Massachusetts Coastal Seafoods, Inc

496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Massachusetts Coastal Seafoods, Inc and United Food and Commercial Workers Union, Local 15, AFL-CIO Cases 1-CA-21429, 1-CA- 21579, 1-CA-22171, 1-CA-22242, and 1-RC- 18015 March 30, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 31, 1986, Administrative Law Judge Richard A Scully issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order 1 We agree with the judge's finding that the strike that commenced on September 19, 1983,2 was an unfair labor practice strike As the judge pointed out, a strike will be considered an unfair labor practice strike if the record establishes that an unfair labor practice was a contributing cause of the strike C & E Stores, 221 NLRB 1321, 1322 (1976), Larand Leisureltes, 213 NLRB 197 (1974), enfd 523 F 2d 814 (6th Cir 1975) The record here supports such a conclusion In mid-August 1983, the Respondent's employees began discussing the possibility of union representa- tion These discussions continued on a daily basis ' The Respondent has excepted to some of the judge s credibility find mgs The Board s established policy is not to overrule an administrative law judges credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In the absence of exceptions we adopt pro forma the judge s finding that when Lucinda Symonds kicked nonstriker Billy McDonald s car as he was exiting the plant she did not engage in a serious act of misconduct that would justify the Respondent s refusal to reinstate her In light of the judge s finding that sinker Donald Steward kicked the car of a nonstnker in a reflex reaction to his almost getting hit by the car we find that Steward did not engage in a serious act of misconduct that would justify the Respondents refusal to reinstate him Cf GSM Inc 284 NLRB 174 (1987) in which a strikers unprovoked kicking of a vehi cle crossing the picket line constituted a serious act of misconduct justify mg an employers refusal to reinstate the striker Member Cracraft did not participate in the decision in GSM Inc Al though she agrees with the judge that the conduct engaged in by striker Donald Steward did not warrant his discharge and she also agrees with her colleagues that Stewart s conduct is distinguishable from the conduct engaged in by strikers Attanasio and Ernckson in GSM Inc she does not pass on whether she would have found that the discharges of Attana sio and Ernckson in GSM Inc were not violative of the Act 2 All dates are in 1983 unless otherwise indicated and were held openly in the plant Duarte Medina, the Respondent's foreman admitted that he was aware of the employees' discussions According to testimony credited by the judge, in late August, employee Karen Anderson was told by Medina that if the plant became a union shop, she would not get away with coming in late to work 3 On September 7, Medina told employee Judy Rocha that Michael Kobialka, the Respond- ent's president, did not want a union in the plant and that he would shut down the place if a union came in Later that week, Medina told employee Hazel Ellis that if a union came into the plant, the Respondent would close down On September 9, Medina asked employee Donald Stewart whether he was one of the new union members and then, after Stewart responded that the plant needed a union, Medina stated that Kobialka would close the plant On that same day, Plant Manager Paul Harrington told Anderson that the Company could not afford a union, that 30 em- ployees would lose their jobs if a union came in, and that in 6 months the plant would close On September 12, the Respondent's president, Michael Kobialka, responded to information that his employees were preparing to contact the Union by assembling them in a group just before quitting time and making a speech about the possible prob lems if a union came into the plant Among other things, Kobialka told the employees that if the Union came in, only 24 employees would remain, that he would be giving a 60-cent raise in January, that he would be willing to meet with five or six employees to discuss grievances, that he would go bankrupt if he had to pay union wages, that it would be futile to select a union because a union would not be able to obtain better terms of em- ployment, and that he was thinking about moving the plant to a new location but the decision to move would be "a function of whether or not someone was hanging a big gun over" his head Shortly after the meeting, Kobialka talked with three employees and told them that if the Union came into the plant all three would be laid off and that if the employees chose a union to represent them, he would move the plant out of town On September 14, Plant Manager Harrington similarly told employee Josephine Jacobs that if the Union came in, the plant would close down During that same week, Supervisor Nelson Har- rington told employee Michael Muniz that if the Union got in, Muniz would be laid off 9 Anderson was habitually late for work however the evidence shows that the Respondent condoned this behavior in the past 293 NLRB No 47 MASSACHUSETTS COASTAL SEAFOODS In addition to these statements, there were inci- dents of interrogation Based on credited testimony, the judge found that Foreman Joe Tavares asked his brother, in the presence of Plant Manager Har- rington, if he was `part of the group," whether he was involved in "this mess, ' and whether he had "signed " On Friday, September 9, Medina asked employee Donald Stewart if he was one of the new union members and what the latest rumors were about the Union The above statements and interrogations by Medina, Harrington, Kobialka, and Tavares were all found by the judge to be 8(a)(1) violations 4 The judge additionally found that the Respond- ent violated Section 8(a)(3) by changing employees' working conditions in retaliation for their union ac- tivity According to credited testimony, the Re spondent had a long established practice of allow- ing employees to leave the production line, one at a time, for a short period to relax, smoke a ciga- rette, or use the restroom The Respondent admit tedly changed this practice on September 13 and no longer allowed these informal breaks The judge found that the Respondent's alleged reason for changing its break policy-that employees were abusing the policy-was pretextual and he thus concluded that the motivation for changing the break policy was to retaliate against the employees because of their union activity The judge further found that the Respondent violated Section 8(a)(3) when it implemented a new tardiness policy on September 14 Based on Carmen Glidden's credited testimony, the judge found that when Glidden arrived late to work on September 14, she was told not to punch in but rather to go home Glidden inquired as to whether she was fired and was told by Kobialka that he would get back to her When Glidden then at- tempted to empty her locker, Kobialka escorted her out the door Glidden returned to the plant later that day to pick up her paycheck and was in formed by Kobialka that he had started a new policy that day that if anyone came in late, they would be sent home for the day 5 Kobialka further added that he had not fired her Although Ko bialka testified that he sent Glidden home because her place on the line had been filled, the judge dis- credited Kobialka's testimony as Kobialka later ad mitted that he had no knowledge about whether Glidden's job had been filled Because no justifica tion was offered for the new, more stringent tardi 4 The Respondent has not excepted to the judges findings that the above described conduct violated the Act 6 No evidence was presented indicating that the Respondent had a company rule in effect prior to the incident that would have prescribed such a penalty 497 ness policy implemented the day after the Union first requested recognition, the judge found that the new rule was imposed in retaliation for the em- ployees' union activity The judge further conclud- ed that the Respondent's conduct in sending Glid- den home from work pursuant to the unlawfully implemented new rule violated Section 8(a)(1) and (3) The judge also concluded that the Respondent violated Section 8(a)(3) by refusing to give employ- ee Michael Muniz an advance on his vacation pay Although the Respondent's policy was to give em- ployees vacation with pay after they reached their first anniversary, the record shows that the Re spondent frequently allowed employees to take their vacation prior to their anniversary date and on those occasions would advance the employees' pay for the vacation Based on credited testimony, the judge found that Paul Harrington approved Muniz' request for a week's vacation, with pay, and that sometime after September 9, the day that Kobialka admittedly was aware of the employees' union activity, Kobialka revoked that approval After finding that Kobialka's alleged reasons for denying the vacation pay-Muniz' allegedly bad at- titude and work performance-were pretextual, the judge concluded that Kobialka refused to grant the vacation pay because the employees contacted the Union It was amid this atmosphere of numerous, blatant violations of the Act that the employees began their organizational campaign They met with union agents almost daily during the week of Sep tember 12 to discuss organizational goals and what was happening at the plant At their Friday, Sep- tember 16, meeting the employees voted on wheth- er they should strike According to the credited testimony, the strike was designated neither as an unfair labor practice strike nor as a recognitional strike prior to the vote However, the record testa mony indicates that the Respondent's unlawful ac- tivities, as well as the employees' recognitional goals, were discussed prior to the vote Cathy Cabral, an employee present at the union meeting, testified that one of the purposes of the strike was to support Carmen Glidden, the woman who had been unlawfully sent home earlier that week be- cause of her tardy arrival at work Employees Ellen McDonald, Hazel Ellis, Doris Rowe, and Carmen Glidden all testified that the employees present at the September 16 meeting discussed what had happened at the plant that week prior to taking the strike vote Specifically, they discussed Kobialka's statements about not letting the Union in, the denial of vacation pay to Muniz, and how working conditions had changed at the plant Fi- 498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nally, Ralph Hannibal, the Union's secretary-treas- urer, who was taking notes of the meeting, record- ed that the employees voted to strike because of their concerns over recognition and job security and the harassment that had recently been taking place at the plant Based on the foregoing evidence, we agree with the judge that at least one of the reasons the em- ployees went out on strike was to protest the Re- spondent's unfair labor practices Although the em- ployees admittedly had a recognitional goal for their picketing, the discussions held prior to the strike vote clearly indicate that the employees were protesting the Respondent's unfair labor practices as well when they voted to go out on strike We are not persuaded by the Respondent's asser- tion that the Union's classification of the strike as a recognitional strike, and the fact that no unfair labor practice charges were filed against Respond- ent until September 30, 2 weeks after the strike vote had been taken, shows that the strike was not an unfair labor practice strike The Union's charac terization of the strike and the date that the unfair labor practice charge was filed in no way lessen the import of the employee sentiment expressed prior to the vote The employees, in rehashing the events of the week, clearly expressed their frustra tion with the Respondent's unlawful activities and their need to show support for those employees who had been victims of the Respondent's unlaw- ful conduct The employee sentiment, clearly re- flected in the record, supports our finding that the strike was an unfair labor practice strike from its inception 2 The judge, in considering election objections filed by both the Union anti the Respondent, found that the Union did not engage in any misconduct that would require that the election be set aside if the Union received a majority of the votes cast-in which case he recommended the Union's certifica- tion-but that the Respondent committed various unfair labor practices during the critical preelection period that did require setting aside the election if the Union lost The judge further concluded that the Respondent's unfair labor practices were of such nature that there was little likelihood that there could be a fair rerun election Thus the judge determined that issuance of a bargaining order was warranted In doing so, he rejected the Respond- ent's argument that the Union engaged in miscon- duct sufficient to preclude it from receiving a bar gaining order For the reasons stated below, we agree that a bargaining order should issue In determining whether a bargaining order is warranted to remedy the Respondent's misconduct, we apply the test set out in NLRB v Gissel Packing Co, 395 US 575 (1969) There, the Court identi- fied two categories of cases in which a bargaining order would be appropriate absent an election re- sulting in a union's certification as the employees' bargaining representative The first category of cases involves "exceptional cases" marked by unfair labor practices that are so "outrageous" and "pervasive" that traditional remedies can not erase their coercive effects thus rendering a fair election impossible The second category involves "less ex- traordinary cases marked by less pervasive prac- tices which nonetheless still have the tendency to undermine majority strength and impede the elec- tion processes " In this second category of cases, the Court reasoned that "the possibility of erasing the effects of past practices and of ensuring a fair election by the use of traditional remedies, though present, is slight and that employee senti- ment once expressed through cards would, on bal ance, be better protected by a bargaining order " Id at 613, 614-615 We agree with the judge's con elusion that the Respondent's misconduct here falls within the second category The record indicates that the Union obtained valid authorization cards from at least 39 of the 52 unit employees on September 12 and 13 Based on those cards, the Union requested recognition from the Respondent on September 13 and again on Sep tember 15 In both instances, the Respondent re- fused to recognize the Union The Union then filed an election petition on September 15 and the strike began on September 19 As detailed above, the Respondent engaged in various unfair labor practices right from the start of the organizational campaign For example, on September 7, Supervisor Medina told an employee that Kobialka would close the plant if a union came in On September 12, Kobialka himself, on learning of the employees' interest in the Union, as- sembled them in a group and unlawfully threatened loss of jobs and plant closure if the Union came in, solicited grievances, promised a wage increase, and warned that it would be futile for the employees to select a union because a union would not be able to obtain better terms of employment for them On September 13, the Respondent unlawfully imple- mented a new "no informal break" policy in retal- iation against the employees because of their union activity That same day, the Respondent unlawfully denied to Muniz an advance on his vacation pay On September 14, the Respondent unlawfully im plemented a new policy regarding tardiness and unlawfully disciplined an employee pursuant to that policy Paul Harrington, Nelson Harrington, Joe Tavares, and Duarte Medina (the latter, besides the incident mentioned above) also made unlawful MASSACHUSETTS COASTAL SEAFOODS 499 threats of plant closure or engaged in unlawful in terrogations The Respondent's unlawful conduct continued after the employees went out on strike On Septem- ber 19 and 28 and October 7, the Respondent un- lawfully threatened to permanently replace the strikers6 and, throughout the strike, the Respond ent continued its threats to close the plant Further- more, the Respondent continued its unlawful con- duct after the election by continuing to maintain its position that the strikers had been permanently re- placed and by refusing to reinstate the strikers after they made an unconditional offer to return to work, thereby in effect discharging them It is clear that from the very start of the employ- ees' organizational campaign, the Respondent en- gaged in a pattern of misconduct designed to in timidate its employees in their support for union representation The Respondent made repeated threats of plant closure and job loss, in addition to implementing more onerous working conditions and refusing to reinstate the unfair labor practice strikers after their unconditional offer to return to work This conduct affected virtually all the unit Many of the violations were committed by the Re spondent's owner and top management official, Mi chael Kobialka I Furthermore, the Respondent's unlawful conduct continued even after the election and the strike were over 4 These threats were made by the Respondent in its letter to the strik ing employees on September 19 in its letter to the replacement employ ees and nonstrikers on September 7 and in its want ad of September 28 We also agree with the judge that the Respondent violated Sec 8(a)(3) by discontinuing Jean Harrington s unpaid sick leave status It is undis puted that at the time the strike commenced Harrington was on unpaid sick leave status and according to Harrington s credited testimony had been told by Kobialka that her job would remain available for an indefi mite period of time until she was able to return to work An agent of the Respondent spotted Harrington on the picket line on September 20 and immediately sent her a letter demanding that she return on September 21 or be replaced The Respondent did not inquire whether Hamngton had been medically released to return to work In fact she had a doctor s cer tification that she should wait until October 5 to return Although the Respondent might have grounds for inquiring into her medical fitness to return to work its automatic curtailment of her leave status based simply on her appearance on the picket line constitutes discrimination in viola tion of Sec 8(a)(3) and (1) of the Act The Respondent has not shown that in the absence of the strike the mere sight of Harrington walking outdoors would have resulted in the immediate cancellation of her leave status Indeed because the record indicates that she had earlier been physically capable of coming to the plant but had to leave after 2 days of work because she was unable to continue the Respondent knew that Harrington s ability to walk did not necessarily signify her ability to return to the job Given these circumstances we conclude that neither Emerson Electric Co 246 NLRB 1143 (1979) enfd as modified 650 F 2d 463 (3d Cir 1981) cited by the judge nor Texaco Inc 285 NLRB 241 (1987) which overruled Emerson is applicable here 7 The Board has found that [t]he effect of unfair labor practices is in creased when the unlawful conduct is committed by top management of ficials who are readily perceived as representing company policy and in positions to carry out their threats and when that conduct envelopes a significant number of employees (Footnote omitted ) Bakers of Paris 288 NLRB 991 992 (1988) In view of the nature of the Respondent's viola- tions, we conclude that the possibility of erasing the effects of the unfair labor practices and of con ducting a fair election is slight Under these cir cumstances, simply requiring the Respondent to re frain from unlawful conduct will not eradicate the lingering effects of the hallmark violations Fur thermore, we find that the employees' representa tion desires expressed through authorization cards, on balance, would be better protected by a bar gaining order than by traditional remedies We realize that the original threats of plant clo sure made by Kobialka and some of the other man- agement officials occurred not only prior to the critical period, but also prior to the employees signing authorization cards for the Union Indeed, as the judge noted, "the employees went to the Union hall en masse, spontaneously, as a result of Kobialka's speech a few minutes earlier in which he threatened them with plant closure and massive layoffs " And there is evidence that Kobialka's speech may have caused some employees who before were not in favor of the Union to change their minds In any event, by 10 o'clock that night the Union had received 35 signed cards Thus it can not be said that these initial threats in fact nul lified majority support for the Union However, these threats were not the only unfair labor prac tices committed by the Respondent 8 Threats of this nature and additional unfair labor practices, in cludmg 8(a)(3) violations, were committed by the Respondent after the signing of the authorizations cards and the strike occurred Most notably, there were the unlawful threats of discharge of the unfair labor practice strikers, threats that eventually cul- minated in their actual discharge when the Re- spondent refused them reinstatement on their un conditional offer on November 10 to return to work Surely, the wholesale discharge of the strik- ers drove home to all employees, replacements and nonstrikers as well as strikers, that the Respondent was prepared to take whatever steps were neces sary to prevent its work force from being union- ized Clearly, this unlawful conduct tended to un dermine support for the Union and to extinguish any vestige of employee defiance that may have survived the Respondent's initial unfair labor prac- tices For the strikers learned that supporting a union would lead to their removal from the Re 8 PBA Inc 270 NLRB 998 (1984) in which the Board denied a bar gaining order relying on inter aha a widely supported strike and the signing of additional authorization cards after the unfair labor practices occurred is distinguishable from the instant case as there the employers unlawful conduct consisted solely of two unlawful threats neither of which was carried out In denying the bargaining order the Board ex pressly noted that the unlawful statements were not accompanied by any unlawful disciplinary action against any employee Id at 999 500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent's employ, a lesson they were not likely to forget if eventually rehired As for the replace- ments and nonstrikers, the fate of the strikers likely impressed on them that future support for a union could result in similar action being taken against them Thus, notwithstanding that the initial threats of plant closure did not destroy employee support for the Union, we conclude that the Respondent's latter violations not only evidence the Respond- ent's continuing resolve to retaliate against the em- ployees for their union activities but serve to render slight the likelihood that a free election can now be conducted 9 Accordingly, we find that a remedial bargaining order is appropriate See Armon Co, 279 NLRB 1245 fn 2 ( 1986) 10 Having found that the Respondent's unlawful conduct necessitates the issuance of a bargaining order, however, does not end our inquiry here, for the Union and striking employees engaged in mis- 9 In reaching these conclusions we note that an election was held on October 14 at which inter alia the ballots of the striking employees and their replacements respectively were challenged The fact that the sink ing employees voted in that election which we have set aside for the rea sons stated below does little to persuade us that a free election can now be held if for no other reason because it was after that election that the Respondent struck its crowning blow by unlawfully refusing to reinstate the strikers after their unconditional offer to return to work 10 The judge properly ordered the Respondent to recognize and bar gain on request with the Union as of September 13 the date that the Union initially demanded recognition as the record shows that at that time the Respondent had already embarked on a clear course of miscon duct designed to intimidate the employees in their union activities See Trading Port 219 NLRB 298 (1975) The Respondent has filed a motion to reopen the record for the put pose of adducing evidence of employee turnover In support of this motion the Respondent asserts that it will be able to demonstrate that 50 percent of the bargaining unit employees no longer worked for the Respondent as of the date of the Administrative Law Judge s decision Citing two decisions of the Second Circuit the Respondent states that the courts have held that evidence of employee turnover as well as the lapse of time are relevant in determining the propriety of a bargaining order The Respondent claims that the evidence it wishes to produce was not available or relevant at the time of the hearing We deny the Respondents motion because the evidence sought to be adduced would not require a different result See Sec 102 48(d)(1) of the Board s Rules and Regulations Under Board precedent the validity of a bargaining order depends on an evaluation of the situation as of the time the unfair labor practices were committed Highland Plastics 256 NLRB 146 147 (1981) Thus the evidence the Respondent seeks to produce is irrelevant With regard to the Second Circuit precedent relied on by the Respondent we note that this case does not arise in the jurisdiction of the Second Circuit and that that circuits requirement that the Board con cider postheanng developments conflicts with the views of other circuits E g Piggly Wiggly Y NLRB 705 F 2d 1537 1543 fn 9 (11th Cir 1983) Chromalloy Mining & Minerals Y NLRB 620 F 2d 1120 1131-1133 (5th Cir 1980) Finally even assuming arguendo the relevance of posthearing evidence of turnover we find that the evidence the Respondent seeks to introduce would not warrant withholding an otherwise appropriate bar gaining order As described above the Respondents violations were ex tremely serious and affected virtually the entire bargaining unit The con tinued presence of approximately one half of the employees who were subject to the Respondent s unlawful conduct creates a potential that the inhibitive effects of the unfair labor practices remain and serves to render unlikely the holding of a fair election Member Johansen joins in denying the motion to reopen but finds it unnecessary to address the general relevance of turnover and passage of time He like his colleagues is satisfied that the evidence the Respondent offers to adduce would not alter the need for a bargaining order in this proceeding conduct that the Respondent asserts precludes our granting a bargaining order 11 As the judge found, the Union engaged in mis- conduct when Union Representative Thomas Wil- kinson stopped his car in such a manner as to block a bus carrying nonstriking employees and replace- ment workers into the plant The judge found that this was the only incident directly attributable to the Union, however, the judge also considered conduct by striking employees As a group, the strikers engaged in misconduct when they pelted a bus, carrying nonstriking employees and replace ment workers, with eggs, tomatoes, and other vegetables for a period of about 30 seconds while the bus was leaving the plant Additionally, two strikers engaged in picket line misconduct, justify ing the Respondent's refusal to reinstate them, when one threw tomatoes at a bus carrying non striking employees and replacement employees to work and the other telephoned the home of non striking employee Barbara Murphy and threatened Murphy's 16-year old daughter saying, "[T]ell Kim and your mother that if they show up for work, they're dead "12 " The Respondent also asserts that the Unions misconduct requires that the election be set aside We find merit in the Respondents position as we conclude that in light of the conduct of the Union and various striking employees described infra and the likely effect of the conduct on the election process we are unwilling to issue a certification of repre sentative even if the tally of ballots were to show that the Union won the election Therefore because of the misconduct engaged in by both the Respondent and the Union the election must be set aside Our refusal to certify the Union based on election results does not conflict with our granting a bargaining order Here the Union achieved majority status among the unit employees as represented by authorization cards prior to any objectionable conduct by the Union during the critical preelection period Thus while the Union s conduct may have interfered with the employees exercising a free choice in the election no such stigma at Caches to the Union s achievement of majority status among the unit em ployees as represented by authorization cards The cards and hence the Union s majority standing were obtained free of union restraint and coer cion The practical effect of our decision is that the Respondent will be re quired to bargain for a reasonable time but the Union will not have the extended protection provided by the certification year Given the se quence of events and the manner in which both parties destroyed condi tions for a valid election we find this to be the most appropriate among our limited choices of remedies 12 There was also evidence of vandalism to automobiles however be cause the evidence failed to establish the party responsible for the vandal ism we find that that conduct cannot be attributed to the Union Thus we disavow the judge s conclusion that the vandalism was related to the strike The Respondent in its exceptions alleges that the judge failed to make any findings concerning various other alleged incidents of striker miscon duct These alleged incidents included doing damage to vehicles making harassing or threatening statements to striker replacements and manage ment officials blocking the driveway to the Respondents facility hitting or kicking vehicles attempting to enter the plant spreading roofing nails in front of the home of a nonstriker and throwing coffee in the face of a police officer assigned to monitor the picket line The record reveals con flicting testimony regarding these incidents In light of the judge s failure to credit any witnesses regarding these incidents we are unable to con elude whether such events occurred We find it unnecessary to do so however because these incidents even if they occurred although provid Continued MASSACHUSETTS COASTAL SEAFOODS 501 In Laura Modes Co, 144 NLRB 1592 (1963), the Board withheld a bargaining order based on the union's use of violent tactics to compel its repre- sentation rights There the Board stated that the withholding of a bargaining order constituted "an extraordinary remedy" against a union which would otherwise be entitled to a bargaining order In New Fairview Convalescent Home, 206 NLRB 688, 689 (1973), enfd 520 F 2d 1316 (2d Cir 1975), cert denied 423 U S 1053 (1976), the Board stated We do not condone any picket line violence, and the processes of the Board are available to prevent its recurrence But we are also reluctant to deprive a substantial group of em ployees of the benefits of collective bargaining because of the misconduct of a few miscreants Here, looked at in perspective, there were but few instances of misconduct by a relatively small proportion of strikers against a background of Respondent's frequent and re- curring unfair labor practices Viewed in that light we have concluded that the extraor dinary sanction of withholding an otherwise appropriate remedial bargaining order would not best effectuate the policies of the Act In determining whether a union's misconduct is the type that justifies withholding a bargaining order, the Board has considered the extent of the union's interest in pursuing legal remedies, the extent to which the evidence shows deliberate planning of violence and intimidation on the part of the union, the extent to which the assaults or other misconduct were provoked, the duration of the union's conduct, and the relative gravity of the union's misconduct vis a-vis the employer's miscon duct Grede Foundries, 235 NLRB 363 (1978), enfd as modified 628 F 2d 1 (D C Cir 1980) In the instant case, it is apparent that the Union was interested in pursuing legal recourse as evi- denced by its filing of an election petition and its filing of unfair labor practice charges Further more, we find that the evidence does not establish that the Union pursued a deliberate course of action intended to intimidate employees Rather, the one incident of misconduct directly attributable to the Union was a relatively minor blocking inci- dent and the incidents of misconduct attributable to various strikers were sporadic in nature and not the type which would evidence a deliberate plan to in- mg further support for our decision to set aside the election would not warrant withholding a bargaining order None of this alleged misconduct was attributable to union officials and it does not rise to the level of the misconduct found in Laura Modes 144 NLRB 1592 (1963) where the Board denied a bargaining order after a union official and several union members entered a plant they were attempting to organize and physically struck a management official and pushed around a company secretary timidate employees Finally, in considering the Union's misconduct vis-a vis the Respondent's mis- conduct, we find the Union's conduct not to be as egregious as that of the Respondent, which violat- ed Section 8(a)(1), (3), and (5) of the Act In so finding, we note that the Respondent engaged in numerous 8(a)(1) violations from the initiation of the employees' organizational campaign and unlaw fully implemented more onerous work rules in re- taliation against the employees because of their union activities, the Respondent's conduct contin ued after the Union made a valid showing of ma- jority support as evidenced by signed authorization cards by a majority of unit employees, and, the Re- spondent, even after all the strikers made an uncon ditional offer to return to work, continued to vio- late the Act by refusing to reinstate them In con- trast, the Union's misconduct and the misconduct of the strikers consisted of one blocking incident, one incident of pelting a bus containing replace ment workers with eggs and vegetables, and mis- conduct by 2 out of 35 strikers As in New Fairview Convalescent Home, supra, we find that here there were only a few instances of misconduct against a background of frequent, serious unfair labor prac tices by the Respondent Therefore "the extraordi nary sanction of withholding an otherwise appro- priate remedial bargaining order," id at 689, would not effectuate the purposes of the Act in the instant case ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Massachusetts Coastal Seafoods, Inc, Magnolia, Massachusetts, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified, except that Case 1-RC- 18015 is not remanded and the petition in Case 1- RC-18015 is dismissed 1 Insert the following as paragraph 1(o) and re- letter the subsequent paragraph '(o) Refusing to recognize and bargain with United Food and Commercial Workers Union, Local 15, AFL-CIO as the exclusive collective- bargaining representative of all of its employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment " 2 Substitute the attached notice for that of the administrative law judge 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT threaten to impose more onerous working conditions on employees for engaging in activities in support of United Food and Commer- cial Workers Union, Local 15, AFL-CIO or any other labor organization or for engaging in activi- ties protected by Section 7 of the Act WE WILL NOT threaten employees with layoffs or plant closures and loss of employment if they select the Union or any other labor organization as their collective-bargaining representative WE WILL NOT coercively interrogate employees concerning their union or other activities protected by Section 7 of the Act WE WILL NOT offer employees a wage increase in order to dissuade them from supporting the Union or any labor organization WE WILL NOT threaten to forgo plant expansion or to move our plant from its present location in order to dissuade employees from supporting the Union or any other labor organization WE WILL NOT solicit grievances with the implied promise of adjusting such grievances in order to dissuade employees from supporting the Union or any other labor organization WE WILL NOT tell employees directly or by im- plication that it would be futile to select the Union or any other labor organization as their collective- bargaining representative WE WILL NOT threaten to permanently replace unfair labor practice strikers if they do not abandon a strike WE WILL NOT impose a more restrictive policy concerning employees taking informal breaks be cause they engage in union or other activities pro tected by Section 7 of the Act WE WILL NOT impose more onerous work rules concerning tardiness because employees engage in union or other activities protected by Section 7 of the Act WE WILL NOT discriminatorily deny employees advanced vacation pay because they engage in union or other activities protected by Section 7 of the Act WE WILL NOT discontinue employees' sick leave benefits because they engage in union or other ac- tivities protected by Section 7 of the Act WE WILL NOT refuse to reinstate unfair labor practice strikers on their offer to return to work WE WILL NOT discipline or otherwise discrimi- nate against employees with regard to their hire or tenure of employment or any term or condition of employment for engaging in activities in support of the Union or any other labor organization or in other activities protected by Section 7 of the Act WE WILL NOT refuse to recognize and bargain with United Food and Commercial Workers Union, Local 15, AFL-CIO as the exclusive col- lective-bargaining representative of all our employ ees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL reinstate the practice and policy that existed prior to September 13, 1983, whereby em ployees could take informal breaks WE WILL rescind and abrogate the work rule an- nounced September 14, 1983, punishing tardiness with time off from work WE WILL recognize, effective September 13, 1983, and on request, bargain with the Union as the exclusive collective-bargaining representative of all employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement WE WILL, if we have not already done so, offer Joyce Amero, Karen Anderson, Sharon Auclair, Mildred Aubrey, Donald Babine, Geraldine Bod well, Edith Brown, Catherine Cabral, Evelyn Cabral, Pauline Cabral, Clara Curtis, Hazel Ellis Carmen Glidden, Jean Harrington, Josephine Jacobs, Nancy Lumbard, Antonio Lentini, Ellen MacDonald, Edna MacFarland, Jacqueline Me- deiros, Janet Miller, Michael Muniz, Michael Patn- can, William Porter, Janice Rigney, Judith Rocha, Doris Rowe, Robert