New England Fish Co.

306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New England Fish Company and Nicholas F. Facelo Local #37, International Longshoremen's and Warehousemen's Union and Nicholas F. Facelo. Cases 19-CA-6569 and 19-CB-2099 June 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 26, 1974, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief. Respondent Employ- er and Respondent Union each filed cross-exceptions and a brief supporting its cross-exceptions and an- swering the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, the cross- exceptions, and the briefs, and has decided to affirm the rulings, findings,' and conclusions of the Adminis- trative Law Judge 2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- 1 The General Counsel and Respondents have excepted to certain credibil- ity findings made by the Administrative Law Judge. It is the Board's estab- lished policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evi- dence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3) We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge ruled that union delegate Padua's affida- vit should not receive independent evidentiary weight in place of his oral testimony for the reason, inter aka, that the General Counsel gave Padua no opportunity to have counsel present when the affidavit was taken. The Gen- eral Counsel has excepted to this ruling on the grounds that the Union's counsel had notice that Padua's affidavit would be taken yet never asked to be present We have concluded that even if given independent evidentiary weight Padua's affidavit would not significantly have contradicted his oral testimony, and we therefore deem it unnecessary to pass upon the correctness of the Administrative Law Judge's ruling The Administrative Law Judge also concluded that the Union's role in Facelo's discharge was so extensive that it would have violated Sec 8(bX2) and (i)(A) had Facelo's protected concern purpose been known to the Em- ployer and the Union. Respondent Union has excepted to this conclusion. Since we have affirmed the Administrative Law Judge's finding that Facelo's protected concerted purpose was not known to the Employer or the Union, we deem it unnecessary to decide whether the Union's role in Facelo's discharge would have violated Sec. 8(b)(2) and (1)(A) in other circumstances tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This matter was heard at Seattle, Washington, on January 29 and 30, 1974, pursuant to an order consolidating cases, consolidat- ing complaint and notice of hearing issued on October 17, 1973, by the Regional Director of the National Labor Rela- tions Board for Region 19.1 The complaint and notice of hearing was based upon a charge filed in Case 19-CA-6569 on August 3, 1973, by Nicholas F. Facelo; and an original charge filed on August 3, 1973, in Case 19-CB-2099 by said Facelo, followed by an amended charge filed on October 15 by Facelo. The consolidated complaint alleges violations of Section 8(a)(1) and (3) and Section 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act, as amended, hereinafter called the Act. Upon the entire record of the case, and from my observa- tion of the witnesses and their demeanor, and consideration of the briefs of the parties, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY New England Fish Company, herein called the Company or Respondent Company, is a Maine corporation with places of business in various states of the United States, including a place of business at Chatham, Alaska, where it is engaged on a seasonal basis in the processing and canning of seafood products. Alaska Employers Engaged in the Salmon Canning In- dustry is an association of employers in the seafood pro- cessing industry in the State of Alaska. The Association includes the Respondent Company among its membership. The association is established and exists, inter alia, for the purpose of negotiating collective-bargaining agreements with Respondent Union and various other labor organiza- tions on behalf of its members. During the calendar year immediately preceding the is- suance of the complaint herein, the employer-members of the association, in the course and conduct of their business, sold and distributed products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped from their plants in the State of Alaska directly to points outside the State of Alaska. The association and its employer-members, including Re- spondent Company, are, and have been at all material times, employers within the meaning of Section 2(2), en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1 Unless specified otherwise, all dates refer to the calendar year 1973. 