Bulova Watch Co., Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1974

208 N.L.R.B. 798 (N.L.R.B. 1974)

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bulova Watch Company, Inc. and District No. 64,
International Association of Machinists and Aero-
space Workers , AFL-CIO. Case 1-CA-8975
January 30, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On September 11, 1973, Administrative Law Judge
Sidney Sherman issued the attached Decision in this
proceeding. Thereafter, General Counsel and Res-
pondent filed exceptions and supporting briefs, and
Respondent also filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
Unlike the Administrative Law Judge, who found
it unnecessary to decide whether Backman is a
supervisor, we find that it is necessary to resolve this
question, and we conclude that he had supervisory
status. Although the testimony on Backman's status
is less than ample, coming in limited fashion from
only one witness, this evidence is uncontradicted. He
regularly directed the activities of three electrician-
helpers and two janitors by day and was responsible
for several other janitors at night. He was also in
charge of numerous employees who did maintenance
work on Saturday and during the 2-week vacation
period when the entire plant was closed. Backman
told employees volunteering for overtime whether
they could work on Saturdays, then assigned them
tasks and inspected the quality of the completed
work. At times, specifically Saturday afternoons and
throughout the vacation period, Backman was the
only individual on Respondent's Warwick plant
premises who was in a position to exercise supervi-
sion over Respondent's employees. Upon these facts,
particularly his direction of -varied activities, includ-
ing the work of electricians as well as that of
maintenance workers, we conclude that Backman
was a supervisor. .
Respondent through Backman is alleged to have
warned a group of employees that they were subject
t The Respondent has excepted to certain credibility findings trade by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear 'preponderance of all of the relevant evidence
to discharge for distributing union literature. These
employees, who were distributing at plant entrances
before their morning shift , were urged by Backman
"to go up the street and pass out literature." We
agree with the comment of the Administrative Law
Judge that Backman's, and thus Respondent's,
"threat was reasonably calculated to interfere with
the employees' distribution of union literature on
Respondent's premises." We further agree with the
Administrative Law Judge that Respondent main-
tained an unlawful, because overly broad, no-distrib-
ution rule . However, we disagree with the Adminis-
trative Law Judge's finding that such rule could be
properly applied to prohibit distribution of literature
at plant entrances prior to the start of working hours.
The Administrative Law Judge's reliance on GTE
Lenkurt, Incorporated (204 NLRB No. 75)2 is
misplaced because that case involved admission to
the plant itself and did not involve emplpyee access
to outside areas of the premises . Furthermore, here
the distribution took place right before their working
hours, and did not involve employees on the
premises at times totally outside of their shift times.
Finally, there is no evidence that Respondent has
adopted a narrow rule prohibiting access to plant
property outside normal working hours in line with
legitimate business reasons . Indeed , the record
evidence discloses that neither Backman nor the
employees were aware of any no-access rule. Accord-
ingly, we find, contrary to the Administrative Law
Judge, that Respondent, through Supervisor Back-
man, interfered with the distribution of union
literature and threatened employees with discharge
for engaging in such activity in violation of Section
8(aXI) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Bulova Watch Company, Inc., Providence, Rhode
Island, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Insert the following as paragraph 1(e) and
reletter present paragraph 1(e) as 1(f).
"(e) Prohibiting employees from distributing union
literature during their nonwork time in nonwork
areas of the company premises, including entrances
to the plant."
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB. 544, enl'd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 See Member Fanning's dissent therein.
208 NLRB No. 101
BULOVA WATCH CO.
2. Substitute the attached notice for that of the
Administrative Law Judge.3
3 Following the decision of the Administrative Law Judge, the Board
received a request from the Charging Party to have the "Notice to
Employees" printed in Italian and Portuguese in addition to English. As we
have no basis upon which to evaluate the merits of this request, we
authorize and direct the Regional Director to consider whether multilingual
posting as requested is warranted and merited under the circumstances to
achieve proper compliance with our Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing _
To act together for collective bargaining or
other aid or protection and
To refrain from any or all these things.
WE WILL NOT do anything that interferes with
these rights,
WE WILL NOT ask you how you or other
employees feel about a union or about the union
activity of yourself or others.
WE WILL NOT =threaten employees with denial
of advancement or other reprisals because of their
union activity.
WE WILL NOT say or do anything to give the
impression that we are watching out for employee
union activities.
WE WILL NOT prohibit employees from distrib-
. uting union literature during their nonwork time
in nonwork areas of the company premises,
including entrances to the plant.
WE WILL NOT lay off or discharge employees or
otherwise discriminate against them because of
their interest in or activity' on behalf of District
No. 64, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other
union.
WE WILL offer to take back Kenneth Dupre at
his old job or, if that job no longer exists, at a
substantially equivalent position, and we will pay
him for all the wages lost because of the
discrimination against him.
All our employees are free to belong, or not to
belong, to District No. 64, International Association
of Machinists and Aerospace Workers, AFL-CIO.
BULOVA WATCH
COMPANY, INC.
