenn Walters gave
which Walters read from a book.
first shift received $4.60 per hour when he worked on
the second shift. In September or October, principally
because of requests from the employees, the swing shift
was discontinued. In order for the employees on the first
shift to earn not too much less than the employees on the
second shift and for the Company still to maintain the
same average hourly labor costs for both shifts, the shift
differential was reduced to 5 percent so that the employ-
ee who earned $4 per hour when he worked on the first
shift and $4.60 per hour when he worked on the second
shift, upon the establishment of the fixed shifts would be
paid $4.60 per hour if he were assigned to the first shift
or $4.40 per hour if he were assigned to the second shift.
This is in contradiction with the employees' handbook
which states that:
For fixed shift employees: An hourly differential of
10 percent will be added to the earnings for hours
worked during the second shifts.
In the fall the Company began holding meetings with
its employees for the purpose of permitting discussion of
production and other work-related problems. The meet-
ing with the large slitters which was scheduled for the
first Tuesday in November was canceled and was re-
scheduled for November 13. Then a notice was posted
also canceling this meeting. However, Gazaille spoke
with Glenn Walters and asked that the meeting be held
because there were matters to discuss. Glenn Walters
agreed and also agreed to Gazaille's further request that
the small slitting operators should be invited to the meet-
ing.
At the outset of the meeting Gazaille complained that
the second-shift slitters were not being paid the 10-per-
cent differential called for by the employees' handbook.
Glenn Walters replied that the swing shift had been dis-
continued at the employees' request and if they did not
like the new pay arrangement then the swing shift could
be reinstated. He also said that he would check with the
employees on the other shift to obtain their view with
regard to the shift-differential pay.
Gazaille then complained that when David Bassette re-
signed to accept another job he was not paid anything
from the Company's profit-sharing plan. Glenn Walters
replied that it was not good practice to give a bonus to
an employee who leaves for another job because the
Company then has to train the departing employee's re-
placement.
Gazaille also complained that the job-posting practice
was ineffective because no one who signed for a posted
job had ever been promoted. According to Gazaille,
Glenn Walters responded by saying that "all I cared
about was myself and I was just concerned with Mike
Gazaille and nobody else and I asked him I'm a greedy
little pig, right. And he says yes you are, you said it."
Before the meeting closed, according to Gazaille,
"[Glenn Walters] asked me he said if I didn't like it here
why didn't I go someplace else."
Later on the same day, November 13, Gazaille met
with Glenn Walters in the latter's office. They apolo-
gized to each other for the angry words they had ex-
changed at the production meeting. They agreed that
STEINERFILM, INC. 781
they should be able to handle their differences peacefully
and without agitating one another. After Gazaille
broached the subject Walters reassured Gazaille that
Walters had no intention of discharging him. Also, at this
meeting, Glenn Walters showed Gazaille some produc-
tion records and told him that Lance Blanchard's per-
formance was better than his.
Following Gazaille's complaint about the shift-differ-
ential pay the Company held a meeting with the large
slitters sometime between November 13 and 20. Three
sheets were distributed to the employees showing the
prior rates when the employees were working a swing
shift, the current rates, and the rates if the differential be-
tween the first and second shifts was increased from 5 to
10 percent. Gazaille testified that Glenn Walters said,
"[S]omeone is not too happy with the rates the way they
are, so you people have to decide here and now which
way it is going to be. I then asked him if we could have
a few days to discuss it amongst ourselves before we
make any decision. He said no. It had to be here and
now and it had to be unanimous." The employees were
asked to indicate their preference by signing the sheets.
Although some employees signed, Gazaille refused.
Following the meeting LeFebvre asked Gazaille to
sign a sheet indicating that he would accept a 10-percent
shift differential. However, Gazaille refused when he
was unable to obtain assurance that the increased wages
for the second-shift employees would be absorbed by the
Company rather than be met by a reduction of the wages
for the first-shift employees. Gazaille testified that he
also urged other people on the second shift not to sign
the sheet which LeFebvre was circulating. Eventually,
the Company reduced the wage rates for the first shift
by 2-1/2 percent and increased the second-shift pay dif-
ferential to 10 percent.