212 NLRB No. 44 NEW ENGLAND FISH COMPANY 307 II THE LABOR ORGANIZATION INVOLVED Local #37, International Longshoremen's and Warehousemen's Union, hereinafter called the Union or Respondent Union, is a labor organization within the mean- mg of Section 2(5) of the Act. HI THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues are (1) whether Nicholas Facelo was engaged in protected concerted activity when he seated himself at a mess table which had theretofore been used exclusively by female employees at the Company 's Chat- ham facility ; (2) whether Facelo's subsequent termination resulted from his involvement in protected concerted activi- ties; and (3) whether the Union caused or attempted to cause the Company to terminate Facelo because he had engaged in protected concerted activity. The initial principal issue, in turn, raises the question of whether Facelo, by his actions, was, as claimed, contesting sexual discrimination in mess hall seating ; and whether Re- spondents had knowledge of Facelo's purpose and objec- tives so as to render applicable the Board's decision in Walls Manufacturing Company, Inc., 128 NLRB 487; 137 NLRB 1317. B. Pertinent Facts 1. Background facts a. The setting The Chatham, Alaska, facility of the Company, pertinent to the instant proceeding, is situated on a small island sever- al airline miles from the principal cities of Juneau and Sitka, Alaska. The Chatham operation is a seasonal one of approx- imately 2 months' duration. Both male and female employ- ees are included in the employee complement. Caucasians, Orientals, and Filipinos are the principal ethnic groups rep- resented. At all pertinent times, by reason of the remote and relatively isolated geographic location of the Chatham facil- ity, the Company has provided mess hall eating facilities for the employees at the Chatham cannery. The employees at Chatham are served food prepared in the kitchen facility of the mess hall. Commencing with the summer 1973 season, a new mess hall facility was provided by the Company. Table facilities were located in three separate areas of the mess hall build- ing. In the area which is of significance herein are situated seven separate tables placed on row. Each table accommo- dates approximately 18 individuals. During the course of the 1973 season-until the events subsequently delineat- ed-four tables were occupied virtually exclusively by male employees, while the other three tables were used exclusive- ly by female employees. By reason of custom in the industry, it had been practice prior to 1973 at Chatham for male and female employees to be segregated at separate tables in the mess hall facilities. On the initial day of the 1973 season, at a meeting of its membership attended by employees of the Chatham facili- ty, including Nicholas Facelo, the Union through its dele- gate, Miguel Padua, had declared that the male employees should sit at tables separate from the female employees and that each employee should retain for the entire season the seat selected on the initial day. Only male employees attend- ed this meeting because the male complement arrived a few days prior to the female employee group. Because of this, for all intents and purposes, a seat and table selection pro- cess had been accomplished when the female employee group arrived at Chatham. When the female employees arrived at Chatham, they used the three remaining tables at meal times. Unlike the male employees, they tended to shift seats at the three ta- bles. There were occasions when female employees sat tran- sitorily, for one meal only, at tables used by male employees. There were also times when male employees sat briefly at tables used exclusively by female employees. No corrective action was taken .2 b. Facelo's work Nicholas Facelo, a young American National of Filipino and Italian extraction, was initially employed by the Com- pany during the summer season of 1973. His employment commenced on July 2 and he served in the capacity of a slimer. His duties required him to trip} the fins and tail of freshly caught fish and to cleanse blood or any foreign substance from the outside of the fish. The skills requisite to this job are quickly and easily mastered. Facelo was terminated on July 27. c. The union delegate At pertinent times, Miguel Padua served as the union delegate at the Chatham facility. The collective-bargaining agreement defines the duties and responsibilities of the dele- gate. The pertinent provisions of the agreement are as fol- lows: A. The Company agrees to recognize one member of the crew of each cannery designated by the Union 2 During the course of the hearing, the General Counsel sought to intro- duce testimony relating to alleged complaints lodged by female employees with management concerning the difference in quality of food at the tables occupied by female employees as contrasted to those occupied by male employees. It was counsel's theory that if the difference existed, seating thereby came synonymous with food quality. It was counsel 's further conten- tion that the testimony proffered would reveal that there had been a back- ground of dissatisfaction relating to seating because of the difference in food quality and that this evidence could be weighed in evaluating the validity of the Company's claim that it lacked knowledge of Facelo's objectives in seating himself at a table normally occupied by female employees only. It is to be observed, in passing, that the General Counsel's thesis would have been more persuasive had the complaint and notice of hearing herein alleged female sit-in activity at a table relegated to male use , for the record suggests that, under the General Counsel's theory, the quality differential in food favored the male employees. Moreover, it is not contended by the General Counsel that the proffered evidence regarding alleged earlier em- ployee protests related in any manner to sex segregation, as contrasted to food quality. In any event, the General Counsel was permitted to introduce all available evidence bearing directly on the issue of whether Facelo in- formed management he was protesting seating segregated on the basis of sex. I affirm my ruling excluding the evidence proffered. To have indulged the General Counsel would have invited a skirmish into wholly collateral areas. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the delegate or shop steward. B. The Union claims certain definite rights and ben- efits in behalf of its membership as outlined in this Agreement, and those rights shall be upheld by the authorized delegate, who shall, in addition to his regu- lar duties as an employee, act as the representative and spokesman of the Union. In the event of a dispute, he will be vested with the authority to settle to the best of his ability, all issues that may be, brought to his atten- tion. Further, a delegate is authorized and instructed to see that all rules and regulations, hours, wages, and general conditions are to be observed. He shall endeav- or to settle all issues in a mutually satisfactory manner. C. All disputes that cannot be settled at the cannery shall be adjusted after return to the port of embarka- tion. Padua varified that, in practice, he carries out the respon- sibilities vested in him by the agreement. He further testified that he is the only delegate of the Union at Chatham and that he considers it part of his responsibility to maintain harmony among the employees and to do all in his effort to foster a satisfactory work-performance level by union mem- bers. 2. The seating incident On Wednesday, July 25, Facelo spoke with a female em- ployee whom he knew only as "Polly" concerning "discrimi- nation in mess hall seating." Plans were made for Facelo to switch mess hall seats with Polly the following evening at dinner. During the next day, Facelo also spoke with Linda Carroll, an employee, and informed her of the plan. He requested Carroll's participation in carrying out the plan? During the course of the day, Polly and Linda Carroll in- formed Patricia Jasper, an employee, about the plans to "protest" and Jasper agreed to cooperate. In addition, Face- lo asked a fellow employee, Arlando Aspurias, to sit at "the women's table," and Aspurias stated he would do so. The plan of action proposed by Facelo was not in any manner communicated to any supervisor or official of the Compa- ny, or to any agent or officer of the Union. On July 26, dust prior to the 5 p.m. dinner hour, Facelo went to the mess hall and stationed himself outside the door to the mess hall. He waited to be joined by Aspurias and Polly. They did not arrive in a timely fashion and Facelo entered the mess hall alone.' Upon entering the mess hall, Facelo took a vacant seat at a table normally used only by male employees. He selected a seat which had been used exclusively at meal times by an Oriental employee known as Bonzo. Facelo was observed by Francisco Arde, a waiter in the the mess hall. Arde immediately approached Facelo and informed Facelo that he was not permitted to occupy that particular seat.' Facelo asserted he could sit wherever he chose but Arde insisted that he could not. The discussion 3 The anticipated form or character of Carroll's participation is not reflect- ed in the record. 4In point of fact, Aspurias arrived late at the mess hall as did Polly and Linda Carroll and Patricia Jasper. None-of these employees participated in the events which subsequently transpired 5 The record establishes that Arde possessed no supervisory authority was a brief one and Facelo arose and went directly to the next table. This table was one which theretofore during the 1973 season had been used solely by female employees. Facelo seated himself at the table. Upon observing this, Arde immediately approached Facelo. As he did so, Facelo from his position at the table was in the process of turning up a dinner plate preparatory to serving himself. Arde placed his hand on the dinner plate and informed Facelo that he was not permitted to sit at the table in question because it was "for the women." Facelo again stated that he could sit down any place he desired. Arde was adamant and from his standing position behind Facelo, who remained seated at the table, Arde placed one hand on the top of Facelo's right shoulder and the other under Facelo's left arm. Feeling the pressure of this contact, Facelo arose, stepped over the seat into the aisle separating the tables, and struck Arde. Arde lunged toward Facelo but was restrained. He did not strike Facelo. Arde and Facelo were separated and their confrontation ended.' As Arde and Facelo were separated, Tom Sullivan, a mess hall cook who had apparently assisted in separating Aide and Facelo, asked Facelo what had happened. Facelo answered "nothing" and went back to the women's table to sit down and eat. Sullivan approached Facelo, who said "I can sit where I want through EOC." Sullivan answered "I am no foreman. But if you want to keep your job you will go back to your normal seat." Facelo arose and went to his normal seat and finished his meal.' There is no evidence that Sullivan discussed this matter with any representative of the Union or any company supervisor or official. Following the incident in question, during the evening of July 26, Arde spoke with Johnnie Mathias, the first foreman at the cannery. He