(Employer)
799
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 7th Floor-Bulfinch Building, 15
New Chardon Street, Boston , Massachusetts 02114,
Telephone 617-223-3300.
DECISION
SIDNEY SHBRMAN , Administrative Law Judge: The
instant charge was served upon Respondent on March 29,
1973.1 The complaint issued on May 18 , and the case was
heard on June 19. and 20. The issues litigated involved
alleged violations of Section 8(axl) and (3) of the Art.
After the hearing briefs were filed by Respondent and the
General Counsel.
Upon the entire record ,2 the following findings and
recommendations are made:
1. RESPONDENT'S BUSINESS
Bulova Watch Company, Inc., herein called Respondent,
is a corporation under New York State law and maintains
a principal office in Providence, Rhode Island , where it is
engaged in the manufacture and sale of watch movements
and related products. It annually receives goods valued at
more than $50,000 from out -of-state points. It is engaged
in commerce under the Act.
U. THE UNION INVOLVED
District No. 64, International Association of Machinists
and Aerospace Workers , AFL-CIO, hereinafter called the
Union,. is a labor organization under the Act.
III. THE MERITS
The pleadings raise the following issues:
1. Whether Respondent violated Section 8(aX.1) by
interrogation, threats of reprisal for union activity , creating
the impression of surveillance of union activity, and
interfering with the distribution of union literature?
2. Whether Respondent discharged Dupre because of
his union activity?
1 All dates hereinafter relate to 1973 , unless otherwise indicated.
2 For corrections of the transcript and evidentiary rulings, see the orders
of July 2 and August 2 and 20.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Sequence of Events
The instant case involves the employees at Respondent's
two adjacent plants in Providence (the "Salem Street" and
"Dexter Street" plants) and a third plant about 6 Miles
distant, at Warwick, Rhode Island (the "Warwick plant").
The three plants have a total complement of about 1,200
production and maintenance employees, including about
65 toolmakers, who have been represented by the Union
for many years, and who are the only organized group
among the employees. In January, the Union launched a
campaign to organize the rest of the employees and late in
February Dupre, an inspector, volunteered to solicit for the
Union, engaging in that activity until March 19, when he
was discharged.
B. Discussion
1. Union animus-background
As background evidence of union animus the General
Counsel cites a letter dated March 15, from Respondent to
its- employees, stressing the disadvantages of union repre-
sentation and urging that they not sign a union card. The
record contains, also, the testimony of Respondent 's chief
inspector , Hewes, who effected the allegedly discriminato-
ry discharge of Dupre, that he was aware that Respondent
was "strongly opposed to a union" and that it was his
function to implement that policy.
As negating any union animus, Respondent points to its
contractual relations with the Union extending over a
period of 19 years with respect to the toolmakers and to the
absence of any past involvement by it in unfair labor
practice proceedings.
2. The 8(axl) issues
a. Marrocco
Certain conduct alleged to have violated Section 8(a)(1)
is attributed by the General Counsel to Marrocco, who is
alleged to be a supervisor. As Respondent disputes her
supervisory status, that issue will be first considered.
Marrocco was classified as a "lead inspector." Her pay
rate in March was $3.16 per hour . She was then directing
the work on the day shift of 11 employees. This was
substantially higher than the hourly rate of most of the
inspectors under her direction but substantially less than
that of two of the three inspectors under her who were paid
on an incentive basis. There were 6 other "lead inspectors,"
who, according to Dupre's undenied testimony, directed
the work of about 75 additional inspectors. Thus, the
record shows a total of about 86 inspectors in March.3 The
inspection department was headed by Hewes and his
assistant, Frasco, both of whom were admittedly statutory
supervisors . Thus, if one were to accept Respondent's
contention that the lead inspectors were not supervisors, it
would be necessary to find that there were in March only 2
supervisors for a group of about 86 inspectors and 7 lead
inspectors scattered over three plants.
As far more direct evidence of Marrocco's status, the
record shows that she directed the. work of the inspectors in
her group, determined their assignments, changed their
assignments , when in her judgment such changes were
required by shifts in the workload ,, advised Hewes when
she felt overtime work was needed on a particular
production line, and , if he agreed, offered such work in the
first instance to those who were-regularly employed on that
line, and, if none such was available, offered it to any
others whom she deemed qualified to do the work.
The disproportion between the number of rank -and-file
employees and of admitted supervisors , the decisions that
Marrocco was required to make on. a daily basis with
regard to the assignment and reassignment of employees,
and the judgments she was required to make with regard to
the most effective deployment of her inspectors to deal
with shifting workloads and with regard to the qua lifica-
tions of the available inspectors to perform a particular
overtime assignment-all these' circumstances are persua-
sive that, in directing and assigning work to her subordi-
nates she was required to exercise independent judgment.
It follows that she was a supervisor under the Act.
O'Hanion, a toolsetter, testified that early in March
Marrocco asked him whether Burdette, an inspector, was
active on behalf of the Utlion , explaining that his name
headed a list of union adherents maintained by Respon-
dent's vice president, Anderson ; that later the same day
Marrocco approached the witness and Burdette , asking
them whether they were active on behalf of the Union and
whether they knew the identity of another inspector, who
was "highly involved in the union"; that about the same
time O'Hanion had another conversation with Marrocco,
in the course of which she remarked that Respondent
would "look down upon" any active involvement on his
part with the Union and that "it might hurt any chance for
advancement."