Between November 13 and 20 Gazaille had several
conversations with Glenn Walters who informed Ga-
zaille that Walters did not like his attitude, that his atti-
tude was not in the best interest of the Company. Glenn
Walters also complained that Gazaille was excessively
tardy which was inexcusable. Gazaille explained to Wal-
ters that he was transporting employees John LeFebvre
and Craig Gregory to work and if it were not for the
fact that he picked up these men he would not be late.
He explained that he also drove them home at the end of
the shift and he usually stayed at the plant late because
Foreman LeFebvre generally was unable to leave when
the shift ended. Gazaille argued, "If [Glenn Walters]
wanted to hit [me] for a minute or two here, I would fill
in [my timecard] at the end of the day for overtime for
waiting for John [LeFebvre]. He told me it wasn't au-
thorized and I couldn't . . . mark in my timecard at the
end of the shift for overtime."
On November 20 without first consulting any of Ga-
zaille's immediate supervisors, Gordon and Glenn Wal-
ters gave Gazaille a written warning which reads:
This notice is to inform you that despite repeated
verbal warnings regarding your job performance
over the last six months, the situation has not im-
proved adequately. These verbal warnings have in-
cluded poor output, unacceptable on time perform-
ance, insubordination, misrepresenting your work
hours, abuse of the coffee breaks, unacceptable ab-
senteeism and unattentiveness [sic] regarding your
job responsibilities.
We regret that this final warning must be handled
in written form but repeated verbal warnings have
gone unheeded.
Please understand that any further violations of
company policies will mean immediate discharge.
This was the first written warning issued to any employ-
ee other than that in August Glenn Walters issued a
warning to Ron Kelly regarding abuse of swimming
privileges at the company pool. However, although the
warning to Kelly was in writing it was informal because,
according to Glenn Walters, he wrote the warning in
longhand, he retained no copy, and no copy or other
memorandum in regard thereto is included in the Com-
pany's personnel files.
Glenn Walters testified that what prompted him to
give Gazaille a written warning on November 20 is that
he observed Gazaille arrive for work between 3:10 and
3:15 p.m. when he was scheduled to be at work at 3
o'clock and upon checking Gazaille's timecard found
that Gazaille had reported that he had arrived at 3 p.m.
Glenn Walters further explained when questioned by Re-
spondent's counsel that the reason he gave the warning
to Gazaille on November 20 "was because of his tardi-
ness that day and his mis-reporting . . . the time at
which he arrived and the fact that this was a recurring
event regardless of my verbal warnings to Mr. Gazaille
as well as regardless of John LeFebvre's-the supervi-
sor's warnings to the individual, and we-upon discus-
sion with those involved, we felt that it would be-we
should give due notice so that Mr. Gazaille could take
corrective action." 9
The warning does not refer to the incident described
by Glenn Waltersl ° and the general nature of its accusa-
tions-omitting as it does when the alleged "verbal
warnings" were given and who gave the alleged "verbal
warnings" and the vague description of the alleged dere-
lictions-suggests that the instrument was intended as a
prelude to Gazaille's termination. I do not credit Glenn
Walters' testimony that when the November 20 written
warning was issued there was no plan to discharge Ga-
zaille. The tone of the November 20 letter indicates
the contrary, as it warns Gazaille that a single infraction
of company policies-which both Glenn and Gordon
9 When questioned by the General Counsel regarding the November
20 written warning to Gazaille, Glenn Walters inconsistently testified:
Q. Am I correct that you never discussed with either of the super-
visors the fact that you were planning or considering giving a rit-
ten warning to Mr. Gazaille'
A. To the best of my recollection, that's correct.
'o Gazaille denied that he as late on November 20 Respondent did
not offer any evidence to corroborate Glenn Walters' testimony that Ga-
zaille arrived for work 10 to 15 minutes late If Gazaille had been late
Foreman John LeFebvre also would have been late as he rode to work
with Gazaille Hov.ever. IeFebre wras not questioned about the subject.
' By October 21 Foreman John l.eFebvre had come to the conclu-
sion that the Company was seeking to develop production statistics
which would appear lo ijustif, Gazaille's termination
STEINERFILM, INC.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walters testified were informal and not carefully de-
fined' 2 so that the employees could not be certain as to
what they were-would result in his immediate dis-
charge. Tending to confirm this is a letter written by
Glenn Walters to an agent of the National Labor Rela-
tions Board on January 2, 1980, wherein he states:
The written warning of November to M. Gazaille
was given because due to pending cases with the
N.L.R.B., I was advised that we must document
our actions in a more formal manner as opposed to
verbal warnings. So, on advice from counsel, we
issued a written warning to M. Gazaille because of
the numerous verbal warnings which had been
issued and to prevent him from saying that he was
not given sufficient warning.