gave Mathias his version of the events of the evening. In the course of his description, he told Mathias of Facelo's efforts to sit at two different tables in a I have carefully considered the testimony of record relating to the inci- dent in question. With respect to the scuffle or altercation, I have credited the testimony of Francisco Arde over that of Nicholas Facelo, in those circumstances wherein their testimony is in conflict. In particular, I credit Arde and reject the testimony of Facelo in finding, as I do, that during the course of the disputation between Arde and Facelo, Facelo made no reference to "sex discrimination" in seating, to "E.E.O.C.," to "equal employment opportunities" or to any like or similar subject. I am convinced that Arde accurately testified that no utterances-actual or infer- ential-were made by Facelo to sex discrimination in seating . Arde im- pressed me as I observed him testify at the hearing as a very understated individual possessed of a gentle nature with no discernible combatitive bent. While he was clearly resolute in his efforts to prevent Facelo from sitting at tables and places where he, Arde, deemed improper, I am convinced that Arde undertook these efforts in a controlled fashion and was thereby atten- tive to Facelo's reactions and behavior. On the other hand, I conclude that Facelo imputed to himself statements which, although they may have reflect- ed his state of mind had they been uttered, were not, in fact, articulated by him during the course of the episode in the mess hall Although Facelo's testimony gains some support from that of Andrea Lilleness, I find that Lilleness was not entirely accurate in her testimony relating to the statements which Facelo allegedly made during the course of the incident. A careful analysis of her entire record testimony reveals that her recollection of the incidents which she observed was not fully reliable. I have carefully analyzed all of the testimony relating to the physical nature of the disputation and find more credible that testimony which reveals that Arde neither pulled nor shoved Facelo from his seat at the table into the aisle; nor in any manner struck Facelo after Facelo left his seat at the table. 7 The foregoing is based upon the credited and undisputed testimony of Nicholas Facelo. Facelo identified Sullivan as the head cook. Sullivan is not alleged to be a supervisor. NEW ENGLAND FISH COMPANY seats which were not assigned to him, and of Facelo's insis- tence that he had a right to sit in any place of his choice in the mess hall. Arde also told Mathias that Facelo'had struck him. In the course of his discussion with Mathias, Arde gave a rather full accounting of the incidents, and no mention was made by Arde to Mathias concerning his understanding of the intention or purpose of Facelo's activities. Mathias did not speak that evening with Facelo concerning the inci- dent. The following morning, Don Freeman, one of the fore- men at the installation, informed Mathias that Arde desired to go home. As a result of this conversation, Mathias spoke again with Arde. Arde informed Mathias that he desired to go home because every time he saw Facelo, he became nervous. Upon learning of Arde's desire, Mathias met with Miguel Padua, the union delegate, at the cannery. Mathias told Padua of Arde's desire to return home and Mathias expressed his wish to meet with Facelo concerning the mat- ter. Mathias made it clear to Padua that in speaking with Facelo he would urge Facelo to apologize to Arde for the incident and to himself go home unless the matter could be settled amicably .8 In the meantime, on the morning of July 27, Padua met with Patrick O'Leary, manager of the Chatham cannery. O'Leary sought to obtain Padua's account of what had tran- spired in the mess hall the previous evening. Padua in- formed O'Leary that he had not witnessed the altercation but the context of their discussion revealed that both O'Leary and Padua had been given certain information concerning the altercation. They were aware of the identity of the participants and the fact that Facelo was reputed to have struck Arde. O'Leary informed Padua that he did not wish this sort of trouble to fester and without saying so in words gave Padua the impression that he was giving consid- eration to terminating Facelo. Padua, in substance, request- ed O'Leary to permit him to endeavor to achieve 'a reconciliation between Arde and Facelo. O'Leary suggested that Padua do so.9 8 In addition to his conversation with Arde, Mathias had been informed that Facelo had struck Arde during the course of the mess hall incident. 