Burdette corroborated O'Hanion's version of the conver-
sation in which Burdette participated, insofar as it related
to her inquiry about the name of the inspector who was
active for the Union , and he related that a few days later
Marrocco again asked him for that name.
Marrocco acknowledged having discussions with O'Han-
ion and Burdette about the Union and that she told
O'Hanion that active support of the Union would not be
conducive to advancement . She denied categorically that
she asked them for the name of the inspector who was
proselytizing for the Union or that she made any reference
to a list of union adherents maintained by Anderson.
However, she equivocated as to whether she had asked
them about their own involvement with the Union.
It thus appears that there was square conflict between
Marrocco and the others only with regard to the "Ander-
son list" and her efforts to identify the inspector who was
campaigning for the Union . The demeanor of O'Hanion
and Burdette made a favorable impression. Moreover,
although Burdette 's credibility was challenged by Respon-
dent on the ground that he had been discharged by
Respondent and had filed charges with the Board on that
account, O'Hanion was still in Respondent's employ at the
3 A posthearing stipulation in evidence shows that in May, after some
apparent expansion of the corps of inspectors , there were 112 inspectors in all.
BULOVA WATCH CO. 801
time of the hearing and , so far as the record shows, had
nothing to gain by testifying adversely to Respondent's
interest.4 Accordingly, insofar as there is any ,conflict
between them and Marrocco , they are credited and it is
found that she interrogated them in the manner described
by them, referred to a list of union adherents in Anderson's
possession, and warned O'Hanion that any active support
of the Union by him would jeopardize his chances of
advancement . Respondent thereby violated Section 8(a)(1)
of the Act.
b. Interference with distribution of union literature
Respondent's personnel director, LeBlanc, testified,
without contradiction, and it is found, that Respondent has
long had an "oral" rule against distribution of literature on
its premises for any purpose . It is further found, on the
basis of unrefuted testimony by various employees, that on
May 2, before the beginning of their work shift, they
distributed union leaflets on Respondent 's premises, at
entrances to the Salem Street and Warwick plants, to
employees reporting for work; that at the Salem Street
plant an unidentified individual wearing the uniform of a
guard told one of the distributors that he "could not"
continue to carry on that activity, but, when he explained
that he was in Respondent's employ and suggested that the
guard check with his supervisor, the guard withdrew and
did not molest the distributors further; that at the Warwick
plant Bachman (alleged to be a maintenance supervisor)
warned the distributors that they were subject to discharge
for passing out the leaflets , urging them "to go up on the
street and pass out literature"; that, asserting that they
were exercising their "constitutional rights," the distribu-
tors persisted in their activity; and that Bachman thereu-
pon left the area.
As to the first incident , even if one assumes that the
individual in question was in fact a guard and that
Respondent is chargeable with his conduct , all that has
been shown is that he objected to the distribution of the
leaflets until he was advised the distributors were employ-
ees, whereupon he retired from the scene , thereby
indicating, in effect, his acquiescence in their assertion that
they were entitled to engage in the distribution as
employees .5 Thus, apart from anything else, it would be
proper to dismiss the instant allegation on the ground that
the net effect of the guard's conduct was to indicate to the
employees involved an objection to their distributing
literature only if they were not employees and an
acquiescence in such distribution by them as employees.
Accordingly, it is found that, even if it be assumed that the
distribution in question was protected by the Act,6 the
4 He testified for the General Counsel under subpena.
S There was no evidence that , before approaching the distributors, the
guard had any inkling that any of them were employees and, when one
considers that there were several hundred workers in the plant, an inference
that he knew the identity of any particular one would not be warranted.
Had they not been employees, he would have been justified under
longstanding Board policy (absent a showing of various matters not here
appearing) in denying them access to Respondent's premises . N.LR.B. v.
The Babcock & Wilcox Company , 351 U.S. 105 (1956).
s See the discussion below as to the present state of the law with regard
to the right of off-duty employees to distribute literature on their employer's
premises.
guard's conduct did not add up - to interference ;with such
activity and for that . reason, if no other, affords no
ground for finding a violation -of Section $(a)(l).