It would appear from this letter that the written warning
was issued in anticipation and in defense of any com-
plaint that might be made following Gazaille's termina-
tion.
No contemporaneous record was made of the alleged
verbal warnings which the November 20 letter states
were given to Gazaille.13 Glenn Walters did not in his
testimony at the hearing describe any of the so-called re-
peated verbal warnings allegedly given to Gazaille other
than that at some unspecified time Supervisor Norman
Barber informed Glenn Walters that Barber personally
had spoken to Gazaille about Gazaille's alleged abuse of
coffeebreaks."4 Gazaille denied that he had received any
12 The employee handbook which was distributed on September 5 was
a draft that was circulated for comments and was not strictly observed as
is reflected by the fact that the Company thereafter established a shift dif-
ferential for large slitting operators at 5 percent when the handbook
specifies that shift differentials should be 10 percent.
13 Two documents were introduced in evidence, each dated November
9, 1979. which state that verbal warnings had been given to Gazaille on
August 10 and 29, September 5, and in the month of October. However.
these documents are memoranda to the file prepared by Glenn Walters
after the alleged events. The references to the first three warnings do nlot
indicate who gave the warnings to Gazaille or what Gazaille was told.
The memorandum with respect to the October warning states merely that
"lverbal] warning was given to Mike Gazaille in the month of October
by Glenn Walters because of poor attendance record." While the latter
memorandum discusses Gazaille's attendance record it does not indicate
what was told to Gazaille. Glenn Walters did not confirm by testimony
at the hearing the statement in his file memorandum that he gave a verbal
warning to Gazaille in October. Further, according to Walters, the
memorandums were prepared, not in the normal course of business, but
at the request of Respondent's attorney for transmittal to the Board.
14 The General Counsel called Glenn Walters as his first witness. Pre-
sumably, in observance of hearing procedure, this was done to elicit testi-
mony from Glenn Walters in support of the General Counsel's prima
facie case. However, the larger part of Glenn Walters' examination by the
General Counsel would appear to have been an attempt to discredit Re-
spondent's defense before Respondent had an opportunity to present its
defense. During the General Counsel's examination of Glentn Walters the
following questions were asked and answers given:
Q. Now, could you tell me wrhen it was that you first became
aware of significant problems in Mr. Gazaille's work or his conduct'
A. In I believe late May of 1979.
Q In fact, were the problems that were oted in Mr. (azaille's
employmetit the subject of any counseling sessions, or verbal warn-
ings involviing Mr. Gazaille?
A. ihat's correct. There were a number of them
Had this testimony been developed by Respoludent as part of its defense I
would attribute no weight to it because it lacks specificit. It does not
state whol counseled or wa;rned Gazaille or when, hos, marn) tlies and
about what he was counseled or warlned tHoseer. it swas not Respond-
such verbal warning from Barber and I credit Gazaille's
denial. 5 The only other specific evidence of any alleged
warnings given to Gazaille are the conversations be-
tween Gazaille and Glenn Walters between November
13 and 20, referred to above, in which Glenn Walters in-
formed Gazaille that Walters did not like Gazaille's atti-
tude and that Walters considered that Gazaille had been
excessively tardy.
The November 20 letter states that the verbal warn-
ings given to Gazaille "have included poor output, unac-
ceptable on time performance, insubordination, misrepre-
senting your work hours, abuse of the coffee breaks, un-
acceptable absenteeism and unattentiveness regarding
your job responsibilities." Respondent in its brief asserts
that "the record shows that the warning issued to Ga-
zaille on November 20 was proper and warranted in
view of Gazaille's proven poor work performance, tardi-
ness, absenteeism, etc." Despite this assertion the brief
discusses only the evidence relating to Gazaille's alleged
poor work performance, it does not discuss Gazaille's
other alleged derelictions referred to in the November 20
letter. I find that Respondent has not proved that Ga-
zaill: was deficient or guilty of the offenses or inadequa-
cies referred to in the November 20 letter. As discussed
above, I find that Respondent has not established that
Gazaille's work output was less than satisfactory. Al-
though Gazaille was tardy from time to time that was
not considered a serious deficiency because the two indi-
viduals who rode to work with Gazaille also were tardy
and Respondent did not find it necessary to warn them
about their tardiness. 16 I further find that Respondent
has not established that Gazaille misrepresented his hours
of work to an objectionable degree, abused coffeebreaks,
was insubordinate, was excessively absent, or was inat-
tentive with respect to his job responsibilities. In regard
to these alleged derelictions the testimony of Glenn Wal-
ters and Norman Barber was substantially discredited
and therefore does not have sufficient probative value to
prove the assertions.