Sheehan, Donald A Stewart, Eduardo Tavares, Maria Lucia Tavares, Barbara Theriault, Albert Tognazzi, and Alberta Trefry im- mediate and full reinstatement to their former posi- tions of employment, discharging, if necessary, anyone who was hired after September 19, 1983, or if their former positions no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges previ ously enjoyed and WE WILL make them whole for any loss of earnings suffered as a result of our dis- crimination against them, plus interest WE WILL make whole Carmen Glidden and Dons Rowe for any loss of earnings suffered by MASSACHUSETTS COASTAL SEAFOODS 503 reason of our having unlawfully taken disciplinary action against them, plus interest, and WE WILL remove from our records and files any documenta- tion concerning such disciplinary action, and WE WILL notify them that it will not be used as a basis for future disciplinary action against them MASSACHUSETTS COASTAL SEAFOODS, INC APPENDIX B The following employees made an unconditional offer to return to work effective November 10, 1983 Joyce Amero Ellen MacDonald Karen Anderson Edna MacFarland Sharon Auclair Jacqueline Medeiros Mildred Aubrey Janet Miller Donald Babine Michael Muniz Geraldine Bodwell Michael Patrican Edith Brown William Porter Catherine Cabral Janice Rigney Evelyn Cabral Doris Rowe Pauline Cabral Robert Sheehan Clara Curtis Donald A Stewart Hazel Ellis Eduardo Tavares Carmen Glidden Maria Lucia Tavares Jean Harrington Barbara Theriault Josephine Jacobs Albert Tognazzi Nancy Lumbard Alberta Trefry Antonio Lentini The following employee made an unconditional offer to return to work, effective March 26, 1984 Judith Rocha answer to the consolidated complaint denying that it committed any violation of the Act The Union filed a petition in Case 1-RC-18015 on 15 September 1983 An election was held on 14 October 1983, pursuant to a stipulation for certification upon con sent election executed by the parties and approved by the Regional Director on 5 October 1983 Approximate ly 94 people were tentatively eligible to vote and the tally indicates 93 ballots were cast, 4 for the Union Peti tioner, 12 against, and 77 challenged On 21 October 1983 both the Union and the Respondent timely filed objections to the election On 29 December 1983, the Acting Regional Director issued a report on objections and challenged ballots concluding that the Respondent s objections should be consolidated for hearing with Case 1-CB-58382 and that the Union s objections and chal lenges to ballots should be consolidated with Cases 1- CA-21429 and 1-CA-21579 for hearing before an admin istrative law judge The Respondent filed exceptions to the report on 2 March 1984 which were overruled by the Board on 14 March 1984 On 27 March 1984, the Re gional Director issued an Order consolidating Case 1- RC-18015 with Cases 1-CA-21429 and 1-CA-21579 During the course of the trial, the Union filed a charge in Case 1-CA-22171 on 28 June 1984 and an amended charge on 31 July 1984 and it filed a charge in Case 1- CA-22242, on 24 July 1984 Thereafter, the General Counsel moved to consolidate all of these cases and this unopposed motion was granted by me in an Order dated 10 September 1984 A hearing was held at Gloucester and Danvers, Mas sachusetts, on 42 dates between 7 May 1984 and 27 Feb ruary 1985, at which all parties were given a full oppor tunity to participate to examine and cross examine wit nesses and to present other evidence and argument Briefs submitted on behalf of the parties have been given the consideration On the entire record in these consoli dated cases and from my observation of the demeanor of the witnesses, I make the following Gary S Cooper and Susan F Cole Esqs for the General Counsel Harold N Mack and Nathan L Kaitz Esqs of Boston, Massachusetts for the Respondent Ira Sills Esq of Boston, Massachusetts, for the Charging Party DECISION RICHARD A SCULLY, Administrative Law Judge On charges i filed by United Food and Commercial Workers Union, Local 15 AFL-CIO (the Union), the Regional Director for Region 1 National Labor Relations Board (the Board), issued a consolidated complaint on 30 Janu ary 1984, alleging that Massachusetts Coastal Seafoods, Inc (the Respondent) committed certain violations of Section 8(a)(1), (3), and (5) of the National Labor Rela tions Act (the Act) The Respondent filed a timely i The original charge in Case I-CA-21249 was filed on 30 September 1983 and amended charges were filed on 4 and 21 October 1983 The original charge in Case 1-CA-21579 was filed on 17 November 1983 and an amended charge was filed on 28 December 1983 FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT At all times material the Respondent was a corpora tion engaged in the business of processing frozen fish at its plant in Magnolia Massachusetts Annually in the course and conduct of its business the Respondent pur chases and receives at its Magnolia facility goods materi als, and supplies valued in excess of $50 000 shipped di rectly to it from points outside of the Commonwealth of Massachusetts The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Respondent admits and I find that at all times ma tenal the Union was a labor organization within the meaning of Section 2 (5) of the Act 2 Case t-CB-5838 is not a part of this consolidated matter 504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD III THE ALLEGED UNFAIR LABOR PRACTICES A Background The Respondent had been in the business of processing frozen fish for several years at its plant in an industrial park in Magnolia Massachusetts just outside the city of Gloucester For some time prior to September 1982, the Company was in precarious financial condition which had resulted in the employees pay being reduced by $1 per hour At that point, Michael Kobialka became inter ested in the Company and along with Michael Mineo took over its management Mineo acquired 50 percent of the Company s stock from Owner Lee Harrington in September 1982 and Kobialka purchased the remaining 50 percent from Harrington in March 1983 In January 1984, Kobialka bought out Mineo and became the owner of 100 percent of the Company's stock All of the Company s products emanate from blocks of frozen fish which are unwrapped and prepared by em ployees known as block openers The blocks are cut with saws operated by cutters into the appropriate portion size at the head of production line 3 After being cut the fish is collected and stacked up by stackers Next the fish goes into a wire mesh table known as the scramble, where the pieces are flattened and separated before they go into a batter machine 4 After being bat tered and breaded, the pieces of fish go down a convey or where they are picked up and into boxes by pack ers After being packed the boxes go through a wrap ping machine known as the shrink' and then are put into cartons for shipping When filed the cartons are lifted into racks by rackers Because of the nature of their jobs, cutters and rackers receive higher pay than other employees The Company s normal production hours are from 7 00 a in until 3 25 p in There are regularly scheduled 15 minute breaks known as mug ups in the morning and afternoon, in addition to a 35 minute lunch period All production employees must punch a timeclock at the beginning and end of the workday and at the beginning and end of the lunch period Discussions among employees about seeking union rep resentation began about mid August, 1983,5 and contin ued on a daily basis in the lunch room during mug ups and lunch periods and on the production lines Among the topics being discussed was lack of the job security, the fact that longtime Foreman Butch Burbridge, who had been out of work due to illness for an extended period, no longer was guaranteed a job and a recent re duction in insurance benefits These discussions were car ried on openly in the plant and at least one line foreman, Duarte Medina had overheard some of the conversa tions and had even discussed the possibility of their seek ing union representation with production employees during late August On Thursday, 8 September a group of employees decided to contact the Union and during the afternoon mug up employees Karen Anderson called 3 At all times matenal the Company was operating two production lines * Some products would also be put through a shaping machine 5 All dates are in 1983 unless otherwise indicated the union hall and spoke with Union President and Bust ness Agent Helen Tarr about meeting to discuss the pos sibility of representation Tarr suggested meeting the next afternoon however, the meeting was scheduled for the following Monday at 3 30 p in because several em ployees were planning to take a boat cruise on Friday evening During Thursday afternoon, the fact that the meeting had been arranged was circulated among the employees on the two production lines Duarte Medina learned of the scheduled meeting and reported it to Mi chael Kobialka on Thursday or Friday and told him he thought Kobialka should speak to the employees before they met with the Union Medina also told Plant Manag er Paul Harrington and Line Foreman Jose Tavares what he had learned On Monday, 12 September, just before quitting time Kobialka assembled the production employees and made a speech to them about their seeking union representa tion Thereafter, approximately 30 to 35 employees went to the union hall to meet with Helen Tarr There was a general discussion in the conference room concerning Kobialka s speech, what the employees were concerned about the plant, and what the Union could do for them During the meeting Helen Tarr received a telephone call Tarr told the employees that the caller had identi feed himself as a CPA named James Cawley and told her that many of the Mass Coastal employees were good friends of his and he did not want to see them get hurt He said that there was a blacklist with 15 names on it of people who were going to be let go and he wanted to be sure that the Union could protect them Some of the em ployees told Tarr that they did not know anyone named James Cawley but that it might be James Corbett the company comptroller They said that he was a cowork er but not a good friend During the course of the meeting Tarr called International Union Representative James Lee who spoke to the employees by speaker phone Lee said that if two thirds of the employees signed union authorization cards, the Union could go to the company and talk about representing them Tarr had placed authorization cards on the table and several em ployees filled them out and returned them to her Around 7 p in, at the request of employees who doubted that James Corbett would have made the call Tarr had told them about earlier, Tarr called Corbett s home When he answered Tarr identified herself and said that she had talked with him earlier When Corbett said he had not talked with Tarr she said ' sorry' and hung up Some of the employees took union authorization cards to the homes of others who were not at the union hall and returned them to Tarr that evening By the time Tarr left the union hall after 10 p in that night she had received approximately 35 executed cards About 10 am on 13 September Tarr, Lee and local Union Vice President Robert Moore went to the Mass Coastal plant and asked to speak with Michael Mineo They were told that Mineo was not there but that Mi chael Kobialka was expecting them They went into Ko bialka s office and Tarr told him that the Union repre sented a substantial number of the employees and that she would like to sit down and talk with him Kobtalka MASSACHUSETTS COASTAL SEAFOODS told them that he would not talk with them until he had an opportunity to consult with an attorney That after noon approximately 30 to 35 employees met with Tarr and Lee at the union hall after work Tarr introduced Lee to them and reported what had occurred during their meeting with Kobialka that morning The employ ees told the union representatives what had occurred at the plant during the day and there was a discussion about their future course of action There was another meeting of employees at the union hall on the following afternoon, 14 September On 15 September, Tarr and Lee went to the Board's office in Boston and filed the petition On 16 September, Tarr and Lee went to meet with the Respondents attor ney at his office as had previously been arranged When they arrived, the attorney met them in a hallway and told them that he was no longer representing the Compa ny and that he had been asked to inform them that the Respondent was not going to voluntarily recognize the Union There was another meeting with the employees that evening at the union hall at which they voted to go on strike beginning the following Monday, 19 Septem ber The strike did commence on 19 September with at least 35 employees participating in picketing the plant The Respondent sent all strikers a letter, dated 19 Sep tember, informing them that if they did not return to work on Wednesday, 21 September, the Company would start hiring replacements and a letter, dated 20 Septem ber, stating that it had started hiring replacements Sev eral replacements were hired and went to work at the plant On 8 November 35 strikers gave the Respondent writ ten notice to their unconditional offer to return to work 6 By letter of 10 November, the Respondent in formed the Union that all strikers had been permanently replaced Thereafter at various times, some of the strik ers were recalled and returned to work for the Respond ent B Supervisory Issue 1 Status of Duarte Medina and Jose Tavares During the summer of 1983, up to the date of the strike 19 September the Respondent operated two pro duction lines on which fish products were cut, prepared and packed Line one normally employed 21 or 22 people under the direction of Line Foreman Duarte Medina Line two on which Jose Joe Tavares was line foreman, had between 10 and 20 workers Medina had served as line foreman on one line or the other for over 8 years Tavares had previously worked as line foreman on a third line the Company had once operated and had filled in as foreman on line two when Butch Burbridge was out due to illness during the summer of 1983 Toward the end of August, Tavares was perma nently designated as foreman on line two Medina re ceived a salary of $415 in September 1983 and was paid time and a half for overtime based on an hourly rate Ta 6 Employee Judith Rocha made an unconditional offer to return to work on 23 March 1984 505 veres was paid $7 25 per hour plus $50 per week for per forming his duties as line foreman until he was put on salary in December 1983 The line foreman shared an office in the production area with Plant Manager Paul Harrington and Quality Control Person Nelson Harring ton Male production employees wore blue shirts provid ed by the Company which had their names and the com pany name on them, while the plant manager, quality control person, and line foreman wore white shirts simi larly inscribed Medina and Taveres met most mornings with Kobialka and Paul Harnngton to discuss the day's production Sometimes employee performance was also discussed 7 They also attended monthly production meetings with Kobialka and other management officials, some of which were held at a restaurant Medina took over as plant manager whenever Paul Harrington was on vacation or away from the plant for some other reason Both Medina and Tavares initialed timecards for em ployees when they were unable to punch their cards due to a clock malfunction or in instances where they forgot to punch in or out and when an employee had been as signed to a job which was paid at a higher rate, such as cutting or racking 8 The employees were generally paid on the basis of the line foreman s initials on the timecards although occasionally an office worker would have to ask the line foreman to clarify what a designation on a card meant Medina testified that, on occasion, employ ees have come to him when they did not receive the extra pay to which they were entitled and he would go into the office to find out why and, if necessary initial the timecard or put the proper information on it Generally the employees had specific jobs and places on the production lines and could switch places on the line with other employees if they wished without the line foremen s prior approval However it was the line fore men's responsibility to see that the lines operated effi ciently and they could and did assign employees to spe cific jobs on a line, such as cutting, opening blocks, or working on the scrambler' or from one line to another when they determined that additional people were needed on a particular job The line foremen reassigned workers who could not keep up with the jobs they were doing They also gave employees directions con cerning production requirements the speed at which they were to work and taking breaks When there was a question of whether a piece of fish of marginal quality should be packed or rejected the line foreman made the final determination When the quality controller found a problem with the product on a given line, he brought it to the attention of the line foreman who was responsible for correcting it Although they spent up to half of each day working at various positions on their lines, either filling in for employees taking breaks or helping out whenever they felt an extra worker was needed the line ' Medina and Tavares denied attending production meetings however the testimony of Kobialka and Nelson Harrington establishes that such meetings occurred and that Medina and Tavares attended 8 Both Medina and Tavares denied having any authority to initial time cards notwithstanding the fact that they regularly did so Michael Ko bialka acknowledged that the line foremen were authorized to do this I found this reflected adversely on the line foremen s credibility 506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD foreman s principal responsibility was, in Tavares words to see that the people do the right job Several employees testified that when they wanted to leave work early or had to do so because they were ill, they spoke to their line foreman who usually granted their requests without consulting with anyone else Medina testified that he had granted requests for time off, however, Tavares, while acknowledging that he could deny such requests, stated that whenever he grant ed them he would tell Paul Harrington who always ap proved Tavares action Analysis and Conclusions The General Counsel and the Charging Party contend that Medina and Tavares are supervisors within the meaning of Section 2(11) of the Act, while the Respond ent denies this The burden of proving supervisory status rests with the parties alleging that such status exists 9 It is not necessary for an individual to possess all the crite na outlined in Section 2(11) in order to be considered a supervisor Possession of one or more of these criteria is sufficient to establish an individual s supervisory status and the Board will not engage in balancing the supervi sory aspects of the job with the nonsupervisory in order to determine his status 10 I find that both Medina and Tavares are statutory supervisors One aspect of supervisory status is the authority to assign and responsibly direct employees with the use of independent judgment Medina and Tavares directed the employees working on their production lines and in doing so they exercised independent judgment in assign ing the employees to specific jobs on the lines and reas signing them in cases where they felt an employees fail ure to keep up with a job impeded production 1 i Al though there was evidence that employees could some times switch positions on a line on their own and that to some extent the nature of the product being run dictated the number of people needed on a given job such as cut ting, it is clear that the line foremen had the final say as to where a given employee worked Besides assigning positions on the line they could and did assign additional people to jobs such as racking, which called for in creased pay when they determined it was necessary Likewise, the foremen determined when and where they, themselves, would work on their lines, based on their perception of the needs of the moment They gave direc tions concerning the length and frequency of informal breaks and the speed at which employees should work On one occasion Tavares ordered a packer who was packing with only one hand to pack with two hands or go home 12 The line foremen had the overall responsibil 8 Soil Engineering Co 269 NLRB 55 (1984) RAHCO Inc 265 NLRB 235 247 (1982) 10 Gurabo Lace Mills 249 NLRB 658 (1980) 11 See Han Dee Pack, Inc 249 NLRB 725 727-729 (1980) 12 Tavares acknowledged that he gave the packer such an order during questioning by counsel for the General Counsel Following a recess in response to questions from Respondents counsel Tavares claimed he gave this order only after conferring with Paul Harrington who told him what to say to the packer I do not credit this later testimo ny ity for seeing that quality standards were being met and, when a question arose about the quality of the product being produced on their lines, they made the final deter mination about whether particular items met those stand ards Their discretionary authority to assign and to direct the work force indicates supervisory status 13 Several other factors lead to the conclusion that the line foremen were statutory supervisors Employees were paid on the basis of the line foremen' s initials on their timecards, either indicating that employees had done work calling for pay at a higher rate or that they were on the job but had not had their timecard properly stamped This was not a routine, clerical function and evidenced supervisory authority 14 There were occasions when employees who did not receive the pay to which they were entitled spoke to Medina who went to the office and resolved the problem without the involvement of higher management This authority to adjust gnev ances is an attribute of supervisory status 15 Although the Respondent denies that line foreman could grant time off, the record establishes that Medina and Tavares often granted employees' requests to leave work early without first conferring with Paul Harrington or Kobtalka There was no evidence that any employee s request to leave work early was ever refused once the line foreman had approved it Granting time off is indica tive of supervisory authority 16 While there was appar ently little necessity for disciplinary action in the plant described one incident in which he observed an employ ee he considered too intoxicated to work and report this fact to Kobtalka The employee was sent home Al though Kobialka testified that he made an independent determination' to send the employee home, he offered no description or details as to any independent investiga tion or observation he made of the employee's condition From all that appears, Kobialka relied on Medina's judg ment that the employee was unfit to work in making his determination It was Medina who actually sent the employee home The authority to effectively recommend action without independent investigation by superiors qualifies one as a statutory supervisor 17 Medina had such authority I found that throughout their testimony both Medina and Tavares attempted to create the impression that they had no supervisory responsibility whatsoever and that just about every action they took was at the direction or with the approval of Plant Manager Paul Harrington Kobialka too tried to make it sound like Paul Harnng ton was solely responsible for supervising production Their testimony was in marked contrast to that of sever al production line employees who identified the line foremen as their principal source of supervision and was not credible 18 Although he was still employed as plant 1 3 Washington Beef Producers 264 NLRB 1163 (1982) Serendipity Un Ltd 263 NLRB 768 (1982) 14 ITT Lighting Fixtures 249 NLRB 441 442 (1980) Monroe Mfg Co 200 NLRB 62 66-67 (1972) 15 HS Lordships 274 NLRB 1167 1174 (1985) 18 HS Lordships supra 17 ITT Lighting Fixtures 265 NLRB 1480 1481 (1982) 18 Kobialka gave the Board an affidavit on 26 September in which he identified Medina and Tavares as supervisors along with Paul and Nelson Continued MASSACHUSETTS COASTAL SEAFOODS manager at the time of the hearing, Paul Harrington was not called as a witness by the Respondent and did not corroborate the testimony of the line foremen and Ko bialka As a practical matter, if the line foremen were not supervisors then Paul Harrington would have been the sole supervisor of over 50 employees working on two different production lines and in other areas of the plant 19 Given the facts that the Respondents fish pack ing business was subject to strict governmental quality standards and that since Kobialka's arrival there had been a concerted effort to increase production and maxi mize product recovery, a much lower employee supervi sor ratio would be expected In this regard, it is notewor thy that the line foreman s positions were never left un filled for any significant periods Whenever one of the line foremen was out or if Medina was filling in as plant manager in the absence of Paul Harrington, Nelson Har nngton took over as a line foreman Nelson testified that when he did so, although he was still responsible for his quality control duties, running the line was his `prime responsibility The line foreman were paid on a different basis and significantly more than production employees Medina was on salary and Tavares received $50 extra a week after being promoted to the foreman s position until he eventually was put on salary They wore white shirts similar to that of Paul Harrington and had access to the Harrington's office on a regular basis While other em ployees may have used the office on occasion to use the telephone located there, their access was much more lim ited than the foreman's Medina and Tavares determined their own breaks and did so even after Kobialka restrict ed informal breaks during the week of 12 September Medina regularly filled the position of plant manager whenever Paul Harrington was not working and was generally considered to be part of management It was Medina who approached Donald Steward about taking on additional cleanup duties in early summer 1983 rather than hiring additional help In this regard Stewart negoti ated the amount of additional pay he was to receive with Medina He finally agreed to take the additional duties when offered $20 by Medina and Paul Harrington Al though Tavares did not have as much experience as Medina as a line foreman and probably did not receive the same deference, there was no indication that his su pervisory authority as a line foreman was any less than that of Medina when he was filling the same position Based on all the foregoing reasons I conclude that both Durate Medina and Jose Joe Tavares were statutory Harrington Interestingly Nelson Harrington who was no longer em ployed by the Respondent when he testified readily acknowledged that when he served as a line foreman he had authority to do some of the things Medina and Tavares claimed they were not authorized to do he arranged with the other line foreman to get people for his line if produc tion was not keeping up and vice versa and he allowed employees who were not feeling well to go home without consulting anyone He also ac knowledged attending monthly production meetings with members of management and said Medina and Tavares also attended Nelson testified that there was a team of people consisting of himself Paul Harrington Medina and Tavares who were responsible for getting the product out on a daily basis Paul Harrington was the top man while the other three were a little lower echelon 19 Although Kobialka was often present in the production area he did not engage in direct supervision of rank and file employees 507 supervisors within the meaning of Section 2(11) and agents of the Respondent within the meaning of Section 2(13) of the Act 20 2 Status of Nelson Harrington Nelson Harrington was the brother of Plant Manager Paul Harrington and the son of the former owner of the Company From at least 1978 and continuing through the summer and fall of 1983, his regular position was that of quality control person In that position he had the re sponsibility to see that the blocks of fish the Company processed and its finished products met quality standards and that employees complied with health regulations He was paid a salary of $390 per week and was not required to punch a timeclock His immediate supervisor was Paul Harrington He testified that he regularly tested the products to see that they were properly battered and breaded and met size and weight requirements If he found that an employee was doing something that would adversely affect the quality of the product, he would first ask the employee to stop and if they did not, he would bring it to the attention of the line foreman or the plant manager He attended monthly production meet ings with Kobialka and other members of management at the plant and, on occasion, at the restaurant, and had told employees that he had done so He took his breaks when he determined that his work was caught up, but he was given no special privileges and had no ownership in terest in the Company The terms of the sale of the buss ness from his father to Kobialka and Mineo did not guar antee him continued employment with the Company and his status and duties did not change when they acquired ownership Prior to becoming the Company s quality controller in 1978, Nelson served as a line foreman and, after that date, continuing through September 1983 whenever one of the line foremen was out, he filled in for him During the summer of 1983 when Line Fore man Butch Burbridge was out due to illness, he ran one of the production lines until Tavares was appointed line foreman Even when he was acting only as quality con troller and not serving as a line foreman he sometimes initialed timecards for employees when Paul Harrington or a line foreman was not available although as quality controller, he had no responsibility to do so Nelson con sidered himself a member of the Company s management team responsible for getting out the Company s product He wore a white uniform shirt as did the plant manager and line foremen Analysis and Conclusions The position of quality controller did not involve a significant amount of supervisory activity and, in and of itself probably would not qualify the incumbent as a su pervisor within the meaning of Section 2(11) However, the evidence indicates that Nelson Harrington was in a unique situation with the Respondent, in that, for years he had regularly filled in as a line foreman a position which I find does meet the criteria of a statutory super visor There was no clear delineation as to what function 20 Pacific Coast International Meat Co 248 NLRB 1376 1377 (1980) 508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nelson performed on a day to day basis He might be simply quality controller one day and a combination quality controller and line foreman the next The facts that while functioning as quality controller he initialed employee timecards (something the line foremen were authorized to do but the quality controller was not) and employees were paid on the basis of his doing so, that Nelson, himself and other employees considered him a part of management, and that Kobialka identified him as one of the Company s supervisors, confirm this His salary, not having to punch a timeclock , white uniform shirt, use of the plant managers office attendance at production meetings, and freedom to take his breaks whenever he chose, all served to set him apart from the rank and file employees Considering all the circum stances, I find that Harrington was a statutory supervisor and that the Respondent should be held responsible for his conduct even when he was not acting as a line fore man as the employees would reasonably believe that he was acting on behalf of management because of the posi tion in which the Respondent had placed him and that he was an agent within the meaning of Section 2(13) of the Act 21 C Alleged Violations of Section 8(a)(1) and (3) 1 Incidents involving Karen Anderson a Warning by Paul Harrington On 7 September employee Karen Anderson called the plant at 6 45 am and informed Nelson Harrington that she would be an hour late for work because it was her son s first day of school and she wanted to get him off to the bus Nelson told her he would tell the foreman When Anderson arrived at work her timecard was not in its slot and she was told to see Plant Manager Paul Harrington in his office Harrington in a loud , angry tone of voice told Anderson that if she was late one more time she would be fired When she tried to explain about getting her son off to school , Harrington said he did not care about what she had to say and repeated that she would be fired if she were late again Anderson had a history of being late for work two or three times a week for at least 2 years If she was less than 7 minutes late no action was taken, but if more than 7 minutes her pay was docked 15 minutes and so on for each quarter hour after that Anderson usually worked on the scrambler and when she was late one of the foreman Paul Harring ton, or, on occasion Kobialka would work the scram bler until she arrived Prior to the summer of 1983 none of the supervisors had ever spoken to her about her tar diness except in a joking manner Anderson testified that one day in July 1983 she came in late and Kobialka, who was working the scrambler in her absence told her she would have to start getting out of bed in the morn ing like everyone else Also, some time in August Paul Harrington spoke to her during lunch and said that she had better try to get into work on time In neither case was Anderson given a formal warning nor was any disci plenary action taken The General Counsel alleges that Anderson was given a warning and threatened with dis charge for her tardiness on 7 September because at that point the Respondent had become aware that the em ployees were discussing the possibility of seeking union representation and that this disciplinary action was taken in retaliation for the employees union discussions in vio lation of Section 8(a)(1) and (3) of the Act Given the evidence of union animus on the part of the Respondent, the fact that the formal warning to Ander son occurred about the time the employees began their union activity and the fact that for the most part her ha bitual tardiness had been condoned I find that the Gen eral Counsel has made out a prima facie showing under Wright Line 22 which is sufficient to support the infer ence that protected conduct was a motivating factor in the Employers decision to give Anderson a warning for her tardiness Although the employees had not yet decided to con tact the Union about representation as of 7 September since the latter part of August there had been discussions in the breakroom and on the production line about such a possibility Supervisor Duarte Medina was aware of these discussions and had , in fact, as is discussed below made a threatening comment to Anderson a few days before However I am not convinced that the stirrings of union activity influenced the Respondents decision to give Anderson a warning Kobialka testified that on 7 September he became aware of Anderson s absence when production began and there was need for a scram bler He asked Paul Harrington where Anderson was and was told she had called in to say she would be late Ko bialka told Harrington to tell Anderson that the next time she was late would be her last Kobialka testified that he had personally spoken to Anderson about her tar diness on two occasions during the summer of 1983 and that Paul Harrington had also done so Although I do not credit Kobialka s denial that he was aware of the union activity going on in the plant at that point there is no reason to believe that he was specifically aware of Anderson s involvement that she was a leader of such activity or that she would be singled out for disciplinary action because of it Although there was testimony that Anderson s frequent tardiness was regarded as something of a joke it does not appear that Kobialka considered it to be such Both he and Harrington had previously spoken to Anderson about the problem in an informal nonthreatening manner and had explained that her tardi ness was hampering production There was general agreement that Anderson was a very good scrambler a position near the head of the line which had a bearing on how efficiently the line operated Anderson s tardiness on 7 September was not a spontaneous occurrence but one which she obviously could have anticipated since it involved her sons first day of school Given her tardi ness problems and the comments she had had from both Kobialka and Harrington it appears reasonable to assume that Anderson did not seek prior approval of her absence on 7 September because she feared it would not be granted This warning to Anderson appears to be the 21 RAHCO Inc supra at 248 Han Dee Pak Inc supra at 728-729 22 251 NLRB 1083 1089 (1980) MASSACHUSETTS COASTAL SEAFOODS logical next step in the Respondents attempts to get her to work on time as she had not only ignored informal suggestions that her tardiness was unacceptable but had deliberately come in an hour late without permission Nothing Harrington said to Anderson when he gave her the warning indicated that it had anything to do with union activity at the plant or her involvement in it While the timing of the warning may seem suspect '23 It was Anderson s voluntary action not the Respondent s that resulted in the warning being given on 7 September There is no support for the argument that Anderson was the victim of disparate treatment as there is no evidence that any other employee had the kind of tardiness record Anderson had I find that the evidence establishes that the Respondent would have taken the same action in for mally warning Anderson that her tardiness would no longer be tolerated even in the absence of protected con duct on the part of the employees and I shall recommend that this allegation be dismissed b Threat by Duarte Medina As noted above, Anderson and other employees on the production lines had been openly discussing their dissat isfaction with certain matters such as what some per ceived as unfair treatment of Foreman Butch Burbridge, and the reduction in insurance benefits, and they were exploring the idea of seeking union representation during the latter part of August and early September Duarte Medina admitted that he was aware that these discus sions were going on among the employees Karen An derson testified credibly and without contradiction that some time in late August after she had returned from vacation on a morning when she had been late for work, Medina came to her while she was working on the scrambler and told her that if it was a union shop she would not get away with coming in late the way she did The General Counsel contends that this was an unlawful threat while the Respondent argues that it was friendly, bantering comment and, in