Yankee Lobster Co.

National Labor Relations Board - Board Decisions

Sep 24, 1965

154 N.L.R.B. 1590 (N.L.R.B. 1965)

1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employee to dismissal . The record shows that Vaughn had not even had one
written reprimand . Respondent contends , however, that the provision concerning
reprimands applies only to minor or unintentional infractions of company rules and
not to willful violations such as those engaged in by Vaughn . 6 This provision regard-
ing reprimands and a list of 24 rules in the employees ' handbook , the infraction of
which is said to constitute cause for termination of employment , appear to be confus-
ing if considered as guides for determining whether employees will merely be repri-
manded or otherwise disciplined for infraction of company rules. However, even
if Respondent did not follow what might be considered a correct interpretation of the
provisions of the handbook , this fact would not prove that Respondent was discrimi-
natorily motivated in discharging Vaughn.
Vaughn appeared to be an overly sensitive and hot-tempered employee and I have
no doubt that he sincerely believed that he was being mistreated in various ways
subsequent to his testimony in the case involving employee Cox. Nevertheless, the
record does not warrant a finding that he was in fact discriminatorily treated. Nor
does it warrant a finding that he was denied the right to talk to General Manager Hart
on August 24. The matter about which he wished to consult Hart was not of such an
urgent nature as reasonably to excuse him for walking off his job prior to the arrival
of a regular relief man , or for his insubordinate conduct toward Foreman Wyatt. I
am convinced from all the testimony, and find, that Vaughn was discharged for
cause and not because of his prior testimony.
IV. THE REMEDY
There is now outstanding against Respondent a Board order in Cases Nos. 9-CA-
3015 and 9-CA-3115 (150 NLRB 998) which requires Respondent to cease and
desist from prohibiting the solicitation of union membership on company property
during nonworking hours, and to post an appropriate notice. That order is broad
enough to cover the violation found in this case. Accordingly, whether or not
Respondent has posted the notice required in that case and revised its no-solicitation
rule to conform to that order-as Respondent says in its brief it has done-no useful
purpose would be served by again issuing a cease and desist order and requiring
another notice to be posted. Compliance with the order already issued would remedy
the violation herein found. There is therefore issued the following:
CONCLUSIONS OF LAW
1. By maintaining and giving effect to a no-solicitation rule which prohibits
employees from soliciting for the Union during nonworking time, except with
Respondent's permission, Respondent has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in Section 7 of the Act, in viola-
tion of Section 8(a) (1).
2. The aforesaid unfair labor practice affects commerce within the meaning of
Section 8 (a) (1) of the Act.
3. The General Counsel has not established by a preponderance of the evidence
that Respondent discharged or otherwise discriminated against employee Vaughn in
violation of Section 8(a) (4) of the Act, or that it has violated Section 8(a) (1), except
in the respect above mentioned.
RECOMMENDED ORDER
It is hereby ordered that Respondent's motion to dismiss the complaint be, and it
hereby is, granted, and the complaint is accordingly dismissed.
6 Referring to rule 5 which covers "Walking off the job" and rule 6 which covers
"Insubordination."
A. Joseph Faro d/b/a Yankee Lobster Co. and Seafood Workers
Union , ILA, Local 2, Series 1572, AFL-CIO. Case No. 1-CA-
4545. September 24,1965
SUPPLEMENTAL DECISION AND ORDER
On October 14, 1964, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding , finding that Respondent
154 NLRB No. 133.
YANKEE LOBSTER CO. 1591
had engaged in and was engaging in certain unfair labor practices
and ordering that it cease and desist therefrom and take certain
affirmative action, and recommending that the complaint be dismissed
in all other respects. Respondent failed to file timely exceptions
thereto, and on December 3, 1964, the National Labor Relations Board
issued an Order adopting the findings, conclusions, and recommenda-
tions of the Trial Examiner, ordering Respondent to reinstate Joseph
Fallon, and to cease and desist from interrogating employees about
union activities and from threatening to close the plant if it became
unionized.
Thereafter, on a petition by the Board for summary entry of an
enforcement decree, the United States Court of Appeals for the First
Circuit issued a decree on February 23, 1965, enforcing the Board's
Order. Upon Respondent's petition for rehearing, alleging that it
had newly discovered evidence bearing upon the credibility of Arthur
Osborne, a witness for the General Counsel, the court vacated its
decree on March 4, 1965, and remanded the case to the Board "to con-
sider whether, in its discretion, it wishes to reopen the matter and
reconsider its decision leading to its order of December 3, 1964."
In finding that Respondent knew of Fallon's union activities prior
to his layoff, the Trial Examiner had relied principally on employee
Osborne's testimony that Faro had admitted to Osborne that he had
laid Fallon off partly because Fallon had passed out union cards. On
this crucial issue of whether Faro had learned of Fallon's union activi-
ties before the layoff, as well as on several other matters, Osborne, in
three posthearing affidavits, first admitted having misstated material