ent but the General Counsel who chose to question Glenn Walters about
the subject and it was the Genleral Counsel who failed to elicit the specif-
ics. If Respondent's attorneys were satisfied with the testimony as devel-
oped by the General Counsel they were under no obligation to cross-ex-
amine Glenn Walters in order to provide the details and specifics which
the General Counsel did not develop upon the direct interrogation of
Glenn Walters. Accordingly. I accept Walters' testimony that after May
1979 there were counseling sessions or verbal warnings concerning Ga-
zaille's employment problems However in the absence of other explana-
tion. I construe this testimony to refer to the same verbal warnings which
are discussed in the text of this Decision.
1' Norman Barber testified that there sas a general problem in regard
to the abuse of coffeebreaks and that he "talked to them as a group about
that. taking loiger than the ten minutes.. I talked, it was two or three
times before I got that under control because. like I said the employees]
figuredl that if Mike [Gazaille] could do it, they would do it. That's the
answer I got." Thus, it does nlot appear from Barber's testimony that he
gave aliy warning to (Gazaille separately. Further. I am of the opinion
that Bharber's testimony is without value When he was questioned on
direct examination by Colmplany's counsel he testified at some length con-
cernilig Gaiaille's poor productilln Ho cescer. oin cross-examination his
testimony as tholroughly discredited. Because If the inconsistercies and
self-conlradictionis in Barber's testimonyy. among oither reasons. I find that
he s;as anl unreliable wsitness whose teslimniony cannot he given ally credit.
' According to Gazaille's uncontradicted testimony he drove John
L eFebs re to and frotm svirk ex ery da ad Craig Gregory tin a less reg-
ular basis
STEINERFILM INC. 783
I do not credit Glenn Walters' testimony that the No-
vember 20 written warning was given to Gazaille be-
cause Gazaille was late for work on that day and falsi-
fied his timecard to show that he had arrived on time.
Gazaille denied that he arrived late on November 20. No
evidence was offered to corroborate Glenn Walters' con-
trary testimony. John LeFebvre rode to work with Ga-
zaille so that, if Gazaille were late, so was LeFebvre.
However, no evidence was offered suggesting that Le-
Febvre was late on November 20. Finally, if Gazaille's
tardiness on November 20 was the precipitating reason
for the issuance of the written warning it is strange that
that was not referred to in the letter itself. The circum-
stance that no credible reason has been offered for the
issuance of the November 20 warning letter-a letter
which exaggerates the "repeated verbal warnings" which
purportedly had been given to Gazaille and which issues
a final interdiction against any additional violation of so-
called company policies upon penalty of immediate dis-
charge-suggests that the purpose of the warning was
not merely cautionary but that it was intended as a de-
fense against any complaints that might be registered
upon Gazaille's discharge. I find that the November 20
warning to Gazaille was not issued in pursuit of any le-
gitimate business purpose but was another block in the
barrier the Company was erecting seeking to shield itself
from the accusation that the discharge of Gazaille-
when it occurred-was for an unlawful reason.
Gazaille was disturbed by the warning he received on
November 20. He testified, "I told Gordon Walters that
these were a bunch of lies and these were not facts and
that I realized what his next step was going to be and
that when he made his next step that he should have his
records in order because I had mine in order." Gazaille
left the office and returned to work.
About 15 minutes later Glenn Walters walked into the
area where Gazaille was working.17 Gazaille began a
conversation with Walters by saying, "I don't like to be
threatened."' Glenn Walters aproached Gazaille and
said that it was not a threat, that they were the facts.