any event was a lawful ex pression of opinion regarding consequences of unioniza tion Unlike the situation in Tri Cast Inc 24 relied on by the Respondent Medina s remark was not phrased in terms of explaining the change in the relationship of em ployer and employees when a bargaining representative is selected nor was there any reference to the possible effects of a collective bargaining agreement on the Re spondent s tardiness policy 25 It was a flat statement that if a union were selected the Employer would terminate an existing beneficial situation that is it would no longer permit her to get away with coming in late This was an unlawful threat of retaliation in violation of Section 8(a)(1) 26 Although Medina spoke to Anderson in a friendly manner, it does not change the fact that it was Medina who raised the subject of union representation and stated that it would directly and adversely affect Anderson s employment situation 23 See Limestone Apparel Corp 255 NLRB 722 736 (1981) 24 274 NLRB 377 (1985) 25 See Nice Pak Products 248 NLRB 1278 (1980) 26 See Greensboro News Co 257 NLRB 701 (1981) 2 Duarte Medina s conversation with Judy Rocha and Hazel Ellis 509 Employee Judy Rocha testified that on 7 September she was working on line 1 putting stickers on packages as they came off the line Foreman Duarte Medina was working nearby and Rocha told Medina that the girls had been talking about the fact that they needed a union in the plant Medina left and returned about 5 minutes later while Rocha and others were still talking about a union At that point, Medina said to Rocha that Kobialka did not want a union in there and that he would shut the place down if a union came in Rocha repeated Medina s comments to the employees on line 1 immediately after wards Employee Hazel Ellis testified that one day during the same week she was working on the shrink about 3 to 5 feet from where Judy Rocha was working putting stickers on packages During the course of a con versation in which she told Medina the employees felt they needed a union, Medina said that if a union came into the plant it would close down Medina denied ever telling either Rocha or Ellis that the plant would close if a union came in He denied ever discussing the subject of a union with Ellis He recalled once talking to Rocha when she raised the subject of how unfairly she felt the Company had treated Butch Burbridge and said she was thinking of calling in a union According to Medina, he told her if he was in her place, maybe he would do the same thing Based on their demeanor and testimony I find the tes timony of Rocha and Ellis more credible than that of Medina27 and I find that Medina did threaten that the Respondent would close the plant if a union came in Ellis in particular impressed me as an honest witness with a good recollection of the incidents she testified about I find it likely that both Rocha and Ellis were de scribing the same incident, given Ellis testimony that when the incident occurred Rocha was nearby putting labels on packages and Rocha s testimony that other em ployees were around It appears that there was a general conversation going on in which the need for union repre sentation was being discussed and it is not surprising that each employee considered Medina s remarks to be direct ed to her I find that Medina s remarks concerning plant closure which did not purport to be based on any objec tive facts constituted an unlawful threat of retaliation in the event the employees chose union representation and violated Section 8(a)(1) of the Act 27 Although he denied having any interest in whether the employees sought union representation Medina admitted interrogating Ed Tavares about whether he had signed a union authorization card and asking Donald Stewart for the latest rumors about the Union He also admitted informing Kobialka about the union activity in the plant and asking Ko bialka to speak to the employees about it His threat that the plant would close was similar to those made by Paul Harrington and Michael Ko bialka at about the same time I did not find Medina to be a credible wit ness In several instances he admitted much of the substance of remarks attributed to him in conversations with other witnesses but then flatly denied making the statements alleged to be unlawful 510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Medina s conversation with Donald Stewart On the afternoon of Friday 9 September, Medina spoke to employee Donald Stewart near the freezer area of the plant Medina asked Stewart what the latest news was Stewart asked what Medina meant and he said 'aren t you one of the new union members9" Stewart said that was the first he had heard about it, but said it would be a good thing that they needed a union Medina responded that Kobialka would close the plant and they would all be out of a job, then walked away Medina admitted asking Stewart what the latest rumors were and when Stewart said he did not understand, Medina said about the union Stewart said he did not know and nothing further was said He denied telling Stewart that the plant would close if a union came in As indicated above, I did not consider Medina to be a credi ble witness and I did not believe his testimony about this incident While Stewart was sometimes argumentative and evasive on cross examination, I believe his testimony about this incident in which Medina made a threat of plant closure almost identical to that he made to Rocha and Ellis at about the same time The Respondent con tends that Medina s questioning of Stewart was not coer cave and did not violate the Act, citing the Board s deci sion in Rossmore House 28 However unlike the circum stances in that case Stewart was not known to be an active and open union supporter Medina sought him out and raised the subject of a union Even if Medina s in quiry about the latest rumors might have been innocu ous his question as to whether Stewart was a union member which Stewart denied, was not This question was immediately followed by a threat of plant closure in the event a union came in I find Medina s interrogation of Stewart to be coercive and a violation of Section 8(a)(1) under the criteria set forth in Rossmmore House, supra I also find Medina's threat of plant closure to be a violation of Section 8(a)(1) 4 Actions of Paul Harrington a Conversation with Karen Anderson on 9 September On the evening of 9 September several employees at tended a 3 to 4 hour boat cruise around Gloucester harbor During the course of the cruise Karen Anderson and other employees had discussed the Union among themselves As the boat was docking at the end of the cruise Plant Manager Paul Harrington who was on board went up to Anderson and while pointing his finger at her and speaking in a loud, angry voice told her that the employees were crazy if they went union, that the Company could not afford a union, that 30 employ ees would lose their jobs, that in 6 months the plant would close and that, then, Harrington would also lose his job Anderson responded that she did not see how he could say this without knowing what the employees wanted and that they did not want more money, but wanted job security There were at least three other em ployees who overheard the exchange between Harring 28 269 NLRB 1176 (1984) ton and Anderson 29 Harrington had apparently con sumed several alcoholic beverages during the cruise The Respondent contends that Harrington s remarks to Anderson were not unlawful because they were made in the context of a friendly social event, he linked the shut down of the plant to the Company s inability to afford the Union and because Harrington was intoxicated at the time Whatever the nature of the cruise, the evidence is clear that Harrington did not simply mention the Union in the course of general conversation He sought out An derson, who had not previously spoken to him about the Union, and in a loud, angry manner threatened that she and other employees would lose their jobs and that the Company would close down in 6 months if the Union came in While he may have been intoxicated, there is no indication that Harrington was incoherent or not respon sible for what he said Predictions of layoffs and plant closure as the result of union activity are unlawful unless they are statements of provable factual consequences outside of the employers control As in the case of Mi chael Kobialka's speech to the employees on 12 Septem ber, discussed below, Harrington s comments did not purport to be based on objective facts and figures, noth withstanding his statement that the Company could not afford the Union He offered no factual basis for his con clusions that 30 employees would lose their jobs or that the plant would close 6 months after the Union came in His statements, which were remarkably similar to those Kobialka would make a few days later, were unlawful threats of economic reprisals for engaging in union activ ity and violated Section 8(a)(1) b Conversation with Josephine Jacobs on 14 September On 14 September, during the lunch period employee Josephine Jacobs was sitting at a picnic table outside the plant with a group of employees including Supervisors Joe Tavares and Paul Harrington Speaking to Jacobs, Tavares said that the employees did not need a union and others at the table agreed with him Jacobs respond ed Why not they 11 probably give us the shaft At that point Paul Harrington said that if the Union came in the plant would be closed down Paul Harrington s brother, Kevin, an employee who was also present, told Harrington to hush and they stopped talking Jacobs credible testimony about this incident was not contra dicted and the Respondents brief indicates that it does not contest the allegation in the complaint concerning this incident I find that Paul Harrington s threat of plant closure on 14 September, which was similar to the one he made to Karen Anderson on 9 September and to the threats of closure made by Kobialka on 13 September, violated Section 8(a)(1) 29 The findings concerning this conversation between Paul Harrington and Karen Anderson are based on the mutually corroborative testimony of Anderson Hazel Ellis Pauline Cabral and Sharon Auclair Although he was still employed as plant manager at the time of the hearing Paul Harrington was not called as a witness I infer that had he been called Harrington s testimony would have been adverse to the Respondent See Martin Luther King Sr Nursing Center 231 NLRB 15 fn 1 (1977) MASSACHUSETTS COASTAL SEAFOODS c Alleged threat to Joyce Amero Employee Joyce Amero testified that one day during the week of 12 September near the end of the lunch period she sat down at a picnic table where Paul and Nelson Harrington and Joe Tavares were seated She overheard the last bit of a conversation that was going on' She heard Paul Harrington say if a union comes in, no way will this place keep running Harrington s re marks were not directed to Amero, who he may not even have known was present, but to his brother Nelson, and Tavares, who were both supervisors Amero was not aware of what had been said before she sat down I find this evidence is insufficient to establish a violation of the Act, since without knowing the conversation that pre ceded that part Amero overheard, it is not possible to put Harrington s remarks in their true context before de termining whether or not they were unlawful, which fairness requires I shall recommend that this allegation be dismissed 30 5 Michael Kobialka s speech to employees on 12 September After learning that employees planned to meet with representatives of the Union, on 12 September, Michael Kobialka called a meeting of all employees in the pro duction area of the plant prior to quitting time that after noon According to the transcript of a tape recording made of the meeting 31 Kobialka began by telling the employees that he was not trying to threaten them, but he wanted the employees to be aware of certain facts before they made a decision He stated that although the Company had been bankrupt 12 months earlier, it had been brought back to the point that it was a viable entity, but that it `cannot and will not support 52 people," the number of nonsupervisory employees, `on union wages He said that the Company only had so many dollars that are allocable to payroll and that the amount was not going to change This meant the Company would have to cut back to one production line, employing exactly 24 people as otherwise the Company would be bankrupt within 12 months of going union He went on to say that the Company s competitors were not union shops and that Gorton s and 0 Donnell Usen, which paid union wages' were not competitors of the Company in the food service buss ness they could not afford it and would lose money if they tried He said that employees should vote as they saw fit on a Union, but he could tell them for certain" that if the Company became a union plant there would be 24 people still employed who would be chosen strict ly on the basis of seniority The person 25th on the se niority list would probably' not be working and he knew for sure that number 30 on the list would not be working He went on to say that it was a question of whether the Company paid 24 or 52 employees the same amount of money and that he could not do anything about it It was not that he did not want to pay them or 90 See Burlington Industries 257 NLRB 712 726 (1981) 31 The parties have stipulated that the transcript is an accurate account of what transpired at the meeting 511 that he did not think they were worth it, it was a simple economic fact that he did not have the money At that point an employee pointed out that if the em ployees voted in a union there was no guarantee that the Company would have to pay union wages To this Kobialka responded that he presumed that money was the number one factor' because he did not `jump all over people', therefore, the underlying reason for seek ing a union was the benefits and the money He went on to say he had read the union contract very, very, very carefully and the only thing it would give the em ployees that they did not already have was pension and benefits and money' Consequently, if a union were voted in and did not require the Company to pay these wages, Kobialka asked, what did you gain?" When an employee answered job security, Kobialka responded You mean to tell me that you're going to be a union shop and I in telling you that 36 of you are going to lose your jobs Where the hell is the security in that? An employee commented that if wages did not go up, there would be no layoff, Kobialka responded that if a union got in, he would have no control over wages, the union could demand union wages and he would pay them as far as the money will go and the rest of the employ ees would be laid off He repeated that 36 employees would be laid off and that the only thing the union can give you that would be a benefit would be more money and a pension fund At that point, Kobialka reiterated that it was all right with him if the employees wanted a union, but he was going to run one production line in perpetuity because he could not afford to turn the other line on After some questions and discussion con cerning seniority and the status of Line Foreman Butch Burbridge, an employee asked about a raise Kobialka re sponded that a 60 cent raise would be given on 1 Janu ary, saying that it had been in the plans for a long time, ' but that it still left them short of the union After responding to a question about the Company get ting additional business, Kobialka again repeated that there was only enough money to keep 24 employees, based strictly on seniority He then said that if the em ployees had grievances he had no problem with five or six of you forming a committee to come and meet with me once a week The discussion turned to Kobialka s plans to build a new $2 5 million facility at the Head of the Harbor in Gloucester which would involve about 40 additional jobs Kobialka stated in connection with this that he had a buyer for the present plant and wheth er he kept the plant built a new one at the Head of the Harbor, or would move this plant out of town is a func tion of whether or not someone is hanging a big gun over my head " He went on to say "I don't have to be in Gloucester" and all I need is a freezer," although I d like to stay in Gloucester " There was some further dis cussion of the proposed new plant during which Ko bialka stated that he anticipated that current employees would be employed at the new plant at their same rates of pay and that he anticipated approval of the project by the Gloucester City Council because we've got a good financial statement " 512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel contends that during this meet mg Kobialka violated Section 8(a)(1) of the Act in sever al instances by threatening that the plant would close or move or that there would be layoffs if a union came in and that the employees selection of a union to represent them would be futile by promising employees a wage in crease and by suggesting that the employees form a com mittee to discuss their grievances with him The Re spondent contends that Kobialka s remarks did not con stitute an unlawful threat of reprisal for seeking union representation but simply pointed out the adverse conse quences unionization would have based on objective facts, that the reference to a wage increase was simply the lawful announcement of a decision previously arrived at and unrelated to the issue of unionization and that the suggestion that the employees form a committee to meet with Kobialka was not unlawful because there was no actual or implied promise to remedy grievances Analysis and Conclusions In NLRB v Gissel Packing Co 32 the Supreme Court established the standard to be used to determine whether an employers predictions concerning the effect of union ization are lawful or not The Court stated 33 Thus, an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union so long as the communications do not con tarn a threat of reprisal or force or promise of ben efit' He may even make a prediction as to the pre case effect he believes unionization will have on his company In such a case however, the prediction must be carefully phrased on the basis of objective fact to convey an employers belief as to demonstra bly probable consequences beyond his control or to convey a management decision already arrived to close the plant in case of unionization If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him the statement is no longer a reasonable pre diction based on available facts but a threat of retal Cation based on misrepresentation and coercion and as such without the protection of the First Amend ment We therefore agree with the court below that [c]onveyance of the employers belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless which is most impropable the eventuality of closing is capable of proof ' As stated elsewhere, an em ployer is free only to tell what he reasonably be lieves will be the likely consequences of unioniza tion that are outside his control and not threats of economic reprisal to be taken solely on his own vio lation When Kobialka told the employees that the Company would be bankrupt within 12 months of going union if it 32 395 US 575 (1969) 33 Id at 618-619 had to pay union wages to the people currently em ployed he gave the employees no explanation of what he meant by union wages or about how he made the calculations which led him to this conclusion His failure to present any objective facts or figures as a basis for his conclusion that bankruptcy was the inevitable conse quence of unionization made it an unlawful threat of business closure rather than a prediction capable of proof 34 Equally coercive as well as equally lacking in sup porting facts and figures, was Kobialka s statement that the only alternative to bankruptcy was for the Company to operate a single production line employing exactly 24 people According to Kobialka, the Company had only so many dollars allocable to payroll and at union wage rates these dollars would cover only 24 people He re peatedly stated that only 24 employees would be work ing if a union came into the plant This meant that a ma jority of the employees would be laid off At the hear ing Kobialka testified that Company Comptroller James Corbett had analyzed the provisions of a union contract the Company had in its files and concluded that applying the wages and benefits called for in that contract to the Respondents employees would result in labor costs of $180 000 to $200,000 annually, which was 250 percent of the Company s anticipated profit for 1983 and it was on this basis that he reached his conclusions However he gave no such figures in his speech to the employees The union wage rate he claimed to have used in making his calculations was taken from a contract between the Union and Gorton s, a large corporation in nearby Gloucester which in his speech Kobialka acknowledged was not a competitor of the Respondent or even engaged in the same type of business There was no basis for Ko bialka s use of the wage rates in the Gorton s contract since it was not a comparable business or a competitor and he had no reason to presume that the Union would insist on similar rates Consequently his predictions were not based on objective facts 35 Furthermore his insist ence that the amount of money allocable to payroll would not change, did not purport to be based on factors beyond his control, but on his determination not to change them Thus the dire consequences he was pre dicting would result from his own volitional act Ac cording to Kobialka the Company was capable of gener ating at least as many payroll dollars while operating only one production line as it had been generating with two lines However his unwillingness to increase the Company s payroll meant that the second line would be closed down and the employees laid off This was clearly a threat of economic reprisal and a violation of the Act 36 Although during his speech employees suggested that the economic consequences he was predicting would not follow if wages were not increased Kobialka ig nored the implications of such suggestions and dismissed them by saying that increased wages and benefits were the only things that a union could give them When an 36 Fred Lewis Carpets 260 NLRB 843 849 (1982) El Rancho Market 235 NLRB 468 471 (1978) 31 See Starkville Inc 219 NLRB 595 (1975) 36 NLRB v Gissel Packing Co supra MASSACHUSETTS COASTAL SEAFOODS 513 employee stated that a union could provide job security Kobialka responded that if a union came in 36 people were going to lose their jobs and where the hell is the security in that? I find that rather than being a state ment of the provable economic consequences of union ization, Kobialka s comments were simply unlawful threats to close the plant or lay off a majority of the em ployees if they chose the Union to represent them 37 and violated Section 8(a)(1) 38 Kobialka s speech also violated the Act by telling the employees their organizing efforts would be futile As noted above he emphasized that if a union came in there would be no change in the amount of money the Re spondent would spend on payroll, only in the number of employees who would remain on the job According to Kobialka, regardless of collective bargaining by their chosen representative, there would be only one result the Respondent would operate a single production line employing exactly 24 people and would run it for perpetuity Further denigrating the collective bargain ing process, he stated that the entire matter was simply a question of whether we pay 24 of you more or 52 of you less-that s what it boils down to I can t do any thing about it The clear implication was that neither the employees nor a union could do anything about it either On the subject of job security, Kobialka told the employees flatly the union is not going to give you any more security than you have today By saying that they would end up with no better terms and conditions of em ployment than if they had no union representation Ko bialka told the employees it was futile to select the Union as their bargaining representative His statements violated Section 8(a)(1) as During his speech, Kobialka responded to one employ ee s question about a pay raise by stating that the Com pany was going to give a 60 cent an hour raise on 1 Jan uary He went on to say that this raise was something that s been in the plans for a long time The announce ment of new benefits during a union organizing cam paign is viewed by the Board as an unlawful attempt to influence the employees in their choice of a bargaining representative unless the employer establishes that the timing of its announcement is governed by factors other than the Unions appearance on the scene 4O The Re 37 I have considerable doubt that Kobialka s predictions of layoffs and plant closure had any objective basis Although he testified they were based on Corbett s analysis of a contract between the Union and Got ton s this contract was never produced Although Kobialka claimed to have made his analysis over the weekend on the afternoon of 9 Septem ber 3 days before Kobialka s speech Supervisors Robert Tomer and Duarte Medina made unlawful threats of plant closure and that evening Plant Manager Paul Harrington told an employee that if the Union came in 30 employees would immediately lose their jobs and in 6 months the plant would close This suggests that the Respondents management had already decided upon a strategy of combatting the emerging union activi ty with threats of economic reprisals before any financial analyses were even begun 38 Fred Lewis Carpets supra Thurston Motor Lines 257 NLRB 1325 (1981) se E. I du Pont & Co 263 NLRB 159 165 (1982) Evans Bros Barber & Beauty Salons 256 NLRB 121 128 (1981) 40 American Gen Care 270 NLRB 95 96 ( 1984) Essex International 216 NLRB 575 576 (1975) spondent contends that the wage increase Kobialka an nounced had been planned long before the advent of union activity The evidence does not support such a conclusion It is true that at sometime prior to Kobialka s coming to the Company, the employees wages had been reduced by $1 per hour because of financial problems and that one of Kobialka s first actions upon taking over ownership in conjunction with Michael Mineo, was to raise the hourly wage rate by 50 cents in April 1983 Ko bialka testified that before he took over ownership he had discussions with Mineo and Company Comptroller Corbett concerning devising a business strategy that would enable the Company to restore all or more of the $1 wage reduction in acceptable increments The first step was the April 1983 increase and they hoped to grant another similar increase around the beginning of 1984, if they `were financially able to do so It is clear that it was this so called strategy to restore the wage reduc tion that Kobialka was referring to as having been in the plans for a long time It is also clear that the details of this strategy had not been finalized and that there had not actually been a final decision to give a 60 cent in crease at the first of the year, which was made prior to 12 September At that point there was, at most a propos al which was contigent on both the Company s financial performance throughout 19834 i and the approval of its bank Consequently, Kobialka s unequivocal statement42 that a wage increase of 60 cents an hour would be grant ed cannot be considered a lawful announcement of a de cision to increase wages arrived at prior to the advent of union activity,43 but was an off the cuff promise made with the intention of influencing the employees in the choice of a bargaining representative 44 This promise was a violation of Section 8(a)(1) of the Act 45 Near the end of his speech Kobialka referred to the fact that the Company was considering opening a new, large plant at the Head of the Harbor in Gloucester and stated that if this plant were to open it would mean about 40 additional jobs He said that current employees would continue to be employed at the new plant at the same wages He also stated that whether the Company built the new plant stayed at the old one or moved the plant out of town is a function of whether or not some one is hanging a big gun over my head ' He added that he did not have to operate the business in Gloucester and that all he needed was a freezer The discussion of the " As it turned out no wage increase was granted in January 1984 be cause the Company did not show a profit for 1983 42 In his testimony Kobialka denied that he had promised the em ployees the raise saying that they were contemplating giving a wage increase in January The text of his speech to the employees on 12 Sep tember as stipulated by the parties is a flat statement that a 60-cent raise would be given on 1 January Kobialka s testimony supports the conclu ston that there had been no final decision to grant the wage increase at the time he announced it 4' See Cardivan Co 271 NLRB 563 (1984) 44 The fact that Kobialka stated that the promised increase would still leave employees short of the union wage did not lessen the coercive impact of the promise since he had already told them that payment of union wages would mean business closure or layoffs while this raise presumably would not 45 NLRB v Exchange Parts Co 375 U S 405 (1964) Century Moving & Storage 251 NLRB 671 (1980) 514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD proposed new plant at the Head of the Harbor was not in and of itself unlawful as it was merely a factual state ment of a proposal for expansion of the business which had been under consideration before the beginning of union activity and which was generally known to the employees However, Kobialka s statement that what the Company did in the future depended on whether or not there was a big gun hanging over his head, an obvious reference to the possibility of union representation of the employees, implied that he would forego expansion if a union were in the picture His statement that he did not have to be in Gloucester and could move the business out of town because all he needed to operate was a freezer was a veiled threat to cease operations in the Gloucester area, whether it be at the present plant or at the Head of the Harbor location, if the employees opted for union representation A threat of reprisals against em ployees if they engage in union activity is no less unlaw ful because it is implied rather than direct 46 Here, Ko bialka s threats to forego plant expansion and to move the business violated Section 8(a)(1) of the Act 47 The General Counsel contends that Kobialka s sugges tion that the employees should form a representative committee to meet with management to talk about prob lems in the plant was an unlawful solicitation of griev ances, while the Respondent argues that there was no violation because there was no actual or implied promise to remedy their grievances The Board has held that it is not necessary for an employer who has solicitated gnev ances to have actually committed itself to specific cor rective action in order for there to be unlawful interfer ence with the employees rights, reasoning that em ployees would tend to anticipate improved conditions of employment that would make union representation un necessary "48 However, because it is not the solicitation of grievances but the promise to correct them that is co ercive, the employer can rebut the inference that it has made such a promise 49 That has not been done here Unlike the situation in Uarco Corp supra where the em ployer affirmatively emphasized that it could make no promises, Kobialka made no such disclaimer On the con trary he referred to previous instances in which employ ees had talked to him about problems, pointing out that in one case he took care of it and in another he had given the employees a break He said nothing to sug gest that future grievances would not similarly have fa vorable results The Respondent, having failed to rebut the implied promise that grievances would be remedied, I find that Kobialka s statement violated Section 8(a)(1) so 6 Kobialka s postspeech meeting with three employees Shortly after Kobialka s meeting with the employees ended, three employees, Karen Anderson, Mildred Aubrey, and Evelyn "Pearl" Cabral asked to meet with 46 Elias Mallouk Realty Corp 265 NLRB 1225 (1982) 47 Fisher Haynes Corp of Georgia 262 NLRB 1274 (1982) Guerdon In dustries 255 NLRB 610 (1981) 48 Uarco Corp 216 NLRB 1 2 (1974) 48 Ibid 10 Hi Lo Foods 247 NLRB 1079 1088 (1980) him in his office The three were concerned about their relative standing on the Company s seniority list The complaint alleges that during the course of this meeting Kobialka told the three employees that "if they voted for the Union they d be laid off and he would shut the plant down in 180 days and move to Burlington The testimo ny of the three employees was in general agreement about the purpose of this meeting and that Kobialka said that their standing on the list was unimportant because if the Union came in they would all be among those laid off anyway As to the details of what was actually said at the meeting, all three versions differed Based on their demeanor while testifying and the content of their testa mony, I consider Karen Anderson's testimony to be the most credible since she appeared to have a better memory of the incident than Aubrey and Cabral Ander son testified that during the discussion about where they stood on the seniority list Kobialka said that he would check into it, but that it did not really matter because if they voted in the Union all three of them would be laid off because of the necessity of cutting back to one pro duction line Kobialka went on to say that in 180 days he could be moving to Burlington He pointed to plans of the proposed facility at the Head of the Harbor which were hanging on the wall and said he would rather be moving to the Head of the Harbor but if they voted in a union, in 180 days he would move to Burlington Kobialka testified that the three employees asked about the seniority list and that one or two of them felt they had not received credit for time worked on a night shift He showed them what the company records he had indi cated their positions to be and said he would check fur ther on the following day and give them an official de termination as to their status on the list He told them that in the event a union were to come into the plant and the union contract were negotiated as per the Gorton contract and we did cut back to one produc tion line because of what he considered the cut off point to be, all three of them would be laid off Evelyn Cabral asked him about the plans on the wall and Kobialka re sponded that it was a drawing of the proposed Head of the Harbor building that he hoped would be their new plant but that they were a long way from completing the first step which was to get the approval of the Rede velopment Authority and that would take 180 days Kobialka denied that he ever said anything about moving the plant to Burlington, which be described as a town about 35 or 40 miles inland in a high technology area which to his knowledge, had no fish processing plants He testified that he did not recall even mentioning Bur lington to the employees, but that he was about to go to Burlington that afternoon for an appointment and might have told them so He specifically denied saying that he would rather move to the Head of the Harbor, but that if the Union was voted in he would move to Burlington in 180 days Analysis and Conclusion I find that Kobialka told the three employees that if the Union did come into the plant all three would be laid off and that his statement was a violation of Section MASSACHUSETTS COASTAL SEAFOODS 8(a)(1) Anderson s testimony was credible and corrobo rated on this aspect of the meeting by that of Cabral and Aubrey Kobialka did not really contradict Anderson, but put his remarks in the context of a layoff necessitated by a union contract similar to the Gorton's contract he claimed that he and Corbett had analyzed I do not credit Kobialka's testimony on this point as he did not refer to the Gorton's contract by name in his speech a few minutes earlier and I find it unlikely that he would do so here He did not give anything more in the way of objective facts and figures than he gave earlier His remark about cutting back to a single production line was no more a lawful prediction of consequences beyond his control based on provable facts here than it was during the previous meeting with all the employees He was simply repeating the same unlawful threat of eco nomic reprisal in the event a union came into the plant and bringing it home to these employees in an even more direct manner by telling them point blank that the three of them would be among those laid off I also find, based on the credible testimony of Anderson, that Kobialka made an unlawful threat to move the plant to Burlington in 180 days in the event the employees chose a union to represent them This expanded on his earlier statement that whether he moved to the Head of the Harbor de pended on whether there was a "big gun' pointed at his head and made it clear that a new plant would be a sig nificant distance from where the current employees re sided While Burlington may be located some distances inland and an unlikely spot for a fish processing plant, Kobialka had just emphasized in his speech that all he needed was a freezer" to operate the business Kobial ka s explanation of his references to "180 days and to Burlington' while speaking to the three employees was strained and struck me, as did his testimony in several other instances as an attempt to revise unlawful state ments in order to render them innocuous I find that Ko bialka made a threat to move the plant in violation of Section 8(a)(1) 7 Change in policy concerning informal breaks As noted above all employees were give two 15 minute breaks during the day known as mug ups Be sides the mug ups, it was a long established practice for employees working on the production lines to leave the line one at a time for 5 to 7 minutes go to the restroom, relax and/or smoke a cigarette It was also the practice that the cutters would take similar informal breaks about every hour or whenever there was a sufficient amount of fish cut If necessary on occasion, the line foreman would fill in on the line or take the place of a cutter so that the employees could take these informal breaks On the morning of 13 September, during the first hour the Respondent, through its Supervisors Paul Harnngton and Duarte Medina5 i informed the employees that they 51 Medina denied telling employees that they could no longer take these informal breaks on 13 September He said he did not know about any change regarding such breaks when he went home sick at about 9 am and only learned about it a day or two later when he spoke with Nelson Harnngton by telephone I credit the testimony of the several em ployees who heard Medina tell them they could no longer take breaks 515 could no longer take these informal breaks They were told that if they had to use the restroom they