Cumberland Farms Dairy, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1980

250 N.L.R.B. 1204 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cumberland Farms Dairy, Inc. and Michael G. Free-
man and William O. Roy, Noel A. Roy, Sr.,
Robert J. Fleutte, Marcel A. Dulac. Cases 1-
CA-14311 and 1-CA-14752(1-4)
July 30, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
November 29, 1979, Administrative Law Judge
George F. McInerny issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs, and answering briefs. Subsequently, Re-
spondent filed a motion to expunge portions of the
Administrative Law Judge's Decision and for leave
to file a supplemental brief. The Charging Parties
filed objections to Respondent's motion to ex-
punge, and Respondent filed a reply to the Charg-
ing Parties' objections. Thereafter, the General
Counsel filed a motion to strike Respondent's an-
swering brief. Respondent filed an answer in oppo-
sition to the General Counsel's motion to strike Re-
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent also contends that the Administrative Law Judge was
biased against Respondent's witnesses, in favor of the General Counsel's
witnesses, and that he had prejudged the issues before him We have
carefully reviewed the record and Decision in light of Respondent's con-
tentions, and conclude that they are without merit. See. e g. Super Tire
Corporation, 227 NLRB 949 (1977).
As mentioned above, Respondent has submitted a motion to expunge
portions of the Administrative Law Judge's Decision. or, alternatively,
the opportunity to submit a supplemental brief on the issue, and a motion
to reopen the record, We deny both of Respondent's requests because the
Administrative Law Judge's discussion with respect to Philip Moss goes
to his credibility which does impact on the credibility of other witnesses
in the case
Moreover, because of this result reached herein, we need not pas-i on
the merits of the General Counsel's motion to strike Respondent's an-
swering briefs
spondent's answering brief. Respondent has also
filed a motion to reopen the record. The General
Counsel has filed an answer in opposition to Re-
spondent's motion to reopen the record.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,l and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Cumberland
Farms Dairy, Inc., Westborough, Massachusetts, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order, except that the attached notice is substituted
for that of the Administrative Law Judge.
Finally, two inadvertent errors in the Administrative Law Judge's fac-
tual summary of the union organizational efforts and corresponding activ-
ities by Respondent create some confusion and are hereby corrected.
First. the meeting of interested employees concerning union activity, ar-
ranged by Curtis Rand, was held on December 16, 1977, not December
19, 1977 Second, on December 17, 1977. Robert J. Fluette was stopped
by Supervisor Wayne Thornhill and told that he (Thornhill) would make
it rough on him (Fluette) in the future, not, as found by the Administra-
live Law Judge. on February 17. 1977
2 In adopting the Administrative Law Judge's finding of an 8(a)(3) vio-
lation of illegally discharging Robert J Fluetle, we do not rely on the
Administrative L aw Judge's conclusion that "Fluette did not state in his
testimony about this incident that the Saturday he referred to was the
Saturday after the Cowshed meeting, or any other particular Saturday."
In adopting the Administratise I aw Judge's finding of an 8(aH3) viola-
tion for illegally discharging Marcel A Dulac, we do not rely on the Ad-
ministrative Law Judge's reasons for discrediting Superior Simoneau's
denial that he gave Dulac permission to carry an unauthorized passenger
in his truck during his route
:' We have modified the notice to more fully conform Io the Adminis-
Irative Laaw Judge's findings.
250 NLRB No. 140
1204
CUMBERLAND FARMS DAIRY
APPENDIX
NOTICE To EMPI OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REIATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WIL. NOT discharge, layoff, or revoke
the reinstatement of our employees for engag-
ing in union activities or in concerted activities
for their mutual aid and protection.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE WILL offer to William Roy, Noel Roy,
Robert Fluette, Marcel Dulac, and Michael
Freeman immediate and full reinstatement to
their former jobs or, if those jobs no longer
exists, to substantially equivalent jobs, without
prejudice to their seniority and other rights
and privileges, and WE WILL make them
whole for any losses they may have suffered as
a result of our unlawful discrimination.
All our employees are free to engage in concert-
ed activities for the purpose of collective bargain-
ing or other mutual aid or protection. Our employ-
ees are also free to refrain from any or all such ac-
tivities.
CUMBERLAND FARMS DAIRY, INC.
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge:
Based on a charge filed on April 4, 1978, by Michael G.
Freeman, an individual, the Regional Director for
Region I of the National Labor Relations Board, herein
referred to as the Board, issued a complaint alleging that
Cumberland Farms Dairy, Inc., herein referred to as Re-
spondent, or the Company, violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended,
herein referred to as the Act, by threatening and coerc-
ing its employees, and by discharging its employee, Mi-
chael G. Freeman, at its Westborough, Massachusetts, lo-
cation. Respondent answered, denying the commission of
any unfair labor practices.
Thereafter, on July 27, 1978, charges were filed by
William O. Roy, Noel A. Roy, Sr., Robert J. Fluette,
and Marcel A. Dulac. Based upon these charges, the
aforesaid Regional Director issued a complaint, alleging
that Respondent had violated Section 8(a)(1) and (3) of
the Act by discharging its employees William O. Roy,
Noel A. Roy, Sr., Robert J. Fluette, and Marcel A.
Dulac. Respondent denied the commission of these unfair
labor practices. Then, on October 3, 1978, the said Re-
gional Director issued an order consolidating these cases
for hearing. Pursuant to notice, a hearing was held
before me at Boston, Massachusetts, on December 4
through 8, 1978, and January 3, 4 and 5, 1979, at which
times all parties had the opportunity to examine and
cross-examine witnesses, to present evidence, and to
argue orally. l
Following the close of the hearing,2 briefs were re-
ceived from the General Counsel and from Respondent,:'
which briefs have been carefully considered.
Upon the entire record of this case, including my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent Cumberland Farms Dairy, Inc., is a Mas-
sachusetts corporation having its principal office and
place of business in Canton, Massachusetts, where it is
engaged in the retail sale and distribution of dairy prod-
ucts, groceries, foodstuffs, and related products. In the
course and conduct of its business, the Company derives
gross revenues in excess of $500,000 per year, and it an-
nually receives goods valued in excess of $50,000 direct-
ly from points outside the Commonwealth of Massachu-
setts.
The complaint alleges, the answer admits, and I find
that at all times material herein Respondent has been an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE I ABOR OR(,ANIZATION INVOLVED
The complaint alleges that Truck Drivers Local 170,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein referred to as the Union, is a labor organization
within the meaning of Section 2(5) of the Act. Respond-
ent's answer neither admits nor denies this allegation but
Following the close (of Ihe hearing. Respondent filed a motion lo
reopen the record in order to place in evidence a document purporting to
he a revision of a portion of the Board's Case Handling Manual, in place
of a prior version of that same document which had been received in the
record of this case. The General Counsel opposed this motion Since the
revision of the manual was effective on November 20, 1978, prior to the
opening of the hearing in the case, and could have an impact upon cer-
tain testimony received during that hearing. I allow the motion and re-
ceive the revised section of the manual as an addition to Resp Exh. Ib
2 Respondent has moved to correct the transcript herein in a number
of instances There was no opposition to this motion, and the proposed
changes comport with my recollection of events. The motion is allowed
and the transcript is amended accordingly
' Neither Respondent's brief nor ils posl-hearing motions were served
on the Charging Parties in this case While it may not be customary for
individual charging parties, as here, to file their appearances at formal
hearings. they had done so in this case. The Board's Rules and Regula-
lions. Series 8. as amended. Sec 102.42 requires the service of copies of
post-hearinlg briefs on all parties. In Ihe absence of a motion to strike Re-
spondent's brief. I lake no further action, hut remind Respondent's coun-
sel of their conlinuinig obligations i this miatter
1205
IDECISIONS OF NATIONAL LABOR RELATIONS BOARD
states that Respondent lacks information or belief as to
the truth or falsity of that allegation.
The Union filed no appearance in this matter, nor did
any of its officers or agents appear or testify herein.
There was no testimony from anyone that the organiza-
tion referred to as Local 170 (or at one point, Local 701)
meets the standards established by the Board for qualifi-
cation as a labor organization. I thus find that this allega-
tion of the complaint has not been established.
Ill. THE Al liEGII) UNFAIR L.ABOR PRACTICES
A. Background and Introduction
Cumberland Farms maintains a chain of 1,160 retail
convenience stores, mostly in the northeastern United
States, with a division in Florida. The Company's head-
quarters are in Canton, Massachusetts. Up until Novem-
ber 1976 the distribution of bread and bakery items, gro-
ceries, cigarettes, and allied items was done by outside
purchase from grocery wholesalers. At that time the
Company opened a large warehouse and distribution
center in Westborough,4 Massachusetts, and took over
those functions from the outside contractors. The West-
borough facility, which is the part of the Company's op-
erations involved here, originally employed 35 people,
but by the time of the operative events in this case the
employee complement had reached 200 to 250.
In handling the distribution of its products to its var-
ious stores, the Company employed 52 or 53 truck-
drivers, 30 of whom worked for the warehouse division,
which is not involved here, and the remaining 22 or 23
for the bakery division. The other employees were en-
gaged in order picking and other general warehouse
functions.
The facts as developed in the record show that this
consolidated complaint really contains five separate and
individual situations described as discriminatory dis-
charges by the General Counsel. 5 Four of the alleged
discriminatees, William Roy, Noel Roy, Fluette, and
Dulac, were closely connected in time and by the nature
of their jobs; the fifth, Michael Freeman, was laid off a
month later, in a different department, and under totally
unconnected circumstances. The common thread which
is supposed to unite all of the events which touched
upon the lives and work of these employees is the Gen-
eral Counsel's allegation of antiunion motivation by Re-
spondent. In turn, this allegation, with the dismissal at
the hearing of three alleged instances of restraint and co-
ercion which were unsupported by any evidence, rests
on one alleged unlawful remark by an agent of Respond-
ent, some background evidence on Respondent's motiva-
tion, and the circumstances of the alleged discharges
themselves.
AIo known as Westltro in the record
O.f four separate incidents of unlawful conduct in the nature of
threats or interrogation by Respondent, three were dismissed by me at
the hearing on motion of Res',indent without opposition from the Geler-
at Counsel. There was no evidence in the record as to these alleged inci-
denls.
B. Union Organization and Activity
During the period encompassed by the facts of this
case, there was no union representation of any of the em-
ployees at the Westborough complex. Then, in October
1977, one Curtis Rand, an admitted supervisor in charge
of bakery drivers, quit or was fired. At the very outset
of the case, I am faced with a credibility resolution seem-
ingly only peripheral to the later stream of events, but
important in that it tends to establish certain lines or
areas of credibility which will become highly significant
in the later development of the case. I have determined
to make findings as to credibility event by event through
the case, partly because of what the General Counsel
aptly described in his brief as its "clutter" of facts, and
partly because I find the testimony of all of the wit-
nesses, except one or two, to be credible in part and not
credible in part. Thus I will make my determinations as
to credibility, and my findings of fact, with the reasons
given in each instance for the resolutions and findings in
that instance.
With that note of explanation I turn to Rand's termina-
tion in October 1977. Rand had originally been em-
ployed by Respondent as a bread driver, but had been
promoted to the position of supervisor of the bread driv-
ers in February 1977. He testified that he supervised 35
to 40 drivers in the distribution of bread to company
stores from Maine to Delaware. He further testified that
he was fired by Bakery Division Supervisor William
Haley, in the presence of Director of Warehouse Oper-
ations John Peck, without notice or explanation, on Oc-
tober 15, 1977.
Respondent's witnesses, Peck and Haley, testified that
Rand became dissatisfied with the opportunities available
to him at Cumberland Farms, and resigned voluntarily
on October 14, 1977. Peck further testified that he and
Rand had had a close personal and business relationship.
However, he did state that Rand was ambitious for more
responsibility and that he wanted to move up to the next
level of supervision, in fact into Haley's job. Peck dis-
couraged this because of Rand's lack of experience. Both
Peck and Haley agreed that Haley had not discharged
Rand, nor recommended his discharge, but Peck did say
that Haley had recommended that Rand be taken off his
supervisory duties and returned to a bread driver's job.
On the basis of this testimony I find that the testimony
of Peck and Haley is the more logical and credible. Rand
was given to exaggeration as evidenced by his claim that
he supervised 35 to 40 bread drivers whereas other testi-
mony shows that there were only 16 to 20 bread drivers
at that time at Westborough. Further, in view of his
close relationship with Peck, it is not logical nor credible
that he would have accepted his discharge by Haley
without a word of explanation from Peck, who allegedly
was present at the time. Thus I find that Rand quit his
job as indicated by Respondent's witnesses.
Following his departure, Rand admittedly was angry
and vengeful. He communicated with the Department of
Transportation and the Interstate Commerce Commis-
sion, complaining about Cumberland Farms. More sig-
nificantly, he contacted what he described as Teamsters
Local 170 in Worcester, Massachusetts, and, after discus-
1206
CUMBERI AND FARMS DAIRY
sions with someone there, obtained some authorization
cards bearing the name of that Union, allegedly through
the mail. This was all done in the next few days after he
left Respondent's employ. A short time after that Rand
encountered William O. Roy, one of Respondent's
bakery drivers, and asked him if he would be interested
in organizing a union. Roy agreed and began talking to
other bread drivers about a union. He talked to, among
others, his brother, Noel Roy, Sr., and Robert J. Fluette.
The Roys and Fluette shared a carpool from their homes
in Woonsocket, Rhode Island, to Westborough. Noel
Roy and Fluette also began to spread the word. Fluette
testified that he talked to Kevin Parks, Pete Lavita,
Mark James, Kevin Houle, and Jerry Chauvin. Noel Roy
talked to James, Parks, Houle, and to Richard Lombardo
and Marcel Dulac.
This activity continued for a time and on December
19, 1977, Rand set up a meeting for the employees who
were interested to come to a restaurant called the
Cowshed Lounge in Westborough at 7:30 p.m. for the
purpose of signing cards for the Union. The Roys and
Fluette spread the word among other bread drivers on
the time and place of the meeting.
Rand, together with his wife, arrived at the Cowshed
Lounge about 6:30 p.m. on December 19. He encoun-
tered several drivers for Cumberland Farms in the
lounge including Rocky Chiofar, a bread driver, and his
wife, who worked in the main office at Westborough; a
bread driver named Watson; and two drivers from the
grocery division. Rand made no secret of why he was
there, and, in fact, asked those drivers whether they
wished to sign cards, but they all refused. At about 6:45
John Peck and another supervisor, Michael Nazzarella,
came in. They did not speak to Rand and Rand did not
speak to them. They had something to drink, and left
about 7:15. Shortly thereafter, Haley and Wayne Thorn-
hill, who had succeeded Rand as the supervisor of the
bread drivers came in to the lounge. They settled in,
after greeting Rand and making some small talk with
him, for drinks and dinner.6
About 7:30 the Roys, Fluette, and Lombardo arrived
at the Cowshed, parked their car in the lot and, with
Noel Roy in the lead, started into the lounge. Noel spot-
ted Thornhill and Haley, turned around and they all
rushed out. They went to a gas station next door, called
the lounge, and paged Rand. He did not talk to them di-
rectly, but arranged for Mrs. Rand to take union authori-
zation cards out to the parking lot. She did this and the
Roys, Fluette, and Lombardo signed cards. Dulac, who
had driven his own car, arrived late, but he also signed a
card. The employees left and Mrs. Rand brought the
signed cards, in an envelope, back into the lounge.
There is no dispute as to these events. There are ques-
tions as to whether Respondent, through its supervisors,
knew the reason for Rand's rare appearance at the
Cowshed Lounge I or that it knew of the particular indi-
6 Haley testified that at that time he went to the Cowshed almost
every night Thornhill testified that he was there two or three nights a
week. All there who testified agreed that the place was a "hangout" for
hoth superviusry and rank-and-file employees of Respondent.
I Rand's teslimony as to the frequency of his visits to the lounge
varied from "frequently" to only one visit prior to December 16. 1 find
viduals who participated in the card signing in the park-
ing lot.
With regard to general knowledge of Rand's purpose,
Peck testified that, after Rand had left, stories came back
to him that Rand was trying to start an independent or-
ganization of bakery drivers without a union, and that he
was trying to unionize the bakery drivers. He heard
these stories, as he said, from Linda Catino, the office
manager, from a warehouse employee, Michael Bassis,
and from John Sadowski, apparently another supervisor.
lie stated that he would have discussed these stories
with Haley but the content of those discussions was not
revealed. Rand testified that he made no secret of why
he was there to the other drivers in the Cowshed
Lounge on December 16. Linda Catino testified that
Thornhill told her that Jerry Chauvin, a bakery driver.
was passing on to Thornhill information about unioniza-
tion matters and later told her that Peck had gone to the
Cowshed because he heard there was going to be a
union meeting there. Since Chauvin was one of those to
whom Fluette had been talking, it is logical and I infer
and find that Peck and Haley were aware that some sort
of organizing was going on among the bakery drivers;
that they were aware that there was going to be a meet-
ing at the Cowshed Lounge on the evening of December
16; and they went there, separately, to see what was
going on. 8
There is no evidence that Haley or Thornhill saw the
card signers on the night of December 16. However, the
Roy brothers, Fluette, and Dulac all testified as to subse-
quent events which would indicate that Respondent
knew that they had become involved with a union.9
On the Monday after the Cowshed meeting, William
Roy testified, Thornhill called him out of the coffeeroom
and accused him of starting a union. He said that he
could not fire him for signing a union card, but he could
make it awfully rough for him.
Fluette testified that on a Saturday after the Cowshed
meeting Thornhill approached him just outside the cof-
feeroom and said that he could not stop him from joining
a union but he sure could make it rough on him.
Noel Roy testified that he ran into Thornhill in the
coffeeroom on the Monday following the Cowshed inci-
dent. Thornhill said that he heard that "you guys" from
Rhode Island were trying to start a union. Roy replied
that if he wanted to join a union it was his business and
that Rand was not a regular customer and was, then, not in a position to
remark on the unusual nature of Haley's presence there
8 In making this finding I do not rely on the testimony of Kevin Parks.
Respondent's motion to strike Parks' testimony on rebuttal, as untimely
and prejudicial. is allowed.
a The facts, however, show that these employees never really became
involved with a union at all Rand testified that he retained the signed
cards in his possession until the time of the hearing in this case, and never
turned them in to Local 170. Further, Rand admitted that, even after the
Roys. Fluette, and Dulac left Respondent's employ and sought the help
of the union. he never again contacted the Union. His vendetta against
Respondent was apparently satisfied by his performance at the Cowshed
on December 16. There is no further evidence of organizing in this por-
tion of the case by Raitd or the employees, or any other union or con-
certed activity. Thus, while the employees may have believed they had
signed cards authorizing the Union to represent them. they were de-
ceived by Raid. and their signatures on the cards were of no effect what-
soever
1207
DE CISIONS ()F NATI()NAL LABOR RELATIONS BOARD
there was nothing Thornhill could do about it. Thornhill
replied that he could not do anything to him for it but he
could make it "awful miserable."
Dulac testified that on an unspecified morning he came
in and was on his way to the loading area. Thornhill
came up to him and asked how the "big union meeting"
went on Friday, the one down at the Cowshed. Dulac
denied knowledge and Thornhill told him to worry
about Marcel Dulac and Marcel Dulac's job, not about
Bill Roy, Noel Roy, or Bob Fluette.
Thornhill denied all of these allegations.
The use of these statements as evidence of unfair labor
practices is, of course, barred by the statute of limitations
contained in Section 10(b) of the Act. However, if in
fact they were made, they may serve as an indicator of
motivation which, if held by Thornhill, may be attribut-
ed to Respondent.
The testimony of the Roys and Fluette is, as noted in
Respondent's brief, a remarkably similar, almost verbatim
repetition of words attributed to Thornhill by these three
witnesses. Respondent correctly points out that "people
do not ordinarily recall the same event in the same way,
nor do they use the same words to describe what they
saw or heard." It is also true, as pointed out by Respond-
ent, that Fluette's timecard shows that he did not work
on Saturday, February 17. However, with respect to the
latter incident, the record shows that Fluette did not
state in his testimony about this incident that the "Satur-
day" he referred to was the Saturday after the Cowshed
meeting, or any particular Saturday. An analysis of the
testimony of the Roys and Fluette shows that it is simi-
lar, but not precisely identical.' 0 I do not in these cir-
cumstances find that these points are controlling. I do
find the testimony of the Roys, Fluette, and Dulac gen-
erally credible, as their testimony is corroborated on
many details by Peck, Haley, Thornhill himself, and
Linda Catino. it I found their demeanor to be open and
candid, although both Fluette and Dulac became some-
what confused on cross-examination, and William Roy's
alleged suspension in January 1978, if it were so, would
cast a cloud over his credibility. The former I discount
0o Certainly the testimony of Dulac as to his conversation with Thorn
hill on this subject is quite different
I Respondent has made a point, both at the hearing and in its brief.
that Catino's testimony should be disregarded because she was contacted
and interviewed by the Board's Regional Office without notification to
Respondent or its counsel, contrary to Sec 10056.5 of the Board's Case
Handling Manual I have allowed Respondent's motion to reopen the
record to place in evidence a more recent version of that section, How.
ever, the application of Sec 10056 5 is limited to "supervisors or agents
whose statements or actions would bind a respondent." What evidence
there is in this case as to Catino's status points to a conclusion that she
did not fit into either of these categories She described herself, and was
described by Peck and Ronald Choquette. Peck's assistant, as the office
manager, and she stated that she supervised the clerical help in the office
However, Thornhill, Dulac, and Fluette referred to her as "a secretary,"
or "the secretary upstairs." There is no evidence that she exercised an)y
of the usual supervisory functions with respect to other clerical employ
ees, or that her direction of their work was other than routine in nature
She did have charge of the files, including personnel files, but that would
tend only to show that she may have been a confidential employee, not a
supervisory employee Of course the matter was not fully litigated, but
the burden was on Respondent, if it maintained that she was a supervisor,
to prove it, and this Respondent has not done
as mere confusion and not deliberate dissembling, and
the latter I find did not happen at all.) 2
In view of these facts I credit the testimony of the
Roys, Dulac, and Fluette, and do not credit Thornhill's
denials. I find that Thornhill threatened and coerced the
Roys, Fluette, and Dulac in December 1977. I do not
find that this is an unfair labor practice, but it is evidence
of hostility on the part of Respondent toward activities
which were concerted and protected by the Act." 3
Following these incidents, there was, as I have noted,
no further organizational activity by these employees.
The spark ignited by Rand's pique over the Company's
refusal to recognize his talents was allowed to sputter
out through the end of 1977 and into 1978. There was
testimony from the Roys, Fluette, and Dulac that they
were harassed by requirements for longer hours, that
they were made to load their own trucks, that they were
deprived of hand carts, and that their trucks were loaded
later causing them to work longer hours. These general-
ized complaints were not substantiated by firm evidence.
The evidence rather shows that in December the Com-
pany introduced, as an experiment, the addition of ciga-
rettes to the loads of bread, pastries, and snacks carried
by the bread drivers. These increased both the weight
and size of the loads and caused numerous complaints by
12 This is one of the more puzzling aspects of this case. Respondent's
time sheet record for the week ending January 28, 1978, shows William
Roy as "suspended one week" In his own testimony Roy did not men-
tion this suspension, although the only questions he was asked on his dis-
ciplinary problems seemed to be limited to December 1977 Significantly,
Respondent's counsel engaged in lengthy and vigorous cross-examination
covering all aspects of Roy's testimony, and extended into his relations
.iRh his attorney in Rhode Island and his relations with agents of the
Board's Regional Office, but not once was there any mention of the Janu-
ary suspension
W\'ayne Thornhill testified that he suspended William Roy "sometime"
in the winter, December or January, and stated further that it was his
opinion as well as William Htaley's, that Roy had deliberately damaged
company vehicles He wrote up a report on the incidents, admittedly at
sometime after the fact. nioting a burnt clutch on truck S-313 and a dam-
aged rear end on truck S-122
Haley's testimony went into detail about Roy being stuck in the snow,
calling for assistance, and needing to be winched out by a tow truck from
far off the road in deep snow Haley, however, testified that while a
clutch was "gone," and a rear end "torn out," there was only one truck
involved, that he felt Ihat Roy was "careless" and that he suspended him
for a week
Linda Catino testified credibly that at some time after the Roys had
left Cumberland Farms Thornhill came to her and asked her to pull the
files on them and on Fluette so that he could make out some disciplinary
reports to put in their files One of these, she stated, involved the suspen-
sion of William Roy
Relying on Catino's testimony, and on the inconsistent versions of the
incident related by Thornhill and Haley. I find that while Roy probably
was stuck in the snow and had to be towed out, and while the truck
probably was damaged, in fact Roy was not suspended prior to February
2, 1978 1 find further that Respondent's records were deliberately falsi-
fied to reflect this incident. As will be further noted below, this refects
not only on the reliability of Respondent's records, but also on the credi-
bility of Respondent's witnesses, or at least those who testified concern-
ing, or in reliance on, these records
1l There was also evidence of a meeting of Respondent's supervisors
in the summer of 1977 at Westborough at which time the subject of deal-
ing with union organization was discussed However, the testimony about
this was vague 'when it was not indicative that nothing illegal was dis-
cussed Even the document produced by Rand as a handout at that meet-
ing contains nothing which would form the basis for unfair labor practice
charges if carefully followed. It would appear that the session was just
another in-one-ear-and-out-the-olher management meeting
1208
CUMBERLAND FARMS DAIRY
all the drivers. Also, there was testimony that from time
to time the crew which loaded the trucks at night would
fail to perform this function on time and that drivers
would be called upon to pitch in and help. Finally, al-
though I have found, and will again in this Decision, that
the Company's records are unreliable, I have no reason
to doubt the showing in those records that a number of
drivers not involved here worked as long or longer
hours than the Charging Parties. This evidence does not
show either individual discrimination nor a pattern or
practice of such in the period from December 16, 1977,
to February 2, 1978.
This conclusion is reinforced by consideration of other
incidents which occurred during that period of time.
William Roy testified that Thornhill at one point accused
him of sleeping in his truck by the side of the road.
Thornhill admitted this, but both men agreed that noth-
ing was done about it. There was no disciplinary report
placed in William Roy's personnel file and the incident
had no further consequences in this case.
Marcel Dulac stated that he was late almost every day
and that he was warned repeatedly about his tardiness.
The files reveal a verbal warning dated January 5, 1978,
signed by Thornhill indicating repeated lateness.
Robert Fluette admitted that he had violated a compa-
ny rule against carrying unauthorized passengers in his
truck in January 1978. He further admitted that, at an in-
terview with Haley and Choquette, he first denied that
he had carried a passenger; then, on being assured that
he would not be fired, admitted it to them. A report of
oral reprimand is in his file under date of January 27,
1978, signed by Thornhill, Haley, and Choquette. In ad-
dition, however, there are three other reports of oral
warnings for tardiness dated December 16, December 19,
1977, and January 14, 1978, all signed by Thornhill.
The General Counsel argues from these instances that
Respondent was using alleged violations of its work rules
to unfairly stigmatize these employees on account of
their having signed union authorization cards, and, in
effect, building disciplinary files on them for further un-
lawful implementation.
Respondent, on the other hand, argues that these facts
warrant the opposite conclusion; that the lenient treat-
ment accorded William Roy, Fluette, and Dulac, for se-
rious offenses, shows no discriminatory motivation, but
rather a tolerance inconsistent with any antiunion consid-
eration. In addition, Respondent points to the fact that
Noel Roy was viewed as a good employee and was
being considered during this period for the job of assist-
ant supervisor, and to the fact that another card signer,
Richard Lombardo, succeeded Thornhill as supervisor of
the bakery drivers.
I cannot find in these facts a preponderance of credible
evidence that Respondent discriminated against William
Roy, Fluette, or Dulac in this period. The Company's
work rules may not have been evenly applied to these
three employees, but the record shows that the rules
were applied in a more or less arbitrary fashion to every-
one. Peck testified that the rules had been promulgated
under his direction, but that he had no part in instructing
lesser supervisors in their enforcement. Choquette's testi-
mony shows that he interpreted and enforced the rules as
it suited his current objectives. Haley said that he paid
no attention to them at all, and Thornhill said he made
every effort to enforce them fairly. Haley further pointed
out that he would have no drivers left if he enforced the
Company's rules, but did indicate that he had developed
a much shorter list of rules, including one strictly prohib-
iting the carrying of unauthorized passengers. Each
driver was supposed to acknowledge these rules by affix-
ing his signature to a copy which was then placed in his
personnel file. However, neither Fluette, nor Dulac, who
became involved with the no-rider rules a little later, had
copies of these rules in their files. 1 4 The cases of Noel
Roy and Richard Lombardo do not appear to me to be
significant in determining Respondent's motivation,
whatever the reasons for the elevation, or proposed ele-
vation of these employees. Lombardo was not called
upon to testify, and the later adventures of Noel Roy are
more meaningful to the issues in this case.
D. The Events of February 2. 1978
The loading dock for the bakery trucks at the West-
borough facility contained two bays and could be used
by only two trucks at one time. On the night of Febru-
ary 1 and 2, there had been a breakdown in the bakery
itself, so that the loading was not finished when the driv-
ers reported at 5:30 a.m. William Roy arrived that morn-
ing and assisted in the loading of his own truck. The size
of the load, including cigarettes, was such that Roy con-
cluded that he would need a helper that day in order to
finish his run on time. Noting that Thornhill had not yet
come in, Roy went to Haley's office and asked him if he
could be assigned a helper. s Roy testified that Haley
agreed to this. However, he later modified this testimony
to the extent that he quoted Haley as saying that he
could have a helper if one was available. This accords
with Haley's version of the conversation, and is more
logical as well as more credible.
Roy returned to the loading dock and told Thornhill,
who had arrived by this time, that Haley had authorized
him to use a helper. He did not add the qualification
which Haley had put on the authorization. Thornhill did
not answer him, but went into a small, open office, de-
scribed as a "cage," on the dock, called Haley, then re-
turned to the platform. Roy again requested the helper
and at this point Thornhill told him, in scatalogical
terms, that he didn't care and that he was not going to
get a helper. Roy continued to argue, and, according to
his version, Thornhill told him, then, to go home. This is
rebutted by Thornhill, who stated that he told Roy that
if he didn't take the load out, he could punch out and go
home. This version was corroborated by Dulac, who
was a witness to these events, although not by Fluette or
14 Thus, Fluette's seemiligly conlradicting tetrimony that he did l ot
kno, It wras against company policy io carry riders ma beh explainerd by
the fact that the rule had not been explained to him hefore hi, dici.plin-
ary interview and notlce in Jalnuary
's There 'as apparently nothing wrong with this proicedurce While
Haley vas described ;s supcr.lior of the bakers department. Pe'.k indl-
cated that he had ioerall aiuthiriit ocr the 'dTier, il, ld Ihe loading
docks li " as thus Ihornhill' supcr.ts r w, sucl and ki, de, ,rlbed a,
such during the hearing
1209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Noel Roy. I find the version told by Thornhill and
Dulac to be more logical and credible.
While this confrontation was going on, William Roy
still had his papers for his route in his hand. Noel Roy
then came up to them and began to argue that William
could not finish his run without a helper. Whereupon
Thornhill told Noel to mind his own business and at the
same time gave him a backhand blow, with a closed fist,
to the chest. Thornhill at first denied striking Noel, but
on cross-examination admitted he "possibly" touched
Noel "with his finger." 1 do not credit this, but rather
the version told by the Roys, Fluette, and Dulac, which
are all in accord that the blow was hard and deliberate.
Noel Roy's reaction was swift and savage. He gave
Thornhill a right hand to the mouth, and the two fought,
exchanging blows, for 3 to 5 minutes, during which
Thornhill obviously got the worst of it, sustaining welts
to the face and having a patch of hair torn out.' 6 The
fight was broken up by another driver, Kevin Parks, and
a customer of Cumberland Farms, a pig farmer named
Tony Medeiros.' 7 There was testimony from the Charg-
ing Parties that Thornhill briefly broke away from Me-
deiros, who was restraining him and attacked Noel Roy,
but this was denied by Thornhill and Daniel Paone. As
already noted, I have some question about Paone's
memory. In addition, my observation of him as a witness
was that he was nervous and excitable and tended to
overdramatize the incidents he described. As a result I
do not credit his version of events.
As soon as the fight ended, Thornhill discharged Noel
Roy by telling him to get out and not come back. There
is no dispute about this fact. Other results flowing from
the fight are less distinct and are influenced by the ex-
citement of the physical encounter, and the exhiliration
and disorientation of its after-effects. I do credit Thorn-
hill's testimony that he went back into the cage on the
platform after ordering Noel Roy off the premises,
where he telephoned Haley to tell him he had been
"sucker punched" by Noel. Thornhill also called the
guard shack and requested them to call the Westborough
police because, according to his testimony, Noel Roy
had not left, but was waiting outside the cage, uttering
threats.S' Noel soon stopped this and proceeded to leave
the premises.
At this point William Roy, whose problem with
Thornhill about the helper had not been resolved, but
which had served as the casus belli, was still standing on
the platform. He testified that he understood that Thorn-
hill had already fired him by telling him to "go home,"
'" He did not, however, require medical treatment There was no evi-
dence that Noel Roy was injured.
"7 Respondent, in its brief, makes much of the testimony of another
customer of Cumberland Farms. Daniel Paone. who said that he. not
Parks, helped Medeiros to break up the fight, pointing out that this testi-
mony contradicted that of the General Counsel's witnesses. However.
Respondent overlooks the fact that the testimony of these witnesses. and
that of Thornhill, is in agreement on the length of the fight, 3 to 5 min-
utes, and the identity of those who broke it up, Medeiros and Parks. I do
not think that Paone consciously lied, but I do find that his memory was
faulty in this instance. Parks did not testify on this issue. and Medeiros
did not testify at all.
'" Noel Roy denied this, but I find it to be both a logical and natLral
consequence of his "victory" in the fight, and his subsequent summary
discharge.
before the fight started, but the facts do not bear out this
hypothesis. There is no indication in any of the credible
testimony that Thornhill's order to Noel to get out and
don't come back applied equally to William. Thus, Wil-
liam at that point was not discharged, and, presumably,
could have climbed into his truck and gone out on his
route. He did not, however, but rather put down his
papers and joined his brother in walking out toward the
entrance to Respondent's premises. I can only conclude
from these facts that he quit at this point, even though,
as I have pointed out, some of the actions of people here
may have been influenced by the excitement and turbu-
lence resulting from the fight.
In the meantime William Haley was heading down to
the loading dock as the result of Thornhill's telephone
call about the trouble down there. On the way he ran
into Ronald Choquette and asked him to come along, al-
though he did not explain just what trouble there was
down there. These two then encountered the Roy broth-
ers on their way out of the warehouse. According to the
testimony of Haley and Choquette, Noel Roy was angry,
cursed at them, and asked them if they wanted some of
what he had just given Thornhill. Haley stated that Noel
handed his lunch box to William, that the latter put
down the lunch box and a jacket he was carrying, and
they both advanced at the other two. Choquette then
threatened to call the police, the Roys subsided, and
Choquette escorted them to the door. The Roys both
denied that any threats were uttered, but that Choquette
was poking Noel's chest with his finger and telling him
to leave, so Noel told him to stop pushing. They then
left under Choquette's escort. There was no testimony
that William uttered any threats. Here, again, I think
there is some logic and credibility to the stories told by
Haley and Choquette (Although, as noted below, I place
very little reliance on Choquette's testimony. Even here
he described William setting down two lunch boxes,
whereas Haley mentioned only one, and the Roys denied
that they had any lunch boxes.) particularly Haley's ver-
sion, again in view of the natural and probable reaction
of Noel Roy to the events he had just experienced. I do
not, however, believe the threats reached the level as-
serted by Haley or Choquette.
Back at the loading dock, things began to return to
normal. Fluette and Dulac went to their trucks and pro-
ceeded toward the gate where there was a line of vehi-
cles waiting to be checked by the security guards before
leaving on their routes. Fluette and Dulac were the last
two in line and, while they were waiting, Fluette began
to brood on what he considered the unfair treatment of
the Roy brothers and, after a few moments, he alit from
his truck and went back to talk to Dulac about this. He
suggested to Dulac that they go back to the warehouse
and talk to John Peck about the situation. Dulac agreed,
so they pulled their trucks out of the line, returned to the
warehouse, and parked in the back where they would
not interfere with the loading operation. Then, with
Fluette some distance in front of Dulac, they entered the
building.
When he walked in the door, Fluette encountered
Thornhill who said to him that he was not doing his
1210
CUMBERLAND FARMS DAIRY
route. Fluette said he wanted to see Mr. Peck first
Thornhill told him that he had 10 minutes to get off the
premises. Fluette thereupon put down his papers and left.
Thornhill testified that Fluette had left, then returned.' 9
Thornhill further stated that when he returned Fluette
mumbled an obscenity at him, threw down his papers
and then said "quit." Thornhill replied to this, "You
have 10 minutes," meaning, according to his subjective
explanation of his own testimony, that Fluette had 10
minutes to get back to his truck and get out on his route.
He did not explain why he said this in view of Fluette's
seemingly unambiguous words and actions. Accordingly,
in view of Thornhill's previous inconsistent statement,
the illogic of his testimony at this hearing, and his own
demeanor, which I noted to be equivocal and shifting,
together with the credible and reasonable nature of
Fluette's version, as corroborated by Dulac, and the fact
that Thornhill, just as Noel Roy, was still caught up in
the emotions of the fight and its immediate aftermath, I
credit Fluette's version of this incident and I find that he
was in fact discharged by Thornhill's demand that he
leave the premises in 10 minutes.20
Dulac was right behind Fluette, but he did not become
involved in the same conversation with Thornhill. He
testified that he also asked to see Peck; Thornhill, in
turn, told him that he had "ten minutes," but Dulac, ap-
parently lacking the reckless courage of his Arthurian
namesake, equivocated, then remarked that nobody had
quit or was fired, and left the office. He tried to catch up
with Fluette, but could not, then met with Haley. Thorn-
hill at some point had called Haley again, so the latter
was on his way down, again with Choquette, when he
encountered Dulac. Choquette, Haley, and Dulac went
into the coffeeroom where they had a discussion about
the lack of help, the cigarette situation, and other mat-
ters. Dulac calmed down, said he had no problems, and
went out on his run.
The Roy brothers left Westborough and on their way
back home stopped in a diner in Bellingham, Massachu-
setts. They were having coffee there when Fluette, who
had hitched a ride with another Rhode Island employee
after his discharge, came by and joined them. They
talked and decided that they would try to see John Peck
and get their jobs back, so they called the warehouse and
made an appointment to see Peck at noon on that day.
When they arrived, they were informed that Noel Roy
was not allowed inside, but the other two went in and
spoke to Peck. It goes without saying that in this in-
stance, as in all other substantive portions of this case,
the testimony presented by the General Counsel and Re-
spondent varies significantly.
19 In this regard, Thornhill's testimony is inconsistent with his sworn
statement to the Massachusetts Division of Employment Security on
Fluette's claim for unemployment compensation. where he stated that
William Roy and Fluette quit at the same instant of time, and with the
same words. Thornhill was both pliable and indefinite with regard to that
statement, indicating at one point, clearly, that Respondent's counsel at
this hearing had taken the statement, then agreeing with counsel that he
had not I do not credit the statement. nor much of Thornhill's testimony
at this hearing.
20 I note that in trucking operations generally the "property" or the
"premises" are used as synonyms for not only the terminals. or ware-
houses, but for the entire operation of the employer. so an order to leave
the premises would, in effect hbe an order to leave the employer
William Roy and Fluette were in agreement that they
began the conversation by complaining to Peck of what
they considered the unfairness of Noel Roy's discharge.
They felt that Thornhill instigated the fight, and to dis-
charge one participant with no penalty to the other, was
not right. Peck replied that he knew that Thornhill had a
hot temper and he would cool him down. He added that
he did not want anyone quitting or getting fired. He
stated that he did not want unhappy drivers, because un-
happy drivers want unions and he did not want a union.
He said that all three employees had their jobs back and
they were to report the following day. There was fur-
ther conversation concerning the problem of the ciga-
rettes on the bread trucks, about the need for hand
trucks, potato chips, and other matters. According to
Fluette and William Roy, the conversation lasted for an
hour or an hour and a half.
Peck testified that all three employees came to his
office. He indicated that Fluette did most of the talking
and that Fluette told him only that Noel Roy had had an
argument with Thornhill, adding that the other two had
walked off with Noel. Fluette asked if Peck would rehire
them, to which Peck responded that he had no objection,
but it was not up to him. He added that if there was no
objection from Haley or Thornhill he would have no ob-
jection either. Fluette then raised questions about Thorn-
hill's quick temper, discussed the cigarette problem, and
the desire of the employees for hand trucks to help with
the unloading of their trucks. Peck testified that he told
them he was not going to buy hand trucks and, in any
event, the cigarettes were only an experiment which was
going to be discontinued. Fluette then brought up the
union question, saying that some of the drivers were
going to end up wanting a union in Westborough.
Fluette said he was sure none of the drivers would want
it because they were all happy the way they were. Peck
replied that he would speak to Thornhill, and possibly
take away some of his responsibility, or give him some
help, to stop him from being so hotheaded. Peck stated
that "I don't want a union here any more than you do.
Because certainly if you are unhappy then somebody is
going to want to have a union here."
With this the conversation ended and the employees
left without seeing, or attempting to see, Haley or
Thornhill.
After they left, Peck testified that he had a number of
appointments and was thus unable to check on the situa-
tion until he saw Choquette at 3:30 or 4:00 that after-
noon. Thornhill had already left for the day. Choquette
told Peck that Thornhill had been jumped by one of the
Roy brothers, and that he, Choquette, had also been
threatened by the Roys. According to Peck, Choquette
did not say that William Roy or Fluette had been in-
volved in the fight, but did say that they, along with
Noel Roy, had been asked to leave the premises. Peck
then said that he went and talked to Haley who related
basically the same story as Choquette had told him.
That night Peck left for Florida on a business trip. He
testified at one point that Haley called him a day or two
later and told him that Fluette and the Roys had said
they were reinstated and he, Haley, wanted to know if
1211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this were so. Peck then said that it was not so and re-
ported his version of the conversation he had with
Fluette and the Roy brothers. At another point in his tes-
timony, Peck stated that it was Linda Catino who called
him in Florida and told him that the Roys and Fluette
had come to the guard shack and said that Peck had re-
hired them.
Choquette verified the fact that Peck had talked to
him on the afternoon of February 2, and that he told
Peck that there had been a fight in the bakery between
Thornhill and the Roy brothers. He testified, however,
that there was no mention of the meeting between Peck
and the employees, and that he had not known of that
meeting until he heard the testimony at this hearing. He
was aware that the Roys and Fluette had appeared at the
gate on the morning of February 3, and indicated that he
had told the guard not to let them in, then talked to
Haley about it.
Haley testified that he did not talk to Peck on the day
of the fight, but did speak to him the next day when he
was in Florida. He stated that Peck denied that he had
reinstated the employees but said it was up to Haley and
Thornhill. Haley said to Peck that because of the fight,
and the abusive language used to himself and Choquette,
he would not consider reinstatement.
Linda Catino testified that when she arrived at work
in the office on February 2 she heard that Thornhill had
been beaten up by some of the drivers. She called Cho-
quette and he said that there had been an argument be-
tween the Roys, Fluette, and Thornhill, that there had
been a fight and the employees were fired. She later saw
Thornhill and he told her the same story. The next day,
Fluette called her and told her that he and the Roys had
gone to see Peck and he had told them they could return
and they would straighten the matter out. Catino then
called Peck in Florida. Peck admitted he had reinstated
them, but said that later on Haley and Thornhill objected
and that the reinstatement was up to them. Peck stated
that he would not overrule their decision.
The employees subsequently made further attempts to
talk to Peck but were unsuccessful.
Peck's version of the meeting has a certain logic to it.
He testified that when the warehouse opened he person-
ally handled all hiring, firing, and disciplinary matters,
but with the growth of the work force to over 200 em-
ployees he left all such matters to the lower level super-
visors. He did say that he still signs all terminations and
that he would investigate a discharge if an employee
came to him to complain about unfairness. His meeting
with the employees here is consistent with this general
policy, and his testimony that their reinstatement was
contingent on their making peace with Haley and Thorn-
hill would be a logical extension of that overall policy.
There are, however, several aspects to Peck's story
which, when analyzed, cast doubt on its veracity. The
first of these is his statement that he knew nothing of the
fight, and the employees told him only that there had
been an argument between Noel Roy and Thornhill. The
fight happened sometime before 7 a.m. Linda Catino tes-
tified that when she arrived she was informed by some-
one about it. She worked in the same office area as Peck.
The interview with the employees occurred at noontime.
This was arranged by a telephone call to Peck from
Fluette sometime earlier. The three drivers involved
were supposed to be out on the road making deliveries.
In these circumstances, where the fight was common
gossip in the office, and the interview was some 5 or 6
hours after the incident, in circumstances which were
certainly unusual, I find it difficult to credit Peck's state-
ment that he knew nothing about the fight.
Peck also testified that all three employees were in his
office for their discussion. The Roys and Fluette were in
agreement that Noel Roy was not allowed into the ware-
house. It is more logical that the person who had beaten
his supervisor would not be allowed to come in, and I
find that this was so, thereby raising a question about
Peck's memory of this incident.
Peck's testimony as to his actions following the inter-
view is supported by Choquette, but not by Haley, who
testified that he did not talk to Peck on February 2, but
did talk to him on the telephone a day or two later.
Linda Catino however, testified that she talked to Peck
the next day, and this was corroborated by Peck, but she
stated that Peck affirmed to her that he had reinstated
the employees.
The testimony of Fluette and William Roy that they
were reinstated is echoed by their reported testimony in
their hearings on unemployment compensation. Their
testimony is further corroborated by their actions. If
Peck had in fact told them that they had to square things
with Haley and Thornhill, it would follow that they
would at least attempt to see Haley or Thornhill, or
both, in order to attempt this. There is no evidence that
they did so. On the contrary, they left the warehouse to
return the next morning, ready to work.
All of these circumstances convince me, and I find,
that Peck knew about the fight before the interview,2 '
and that, despite that knowledge, he offered all of them
reinstatement effective the next morning. 22 He later
talked to Choquette and if he mentioned the reinstate-
ment in that conversation, it is not revealed by the testi-
mony of either man. Peck also stated that he talked to
Haley that afternoon, but Haley denied that. Aside from
this last inconsistency there is further inconsistency in
Peck's own testimony on when he actually made the de-
cision not to reinstate the employees, at one point stating
that he made no decision on that day, the latter stating
that he made the decision not to rehire after talking with
Choquette and Haley on February 2. 1 find that the deci-
sion not to reinstate was made by Peck sometime on
February 2, during or after his conversation with Cho-
quette on that afternoon, but I find further that the deci-
sion was not made for the reason stated by Peck, the
fight and abusive language toward supervisors. That
reason would not have involved Fluette in any case. If
his reason for not reinstating the Roys because of their
alleged threats and abuse to Choquette and Haley, which
2 This would explainl why, in the course of an hour or an hour and a
half, he did not call Thornhill or Haley lo discuss the incident while the
employees were still there
22 His stated reason. as affirmed by Fluette and William Roy. that he
didn't want a union and he didn't want unhappy drivers who might want
a union. is plausible. although I find that it was Peck. and not Fluette,
who brought up the subject
1212
CUMBERL AND FARMS DAIRY
he may not have known about at the noontime meeting,
this again would not have concerned Fluette. Or if his
reason was the fact that they walked off without notice,
he must have known that they were not working at the
time he granted them reinstatement when they were sit-
ting in his office instead of working.
In summary, I think that the record is clear that Noel
Roy was fired on the spot after the fight, and that Wil-
liam Roy quit when he joined his brother in walking out.
Even though Thornhill may have provoked the encoun-
ter, I do not find that he did this out of antiunion moti-
vation, but because he felt that Noel had no business in-
terfering in his discussion with William Roy. Fluette's
case is not as clear, but his discharge, too, can be under-
stood in the light of Thornhill's overwrought state of
mind in the aftermath of his beating by Noel Roy. In
these circumstances I cannot find that a preponderance
of the credible evidence shows these terminations to be
unlawfully motivated. If matters had ended there I
would have little choice but to recommend that those
portions of the complaint dealing with the Roys and
Fluette be dismissed.
But matters did not end there. Indeed, a preponder-
ance of the credible evidence convinces me, and I find,
that Peck was aware of the circumstances of the fight,
and of the departure of the Roys and Fluette from the
premises, when he sat down with them at noontime on
February 2 to discuss the matter. His action, then, in re-
instating them, and the words he used in so doing, con-
stitute a clear and unequivocal condonation by him "in-
dicating forgiveness and an intention of treating the
guilty employees as if their misconduct had not oc-
curred." N.L.R.B. v. Marshall Car Wheel & Foundry Co.
of Marshall, Texas. Inc, 218 F.2d 409, 414 (5th Cir. 1955);
Retail, Wholesale and Department Store Union, AFL-CIO
[Coca Cola Bottling Works, Inc.] v. N.L.R.B., 466 F.2d
380 (D.C. Cir. 1972).
Then, after a conversation with Choquette, Peck re-
versed himself and revoked the reinstatements. I have
found that the reason for this was not the fight and its
aftermath. The fight and the walkout had already been
condoned and forgiven. The aftermath where the Roys
were alleged to have threatened and insulted Choquette
and Haley I have found to be less serious than alleged by
the latter two, and did not involve Fluette anyway. Yet
the stated reason was the fight and subsequent events. I
find, then, that this stated reason was not the real reason
for the revocation of the reinstatements.
The real reason is revealed through consideration of
Thornhill's earlier threats to these employees, which I
have found to have occurred; the fact that Thornhill
sought to, and did, backdate disciplinary warnings and
notices on these employees, particularly William Roy's
alleged suspension, and the disciplinary warning to
Fluette; and, finally and most significantly, Respondent's
attitude and actions in the Freeman case, discussed
below. I find that the reason for canceling the reinstate-
ment and, in effect, discharging all three employees was
the fact that they had signed union authorization cards
and engaged in other protected concerted activities.
Shattuck Denn Mining Corporation (Iron King Branch) v.
N.L.R.B., 362 F.2d 466 (9th Cir. 1967).
E. The Termination of Dulac
After his meeting with Haley on February 2 Dulac
took out his truck without further incident. Then, on
February 6 and 7 the area was struck by a severe snow-
storm, which blocked highways in Massachusetts and
Rhode Island for periods of up to I week. Dulac became
snowbound on his route in southern Rhode Island. He
ran out of money so he called the warehouse in Westbor-
ough from several Cumberland Farms stores to obtain
authorization to obtain money from the stores. He talked
with an employee named Harvey Isralian (or Israelian)
who apparently was a working supervisor of the Compa-
ny's security guard force. 23 Isralian assured the store
managers that Dulac was a Cumberland Farms employee
and he received the money. Dulas, also obtained receipts
from a restaurant where he took his meals and finally re-
turned to Westborough on Friday morning, February 10.
On February 16 Dulac was summoned to Haley's
office where he met with Haley, Choquette, and Thorn-
hill. All those who testified about this incident agreed
that they discussed the fact that Dulac had been carrying
an unauthorized passenger, one Robert Braden, and they
discussed the receipts which Dulac had presented for
payment for his meals while stranded during the storm.
Dulac and Choquette testified that there was some con-
versation about the way Dulac got money from the
stores, but Haley did not mention this. Thornhill did not
testify about this meeting. There was no testimony from
anyone that the question of Dulac's chronic tardiness
was mentioned.
On the question of the unauthorized passenger,
Braden, Dulac testified that Braden was a friend of his
who wanted a job as a truck loader at Westborough.
Dulac approached Roland Simoneau, the loading super-
visor, and he said that he might be able to use Braden,
but it would be better if he had some experience. Dulac
then suggested that he take Braden in his truck in order
to show him how they loaded at Cumberland Farms, and
Simoneau agreed. Simoneau testified and denied this,
saying that Dulac told him that Haley had given permis-
sion for Braden to ride on the truck. Simoneau also said
that he had talked to Dulac about Braden, and that he
later hired him because of his experience. Thus I do not
credit Simoneau's denial that he gave Dulac permission,
at least tacitly, to allow Braden to gain that experience
by helping out on the truck.
The issue of the meal tickets came up, according to
Haley and Choquette, because of their number, Haley in-
dicated that Dulac must have had five or six meals a
day, because the numbers of the tickets ran consecutive-
ly, as if they were all written on the same pad at the
same time. Dulac said that there were only II1 tickets,
representing one meal on Monday, three on Tuesday,
Wednesday, and Thursday, and one on Friday. He ex-
plained the numerical sequence by relating that he had
first obtained a receipt from the restaurant on a single
sheet of paper, but thinking that the Company might dis-
':l Iraihan', status a a NuperVls,or is, not clear No (objection 'ras raised
Io DI)lali ' testmony of con 'ersaltilolln, ith Ikralian. and the latter was
not called upton to testifs I accept Dulac's %erilon of these conversa-
tions
1213
DECISIONS ()F NATIONAL LABOR RELATIONS BOARD
allow this, asked the restauranteur to make out the indi-
vidual tickets.
On the question of the authorization for withdrawing
funds from the stores, Dulac's story stands undenied.
Thornhill did testify that he had never authorized this
practice, but his testimony is contradicted on this as in
other areas by the credible testimony of Linda Catino,
and I do not credit him on this point. Choquette testified
that no one at Westborough, including John Peck, could
authorize a store to give money to a driver, but Haley
testified that he authorized the extension of credit from
motels to drivers stranded during the blizzard routinely.
Haley further testified that during the storm messages
were taken at the guard shack. Since Isralian, who actu-
ally authorized Dulac to get the money, is a guard, I
credit Dulac's version of this incident.
At the meeting, the question of Braden came up first,
and at first Dulac denied that he had anyone on the
truck, but then admitted that he had, indicating, as noted
above, that Simoneau had authorized it. Choquette then
began to talk about the money Dulac had obtained from
the stores. According to Dulac, Choquette asked such
questions as how much Dulac had put in his pocket, and
told him that he had taken the money without proper au-
thorization. Haley then raised questions about the meal
tickets, but Choquette accused Dulac of stealing the pad
of tickets, and said that they were getting nothing but
lies from Dulac. He then said for them to cut it "short
and sweet," and Haley stated, "I hope you realize this
has cost you your job." Dulac asked Haley to reconsid-
er but he declined.
Haley's version of these events recounts the question-
ing about Braden and about meal slips, but neither he nor
Choquette could recall that the latter used the word
"lies" in the meeting. Haley stated that Dulac became
upset because he was being questioned and said that he
did not have to "take any of this." Haley then asked him
if he quit and Dulac said "yeah, I'm quitting." Dulac
then left, but came back a half hour later and said he had
changed his mind. Haley responded that under the cir-
cumstances he thought Dulac made the right decision,
and that he thought they had better leave it the way it
was. Dulac sat there for a few minutes and Haley said he
thought he had better leave. "It'd be the best thing to
do."
In its answers to the complaints in these cases Re-
spondent admitted that it had discharged Dulac on Feb-
ruary 16. Haley's testimony clearly states that he re-
signed. Peck and Choquette also stated that it was their
understanding that he had quit while being questioned
about the money matters and the unauthorized passenger
on February 16.24 However, in its correspondence with
the Massachusetts Division of Employment Security on
Dulac's application for unemployment compensation25
Respondent maintained, under penalties of perjury, that
Dulac was discharged for having an unauthorized person
in his truck. He was therefore held by the DES to be
disqualified from receiving benefits. Dulac appealed this
z4 Ch(xluette claimed that he had left the February 16 meeting before
it ended and that he did not witness the resignation himself
'2 Respondent contracts the duty of representing it before the DES to
an organization called Jon-Jay As.ociates Inc.
action and Respondent sent in a letter to the DES ampli-
fying the former reason it gave for his discharge by
adding that he was fired for unauthorized borrowing of
money from company stores, and for excessive tardiness,
emphasizing that "it was excessive tardiness that 'trig-
gered' the discharge." In this letter Respondent listed a
number of days on which Dulac was late, pointing out
that on each occasion he was verbally warned, including
"2-7-78, arrived 6:08 a.m.," "2-8-78 arrived 7:40 a.m.," on
both of which days he was marooned in the snow some-
where in Rhode Island living on the money for which he
was allegedly fired for obtaining in the stores. He was
also characterized as being late on February 20, 4 days
after he was really fired. In view of these shifting, incon-
sistent, and inaccurate reasons advanced by Respondent
for Dulac's termination, I find that the real reason for
Dulac's discharge was something other than the several
different reasons advanced to the Division of Employ-
ment Security, and to me. That reason, I infer and find,
based on the threats by Thornhill noted above, and par-
ticularly the evidence in the Freeman case, discussed
below, was the participation by Dulac in protected con-
certed activities.
The first reason advanced by Respondent to the DES,
that Dulac carried an unauthorized passenger, does not
stand up when one considers that Fluette received only a
warning for the same offense. Haley himself testified that
the second reason, the unauthorized obtaining of funds
was not really investigated, and his testimony that credit
was extended to other drivers during the February storm
fairly contradicts the testimony of Thornhill and Cho-
quette that the credit of the Company cannot be pledged
by anyone at Westborough.2 e The final, and according
to Respondent's representations to the DES, the most
important reason for Dulac's discharge is revealed by the
evidence to be, simply, a fraud. It is clear, then, that
none of these reasons, even if they had finally been relied
on by Respondent to justify the discharge of Dulac,
could have served as a valid reason for that discharge.27
But Respondent did not, in the end, rely on any of these
reasons, but maintained that Dulac resigned under fire. I
do not credit the version of this incident related by
Haley. Haley's story was not corroborated by Cho-
quette. 28 The characterization of Choquette's statements
by Dulac are wholly in accord with my observations of
Choquette as a witness and, consistent with my addition-
al findings on Choquette's actions in the Freeman case,
Dulac's testimony on the incident was, based on his de-
meanor while testifying, and on the inconsistencies in
Respondent's stories noted herein, credible and logical.
I thus find that Dulac was summoned to Haley's office
on February 16; that he was hectored and badgered by
Choquette; and finally that he was fired by Haley for
26 If, in fact, the meal tickets showed an excessive number of meals. it
would have been a simple matter for Respondent to introduce them into
evidence. Similarly. if Isralian had not authorized Dulac to obtain money,
it would have been easy for Respondent to bring him in to testify on the
point.
2? Respondent offered no explanation for the plain errors in the docu-
ment submitted to the DES on Dulac's absences. No representative of
Jon-Jay Associates was called upon to testify.
a" Thornhill did not testify at all on the incident.
1214
CUMBERLAND FARMS DAIRY
reasons which, while offered to the DES in opposition to
Dulac's receipt of unemployment compensation, were
then abandoned by Respondent in this proceeding. 2 9
F. The Termination of Michael Freeman
Michael G. Freeman had been employed by Respond-
ent from May to September 1977. He left voluntarily at
that time, but returned in December 1977 and was re-
hired. His job was that of an order picker in what was
called the health and beauty section of the warehouse
under the supervision of James Taylor.
During his first tour of duty at Cumberland Farms
Freeman had no disciplinary problems, but after his
rehire he had difficulties in getting to work on time.
Freeman admitted that Taylor had spoken to him about
this, but indicated that this had only happened once, in
mid-February 1978.
Freeman was apparently unaware of any other union
organization effort. At the end of February he became
annoyed because he and the other warehouse employees
were not paid for the Washington's Birthday holiday. He
thereupon talked to a few people during lunch and at
breaks30 on the possibility of forming a union in the
warehouse. Receiving a favorable reaction he contacted
a Mr. McCarthy at "Local 701 on Millbury Street in
Worcester" on March 2.3
' Freeman set up a meeting for
March 3 at a Veterans of Foreign Wars post in Westbor-
ough, but as a result of a conversation with another em-
ployee, who was not called to testify, he canceled the
meeting.
Then, on March 8, about 3: p.m., Taylor approached
Freeman, who was standing with two other employees,
and drew him off to one side, looked around to see if
anyone was listening, and told him that he had just come
from John Peck's office and that he was laid off, effec-
tive immediately. Freeman asked why, and Taylor re-
sponded that it was lack of work. Taylor instructed
Freeman to punch out immediately, which he did.3 2
John Peck testified that Freeman was laid off for lack
of work. Peck stated at one point that he personally told
James Taylor to lay Freeman off, but then testified that
29 In considering the fate of the Roys, Fluetlte, and Dulac. I note Re-
spondent's argument that its lack of antiunion motivation is demonstrated
by the fate of the fifth card signer. Richard Lombardo. It is undenied
that Lombardo was not discharged and did not quit, but Was promoted to
supervisory status This is certainly a factor to consider in determining
antiunion motivation But the burden of proof is on the General Counsel
to show that motivation by a preponderance of the credible evidence.
This I have found that he has done Lombardo's promotion, without esi-
dence as to Respondent's motive in promoting him, does not require that
I disregard all of the evidence pointing to a conclusion opposite io that
urged by Respondent. I raise no adverse inference from the failure of Re-
spondent to call Lombardo to testify. but I can make no positive findings
on his case either. This single exception does not in this case prove any-
thing concerning Respondent's motivation
3o Although Freeman gave the names of four employees to whom he
talked, none of these employees was called to testify.
31 This may be the same local approached by Rand, but there is no
further identification in the record. No union agent or representative tes-
tified as to this contact.
a2 I base these findings on the undenied and credible testimony of
Freeman who. despite his short stay on the witness stand. I found to he a
candid and credible witness. James Taylor was not called upon to testify
either by the General Counsel or Respondent. I draw no adverse infer-
ence against either party from this circumstance. hut I note that there is
no denial on the record of Freeman's version of the event
he had named no names, but told Choquette to direct the
lower level supervisors, including Taylor, to lay off a
specified number of employees at the end of that day be-
cause of a decline in orders. Peck did say that the layoff
of Freeman was later changed to a termination, but he
did not know when. However, in a report to the Divi-
sion of Employment Security on Freeman's application
for unemployment compensation, Jon-Jay Associates,
Respondent's agent, ascribed the reason for his termina-
tion as lack of work.
Choquette told a different story. He stated that each
week he checks employee timecards to see which of the
warehouse employees was late or absent. He testified
that he had noted Freeman's tendencies toward frequent
tardiness and asked Taylor to speak to him about it. A
week later, Choquette noted that Freeman was still
coming in late so he wrote up a "Report of Oral Repri-
mand," listing Freeman's latenesses and absences. He
went down and showed this report to Freeman, who
read it and handed it back to Choquette. The latter then
said that if this continued Freeman would be terminat-
ed.33 Then, sometime later, Choquette did not remember
the exact date, Taylor told Choquette that he was going
to terminate Freeman for excessive lateness and absentee-
ism. Taylor asked Choquette to make up a form so that
he could have it later. According to Choquette, he knew
nothing about Freeman's organizational efforts, nor was
there any mention of the union in the conversation be-
tween him and Taylor concerning Freeman's discharge.
On the same day, Peck informed Choquette about the
layoff because of slack orders. Choquette went to each
supervisor, including Taylor, and informed each of the
number of employees to be laid off. According to Cho-
quette, Taylor told him that he wanted to lay off people
he wanted to take back, but that he was going to termi-
nate Freeman. Then, later that afternoon, Freeman came
to see Choquette and wanted to know why he was fired.
Choquette showed Freeman an employee disciplinary
report showing a number of absences and late days.
Freeman threw the sheet on the desk and left.
If this were all the testimony of the Freeman termina-
tion I would be faced with a resolution of the credibility
of each witness, together with an evaluation of the valid-
ity of the Company's defense in the light of its adherence
to its own rules, the seriousness of Freeman's derelic-
tions, and a comparison with the treatment of other,
comparably situated, employees. Here, as I have noted
above, there is ample evidence that the Company en-
forces its written rules casually or not at all in some in-
stances. There is evidence that Freeman had the worst
record of any other employee in his department and that,
if action of the type described by Choquette were taken
against Freeman, it would be warranted by his failure as
a reliable and prompt employee. On the other hand,
there is evidence that, while other offending employees
were the subjects of requests by Choquette to Taylor for
" Although Ch oulette stated at one poini that this warning. dated
February 6. was the first warning he gase him. Choquette did not men-
tion another warning dated January 19 allegedly for neglecting to pick
tup trash around the warehouve
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reprimands, 34 Choquette himself admitted that he
checked no other files, nor made out similar reports to
those he had made out on Freeman on other employees.
There were several other employees whose attendance
records were not so bad as Freeman's but who came
fairly close.
I do not, however, have to make these comparisons in
this case because of an incident related by Linda Catino.
She testified that in the spring of 1978, in March or
April, she was called by Choquette and asked to pull out
Freeman's personnel file, and to say nothing about it.
She did so and brought it over to the door of Cho-
quette's office, where he was standing, and handed it to
him. She asked what he wanted it for and he replied that
Freeman had been trying to start a union in the ware-
house and they had fired him. He added that Freeman
had filed suit against Cumberland Farms and they had to
substantiate their claim as to why they fired him. While
they were talking in the half-open doorway of Cho-
quette's office, Catino observed Respondent's attorney.
Philip J. Moss, sitting at Choquette's desk about 4 or 5
feet from where they were standing.
On the next day, Catino testified, Choquette asked her
to pull all of the time records for all warehouse employ-
ees. He said they had to go through all of Freeman's ti-
mecards to find out what days he was late or absent be-
cause Cumberland Farms had stated that they had termi-
nated Freeman for excessive lateness but there was noth-
ing in the folder to indicate that. Choquette further told
her that at the time Freeman was fired, Nozzarella, an-
other supervisor, made the mistake of mentioning his
union activity to him.
With regard to this incident, Choquette testified that
Moss came out to Westborough twice during the month
of April. On the first visit, Choquette testified, he did not
know the reason for this visit. He did obtain records for
Moss, but continued to state that he did not know why
Moss was there until the latter's second visit. Choquette
stated that Linda Catino never was asked to pull files for
him; that he had total access to all files; and that he him-
self obtained all the materials which Moss requested. He
denied ever telling Catino that Freeman was fired for
trying to start a union. Choquette also mentioned a third
trip by Moss to Westborough at which time an agent of
the Board was present.
Moss testified that he went to Westborough for the
first time in relation to this case on April 17, 1978, in re-
sponse to the filing of the charge on April 7. Before that
he had requested Choquette to look into the circum-
stances of Freeman's termination and to have available
for him the employee's file, and the plant rules. On April
17 Moss asked for and was shown Freeman's file and the
Company's work rules. He also asked to see the files of
other employees, and checked with Choquette regarding
the circumstances of Freeman's discharge. Moss specifi-
cally denied that he had heard Choquette tell Catino that
Freeman was discharged for trying to start a union.
Moss testified that he returned to Westborough and there
met with one Gentile, a Board agent. At that time, prior
"4 At one point in his testimony Choquette said he had done this, at
another point he did not recall whether he had or not In any event, he
did not know whether anything was done about the others
to Gentile's arrival, Moss again looked over personnel
files and timecards of Freeman and other employees in
his section.
Moss testified that he first became aware of Linda
Catino "in a supervisory position at Cumberland Farms"
on December 7, 1978, the day she testified in this hear-
ing. However, on cross-examination he admitted that he
"may very well" have had her pointed out to him as the
office manager and that he "may very well" have seen
her prior to December 1978. With respect to whether he
was present when Catino was asked to bring documents
to Choquette, Moss replied, "I may very well have been.
I don't have a specific recollection as to any incident."
Respondent urges that I disregard or discredit the tes-
timony of Linda Catino on the grounds that the relation-
ship between Catino and Respondent's supervisors at
Westborough "was one of open and virulent hostility;
that she had resigned from the Company in a rage in
July 1978; that she had been harassed and threatened by
the discriminatees herein and by Board agents to testify
in this matter; and that the Board's contacting and inter-
view of her were made without observing the require-
ments of Section 10056.5 of its own case handling
manual)." As a result of these factors Respondent sub-
mitted that Catino's testimony "was the product of emo-
tional bias, suggestibility, and/or coercion" and should
not be credited.
Respondent is understandably concerned over this tes-
timony, wide-ranging as it is and touching in significant
measure each aspect of both of the cases consolidated
herein. Since Respondent's concern was evident even
while she was testifying and since the responses she gave
were so evidently critical to the interests of the parties in
the cases, I took special care to note and observe her de-
meanor while testifying. She appeard nervous, but
candid and sure in her answers. Her attitude betrayed no
animosity or desire for revenge on Respondent, as I
noted in the testimony of Curtis Rand. Her responses
were open, logical, and consistent both on direct exami-
nation and on vigorous cross-examination. I thus find
her, on the basis of her demeanor, to be a credible wit-
ness.
Turning to the issues raised by Respondent, there is an
abundance of testimony from Respondent's witnesses,
corroborated to some extent by Catino herself, that she
was often embroiled in controversy with supervisors and
employees in the Company. There is, however, no evi-
dence from any source that her differences with others
were in any way personal, or derived from any motive
other than her perhaps rather inflexible desire that
proper procedures be followed, forms be correctly filled
out and timely filed and, generally, that things be done
right. If she became, in her pursuit of system and order
something of a zealot, there is no question from all the
evidence on the subject, that her zeal was directed, with
single-minded dedication in the interests of Cumberland
Farms. I find in this no evidence of emotional or any
other kind of bias against the Company. Her resignation
was emotional, certainly, but again was due to long
hours, too little pay, and a lack of cooperation. As she
put it, things were not being done the way she wanted. I
1216
CUMBERLAND FARMS DAIRY
find no evidence here which would lead me to believe
she would fabricate the testimony she gave in this pro-
ceeding.
After her resignation in July 1978, Catino testified that
Fluette called her about the case. She testified that she
did not know why he wanted information from her, so
she refused to give him any information. She also re-
ceived a call from William Roy and similarly refused to
give him any information. At this point she called Peck,
told him people were calling her and asked him if he
could stop it. She then received a call from Board Agent
Gentile and she told him she did not want to get in-
volved. She stated that she had left Cumberland Farms
and did not want to be involved with them again. In
thinking about the matter, she testified that she felt
guilty. She knew the facts that she later testified about at
this hearing. So she called Gentile and told him that she
would testify, but would not say anything unless it was
absolutely true.
While she may have complained to Peck, both on the
telephone and in person,35 there is no evidence that the
calls she received were threatening, coercive, or harass-
ing in any way.36 There was no evidence at all that
Freeman was engaged in calling Catino or had anything
to do with her testimony at this hearing.
With regard to the Board's alleged violation of its
Case Handling Manual, I have noted above that the evi-
dence does not support a conclusion that Catino was a
supervisor within the meaning of Section 2(11) of the
Act, and thus the cited provision of the manual is inap-
plicable.
Accordingly, I disagree with Respondent's arguments
that Catino was biased or that her testimony is tainted
with coercion or that she was a suggestible witness. I
find her testimony to be entirely credible.
The testimony of Choquette was somewhat less than
credible. As with Catino, I observed his demeanor close-
ly while he was testifying. He was, like Catino, nervous,
but he was sweating and obviously uncomfortable when
he was asked questions concerning the matters involving
the conversation with Catino on Freeman, as opposed to
his confident, even arrogant appearance while testifying
on other matters. His testimony was inconsistent in
regard to his statement that the first time he gave Free-
man a warning was on February 6, when the record
shows another dated January 19, and strained belief
when he testified that he was unaware of the reason for
the first visit of Moss to Westborough in April. For
these reasons I do not credit Choquette's testimony on
substantive issues.
Moss' testimony does not require a different conclu-
sion. In this proceeding I found him to be a spirited and
vigorous advocate, well prepared and knowledgeable as
to the facts and the law of the matter. As a witness I
found him to be evasive, vague, and argumentative to
3' Peck testified that she came to his office on the verge of tears to ask
him for help in stopping the calls.
s0 Catino testified that she had been threatened by Curtis Rand and by
Noel Roy. but there was no further testimony that these threats occurred
in connection with this case. or for some other reason I cannot find that
they occurred in the sequence of events which led up to her testimony in
this case
the point where his own associate, co-counsel for Re-
spondent, had to admonish him. His testimony contra-
dicted Choquette in that he stated that he advised Cho-
quette before his first visit what he wanted, then when
he arrived, spent 1-1/2 to 2 hours going over files and
work rules. Moss' testimony also contradicted itself in re-
spect to his knowledge of Catino prior to the instant
hearing, noting at one time that he was not even aware
of her before she testified herein, and then denying that
he knew her by name or sight before April 1977, and ad-
mitting that he may very well have been aware of her
and her position at Westborough prior to the hearing,
then retreating to his original denial of knowledge about
her. However, despite his denials that he ever heard
Choquette state that Freeman had been fired for trying
to start a union, either during the investigation or in
preparation for the hearing, he stated he had "no specific
recollection" that he was present when Choquette asked
secretarial personnel to retrieve records. Thus he did not
deny that such a request may have been made, and ex-
ecuted while he was there.
In view of my resolution of the credibility issue be-
tween Choquette and Catino, I find that he stated to her
that Freeman had been fired for trying to start a union in
the warehouse and that they had to reconstruct his rec-
ords to substantiate their claim as to why they fired him.
I find further that Moss was sitting in Choquette's office
during this conversation and that his testimony that he
did not remember Choquette asking for or receiving files
from secretarial employees is disingenuous and untrue.
While I find that Moss witnessed this exchange between
Choquette and Catino, there is insufficient evidence for
me to conclude that he actually heard the conversation.
Choquette and Catino were standing in the doorway,
which was half open. The outer office was a large area
serving as the workplace for a number of clerical em-
ployees, who were described as constantly opening and
closing file cabinets and using typewriters, with the usual
background of ringing telephones and conversation.
Thus, even though Moss may have been only 4 or 5 feet
away from them, I cannot find with certainty that he
heard what was said. Neither can I find, despite the sus-
picious circumstances, that Moss participated in, or ad-
vised, the post-layoff "discharge," and the production of
the warning slips of January 19 and February 6 which
were introduced in this hearing and which I find were
not shown to Freeman on the dates thereon, but were
manufactured by Choquette, as was the dismissal notice
of March 8, as post hoc justification for Freeman's "dis-
charge."
I find, based on Choquette's statements to Catino, on
Freeman's own testimony, and on the representations of
Respondent's agent to the Division of Employment Se-
curity on March 23, 1978, that Freeman was in fact laid
off on March 8, and that that layoff was due to his pro-
tected concerted activities. 3 7 Ifind further that after
37 The fact that Freeman was hustled off the premises in the afternoon.
contrary to Peck's instructions that the layoff was to take place at the
end of the day, together with Taylor's conspiratorial implementation of
the layoff. are also considered as factors in my finding that the layoff was
Continued
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Freeman filed his charge with the Board on April
4,1978, Respondent took advantage of Freeman's admit-
tedly poor attendance record to fabricate a justification
for his "discharge." The discharge, of course, never hap-
pened at all.
Choquette's statement to Catino showing clearly Re-
spondent's attitude toward its employees' union activities,
and Freeman's layoff within a few days after he attempt-
ed to organize a meeting of employees to discuss a
union, also serve to illuminate the prior actions of Re-
spondent. After Peck had reinstated the Roys and
Fluette at the noontime meeting on February 2, he testi-
fied, he had a meeting with Choquette, 38 after which he
changed his mind and revoked the reinstatement. Re-
spondent's explanation, that Peck found out about the
fight after he had met with the employees, does not
stand up under analysis. William Roy and Fluette testi-
fied, credibly, that they told Peck about the fight. Fur-
ther I have found that Peck must have heard of the fight
even before the interview. It is illogical that Peck, as the
chief executive at the warehouse, would even have sat
down with these employees, let alone without having
been briefed on the reason for their visit. Thus it is only
logical and consistent that Choquette, in his conversation
with Peck on the afternoon of February 2, brought up
the involvement of these employees in what I have
found to be protected concerted activities, in much the
same way as he had mentioned to Catino about Freeman.
The unlawful motivation, clear and explicit in Freeman's
case, may be inferred, as I have done, in the cases of the
Roys and Fluette.
In Dulac's case, too, the circumstances of his terminal
interview, and the shifting, crudely fraudulent reasons
given to the Division of Employment Security, and in
this hearing, gave rise to the inference, which I have
made, that the real reason was Dulac's engagement in
the same protected concerted activities. Choquette was
again present at this interview, and Dulac's credible testi-
mony shows that Choquette was the moving force in the
verbal attack on Dulac and his eventual discharge.
G. Concluding Findings
While there is no evidence that Local 170 is a labor
organization, there is evidence that the Roys, Fluette,
and Dulac signed cards pledging their support to that or-
ganization. Unaware of Rand's duplicity, they thought
they were engaging in union activities, as did Freeman,
although there is no evidence that he went so far as to
sign a union authorization card. Indeed, as I have found,
Choquette, Thornhill, and thereby Respondent, also
thought that all of these employees were engaged in
union activities. There is no question that all of the em-
ployees in question were engaged in protected concerted
activities.
Thus I find that by revoking the reinstatement of Wil-
liam Roy, Noel Roy, and Robert Fluette, and in effect
discharging them, by discharging Marcel Dulac, and by
a pretext to get Freeman off the premises fast. In any event, there was no
documentation of the alleged economic basis for the layoff.
a8 Peck's statement that he also met with Haley was denied by Ha!ey.
I do not credit Peck's version, but find that he spoke with Choquette
only on that day.
laying off Michael Freeman, Respondent has violated
Section 8(a)(1) and (3) of the Act.
I do not find a violation of law in Peck's statement
that "unhappy drivers try to get unions in and we don't
want that." This statement, even crediting the testimony
of William Roy and Fluette that the topic of union was
initiated by Peck and not by Fluette, does not constitute
more than an expression permitted under Section 8(c) of
the Act. There is no threat or promise either expressed
or implied, and coming up, as it did in a conversation
free from hostile or coercive manifestations, in fact
where Peck had already reinstated the Roys and Fluette,
I cannot find any violation of Section 8(a)(1).
IV. THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent unlawfully revoked the
reinstatement of its employees William Roy, Noel Roy,
and Robert Fluette, and thereby in effect discharged
them; discharged its employee Marcel Dulac; and laid off
its employee Michael Freeman, I shall recommend that
Respondent offer William Roy, Noel Roy, Robert
Fluette, Marcel Dulac, and Michael Freeman full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice
to their seniority or other rights and privileges, and make
them whole for any loss of earnings suffered by reason
of the discrimination against them by payment to them of
sums of money equal to that which they normally would
have earned, absent the discrimination, less net earnings
during such period, with interest thereon, to be comput-
ed in the manner prescribed in F. W. Woolworth Compa-
ny, 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977).39
In view of the serious nature of the unfair labor prac-
tices found here, and considering what I have found to
be false and fraudulent documents submitted to the Mas-
sachusetts Division of Employment Security, and into
the records of this hearing, I shall recommend a broad
cease-and-desist order against Respondent in order to ef-
fectuate the policies of the Act.
V. CONCLUSIONS OF LAW
I. Cumberland Farms Dairy, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. By revoking the reinstatement of its employees Wil-
liam Roy, Noel Roy, and Robert Fluette on February 2,
1978, and by subsequently refusing to reinstate them, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the Act.
3. By discharging its employee Marcel Dulac on Feb-
ruary 16, 1978, and by subsequently refusing to reinstate
a" See, generally, Isis Plumbing and Hearing Co., 138 NLRB 716
(1962).
1218
CUMBERLAND FARMS DAIRY
him, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(l) and (3) of the Act.
4. By laying off employee Michael Freeman on March
8, 1978, and by subsequently refusing to reinstate him,
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(l) and
(3) 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, I issue the following recommended:
ORDER 4 0
The Respondent, Cumberland Farms Dairy, Inc.,
Westborough, Massachusetts, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from (a) discharging, laying off, or
revoking the reinstatement of its employees for engaging
in union activities or in concerted activities for their
mutual aid and protection, or in any other manner inter-
fering with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them in Section 7 of the
Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
4' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions, 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.
(a) Offer to William Roy, Noel Roy, Robert Fluette,
Marcel Dulac, and Michael Freeman immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs, without
prejudice to their seniority and other rights and privi-
leges, and make them whole for any loss of earnings suf-
fered by reason of the discrimination against them in the
manner set forth in section IV of this Decision entitled
"The Remedy."
(b) Preserve and, upon 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 all other records necessary
for determination of the amount of backpay due under
the terms of this Order.
(c) Post at its place of business in Westborough, Mas-
sachusetts, copies of the attached notice marked "Appen-
dix.",4 Copies of such notice, on forms provided by the
Regional Director for Region 1, after being signed by an
authorized representative of Respondent, shall be posted
by Respondent immediately on receipt thereof, and shall
be maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by other material.
(d) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order what
steps Respondent has taken to comply herewith.
4 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
1219