Then, according to Gazaille:
I said facts like there will never be a union in
Steinerfilm . . . Mr. Walters said you said that, not
1. I says it's all lies. It is garbage and I know what
you are trying to do. My adrenalin is up. I am all
wired up. I don't like this one bit.
I told him I am tired of being sodomized. I told
him that you are interfering with an American elec-
tion. That you are thriving on divide and conquer
and if you get rid of me there are more than just I
and you are not going to get away with it.
'1 Glenn Walters testified that customarily he inspects the production
areas about the time the shifts change. He further testified that "or that
particular day. another reason [he went to the area where Gazaille was
working] was very obviously the fact that Mike Gazaille . . . had left the
office in a very hot-tempered-in a very upset manner. and I certainly
did not want to see my supervisors get ill any kind of either verbal or
physical hassle with Mr. Gazaille on accouentf . . . a wrilten warnillng.
I' Glenn Walters testified that "Mr. Gazaille yelled over to me. 'is this
some kind ofr threat?' aving the warning in his hand, and I turned to
him to address him. and it was at that time that I noticed he was animlat-
ed and obviousl very emotional, and I told hin that this %sas not a
threat and he siay. WVell it appears to me a i it', a tIhrl ea
He had better have his facts ready when he
makes his next move. He told me I liked to twist
things around and make them to my benefit and my
advantage and I told him I says no. I'm dealing
with the facts here. I am trying to but you are not
letting me deal with the facts.
He told me that if I didn't like it leave. I says I
have a lot of stamina and that he was a tough nut to
crack and that he would crack. Then I asked him, I
said, look, if you want to settle it, let's go out in the
cornfield. We'll settle it ourselves.
He says are you threatening me. I said no I am
not threatening you. I said you are the one that
likes to threaten people. Then we carried on about
he called me a liar and I says, right, Mr. Walters, a
man with your impeccable character does not lie.
He called me a liar and then I told him I said you
are an ingrate. People here are helping making [sic]
you what you are and since I have been here I have
never once seen you pat anybody on the back. It is
always you are doing this wrong; you can't do this:
you are behind on this. This is no good and that's
no good.
Gazaille then challenged Walters to a race operating the
slitting machines to see who was the better operator.
Glenn Walters did not accept. There was further discus-
sion during which Gazaille mentioned that even though
Glenn Walters was educated the working people were
not as stupid as he seemed to think. Gazaille accused
Walters of trying to rule with an iron hand. Walters re-
sponded that the Union was communist-backed and that
Gazaille was a communist because he backed the Union.
Gazaille answered that he "didn't want to discuss it with
him any further, that [Walters] disgusted" him. The con-
versation ended then.
Gazaille further testified that while he was talking to
Glenn Walters he was nervously walking about "clasping
one hand into the other and cracking the knuckles and so
on and so forth."
Glenn Walters' version of their conversation does not
differ substantially from Gazaille's. Walters testified that
Gazaille "was very animated, was walking around the
machine, and was walking up to me and was jumping
up-more or less jumping up and down on his toes and
hitting his fist into his hand," but that he never swung
his fist in a manner that would suggest that Gazaille was
trying to strike Walters. Walters further testified:
Q. And he was very upset when you started talk-
ing to him; he was very upset.at the end, was he
not?
A. That's-well, he was less upset at the end
than at the beginning.
Michael Gazaille was discharged by Glenn Walters on
November 7. When Gazaille reported for work on that
day he was directed to Glenn Walters' office in which
were present Supervisors Ron Brown and John Le-
Febvre. According to Gazaille:
STEINERFILM. INC.
784 DECISIONS OF NATIONAL LABOR REL.ATIONS OARD
Mr. Walters was reading a piece of paper. He
says after an investigation by himself that I have
been found guilty including but not limited to
threats of physical violence. That I was discharged
of my duties as of then and do I have anything to
say in my defense.
I told him that it is lies. Half-truths. I told him, I
says, this is not a threat, but I will see you later and
I asked him how about my pay, then, if I am dis-
charged. He says just a minute. He went out and he
came back with two checks and he handed them to
me.
In regard to the reason for discharging Michael Ga-
zaille, Glenn Walters testified:
Q. You stated that Mr. Gazaille was discharged
due to threatening of another employee, specifically
Glenn Walters, yourself, right?