9 The foregoing is based upon a consideration of the testimony of Miguel Padua and Patrick O'Leary. I have carefully considered the record testimony of Padua as it evolved from very careful direct examination by counsel for the General Counsel. Initially, I am convinced that when called as a witness by the General Counsel to testify concerning the incident in question Padua was a reluctant witness. However, when confronted by his pretrial affidavit and after being given full opportunity to study the affidavit, Padua re- sponded in a forthright manner to questions carefully propounded to him. The above findings are based upon witness-chair testimony of Padua, consid- ered in context with supporting testimony of Patrick O'Leary. I have evaluated the affidavit of Padua and am unwilling to give the affidavit independent, substitute status for Padua's oral testimony. The docu- ment in question was secured 8 weeks after Facelo's termination by a field examiner of the Board in direct interview with Padua, without union counsel being present. In typical fashion the affidavit records the recollection of a participant in events under investigation and is subject to the frailities of memory and the honing effects of rationalization. There is no suggestion that in securing the affidavit the field examiner placed Padua on notice that the affidavit would be treated as a statement of official union position on matters relevant to the pending charge. Under all of the circumstances of this case- the witness present, full opportunity on the part of all parties to question him on all relevant matters, the essentially low-echelon status of the witness in the union hierarchy and the failure of the General Counsel to provide Padua with an opportunity to have counsel present during the investigatory inter- view-I affirm my ruling made at the hearing refusing to give the affidavit 309 During the course of the morning, Padua and Mathias proceeded together to Facelo's work station in the cannery. Padua and Mathias approached Facelo and spoke to him in a small office area near his work station. The din of the machinery made it necessary for the participants to speak in a loud voice. Padua asked Facelo to describe the incident and Facelo gave Padua his version of what had transpired. Padua then requested that Facelo go to Arde and apologize in order to smooth matters over. Facelo stated in emphatic terms that he would not do so. He asserted that Arde should apologize to him. Padua repeated his request that Facelo apologize to Arde but Facelo again stated that he would not do so and that he would rather go home than apologize. Mathias told Padua to take Facelo to the office and have the bookkeeper "pay him and order the plane." Padua and Facelo went to the office but were unable to meet with O'Leary. Padua instructed Facelo to go to the bunk house and prepare to leave Chatham.1° After meeting with Facelo, Padua met again with O'Leary. Mathias was not present. Padua informed O'Leary that Facelo had refused to apologize to Arde and had stated his desire to go home rather than to do so. Padua observed that Facelo's stated wish to be sent home rather than to apologize was "good enough" for him (Padua)." O'Leary agreed that, under the circumstances, no purpose would be served in "keeping [Facelo] there if he wanted to go home." O'Leary gave his approval to the earlier directive given Facelo to pack his bags.'2 Following his meeting with Padua, O'Leary met with Fa- independent, substantive evidentiary status. to I have considered the testimony of Johnnie Mathias, Miguel Padua and Nicholas Facelo relating to this occurrence I am unable to credit Facelo's testimony to the effect that, during the conversation, he explained to Padua and Mathias his objectives in seating himself at the table in the mess hall used by the female employees. Both Mathias and Padua specifically testified that in the course of the conversation in question, Facelo made no reference to sex discrimination in seating or to "equal employment opportunities commis- sion: " Moreover, Padua and Mathias denied that any references of this type were made by Facelo during the meeting. It is noteworthy that in initially recounting the exchange between him and Padua, Facelo did not include such references in his testimonial summation. Only after Facelo's attention was directed by counsel for the General Counsel to any further statements he may have uttered on this occasion did Facelo testify to the inclusion of such references in his comments to Padua. I am unable to credit Facelo in this regard and reject his testimony Moreover, I reject the testimony of Facelo to the effect that following the conversation in the small office, he was directed by Padua to go', to the bunkhouse and pack. Rather, I find that Mathias directed Padua to take Facelo to the office to be paid off and to have transportation to Seattle arranged. Facelo's testimony, when carefully analyzed, reveals that this was the chronology followed. It was following the visit to the office that Facelo went to the bunkhouse I am unable to credit Facelo's testimony that in the bunkhouse Mathias was conciliatory and suggested he could be employed next season. Mathias credibly denies that he conversed with Facelo in the bunkhouse and I credit his denial 11 On this score, Padua testified in specific terms that he told O'Leary this during the course of the meeting in question. 