facts at the hearing, then retracted his admission, and later admitted
again making such misstatements. It was on the basis of Osborne's
first two posthearing affidavits that Respondent petitioned the court
to have the case remanded to the Board for further consideration.
Following the remand from the court, the Board, on July 28, 1965,
issued and caused to be served upon the parties a notice to show cause,
in which the Board stated that it appeared from Osborne's conduct,
both at and after the hearing, that his hearing testimony was unreli-
able, and that, without his testimony, the evidence in the record might
be insufficient to support the Board's finding that Respondent knew of
Fallon's union activity before his layoff. Therefore, the Board
requested that the parties show cause on or before August 9, 1965, why
the Board should not treat Osborne's testimony as unworthy of cre-
dence, and why, in that event, it should not dismiss the complaint in
its entirety.
Both Respondent and the General Counsel filed timely replies to the
notice, with Respondent supporting the proposed Board action. The
General Counsel did not take issue with the Board's view of Osborne's
credibility, but did object to dismissal of the complaint. He argued
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Trial Examiner's findings could be affirmed without relying
on Osborne's testimony. In the alternative, he requested that the
Board reopen the hearing or remand the matter to the Trial Examiner
for supplementary action. However, the General Counsel did not
specify what evidence he would introduce at a reopened hearing.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision, the testi-
mony given at the hearing, the affidavits and brief submitted by
Respondent to support its petition to reopen the hearing, the answer-
ing affidavit and papers in opposition submitted by the General Coun-
sel, the notice to show cause, and the replies thereto submitted by
Respondent and the General Counsel.
In the absence of a showing of cause to the contrary, the Board finds
that Osborne's hearing testimony must be completely discredited for
the reason stated in the notice.
The General Counsel argues that in lieu of dismissing the complaint,
the Board should either reopen the hearing or remand the case to the
Trial Examiner. We disagree. The General Counsel has submitted
no offer of proof to show that a reopened hearing would serve a mean-
ingful purpose. Nor do we believe that any purpose would be served
by remanding the case to the Trial Examiner for supplementary find-
ings. We are adopting the Trial Examiner's evidentiary findings
except to the extent that they rest on Osborne's testimony, and the
basic issue now before us is whether, without his testimony, there is
substantial evidence in this case to support a finding of an 8(a) (3)
violation.
We are satisfied there is not. Without Osborne's testimony, the
record neither supports the Trial Examiner's subsidiary finding that
Respondent knew of Fallon's union activity before his layoff, nor her
ultimate finding, which is substantially predicated thereon, that Fal-
lon was laid off because of such activity in violation of Section 8(a)
(3). Consequently, we reverse the Trial Examiner's 8(a) (3) finding.
Further, aside from Osborne's discredited testimony, there is no evi-
dence to support the Trial Examiner's finding that Respondent inter-
rogated Osborne in violation of Section 8(a) (1). We therefore
reverse that finding as well.
Accordingly, we shall set aside that part of our original Order which
adopted the Trial Examiner's findings and recommendations with
respect to the interrogation of Osborne and the discriminatory prac-
tices against Fallon. The Trial Examiner's remaining Section 8(a)
(1) finding, concerning Faro's statement to Fallon that he would close
the plant if it were ever organized, a statement made several months
before union activity began, is unaffected by the discrediting of
WHITE CONSOLIDATED INDUSTRIES, INC. 1593
Osborne's testimony. However, we do not believe that this isolated
incident is sufficiently serious, standing alone, to warrant a remedial
order.
In view of the foregoing, we shall dismiss the entire complaint in
this case.
[The Board dismissed the complaint.]
White Consolidated Industries , Inc. and United Steelworkers of
America, Local 3700 , AFL-CIO. Case No. 13-CA-6099. Sep-
tember 24,1965
DECISION AND ORDER
On May 10, 1965, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in unfair labor practices as alleged in the complaint
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs. The Respondent filed a
brief in support of the Trial Examiner's Decision and later filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
'The principal issue in the case involves the Trial Examiner's recommended dismissal
of Section 8(a) (5) violation allegations of the complaint predicated upon a Fibreboard
theory. Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203. We adopt the
Trial Examiner's recommendation upon the grounds that after the Union received notice
of Respondent's decision to terminate operations at the Chicago plant-the timeliness
and adequacy of which is not before us for consideration as it occurred more than
6 months before the filing of the charge-the Union did not object to Respondent's plans
or request bargaining with respect to either the decision or its impending effect upon
unit employees, but instead raised issues only as to certain contractual benefits it claimed
unit employees to be entitled to upon discharge. Motoresearch Company and Kems Cor-
poration, 138 NLRB 1490, 1493.
154 NLRB No. 127.