A. Correct.
Glenn Walters further explained that:
. .after giving [Gazaille] a warning and after being
physically threatened by Mr. Gazaille out in the
production area, I felt that I should discuss with
people in the plant as well as with Counsel outside
the plant as to how we should handle a particular
situation like that, and after discussing with people
who were witnesses of the event, both supervisory
as well as fellow employees, we reached the conclu-
sion that it, in fact, was a reprehensible act, and
really, you cannot run a company by allowing this
type of thing to go on without having the entire
disciplinary structure collapse into a state of anar-
chy, and we felt that there was nothing to do but to
call Mr. Gazaille in and to at least ask him what he
had to say in his defense before we made our final
decision, and [in] the course of that discussion, Mr.
Gazaille just said, "I don't know what you're talk-
ing about" and stormed out of the office.
In its brief Respondent asserts that "Gazaille's dis-
charge on November 27 was as a result of his threats of
physical violence directed towards Plant Manager Glenn
Walters in the presence of other employees." This con-
firms the position Respondent expressed at the opening
of the hearing that Gazaille was discharged because he
threatened the plant manager with physical violence.
However, contrary to Respondent, I find that Gazaille
did not threaten Glenn Walters with "physical violence."
Michael Gazaille was agitated when he spoke with
Glenn Walters in the plant on November 20. Gazaille
paced around his machine nervously, made gestures with
his hands, and from time to time struck one fist into the
palm of his other hand. These gestures were not directed
towards Glenn Walters and Walters had no reasonable
basis for believing that Gazaille might strike him. The
specific reason asserted by Respondent for Michael Ga-
zaille's termination that he made "threats of physical vio-
lence directed towards plant manger Glenn Walters" is
unsubstantiated.
Gazaille's discharge on November 27 followed a series
of events suggesting that sometime between September 4
and October 5 Respondent had decided to terminate him.
Respondent sought to develop records indicating that
Gazaille's production was unsatisfactory. The evidence,
however, is to the contrary. In November the Company
began to accelerate its efforts to develop a record of der-
elictions on Gazaille's part. Thus, in November, Glenn
Walters found occasions to complain to Gazaille and also
to Gazaille's supervisor, John LeFebvre, about Gazaille's
bad attitude and tardiness. Finally, the warning of No-
vember 20 was issued for which Respondent has been
unable to establish any justification. The warning precipi-
tated the confrontation between Gazaille and Glenn Wal-
ters. During their discussion Gazaille made some intem-
perate statements. These can be excused because of the
charged emotional state in which Gazaille found himself
following receipt of the unjustified warning that any
future violation of company policies would result in his
immediate discharge. Further, Respondent does not con-
tend that Gazaille was discharged because of his intem-
perate language. The reason asserted by Respondent for
Gazaille's discharge, namely, that he threatened Glenn
Walters with physical violence, was pretextual and the
true reasons are quite different.
The Company was openly opposed to the organization
of its employees and was opposed to dealing concertedly
with its employees as is reflected by Gordon Walters'
remark that he wished to deal with the employees on a
one-to-one basis. Further, following the encounters be-
tween Gazaille and Glenn and Gordon Walters on Sep-
tember 4 and 5 the Union filed unfair labor practice
charges which resulted in the issuance of a complaint
against Respondent and Respondent was aware that Ga-
zaille was the central figure in those proceedings. Re-
spondent stated in its letter of January 2, 1980, to Dave
Rankin of the National Labor Relations Board: "The
written warning of November to M. Gazaille was given
because due to pending cases with the N.L.R.B., I was
advised that we must document our actions in a more
formal manner as opposed to verbal warnings." As I find
that the reason given by Respondent for Gazaille's dis-
charge is false, I must look elsewhere for the true expla-
nation. In this case there is ample justification for finding
that the true reasons lie in Gazaille's union activities, his
leadership in pressing employees' grievances, and be-
cause of the unfair labor practice charges that were filed
on his behalf. Also, I find that the warning which was
issued to Gazaille on November 20 was part of the pat-
tern of unlawful activity initiated by Respondent direct-
ed towards Gazaille's discharge. Accordingly, I find that
by issuing the warning to Michael Gazaille on November
20 and by discharging Michael Gazaille on November 27
Respondent has violated Section 8(a)(l), (3), and (4) of
the Act.