12 O'Leary conceded that at the time of his meeting with Padua, he was aware that Facelo had been instructed to prepare to depart from the Chat- ham facility. In finding that Mathias was not present during the meeting between O'Leary and Facelo, I credit the testimony of Mathias. The testimony of O'Leary and Padua on this score was marked by a lack of certitude. Moreover, I find unconvincing the testimonial speculation of O'Leary to the effect that before giving his acquiescence to Facelo's termination, he discussed with Padua Facelo's work record. The reasonable inference of record is that O'Leary was well aware of Facelo's shortcomings as an employ- Continued 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD celo. In speaking with O'Leary, Facelo sought to obtain an explanation from O'Leary as to the reasons for his termina- tion. O'Leary told Facelo that it was his poor work record, his tardiness, and the "episode" or "fight" in the mess hall.13 Stephanie Acse, one of the female employees at the can- nery, testified credibly that the day following Facelo's ter- mination, she spoke with Padua. She asked Padua why the female employees could not sit at the same table as the men and Padua answered that this would lead to jealousy among the male employees. Acse then asked Padua why Facelo had been terminated and Padua stated that Mathias had termi- nated Facelo because he "wasn't cooperating." 14 Prior to his termination, Facelo had twice sought to sit in a mess hall seat normally used by Mariano Umpig, head warehouseman. The first occasion passed without incident. The second time Umpig directed Facelo to vacate his seat and return to his own place. Facelo did so. Umpig reported the matter to Arde.15 Testimony of record reveals that the work which Facelo was performing at the cannery was relatively simple in na- ture. The record testimony also establishes that Facelo was not a particularly proficient worker and he lacked punctual- ity in reporting to work in the morning, and returning from coffee breaks. Mathias had observed Facelo's lack of work skills and had reported this to O'Leary. Both had observed Facelo's work and deemed it unsatisfactory. Mathias en- deavored to instruct Facelo in an effort to improve his permormance. O'Leary testified that Facelo's termination resulted from an "accumulation" of his poor work record, his tardiness and the mess hall fight. O'Leary further testified that at the time of Facelo's termination he was "shorthanded" and might have kept Facelo on but for the mess hall incident. On the other hand, Mathias testified that if O'Leary had not terminated Facelo following the mess hall altercation, he would have pressed for Facelo's termination because of Facelo's poor work performance. O'Leary testified that "standard practice" relating to em- ployees who are ineligible for rehire calls for a written notifi- cation served upon the employee 2 or 3 days following the end of the work season and after the employee's departure from the Chatham facility. O'Leary further testified that Facelo was the only employee sent home from Chatham during the 1973 season. On the other hand, O'Leary testified that two employees were terminated following the 1973 sea- son. With respect to their terminations, the normal or stan- ee but I am unable to find that this became a topic of discussion between him and Padua on the occasion in question 13 I have considered the testimony of Patrick O'Leary and Nicholas Facelo relating to this conversation. I place principal reliance upon the testimony of O'Leary but find, consistent with the testimony of each, that in discussing the cause of the termination, O'Leary made specific reference to the "fight" in the mess hall but that Facelo made no reference to the purposes or ob1ectives of his conduct in the mess hall. Acse testified that there was an understanding among the female em- ployees that they should sit at separate tables from the male employees. She testified further, however, that she had never received any instructions from management or supervision to this effect and that she had, in fact, on occa- sions, sat at a table in the mess hall with male employees and had never been instructed to cease the practice. She further testified, in substance, that she had never been disciplined for having done so 15 The testimony of Francisco Arde and Mariano Umpig establishes the foregoing. dard practice was followed. By letter dated August 13, O'Leary notified the Union that Facelo had been terminated and gave, as the reasons for the termination Facelo's tardiness, unproductivity on the job and the mess hall incident. With respect to the latter, the letter contained the following: One evening in the mess hall, Nicholas [Facelo] ex- changed words and punches with a waiter, and member of Local 37, Frank Arde. Frank was performing his normal duties and didn't appear to provoke the distur- bance. The initiative appeared wholly on Nicholas' part. Conclusions The instant record establishes that Facelo, in concert with other employees, formulated a plan designed to protest mess hall seating segregated on the basis of sex. For reasons not siginificant, Facelo, without communicating his inten- tion to any member of company supervision or union offi- cialdom, embarked upon his protest alone. Whether through mistake or ambivalence, Facelo sat first at a table normally occupied by male employees and was told by Arde, the mess hall waiter, to vacate the seat chosen. Arde noted that the seat was one relegated to the use of another male employee.16 In the face of Arde's directive to vacate the seat, Facelo moved, averring, however, his right to sit in any seat of his choice. On this note, Facelo moved to a seat at a table normally used by female employees. He was again instructed by Arde to move, this time more forcefully. Again Facelo asserted his right to sit wherever he chose. No reference, direct or indirect, was made to sex discrimination. When Arde