A more difficult question seems to be presented with
regard to the conduct of Bachman . Since his threat of
discharge reflects his awareness that the distributors were
employees, his retirement from the scene after the
employees ignoredhis threat of discharge and suggestions
to go elsewhere may not be deemed, as in the case of the
guard, to constitute a withdrawal of that threat or as based
on a misapprehension as to their identity . The finding is
warranted , rather, that his threat was reasonably c{lculated
to interfere with the employees' distribution of union
literature on Respondent's premises. However, pointing to
the fact that the employees were off duty at the time of
their distribution activity, Respondent contends that any
interference with, such distribution would be privileged
under the Board 's recent decision in, GTE. Lenkurt,
Incorporated? The rule, enunciated in that case is that
"where an employer's no-access rule is nondiscriminatory,
i.e., it denies off-duty employees access to the premises for
any purpose and, is , not disparately applied against union
activities, it is presumptively valid absent a showing that no
adequate alternative means of communication are availa-
ble." Here, there was no showing that other means of
communication were inadequate nor was there any
evidence of disparate application of the rule against
distribution of literatures
It is true that on its face the rule here. in issue , unlike the
one in Lenkurt, was not limited to off-duty employees but
applied to all employees whether on or off duty, and that,
insofar as it restricted the right of on-duty employees to
distribute union literature in nonwork areas during work
breaks, the rule was invalid . We are thus confronted with
the question whether an employer is precluded from
enforcing a valid portion of a no-distribution rule because
it is overbroad. It may be urged that the case at bar is
controlled by the Board's decision in J.L Hudson Compa-
ny,9 where it was held to be unlawful to discipline an
employee for soliciting for a union during working time in
violation of a rule forbidding solicitation during both
working and nonworking time . However, in that case, the
Board inferred from various circumstances that the
employer was motivated by union animus rather than by
concern for efficiency of operations . Here, on the other
hand, any inference that Bachman was motivated by union
animus rather than by concern for vindicating Respon-
dent's property rights vis-a-vis off-duty employees is
negated by the fact that he indicated to the distributors
that they were free to continue their activities , provided
only that they were conducted "up the street"-that is, off
7 204 NLRB No. 75.
a While it was not disputed that Respondent permitted solicitations for
beneficent purposes, the Board has refused to treat that circumstance as
evidence of discriminatory enforcement of a no-solicitation rule. The record
shows, in addition, that employees had engaged in solicitation for a form of
in-plant lottery. but there was no direct evidence that any supervisors were
aware of this. There was, also, conflicting evidence as to whether employees
were solicited by other employees to buy books of meal tickets entitling
them to discounts at certain restaurants . At any rate, all the foregoing is of
doubtful relevance, since it bore only on the issue of solicitation and not
that of distribution , which is the only matter here involved.
9 198 NLRB No. 19.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's premises. Under all the circumstances, it is
concluded that there was no undue interference by
Bachman with the employees' statutory rights, and it will
be recommended that the instant allegation be dismissed.'°
3. The 8(a)(3) issue
As already related, in January the Union launched its
campaign to organize the 1,100 odd production and
maintenance employees at Respondent's three plants in
Providence and Warwick, and, although he did not become
involved in this campaign until February 25, Dupre was
responsible for the delivery: to the Union of 124 signed
cards during the ensuing 3 weeks.
He had worked for Respondent as an inspector since
January 1972, receiving two merit increases during the first
6 months of his employment, and on November 27, 1972,
he was promoted to a higher classification with a raise in
pay. On Match 5, he was transferred at his own request
from the day to the night shift, with the understanding that
he would return to the day shift on March 19. On
Thursday, March 15, he reported for work at 5:30 p.m. but
left about' an hour later, after notifying Burdette, his
leadman, that he was feeling ill. The next day, upon
reporting for work, he.. had a discussion with Chief
Inspector Hewes about various matters, to be discussed
below, and about an hour later again left work, after
notifying Burdette that he felt ill. Upon his return to work
on March 19, Dupre was informed of his discharge for
leaving early on the 16th.
The General Counsel contends that Dupre was dis-
charged because of his union activity, which consisted, as
noted above, in extensive solicitation resulting in the
signing of 124 cards. There was no dispute that such
activity was conducted both at the Warwick and Salem
Street plants during work breaks, that on an occasion early
in March it was conducted at the Salem Street plant in the
presence of Lane, an admitted supervisor, and that it
continued unabated until Dupre's discharge. Nor, was
there any denial of his testimony, which is credited, that it
had been his normal procedure to arrive in the plant about
2 hours before his starting time and solicit in the plant
cafeteria, and that Hewes' assistant, Frasco, an admitted
supervisor, had been present in the cafeteria during such
activity." However, the most cogent link between Dupre's
union activity and his discharge was furnished by the
testimony of Losea, who worked with Dupre as an
10 In its answer Respondent denied that Bachman was a supervisor.
However, in view of the findings above , it is not necessary to pass on that
issue.
11 Neither Lane nor Fiasco appeared at the hearing . No explanation was
offered with regard to Frasco. Respondent's explanation for Lane's
nonappearance is discussed below.
12 In its brief; Respondent argues that no adverse inference should be
drawn from the failure of Lane to appear at the hearing , because the alleged
involvement of Lane came as a surprise to Respondent, his name not having
been mentioned in the complaint nor in the course of the Board 's pretrial
investigation .. However , Respondent made no such contention at the
hearing nor did it request a continuance to enable it to make such further
investigation of Lane 's role as it deemed necessary . Respondent contends,
also, in its brief that an adverse inference may not be drawn here because it
had good reason to believe that the General Counsel had failed to meet his
burden of proof. In this regard , Respondent points to the documentary
evidence that Dupre 's attendance compared unfavorably with that of other
inspector, to the effect that on March 19, about an hour
after Dupre's discharge , when the witness happened to be
in Hewes' office, the latter remarked , "Your friend Kenny
[Dupre] is pretty stupid ," explaining that Lane had
"caught" Dupre handing out union cards at the Salem
Street plant. According to the witness , Hewes then added
that "he had made a mistake , because he had allowed
himself to like somebody that worked for him, and it
wasn't his normal style." Hewes denied that there had been
any such conversation or that he had received any report
from Lane about Dupre's union activities . Lane was not
called as a witness, the only explanation therefor offered at
the hearing being that it was not thought that his testimony
was necessary .12 Losea, unlike Hewes, seemed to be a
candid and forthright witness . Moreover, he was still in
Respondent 's employ at the time of the hearing and, so far
as appears from the record, had no interest in the outcome
of this proceeding- 13 Under all the foregoing circum-
stances, including demeanor considerations and Respon-
dent's inadequately explained failure to call Lane, Losea is
credited.
Respondent offers the following defenses:
1. Respondent could not have discharged Dupre for
union activity because, far from regarding him as a union
adherent, it regarded him as hostile to the Union.
2. He was in fact discharged for poor attendance.
The first defense is based on the testimony of Hewes and
LeBlanc that they had conversations with Dupre about a
week before his discharge in the course of which he made
certain disclosures about the union campaign. Thus,
Hewes testified that on March 10 Dupre approached him
and the following ensued:
He said - to me , "You've been pretty good to me." He
says, "You let me work nights when I needed to." He
says, "I want to let you in on what . the union's doing."
And he went on to tell me about how the union ... he
had seen many signed cards. I think he mentioned 300.
How it had started in the screw machine, how many of
the piece workers were dissatisfied, how Christine Poto
had been attending meetings.
According to Hewes, Dupre agreed to repeat these
disclosures to LeBlanc, Respondent's personnel director,
and the latter confirmed that 2 days later, on March 12,
Dupre came to him and reported that there were 300
signed union cards, that the pieceworkers were worried
inspectors who had been discharged for absenteeism , contending that, in
view of such evidence it had good reason to believe that General Counsel
had not made out a case . The only authority cited by Respondent for its
position is a dictum in United Automobile Workers v. N.LR.B., 495 F.2d
1329 (C.A.D.C., 1972), which in turn cites only N.LR.B. v. A.P.W. Products
Co., 316 F.2d 899, 903 (C.A. 2, 1963), where, in enforcing a Board order, the
court stated that the respondent would have been excused from calling
witnesses, had the trial examiner announced at the close of the General
Counsel's case that he proposed to recommend dismissal of the complaint
or if he had otherwise indicated that there was no need for their testimony.
Here, the contrary was true.
13 There was evidence that he and Dupre had voiced to Hewes
complaints about their pay. However, there was no evidence that he had
signed a union card or favored the Union.
For an evaluation of various factors bearing on Hewes credibility, in
general , see the discussion in In . 19, below.
BULOVA WATCH CO. 803
about their seniority , that the hourly paid workers were
complaining about . their rates , and that Respondent's
toolmakers, who, as related above, were already represent-
ed by the Union, were going to receive a letter from it
instructing them to assist in the organization of the
unorganized employees . LeBlanc added that Dupre asked
whether he should continue to attend , and report on, union
meetings, and that LeBlanc answered that the decision was
up to him.
Dupre categorically denied that either of the foregoing
conversations occurred . However, he acknowledged that
he was aware of complaints voiced at union meetings by
certain employees about lack of seniority and about their
pay rates and that he knew of a request by the Union that
the toolmakers assist in its campaign to organize the other
employees . The record fails to suggest how Hewes or
LeBlanc would have known of these matters from other
sources, particularly the matter of the Union 's appeal to
the toolmakers for aid. Although I was not on the whole
favorably impressed by Hewes' demeanor and am con-
strained to reject his testimony elsewhere , he is credited
here, in view of the circumstantiality of his testimony, the
parallel testimony of LeBlanc, and the , unlikelihood that
both witnesses would join in such an elaborate invention
merely for the purpose of establishing ignorance of Dupre's
actual, prounion sentiments . The same result could have
been achieved far more simply by, merely denying all
knowledge of any involvement by Dupre with the Union.
Accordingly , it is found that Dupre had the foregoing
conversations with Hewes and LeBlanc, in which he
divulged the employees' reasons for organizing, the
number of union adherents , and the Union's plan to enlist
the aid of the toolmakers, and offered to report on
developments at future union meetings. However, there
was no evidence .that he divulged to Hewes or LeBlanc the
fact that he had solicited employees to sign cards 14 or
made any other reference to his own activity in the union
campaign.
Thus, any report that Hewes would have received from
Lane of Dupre's soliciting for the Union would have
alerted Hewes to the fact that Dupre's disclosures did not
tell the full story of his involvement with the Union and
would have led him to suspect that Dupre's ostensible
break with the Union was not sincere, Moreover, there was
no denial of the testimony of Dupre about his solicitation
in the plant cafeteria at times that Frasco , Hewes' assistant,
was there ; and the unexplained failure of Frasco to appear
at the hearing warrants the inference that his testimony
would not support Hewes' contention that at the time of
14 Hewes denied that Dupre had made any such disclosure and
LeBlanc 's testimony makes no reference thereto.
'S Respondent contends that any report by Lane to Hewes about the
March 3 solicitation incident would most likely have been made soon after
that date and not on March 17, when Hewes testified that he decided to
discharge Dupre. However, that time interval is susceptible of several
explanations , the most obvious being that Lane delayed making his report
to Hewes until on or about March 17 . Another is that , although having been
alerted by Lane to Dupre 's true union role before March 17 , Hewes bided
his time until he could find a plausible pretext for discharging Dupre and
believed he had done so, when Dupre missed virtually two entire shifts on
successive nights-on March 15 and 16.
1s LeBlanc so testified. Hewes professed inability to recall whether or not
he received such a report . (He admitted having heard about a vomiting
Dupre's discharge Hewes was unaware that Dupre was still
soliciting for the Union-15
We turn now to Respondent's contention that Dupre was
in fact discharged by Hewes for poor attendance. The
record shows that his attendance record was no better than
that of five other inspectors who had been discharged for
absenteeism in 1972 and early in 1973 , and Hewes testified
that, although he bad long tolerated Dupre 's excessive
absenteeism because of his outstanding qualifications as an
inspector, his early departure on March 16 was the "last
straw."
In evaluating this testimony, it may be helpful to review
certain antecedent events . There is no substantial dispute,
and it is found, that late in February , Dupre began to take
medication prescribed by the plant physician ; that after
March 8, Dupre tried to get along without the medication;
that on March 15 , Dupre reported for work at his regular
starting time, 5:30 p .m., but about half an hour or an hour
later was taken ill; that, after reporting his condition to his
leadman, Burdette, Dupre left the plant; that on March 16,
he came to the plant about 3 :30 pm ., and, while waiting
for his shift to begin, spoke to some other employees in the
production area ; that either at that time or about 5:30 p.m.
(in the conversation next described) he was rebuked by
Hewes for interfering with the work of others ; that at 5:30
p.m., Hewes took him to task for leaving early the night
before; that Dupre explained that he had taken ill; that
shortly thereafter Dupre again complained to Burdette of
feeling ill; that both men adjourned to the plant cafeteria
to get Dupre something to settle his stomach ; that Dupre
later had a vomiting spell, which he reported to Burdette;
that at 6 : 30 p.m ., upon being assured by the latter that he
could be spared, Dupre went home ; that the next day,
March 17, Personnel Director LeBlanc was notified by
Hewes that he had decided to discharge Dupre , reference
being made by Hewes to Dupre's early departure the night
before ; that, when LeBlanc asked about the reason for
such departure, Hewes suggested that LeBlanc "check it
out"; that LeBlanc learned from Burdette about Dupre's
complaints of illness and vomiting on the 16th, and relayed
this information to Hewes ; 10 and that Hewes, nevertheless,
adhered to his decision to discharge Dupre , notifying him
on Monday, March 19 , that he was being terminated and
citing his early departure on the 16th ; that Dupre
explained to Hewes that he had left because of illness;17
and that Dupre appealed his discharge to LeBlanc,
explaining that he had been ill on both Thursday and
Friday and had been taking medication , but LeBlanc
refused to intervene.
incident, but thought that it occurred, not on the 16th, but on the 15th.) As
Hewes did not unequivocally dispute LeBlanc s testimony , which, was
clearly anything but self-serving, such testimony is credited.
'r Dupre testified that he offeted such explanation. Hewes equivocated,
giving such answers as the following, when asked whether he was told by
Dupre on the 19th of the reason for his early departure on the 16th:
Not to my knowledge . This is what has got me a little bit confused.
Not to my knowledge . I don't recall him saying that.
Under the circumstances, Dupre is credited.
It may be noted, however, that in view of the rejection, above, of Dupre's
denial of his revelations to Respondent on March 10 and 12, no reliance has
been placed in this Decision on Dupre's uncorroborated testimony, when it
is unequivocally contradicted by another witness.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So much for the areas of substantial agreement. There
were also areas of sharp disagreement . Thus, Dupre
disputed Hewes' testimony that on the 16th he not only
questioned Dupre about his early departure on the 15th,
but took him to task for various derelictions , including his
absenteeism , and warned that they would no longer he
tolerated . Dupre disputed , also, Hewes ' testimony that
Dupre had frequently been reprimanded before March 16
about his absenteeism . On the other hand , Hewes gave the
lie to Dupre's testimony that , before starting work on the
16th he complained to Hewes of not feeling well. There
were other conflicts of varying degrees of importance.
However, even if the foregoing conflicts are resolved in
favor of Respondent , it would still seem necessary, on the
basis of internal inconsistencies in Hewes' own testimony,
to reject his explanation of the discharge of Dupre.
Thus, even if one credits Hewes' insistence that at 5:30
p.m. on the 16th he gave Dupre a "final warning" because
of his absenteeism , tardiness , and failure to punch in and
out, the force of such testimony is nullified by Hewes'
concession at the hearing that he would "probably" have
reconsidered his discharge decision, had he believed that
Dupre was really ill on the 16th, as well as by his
acknowledgment that, in suggesting on the 17th that
LeBlanc look into the reason for Dupre's departure, Hewes
indicated that he was willing to reconsider that decision, if
LeBlanc 's investigation disclosed a "good reason" for such
departure . Thus, at this juncture , Hewes' position was that
his decision to discharge Dupre turned ultimately on the
validity of Dupre's reason for leaving early on the 16th,
and that he would have accepted bona fide illness as a valid
reason . It has been found , moreover , that Hewes was
apprised by LeBlanc in the morning of the 17th of the
explanation given to Burdette by Dupre for taking off,
including his complaint of illness and vomiting, and that
during the discharge interview Dupre attributed his leaving
to illness. Yet, Hewes professed at the hearing not to credit
this reason , ascribing his skepticism to the fact that Dupre
appeared to be in good health during their conference at
5:30 p .m. on the 16th. At this point it became necessary for
Hewes to reconcile an apparent inconsistency between his
skepticism anent Dupre 's illness on the 16th and other
testimony by him to the effect that he believed Dupre,
when he attributed to illness his early departure on the
15th. Hewes' only explanation was that he had talked to
Dupre when he reported for work on the 16th, and he
seemed to be in good health and did not complain of
illness , the implication being that this was somehow
different from the situation on the 15th. However, when
asked whether he had not also talked to Dupre , when he
reported on the 15th , Hewes pleaded lack of recollection.18
There is thus nothing in the record to account for Hewes'
willingness to believe that Dupre was ill on the 15th but not
on the 16th.
18 If Dupe; be credited, it would be necessary to find that on both dates.
in reporting for work, he complained to Hewes of illness.
19 In evaluating Hewes' testimony here and elsewhere, due weight has
been given to the fact that at the time of the hearing he was no longer in
Respondent's employ, having been discharged about a month before, and
that he might be expected for that reason to he free of the inhibitions
normally affecting the testimony of an incumbent supervisor. However, as
Even more puzzling was Hewes' apparent, abrupt
abandonment at the hearing of his profession of disbelief
in Dupre's illness on the 16th and his adoption, in effect, of
a position that assumed the genuineness of that illness.
This was developed in the following colloquy:
Q. Why didn't you put this employee whom you
had considered valuable ten days before-why didn't
you move him back to the day shift, where he had
proved his value?
A. If Ken had been honest with me I would have.
Q. So now it's that he's dishonest?
A. Well, the act of insubordination alone, is
dishonest. The mere-it's dishonest by omission, by not
telling me that he's sick and just taking off.
Q. Were you there Friday night, so he could tell
you . . . that he was sick?
A. I'm sure I was there until 5:30.... We sat
down and talked, I believe around 5:30.
s * a s s
Q. He couldn't have told you at 6:30 that he was
sick, because you were not there?
A. That's correct.
Q. Indeed, he told the only person he could tell,
who was Mr. Burdette. Isn't that so?
A. I'm not aware of this.
Q. Indeed, he called Mr. Burdette down to the
cafeteria with him, because of a stomach upset?
A. I thought this was Thursday ... I'm not aware
it was Friday.
Thus, Hewes shifted from the position that the gravamen
of Dupre's offense was taking off without any good reason,
such as bona fide illness, to the position that the gravamen
of his offense was his "dishonesty" in failing to disclose to
Hewes his illness before leaving, even though Hewes was
not in the plant at the time. And, when forced to explain
why he did not regard the notice given by Dupre to
Burdette as adequate, Hewes pleaded ignorance of that
notice, even though, as found above, on the basis of
LeBlanc's testimony, Hewes was in fact informed on the
17th of the fact that Dupre had complained to Burdette of
illness before leaving.
Moreover, insofar as Hewes' new position assumes that
Dupre was already ill at 5:30 p.m. on the 16th, so that his
dishonesty consisted in not telling Hewes about his
condition during their conversation on that date, that
position appears to be in conflict with Hewes' earlier
contention that he did not believe that Dupre was sick at
all on the 16th.
It is evident from the foregoing that Hewes could not
decide at the hearing whether he discharged Dupre for
feigning illness or feigning good health.19 Finally, one
against this, it should be noted that the conduct under attack here was not
that other representatives of management but of Hewes, himself , and that,
although free of immediate fear of reprisals from Respondent, Hewes still
had to overcome a natural reluctance to admit his own wrongdoing, as well
as whatever concern he may have had that , by aiding the Union in litigation
against his former employer, he would hurt his prospects of future
employment either by Respondent or others At any rate, any disposition
BULOVA WATCH CO. 805
would think that Hewes would have been favorably
impressed by, and appreciative of, Dupre's conscientious-
ness in reporting for work, and attempting to work, in spite
of his condition. Yet, Hewes insisted on characterizing
such conduct as dishonest and as justifying Dupre's
discharge. Under all the foregoing circumstances, includ-
ing Hewes' remarks to Losea about the Dupre-Lane
incident an hour after Dupre's discharge, Hewes' admis-
sion that he considered himself bound to conform to
Respondent's policy of opposition to the Union, his
shifting and untenable reasons for discharging Dupre, and
the absence of any other plausible explanation for such
action, it is found that, despite Dupre's professions of
disenchantment with the Union, Hewes decided to
discharge him because of the information received by
Hewes from one or more of his supervisors about Dupre's
solicitation activity.20 It follows that, by discharging Dupre
for that reason, Respondent violated Section 8(a)(3) and
(1) of the Act.