STEINERFILM. INC. 785
IV. THE EFFECT OF THE UNFAIR I.AHOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices I shall recommend that it cease and
desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully issued a
warning notice to Michael Gazaille on November 20,
1979, I shall recommend that Respondent expunge said
warning notice from its personnel files and records.
Having found that Respondent unlawfully discharged
Michael Gazaille on November 27, 1979, I shall recom-
mend that Respondent offer him immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and privi-
leges previously enjoyed. I shall also recommend that
Respondent make Michael Gazaille whole for any loss of
earnings and other benefits he suffered by reason of Re-
spondent's unlawful conduct. The loss of earnings shall
be computed as prescribed in F. W. Woolworth Company,
90 NLRB 289 (1950), with interest thereon to be com-
puted in accordance with Florida Steel Corporation, 231
NLRB 651 (1977).'19
Upon the basis of the foregoing findings of fact and
upon the entire record in these cases, I make the follow-
ing:
CONCLUSIONS OF LAW
1. By issuing a warning notice to Michael Gazaille on
November 20, 1979, and by discharging Michael Gazaille
on November 27, 1979, because of his activities in sup-
port of the Union, his concerted activities which are pro-
tected by Section 7 of the Act, and the charges on his
behalf which were filed under the Act, Respondent has
violated Section 8(a)(l), (3), and (4) of the Act.
2. By its other conduct found above which interfered
with, restrained, and coerced employees in the exercise
of the rights guaranteed them in Section 7, Respondent
has violated Section 8(a)(1) of the Act.
3. Respondent's violations of Section 8(a)(l), (3), and
(4) of the Act are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
4. Respondent has not engaged in the violations of the
Act set forth in subparagraphs (c), (e), and (f) of para-
graph 8 of the complaint herein.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in these proceedings, and pur-
19 See. generally. AIs Plumbing & Ileating Co., I.38 NlRI 716 (1962)
suant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER 20
The Respondent, Steinerfilm, Inc.. Williamstown., Mas-
sachusetts, its officers, agents, successors, and assigns.
shall:
1. Cease and desist from:
(a) Threatening employees that there will never be a
union at the Company's plant because the Company
would move its operations and the employees would
then lose their jobs.
(b) Threatening employees with reprisals because they
support the Union, or any other labor organization, or in
concert complain about the Company's wages and bene-
fits policies.
(c) Threatening employees that there will never be a
union at the Company's premises and threatening em-
ployees that the Company will get rid of union support-
ers.
(d) Unlawfully questioning employees as to why they
have gone to the Union or in regard to the filing of
unfair labor practice charges with the National Labor
Relations Board.
(e) Maintaining or enforcing its rule prohibiting solici-
tation or distribution on company property without per-
mission or any other rule which unlawfully restricts em-
ployees' rights to solicit membership in or distribute lit-
erature on behalf of the Union or any other labor organi-
zation.
(f) Discharging or otherwise discriminating against its
employees because of their union or other protected con-
certed activities.
(g) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes of the Act:
(a) Expunge from its personnel files and records the
warning notice issued to Michael Gazaille on November
20, 1979.
(b) Offer to Michael Gazaille immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority and to his other rights and
privileges previously enjoyed, and make Michael Ga-
zaille whole for any loss of earnings and other benefits
he suffered as a result of the discrimination against him
in the manner set forth in the section of this Decision en-
titled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
2 1In the event no exceptions are filed ;is pro ided h Sec 102 46 of
tilhe Rules and RegulalionIs of the National Labor Relations Hoard the
findings. concIlsions. arid recommended Order hereill shall, as provided
in Sec 102 48 of the Rules and Regulations. be adopted hb the HrBoard an
become its findings. conclusions, aInd ()rder. and all objlctilons hereto
sh;ll be dvened l;aivcd for all purposes
STEINERFILM. [NC. 5
786 DECISIONS OF NATIONAL LABOR REL.ATIONS B(OARD
cords necessary to analyze the amount of packpay due
under the terms of this Order.
(d) Post at its place of business in Williamstown, Mas-
sachusetts, copies of the attached notice marked "Appen-
dix." 2 ' Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly signed
by Respondent's representative, shall be posted by Re-
'I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees 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.
(e) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that paragraphs 8(c), (e), and
(f) of the complaint in these proceedings be dismissed.