should do so and come right back Cutters were told that if they got ahead of the line they should remain at their work station and clean up rather than taking a break No reason was given to the employees for the change in practice concerning informal breaks which continued at least up until the employees went out on strike on 19 September The Respondent does not deny that there was a change in the practice concerning these informal breaks beginning on 13 September, but contends that it clamped down because employees were abusing the break privi leges According to the testimony of Kobialka, when he arrived at the plant shortly after 7 a in on 13 September, he was told by Paul Harrington and Medina that the em ployees were in turmoil because of what had occurred at the union hall the previous night At about 7 20 a in Ko bialka noticed a group of cutters and packers taking a break in the lunchroom Kobialka told Harnngton to get everyone back on the job and Harnngton told him that he was having trouble keeping people working on the line Kobialka told Harrington to report back to him in an hour and a half When Harrington did report back about 9 30 am, he said that there was a problem with the cutters cutting for a break, meaning, they were cut ting at an excessive speed or cutting two pieces of fish at a time in order to get ahead of the production line and take time off Kobialka told Harrington to stop this by telling the employees they should go to the washroom if they had to but come right back to their places on the line Kobialka said this action in restricting the informal breaks was similar to that taken on other occasions when employees were abusing break privileges I do not credit Kobialka s testimony about this mci dent Once again, although he was allegedly directly in volved in the matter he was the person in the best pose tion to corroborate Kobialka s testimony and he was still employed as Respondent s plant manager, Paul Harnng ton was not called as a witness I infer that his testimony would have been adverse to the Respondents position Medina, Kobialka s other alleged source of information about the employee turmoil that morning, testified that he was not aware that any employees were abusing break privileges that morning and he was never told the reason why breaks were restricted Joe Tavares the other line foreman likewise, was not aware that there was anything unusual about the break situation that morning and he was not told why the Respondent was clamping down on the breaks Similarly the employees were never given any explanation of why breaks were being restricted Less than 24 hours earlier in his speech Kobialka had praised the employees for their excellent production and hard work I do not doubt Kobialka s testimony that cutting for break was an unacceptable practice because cutting at an excessively fast pace cre ated a greater risk of injury and because cutting more than one piece of fish at a time caused distortion which prior to the time he left the plant that morning and do not credit Me dma s denial as I found him to be an unreliable witness in many instances 516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD resulted in more rejections and a lower rate of product recovery However I do doubt that this was the reason for his action He did not tell Harrington to stop the cut ters from cutting for breaks, but instead, told him to stop all informal breaks for all employees There was evidence that cutters had always been encouraged to take a break at least every hour because there was danger that prolonged, uninterrupted cutting with a saw increased the risk of injury Kobialka s order to stop all breaks, except in the case of someone needing to use the restroom, could only have served to increase the risk of injury When confronted on cross examination as to why all employees' breaks were restricted, if cutting for a break was the problem to be remedied, Kobialka then, said that Harrington had also told him that more than one packer was going off the production line at a time I did not believe this apparent afterthought The credible evidence also indicates that the order to stop informal breaks was given about 2 hours before Kobialka claimed to have found it necessary to issue it I find that the Respondent has failed to establish any reasonable basis for changing its work rule with respect to taking informal breaks, which previously permitted employees on a rotating basis to take from 5 to 7 minutes off to use the restroom smoke a cigarette and/or simply relax, to one which required employees to remain at their workstation except when they needed to use the restroom The reason given, that employees were abus ing their breaks, was clearly a pretext It is well estab lashed that where the stated motive for an employer s action is false another motive may be inferred from the facts in the record as a whole 52 I infer that the Re spondent s motivation in restricting the employees infor mal breaks was to retaliate against them because of their union activity The timing of an employers action is per suasive evidence of its motivation 53 Here, the employ er s action came immediately after it learned that a sub stantial number of employees had sought the Union s representation and that the Union was coming to the plant that morning to seek recognition Although the Re spondent seems to argue there was no real change in break policy because employees were still allowed to go to the restroom whenever necessary it is clear that a de sirable benefit the opportunity to take an informal break of up to 5 minutes of relaxation had been eliminated An employer violates Section 8(a)(3) and (1) of the Act by a diminution of benefits or worsening of working condi tions in retaliation for engaging in protection conduct 54 That is what the Respondent did by putting into effect on 13 September and enforcing thereafter a rule which eliminated informal breaks that employees previously en joyed 55 8 Threat to Eduardo Tavares Eduardo Tavares the brother of Line Foreman Joe Tavares was employed as a cutter He testified that he 52 See Shattuck Denn Mining Corp v NLRB 362 F 2d 466 470 (9th Cir 1966) 53 Limestone Apparel Corp supra at 736 54 South Nassau Communities Hospital 262 NLRB 1166 1174 (1982) 55 See Heads & Threads Co 261 NLRB 800 808-809 (1982) was informed by Duarte Medina during the week of 12 September that there were to be no more breaks On Friday of that week, Eduardo went to use the men s room No one else was present and before leaving he lit a cigarette and puffed twice At that point, Joe Tavares entered the room, saw him and asked what he was doing Eduardo said that he had used the restroom and lit the cigarette and was on his way out Joe said, you know you re not supposed to have any breaks Eduardo said he knew that but he was exhausted Joe said, don t think because you re my brother, I in not able to fire you ' Eduardo threw away the cigarette and went back to his job Joe Tavares testified that he saw his brother Eduardo smoking a cigarette in the men s room on Tuesday, the day Kobialka had told him no more breaks, and told him that the rule against taking breaks applied to him as well as everybody else and he should not be taking a break He denied telling Eduardo that he could fire him I credit the testimony of Eduardo concerning this mcf dent based on their demeanor while testifying and the content of their testimony 56 I find it likely that in telling Eduardo he could not take a break, he would have re ferred to their relationship and made it clear that it did not protect Eduardo from the consequences of violating the ban on breaks While Joe may not have had author ity to fire him, I believe the thrust of his comment was not that he could personally fire Eduardo but that the fact of his being Joe's brother would not protect him from dismissal for violating the rule The evidence does not establish that Joe s comment could be considered a disciplinary warning to Eduardo, but was simply a threat of disciplinary action in the event he violated the Re spondent s new no break rule I find that this was a violation of Section 8(a)(1) I also find that the incident occurred on Tuesday, 13 September as Joe appeared to have a good recollection of the date, based on his con versation with Kobialka that day about abolishing the breaks, while Eduardo had no present recollection of the date I find Joe s testimony to be more probative than Eduardo's past recollection recorded that it happened on Friday 9 Medina s conversation with Eduardo Tavares on 13 September Eduardo Tavares testified that on 13 September, while he was working as a cutter, Duarte Medina came up to him and said did you vote or sign anything? Tavares asked why he wanted to know and Medina replied `I just want to know Tavares told him that he had signed like everybody else and their conversation ended Medina did not deny that when he heard that em ployees had signed union cards he asked Tavares if he had done so At the time Tavares and Medina and their wives were good friends, belonged to the same social club and socialized together away from the plant 56 Joe Tavares appeared intent on denying anything that might identify him as a supervisor Although acknowledging that Kobialka told him em ployees could no longer take informal breaks he claimed he did not tell this to the employees working on his line Yet he spoke to Eduardo not withstanding the fact that he did not work on Joe s line MASSACHUSETTS COASTAL SEAFOODS There is no evidence that Medina did anything more than ask Tavares if he had signed a union card He did not say or do anything that could be interpreted as a threat or a promise of a benefit or that might otherwise be considered coercive The conversation took place early on the morning following the employees first meeting at the union hall, which was being talked about throughout the plant Considering this conversation in the light of the Board s ruling in Rossmore House, supra I find that there was no violation of the Act Even though at that point Eduardo Tavares could not be con sidered an open and active union supporter the casual nature of the inquiry by a close friend without any threats or promises at a time when just about everyone in the plant was talking about the Union convinces me that Medina s question was not improperly motivated and would not reasonably tend to restrain coerce or interfere with rights guaranteed by the Act and, there fore, I shall recommend that this allegation be dis missed 67 10 Interrogation by Joe Tavares Eduardo Tavares testified that, during the week of 12 September, his brother Joe called him into Paul Harring ton s office and, in Harrington s presence asked in Por tugese if he was part of the group When Ed asked what he meant, Joe said are you in this mess? and asked if he had signed Ed replied that he had signed, said that Medina had asked him the same question, and asked why Joe wanted to know Joe answered that he just wanted to know and said, maybe Kobi wants to know Joe Tavares admitted asking his brother if he had signed a union card, but denied that he said that Ko bialka wanted to know I credit the testimony of Eduardo Tavares Unlike the interrogation of Ed Ta vares by Duarte Medina, which I found to be noncoer cive, I find that this interrogation was coercive and un lawful This incident occurred a day or two after Joe had threatened Ed when he caught him violating the Re spondent s new rule restricting employees from taking in formal breaks Ed Tavares could not be considered an open and active union supporter at that point and al though he was questioned by his brother when asked why he was inquiring, Joe Tavares gave no reason but implied that he was asking on behalf of Michael Ko bialka His reference to the employees union activity as this mess suggested hostility and contempt In addi tion the interrogation, which was not a part of a casual conversation but was specifically initiated by Joe Ta vares, took place in the plant in the presence of Plant Manager Paul Harrington While Harrington may not have understood what was being said in Portugese it was reasonable to assume that Joe Tavares would tell him what his inquiry revealed as well as telling Ko bialka Considering all of these circumstances under the Board's criteria in Rossmore House supra I find that Joe Tavares interogation of his brother was coercive and violated Section 8(a)(1) of the Act 57 See Atlas Metal Parts Co 232 NLRB 205 210 (1980) 517 11 Medina s conversation with Maria Tavares Maria Tavares testified that prior to the lunch period on 13 September while she was working on the scram bier she asked Duarte Medina in Portuguese if he could replace her so that she could take a break Medina re sponded in Portuguese, saying, You wanted a union Now you don t have no more breaks I cant replace you Medina denied making these statements to Tavares and testified that he went home sick about 9 a in on 13 September Although I found much of Medina s testimo ny unworthy of belief, I did believe his testimony that he went home sick on 13 September and was out the next 2 days as well Consequently I do not believe Medina was working at the time this incident allegedly took place Maria was not a convincing witness and I do not credit her testimony about the incident which differed from an affidavit she had given the Board I also find it unlikely that Tavares who admittedly heard Paul Harrington say there would be no breaks other than to go to the rest room, would, on the same morning ask Medina to re place her in order that she might take a break Maria Tavares also testified that on the afternoon of Friday, 16 September she was working with her hus band Ed and employee Donald Babine, doing a job that required three people at one time She asked Duarte Medina in Portuguese, if he would replace her so that she could go to the ladies room Medina said no that she had gotten herself into this mess and he could not help her Medina denied making the statements attributed to him by Tavares Having found that Maria Tavares probably fabricated the incident she described as occur ring on Tuesday, I am unable to credit her uncorroborat ed testimony concerning the alleged incident on Friday Neither Babine nor Ed Tavares, who speaks Portuguese were asked about this incident I find that there is insuffi dent credible evidence to establish that the alleged viola Lions of the Act by Duarte Medina on 13 and 16 Septem ber ever occurred and I shall recommend that these alle gations be dismissed 12 Incident involving Michael Muniz on 13 September Employee Michael Muniz testified that he wanted to begin a weeks vacation on 15 September and about 2 weeks before that he spoke with Paul Harrington about getting the time off and a week s vacation pay They dis cussed the fact that Muniz had some breaks in his service with the Company which might affect his anniversary date 58 However, Harrington said that since Muniz had worked the necessary hours it would probably be okay Muniz asked Harrington about the vacation a second time and Harrington said there was no problem and he would write it on Muniz s timecard On 13 September Muniz asked Fran Ruta the person who prepared the paychecks, if she had made out a va cation check for him and was told that she had not 58 The Company s policy on vacations was that to be entitled to vaca tion with pay an employee must have worked at least 1200 hours during the year and have reached his anniversary date of employment with the Company 518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When Muniz asked why, she said because Kobi said no and that Muniz would have to talk to him about it Later that day when Kobialka came into the production area, Muniz asked why he was not getting his vacation pay and Kobialka said he would not get it until his anni versary date in November Muniz said that Paul Harring ton had approved it Kobialka said that Muniz had not asked him about it and he did not approve it Muniz said that he was not aware that he had to ask anyone other than Paul Harrington with whom he always dealt He said that Harrington had taken into consideration the facts that Muniz had a break in service due to a broken leg, that he had enough hours worked, and that he had over a year of service Kobialka responded consider ation, I would like a little fucking consideration, which I haven t got " Muniz asked if he could have the pay as a favor Kobialka said he had done a few favors for people by approving vacations for employees who had the hours in but had not reached their anniversary date and `this could have been your favor this time, but now, no Muniz said you mean if the Union stuff didn't come up I might have got my vacation Kobialka re plied I can t say that Kobialka also said 111 tell you this, you people want to play hard ball' and pointing to the production line said if that lady over there farts and farts wrong she is gone The conversation ended and Muniz went over and told the girls on the production line what Kobialka had said Kobialka testified that on Thursday or Friday of the week before Muniz wanted to start his vacation, Paul Harrington told him and James Corbett that Muniz wanted the time off and vacation pay Kobialka and Cor bett discussed this privately and decided that Muniz could have the time off but that he would not receive his vacation pay at that time They reached this conclu sion because they considered Muniz to be a malcon tent who had a bad attitude about the company and had complained to Kobialka about unhappiness with the Company and with his job They also considered the fact that at that point, because of his breaks in service Muniz only had about 8 or 9 months of continuous serv ice with the Company Kobialka did not feel that, given Muniz s length of service and performance on the job he could receive his vacation pay before his anniversary date Kobialka did not communicate this decision to Muniz and did not ask anyone to do so On Tuesday of the following week, Muniz approached Kobialka as people were starting to punch out at the end of the day and said that Harrington had told him he could have the time off but he would not receive vacation pay and asked if Kobialka could do something about getting the pay for him Kobialka said no and Muniz asked why he could not do a favor for him like he did for others Kobialka responded it s not a question of a favor we don t feel you re entitled to your check early" and start ed to walk away Muniz again asked him to do it as a favor and said `has this got anything to do with this union Kobialka responded It had absolutely nothing to do with any union and said that they had to follow the company rules He also said that since Muniz had men tioned a union he was going to tell him something, saying We live by certain rules and if a union comes in, they re going to have certain rules Those rules have to be followed As a matter of fact, they are very specific If the union gets in and part of the union contract says that a packer will not fart on the line and that girl farts, she s going to be fired Muniz again asked for the money and Kobialka said the matter was closed James Corbett testified that it was he who made the decision that Muniz would not be given vacation pay before his anniversary date During the first week of September Corbett overheard Paul Harrington ask Fran Ruta to check on whether Muniz had a sufficient number of hours worked to qualify for vacation pay Ruta deter mined that Muniz had enough hours but did not have a full year of service Harrington left the office and Ruta asked Corbett what to do Corbett made the decision that Muniz could take the time off, but would not get the vacation pay until his anniversary date A minute or two later Kobialka came into the office, heard Corbett and Ruta talking and asked if there was a problem Cor bett explained the situation to Kobialka and said he had just told Paul Harrington of his decision Kobialka said okay, fine Kobialka and Corbett continued to have a conversation about Muniz in which Corbett told Ko bialka about Muniz breaks in service and Kobialka out lined certain problems with Muniz job performance Corbett testified that this occurred on the Wednesday or Thursday of the week before Muniz was to start his va cation and that as of that time he had no knowledge of any union activity in the plant Analysis and Conclusions The General Counsel contends that Muniz was unlaw fully denied advanced vacation pay in retaliation for the employees union activity and that Kobialka s remark to Muniz during their conversation on 13 September violat ed the Act The Respondent contends that the decision to deny Muniz vacation pay was in accordance with the established company policy and was made before the Company had any knowledge of union activity on the employees part and that nothing Kobialka said to Muniz was unlawful I do not credit the testimony of either Kobialka or Corbett as to how, when, or why the decision to deny Muniz vacation pay until November was made Kobialka claimed he made the decision during a private conversa tion with Corbett on 8 or 9 September and that his reason was Muniz bad attitude On direct examination Kobialka testified at length about Muniz bad attitude his constant complaining and his work performance short comings However on cross examination he admitted that Muniz had been transferred to the higher paying job of batterman in June or July 1983 59 that although he observed Muniz failing to do a conscientious job on more than one occasion he never said anything directly to Muniz about it, and that while he told Paul Harring 59 Kobialka would not characterize the transfer as a promotion even though the pay was higher MASSACHUSETTS COASTAL SEAFOODS ton to speak to Muniz about his job performance he did not tell Harrington to warn Muniz that if his job per formance did not improve he would be subject to disci plinary action and did not recall why he failed to do so Duarte Medina, who was the foreman on line one and Muniz direct supervisor testified that he was not aware that Kobialka was not satisfied with Muniz performance as a batterman and that he, Medina, thought Muniz was doing a good job ' When Muniz confronted Kobialka about his vacation pay on 13 September, Kobialka said nothing to Muniz about his attitude or job performance even when, according to Kobialka's description of the scene, Muniz was pleading for a favor Rather, Kobialka told Muniz, it was simply a matter of following the Company's rules I find that the Respondent's alleged re fusal to grant vacation pay because of his bad attitude and work performance was a pretext Corbett claimed that he made the decision to deny Muniz' vacation pay request on 7 or 8 September He testified that he got involved when he heard Paul Har rington discussing Muniz' request with Fran Ruta After Harrington had left the office, Ruta asked Corbett what to do and Corbett decided to deny the request Within a minute or two, Kobialka came in and Corbett told him what was going on and that I just told Paul he d have to wait until the [anniversary] time ' If Paul Harrington had already left the office before Corbett made his deci sion, he could not have told him about it Later on in his testimony on cross examination Corbett said that Har rington may still have been in the area and heard him tell Ruta of his decision but that `my conversation primarily was with her When Muniz asked Ruta why he was not getting his check, she told him because Kobi said no and said Muniz would have to talk to him about it If in fact it was Corbett who made the decision during his conversation with Ruta, there is no reason why she would attribute it to Kobialka If Corbett made the deci sion at the time and in the manner he says, it could have easily been corroborated by Kobtalka Paul Harrington and/or Fran Ruta Neither Harrington nor Ruta was called as a witness Harrington was still employed as plant manager at the time of the hearing and there was nothing to establish that Ruta was unavailable Kobial ka s testimony conflicts with rather than corroborates that of Corbett Other circumstantial evidence casts further doubt on the testimony of both Kobialka and Corbett Although company policy called for an employee to work 1200 hours during the year and have reached his or her em ployment anniversary date in order to be eligible for a paid vacation the Company s records indicate that nu merous exceptions to this policy were made during the 20 months preceding September 1983, including several since the time Kobialka and Mmeo acquired ownership According to Kobialka and Corbett, there was no estab lished policy as to when an exception would be made and it was apparently done on a case by case basis Re markably neither Kobialka, himself nor Corbett to whom Kobialka attributed the responsibility for approv mg such exceptions, could explain, except in one in 519 stance,°O how approval of these exceptions to the policy came about Both denied that Paul Harrington had au thority to approve an exception to the vacation policy a] though he had primary responsibility for scheduling va cations according to the Company s manpower needs According to the testimony of Muniz, which I credit, he asked Paul Harrington if he could get vacation pay in advance of his anniversary date Harrington said that he would take into consideration the fact that Muniz most recent break in service was due to a broken leg and that it should be alright When Muniz asked Harrington about it again he was told it was `okay, and that Har rington would mark it on Muniz timecard Harrington turns in the timecards to Ruta on either Friday or Monday and checks are distributed on Wednesday Muniz timecard for the week ending 10 September has printed thereon, in what is stipulated to be the hand of Paul Harrington, 1 week vac pay ph ' Next to those words in different but unidentified printing are the words not till Nov' In the lower left hand corner of the time card there is printed, in what Corbett acknowledged was probably Ruta s handwriting 1386 3/4 and 11-7-82, which in all likelihood were the number of hours Muniz had worked and his employment anniversary date If as either Kobialka or Corbett claimed, there had already been a determination pursuant to Harrington s oral in query on 7 8, or 9 September that Muniz would not be paid his vacation pay until November, there would be no reason for Harrington to have put 1 week vac pay on the card when he turned it in to Ruta on 9 or 12 Septem ber and even less reason for Ruta to have noted Muniz hours and anniversary date on the card after she re celved it Also unexplained is the failure of Paul Harring ton to tell Muniz that his request had been denied Har rington knew Muniz was concerned about it He had told Muniz first that it should be alright and later that it was okay but then, according to either the version of Kobialka or Corbett, although Harrington knew that the request had been denied he never bothered to tell Muniz about it Having rejected the self serving, conflicting, and un corroborated stories of Kobialka and Corbett concerning the decision to deny Muniz advanced vacation pay and considering all of the evidence concerning this incident, I find that Paul Harrington either approved or if he lacked authority to do so obtained the necessary approv al of Muniz request informed Muniz it was okay and noted the fact of its approval on Muniz timecard so that a vacation check would be prepared Sometime thereaf ter, the approval was revoked The evidence leads to the conclusion that the decision to revoke that approval was made by Kobialka as he so informed Muniz and was made at a time when he was aware that the employees were planning to or had already contacted the Union 61 80 Corbett testified that he personally approved an exception to the policy in the case of Billy McDonald an employee who came directly to Corbett in 1983 81 Kobialka was admittedly aware not later than Friday 9 September that employees were going to contact the Union That was the earliest that Paul Harrington would have turned in Muniz timecard to the office 520 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Having found that reasons the Respondent gave for re jecting Muniz request were pretextual, I find that the real reason was to retaliate because of the employees union activities Although there is no direct evidence to establish that Kobialka knew of any specific union activi ty on Muniz part I am convinced that he acted on the belief that Muniz, whom he considered a malcontent was involved 62 Kobialka told Muniz that he wanted a little consideration from the employees, but was not getting it and that he would have approved the pay re quest, as had been done for the other employees, but that something had changed his mind saying, this might have been Muniz turn for a favor but now, no There can be little doubt that the circumstance that caused him to refuse to do Muniz the favor was the employees having contacted the Union This incident was one of the series of retaliatory actions taken by the Respondent immedi ately after the employees contacted the Union and sought representation Considering all of the circum stances, I find that the Respondents disparate and dis criminatory63 denial of Muniz request for vacation pay was the result of its belief that Muniz was among those involved in union activity and violated Section 8(a)(3) and (1) 64 I also find that Kobialka s statement outlining the Respondents response to what he considered the em ployees playing hard ball by contacting the Union that if an employee on the production line farts wrong she would be fired was a threat of retaliation for engag ing in protected activity which violated Section 8(a)(1) ss 13 Incidents involving Carmen Glidden on 14 September Carmen Glidden had worked for the Company for over 10 years as packer stacker and cutter She testified that during September she had been working as a stack er On the morning of 14 September she overslept She telephoned the plant and spoke with Paul Harrington telling him that her clock did not go off and that she would be in as soon as she could Harrington said he did not know what Kobi was going to say about it Glid den arrived at the plant at approximately 7 35 a in and entered through the front office area which was her usual practice As she entered she saw Michael Mineo sitting at his desk in his office and told him she was sorry she was late As Glidden approached the door to 62 Kobialka was apparently being informed of what was happening with the Union as he claimed that later in the week he learned that the Union had promised Muniz would receive his vacation pay and an apol ogy from Kobialka by 3 30 p in on Friday 63I credit Muniz testimony that when he asked if he would have gotten his vacation pay if the Union stuff didn t come up Kobialka re plied I can t say that which implies that it was the reason over Ko bialka s version in which he emphatically denied to Muniz that the Union had anything to do with it and said it was simply a matter of following the Company s rules 64 Gourmet Foods 270 NLRB 578 (1984) Riverfront Restaurant 235 NLRB 319 320 (1978) 65 1 do not credit Kobialka s testimony in which he claimed he was merely telling Muniz what would happen if the Union came in and there was a contract that prohibited farting on the production line I consider this testimony a strained far fetched attempt to revise remarks which several witnesses testified to having heard and which he could not credi bly deny having made to avoid the illegality involved the production area Kobialka, whom she had not no ticed standing in Mineo s office, said to her if this hap pens again and there is a union in here you are fired Mineo immediately spoke to Kobialka saying no, no Kobialka then told Glidden not to punch in and to go home Glidden asked if she was fired and Kobialka re sponded that he would have a meeting about her that morning and would get back to her When Glidden tried to enter the production area to clean out her locker, Ko bialka told her to go home and escorted her to the door Glidden left the plant and drove to the union hall, arriv ing there about 7 50 a in, before it opened When Helen Tarr arrived, Glidden told her that she had been late for work and that Kobialka had sent her home Tarr asked her to wait until Jim Lee came and to tell him what hap pened and she did so At about noon, she returned to the plant to pick up her paycheck as it was a payday She entered directly into the production area and met her foreman Joe Tavares, who asked her where she had been that morning and said that he had been waiting for her to arrive When she told him that Kobialka had sent her home, Tavares said he did not know about that Glidden and Tavares entered the foremen s office where Paul Harrington was present Harrington told Glidden that Kobialka had not fired her Glidden asked why he was doing this to her and Harrington responded that Ko bialka was upset with the Union and all the girls talking about it in the plant Shortly thereafter Kobialka came into the office and told Glidden she was not fired Glid den asked why he was singling her out and Kobialka said that he has started a policy that day that if anyone came in late, they would be sent home He told Glidden that he had no gripes about her work that if she had any problems she should come into the office and talk to him and that he wanted to be her friend Kobialka then remarked that he had come in late himself that morning and Glidden responded that he was getting paid for the day After Kobialka left the office Glidden remained and talked to Harrington and Tavares Harrington said that Kobialka was going to stop all breaks and any extra weeks off during the year were going to be stopped Harrington also commented that the girls were making a big mistake if the Union came in and Tavares nodded in agreement Harrington told Glidden to go home and return to work the next day Kobialka testified that at approximately 8 a in he was having a meeting with Mineo and Corbett in an office facing the front door when Glidden came in When Glidden reached the door of the office, she said she had overslept and was sorry she was late Kobialka told her that she was too late to punch in, that her place had been taken on the line, and that she should go home He did not recall who had taken Glidden's position as a cutter on the line When Glidden said she was going to her locker to get her personal things Kobialka told her she was not fired but that she should go home and come back tomorrow He walked her to the door and asked her to leave The subject of the Union was not men tioned in their conversation and he denied telling Glid den that if she was late again and there was a union, she would be fired Kobialka told Paul Harrington he had MASSACHUSETTS COASTAL SEAFOODS sent Glidden home and was told she had called Harring ton to say she would be late Around noon, Glidden came back to get her paycheck Kobialka went to the foremen s office where Glidden, Joe Tavares, and US Commerce Department Inspector Paul Silverman were talking Paul Harrington was not in the foremen s office Kobialka saw that Glidden was upset He said he was sorry if he upset her, but he could not allow people to come to work whenever they felt like coming to work He told her she was a good employee and Glidden re sponded that she was not involved in any union activity Kobialka said that he did not care about union activity and that she should go home and come in on time to morrow He did tell Glidden that he had started a new policy that if anyone was late they would be sent home He was aware of no employee being sent home for being late before this incident On cross examination, Kobialka testified that when he told Glidden that her place on the line had been taken, he did not know that to be the case and he was never told that anyone had taken her place He agreed that Glidden usually came to work on time James Corbett testified that he was in Mineo s office on 14 September when Glidden came in about 8 am Glidden said she was sorry she was late and Kobialka told her not to bother punching in She asked if she was fired and Kobialka said no you re not fired, just go home We re quite sufficient on the line today Glidden then said I don't have anything to do with this union thing, Mike Kobialka said, It's got nothing to do with the Union Glidden started to go into the plant to pick up her things and Kobialka again said she was not fired to go home, and to come in tomorrow on time Analysis and Conclusions The Respondent contends that Glidden s testimony about these incidents should not be credited It points out that a statement Glidden wrote out for Union Repre sentative Lee does not refer to Kobialka saying if she was late again and a union was there she would be fired I do not consider this particularly significant as it ap pears that Glidden was very upset on the morning of 14 September and wrote the statement, on her own at a time when she was not certain whether she had been fired or not 66 After observing her demeanor while testi fying, I do not doubt that she was testifying truthfully about this incident and the second encounter with Ko bialka in the foremen s office The fact that her recollec tion needed refreshing as to one statement made by Paul Harrington in the foremen s office does not as the Re spondent contends, render it unworthy of belief I found Glidden s testimony about these incidents more credible than that of Kobialka or Corbett Kobialka testified that he sent Glidden home because she was too late and her place as a cutter had been filled However, he admitted that he had no knowledge that Glidden s job was being filled or that she was not needed It appears that he tests Be Since Kobialka did not respond when she asked several times if she was fired but told her he would have a meeting about her status and get back to her I do not find it surprising that Glidden focused her statement on being sent home on 14 September rather than on the threat of a future discharge 521 fled that she was a cutter because the nature of the cut ter s job is such that those positions must be filled in order for the line to operate Glidden s regular job had been a stacker for several weeks prior to 14 September Although Kobialka claimed Paul Harrington was not present in the foremen s office when he spoke to Glidden there and that Paul Silverman was, neither Harrington nor Silverman was called as a witness to corroborate this Joe Tavares, who was present and was called as witness by the Respondent, was not asked about the inci dent I did not credit Corbett s testimony generally, and here, specifically, because he claimed to hear Glidden make a statement denying any involvement with the Union when Kobialka sent her home in the morning However, according to Kobialka, she made that state ment around noon in the foremen s office and not during the morning conversation Corbett acknowledged that he was not present when Kobialka and Glidden were in the foremen s office Kobialka admitted that he had never sent anyone home for being late before 14 September There was no evidence of any company rule in effect prior to that time that prescribed such a penalty On the contrary the record establishes that Karen Anderson often came in late and simply had her pay docked according to the extent of her tardiness Even when Anderson s excessive tardiness reached the point where the Respondent would no longer tolerate it, she was first informally counseled by both Kobialka and Paul Harrington and finally given a formal warning that disciplinary action would be taken if she was late again In Glidden s case, although she was considered a good worker with no tardiness history she was summarily sent home on the day after the Union de manded recognition pursuant to a new rule on tardiness because her position on the line had been filled, a reason that was patently false This was done after she was warned that if she was late again and a union was in the plant, she would be fired Although Kobialka denied making such a statement, the fact that Michael Mineo said no no" to him immediately upon hearing what was a flagrant threat is further evidence that he made the statement Mineo was not called as a witness I find that the General Counsel has made a prima facie case under Wright Line, supra, that Glidden was sent home on 14 September pursuant to a new policy on tar duress instituted that day in retaliation for the fact that the employees were attempting to have the Union repre sent them There is ample evidence of the Respondent s union animus Again the timing of this change in policy, instituted immediately after the Union demanded recog nition is persuasive evidence Also persuasive are the facts that the announcement of this new policy was cou pled with a blatant threat of reprisal in the event union representation came about and the admission by Paul Harrington to Glidden, when she asked why Kobialka had done this to her, that it was because he was upset about the Union The only reason offered by the Re spondent as justification for sending Glidden home, that her place on the line had been taken was untrue Ta vares was filling in for Glidden that morning but only on an interim basis while waiting for her to arrive It is 522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD clear that had Glidden gone to work that morning, on time or tardily she would have taken her place on the line and Tavares would have resumed his foreman s duties No justification of any kind was offered as to why Kobialka imposed this new, unprecedentedly stun gent tardiness policy 67 I find that it was for the reason Harrington gave Glidden, that Kobialka was upset about the Union By imposing a new, more onerous rule con cerning tardiness in retaliation "or its employees union activity and in order to discourage support for the Union, the Respondent violated Section 8(a)(3) and (1) of the Act 68 Sending Carmen Glidden home from work pursuant to this unlawful change in the tardiness policy also violated Section 8(a)(3) and (1) Kobialka's threat that if Glidden was late again and there was a union in the plant, she would be fired, violated Section 8(a)(1) of the Act, as did Paul Harrington's statements to Glidden that the Respondent would no longer permit breaks and extra weeks off and his statement that the employees were making a big mistake by seeking to bring in the Union, which threatened unspecified retaliation if they did so 14 Actions of Robert Tomer Robert Tomer is the Respondents purchasing agent and an admitted supervisor within the meaning of Sec tion 2(11) of the Act Donald Stewart testified that on the evening of 9 September, while he was doing clean up work he commented to Tomer that it was getting warm around here referring to the union activity going on at the plant Tomer responded that it was getting warm all right and said it is going to get a lot hotter too with this union Tomer went on to say that the plant would close if it went union and they would all be out of a job On the following Friday afternoon, 16 Sep tember, Tomer told Stewart that a policemen would be on the plant premises that night and that once Stewart left the plant, he should not return or he would be ar rested for trespassing Later in the evening, after the po liceman had arrived and Stewart was preparing to leave he said to Tomer, "I will see you Monday Tomer said I don t know if you will see me maybe we will be out of a job by Monday Tomer testified that he could not recall a conversation with Stewart on 9 September in which he said it would be `a lot hotter with a union and said he had no knowl edge of telling Stewart the plant would close Tomer also testified that he could not recall any conversation with Stewart on the afternoon of 16 September in which he told him a policeman would be coming to the plant although he acknowledged that he had made the ar rangements for a policeman at Kobialka s request Tomer returned to the plant that evening and spoke to the po liceman, but did not give him any instructions He did not talk to Stewart at that time and did not recall saying anything about not seeing him Monday or that maybe 67 The policy was apparently abandoned sometime after the Respond ent hired replacements for sinking employees This is further evidence that it was instituted in order to dissuade employees from seeking union representation 66 Brenal Electric 271 NLRB 1557 1567 (1984) John Cuneo Inc 253 NLRB 1025 1026 (1981) they would be out of a job Tomer went on a previously scheduled vacation during the week of 19 September when the strike commenced Based on their demeanor while testifying I credit Stewart s version of these incidents as he appeared to be testifying truthfully Tomer on the other hand, was ex tremely nervous, hesitant and evasive throughout his tes timony His testimony that he could not remember whether or not he was aware of union activity in the plant prior to 9 September, that he did not know or in quire as to why Kobialka wanted police protection on the following weekend and that he did not tell the po liceman why he was there to guard the plant premises was not believable The Respondent's attacks on Stew art's credibility are not persuasive One is based on Stew art's raising the subject of union activity with Tomer after telling Duarte Medina a few hours earlier on 9 Sep tember that he was not aware of any such activity Stew art s statement to Medina was a not unexpected denial in response to a supervisors unlawful interrogation about his union membership 69 Another is directed to Stewart s testimony that Tomer said something about the plant being sold to Rule Industries and moving elsewhere It appears that Tomer sought to add emphasis to his threat of plant closure by suggesting that Rule Industries, which was located next to the Respondent, might buy its plant At the time, the Respondent was seriously consid ering building a new plant at the Head of the Harbor in Gloucester Kobialka told the employees in his 12 Sep tember speech that he wanted to move and that he had a buyer for the plant I find these details in Stewart s testi mony add to rather than detract from his credibility Tomer s statement concerning plant closure on 9 Sep tember was similar to those made to employees by Duarte Medina that afternoon and Paul Harrington that evening, as well as the threats contained in Kobialka s speech to the employees on 12 September the next working day As noted above this suggests that the Re spondent s initial strategy to combat the employees union activity was to raise the spectre of plant closure and loss of jobs if a union were to come in I do not be lieve the fact that Tomer was going on vacation on 17 September and did not expect to be at the plant the next week negates the possibility of his making the statement to Stewart on 16 September about being out of a job on Monday He was admittedly concerned about the possi bility of losing his job, he had already told Stewart that Kobialka would close the plant if a union came in and he had arranged for police protection of the plant for the weekend at Kobialka s direction Although Tomer denied knowing the reason for the police protection, Ko bialka testified he told Tomer it was related to the em ployees' union activity Considering all of these factors, I credit the testimony of Stewart and find that Tomer made a statement threatening plant closure in retaliation for the employees' union activity on 9 September, in vio lation of Section 8(a)(1) of the Act His statement to 69 There was evidence that Stewart and Tomer who were often alone together in the plant after production ceased were friendly and had dis cussions occasionally sharing a drink together Stewart apparently felt more at ease with Tomer than he did with Medina MASSACHUSETTS COASTAL SEAFOODS Stewart on 16 September about being out of a job on Monday, when considered in the context of his previous threat, was a further unlawful threat of plant closure 15 Nelson Harrington s remarks to Michael Muniz Michael Muniz testified that one day during the week of 15 September, he asked Nelson Harrington, who was a friend of his, to go to lunch with him and Harrington declined because he had to attend a meeting After the meeting involving Kobialka and the foremen, Harrington looked unhappy and Muniz asked him what was wrong Harrington replied that if the Union got in, he, Harnng ton, would probably take a $4 cut in pay, he would probably be running Muniz machine, and Muniz would be laid off Muniz testimony about this incident was credible and uncontradicted Nelson Harrington testified he could not recall the conversation, but did not deny that it occurred As indicated above, I find that Nelson Harrington was a supervisor and an agent of the Respondent and that it is responsible for his conduct This is particularly true in this instance since Muniz testified that on that day, Nelson was serving as a line foreman and he had just re turned from a meeting with Kobialka 70 Harrington s statement was an unlawful threat that if the Union came into the plant as the employees bargaining representa tive, Muniz would be laid off His statement was similar to that made by Kobialka on 12 September concerning layoffs in the event the employees chose the Union and, like Kobialka s remarks, it did not purport to be based on any objective facts or figures I find that Nelson Harnng ton s statement to Muniz violated Section 8(a)(1) 16 Medina s conversation with Eduardo Tavares during the strike Eduardo Tavares testified that he went out on strike on 19 September and was on the picket line during the strike About a week after the strike began Duarte Medina went to Ed Tavares home where he told Ta vares that he had come to speak to him like a friend and was not paid by Kobi to do so Medina asked Ta vares if he knew what he was doing He said that the plant would never be union because Kobi will never, never allow the Union inside the plant and that the plant would close before the Union would be allowed in He told Tavares that if he went back to work he could still have his job as the Company would take him back Medina testified that he went to Tavares to try to con vince him to return to work because the Company was starting to hire replacements Medina denied telling Ta vares that Kobialka would never allow the Union in the plant and that he would close the plant before the Union got in Tavares was a credible, convincing witness Medina was just the opposite I credit Tavares testimony and find that Medina s threat of plant closure, which was similar to others he made, and his statement implying that the employees' activity was futile because the Re spondent would never allow the Union in the plant vio 70 Nelson Harrington filled in as a line foreman whenever Medina Ta vares or Paul Harrington was out Medina was out sick at least 2 days during the week of 15 September 523 lated Section 8(a)(1) of the Act Neither the fact that Medina and Tavares had been friends prior to the strike nor Medina s statement that Kobialka was not paying him to come to talk to Tavares served to lessen the coer cive nature of Medina s message The fact that Kobialka may not have asked him to deliver the message threaten ing plant closure and suggesting that union activity was futile is meaningless He was clearly telling Tavares what the Respondent's intentions were and, as a supervisor, he was presumably in a position to know what they were 17 The nature of the strike The General Counsel and the Union allege that the strike which commenced on 19 September was an unfair labor practice strike, while the Respondent contends that it was purely an economic strike In order to be an unfair labor practice strike, it is not enough that the strike and the employers commission of unfair labor practices co incide in time, 71 there must be a casaul connection be tween them 72 The evidence must establish that the strike was at least in part the direct result of the Re spondent s interference with the employees protected ac tivities 7 3 Union Representative James Lee testified that he told the employees as early as the meeting on 13 September that he thought the Respondent had committed several unfair labor practices, that they could file charges with the Board and that they could have ` an effective unfair labor practice strike He asked the employees to give him written statements about various incidents Accord ing to Lee, at a meeting on the following day the em ployees discussed going on strike and he told them that although he felt they could have a successful unfair labor practice strike, they should take a break to clear their heads and should meet on Friday, 16 September to plan their next move At the meeting on Friday, at which the employees voted to go on strike Lee said he discussed the fact that the petition had been filed and the tentative timetable for the election and was asked if anything could be done to speed up the election process He testi feed that he told the employees one way for it to be quicker would be to go out on the street in an unfair labor practice strike and this might result in recognition by the Respondent or a quicker election possibly within 72 hours I do not credit Lee s testimony concerning his alleged statements about going out on an unfair labor practice strike inasmuch as none of the employee witnesses tes tified to any such clear cut statements or discussions con cerning an unfair labor practice strike, as such Union President Helen Tarr emphatically denied that there was any mention of a strike at the 13 September meeting and testified that there was no discussion at the meeting on 14 September about what action might be taken if the Respondent did not agree to recognize the Union at the meeting with the Company s attorney scheduled for 16 71 Tufts Bros 235 NLRB 808 810 (1978) 72 See Soule Glass & Glazing Co v NLRB 652 F 2d 1055 (Ist Cir 1981) 73 C & E Stores 221 NLRB 1321 1322 (1976) Larand Leisurehes 213 NLRB 197 (1974) 524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD September Also the fact that the first unfair labor prac tice charge was not filed until 30 September and that documents prepared and submitted by Lee and Tarr to the International Union seeking its sanction for the strike immediately after it commenced, refer to it as a recog nition strike, further undermine Lee s testimony sug gesting that the strike vote on 16 September was clearly delineated as a vote to engage in an unfair labor practice strike While there is evidence that Lee did ask for and received some written statements about incidents alleged as unfair labor practices, his testimony indicated that he intended to use them in negotiations with the Respond ent The fact that the employees did not specifically vote on 16 September to engage in an unfair labor practice strike does not necessarily resolve the matter or establish that it was strictly an economic strike 74 The entire fac tual situation which pertained at the plant at the time must be reviewed 75 Consideration of all the circum stances surrounding the employees decision to go on strike convinces me that their decision was motivated in large part by the Respondents unlawful conduct during the week preceding the strike vote Their decision to strike was not solely in support of the Union s request for recognition but was also motivated by the employ ees desire to protest the Respondent's attempts to under cut their support for the Union Consequently, I find that despite its recognitional aspect the strike was an unfair labor practice strike from its inception 76 I have found that the Respondent committed numer ous unfair labor practices during the week preceding the strike vote, commencing as soon as it learned that the employees planned to meet with the Union and before they had even done so On Friday 9 September, supervi sors threatened several employees with plant closure and job loss in the event of union representation, and on Monday just prior to their first meeting with the Union Kobialka gave a speech to all employees in which he threatened plant closure and/or massive layoffs and as serted the alleged futility of their seeking union represen tation He repeated his promise of layoffs and threatened to move the plant in a private meeting with three em ployees a short time later On Tuesday morning follow ing a meeting at the union hall in which over 30 employ ees signed authorization cards, they were told by super visors that they could no longer take the informal breaks they had previously been allowed Later that day Ko bialka denied employee Michael Muniz advanced vaca tion pay in retaliation for the employees union activity and told Muniz in the same conversation that if produc tion workers so much as farted wrong they would be fired, a threat which was overheard by some employees and was repeated to many others by Muniz On Wednes day in obvious retaliation for the employees having en gaged in union activity, Kobialka sent Carmen Glidden home following her unusual and isolated tardy arrival at work, told her she would be discharged if she was tardy 74 See Brooks, Inc 228 NLRB 1365 1367 (1967) C & E Stores supra 75 Trading Port 291 NLRB 298 299 (1975) 76 See PBA Inc 270 NLRB 998 (1984) Tall Pines Inn 268 NLRB 1392 (1984) Juniata Packing Co 182 NLRB 934 (1970) again and there was a union present and announced a new work rule penalizing tardiness with time off That afternoon, Plant Manager Paul Harrington told Glidden that Kobialka had acted as he had because he was upset about the employees seeking union representation and said that they were making a big mistake by doing so The evidence establishes that all of these incidents were among the matters discussed by the employees during meetings at the union hall throughout the week At the meeting on Friday, 16 September before employees voted to strike, they rehashed the events of the week particularly, Glidden s being sent home and Kobialka s threat to fire anyone who farted wrong While there was also discussion as to the effect or strike might have on gaining voluntary recognition or speeding up the elec tion, there is no reason to conclude that this was `the sole operative factor behind the strike' 77 To do so would require ignoring the bulk of the evidence which establishes that the employees had before them, thor oughly discussed, and were influenced by the Respond ent s unlawful conduct in reaching their decision to strike on 16 September 78 On 9 November the Union sent a mailgram to the Re spondent on behalf of 35 striking employees79 in which they made an unconditional offer to return to work The Respondents counsel sent the Union a letter dated 10 November, stating that all of those employees had been permanently replaced Inasmuch as the employees were unfair labor practice strikers from the outset once they made an unconditional offer to return to work, they were entitled to immediate reinstatement to their former jobs or, if such jobs no longer existed, to substantially equivalent positions, even if this meant terminating strik er replacements to make room for returning strikers The Respondent's failure to provide immediate and full rein statement to returning unfair labor practice strikers even though based on its view that they were economic strik ers violated Section 8(a)(3) and (1) of the Act 80 18 Newspaper advertisement and letters to employees After the strike commenced the Respondent sent all employees a letter dated 19 September, signed by Ko bialka which stated inter alia that their jobs would be open for them until such time as we hire your replace ments and that it would start hiring replacements for workers who did not return to work by 7 am on 21 September On 28 September, the Respondent ran a help wanted ad in a Gloucester newspaper which stated that 79 Juniata Packing Co supra at 935 78 See Larand Leisurelies supra at 198 7a Those employees were Joyce Amero Karen Anderson Sharon Au clair Mildred Aubrey Donald Babine Geraldine Bodwell Edith Brown Catherine Cabral Evelyn Cabral Pauline Cabral Clara Curtis Hazel Ellis Betty Favazza Carmen Glidden Jean Harnngton Josephine Jacobs Nancy Lumbard Antonio Lentini Ellen MacDonald Edna Mac Farland Jacqueline Medeiros Janet Miller Michael Muniz Michael Pa tncan William Porter Janice Rigney Dons Rowe Robert Sheehan Donald A Stewart Lucinda Symonds Eduardo Tavares Mana Lucia Tavares Barbara Theriault Albert Tognazzi and Alberta Trefry On 23 March 1984 employee Judith Rocha made an unconditional offer to return to work in writing to the Respondent 80 Gourmet Foods supra at 613 Atlas Metal Parts Co supra at 205 MASSACHUSETTS COASTAL SEAFOODS there was a strike in effect at its plant and that it was accepting applications for full-time, permanent pose tions On 7 October, the Respondent sent a letter to em ployees working at that time which stated that replace ment workers were permanent and would have jobs as long as you want to work here and we have work to offer ' Because I have found that the strike was an unfair labor practice strike from its inception, the Respondent could not permanently replace the strikers or threaten to do so 81 Although the letter of 19 September did not specifically state that the replacements the Respondent would hire for any employee who did not report for work on 21 September would be permanent, any ques tion about the status of the replacements was answered by the want ad the Respondent ran on 28 September While the letter of 7 October was not sent to strikers, it was sent to working employees, some of whom may have been considering joining the strike and could have been intimidated by the threats of permanent replace ment contained therein I find that the Respondents let ters of 19 September and 7 October and the want ad it ran in the newspaper on 28 September constituted threats to permanently replace unfair labor strikers in violation of Section 8(a)(1) 82 19 Alleged discontinuance of sick leave and vacation benefits Jean Harrington had been employed by the Respond ent as a cutter for 11 years She suffered an injury to her back while at work and was on unpaid sick leave begin ning on 2 August 83 She informed Paul Harrington of the injury at the time it happened After seeing a doctor she telephoned Harrington and told him she would be out for 2 weeks At the end of 2 weeks she saw the doctor again and was told it would be another 2 weeks before she could return to work and she so informed Harrington At some point she returned to work for 2 days but was unable to continue Thereafter she saw the doctor again and was told to stay out another 3 weeks When Paul Harrington told her he did not know if Ko bialka would like it she gave him the doctor s name and telephone number and asked them to contact him During the week of 13 September she brought in a note from her doctor 84 She was eventually cleared to return to work by the doctor as of 5 October Jean Harrington signed a union card on 13 September and appeared on the picket line on 20 September, the second day of the 81 Mastro Plastics Corp v NLRB 350 U S 270 278 (1956) Laredo Coca Cola Bottling Co 241 NLRB 167 177 (1979) 82 Gourmet Foods supra at 611 Jacques Syl Knitwear 247 NLRB 1525 1533 (1980) Trading Port supra at 299-300 83 She had suffered a work related back injury 3 years earlier and had been paid workmen s compensation benefits while she was out She made no claim for such benefits in connection with this injury 84 There is evidence that the Respondent accepted the fact that she was disabled and that her job was being held open for her as indicated by Kobialka s statement in his speech on 12 September that if Jean came back tomorrow she d go on a saw Although there may have been a limit as to how long the Respondent would be willing to hold Harring ton s job open as there had been in the case of Line Foreman Butch Bur dridge there was no evidence that the limit had been reached prior to the date the employees went on strike 525 strike When she returned home that evening she found a letter from the Respondent dated 19 September, signed by Kobialka which was identical to those described above as having been sent to all employees and informed her that if she did not return to work by 21 September she would be replaced James Corbett testified that the letter was sent to Harrington only after she was ob served on the picket line Nancy Lumbard has been employed by the Respond ent as a packer for 7 years She signed a union authonza tion card on 12 September On 19 September she began 2 weeks paid vacation, having received her vacation pay before she left When her vacation was over she went on the picket line She received a letter from the Re spondent, dated 19 September, addressed to all employ ees which was identical to those received by Jean Har nngton and others She also received a letter from the Respondent signed by Kobialka and Michael Mineo, dated 20 September, postmarked 23 September, which was addressed to all employees and stated that the Re spondent was beginning to hire replacements and if you wish to come back to work, we urge you to report to work promptly' The General Counsel contends that by sending these letters to Jean Harrington and Nancy Lumbard the Re spondent violated Section 8(a)(1) and (3) of the Act by terminating benefits previously accrued to them because of the strike The Respondent argues that the letters were addressed only to striking employees that the let ters do not threaten the cancellation of any accrued ben efits of its employees, that they were not the result of un lawful motivation on its part and that the Respondent had the right to ask Lumbard to return from her vaca tion because of business necessity Analysis and Conclusions In the case of Jean Harrington, the Respondent had unilaterally granted her a sick leave benefit in connection with her injury, based on the work she had previously performed for the Company Although she was not re ceiving any compensation the Respondent acknowl edged that her job would remain available for an indefi nite period (which had not ended as of the date the strike began) until she was physically able to return to work On seeing Harrington on the picket line on 20 September it notified her that she had to return to work by 21 September or she would be replaced The effect of this was to unlawfully terminate the sick leave benefit she had accrued prior to the strike at a time she was still disabled This was a violation of Section 8(a)(3) and (1) of the Act, whether the Respondent canceled her sick leave benefits because other employees went on strike or as Corbett s testimony indicates, because it believed Har nngton approved of or participated in the strike 85 The letter to Harrington violated the Act regardless of whether the strike was an unfair labor practice or an economic strike 8s Conoco Inc 265 NLRB 819 (1982) Emerson Electric Co 246 NLRB 1143 (1979) modified 650 F 2d 463 (3d Cir 1981) 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In the case of Nancy Lumbard she went on vacation prior to the date the strike began and she had already re ceived her vacation pay There was no evidence that the Respondent sought to recoup any of it from the pay check she received after the strike began Inasmuch as Lumbard was not deprived of any previously accrued benefits by the Respondent, the letter of 19 September did not constitute a violation of the Act except as dis cussed above, insofar as it unlawfully threatened to ter minate the jobs of unfair labor practice strikers Lumbard had not participated in the strike as of the time the letter was sent to her and the Respondent was not precluded from calling nonstriking workers back from vacation be cause of business necessity I shall recommend that this allegation be dismissed 20 Threats to strikers Eduardo Tavares testified that while he was on the picket line on a date after the election, a fellow picketer asked him if he needed a job fixing a car Tavares re sponded, I have a job, meaning his job with the Re spondent Kobialka who was standing nearby turned around and said to Tavares, There s no job for you in here, I m sorry Kobialka denied having any recollec tion of such a conversation with Tavares Robert Sheehan testified that on the morning of 15 October, he arrived outside the plant in his van with Donald Stewart and Albert Tognazzi to picket As he got out of the van and placed a sign on the windshield Kobialka, who was standing in front of the plant, walked toward Sheehan, shook his fist at him and told him he was all done and was never going to get back Ko bialka then went over and spoke to a policeman on duty there and went back into the plant The testimony of Stewart and Tognazzi corroborated that of Sheehan con cerning Kobialka s telling Sheehan he was all done al though their testimony as to when they arrived and how long they stayed at the picket line differed Kobialka tes tified that the three arrived at the plant in a van and when Sheehan got out to put a sign on the van Kobialka said to him that there were no nails in the driveway when they arrived and if there were any there when they left he would have them arrested He then went to the policeman and told him he wanted them arrested if there were nails in the driveway when they left Alberta Trefry testified that on the morning of 26 Oc tober she was picketing near the employee entrance driveway with two other women At about 7 30 a in Mi chael Mineo, who was walking toward the plant said to them in an angry tone Why don t you ladies go home, you re all done You re all done why don't you grow up Mineo did not testify and Trefry s credible testimo ny is uncontradicted Joyce Amero testified that on the morning of 27 Octo ber at about 11 am Michael Kobialka approached a group of pickets at the employee entrance driveway He asked them what they were doing there and said There s no job for you here any longer Go find jobs someplace else He then spoke directly to Amero and told her she would never work at Mass Coastal again He told Amero, if it takes the rest of my life I will keep you on the street " He said that he had enough money to keep her there for 10 years and that if he were to die his son would take over and keep her on the streets He then looked at Evelyn Cabral and asked her how much vaca tion pay she was getting Michael Mineo who was standing outside the plant hollered I in sick of looking at your funking [sic] ugly face, get the fuck out of here Mineo then walked toward the picket line and said A hell of a bunch you are, you could have come to me first, instead you went to the Union I ve been good to you all those years, you re getting what you deserve now, a dollar an hour from the Union As he walked back to the plant Mineo said, okay lets start moving the machinery out of here right now Let s go Amero testified that she did not recall saying anything to Ko bialka before he spoke to her, but that after he asked her why she was there and said that there was nothing there for them, she told Kobialka I just want to stay here and watch you go down the tubes with us Josephine Jacobs testified that she was at the truck entrance when she heard Kobialka shouting and she walked down toward the other driveway to see what had happened As she approached she heard Kobialka say never, never, never When she saw him hollering and waving his arms, she began to laugh Kobialka saw her and said, Josie, its not funny and you 11 never work in this plant as long as I live She said that Amero then said something to Kobialka, but she got nervous and walked away and did not hear what she said Pauline Cabral tes tified that she heard Michael Mineo tell the pickets that he did not know why they were there and that they should go home He said they looked like shit out there and that he was sick of seeing their ugly faces Kobialka told the strikers they will never get back in and said why did not they go down to the Fish Pier and work for $6 an hour Cabral responded that the pay was $6 60 an hour there and Kobialka asked her if she got va cation and benefits Michael Kobialka testified that during the early after noon of 27 October he was told there were nails in the driveway and he and others went out to pick them up He picked up several large nails near the picket line, held them up in his hand and said to the pickets What are you doing here? This kind of activity was supposed to have stopped To this Amero responded Mr Kobi we know we are beaten but we re going to drag you down We re going to break you financially We re going to take you down with us Kobialka then said Joyce you 11 never get back in this plant When Amero started to say something he said You will never ever get back in the plant" and started to walk over to the policeman to show him the nails Amero and the other pickets began screaming at him, Amero repeatedly saying Well get you, we re going to take you down Ko bialka said that she would never get back in the plant and that his son would run the plant before she got back in He said he did not recall making any comment to Jo sephine Jacobs or discussing the pay or benefits the pick ets were getting He said he recalled hearing Mineo say something, but he did not know what he said Carmen Glidden testified that on a date after the elec tion but before the strikers requested reinstatement she MASSACHUSETTS COASTAL SEAFOODS was on the picket line with Janet Miller and Pauline Cabral in the driveway of the employees entrance MI chael Kobialka who had been watching the pickets stamped his foot, pointed at Miller, and said to her never never are you getting back in here He then walked back to the plant Neither Miller nor Cabral testa fled concerning this incident Kobialka denied any recol lection of such an incident although the question by the Respondents counsel was phrased in terms of it having happened the day after the election Analysis and Conclusions I found Eduardo Tavares to be an honest and convinc ing witness and credit his testimony that Kobialka told him there was no job for him with the Respondent Ko bialka did not really deny making the statement, but said he did not have any recollection of it I do not consider the fact that Tavares was later offered reinstatement by the Respondent to negate his testimony that Kobialka made this threat to him as I find the evidence establishes that Kobialka was prone to making such threatening statements to picketers when he was unhappy with them 86 I also find that Kobialka told Robert Sheehan on 15 October that he was all done and was never going to get back Although there were discrepancies in the details of what occurred that day, the testimony of Shee han, Donald Stewart, and Albert Tognazzi87 is mutually corroborative as to Kobialka's threat to Sheehan While Kobialka may well have spoken to the policeman about arresting Sheehan, whom he apparently suspected of spreading nails I also find that he told Sheehan that he was all done ' Alberta Trefry s testimony that Michael Mineo told her and other pickets they were all done and should go home is uncontradicted and the Respond ent does not dispute it I find that the Respondent violat ed Section 8(a)(1) of the Act in each of these incidents by unlawfully threatening unfair labor practice strikers with job loss 88 Further even if the strike was not an unfair labor practice strike these threats violated the Act 89 Had the strikers been economic strikers that had been permanently replaced once the strike concluded and they applied for reinstatement they were entitled to get their jobs back when openings for which they were qualified became abailable 90 Several employees gave credible testimony concerning the incident involving Kobialka and Mineo at the picket line on 27 October It appears that they viewed the inci dent from different perspectives and that some saw or heard only a portion of what occurred Considering all of the testimony I find that Kobialka in all likelihood did find some nails in the driveway that day and was provoked by it However, his description of his actions 86 A subsequent offer of reinstatement does not effect the unlawfulness of the threat Brooks Inc supra at 1367 fn 11 87 Contrary to the argument of the Respondent I do not interpret Tognazzi s testimony to be that Kobialka said Sheehan was all done be cause he put up a picket sign Rather considering all his testimony what he heard Kobialka say to Sheehan was you re all done Tognazzi ap patently believed Kobialka s comment was triggered by Sheehan s put tmg up the sign 88 Gourmet Foods supra 89 Peat Mfg Co 251 NLRB 1117 1137 (1980) 90 NLRB Y Fleetwood Trailer Co 389 U S 375 378 (1967) 527 and statements was unpersuasive and not credible Here again, his testimony was stilted and appeared to be an at tempt to recast his statements and actions For example Kobialka testified he said to the picketers What are you doing here? This activity was supposed to have stopped, while allegedly holding a handful of nails, rather than, What are you doing here? There s no job for you here, as testified by Joyce Amero I find from the credible testimony of Amero and the other employ ees that Kobialka began the exchange with the pickets by telling them there were no jobs for them any longer and they should find jobs somewhere else sentiments similar to those expressed to strikers by Michael Mineo the previous day I find Kobialka s statements violated Section 8(a)(1) While he may have been provoked by finding nails in the driveway, he had no knowledge as to who put them there and it did not justify his threat to terminate the employment rights of everyone on the picket line I find that after Kobialka made his initial threat to all the pickets, Amero responded that she wanted to watch him go down the tubes with the strikers, which resulted in his statements directed specifi cally to Amero that she would never work in the plant again and that after him, his son would run the plant and would keep her out About the same time he observed Josephine Jacobs laughing and told her that she would never work for the Respondent again I find that neither Amero nor Jacobs was guilty of conduct that day which was so egregious as to terminate their employment rights or to justify Kobialka s threats to do so I find that these threats also violated Section 8(a)(1) I find there is insufficient evidence that Mineo s re marks about moving machinery out constituted a threat to close the plant 9 1 It is not clear from the circum stances what he was referring to or what he meant by his remarks I also find that the evidence is insufficient to establish that Kobialka told Janet Miller she would never get back in the plant in the face of Kobialka s denial and the failure of Miller to corroborate the unpersuasive tes timony of Carmen Glidden about this incident I shall recommend that both of these allegations be dismissed 21 Alleged condonation of violence against strikers On 14 October, the date of the election conducted by the Board, a trailer truck travelling at an excessive rate of speed drove into the truck entrance of the Respond ent s plant narrowly missing several pickets who were standing in front of the driveway and who had to jump out of the way The truck went off the edge of the driveway and while backing up at the direction of a po liceman on duty there damaged the car of one of the strikers which was parked across the street After park ing the truck across the street from the plant, the driver got out and was talking with the policeman The truck did not belong to and the driver was not employed by the Respondent Edith Brown, who was injured while trying to get out of the way of the truck testified that 9 i I assume that Mineo s remarks are the basis for the allegation in par 8(1)(2) of the consolidated complaint that on 27 October Kobialka and/or Mineo told sinking employees the Respondent would close the doors etc 528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD after the incident she saw Kobialka, Mineo and Medina walking up the other side of the street to where the truck was parked and that Kobialka was laughing Janet Miller testified that she was standing at the edge of the truck entrance driveway when the truck came through and had to jump out the way Thereafter , she saw Ko bialka walk up the driveway and when he got within 2 feet of where the pickets were standing he looked toward the truckdnver , winked his eye, and made a ges ture of approval with his hand , making a circle with his thumb and forefinger and extending his other three fin gers Kobialka then went over to the truckdriver and spoke with him Thereafter a police car arrived and the truckdriver was put inside and driven away James Lee testified that he saw the truck enter the dnveway and as it was backing out he saw Kobialka come across the grass to the street After the driver got out , Kobialka in troduced himself to the driver shook his hand and told him he could use the telephone in the office if he had any problems Kobialka testified that about 8 30 or 9 that morning he looked out of the plant and noticed some commotion on the picket line and saw a truck backing out of the truck entrance He walked up to the area where Mineo was present talking to the policeman He asked what was going on and was told that the truck had come into the entrance too fast and that the policeman was considering whether or not to arrest the driver who did not have the truck registration with him Kobialka told the driver he could use the telephone in the plant if he wanted to call someone to bring the registration to him Kobialka said that he did not give any gesture of approval to the driver and that he was not smiling when he spoke to the driver because he thought he smelled alcohol on the driver s breath and he was unhappy about the incident I found Kobialka s testimony about this incident to be the most credible as he seemed to have the best recollec tion of what had occurred The versions of the other witnesses who testified about this incident were not con sistent The only thing that could reasonably be con strued as condonation of violence on Kobialka s part was the wink and hand gesture of approval he allegedly gave the driver Although there were numerous people present at the time, only Janet Miller testified to having seen him do this According to Miller Kobialka did this while up the driveway toward her and other pickets However, Lee s testimony was that Kobialka did not come up the dnveway but cut across the grass to reach the street There is also no credible evidence to contra dict Kobialka s testimony that he did not see the truck come through the picket line and did not know what had happened until he got to where the driver and the po liceman were standing which was beyond the picket line Although Lee testified that Kobialka was standing out side the plant at the time the incident occurred he also testified that the last time he saw Kobialka outside the plant was 5 minutes before the incident I find that there is insufficient credible evidence to establish that Kobialka said or did anything on 14 October which could be con strued as indicating that the Respondent condoned or ap proved of the actions of the truckdriver who drove through the picket line in a dangerous manner I shall recommended that this allegation be dismissed 22 Failure to recall Donald Stewart in April 1984 In this and the following section , the violations alleged depend on whether or not the strike was an unfair labor strike I have found that it was, however , in the event that conclusion is not upheld , I have made alternative findings in order to expedite a final resolution Donald Stewart had been employed by the Respondent for 10 years prior to the strike He worked as a clean up man and went to work at 3 30 p in He worked for 5 or 6 hours until the job was completed at a flat daily rate of pay If only one production line had operated during a day, Stewart did all of the clean up work himself If there had been two lines in operation , there was another person doing clean up and since July it had been Joe Ta vares who cleaned the shorter line in about an hour and a half to 2 hours a night No other employee who went on strike was regularly assigned to do clean up work Stewart signed a union authorization card on 12 Septem ber went on strike on 19 September and served on the picket line during the strike Stewart was one of the em ployees who gave the Respondent notice of his uncondi tional offer to return to work on 8 November On 14 April 1984 , the Respondent hired three new em ployees to do clean up work Joe Tavares ceased doing clean up at that time and these new employees perform the same duties that Stewart and Tavares had done and are paid a flat daily rate regardless of how long it takes them to complete the clean up in a satisfactory manner The Respondents explanation of why Stewart was not recalled to his clean up job when these new employees were hired was that it was because of misconduct on the picket line during the strike As is discussed below I do not find Donald Stewart engaged in misconduct on the picket line which was so improper as to terminate his employment rights I have found that the Respondent s failure to immediately and fully reinstate the unfair labor practice strikers on their unconditional offer to return to work violated Section 8(a)(3) and ( 1) of the Act In the event that it is determined that the strike was not an unfair labor practice strike the Respondent violated Sec tion 8(a)(3) and ( 1) when on 14 April 1984 it hired re placement workers to do clean up rather than reinstating Stewart 92 23 Failure to recall senior cutters On 15 May 1984 the Respondent offered Eduardo Ta vares the opportunity to return to work as a cutter which he declined No one else was offered the position Although at that time Tavares was the senior male cutter awaiting reinstatement there were female cutters who had not been reinstated that had more seniority than he did The General Counsel contends that this action by the Respondent violated Section 8(a)(3) of the Act 92 NLRB Y Fleetwood Trailer Co supra Laidlaw Corp 171 NLRB 1366 1368 ( 1968) enfd 414 F 2d 99 (7th Cir 1969) cert denied 397 U S 920(1970) MASSACHUSETTS COASTAL SEAFOODS 529 Michael Kobialka testified that Tavares was offered re instatement after Brian Sierra an employee hired as a re placement during the strike suffered an injury and was unable to work Sierra had been a cutter and, in addition, had worked opening blocks, on some days as much as 30 to 35 percent of the time This was a function which Tavares had also performed Block opening involves lift ing boxes containing three or four blocks of fish, weigh ing up to 66 pounds onto a table and preparing the blocks for cutting Block opening is not generally done by female employees because of the strength required to lift the boxes of blocks, although female employees have sometimes opened blocks after a box has been put on the table Kobialka did not consider any of the unreinstated female cutters who were senior to Tavares for this posi tion because of the fact that block opening was part of the job No one was offered the job after Tavares re fused it because there was a decline in orders at about that time and there was a layoff a week or so later I find Kobialka s testimony concerning this incident to be credible and to establish that the Respondent had le gitimate business reasons for its actions Although before the strike the Respondent employed several female cut ters, as a rule, they were not required to open blocks The employee whose injury created the vacancy Tavares was offered reinstatement to fill was doing block opening as well as cutting a significant percentage of his time It is questionable that had the Respondent offered the job to a female cutter, who had not previously been required to perform this strenuous function, it would have consti tuted an offer of substantially equivalent employment Aside from this, there is no indication that the Respond ent was motivated by other than legitimate business rea sons in offering the job to Tavares Although one of the female cutters with more seniority than Tavares was Lu cinda Symonds, who the Respondent contends is dis qualified for reinstatement because of misconduct during the strike, Kobialka credibly testified that he did not con sider Symonds or any female cutter for the job because of the strength required to do block opening Tavares had participated in the strike from the outset had reject ed his brothers and Duarte Medina s urging to abandon the strike and return to work, and had previously been the target of Kobialka s unlawful threat of job loss I find no basis to conclude that the Respondents offer of the job to Tavares rather than to Symonds was unlawful I shall recommend that this allegation be dismissed 24 Allegations concerning Dons Rowe Dons Rowe was a striker who was reinstated by the Respondent on 16 March 1984 The evidence establishes that on 11 July 1984 she arrived at the plant approxi mately 90 minutes late and began working as a packer A short time later she was summoned by Paul Harrington to Kobialka s office where Kobialka and Corbett were present and she was asked to explain why she was late Rowe told them that she had had a personal problem with a family member that morning and could not leave home until she had straightened it out Kobialka asked Rowe if she had called in and she said that she asked a coworker to give Paul Harrington a message Harrington acknowledged that he received Rowe's message Ko bialka told Rowe that because of the problems the Re spondent was having its policy was for employees who were going to be late to personally telephone Kobialka or Harrington and say so He also told Rowe that if she was going to be more than one hour late not to bother coming in and if she was to be more than 5 minutes late, to call in and they would let her know whether to come in or not He said that this was now the Company s policy and it applied not just to her, but to everyone He told Rowe that since she had already punched in that day she could stay A notation in Rowe s personnel file indicates that she was given an official warning for coming in late on 11 July On 20 July 1984, Rowe learned at 6 a in that the employee she was to ride with was ill and would not be going to work Rowe called her daughter, who had Rowe s car and asked her to bring it to her The daughter, who was ill that morning herself, did not arrive with the car until 6 55 a in Realiz ing she was going to be late, Rowe called Paul Harting ton, told him what had happened said she would be about 15 minutes late, and asked him if she should come into work Harrington replied, no, I don t thing [sic] so Rowe again asked Harrington if she should come in and he said no, so Rowe did not go to work that day The General Counsel contends that Rowe was given the warning on 11 July and was told not to come to work on 20 July pursuant to the tardiness policy announced by Kobialka on 14 September 1983 and that in each instance the Respondent violated Section 8(a)(3) and (1) of the Act Analysis and Conclusions Although I have found that the tardiness policy the Respondent announced and enforced against Carmen Glidden on 14 September 1983 was an unlawful act of retaliation against its employees because of their union activity, it does not appear that that tardiness rule which provided that anyone who was late would be sent home was in effect or being enforced in July 1984 If it were, Rowe would have been sent home on 11 July instead of being allowed to remain at work Accordingly, I find that the Respondent s actions regarding Rowe s tardiness on 11 and 20 July 1984 were not based on that unlawful policy Kobialka testified that on 11 July he was aware from testimony at the trial in this matter that Rowe had signed a union authorization card and had attended union meet ings and he was obviously aware of the fact that she had participated in the strike and had been reinstated pursu ant to her offer to return to work There is ample evi dence of the Respondent's union animus and that it had committed unfair labor practices both during the Union's organizing campaign and after the election conducted by the Board I conclude that the General Counsel made out a puma facie case under Wright Line supra, suffi cient to support the inference that protected conduct was a motivating factor in the Respondents decision to give Rowe an official warning for tardiness on 11 July I also find that the Respondent has established that it would have taken the same action even in the absence of pro tected conduct Rowe was admittedly an hour and a half 530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD late that day and the Respondent had a legitimate inter est in seeing that its employees reported for work on time and that its production line positions were filled so that it could operate efficiently Kobialka, who gave Rowe the warning explained that he happened to see her arriving late that day, that he felt she was excessive ly late, and that he told her he wanted her to get to work on time and to call in if she was going to be late Unlike the situation involving Glidden, where a normally punctual employee was sent home for arriving late one time, without any warning, and pursuant to a new policy which was instituted to penalize and intimidate employ ees from engaging in union activity Rowe was simply told that coming in over an hour late was unacceptable and warned that in the future excessive tardiness could result in her not being allowed to work Under the cir cumstances the Respondents action was not unreason able, its reasons for so acting were fully explained and convinced me that it would have taken the same action even in the absence of protected activities on the part of Rowe and other employees I shall recommend that this allegation be dismissed For the same reasons stated above, I find that the Gen eral Counsel has made out a prima facie case under Wright Line, supra, that protected activity was a motivat ing factor in the Respondents disciplining of Rowe by not permitting her to work on 20 July Unlike the case of the warning on 11 July I find that the Respondent has not borne the burden of establishing that it would have taken this disciplinary action against Rowe regardless of protected activity on the part of its employees On the contrary it has presented no evidence whatsoever to ex plain or justify its action on 20 July Kobialka testified that Paul Harnngton was solely responsible for the deci sion to not permit Rowe to come to work that day Har rington was not called as a witness and there is nothing in the record to establish why Rowe was not allowed to come to work Even under the policy outlined by Ko bialka to Rowe on 11 July, she was not precluded from coming to work because she was not going to be more than an hour late Rowe testified that on 23 July the next workday, she observed two workers hired as re placements during the strike, Kevin Leary and Debbie Sierra, arrive at work approximately 15 to 20 minutes late and both worked the rest of the day There was no explanation as to why these employees were allowed to come to work late but Rowe was not The Respondent apparently made a determination on a case by case basis as to how it would treat employees who called in to say they would be late In the 20 July incident, Rowe called in and explained that she would be no more than 15 min utes late for reasons which were beyond her control and was told to stay home However, one morning during the first week of September 1984 after a charge concern ing the incidents on 11 and 20 July had been filed and the consolidated complaint had been amended to allege those two incidents as violations of the Act Rowe called in at 7 20 a m and told Paul Harnngton that she would be at least another 20 to 25 minutes late because she had overslept Harnngton told her to come to work The record contains no evidence of the criteria if any, the Respondent used in determining whether or not tardy employees would be permitted to work Its inconsistent actions with respect to the replacement workers and even Rowe herself, have not been explained The Re spondent had previously used tardiness as an excuse for retaliating against its employees for engaging in union ac tivity Considering all of these circumstances and, pri marily, the lack of any explanation about why Rowe was disciplined on 20 July I find that the Respondent has not met its burden under Wright Line of demonstrating that the same action would have taken place in the absence of the protected conduct 93 I find that the Respondent s disciplinary action against Rowe on 20 July violated Sec tion 8(a)(3) and (1) of the Act D Reinstatement Rights of Certain Strikers The Respondent asserted as an affirmative defense that certain employees who participated in the strike have forfeited their rights to reinstatement and backpay be cause of their misconduct during the strike Except with respect to Donald Stewart, there is nothing in the record that establishes that the Respondent made an actual deci sion to refuse to reinstate the employees in question or specifies the reasons why reinstatement is unwarranted Accordingly, in deciding whether these employees are disqualified from reinstatement, I have considered only those incidents which are designated in the Respondent s brief with sufficient specificity to enable me to identify the evidence relating thereto In Clear Pine Mouldings 94 the Board adopted an ob jective test for determining whether actions by strikers are such as to justify an employers refusal to reinstate them Reinstatement may be denied where under the ex isting circumstances, the misconduct is such that it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act 95 Whether this standard has been met must be determined by evalu ating the factual circumstances on a case by case basis 96 1 Betty Favazza During the second week of the strike the Respondent used a bus to transport certain of its nonstriking and re placement workers to and from its plant On the after noon of 27 September as the bus was leaving the plant premises in a small caravan of vehicles containing other employees and company officials it was pelted with a barrage of fruits vegetables and eggs while at the same time picketers were banging on the sides of the bus The Respondent introduced into evidence a photograph taken from inside the bus showing striker Betty Favazza stand ing on the roadway with her left arm drawn back in a throwing position and holding what appears to be a tomato in her hand James Corbett, who was aboard the bus and took the photograph of Favazza, testified that he saw her throw the tomato at the bus Favazza did not testify concerning this incident 93 251 NLRB at 1089 94 268 NLRB 1044 (1984) ea Id at 1046 96 Catalytic Inc 275 NLRB 97 (1985) MASSACHUSETTS COASTAL SEAFOODS 531 The Respondent contends that Favazza s action in throwing the tomato at the bus was misconduct sufficient to justify its refusal to reinstate her The General Coun sel contends that Favazza s action caused no real threat of harm to the passengers did no damage to the bus and was not sufficiently serious to justify denial of reinstate ment The testimony of several witnesses concerning the bus pelting incident on 27 September establishes that a substantial number of strikers were present and were pre pared in advance to pelt the bus with vegetable matter when it exited the plant premises 97 Corbett's uncontra dicted testimony establishes that Favazza did throw at least one tomato at the bus Unlike the situation involved in Giddings & Lewis Inc ,98 relied on by the General Counsel, Favazza s action was not of a purely impulsive and trivial nature, but was that of a willing participant in a preplanned and substantial effort to harass nonstrik ing employees I find that Favazza s action in throwing a tomato at the bus, under the circumstances presented here, was an effort to coerce and intimidate other em ployees and was sufficiently serious to disqualify her from reinstatement 99 2 Lucinda Symonds The Respondent contends that Lucinda Symonds is not entitled to reinstatement because of the following acts of misconduct during the strike 1 She made a telephone call to the home of em ployee Barbara Murphy and in Murphy s absence told her teenaged daughter, Ken that if Murphy and another daughter who was an employee Kim Grover, went into work they re dead 2 She kicked the car of nonstnker Billy McDon aid as he attempted to enter the plant 3 She banged on a car in which replacement worker Roger Wilson and employee Barbara Hol land were attempting to exit the plant and threat ened to get Holland for crossing the picket line with Wilson The General Counsel contends that the evidence does not establish that Symonds made the telephoned threat to Ken Murphy and even if she did, under the circum stances it was not likely to coerce or intimidate anyone I do not agree with either contention Ken Murphy was 16 years old when she testified and was an impressive witness She testified that on a Monday during the strike she answered the telephone and the caller asked if her mother was home When Ken said she was not the caller told her to tell Kim and your mother that if they show up for work, they re dead She told her mother and sister about the call that same day She said that she recognized the voice of the caller as that of Lucinda Sy monds with whom she was acquainted and to whom she had spoken by telephone before100 and that she was positive that it was Symonds that spoke to her Symonds testified that she did not have a telephone conversation with Ken Murphy during the strike and did not tell her that if her mother and sister went to work they re dead ' Based on their demeanor while testifying I find that Ken Murphy did receive the telephone call she tes tified to and did recognize the voice of the caller whom she identified as Symonds 101 I did not believe Symonds' denial I also find that a death threat made to a teenaged child directed against her mother and sister if they con tmue to exercise their Section 7 rights to refrain from striking goes beyond the bounds of legitimate strike ac tivity and is a serious act of misconduct which would reasonably tend to coerce and intimidate nonstriking em ployees The facts that there was a relationship by mar nage between Symonds daughter and Barbara Murphy s son, that Symonds daughter provided daycare for one of Murphy's grandchildren, that Kim Grover was unsure of when the telephone call occurred, and that Murphy and Grover continued to work during the strike do not cast significant doubt on Ken Murphy's testimony or render the death threat any less coercive I find that, under the standard of Clear Pine Mouldings, Symonds is not enti tled to reinstatement because of this incident James Corbett testified that on the afternoon of 20 or 21 September as employees were exiting the plant he saw Lucinda Symonds kick the right rear door or quar ter panel of nonstriker Billy McDonald s car There was no evidence of any damage to McDonald s car and Sy monds denied kicking the car In this instance, I credit Corbett s testimony, but find that this was not a serious act of misconduct which would warrant denying rein statement On 28 September employee Barbara Holland came to the plant with her brother Roger Wilson, who was ap plying for a job As they were exiting the plant drive way they encountered a group of pickets including Sy monds Michael Kobialka testified that Symonds banged on the passenger side windows with a stick or with her hand and said, We re going to get you for this Bar bara James Corbett testified that he observed Symonds banging on the windows of the car Holland testified that she heard a lot of yelling and there was banging on the car but she did not attribute it to Symonds Symonds testified that she spoke to Holland through an open window and called her a traitor, but did not strike the car with her hand or an object Photographs of the inci dent show Symonds with no object in her hands I find there is insufficient credible evidence to establish that Symonds did or said anything during this incident to warrant not being reinstated 94 Despite this finding of preparation by the strikers to pelt the bus I do not find as the Respondent contends that the preparations included a plan whereby Donald Stewart would halt the caravan by obstructing the lead vehicle 98 240 NLRB 441 450 (1979) 99 Cf Harry Hoffman & Son Printing 278 NLRB 671 (1986) 100 Ken Murphy s brother is married to Symonds daughter For a time Symonds daughter lived in the same house as the Murphys and Sy monds had called the Murphy home in order to speak to her daughter 101 Symonds testified that she spoke to Ken a number of times when she called for her daughter and that she thought that Ken would recog nize her voice 532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Carmen Glidden The Respondent contends that Carmen Glidden should be denied reinstatement because of the following acts of misconduct during the strike 1 She was observed kicking nails and a piece of cardboard containing nails under the tires of a truck 2 She was observed standing up nails while on the picket line 3 She banged on the car of Roger Wilson and verbally threatened Barbara Holland as they exited the plant driveway on 28 September James Corbett testified on direct examination that on the second or third day of the strike he believed he saw Carmen Glidden kick nails under the tires of a truck entering the truck entrance driveway, as he saw her `standing in front of the dual rear wheels kicking objects under the tire On cross examination, Corbett said that he was 100 feet from where Glidden was standing in the midst of 15 to 20 people and that he did not actually see the nails he claimed she was kicking The Respondent has not specified any other testimony in support of this alleged misconduct and I did not find any in the volumi nous record Glidden acknowledged that she had seen nails on the driveways, but denied having put them there or ever having kicked them under the tires of vehicles I find there is insufficient evidence to establish that Glid den ever kicked nails or a cardboard containing nails under the tires of a vehicle I have also found nothing in the record to establish that Glidden stood nails up while on the picket line Kobialka testified originally that he saw Glidden and Symonds bang on the window of Roger Wilson s car as it was exiting the driveway on 28 September and heard both say we're going to get you for this' to Barbara Holland On cross examination he referred only to Sy monds banging on the window and said the only person he could recall saying anything to Holland was Pearl Cabral Holland, whom Glidden allegedly threatened did not mention Glidden in her description of the mci dent Glidden credibly denied having made threats to Holland I find there is insufficient evidence to establish that Glidden made a threat to Holland or banged on the car I find that the Respondent has not established that Glidden engaged in serious misconduct on the picket line or any other basis on which she should be denied rein statement 4 Josephine Jacobs The Respondent contends that Josephine Jacobs should be denied reinstatement because on 21 September she physically assaulted and restrained a representative from Brodie Equipment Company when he attempted to cross the picket line to check some rental equipment in the plant According to Kobialka s direct testimony the Brodie man was unable to enter the driveway with his van and parked it across the street He walked over to the truck entrance and talked to the picketers there He then walked down to the other driveway and Kobialka went to meet him The man identified himself and why he was there and asked a policeman to clear a path through the picket line At that point, Josephine Jacobs ran up to the man, shoved him, and put her hands up and said, you can t cross this line Kobialka s cross ex animation testimony about this incident, given about a month later, was significantly different He said that he was 8 to 10 feet behind Jacobs and did not actually see her touch the man with her hands, but saw him abruptly step back 2 to 3 feet At that point the policeman jumped in and grabbed ' Jacobs and told her if she did that again she would be arrested James Corbett testi fled that he observed the same incident from the drive way near the front steps of the plant, about 40 feet away, and, at the time, Kobialka was standing next to him Al though he said there were 10 to 15 picketers present, he could remember only Jacobs He saw the Brodie man try to go around the picketers on the right side of the drive way Jacobs broke away from the others, put her arms out, and told the man you cant cross our picket line' As the man started to walk down the driveway, she lowered her hands and pushed him in the chest ' A po liceman then said to her, you can t do that, don t do it again Jacobs appeared to have no recollection of this par ticular incident, but she testified that she had on occasion put her arms out and asked people to please honor the picket line and not enter the plant She said she did not remember pushing anyone or touching anyone Ellen MacDonald testified that she was present on the picket line during the first week of the strike and observed Jacobs, who was 5 or 6 feet away speak to a man who was attempting to cross the picket line Jacobs stood at the top of the driveway outside what they observed as the Company's property line with her back to the build ing and her arms extending out from her sides, she told the man they were on strike and asked him to not cross the picket line The man replied that he had business inside The conversation lasted 30 to 45 seconds and the man walked around Jacobs and on into the plant She did not see Jacobs push the man or touch him She did not recall a policeman being present or saying anything to Jacobs Hazel Ellis testified that she was present on the picket line when the Brodie man crossed the line, that she saw Jacobs put her arms out and heard her ask the man not to cross the picket line As she did so, she walked backwards a few steps as the man walked for ward Jacobs did not push or touch the man and she did not see a policeman do anything or hear him say any thing to Jacobs Neither the Brodie man nor the policeman testified I found MacDonald and Ellis to be impressive and credi ble witnesses and I believe their description of the mci dent Jacobs appeared to have no recollection of it and seemed genuinely bewildered that she was accused of as sulting someone on the picket line I did not believe Cor bett or Kobialka concerning this incident It appears they took an actual event that was relatively innocuous and attempted to fabricate it into a basis for denying Jacobs MASSACHUSETTS COASTAL SEAFOODS reinstatement, 102 thus attempting to make good on Ko bialka's picket line threat to Jacobs that she would never work there again I find nothing in this incident as de scribed by MacDonald and Ellis which amounted to sen ous misconduct Jacobs did not push or touch the man or order him around It appears she extended her arms out ward as she asked him to honor the picket line, but that the man had no trouble walking around her when he chose to do so There is no evidence that the Brodie man was intimidated or physically impeded or that he made any complaint about what occurred It defies credulity to suggest that Jacobs ran up and began physically assault ing a total stranger while a policeman was standing a few feet away I find the evidence fails to establish that Josephine Jacobs engaged in serious misconduct on the picket line that would justify denying her reinstatement 5 Robert Sheehan The Respondent contends that Robert Sheehan should be denied reinstatement because of the following acts of misconduct during the strike 1 He was observed in the vicinity of nails on many occasions and was seen standing up nails on the picket line 2 He caused an undetermined amount of damage to the vehicle of nonstriking employee Paula Viator 3 He threatened to cause damage to Frank Ges naldo s car and implied that he was responsible for damage to Gesnaldo's pickup truck 4 He threatened to murder Michael Kobialka 5 He threatened to cause body harm to Walter White The basis for the allegation that Sheehan was seen standing up nails is apparently the testimony of Kobialka and Corbett Kobialka testified that he once saw Sheehan attempting to stand nails up with his feet On cross exam [nation, he testified that he had not actually seen Sheehan do this but from 20 to 40 yards away had observed Sheehan standing among many picketers moving his foot in this peculiar manner which appeared to Ko bialka as though he were attempting to stand up nails However, Kobiakla did not see a nail at his foot and could not recall if there were any nails on the ground that day Corbett testified tht he too had seen Sheehan move his shoe in a sidewards direction and frontwards trying to what appeared to me to stand up a nail Al though Corbett was within 7 or 8 feet of Sheehan he did not see him stand up any nails Corbett said he found nails standing up in the area and that there were other picketers in the same area Sheehan denied that he had stood up any nails Donald Stewart, whom Corbett iden tified as being with Sheehan when he saw him moving his shoe, said that he did not see anyone stand nails up I find there is insufficient evidence to establish that Shee 102 Each of the three times Kobialka described the incident it got more violent He first said that as the confrontation ended he may have asked the policeman to please let him come in In his final ver Sion the policeman had to jump in and grab Jacobs and threaten her with arrest in order to get the Brodie man across the picket line 533 han stood up nails while on the picket line There was evidence that, on occasions, there were nails on the ground near the picket line when Sheehan was present, but none that he put there This does not establish mis conduct on Sheehan's part 103 Paula Viator testified that one morning after the elec tion, as she drove through the picket line in her hus band s truck, Donald Stewart, who was standing to the left with three or four picketers approached and said something to her At that time she heard a scraping sound to her right where only Robert Sheehan was standing After she parked the truck she saw a scrape about 1 foot long and one eighth of an inch wide on the lower right side of the truck which had not been there before Sheehan denied that he had ever scraped a vehi cle as it drove through the picket line There is no rea sonable basis on which to conclude that Sheehan did scratch Viator s vehicle No one testified to seeing him do it Sheehan's credible denial was substantially more probative than the Respondents circumstantial evidence that Sheehan was responsible for the scrape Viator said it was her husband's truck and it was dark at the time she drove in While she said the scrape was not there before, it is not clear when she had last looked at the side of the truck Under the circumstances, I am unable to conclude that Sheehan did, in fact, damage Viator s vehicle Frank Gesnaldo testified that one morning during the first week of the strike he discovered that his pickup truck had been vandalized Three of the tires were flat and varnish had been poured on the hood, fender, and grille He drove to work that morning in his car with employee Jean Gogswell As they were driving through a picket line of a total of four people Sheehan standing 20 to 30 feet away, asked him how he liked the job they did on his pickup and said his car would be next Ko bialka testified that on the morning of 23 September, as Gesnaldo drove his truck by approximately 20 picketers he heard someone say I heard they got you last night Frankie, we 11 get you again, ' He observed spray paint on the windshield and sides of Gesnaldo s vehicle Ges naldo told him that that two of his tires had been slashed during the night According to Kobialka it was a male voice that made the comments to Gesnaldo and he be lieved it was Sheehan or Donald Stewart but he did not see who the speaker was Sheehan denied ever making any comments to Gesnaldo as he drove through the picket line and specifically denied saying anything like, I heard they got you last night I consider the testimony of Gesnaldo and Kobialka to be another attempt to fabricate an incident of misconduct in order to provide a basis for refusing to reinstate some one Kobialka did not want back It seems obvious that if Sheehan had from 20 to 30 feet away shouted to Ges naldo early in the morning, within at most, a few hours of the vandalism to Gesnaldo s truck, that he knew about it and that Gesnaldo s car would be next, Gesnaldo would have mentioned this to the police when he report ed the incident that morning There is no evidence that 103 Harvey Engineering Corp 270 NLRB 1290 (1984) 534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he did or that any action was taken against Sheehan on the basis of this implied claim of participation or com plicity in the vandalism Gogswell, who was in Gesnal do's vehicle at the time and would presumably have heard Sheehan s statement, was not called to corroborate Gesnaldo s testimony Instead, the Respondent used Ko bialka, who testified to hearing a male voice he thought was Sheehan s or, perhaps, Stewart s talking about the vandalism, but he really did not know whose it was Notwithstanding the fact that Gesnaldo testified that his pickup truck could not be driven that morning and he drove to work in his undamaged car, Kobialka testified to seeing Gesnaldo drive his truck through the picket line, complete with spray paint on the windshield and sides 104 I find there is no credible evidence to establish that Sheehan made a threat to damage Gesnaldo's car or implied that he was responsible for vandalizing Gesnal do s pickup truck Kobialka testified that on an afternoon during the week of the election, he and Corbett were sitting in his car near the picket line waiting for a truck to come in He heard Janet Miller make a remark about his sitting comfortably in his fancy car and then he heard Robert Sheehan say, if it wasn't a crime, I'd go over there and murder him right now Sheehan said this to either Betty Favazza or Josephine Jacobs Corbett testified to hearing Sheehan say, if it warn t a crime, I'd go over there and murder him right now Sheehan said this to either Betty Favazza or Josephine Jacobs Corbett testified to hearing Sheehan say, `If it wasn't a crime, I d murder him right here to Clara Curtis and that Sheehan glanced or nodded toward Kobialka when he said it Sheehan denied making the remarks attributed to him by Kobialka and Corbett and said that during the week of the elec tion he recalled being on the picket line only in the morning because he had a job that week Janet Miller denied saying anything to Kobialka about sitting in his fancy car or hearing Sheehan say ` if it wasn't a crime I d kill him Clara Curtis denied hearing Sheehan make these remarks to Kobialka or ever hearing Sheehan threaten anyone Josephine Jacobs also denied hearing Sheehan make these remarks I have found that Kobialka and Corbett have fabricated or distorted other alleged in cidents to serve the Respondent's purposes and I believe that is this case here I credit Sheehan s testimony deny ing that he ever made a threat to murder Kobialka 105 Nonstriker Walter White testified that on a Saturday morning in October while he was picking up nails in the driveway of the truck entrance, he saw Sheehan and Donald Stewart picketing One of them said to him 104 Gesnaldo testified that his pickup truck had varnish on the hood fender and grille There is no question but that Kobialka was purporting to describe the same picket line incident as Gesnaldo occurring on Friday 23 September the morning after the vehicles of Gesnaldo and Carl Silva had been vandalized ios There is nothing to indicate that Sheehan made any threatening gestures toward Kobialka or that Kobialka was intimidated by Sheehan While a threat may still be serious misconduct even the absence of such gestures Clear Pine Mouldings supra under the circumstances presented here it suggests to me that Kobialka and Corbett may well have misun derstood or misstated remarks which Sheehan did not intend and those to whom they were addressed did not consider to be a threat to harm Kobialka there s no nails out there" and, as he reached the top of the driveway, Sheehan said, When this is all over, I in going to kill you " White responded, You and what army?" and Sheehan said he would do it by himself with his bare hands Sheehan denied threatening to kill White and de scribed an incident involving himself, White, and Stewart on the picket line on a weekend morning Sheehan testi feed he was sitting in his van with Stewart when White approached them, made an obscene gesture towards them, and taunted them, saying, that he was working and getting a paycheck White also told Sheehan he was going to beat him up Sheehan invited White up to the street because he was not allowed on the company prop erty and said if he came up to the street they would pick him up with a shovel White then returned to the plant Stewart testified that White walked towards them, gave them the finger, and slammed his fist into his hand Sheehan responded "if you want to try an old man, come up here " White then returned to the plant Based on his demeanor while testifying and the fact that his claim that Sheehan, without provocation and with a policeman sitting nearby, threatened to kill him was implausible at best, I do not credit White's testimony concerning this alleged threat There was hostility be tween White and Sheehan dating back before the strike According to Stewart, the two had more than once traded insults on the picket line I find, based on the credited testimony of Stewart, that White began this ex change with provocative gestures and Sheehan respond ed in kind There was no indication that White and Shee han did anything more than exchange unpleasantries during this incident or that either was seriously seeking to engage the other in an altercation I find that the evi dence concerning this and the other incidents cited by the Respondent does not establish that Sheehan engaged in serious misconduct during the strike which would bus tify denying him reinstatement 6 Evelyn "Pearl" Cabral The Respondent contends that Evelyn Cabral should be denied reinstatement because of the following acts of misconduct during the strike 1 She threatened to burn Frank Gesnaldo s boat 2 She threatened to beat up her sister employee Barbara Holland when Holland crossed the picket line Frank Gesnaldo testified that during the strike while he was near the loading platform and Sheehan, Stewart, and Pearl Cabral were picketing near the driveway en trance with some other women, Cabral stated, "we re going to burn your boat next ' Gesnaldo did not know what the `next meant as no one had said anything to him about burning anything else he owned but he did say that he owned a boat Cabral credibly denied that she never threatened to burn Gesnaldo's boat, that she knew that he had a boat or that she knew where he lived Both Sheehan and Stewart whom Gesnaldo identified as being present when the threat was made, denied ever hearing Cabral MASSACHUSETTS COASTAL SEAFOODS threaten to burn Gesnaldo s boat I do not credit Gesnal do s testimony since he appeared to have no personal knowledge that it was, in fact, Cabral who made such a threat In an affidavit he gave the Board 4 days after the incident he said that the threat was made by a woman who he did not identify I did not believe his testimony that he did not identify her because he didn t want to implicate anybody His testimony that it was Pearl Cabral who made the threat appeared to be based on what other people told him after he gave the affidavit to the Board He did not testify to seeing Cabral make the threat or that he recognized her voice There were other women present on the picket line when the threat was made I find that the evidence does not establish that Cabral threatened to burn Gesnaldo s boat Cabral is also alleged to have told her sister Barbara Holland that she would beat her up when Holland crossed the picket line in the car of Roger Wilson the brother of both Holland and Cabral The evidence estab lishes that Holland came to the plant during the second week of the strike with Wilson who was applying for a job The car was surrounded by picketers both when it entered and exited the driveway to the plant and it was stopped for a few minutes each time until the police could clear a path Holland testified that she could not recall anything that was said when she was passing through the picket line, but that while she was in the plant for about 20 minutes she heard Cabral yelling, you re hiring a dummy, he can t read or write, referring to Wilson, and also, 111 get you Barbara you 11 be sorry 111 get you ' Kobialka testified that, as the car was exiting, he heard Cabral tell Holland that she would get her and beat her up Corbett also testified that as the car was leaving he saw Cabral throw a cup of coffee on the windshield and that she was slapping her hands on the car and had to be restrained by a policeman He heard her angrily scream at Holland that she was going to beat the shit out of her Cabral testified that she was very upset and crying when she learned that her brother and sister had entered the plant She said that while they were inside she yelled in a loud voice that Kobialka should not hire Wilson because he could not read or write She said that when they left the plant she yelled and screamed at them speaking mainly to her brother and telling him he was taking food away from her children She denied tell ing Holland that she would beat the shit out of her, that she ever struck the car or that she had to be re strained by a policeman Lucinda Symonds, Carmen Glidden and Karen Anderson all testified that they were present and that they did not hear Cabral threaten to beat the shit' out of Holland I do not credit the testimony of Kobialka and Corbett concerning Cabral's alleged threat to beat the shit out of Holland when she was leaving the plant Cabral credi bly denied it and three other witnesses supported her denial I found Holland to be a credible witness and be lieve that had she been the target of such a threat, she would have remembered it She was in a better position than either Kobialka or Corbett to hear what her sister was saying to her I also credit Holland s testimony that 535 while she was in the plant in Kobialka s office she heard Cabral say she would get her ' and that she would be sorry Although the office did not face the street Hol land remembered that the window was open and Cabral testified that she believed that they could have heard her yelling Holland testified that Cabral never took any action to physically harm her and that she and Cabral had had angry words before, saying yes, I guess sisters do do that thing, you know' There was no evidence that Holland, who had originally participated in the stnke, but following this incident, returned to work and continued to do, was intimidated by her sisters threat to get' her While recognizing that under Clear Pine Mouldings a verbal threat does not have to be accompanied by physi cal gestures and that a threat to get someone need not include a specific threat of physical harm in order to amount to serious misconduct, 108 I find under these cir cumstances, that Cabral s remarks to Holland did not constitute serious misconduct which would reasonably tend to coerce or intimidate Holland or other employees The circumstances here are unique Cabral was obvious ly emotionally distraught at having her sister return to work and bring along their brother to apply for a job as a strike replacement Just as the surrounding circum stances can lend credibility to and increase the gravity of verbal conduct,107 they also can have the opposite effect Here, the close familial relationship between Cabral and Holland tends to mitigate any coercive aspect of Cabral s statements that she would get Holland and that she would be sorry Unlike a situation when am biguous statements are made by strangers or unrelated coworkers and suggest the possibility of bodily harm, be tween close family members such statements are more likely to suggest a change or a diminution in the quality of their relationship than a threat of physical harm That appears to be exactly what occurred between Cabral and Holland While no physical harm resulted, there was an estrangement between them I find that the evidence does not establish that Evelyn Cabral engaged in serious misconduct sufficient to forfeit her rights to reinstate ment by the Respondent 7 Donald Stewart The Respondent contends that Donald Stewart should be denied reinstatement because of the following acts of misconduct during the strike 1 He threw nails at the entrances to the plant and was observed in the presence of nails on many occasions 2 He threatened to knock Frank Gesnaldo s teeth out and on more than one occasion he spat at the vehicle Gesnaldo was driving 3 He kicked the car of nonstriker Kim Grover 4 He deliberately impeded the passage of Kobial ka's car which enabled the strikers to pelt a bus car 106 See Georgia Kraft Co 275 NLRB 636 (1985) 107 Clear Pine Mouldings supra at 1046 536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rying nonstrikers with debris when it was forced to stop Frank Gesnaldo testified that 2 or 3 weeks after the strike started he observed Donald Stewart throw a hand ful of nails in the driveway by the office Gesnaldo said he was 50 feet away when Stewart threw the nails and he later went up and retrieved them Stewart denied throwing nails in the driveway Even apart from his denial, I find there is no credible evidence that Stewart threw any nails because I did not believe Gesnaldo's tes timony that he saw Stewart do so This is based on his demeanor while testifying and the fact that Kobialka s testimony made it clear he was infuriated by the fact that nails were being thrown in the driveways and frustrated by the fact that he could not find out who was doing it One morning on the picket line after he checked and found no nails, Kobialka told Stewart and Sheehan that if there were any nails found while they were there, he would have them arrested and he told a policeman on duty the same thing I have no doubt that if Kobialka has an eyewitness in Gesnaldo, who could identify Stewart or any other striker as having thrown nails in the drive way, he would have brought the information to the at tention of the police and sought to have the person ar rested There is no evidence that he ever did so Further, Kobialka testified that while he strongly suspected that Stewart was responsible for nails in the driveways he never saw Stewart throw any He did not say that Ges naldo had claimed to have seen Stewart do so even though Stewart was someone Kobialka had actually made a decision not to reinstate in April 1984 when he hired new cleanup people to do Streart s old job All this convinces me that Gesnaldo fabricated the story about seeing Stewart throw nails in the driveway The fact that Stewart was seen in the vicinity of nails does not estab lish that he was responsible for them being there Gesnaldo also testified that during the second week of the strike, as he was driving out of the driveway in a company truck Stewart swore at him spat on the truck window and told Gesnaldo that he was going to punch him out and punch the rest of his teeth out Gesnaldo said that employee Jim Sheehan was in the truck with him at the time but he did not know who else was on the picket line because he wasp t paying too much at tention Gesnaldo gave an affidavit to the Board on 27 September in which he described an incident in which he was assisting a truckdriver by lending him pliers to remove nails from a tire when Stewart threatened to punch his teeth out When asked about this affidavit on cross examination, he said there were two separate inci dents one, in which Stewart threatened him and an other in which Stewart spat on the truck window When confronted with the fact that his affidavit made no mention of Stewart spitting at him Gesnaldo said that it might have happened after he gave the affidavit Previ ously, he claimed to have a vivid recollection of the mci dent He had also testified that direct examination con cerning the incident in which he helped the driver remove nails from a truck tire without saying anything about Stewart threatening him On redirect Gesnaldo re spitting at the truck were different incidents saying I don t even think it was the same day I dtdn t remember the day Stewart testified that he had called Gesnaldo obscene names when he passed through the picket line, but denied threatening to punch his teeth out or ever spitting at the vehicle in which Gesnaldo was riding Once again, based on his demeanor while testifying and the content of his testimony I do not credit Gesnal do s claims that Stewart threatened to punch his teeth out and spat at him His testimony about the alleged inci dent, or two incidents was confused and contradictory and he never established when the alleged spitting inci dent took place Jim Sheehan, who he said was in the ve hicle at the time Stewart spat at it , was not called as a witness to corroborate Gesnaldo s story Although the Respondent argues that Stewart spat at Gesnaldo s vehi cle on more than one occasion Gesnaldo testified that there was only one incident in which Stewart spas at him I find the credible evidence fails to establish that Stewart threatened Gesnaldo or spat at a vehicle Ges naldo was driving James Corbett testified that he was present near the employees entrance on 20 or 21 September, during the first week of the strike, when a car driven by Kim Grover crossed the picket line Grover s mother and two other people were in the car The car was blocked by picketers until the police cleared a path As the car crossed the picket line he saw Donald Stewart kick the rear quarter on the passenger side of the vehicle Stewart denied kicking a vehicle dunng the first week of the strike Kim Grover testified that she did not go to work on 19 or 20 September She returned to work on 21 Sep tember, but did not drive her car as she rode with Duarte Medina and Kevin Harrington She gave no tests mony concerning Stewart kicking her car at the picket line I find that the alleged kicking incident Corbett de scribed never happened Stewart himself testified that sometime in October he once kicked at a vehicle crossing the picket line when it nearly ran over his foot The car was driven by a woman but he did not know who it was A police report offered into evidence by the Respondent indicates that, on 13 October Kim Grover told a Gloucester po liceman that Stewart had kicked her car several times The report states that the policeman observed Stewart knee the car, which was old and rusted and that no damage was done to it Stewart testified that a criminal complaint was issued against him in connection with this incident and that he was exonerated There was no testi mony or other evidence to the contrary Accepting Stewart s uncontradicted version of this incident I find that it was an understandable reflex reaction after Stew art was nearly struck by a vehicle being driven in across the picket line in a dangerous manner It did not involve serious misconduct and was too trifling to warrant con sideration as a basis for denying reinstatement 108 Kobialka testified that on the afternoon of 27 Septem ber, when he was leading a caravan of vehicles out of the company premises he was forced to stop his car by iterated that the threat to knock his teeth out and the 108 Giddings & Lewis Inc supra at 454 fn 34 MASSACHUSETTS COASTAL SEAFOODS 537 Stewart and Union Official Robert Moore who were standing in the middle of the street with their backs to him This halted the caravan and, at that point, the bus carrying nonstriking employees was pelted with debris As Kobialka began to pull his car around Stewart, he jumped into the rear left side of the car and fell down Kobialka stopped the car and got out, but was told by a policeman to get his car going and get out of there, which he did, along with the bus and the other vehicles in the caravan Gloucester Police Sergent Clarence Rob inson testified that he observed this incident while on duty at the plant Robinson testified that he saw Stewart deliberately walk into the front of Kobialka s vehicle and place himself on the ground He and another policeman went over to Kobialka and told him to get moving, that there was no trouble, and that Stewart deliberately ran into the car The Respondent contends that Stewart in tentionally obstructed Kobialka s vehicle in order to stop the caravan so that picketers could pelt the bus with debris I have found that this pelting incident was a sig nificant act of misconduct which could coerce and in timidate nonstriking employees and I would agree that, if it were established that Stewart was a knowing partici pant in the pelting, it could justify denying him reinstate ment However I do not find that the evidence estab lishes this Stewart credibly testified that during that afternoon he had been picketing at the other driveway and that he and Moore decided to go down and wave the flags they were carrying at the possession of vehicles leaving the company premises He denied ever discussing with anyone plans to obstruct the vehicles so that they could be pelted According to Stewart, he and Moore were walking along in the middle of the street when Kobial ka's vehicle slowly came up behind him As the car passed him, it bumped him He put his hand on the car to push himself off and in doing so he lost his balance and fell down I do not credit Kobialka s testimony that Stewart jumped into the side of the car because they admitted that he did not see what happened but only heard a thump and looked in his side mirror and saw Stewart on the ground While Sgt Robinson testified that Stewart deliberately bumped into the front of the car, Stewart said the car bumped him and he lost his balance I accept Stewart s version for two reasons The pelting began before Stewart fell to the ground Robinson testified that he was standing by the bus as it was being pelted and he himself was being hit with debris I do not believe that, under the circumstances which Robinson described as looking like D Day,' he was in a position to determine whether Stewart bumped the car or vice versa It also appears that Robinson was extremely upset by what he considered Stewart s disrespect for the American flag he was carrying, which he dropped when he fell to the ground I believe this colored his judgment concerning the incident 109 1 09 Sgt Robinson testified A To be honest with you sir you know what I was really mad at? Q (By Mr Sills) What? I consider Stewart s credible testimony that he was bumped by the car and lost his balance to be more pro bative than Robinson surmise In any event having con sidered all the evidence concerning the incident I find Stewart s presence at the scene of the pelting was coinci dental and was not a ploy to halt the caravan According to Kobialka, when he reached the point where Stewart was walking in the street he had some room to pass him on the right but he chose to stop instead It appears that Kobialka stopped, not because Stewart prevented him from moving but because he was waiting for the bus and other vehicles of the caravan to clear the picket line The pelting began while the police were clearing a path for it through the picket line Once the pelting began, Kobialka started to drive forward When Stewart fell to the ground, Kobialka stopped the car again and got out Stewart was lying beside the car and was not blocking it from going forward According to Corbett, who was on the bus, the pelting lasted only about 30 seconds It would appear that Stewart s actions did not prolong the time the bus was subject to the pelting I find that Stew art was not a part of the preplanned effort to obstruct the caravan of vehicles in order to place the bus in a po sition where it could be pelted and that he did not pre vent Kobialka s vehicle from passing down the street either before or after the pelting began He did not do anything during this incident which could be considered so egregious as to constitute serious misconduct Further, it appears that the Respondent did not consider Stewart to have engaged in serious misconduct at the time or, if it did, it condoned the misconduct Stewart testified without contradiction, that about 8 30 or 9 the same evening as he was walking along the street to his home a car came along side him with Kobialka and Corbett in it Corbett asked if he was hurt and Stewart said, no, just my pride They stopped the car and asked Stewart what had happened and what the story is Corbett asked Stewart if he wanted to come back to work, told him that he could come back and to just give Corbett a telephone call in the morning Kobialka nodded in assent Stewart said he would go back in with the Union Ko bialka asked him what had happened to make the em ployees seek union representation and offered to walk away if Stewart wanted to tell Corbett about it alone Stewart declined and Corbett said no hard feelings' and shook hands with him Kobialka did the same and they drove away This exchange convinces me that the Re spondent either did not believe Stewart had acted im properly that afternoon or was willing to overlook it if Stewart would agree to abandon the strike and return to work When he declined to do so, the Respondent later refused to reinstate him I find that the Respondent has A He took the American flag and threw it on the ground That really burned me I had words with him about it It really made me mad upset Q You were more upset about that than the actual brushing of the car'? A He obviously did it as a ploy to stop the procession I dust sat there and watched this whole thing go down He threw the flag on the ground What a jerki He was an old man probably a veteran too It made me mad Disgusted I guess you could say 538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD failed to establish any basis which would justify its refus al to reinstate Stewart 8 Joyce Amero The Respondent raised no affirmative defense in its answer that Joyce Amero had engaged in misconduct during the strike and was not entitled to reinstatement In its posttrial brief, the Respondent contended, for the first time, that Amero had engaged in such misconduct and should be denied reinstatement I reject that conten tion for several reasons Principles of fundamental fair ness and due process dictate that employees should not be deprived of employment rights in a Board proceeding without first being given notice and an opportunity to answer the allegations against them Although the Re spondent claims it was not aware of the alleged miscon duct until a witness identified Amero during the trial of this matter, it made no effort to amend its answer to allege this as an affirmative defense or to give notice to Amero, the General Counsel, or the Charging Party that it would seek to rely on such evidence as a basis for de nying Amero reinstatement I find this particularly ques tionable in this case where Amero was a striker the Re spondent, through its principal officer Kobialka, has un lawfully told she would never work for it again because she said something on the picket line that displeased Ko bialka The Respondent is apparently attempting to use this proceeding as a means of carrying out its unlawful threat I also find that the evidence the Respondent seeks to rely on is insufficient to establish that Amero engaged in picket line misconduct i 10 Sgt Robinson in testifying about the bus Delting incident which occurred on 27 Sep tember, stated that he could not identify anybody throw ing anything at the bus but said I saw one girl, a very pretty girl big broad shouldered girl with long hair She sort of looks like an Indian if you will She had some thing in her hand that she threw at the bus Thereafter he was shown three photographs taken at the picket line on days other than 27 September"' and said that Amero who was in those photographs, was the person he saw throw something at the bus Based on his de meanor while testifying I am convinced that, more than a year after the incident when he was asked to identify Amero he did it on the basis of the fact that the person he saw sort of looks like and Indian and not because he actually remembered Amero In the photographs Robinson was shown, Amero has long hair parted in the middle with long braids on either side of her head, in the style of the stereotypical Indian squaw In the photo graphs he identified Amero s facial features are almost indistinguishable however in each her Indian braid hair style is prominent There was no evidence that Amero was the only woman on the picket line during the strike who wore her hair in braids or the only one who sort of looks like an Indian if that, in fact, is what Amero I10 Under the circumstances I draw no adverse inference from the fact that Amero was not recalled to testify concerning this incident since at the time there was no reason to believe it was in issue in the case I I I None of the photographs of the scene on 27 September include Amero looks like I also find suspect Robinson s powers of ob servation He testified that in one of the photographs he was shown Amero was wearing a light colored three quarter length coat, when, in fact she has no coat on, but has a picket sign in front of her In another photo graph of the same scene in which the picket sign is even more obvious, he identified her as having the same clothing, same description While I have found the pelt ing incident constituted misconduct, I do not believe that the evidence presented was sufficient to establish that Amero was involved in the incident or to justify denying her reinstatement 9 Janet Miller In its posttrial brief, the Respondent for the first time contended that employee Janet Miller, who it reinstated on 16 March 1984, had engaged in serious misconduct by verbally threatening an employee According to the Re spondent s brief, it was not aware of this misconduct and had mistakenly believed that another employee was re sponsible for the threat Aside from the fact that its con tentions regarding Miller suffer from the same fairness and due process as those regarding Amero there is a fur ther problem in that an unfair labor practice proceeding is not a vehicle for obtaining the declaratory jusgment the Respondent is apparently seeking There is also noth ing in the record to establish that its reinstatement of Miller was due to a mistake Finally, Miller credibly denied making the alleged threat IV THE REPRESENTATION PROCEEDING A Ballot Challenges A secret ballot election was conducted on 14 October at which the Union and the Respondent challenged the ballots of several voters The Respondent challenged the ballots of 33 employees who remained on strike as of the date of the election on the grounds that they had ob tained other employment and/or has indicated an intent to abandon their jobs prior to the election The Respond ent produced no evidence in support of these contentions and in its posttrial brief stated that it was withdrawing its challenges to all 33 ballots Accordingly these ballots should be opened and counted 112 The Union challenged the ballots of Duarte Medina, Jose Tavares and Nelson Harrington on the grounds that they are supervisors within the meaning of Section 2(11) of the Act and additionally in the case of Harnng ton on the grounds that he is a relative of a member of management and enjoys special status Having previously found that Medina, Tavares, and Harrington were statu tory supervisors, I recommend that the challenges to 12 These 33 employees are Joyce Amero Karen Anderson Mildred Aubrey Sharon Auclair Donald Geraldine Bodwell Evelyn Cabral Pauline Cabral Clara Curtis Hazel Ellis Betty Favazza Carmen Glid den Jean Harnngton Josephine Jacobs Antonio Lentini Nancy Lum bard Ellen MacDonald Jacqueline Medenos Janet Miller Michael Muniz Michael Partican William Porter Janice Rigney Judy Rocha Dons Rowe Robert Sheehan Donald Stewart Lucinda Symonds Eduardo Tavares Maria Tavares Barbara Thenault Albert Tognazzi and Alberta Trefry MASSACHUSETTS COASTAL SEAFOODS 539 their ballots be sustained The Union challenged the bal lots of Kimberly Grover, George Holmes and Walter White, who were employed by the Respondent prior to the strike and were working on the date of the election, on the grounds that they engaged in misconduct at or near the picket line during the strike I find the evidence is insufficient to establish that any of these employees en gaged in conduct which would disqualify them from voting in the election and I recommend that these chal lenges be overruled and their ballots opened and count ed The Union also challenged the ballots of 36 persons hired as replacements for the employees participating in the strike on the grounds that, as replacements for unfair labor practice strikers, they were ineligible to vote in the election Since I have concluded that the strike was an unfair labor practice strike from its inception, these re placement workers were not eligible to vote 113 and the challenges to their ballots should be sustained 114 The Board agents conducting the election challenged the ballots of Frank Lentini and Edith Brown on the grounds that their names did not appear on the eligibility list provided by the Respondent No evidence was pre sented which would indicate that Frank Lentini was em ployed by the Respondent as of the eligibility date or on the date of the election consequently, I recommend that the challenge to his ballot be sustained The Respondent contends that Edith Brown quit her job during the summer of 1983 The evidence establishes that Brown had worked for the Respondent off and on for the 16 years, her most recent tenure being for about 2 years She performed several different jobs While on a week's vacation in July she was accidentally kicked in the mouth by her child and had several teeth knocked loose Over the course of the next 2 months she underwent oral surgery complicated by an infection, which left her inca pacitated and unable to work On returning from their vacation, Brown s husband Dana, spoke by telephone with Kobialka and informed him of Edith s problem with her teeth According to Brown Kobialka, in two differ ent telephone conversations, assured him that there was no problem and that Edith could return to work when she was ready Brown also spoke with James Corbett who told him that Edith was eligible for unemployment compensation and could participate in the Company's health insurance program Edith Brown testified that during August she spoke to Paul Harrington and asked about her job because she had heard that Butch Bur bridge had been fired Harrington told her that as far as he knew she still had a job with the Company Brown signed a union authorization card on 12 September and participated in picketing at the plant beginning on the first day of the strike She received in the mail the two letters sent by the Respondent addressed to all employ 113 Larand Leisurehes supra 114 The challenged ballots are those of Joseph Barbuto Theresa Bar buto Joe Bernardo Thomas Broderick Roselle Ciaramitaro Sharon Ciaramitaro Norberto DaRosa Dorothy DaLima Scott Dempsey Carlos Gil Tammy Hanson Elaine Hiou Rebecca Kelly Myles Lacey Kevin Leary Filomena Lima Leo Lima Marianne McGillivray James McKay Sandra Milne Anthony Nicastro Deborah Parsons Gail Perry Russell Phillips Teresa Raymond Lisa Ruta Kimberly Savoie Brian Sierra Debbie Sierra, Eugene Silva Mane Silva Isohna Silveira Caro lyn Tarbox Jordan Thompson Mane Valadao and Roger Wilson ees, on 19 and 20 September advising them to return to work or be subject to replacement At no time prior to the strike did Brown offer to return to work and at no time was she informed by the Respondent that she no longer had a job Kobialka testified that when he spoke to Dana Brown he told him that when Edith was ready to return to work she should talk to Kobialka and would see if there was an opening for her, but that he could not hold a po sition open for her for 2 months Corbett testified that he considered Edith Brown to have voluntarily quit her em ployment before the strike He also identified a notation he put on Brown s personnel file indicating that Kobialka had said that she would be out indefinitely and, if she wished to return to work, she would have to reapply I find this notation, in all likelihood, was fabricated after the controversy arose and to be of no probative value Corbett claimed he could not remember when he made the notation and Kobialka denied telling Corbett that if Brown wanted to return to work she would have to re apply When Brown applied for unemployment compen sation during the strike, on three different occasions the Respondent, acting through Kobialka Corbett, and a secretary answered her claims by indicating that she was off work because of a labor dispute and, at no time did it contend that Brown had quit her employment Considering all the evidence, I find that Kobialka told Brown s husband that while he could not keep a position open for her for 2 months, she should contact him when she was ready to return and he would see if there was an opening available Under the circumstances I do not doubt that if the union campaign and strike had not in tervened, once Brown indicated she was able to return to work, she would have done so as soon as there was an opening Although Brown was on an indefinite leave of absence she had only been off approximately 2 months, she had not been terminated or laid off by the Respond ent and she had a reasonable expectation of reemploy ment Consequently, the challenge to her ballot should be overruled 115 B Objections to the Election 1 The Unions objections The Union s objections to the election allege that the Respondent engaged in objectionable conduct by elimi nating the employees informal breaks in retaliation for protected activities threatening plant closure unlawfully disciplining employees because they had sought union representation, permanently replacing unfair labor prac tice strikers, and by improperly campaigning prior to the election The Union filed the petition for an election on 15 September and any objectionable conduct occurring prior to that date cannot serve as a basis for setting aside the election 116 Consequently the elimination of the in formal breaks on 13 September, the numerous threats in Kobialka s speech to employees on 12 September the threats of plant closure by Paul Harrington and Duarte 15 See Capriccios Restaurant 249 NLRB 685 (1980) 1 e Ideal Electric & Mfg Co 134 NLRB 1275 (1961) 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Medina prior to 15 September the disciplinary action against Carmen Glidden on 14 September the denial of vacation benefits to Michael Muniz on 13 September and the threat to Eduardo Tavares on 13 September, all oc curred prior to the critical period I have found that on several occasions Medina advised employees that Kobialka did not want the Union and would close the plant if they sought to bring it in His statements were similar to those Paul Harrington and Robert Tomer made to employees during the week pre ceding the filing of the petition and the threats of plant closure layoffs, and futility emphasized by Kobialka to all employees on 12 September I have also found that about a week or so after 19 September, within the criti cal period Medina went to the home of employees Eduardo and Mana Tavares and stated to Eduardo that Kobialka would never allow the Union in and would close the plant before the Union got in The Respond ent s extensive similar prepetit►on misconduct may be considered insofar as it lends meaning and dimension to the postpetition conduct and assists in evaluating it 117 Here the prepetition conduct makes it clear that Me divas remark to Tavares was not an isolated incident but was part of the Respondents strategy to coerce its employees from supporting the Union by threatening to close the plant Robert Tomer made a similar threat of plant closure to Donald Stewart on 16 September, within the critical period I have also found that the Respondent violated Section 8(a)(1) and (3) of the Act, during the critical period by threatening and attempting to permanently replace em ployees engaged in the strike notwithstanding the fact that it was an unfair labor practice stnke This objection able conduct affected a large percentage of the Respond ent s work force I find that there was misconduct by the Respondent during the critical period which was suffi dent to require that the election be set aside in the event that the Union loses 118 2 The Respondents objections The Respondent also filed objections to the election al leging that the Union unlawfully threatened employees and supervisors, engaged in violence directed at employ ees and supervisors engaged in mass picketing at the en trances to the Respondents premises , and that an atmos phere of fear and coercion was created by anonymous threats and acts of violence directed at employees and supervisors a Union actions Kobialka testified that on the second day of the strike employee Maria Costa was driven to the plant by her husband As their vehicle entered the company property, Kobialka, who was 40 feet away, heard Union President Helen Tarr say regarding Marta Costa s husband he works at Gorton s and we are going to get him No other witness corroborated the testimony Helen Tarr testified that she was at the picket line that day but did not say anything to Costa s husband and, at the time she did not know either Costa or her husband Later that day Tarr sent Mr Costa a letter stating that he had vio lated the Union s bylaws by his action at the picket line and instructing him to appear at the next union executive board meeting where he might be subject to disciplinary action I credit Tarr s testimony that she did not know who Mr Costa was when he brought his wife across the picket line, that she did not make a threat to Costa at that time, and that she did not learn who he was or where he worked until someone told her later in the day The fact that Mr Costa a member of the Union, was in formed of the possibility that internal union disciplinary action might be taken against him for failing to honor the picket line does not involve any unlawful action by the Union James Corbett testified about an incident in which a union official allegedly threatened him On 19 or 20 Oc tober, while he was near the picket line picking up nails a man identified as Union Representative Robert Rivers yelled to Corbett in an angry tone of voice that he was going to kick his ass or beat his head in According to Corbett, these alleged threats were after the election had taken place However, Rivers testified that he was not at the picket line on 19 or 20 October, but that he was there on four different occasions three of which were before the election Rivers credibly testified that on one of those occasions, he observed Corbett near the picket line and spoke to him, calling him a scab and telling him to stop harassing the picketers Rivers denied threat ening to do Corbett any bodily harm Corbett was appar ently mistaken about the date he encountered Rivers at the picket line and no one corroborated his testimony about this incident although at least one nonstriking em ployee, Kevin Harrington, was with him at the time I have found his testimony to be untrustworthy in several other instances and find that to be the case here as well A photograph of the scene at the time Corbett claims Rivers made these threats, offered by the Respondent shows a Gloucester policeman in close proximity to Rivers and Corbett neither of whom appears to be in any way agitated Under the circumstances, I am unable to conclude that Rivers was yelling threats to do Corbett serious bodily harm while a policeman stood by a few feet away I do not find that the credible evidence estab lished any unlawful conduct on Rivers part On the con trary I find it likely that Corbett fabricated the incident on the basis of photographs showing he and Rivers to gether I suspect this is also true of an incident testified to by Kobialka in which he claimed Union Representa tive Thomas Wilkinson climbed up on the outside of a moving tractor trailer truck as it was leaving the Re spondent's premises, remained there as it drove about 30 or 40 yards down the road, and yelled at the driver Well get you buddy, we know who you are 119 Al though Wilkinson did not appear as a witness and Ko bialka s testimony is uncontradicted, I did not believe him, based on his demeanor while testifying and the fact 114 Dresser Industries 231 NLRB 591 (1977) 118 Jacques Syl Knitwear supra 119 The Respondent offered photographs of Wilkinson standing on the side of a truck talking to the driver which although not depicting this specific incident was said by Kobialka to be a similar scene MASSACHUSETTS COASTAL SEAFOODS that I found his testimony to be untrustworthy and fabn cated in several other instances I find it extremely un likely that anyone would choose to make threats to a driver while he is hanging on the outside of that driver s moving truck and completely at the driver s mercy While I doubt that Kobialka heard Wilkinson make these statements to a truckdriver, who was not an employee of the Respondent, even if he did, they do not amount to serious misconduct sufficient to set aside the election One incident involving the Union that I do find to be established by the evidence occurred on the morning of 27 September when Wilkinson stopped his car in the street leading to the plant in front of a bus carrying non striking employees and replacement workers to the plant Wilkinson's vehicle remained stopped until policemen at the entrance to the plant came to the scene and ordered him to move it Although Kobialka testified that it took 10 minutes to get Wilkinson out of the way, photographs of the scene, which show that the incident happened only a short distance from the plant driveway where the policemen were located, make that hard to believe The photos also show no traffic moving on the street and there appears to be room to pass Wilkinson s vehicle on either side, although I can understand the driver of the rented bus not wanting to risk pulling around Wilkin son's vehicle While I consider Wilkinson s act of harass ment to be improper, it was an isolated act involving little inconveniences and did not involve any danger to the occupants of the bus It occurred long before the election and was unlikely to have had any coercive or inhibiting effect on eligible voters Considering all the evidence, I find that the Union d d not engage in miscon duct which would require the election to be set aside b Employee actions The Respondent objected that the actions of prounion employees at and away from the picket line were such as to create an atmosphere of fear and coercion which pre cluded a free and fair election Although the Respondent contends there were verbal threats and acts of violence at the picket line I find that the credible evidence fails to establish that there were significant or serious threats made or that employees were, in fact, coerced by them 120 The Respondent offered testimony that picket ers shouted such things as we re going to get you' and we know where you live or numerous occasions how ever, there was no evidence that the persons to whom they were made were subjected to anything beyond verbal harassment when passing through the picket line Likewise, while certain of the Respondents witnesses at tempted to portray the picketers as consistently unruly and violent, the evidence indicates that there were po licemen present at the picket line when nonstrikers crossed in and out of the plant and that no actual physi cal abuse or harm took place In contrast to the scenes depicted at the picket line in the testimony of the Re 1201 have considered much of the alleged misconduct cited by the Respondent in support of these objections in connection with the ques tions of whether certain sinkers were guilty of misconduct which dis qualified them from reinstatement I found in most instances that the al leged misconduct has not been proven to have occurred 541 spondent s witnesses Kobialka and Corbett, Sgt Robin son testified that with the exception of the single brief pelting incident discussed above, the police had no trou ble controlling the picketers Robinson stated that there was no need for pushing or shoving " and that when ever we asked them to move they moved They were pretty good Nonstriker William MacDonald, who was no longer employed by the Respondent when he testi fled said that during the course of the strike prior to the date of the election he had no problem' crossing the picket line and while, on occasion it might have taken him a minute or two to get in or out, this occurred rarely The Respondent intends that employee Maria Costa was prevented by picketers from going to work on 19 September Costa, who speaks little English, testified that when she arrived at the plant that morning her fellow employees were picketing and told her she could not go in The only individual Costa could identify as having spoken to her was Eduardo Tavares, who spoke to her in Portugese and offered to stay with her He told her not to worry or be nervous and that she would not be fired He did not say anything about whether she should go into the plant, but did ask her to stay with us ' No one physically prevented her from entering the plant She came to the plant the next day and went to work and continued to do so thereafter I find no evidence that Costa was prevented from going to work on 19 September Costa had signed a union authorization card and it appears that when she ar rived at the plant the picketers urged her to stay out on the picket line with them She was not physically re strained and she made no effort to enter the plant prem ises Her testimony indicates she was unclear about what was said to her by the pickets in English, whether it was you cant go in or don t go in The person who spoke in her native Portugese, Eduardo Tavares, made no threats, but tried to reassure her I find that there was no objectionable conduct involved in this incident Ac cording to James Corbett when Costa came to work on 20 September employee Clara Curtis said to her we re not going to forget this Maria, we re going to get you for it Costa did not corroborate this testimony and Curtis emphatically denied saying this to Costa although she said she called out scab to persons crossing the picket line I found Curtis to be a credible witness and Corbett just the opposite I find that Curtis made no threat to Costa As noted above, during the second week of the strike, a bus carrying nonstriking employees and striker replace ments was pelted with vegetable matter for about 30 sec onds while leaving the plant No one was physically harmed in the incident and it was not repeated During the first week of the strike, striker Lucinda Symonds made a threatening telephone call to the home of two nonstriking employees There is no evidence that the threat was disseminated to other employees or that it ac tually intimidated the two to whom it was directed as they returned to work and continued to cross the picket line during the strike Also during the first week of the strike vehicles belonging to Supervisors Duarte Medina 542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Joe Tavares and employees Carl Silva, Kim Grover and Frank Gesnaldo were anonymously vandalized during the night, having paint sprayed on them and tires punctured Although it cannot be determined who was responsible for these acts of vandalism, the timing and the fact that the word scab" was written on Grover s car after she crossed the picket line indicates that they were related to the strike This vandalism is deplorable, but, even considering it cumulatively with the few minor incidents of misconduct attributable to the Union absent any significant evidence that employees were actually coerced, 12, I am unable to conclude that there was an atmosphere of fear and coercion which interfered with the employee's expressing their free choice in the elec tion I recommend that the Respondent's objection to the election be overruled V THE APPLICABILITY OF A BARGAINING ORDER The General Counsel and the Charging Party contend that in the event the Union does not win the election, once the ballots of all eligible voters are counted, a bar gaining order should be entered The Respondent op poses this In NLRB v Gissel Packing Co supra, the Su preme Court held that, in exceptional cases involving outrageous and pervasive unfair labor practices, a bar gaining order is justified because traditional remedies cannot eliminate the coercive effects of the employer s misconduct and a fair election cannot be held I do not find the Respondent's conduct here to fall into the ex ceptional case category I find that it falls into the second category discussed in Gissel, involving `less ex traordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes 122 In such cases a bargaining order should issue when the possibility of erasing the effects of past misconduct and of ensuring a fair election through the use of traditional remedies is slight and employee sentiment once ex pressed through authorization cards, would, on balance, be better protected through a bargaining order Before a bargaining order can issue the election must be set aside on the basis of meritorious objections by the union 123 Although there were numerous unfair labor practices committed by the Respondent in this case many were outside the critical period, having occurred either before the filing of the petition on 14 September or after the 14 October election, and cannot serve as the basis for setting aside the election 124 There was howev er significant objectionable conduct on the Respondent s part during the critical period and I have recommended that certain of the Unions objections be sustained and that the election be set in the event the revised tally of ballots determines that the Union did not win the elec 121 Employee Paula Viator testified that she received a threatening telephone call from Janet Miller during the first week of the strike and was afraid to go to work the next day I credit Miller s denial that she made the alleged call Viator did in fact go into work the next morning and thereafter tion This being the case, the question of the applicability of a bargaining order must be considered The Respondent has been found to have committed several violations of Section 8(a)(1) and (3) of the Act, the most significant of which involved threats of plant closure and/or layoffs made by Company Co owner Mi chael Kobialka and Plant Manager Paul Harrington and two other supervisors and began before the employees had even met with union representatives In Kobialka's speech to all employees at quitting time on 12 Septem ber, just before employees were to meet with the Union, he repeatedly emphasized the inevitability of massive lay offs and plant closure, and the futility of bringing in the Union At the same time, he solicited grievances, prom ised benefits in the form of a wage increase to induce the employees to abandon their union activities, and told them that his future actions, with respect to business op erations and location, would be dictated by whether there was a big gun' pointed at his head a clear refer ence to the Union Immediately after the meeting with all employees, Kobialka met with three employees and expanded on his previous speech by threatening to move the business to another location outside the Gloucester area Threats of plant closure and loss of employment are considered hallmark violations with lasting inhibit ing effects 125 During the next few days, the Respondent engaged in a series of unlawful retaliatory actions, in cluding, curtailing employees informal breaks, coercive ly interrogating employees, threatening more oneroas working conditions and discharge, implementing a new tardiness rule and disciplining an employee for violating it, and discriminatonly denying an employee's request for advanced vacation pay The swiftness and timing of these unfair labor practices, occurring immediately after the employees began to seriously consider union repre sentation demonstrated that the penalty for union sup port would be severe "126 The Respondents unlawful actions continued during the ensuing strike as it termi nated the sick leave benefits of an employee because of her support of the Union threatened unfair labor prac tice strikers with permanent replacement refused to rein state those strikers after they made unconditional offers to return to work and told them they no longer had jobs, and beyond with the discriminatory disciplining of a re instated striker on 20 July 1984 Many of these violations were serious and directly threatened the employment status or working conditions of employees who support ed the Union 127 The Respondents threats were widely disseminated, either because they were made directly to a majority of the employees, as in the case of Kobialka s speech and letters to strikers, or were the subject of dis cussions among the employees in meetings at the union hall as in the case of the threat to fire anyone who farted wrong This is also true of the retaliatory ac tions taken by the Respondent during the first week of the Union s organizing campaign The restrictions on in formal breaks affected all employees, while those direct ed at individual employees, as in the case of Carmen 122 395 U S at 614 125 NLRB v Jamaica Towing 632 F 2d 208 (2d Cir 1980) 121 Irving Air Chute Co 124 Ideal Electric & Mfg 149 NLRB 627 (1964) Co supra 126 Quality Aluminum Products 278 NLRB 338 339 127 Cf L M Berry & Co 266 NLRB 47 (1983) (1986) MASSACHUSETTS COASTAL SEAFOODS 543 Glidden and Michael Muniz, were discussed during meetings involving numerous employees The Respond ent's actions "involve the type of severe and pervasive coercion which has lingering effects not readily dis pelled "128 The unlawful acts involved the Respondent's highest officials, Co owners Kobialka and Mineo, and Plant Manager Harrington, as well as lower level super visors Tomer, Medina, and Tavares 129 There has been no significant change in the Company's management other than Kobialka's becoming the sole owner There is no indication that the Respondent has changed it policies or that its union animus has lessened I find it unlikely that merely requiring the Respondent to refrain from un lawful conduct will eradicate the lingering effects of its past misconduct or serve to convince its employees that they can exercise their Section 7 rights without fear of retaliation I also find little likelihood that there could be a fair rerun election in the event the tally of ballots from the first election goes against the Union The parties have stipulated that there were at least 55 possible bargaining unit members employed by the Re spondent on 13 September when the Union made its demand for recognition Included in that number were Nelson Harrington, Duarte Medina, and Jose Tavares, whom I have found are statutory supervisors and should be excluded from the unit Consequently, there were 52 unit employees The General Counsel has introduced union authorization cards signed by 40 employees on 12 or 13 September 130 The authorization cards are unam biguous single purpose cards authorizing the Union to represent them for the purpose of collective bargaining With the exception of the card of Antonio Lentini, I find the cards are valid designations of the Union as the em ployees' bargaining representative Although Lentini, for whom English is a second language testified that he knew it was a union card' and that signing it meant I am going union," I was not convinced by his testimony that he ever read the authorization language on the card or had it read to him, or that he understood that he was designating the Union as his bargaining representative when he signed the card In any event, the evidence es tablishes that at least 39 out of 52 employees in the bar gaining unit had chosen the Union to act as their bar gaining representative on 13 September The Respondent argues that the authorization cards are not reliable indicators of the employees uncoerced sentiments because they were signed after Union Presi dent Tarr informed those at the union hall meeting on 12 September about the telephone call she received that afternoon in which the caller, identified by her as James Cawley, ' told her that the Company had a blacklist with 15 names on it of people to be fired The Respondent contends that the Union fabricated the telephone call in order to induce the employees to sign authorization cards and that, even if the Union was not responsible for the call, it is accountable for telling the employees about it It also contends the Union misled employees to sign cards by telling them they could not be protected from the effects of a blacklist unless they signed cards I find there is no evidence to establish that Company Comptroller James Corbett (who many employees present at the meeting assumed was the caller since they knew of no `James Cawley") actually made the call Corbett denied making the call That denial, combined with the brief conversation that resulted when Tarr, at the employees' request, called Corbett the same evening, in which he denied having previously spoken to her, convince me that Corbett did not make the call to Tarr I am equally convinced that Tarr was not responsible for the call and that the Union did not fabricate it Much of Tarr's testimony was confused and contradictory, but her description of this telephone call was neither I be lieved Tarr s testimony that there was such a call and that the caller told her the Company had a blacklist, based, in part, on her demeanor while testifying and the other evidence which convinces me that fabrication by the Union was unlikely This was a situation in which one or two employees had contacted the union hall and briefly spoken with Tarr to arrange a meeting to discuss the possibility of representation There is no evidence that Tarr had any information or knowledge about the Company that would have enabled her to fabricate the story about the blacklist Were it a fabrication, one would have expected her to get the right name of the company official to whom she was going to attribute the call and it is doubtful that Tarr would have been willing to telephone Corbett in the presence of numerous em ployees if she knew that he never made the call Further, there is nothing to suggest that the Union or Tarr ever expected the large number of employees who showed up at the union hall on 12 September Tarr was expecting a few representatives and was surprised when a majority of the work force showed up It appears that the em ployees went to the union hall, en masse spontaneously, as a result of Kobialka s speech a few minutes earlier in which he threatened them with plant closure and mas sive layoffs 131 Nor do I find anything sinister in Tarr s having immediately related the fact of this rather ex traordinary telephone call to the people who were present when she received it It appears to have been a natural reaction The evidence indicates that the exist ence of a blacklist had been rumored at the plant well before the Union came into the picture 132 Under the circumstances I do not find that Tarr s reference to a blacklist was likely to be a decisive factor in the employ ees decisions to sign cards I also do not find that the evidence supports the Respondent s argument that the Union used the threat of the blacklist to induce employ ees to sign cards by telling them that only those who 128 Kona 60 Minute Photo 277 NLRB 867 870 (1985) Its See Thrlftway Supermarket 276 NLRB 1450 (1985) 130 The cards of Donald Stewart Albert Tognazzi and Robert Shee han are not dated however their credible testimony established that each signed his card on 12 September Carmen Glidden testified that she mis dated her card as 12 September but she actually signed it on 13 Septem ber 131 For example employee Betty Favazza testified that she was not in favor of union representation until she heard Kobialka s speech saying And then after I heard Mr Kobi s speech I thought-well I took it more serious I thought-I felt threatened I felt like my job was being threatened 132 Donald Stewart credibly testified that there was a standard joke around the plant about a book of bastards with the names of certain people that were going to get kicked out of the plant 544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD signed cards would be protected by the Union It is clear that the union representatives emphasized the need for a substantial number of signatures on cards so that it could represent the employees Throughout the meeting both Tarr and James Lee speaking by telephone stated that the Union needed cards from two thirds of the employ ees so that it could speak to Kobialka on their behalf While there was some discussion as to the Union protect ing employees from being fired, it appears to have been in the context of protecting them from being fired be cause of their union activity Hazel Ellis testified that she asked Tarr, if once we signed this card would the Union repesent us, you know, if in fact we were fired for union affiliation and that Tarr answered yes I find no evidence which establishes that Tarr or Lee misrepe rented the purpose of the cards, why they were needed, or the use to which they would be put The facts in this case cannot be equated to the threats of retaliation against employees who did not sign authorization cards or the promises of benefits to those who did, which were involved in the cases relied on by the Respondent'33 in support of its argument that the authorization cards are not reliable indicators of the employees sentiments The Respondent also contends that there should be no bargaining order because the Union has engaged in mis conduct and violence during the strike which disqualifies it from such a remedy, citing the Boards decision in Laura Modes Co ,134 I find that the credible evidence fails to establish that the Union was responsible for mis conduct during the strike that was so egregious and per vasive as to evidence a total disinterest in enforcing its representation rights through the peaceful legal process provided by the Act 135 Despite the Respondents at tempt to portray the picketers and Union representatives as continually engaged in picket line misconduct unpro yoked harassment of nonstriking workers violence and vandalism the evidence as a whole does not support this Unlike the situation in Laura Modes supra there were no physical assaults on nonstrikers or management per sonnel The most serious acts of misconduct actually es tablished as having occurred the pelting of a bus carry ing nonstrikers and the delaying of the bus as it neared the plant by the car of a union representative even when considered with the anonymous acts of vandalism against the vehicles of some nonstrikers and the spreading of nails near plant entrances do not rise to a level which would warrant depriving the Union of its collective bar gaining status ' 136 CONCLUSIONS OF LAW 1 The Respondent , Massachusetts Coastal Seafoods Inc, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 133 E g D H Overmeyer Co 170 NLRB 658 (1968) Trend Mills Inc 154 NLRB 143 (1965) 134 144 NLRB 1592 (1963) 131 Id at 1596 136 Top Form Mills 273 NLRB 1246 fn 2 (1984) See New Fairview Hall Convalescent Home 206 NLRB 688 (1973) 3 All full time and regular part time production and maintenance employees employed by the Respondent at its Magnolia, Massachusetts location, including cutters, packers, stackers label table cleanup, breader and batter, warehouse, freezer and quality control employees and truckdrivers, but excluding office clerical employees professional employees, salesmen, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 The Respondent violated Section 8(a)(1) of the Act by (a) Threatening employees with more onerous working conditions and loss of benefits in retaliation for engaging in union activities (b) Threatening employees with layoffs and/or plant closure in the event they selected the Union as their col lective bargaining representative (c) Coercively interrogating employees concerning their union activities (d) Promising employees a wage increase in order to dissuade them from supporting the Union (e) Threatening to forgo plant expansion and to move from its present plant location in retaliation for employ ees union activities (f) Soliciting grievances with the implied promise of adjusting said grievances in order to dissuade employees from supporting the Union (g) Telling employees directly or by implication that it would be futile to select a union to represent them (h) Threatening unfair labor practice strikers that they would be permanently replaced 5 The Respondent violated Section 8(a)(3) and (1) of the Act by (a) Instituting and enforcing a more restrictive policy concerning the taking of informal breaks in retaliation for employees union activities (b) Discriminatorily denying an employee advanced vacation pay because its employees had engaged in union activities (c) Instituting and enforcing a more onerous rule con cerning tardiness because its employees had engaged in union activities and disciplining an employee for violat ing this unlawful rule (d) Discontinuing the sick leave benefits of an employ ee because of her union activities (e) Failing to reinstate unfair labor practice strikers to their former positions of employment (f) Discnmmatonly disciplining an employee for en gaging in union activities 6 The Respondent violated Section 8(a)(5) and (1) of the Act by refusing on and after 13 September 1983 to bargain with the Union as the exclusive collective bar gaining representative of its employees in the appropriate unit 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act 8 The Respondent did not engage in any unfair labor practices alleged in the amended consolidated complaint not specifically found herein MASSACHUSETTS COASTAL SEAFOODS 545 9 To remedy the unfair labor practices found herein the Respondent should be ordered to bargain, on request with the Union in the appropriate collective bargaining unit 10 In Case 1-RC-18-015 the Unions objections to the election have been sustained to the extent consistent with the violations of Section 8(a)(1) and (3) of the Act found herein to have occurred during the critical period between 15 September and 14 October 1983 and the Re spondent has interfered with and illegally affected the re suits of the election conducted by the Board on 14 Octo ber 1983 THE REMEDY Having found that the Respondent engaged in certain unfair labor practices I shall recommend that it be re quired to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act I have found that the strike which commenced on 19 September 1983 was an unfair labor practice strike from its inception Unfair labor practice strikers are entitled to return to their jobs upon their making an unconditional application to do so Consequently, all of the unfair labor practice strikers who have not been found to have been disqualified from reinstatement because of misconduct during the strike, listed in Appendix B, must be reinstat ed to their former positions and made whole for all earn ings lost due to the Respondents failure to reinstate them since the effective dates of their unconditional offers to return to work 137 All backpay will be comput ed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950) and Florida Steel Corp 231 NLRB 651 (1977) 138 I have found that employees Carmen Glidden and Doris Rowe were unlawfully given time off from work by the Respondent because of union activities They are entitled to be made whole for the loss of wages resulting from these unlawful disciplinary actions, plus interest I have also found that the Respondent has engaged in substantial and pervasive unfair labor practices which were calculated to destroy the Union s majority status that traditional remedies for such unfair labor practices cannot eliminate the lingering and coercive effects there from and that there is no reasonable likelihood that a fair rerun election could be held Under such circum stances I shall recommend that an order be issued re quiring the Respondent to recognize and bargain with the Union as the exclusive representative of the Re spondent s employees in the appropriate unit Inasmuch as the Respondents unfair labor practices began immedi ately after it learned of union activity among its employ ees in late August and early September, 1983 its obliga tion to bargain should date from 13 September 1983, the date by which the Union had attained majority status among the employees and made a demand for bargaining upon the Respondent 137 In the case of Edith Brown who was on an indefinite leave of ab sence when the strike commenced it cannot be determined from this record if or when after she was physically able to return to work that the Respondent had an opening which she was qualified to fill This de termination can be made during the compliance stage of this proceeding 138 See generally Isis Plumbing Co 138 NLRB 716 (1962) The result of the election is still undetermined In the event that a revised tally of the ballots of eligible voters as determined herein, results in a majority of the valid votes in favor of the Union a certification of representa tive should issue In the event that the Union does not obtain a majority of the votes the election should be set aside and the bargaining order alone should take effect 139 I believe a broad cease and desist order is warranted in view of the Respondents numerous, vaned, and serious acts of misconduct which continued well after the elec tion and demonstrate a deliberate disregard of its em ployees Section 7 rights 140 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend edit ORDER The Respondent Massachusetts Coastal Seafoods, Inc, Magnolia, Massachusetts, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Threatening employees with more onerous working conditions and loss of benefits in retaliation for engaging in union or other activities protected by Section 7 of the Act (b) Threatening employees with layoffs or plant clo sure and loss of employment if they select the Union or any other labor organization as their collective bargain mg representative (c) Coercively interrogating employees concerning their union or other protected activities (d) Promising employees a wage increase in order to dissuade them from supporting the Union or any other labor organization (e) Threatening to forgo plant expansion and to move from its present plant location in order to dissuade em ployees from supporting the Union or any other labor organization (f) Soliciting grievances with the implied promise of adjusting said grievances in order to dissuade employees from supporting the Union or any other labor organiza tion (g) Telling employees directly or by implication that it would be futile to select the Union or any other labor organization as their collective bargaining representative (h) Threatening unfair labor practice strikers that they will be permanently replaced (t) Instituting and enforcing a more restrictive policy concerning the taking of informal breaks by employees to retaliate against them because of their union or other protected activities 139 American Display Mfg Co 259 NLRB 21 (1981) Jaybil Steel Prod ucts 258 NLRB 1180 (1981) 140 See Clark Manor Nursing Home 254 NLRB 455 (1981) Hickmott Foods 242 NLRB 1357 (1979) 141 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 0) Instituting and enforcing more onerous work rules concerning tardiness to retaliate against employees be cause of their union or other protected activities (k) Discriminatonly denying employees advanced va cation pay to retaliate against them because of their union or other protected activities (1) Discontinuing employees ' sick leave benefits be cause they engage in union or other protected activities (m) Failing to properly reinstate unfair labor practice strikers to their former positions (n) Disciplining or otherwise discriminating against employees with regard to hire or tenure of employment or any term or condition of employment for engaging in union or other protected activities (o) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Reinstate the practice and policy that existed prior to 13 September 1983 whereby employees could take in formal breaks (b) If it has not already done so, rescind and abrogate the work rule announced on 14 September 1983, punish ing tardiness with time off from work (c) Recognize, effective 13 September 1983, and, on request bargain with the Union as the exclusive collec tive bargaining representation of all employees in the ap propriate unit with respect to rates of pay , wages hours, and other terms and conditions of employment and, if an understanding is reached embody such understanding in a signed agreement (d) Offer to all employees listed on Appendix B except those already fully reinstated their former pose tions, reinstatement to their former jobs or to substantial ly equivalent positions if their jobs no longer exist, with out prejudice to their seniority and other rights and privileges previously enjoyed , dismissing if necessary to effectuate such reinstatement, any person hired since the beginning of the strike on 19 September 1983 and make them whole for any loss of wages they may have suf fered by reason of the discrimination against them in ac cordance with the recommendations set forth in the remedy section of this decision (e) Make whole Carmen Glidden and Doris Rowe for any loss of wages suffered as a result of the unlawful dis ciplinary action taken against them on 14 September 1983 and 20 July 1984, respectively plus interest (f) Preserve and on 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 records necessary to analyze the amount of backpay due under the terms of this Order (g) Expunge from its records and files any references to the disciplinary action taken against Carmen Glidden and Doris Rowe, referred to above, and notify them in writing that this is being done and that such evidence will not be used as a basis for future disciplinary action against them (h) Post at its Magnolia, Massachusetts facility copies of the attached notice marked ' Appendix 142 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondents au thorized representative, shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER RECOMMENDED that Case 1-RC-18015 be severed and remanded to the Regional Director for the purpose of opening and counting, together with all other ballots, the ballots to which challenges have been overruled, and that a revised tally of ballots be issued The Regional Director shall issue the appropriate certifi cation if the Union wins the election In the event that the majority of the valid votes are not cast for the Union the election will ber set aside, the bargaining order granted herein will take effect and the petition in Case 1-RC-18015 will be dismissed IT IS FURTHER RECOMMENDED that the amended con solidated complaint be dismissed insofar as it alleges vio lations of the Act not specifically found 142 If 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 Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board