IV. TILE REMEDY
It having been found that Respondent violated Section
8(a)(1) and (3) of the Act , it will be recommended that it be
required to cease and desist therefrom and take appropri-
ate, affirmative action . Such action shall include a proper
offer of reinstatement to Dupre and the reimbursement of
Dupre for any loss of earnings suffered by reason of the
discrimination against him . Backpay shall be computed in
accordance with the formula stated in F. W. Woolworth
Company, 90 NLRB 289; interest shall be added to
backpay at the ra,^e of 6 percent per annum . (Isis Plumbing
& Heating Co., 138 NLRB 716.)
CONCLUSIONS OF LAw
1. Bulova Watch Company, Inc., is an employer within
the meaning of Section 2(5) of the Act, and is engaged in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. District No. 64, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By coercively interrogating employees about their
union sentiments cr activities and those of other employ-
ees, by threatening reprisals for union activity, and by
creating the impression of surveillance of employee union
activity, Respondent violated Section 8(a)(1) of the Act.
4. By terminating the employment of Dupre because of
his union activities, Respondent violated Section 8(a)(3)
and (1) of the Act.
one might have to credit Hewes because of his apparent falling out with
Respondent could riot slrvtve the palpable inconsistencies in his various
explanations for Dupre's discharge. Nor. was this court favorably impressed
by the selectivity of Hewes' lapses of memory, as witness his ability to
remember the details of his first conversation with LeBlanc on the 17th, in
which it was agreed that LeBlanc would investigate why Dupre left early on
the 16th and that his ultimate discharge would depend on what was revealed
by that investigation, and Hewes' apparent total inability to recall what
LeBlanc reported to him a few hours later.
=0 A more difficult question nught have been presented here, had Hewes
contended that he discharged Dupre, not because of his reported
solicitation per se, but because, in view thereof. Hewes suspected that
Dupre's real purpose in making his disclosures about the union campaign
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is issued the following recommended:
ORDER21
Respondent, Bulova Watch Company, Inc., Providence,
Rhode Island, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in, and concerted activities
on behalf of, District No. 64, International Association of
Machinists and Aerospace Workers, AFL-CIO, or any
other labor organization, by discriminating in regard to the
hire or tenure of employment or any term or condition of
employment.
(b) Coercively interrogating employees about their union
sentiments, or activities and those of other employees.
(c) Threatening denial of advancement or other reprisal
for union activity.
(d) Creating the impression of surveillance of union
activity.
(e) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join or assist the above-named
Union, or any other labor organization to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the
extent permitted by the proviso in Section 8(a)(3) of the
Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Make whole Kenneth Dupre, in the manner set forth
in the section of the Administrative Law Judge's Decision
entitled "The Remedy," for any loss of pay he may have
suffered by reason of its discrimination against him and
offer him immediate reinstatement to his former position
or, if such position no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges.
(b) Notify him, if presently serving in the Armed Forces
of the United States, of his right to full reinstatement, upon
application, in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
was to insinuate himself into the confidence of management and obtain
information of value to the Union Such a contention might have posed the
issue whether management is entitled to discharge an employee because of a
good-faith belief that he is practicing deceit on it to further the interests of a
union. However, the case not having been litigated on that theory, there is
no need to explore the ramifications of such a defense.
21 In the event no exceptions are filed by Sec 102.46 of the Rules and
Regulations of the National Labor Relations Board , the findings , conclu-
sions, and recommended Order herein shall. as provided in Sec. 102.48 of
the Rules and Regulations, be adopted by the Board and become its
findings, conclusions , and order, and all objections thereto shall be deemed
waived for all purposes
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payroll records, social security payment records , timecards,
personnel records and reports, and all other records
necessary to analyze the amounts of backpay due under
the terms of this Order.
(d) Post at its plants in Providence and Warwick, Rhode
Island, copies of the attached notice marked "Appen-
dix." 22 Copies of said notice , on forms to be provided by
the Regional Director for Region 1, after being duly signed
by its representatives, shall be posted by it immediately
upon receipt thereof , and maintained by it for a period of
at least 60 consecutive days thereafter in conspicuous
22 In the event the Hoard's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
places, including all places where notices to employees are
customarily posted .. Reasonable steps. shall be taken by it
to insure that such notices are not altered , defaced or
covered by any other material.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of receipt of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that all allegations of the
complaint relating to interference with distribution of
union literature be, and they hereby are, dismissed.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."