supplemented his oral directive with a physical imperative,' Facelo rose and struck Arde. The fact of Facelo's assault on Arde gamed quick notoriety in the can- nery and Arde's desire to leave Chatham in the aftermath of the antipathy caused by the confrontation came quickly to the attention of management. The assistance of the Union's delegate, Padua, was enlisted, with management conveying a desire to retain both Arde and Facelo; but with a preference noted for retaining Arde's services, if the serv- ices of both could not be salvaged. Efforts at a mediation failed and the decision to terminate Facelo was made. Upon this outline of facts, which I find fully in accord with the record evidence, I am unable to find that Facelo was terminated for engaging in concerted activities. Rather, he was terminated because, without reasonable provoca- tion, he struck a fellow employee, creating disharmony which was eradicable only through the removal of one of the two contestants. The Company chose to retain the employee least at fault and most valuable to the operation. It is well settled that an Administrative Law Judge of the National Labor Relations Board, is bound by the policy and precedence enunciated by the Board. In this regard, Re- spondent Company argues persuasively for the continued validity of the principle of law enunciated by the Board in 16 It is of passing interest that Facelo had on previous occasions sought unsuccessfully to occupy a seat normally used by one Umpig, a venerable male employee NEW ENGLAND FISH COMPANY Walls Manufacturing Company, Inc., 128 NLRB 487.17 In the Board's decision in the initial Walls case, the Board stated the following: In order to sustain a finding of an 8(a)(1) violation based on discharge, it is necessary to establish that at the time of the discharge the employer had knowledge of the concerted nature of the activity for which the employee was discharged. We find no evidence in this record to warrant attributing such knowledge to the Respondent. We shall therefore dismiss the complaint in its entirety. On remand, the Board found evidence from which it could be determined that contemporaneously with the ter- mination the employer acquired knowledge of the concerted nature of the activity of the employee being considered for termination. However, in two particulars the instant case is distinguishable from the facts as found by the Board in considering the Walls case on remand. Initially, the Compa- ny herein at no time prior to Facelo's termination and de- parture from Chatham became aware of the objectives of Facelo's conduct in the mess hall. In addition, at no time prior to Facelo's departure from Chatham did the Company know that Facelo was acting in concert with other employ- ees. It is unnecessary to this Decision to deal at length with the truism that individual action is nonetheless concerted if it is engaged in by a single employee for the purpose of protesting a policy or correcting a term and condition of employment applicable to two or more employees.'8 Nei- ther is it essential to belabor the obvious point that a con- certed protest against mess hall seating segregated on the basis of sex is a concerted activity protected under the provi- sions of the Act.19 Nor, upon the facts as I view them, is it decisionally essential or pertinent to evaluate whether Face- lo was acting in harmony or in discord with union policy 20 Despite my agreement with the General Counsel that the conduct of Facelo in the mess hall was concerted in charac- ter, I am unable to find that Facelo's termination violated the Act. In the instant case, as in Walls, the Company had no insight into the end Facelo was seeking to achieve by sitting at tables other than his own in the mess hall. So far as was known, up to the point of Facelo's termination and departure from Chatham, Facelo was asserting a right to sit wherever he chose in the mess hall. There was nothing to put the Company or the Union on reasonable notice that Facelo's protest was against seating segregated on the basis of sex, for his claim crossed sexual lines and encompassed tables normally occupied by both sexes.21 Absent this in- 17 Remanded 299 F.2d 114 (C A D.C.); decided on remand 137 NLRB 1317. 18 See, e.g., Salt River Valley Waters Users Association, 99 NLRB 849, 853. 19 See Western Edition Community Org. [Emporium Capwell Co.] v N.LR.B, 485 F.2d 917 (C.A.D.C., 1973), Tanner Motor Livery Ltd, 144 NLRB 1402, remanded 349 F.2d I (C A. 9), order on remand 166 NLRB 551, enfd 419 F.2d 216 (C.A. 9, 1969) 20 Id 21 For legal purposes, the General Counsel accurately analogizes the objec- tives which Facelo secretly harbored to racially segregated seating. However, I do not perceive the complaint as seeking to nullify any right of the Compa- ny to maintain orderly seating patterns and to instill normal attitudes of 311 sight, I am unable to find merit in the General Counsel's position. Rather, I find that in the circumstances of this record, there is insufficient basis to warrant a departure from the implicit and explicit rationale of the initial Walls decision. Accordingly, I find that rationale to be here appli- cable. 