Pioneer Fishing Corp., 1299 (1980)
PIONEER FINISHING CORPORATIONPioneer Finishing Corporation and Kenneth Pacheco, Richard M. Drolet, and John Moniz.Cases 1-CA14495-1, 1-CA-14495-2, and 1-CA-14526 February 21, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On June 6, 1979, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, General Counsel filed cross-exceptions and a brief in support thereof and in partial support of the Administrative Law Judge's Decision, and Charging Party filed a brief in opposition to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, to modify his remedy,2 and to adopt his recommended Order, as modified herein.' The General Counsel excepted to the Administrative Law Judge's failure to find that a remark made to employee Cummings by Supervisor Kitchen violated Section 8(a)(1) of the Act. We find merit in this exception. Cummings and employee Rapoza had distributed a leaflet, as had Pacheco. As found by the Administrative Law Judge, Respondent's suspension and later discharge of Pacheco for engaging in this protected activity was unlawful. Following Pacheco's suspension and prior to his discharge, Kitchen told Cummings that he had 'better go to a lot of novenas, because if Pacheco-pending further investigation, if Pacheco went, me and Dave Rapoza would be next.' We disagree with the Administrative Law Judge that such a remark was not coercive because, following Pacheco's discharge, no punishment was inflicted on Cummings or Rapoza. Rather, we find that Kitchen's remark constituted a clear threat of dis' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It isthe Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products,.Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. See Isis Plumbing d Heaing Coa. 138 NLRB 716 (1962), for rationale on interest payments. 'In light of our Decision in Hicknott oods. Inc., 242 NLRB 1357 (1979). 247 NLRB No. 182 charge for engaging in protected activity, and was in violation of Section 8(a)(1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respondent, Pioneer Finishing Corporation, Fall River, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Delete paragraph l(b) and add the following as paragraphs l(b) and (c): '(b) Threatening employees with discharge for engaging in activities protected by Section 7 of the Act. '(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act.' 2. Substitute the following for paragraph 2(a): '(a) Offer Kenneth Pacheco, Richard Drolet, and John Moniz immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.' 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER TRUESDALE, concurring in part and dissenting in part: Like my colleagues, I would affirm that portion of the Administrative Law Judge's Decision which declines to defer to the arbitration award concerning employee Pacheco and finds that Pacheco's discharge for engaging in protected concerted activity violated Section 8(a)(3) and (1) of the Act.' I also join in my colleagues' finding that Respondent violated Section 8(a)(l) of the Act when employees Cummings and Rapoza were threatened with discharge for their participation in protected concerted activity. However, I dissent from my colleagues' adoption of the Administrative Law Judge's findings with respect to employees Drolet and Moniz. In my view, since there is insufficient evidence that Respondent knew of which issued after the Administrative Law Judge's Decision in this case. we will substitute 'In any like or related manner' for 'in any other manner' il par. I(b) of the recommended Order and will correct the notice accordingly. ' In view of the Administrative Law Judge's finding. with which I agree. that Pacheco was engaged in protected activity when he distributed certain leaflets, I find it unnecessary to consider whether, as a union official. Pacheco had a higher duty to uphold the contract, as asserted by Respondent. Such an inquiry isrelevant only where an employee is engaged in unprotected activity. See my dissent in GouldCorporation. 237 NLRB 881 (1978) 1299 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either employee's protected concerted activity, the General Counsel has not established a key element of his prima facie case. While the inconsistencies in Respondent's defense are cause for suspicion, the absence of an element of the General Counsel's case makes it unnecessary for Respondent affirmatively to rebut the evidence presented by the General Counsel. Accordingly, inasmuch as the General Counsel has not sustained his burden of proof as to this aspect of the case, I would dismiss the complaint allegations concerning the discharge of employees Drolet and Moniz. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportunity to present evidence, it has been decided that we violated the Act. We have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: The National Labor Relations Act, as amended, gives all employees the following rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT fire or otherwise discipline any employee for engaging in concerted activities protected by Section 7 of the Act, and WE WILL NOT fire or otherwise discipline employees to discourage union activity. WE WILL NOT threaten to discharge employees for engaging in concerted activities protected by Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL offer to take Kenneth Pacheco, Richard Drolet, and John Moniz back at their old jobs or, if those jobs no longer exist, substantially similar jobs, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL pay them for any wages lost, with interest, during the period of their discharges. PIONEER FINISHING CORPORATION DECISION BERNARD RIES, Administrative Law Judge: These consolidated cases were heard on December 4-6, 1978, in Boston, Massachusetts, and on January 29-30, 1979, in Fall River, Massachusetts. Presented for resolution are allegations that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Kenneth Pacheco on May 5, 1978, Richard Drolet on May 12. 1978. and John Moniz on May 17, 1978, and that Respondent violated Section 8(a) (1) by statements made to employees in February, March, and May 1978.' For the reasons given below, and based on my recollection of the witnesses, my study of the record, and consideration of the briefs filed by all parties, I reach the following findings and conclusions.2 I. THEI I)ISCHARGE OF KENNETH PACHECO Respondent operates a textile dyeing and finishing business in Fall River, Massachusetts. where it employs about 140 workers. It has recognized the Union as the bargaining representative of its production and maintenance employees since around 1955. In late 1977 the parties bargained for a collective contract to replace the one then expiring. Agreement-or at least ostensible agreement-was reached in November, and the new wage rates, together with other increased benefits, became operative at that time. However, not until around April 1978 was the contract finally put into written form by Henry D. Marzilli, Respondent's labor relations representative, who had undertaken to perform that task. Employee Kenneth Pacheco, who had begun employment in 1973, was elected shop chairman of the Union at Respondent's plant in May 1977, and he participated in the negotiations in the fall of that year. When Pacheco saw the contract prepared by Marzilli, he noted that it omitted provision for a health and safety committee which, Pacheco thought, had been agreed to by the parties. Pacheco spoke to the Union's general manager, Kenneth Dufault, about the omission. Since Dufault had only recently assumed his position, and was not familiar with the 1977 negotiations, he consulted Respondent's representatives. The latter ultimately took the position that there had been no agreement to include the health and safety clause and told Dufault that the Company had only agreed informally to establish a safety committee on a trial basis. Although the timing of Dufault's actions is not clear from the record, at some point he spoke to the other union negotiators and concluded that, as he testified, Respondent...
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