2 The General Counsel appears to contend that the princi- ples of Burnup & Sims, 379 U.S. 21, are here controlling.23 Clearly, they are not, for this is not a case wherein a termi- nation is accomplished because of employee involvement in protected concerted activity known to management person- nel who effectuate a termination upon a mistaken belief that the employee being terminated was engaged in misconduct. Here, unlike Burnup & Sims, the altercation in the mess hall did, in fact, transpire and was not a figment of the Company's imagination. Moreover, as previously noted, the events had accorded the Company no basis for concluding that Facelo's efforts were of a concerted nature. According- ly, the case at bar thus reduces to a typical one of causation. On this score, I find that the evidence preponderates in favor of a finding, which I make, that Facelo's termination did not result from his involvement in protected, concerted or union activity. The Respondent Company earnestly contends that Facelo's work deficiencies contributed to his discharge. More accurately, his listless approach to his work and his borderline skill as a shiner did nothing to fortify him against termination. The Company's efforts to magnify Facelo's marginal acceptability reduces to a classic case of overde- fending. I am convinced and find that, but for the mess hall altercation, Facelo would have served out the season. A more telling fact of the Company's defense is its well substantiated and wholly plausible explanation to the effect that it sacrificed Facelo's minimal but nonetheless essential services in order to assure the retention of Arde, a longtime, reliable, and qualified employee. The record convinces me that, following the mess hall altercation, the Company found itself in a dilemma of losing Arde if the discomfiture caused by Facelo's physical assault in the mess hall was not erased. There is nothing of record to suggest that Facelo's apology would not have been sufficient to remove Arde's desire to leave Chatham in midseason. There is every reason to believe that the responsibility for seeking conciliation resided with Facelo. In reaching this conclusion, I reject the contention of the General Counsel that Facelo was pro- voked by Arde to physically assault him. In endeavoring to preclude Facello from occupying mess hall seats normally assigned to other employees, Arde was merely seeking to enforce established industry policies and to preclude a for- seeable contest of wills among employees over seating rights. He sought to achieve these ends with firmness, but his firmness did not justify the physical remonstration by Facelo which followed Aide's attempts. Absent reasonable provocation, physical assault does not become justified or civility among the employee complement in the use of the mess hall facilities. u See Marathon Oil Co, 195 NLRB 365, Standard.Brands, Inc., 196 NLRB 1006 See also Indiana Gear Works, 156 NLRB 397, enforcement denied. 371 F.2d 273 (C.A 7, 1967). 23 See also Allied Industrial Workers, AFL-CIO, Local Union No. 289 v. N.L R B., 476 F.2d 868 (C.A.D C, 1973), Cavalier Division of Seeburg Corpo- ration and Cavalier Corporation, 192 NLRB 290 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acceptable merely because the assaulting employee believes at the time that he is engaging in protected activity, or that his conduct is designed to achieve a justifiable end24 Objectively viewed, it is apparent that, when Facelo re- jected conciliation, the reasonable course of action left open to the Company was to immediately terminate a marginal employee rather than to lose the services of a valued em- ployee while the season was still viable 25 Upon the instant record, the Union is blameless in the termination for the same reason that the Company is. Plain- ly stated, the termination was lawful. Had the circumstances been different and had the termination been effectuated because of Facelo's challenge to segregated seating, and had this objective been known to management and the Union prior to Facelo's termination, the Union' s legal involvement would have been established and its liability under the Act revealed. This is so because Padua's participation in the interview of Arde and Facelo following the incident, and Padua's consultation with O'Leary prior to O'Leary's ratifi- cation of Facelo's termination, was of a sufficiently intimate and cooperative character as to have enmeshed the Union and to have rendered the Union legally responsible within the meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act. But this postulation of facts is theoretical for the record evidence is to the contrary. I find that the General Counsel failed to sustain the allegations of the complaint and shall accordingly dismiss the complaint. Upon the foregoing findings of fact, conclusions, and the entire record of the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 24 Cf. H. C. Smith Construction Co, 174 NLRB 1173 25 I am not persuaded by the General Counsel's evidence to the effect that discrimination is proven by the fact that Facelo alone among the entire employee complement was terminated in midseason of 1973. In the remote confines of Chatham, and given the dilemma the Company faced, it would have been unusual for the Company to have followed typical termination procedures. ORDER26 The complaint-is dismissed in its entirety. 26 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulah'ns be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes