Tubari Ltd., Inc.

National Labor Relations Board - Board Decisions

Feb 29, 1988

287 N.L.R.B. 1273 (N.L.R.B. 1988)

TUBARi LTD 1273
Tubari Ltd ., Inc. and Fur Workers Union Local 3,
United Food and Commercial Workers, AFL-
CIO
Local 1518 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America, AFL-CIO' and Fur Workers Union,
Local 3, United Food and Commercial Workers,
AFL-CIO. Cases 22-CA-13581, 22-CA-13615,
and 22-CB-5241
29 February 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On 19 December 1985 Administrative Law
Judge Howard Edelman issued the attached deci-
sion . The Respondent Employer (Respondent
Tubari) filed exceptions and a supporting brief, the
General Counsel filed exceptions and a supporting
brief, and each of them filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs2 and
has decided to affirm the judge's rulings, findings,3
and conclusions4 as modified and to adopt the rec-
ommended Order, as modified and set forth in full
below. 5
i On 1 November 1987 the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly , the caption has been amended to
reflect that change
2 The Respondent Employer has requested oral argument This request
is denied as the record , exceptions , and briefs adequately present the
issues and the positions of the parties
3 The Respondent Employer and the General Counsel have excepted
to some of the judge 's credibility findings The Board 's established policy
is not to overrule an administrative law judge 's credibility resolutions
unless the clear preponderance of all the relevant evidence convinces us
that they are incorrect Standard Dry Wall Products , 91 NLRB 544
(1950), enfd 188 F 2d 362 (3d Cir 1951 ) We have carefully examined
the record and find no basis for reversing the findings
The judge found that employee Tomas Cruz worked on the wet floor
30 November 1984 The record demonstrates , however, that Cruz was as-
signed to cleanup duties that day as he had been assigned to do on other
occasions that week due to the ongoing construction occurring at Re-
spondent Tubari's facility at that time We find that this error is insuffi-
cient to affect the results of our decision
4 We agree with the judge that deferral to the arbitration award up-
holding Respondent Tubari 's discharge of Molina and the other employ-
ees on 3 December 1984 is not appropriate In so doing , however, we do
not rely on that part of the judge 's discussion in which he finds that an
"inherent conflict" existed because Respondent Union Local 1518, an in-
cumbent union , sought to arbitrate the discharge of the floorworkers who
were members of or supporters of Fur Workers Local 3, a rival union
which was also seeking to represent the employees Rather , in view of
the specific circumstances involved herein , described more fully infra, we
find that an actual conflict of interest existed between Respondent Union
and the discharged floorworkers such that deferral would be inappropri-
ate
s The General Counsel excepted to the judge's failure to include em-
ployee Juan Moreira in the notice to employees as one of the employees
to be offered reinstatement In view of the judge's findings and conclu-
sions concerning Moreira, with which we agree , we find merit in this ex-
1. The General Counsel excepts to the judge's
failure to make a finding with respect to Respond-
ent Tubari's failure to reinstate employee Felix
Gonzalez at the conclusion of his disability leave.
The uncontroverted evidence established that
during the period beginning about 3 December
1984 and ending 7 January 1985 Gonzalez was on
disability leave. During that period, he also partici-
pated on a daily basis in the picketing and strike
activity engaged in by certain discharged employ-
ees. On 7 January 1985, at the end of his disability
leave, Gonzalez reported back to work. He testi-
fied that Respondent Tubari's officials refused to
reinstate him because of his participation in the
strike. In view of our agreement with the judge
that the strike was a lawful unfair labor practice
strike, we find that Gonzalez' participation in it
constituted protected concerted activity Accord-
ingly, we find that Gonzalez was entitled to rein-
statement by Respondent Tubari on his request to
return to work 7 January 1985 and that Respond-
ent Tubari's failure to reinstate Gonzalez violated
the Act. Thus, we will amend the conclusions of
law and remedial provisions to reflect this finding
and to provide an appropriate remedy for Gonza-
lez. Notwithstanding the violation we find here, we
do agree with the judge that Respondent Tubari
did not violate the Act by issuing a warning letter
to Gonzalez and refusing to send his paycheck
home with another employee.
2. The judge found, inter alia, that Respondent
Union Local 1518 had not violated Section
8(b)(1)(A) of the Act in its representation of certain
discharged employees in an arbitration proceeding.
We reverse this finding
The facts show that the employees were dis-
charged on 3 December 1984.6 As the judge found,
these discharges were in violation of the Act and
were part of Respondent Tubari's attempt to dis-
suade the employees from replacing Local 1518
with Local 3.7 Regarding this 8(b)(1)(A) allegation,
ception and will correct this inadvertent error by substituting a new
notice
The backpay and reinstatement entitlement of certain of the discrimina-
tees in this proceeding may be affected by the order in the unpublished
decision in Tubari Ltd, infra at fn 7 We will provide our usual reinstate-
ment and backpay remedies here and will leave these matters to the com-
pliance stage of this proceeding
We have added the narrow remedial order language which was inad-
vertently omitted from the judge's recommended Order
6 All dates refer to 1984 unless otherwise indicated
7 In agreeing with the judge that the employees were unlawfully ter-
minated by Respondent Tubari on 3 December 1984 or, in the alterna-
tive, that if the employees engaged in a walkout , that it was protected
activity in accordance with the holding of Maviro Plastics Corp v NLRB,
350 U S 270 ( 1956), we note that subsequent to the issuance of the
judge 's decision, the Board issued an unpublished decision in Tubarf Ltd,
Case 22-CA-13990 et al , involving Respondent Tubari That decision
approved a settlement stipulation of the parties in which Respondent
Continued
287 NLRB No. 131
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the judge found that following the employees' dis-
charge on 3 December, Respondent Union's presi-
dent, Mongello, had demanded their reinstatement
on 4 December. When Respondent Tubari refused
to reinstate the employees, Mongello brought the
matter to expedited arbitration on 10 December.
The judge noted that Mongello met with the em-
ployees on that date for about 40 minutes and se-
lected the two most qualified employees as wit-
nesses and briefly reviewed their testimony. At the
arbitration hearing, according to the judge, Mon-
gello elicited considerable testimony concerning
the events of 3 December. The judge found that
the only significant evidence that was not present-
ed to the arbitrator was Respondent Tubari's
8(a)(1) conduct which had preceded the discharges
and that "[t]here was no evidence that Local 1518's
failure to elicit such evidence was based upon a
discriminatory intent or bad faith," attributing such
failure instead to "poor judgment, or inept or care-
less handling." Although in his refusal to defer to
the arbitrator's award (in considering the lawful-
ness of the discharges), he found it critical that Re-
spondent Tubari's 8(a)(1) conduct had not been
presented to the arbitrator, he concluded that such
conduct, standing alone, did not establish a breach
of the duty of fair representation by Respondent
Union and, accordingly, he dismissed this
8(b)(1)(A) complaint allegation.
Contrary to the judge's conclusion, we find that
compelling evidence exists demonstrating Respond-
ent Local 1518's animus toward the discharged em-
ployees. In this respect, we note certain additional
unfair labor practice findings that the judge made
concerning Local 1518's conduct toward the em-
ployees that he failed to consider in evaluating this
complaint allegation. Thus, the judge found that on
28 November, just a few days prior to the floor-
workers' discharge, Mongello had demonstrated
hostility towards employees' activity on behalf of
Local 3. On that date, Mongello met with D.
Perez, an employee who had been discharged by
Tubari for reasons unrelated to the instant matter.
Mongello asked Perez if Local 3 representatives
had spoken to him. Perez did not answer. Mon-
gello then told Perez that he would try to get
Perez reinstated if Perez agreed to support Local
1518. When Perez told Mongello that Mongello
could not count on that support, Mongello told
Perez that he was not going to help him and the
Perez grievance was later withdrawn by Respond-
ent Union. The judge found the statement and the
refusal to represent Perez violated Section
Tubas, inter aha , waived its defense in the instant case that the employ-
ees were engaged in activity which was not protected under the Act, i e,
that they were engaged in an unlawful strike
8(b)(1)(A) of the Act. The judge also found that,
on 20 December, Mongello visited Tubari's facility
and notified the striking employees that the arbitra-
tor had ruled in Tubari's favor. Mongello told em-
ployee Moreira that because striking employees
were with Local 3, he would represent the people
inside instead. Mongello also told Moreira that the
employees should have gone to him instead of
Local 3-that if they had, things would have been
different, but because they did not they had lost
the case. The judge found that Mongello's state-
ment to the effect that because the discharged em-
ployees had supported Local 3, Local 1518 would
not represent them also violated Section 8(b)(1)(A)
of the Act. Despite these findings, the judge found
no evidence of discriminatory intent or bad faith
by Local 1518 in the arbitration proceeding, appar-
ently viewing its conduct at that proceeding as an
isolated event, unaffected by these clear statements
of intent, hostility, and motivation toward the em-
ployees' efforts to unseat Local 1518. Contrary to
the judge, we find that these clear expressions of
Local 1518's hostility toward the employees' efforts
in support of Local 3 constitute compelling evi-
dence, not otherwise countered by Local 1518, that
the Respondent Union breached its duty of fair
representation to the discharged employees in the
arbitration proceeding. Accordingly, we conclude
that Local 1518 violated Section 8(b)(1)(A) of the
Act and will order it to cease and desist from fur-
ther engaging in this conduct. However, in view of
our order requiring Respondent Tubari to, inter
alia, reinstate and make whole these unlawfully dis-
charged employees, we find it unnecessary to also
order the Respondent Union to provide an affirma-
tive remedy for this conduct.8
8 The General Counsel has excepted to the remedy provided by the
judge with respect to his finding that Respondent Union violated Sec
8(b)(1)(A) by withdrawing the D Perez grievance, which was pending
arbitration, from the grievance procedure We find merit in the General
Counsel's exception that the judge's remedy is inadequate but do not
adopt her suggested make -whole remedy We note that subsequent to the
issuance of the complaint, Local 1518 rescheduled the arbitration, which
had not been completed at the time of the hearing in this case In these
circumstances , we do not agree that it is appropriate at the present time
to declare Local 1518 liable for backpay if Perez' grievance is not re-
solved in arbitration At the least, Local 1518 should have the opportuni-
ty in the compliance proceeding to contest backpay liability by showing
that, had the grievance been arbitrated Perez would have lost on the
merits In Rubber Workers Local 250 (Mack-Wayne Closures), 279 NLRB
1074 (1986), the Board recognized that backpay liability is appropriate in
the absence of evidence warranting a finding that the grievance lacks
merit " In the particular circumstances of this case, we do not believe
that Local 1518 has had a fair opportunity to litigate this issue because
we consider it unrealistic to expect Local 1518 to have attempted to dem-
onstrate the grievance 's lack of merit in the unfair labor practice proceed-
ing below , at a time when it was preparing to reactivate the arbitration
proceeding over the grievance Hence, we leave to compliance all ques-
tions respecting the make-whole remedy for D Perez
TUBARI LTD
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of
Law 11
"11 By refusing to reinstate Enrique Moreira,
Felix Gonzalez, and the employees set forth in
paragraph 10 above, on their unconditional offers
to return to work, Tubari violated Section 8(a)(3),
(2), and (1) of the Act "
2. Add the following as Conclusion of Law 14
"14 By failing to properly represent Enrique
Moreira and the employees set forth in paragraph
10 above at an arbitration proceeding because of
the employees' membership in and activities on
behalf of Local 3, Local 1518 violated Section
8(b)(1)(A) of the Act."
AMENDED REMEDY
Having found that Respondent Tubari and Re-
spondent Local 1518 have engaged in various
unfair labor practices, we will order that they cease
and desist therefrom and take certain affirmative
actions designed to effectuate the policies of the
Act.
Because we have found that Tubari discrimina-
torily discharged and/or refused to reinstate those
employees set forth in paragraphs 10 and 11 of the
Conclusions of Law, as amended, we will order
Tubari to offer them immediate and full reinstate-
ment to their former jobs or, if they no longer
exist, to substantially equivalent positions of em-
ployment, without prejudice to their seniority or
other rights and privileges previously enjoyed
We will order that Tubari make whole the em-
ployees set forth above in paragraphs 10 and 11 of
the Conclusions of Law, as amended, for any loss
of earnings they have suffered by reason of the dis-
crimination against them from the dates of their
termination or Tubari's failure to reinstate them
until the dates of their reinstatement or Tubari's
valid offers of reinstatement to them.
Backpay for the above employees will be com-
puted in accordance with the formula approved in
F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in
New Horizons for the Retarded.9
We will also order that Tubari remove from its
records any references to their unlawful discharges,
and to provide written notice of such removal to
those employees, and to notify them in writing that
9 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
1275
it has done so and that the unlawful conduct will
not be used as a basis for future personnel actions
concerning them. Sterling Sugars, 261 NLRB 472
(1982).
We will order Local 1518 to take certain action
in pursuit of the grievance of D Perez Ultimately,
in the event that it is not possible for Local 1518 to
pursue the remaining stages of the grievance proce-
dure, resulting in the inability to resolve the griev-
ance on its merits, we will give Local 1518 the op-
portunity in the compliance proceeding to contest
backpay liability by showing that had the griev-
ance been arbitrated, D. Perez would have lost on
the merits
On these findings of fact and conclusions of law
and on the entire record, we issue the following
ORDER
The National Labor Relations Board orders that
A. The Respondent Employer, Tubari Ltd., Inc.,
Saddlebrook, New Jersey, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their
membership in or activities on behalf of Fur Work-
ers Union, Local 3, United Food and Commercial
Workers, AFL-CIO.
(b) Threatening its employees to close the shop if
Local 3 is selected as the collective-bargaining rep-
resentative of its employees.
(c) Threatening to discharge its employees be-
cause of their membership in or activities on behalf
of Local 3.
(d) Threatening its employees with unspecified
reprisals because of their membership in or activi-
ties on behalf of Local 3.
(e) Creating the impression that its employees'
activities on behalf of Local 3 are under surveil-
lance.
(f) Promising its employees increased wages,
medical benefits, or other benefits to induce them
to cease their membership in or activities on behalf
of Local 3.
(g) Discharging and/or refusing to reinstate its
employees because of their membership in or ac-
tivities on behalf of Local 3, or because they
engage in protected concerted activities.
(h) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Francisco Molina, Juan Perez, Edith
Flori, Luis C Ochoa, Sara Valarezo, Ismelda
Castro, Concepcion Molgado, Ramon Molgado,
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Edwardo Martinez, Arnalfo Hernandez, Martha
David, Elvia Escobar, Gladys Luna, Hugo Patino,
Tomas Felipe Cruz, Edgar Aguilar, Veronica
Avila, and Enrique Moreira immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other ben-
efits suffered as a result of the discrimination
against them, in the manner set forth in the remedy
section of the decision.
(b) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(d) Post at its place of business in Saddlebrook,
New Jersey, copies of the attached notice marked
"Appendix A." 1 ° Copies of the notice, on forms
provided by the Regional Director for Region 22,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
B. The Respondent Union, Local 1518, Interna-
tional Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Refusing to process grievances on behalf of
employees of Tubari Ltd., Inc. because of their
membership in or activities on behalf of Fur Work-
ers Union, Local 3, United Food and Commercial
Workers, AFL-CIO.
(b) Making statements to employees of Tubari
Ltd., Inc. that it will not represent them because of
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
their membership in or activities on behalf of Local
3.
(c) Failing and refusing properly to represent
employees represented by Local 1518 at arbitration
proceedings because of their membership in or ac-
tivities on behalf of a rival union.
(d) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Request Tubari Ltd., Inc. to reinstate D.
Perez to his former position of employment and, if
it refuses to do so, promptly pursue the remaining
stages of the grievance procedure, including arbi-
tration, in good faith with all due diligence.
(b) Permit D. Perez to be represented by his
own counsel at the remaining stages of the griev-
ance procedure and at the arbitration proceeding,
and pay the reasonable legal fees of such counsel.
(c) In the event that it is not possible to pursue
the remaining stages of the grievance procedure,
resulting in the inability to resolve the grievance of
D. Perez on the merits Local 1518 shall have the
opportunity in the compliance proceeding to con-
test backpay liability by showing that, had the
grievance been arbitrated, D. Perez would have
lost on the merits.
(d) Post at its business offices and meeting halls,
copies of the attached notice marked "Appendix
B."11 Copies of the notice, on forms provided by
the Regional Director for Region 22, after being
signed by the Local 1518's authorized representa-
tive, shall be posted by Local 1518 immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Local 1518 to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Furnish the Regional Director for Region 22
with signed copies of the aforesaid notice for post-
ing at Tubari, should it be willing, at all places
where notices to its employees are customarily
posted.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
I i See fn 10, above
TUBARI LTD 1277
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interrogate our employees con-
cerning their membership in or activities on behalf
of Fur Workers Union, Local 3, United Food and
Commercial Workers, AFL-CIO.
WE WILL NOT threaten our employees to close
the shop if Local 3 is selected as the collective-bar-
gaining representative of our employees.
WE WILL NOT threaten to discharge our employ-
ees because of their membership in or activities on
behalf of Local 3.
WE WILL NOT threaten our employees with un-
specified reprisals because of their membership in
or activities on behalf of Local 3.
WE WILL NOT create the impression that our em-
ployees' activities on behalf of Local 3 are under
surveillance.
WE WILL NOT promise our employees increased
wages, medical benefits, or other benefits to induce
them to cease their membership in or activities on
behalf of Local 3.
WE WILL NOT discharge and/or thereafter refuse
to reinstate our employees because of their mem-
bership in or activities on behalf of Local 3, or be-
cause they engaged in protected concerted activi-
ties.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Francisco Molina, Juan Perez,
Edith Flori, Luis C. Ochoa, Sara Valarezo, Ismelda
Castro, Concepcion Molgado, Ramon Molgado,
Edwardo Martinez, Arnalfo Hernandez, Martha
David, Elvia Escobar, Gladys Luna, Hugo Patmo,
Tomas Felipe Cruz, Edgar Aguilar, Veronica
Avila, Felix Gonzales, and Enrique Moreira full
and immediate reinstatement to their former or sub-
stantially equivalent positions of employment, with-
out prejudice to their seniority or to other rights
and privileges previously enjoyed.
WE WILL make the above employees whole for
any loss of earnings they may have suffered by
reason of the discrimination against them, plus in-
terest.
WE WILL notify each of them that we have re-
moved from our files any reference to their dis-
charges and that the discharges will not be used
against them in any way.
TUBARI LTD., INC.
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to process grievances on
behalf of employees of Tubari Ltd., Inc. because of
their membership in or activities on behalf of Fur
Workers Union, Local 3, United Food and Com-
mercial Workers, AFL-CIO.
WE WILL NOT make statements to employees of
Tubari Ltd., Inc. that we will not represent them
because of their membership in or activities on
behalf of Local 3.
WE WILL NOT fail or refuse to properly repre-
sent employees represented by us because of their
membership in or activities on behalf of Local 3.
WE WILL request the Employer, Tubari Ltd,
Inc., to reinstate D. Perez to his former position of
employment and, if it refuses to do so, WE WILL
promptly pursue the remaining stages of the griev-
ance procedure, including arbitration, in good faith
with all due diligence.
WE WILL permit D. Perez to be represented by
his own counsel at the remaining stages of the
grievance procedure and at the arbitration proceed-
ing, and WE WILL pay the reasonable legal fees of
such counsel. In the event that it is not possible to
pursue the remaining stages of the grievance proce-
dure, and we do not show in the Board's compli-
ance proceeding that, had the grievance been arbi-
trated, D. Perez would have lost on the merits, WE
WILL make D. Perez whole, with interest, for any
1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
loss of pay he may have suffered as a result of our
unlawful conduct in processing his grievance.
LOCAL 1518, INTERNATIONAL BRO-
THERHOOD OF TEAMSTERS , CHAUF-
FEURS , WAREHOUSEMEN AND HELP-
ERS OF AMERICA , AFL-CIO
Maria Balzano and Hope Singer, Esqs, for the General
Counsel.
Melvin L. Gelade, Esq. (Apruzzese, McDermott, Mastro &
Murphy), for Respondent Company
Larry M. Cole, Esq. (Cole & Cole), for Respondent
Union.
Richard M. Greenspan, Esq, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge This
case was tried before me on April 1-2, 4, 15-16, 18-19,
24-25, and May 7-10, 1985, at Newark, New Jersey
On December 6, 1984, and January 2, 1985, Fur Work-
ers Union, Local 3, United Food and Commercial Work-
ers, AFL-CIO (Local 3), filed charges against Tubari
Ltd., Inc , Respondent (Tubari), and Local 1518, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, Respondent (Local
1518) On February 6 and 28, 1985, the Region issued
complaints. The complaints allege that Tubari violated
Section 8(a)(1), (2), and (3) of the Act and that Local
1518 violated Section 8(b)(1)(A).
Briefs were filed by the General Counsel, Tubari,
Local 1518, and Local 3. On my consideration of the
entire record, the briefs, and my observation of the de-
meanor of the witnesses , I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A The Tubari Operation
Tubari is a New Jersey corporation engaged in the
business of fur dressing . Tubari prepares and processes
raw mink and fox pelts for eventual use in the manufac-
ture of fur coats It is admitted that Tubari meets the
Board 's nonretail standard . Jack Glass is the president of
Tubari and oversees the entire operation. He spends the
entire day in the plant and is effectively the plant manag-
er and owner. Esther Glass, Jack's wife, and Michelle
Glass, their daughter, are vice presidents. Esther Glass
works primarily in the office. Michelle Glass works in
both the office and the plant , assisting Jack and Esther
It is admitted that Jack, Esther, and Michelle are super-
visors within the meaning of the Act.
The Glasses assumed control of Tubari in 1980. At
that time they also assumed a collective -bargaining
agreement between Tubari's predecessor and Local 1518,
which covered a unit of all the nonsupervisory employ-
ees. Tubari and Local 1518 have had a collective-bar-
gaining relationship since then . There was a collective-
bargaining agreement , effective from February 1, 1982,
to January 31, 1985, which contained inter alta, a no-
strike clause
Tubari has two employee classifications within the bar-
gaining unit, fleshers and floorworkers. The fleshers are
highly skilled craftsmen who serve a 3-year apprentice-
ship and whose primary function is to remove excess
flesh from the skins The floorworkers perform manual
labor associated with the preparation and processing of
the skins As of December 3, 1984, Tubari employed ap-
proximately 8 fleshers and approximately 25 floor-
workers
B The Local 3 Campaign-Tubari 8(a)(1) Activity
Sometime in May or June 1984, Carlos Ochoa and
Juan Perez, floorworkers employed by Tubari, scheduled
a meeting with representatives of Local 3. The meeting
was held on June 17, and was attended by Ochoa, Perez,
Edith Flori, and two other employees, all floorworkers,
as well as Paul Cattani, president of Local 3, and Juan
Laboriel, a representative of the United Food and Com-
mercial Workers Union Although the employees ex-
pressed an interest in having Local 3 represent them,
Cattani and Laboriel informed them that a representation
petition could not be filed with the Board until Novem-
ber 1984, as there was a current collective-bargaining
agreement in effect, which did not expire until January
31, 1985 In view of this agreement, the employees de-
cided to suspend their activities until November 1984.
A few weeks after the June 17 meeting with Local 3,
Ochoa was called into Jack Glass' office. In the presence
of Jack and Michelle, Esther said she had heard that
Ochoa had spoken with the "union from New York," re-
ferring to Locals 2 and 3, and asked if that was true.
Ochoa denied talking to the union. Esther also told
Ochoa that she knew he was the one who had contact
with the New York shops, Tubari's competitors, and if
Local 3 came in he would be held responsible.'
On two occasions during the period from October to
mid-November, Hugo Patino, a floorworker, was asked
by Eduardo Ramos, the foreman and an admitted super-
visor, if he knew whether Ochoa was "in the union."
Patino said he knew nothing about that Ramos also had
' I credit the testimony of the General Counsel's witnesses concerning
the 8 (a)(l) allegations described below I was generally impressed with
the demeanor of the General Counsel 's witnesses The General Counsel's
evidence as to Tubari's 8(a)(l) conduct, which is considerable, was elicit-
ed from a number of witnesses whose testimony was mutually corrobora-
tive Moreover , Jack Glass candidly admitted his intense animus toward
Local 3 He frankly testified that if Local 3 were to become the repre-
sentative of his employees, it would be the end of his business Addition-
ally, Jack Glass admitted speaking to his employees about Local 3 with
an object of dissuading them from joining Local 3 He did not admit the
specific 8 (a)(1) statements alleged to have been made by him However,
in view of his admitted hostility and his admissions that he spoke to his
employees about Local 3, and in view of my generally favorable impres-
sion of the demeanor of the General Counsel's witnesses, coupled with
their corroborative testimony, I credit their testimony concerning the
8(a)(1) allegations with respect to conversations with or in the presence
of Jack Glass Michelle Glass also admitted having many conversations
with employees with the object of dissuading them from joining Local 3
Esther Glass and admitted Supervisor Eduardo Ramos did not testify al-
though they were available For this additional reason , I credit the testi-
mony of the General Counsel 's witnesses concerning alleged 8 (a)(1) con-
versations with Esther and Michelle Glass , and Eduardo Ramos
TUBARI LTD 1279
two conversations with floorworker Juan Perez around
this time and told Perez not to let himself be taken by
the "Marielitos," referring to Paco Molina, Felix Gonza-
lez, and Enrique Moreira, whom Ramos identified as the
principal ones in "the plot " Ramos then told Perez that
Local 3 had closed other places down and that Jack
(Glass) had told him that if Local 3 came in he would
close the factory
During the first week in November, Local 3 resumed
its organization of Tubari On November 4, 11, and 17,
Local 3 met with various employees and obtained signed
authorization cards Among the employees who signed
authorization cards were alleged discriminatees Paco
Molina, Juan Perez, and Enrique Moreira. On November
20 Local 3 filed a representation petition seeking an
overall unit of floorworkers and fleshers
On November 20, the representatives of Local 3 ap-
peared in front of the Tubari plant for the first time to
distribute leaflets and authorization cards to employees as
they came to work. The next day, Jack Glass ap-
proached Enrique Moreira and told him that people
were "crazy" because they want to "put Local 3 in the
shop," and that they did not know what they were doing
because the only thing Local 3 does is close shops, and it
had already closed three shops Glass then asked Moreira
if he had signed a card. Moreira replied that he had at-
tended a meeting, but had not signed a card Glass then
asked him who was trying to "put Local 3 in the shop,"
who had attended the meeting, and who had signed
cards Moreira refused to identify any of the Local 3 ad-
herents Glass then said if Local 3 came in he would
close the plant "for sure " At this time Glass asked Mor-
eira whether they had any problems with Local 1518
Moreira replied that he encountered various problems
with Local 1518's health insurance coverage The Local
1518 collective-bargaining agreement provided for medi-
cal coverage Glass told Moreira that he did not want
Local 3 to represent his employees and that the employ-
ees could have any union other than Local 3 to represent
them He admitted that he knew he was not paying the
employees much, but explained that the company was
new when he signed the Local 1518 contract, and now
he was in a better position to give more He said he
would pay more and give them more medical insurance
if the employees did not in "that union "
Moreira also testified that during this conversation
Glass told him he wanted to get rid of Paco Molina and
Felix Gonzalez because they were bad workers I credit
this testimony Glass admitted that he suspected Molina,
Moreira, and Gonzalez as being leading supporters of
Local 3 In view of his admitted animus toward Local 3
and in view of his numerous conversations with his em-
ployees, in which he threatened to close the shop and to
fire employees who signed cards for Local 3, I have no
doubt that in this case Glass made such additional threat
to Moreira Such threat is completely consistent with his
other conduct and that of the other members of the
Glass family and Ramos
On November 22, Michelle Glass had a conversation
with Moreira, and asked him why the employees were
interested in Local 3. Moreira told her that the main at-
traction was the medical benefits offered by Local 3 He
also told her the employees were having problems get-
ting paid under the Local 1518 medical coverage
Sometime during the week of November 20, Jack
Glass had a conversation with Ochoa at his work station
Glass initiated the conversation by asking Ochoa what
was happening with the people, whether the people were
crazy He said he would never bargain with Local 3, and
would sell or close the shop rather than deal with that
Union. Glass asked Ochoa to speak with the employees
and tell them what he had said
During the week of November 19, undoubtedly in re-
sponse to employee complaints described above, Esther
and Michelle Glass distributed among all employees leaf-
lets detailing the provisions of Local 1518's health plan
This was the first time that Tubari had given the em-
ployees any information regarding a new health plan
Local 1518 had recently obtained. They had such leaflets
in their possession for some time, but had been unable to
distribute them allegedly because of Tubari's relocation
to a new facility During this same period, Esther and
Michelle Glass asked various employees, individually and
in groups, whether they had had any problems with
Local 1518's health coverage Several employees were
told that Tubari would try to take care of their prob-
lems, and that things would change for the better Esther
Glass promised certain employees to get them a new
plan with even better coverage than the present plan
About November 27, Jack Glass spoke with employee
Edith Flori by her work station He reiterated that
people were "crazy" to want to talk to Local 3, and
added that Local 3 wanted to close his business and had
already closed others He also told her he would close
the plant if Local 3 got in. That same day, Supervisor
Ramos asked Flori if she had signed a card, adding that
Jack Glass had asked him to find out. Ramos told her
that Glass had said that if the employees signed cards
they would be fired and if the Union gets in, he would
close the plant The next day Ramos spoke to several
female employees and again asked if they had signed
cards He told them not to sign cards, that Jack Glass
would fire those who signed and would close the plant if
Local 3 came in
Sometime during the 2-week period between Novem-
ber 17 and December 3, Jack Glass approached floor-
workers Edith Flori and Elvia Escobar at their work
area, and stated that everybody looked tired and he was
going to close the plant for 6 months to 1 year and give
everybody a vacation.
On November 29, both Jack Glass and Ramos, in sepa-
rate conversations, asked Ochoa if he knew who support-
ed Local 3 and who had signed cards. Ramos added that
Jack Glass would fire employees who signed cards.
Ochoa testified that Ramos told him he was thinking of
firing Felix Gonzalez, Juan Perez, Paco Molina, and Sara
Valarezo, and that when Ochoa spoke to Jack Glass
about it Glass told him he wanted to get rid of them be-
cause he thought they were the ones trying to bring in
Local 3 Although Glass testified he suspected Gonzalez,
Moreira, Perez, and Molina of trying to bring in Local 3,
he denied stating he wanted to fire them. For the reasons
1280 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
set forth above, I credit Ochoa's testimony in this re-
spect
On the morning of November 30, Jack Glass saw the
Local 3 representatives outside the plant again distribut-
ing leaflets and authorization cards. He told Local 3 rep-
resentative Laboriel to get off his property. Immediately
thereafter, he called Ochoa to his office Jack Glass
pointed to the union representative outside and told him
that they were responsible for the problems of the indus-
try in New York. He told Ochoa he did not want to deal
with them and to tell the people it was not worth it to
continue struggling During that conversation, floor-
worker Hugo Patino came in Jack Glass asked if he was
in this thing with the Union or "part of the revolution "
Ochoa said he was not
On various occasions after the appearance of Local 3
in November, and continuing after December 3, 1984,
Jack and Esther Glass spoke with some of the fleshers
individually or in groups, and told them that they did
not want Local 3 to represent the employees and that if
Local 3 came in they would close the plant During one
of these conversations, Esther asked Malcolm Skolnick, a
flesher, if he had signed anything for Local 3.
On one of the mornings when the Local 3 representa-
tives appeared outside the plant distributing cards and lit-
erature, Stephen Weise, a flesher, was approached by
Esther Glass. Esther pointed to the Local 3 representa-
tive, and asked Weise why they were there and who
brought them in Weise said he did not know. She then
said that Skolnick was responsible for bringing them in
When Weise told her that she was wrong about that,
Esther said that whoever was responsible would "pay
for it." Esther also told Weise that she knew he (Weise)
had been talking to the floorworkers in favor of Local 3,
which Weise denied. At that point Esther told him that
she did not want him talking to the floorworkers any-
more
On an unknown date during the latter part of Novem-
ber or the beginning of December, Skolnick was called
aside from his work station by Esther. She also called
Jack Glass over. Esther and Jack Glass told Skolnick
that they knew he was the one who had instigated Local
3's organizing activity. They knew he was close with the
floorworkers and had probably told them they could
make more money if they were represented by Local 3
Skolnick denied having instigated Local 3's organizing
drive or having made the statements attributed to him.
Skolnick had once been a close personal friend of the
Glass family. However, over the spring and summer of
1984 a rift developed between them over their business
relationship. In view of this animosity, which was unre-
lated to the Local 3 campaign, the Glasses believed that
Skolnick was instigating employees to join Local 3.
The facts set forth above establish an intense and sys-
tematic series of interrogations of Tubari's employees by
the Glass family and Ramos The issue is whether such
interrogations are in violation of Section 8(a)(1) of the
Act
In Rossmore House, 269 NLRB 1176, 1177 (1984), the
Board restated the test for evaluating whether interroga-
tions violate the Act, as follows "[W]hether under all
circumstances the interrogation reasonably tends to re-
strain , coerce, or interfere with rights guaranteed by the
Act " In Rossmore House, the Board found that interro-
gations of an "open and active" union adherent were not
coercive and not a violation of the Act where the em-
ployer's inquiries were limited to that individual employ-
ee's involvement with, and sentiments for, the Union,
and the interrogations were not accompanied by threats
or promises. In a subsequent case, Allied Lettercraft, 272
NLRB 612 (1984), the Board affirmed an administrative
law judge's finding of unlawful interrogation when the
employer sought to learn the identity of other employee
supporters of the union and the interrogated employee
refused to respond to that inquiry.
In the present case, the first instance of employee in-
terrogation occurred shortly after the first Local 3 orga-
nizing meeting, which took place on June 17 Jack and
Esther Glass suspected Ochoa of contacting Local 3 On
that occasion, Jack and Esther Glass asked him if it was
true that he had spoken with Local 3. Similarly, Hugo
Patino, who worked alone with Ochoa at night, was
twice asked by Eduardo Ramos, between October and
November, whether Ochoa was involved in the Union.
About November 21, Jack Glass asked Enrique Moreira
if he had signed a union card. Although he had, Moreira
denied it After admitting to Jack Glass that he attended
a union meeting, Glass further questioned him regarding
which other employees attended union meetings. About
November 27 and 28 Eduardo Ramos interrogated em-
ployee Edith Flori and several other of the women floor-
workers by asking if they signed union cards. Ramos
acted at the direction of Jack Glass, and so informed
those employees Then on November 29, Glass again in-
terrogated Ochoa, asking him to reveal the employees
who supported Local 3 In addition, during the period
after November 20, Skolnick was interrogated several
times and accused of instigating Local 3's campaign. The
Glasses suspected him because of a personal rift between
them.
There is no evidence to establish that Ochoa, Patino,
Moreira, Flori, Skolnick, or the other employees ques-
tioned were "open and active" union adherents at the
time of each respective interrogation . It is apparent that
Ochoa was merely suspected of contact with Local 3 be-
cause his regular delivery duties brought him to New
York shops represented by Locals 2 and 3. Moreira's
connection with Local 3 first became apparent when he
was seen speaking with union representatives on Novem-
ber 30
Moreover , the above interrogations arose in conversa-
tions initiated by Respondent Employer which included
threats of discharge and plant closure, all emanating
from the highest level of management Moreover, the
Glasses and Ramos did not merely question the employ-
ees concerning their own activities but sought as well to
ascertain the extent of other employees' activities. Thus,
these interrogations fulfill all the criteria the Board found
absent in Rossmore The interrogations called for and ob-
tained responses. Association Hospital del Maestro„ 272
NLRB 853 (1984). There was no legitimate purpose
other than to ascertain which employees supported
Local 3 and to send threatening messages back to the
TUBARI LTD
employees through the interrogated employees. City-
Wide Ambulette„ 272 NLRB 882 (1984) Finally, the in-
terrogations were "conducted by the highest level of
management without any safeguards announced." City-
Wide, supra at 887.
I therefore conclude that all the interrogations set
forth and discussed above were coercive and constitute
violations of Section 8(a)(1).
Section 8(c) allows an employer to express his opin-
ions about reasonably probable effects of unionization, so
long as threats of reprisals or promises of benefits are
avoided in making predictions about the effects of union-
ization. The employer's prediction must be carefully
phrased on the basis of objective fact, to convey the em-
ployer's belief as to demonstrably probable consequences
beyond its control, and not constitute threats of econom-
ic reprisals to be taken solely on its own volition. NLRB
v. Gissel Packing Co, 395 US. 575, 616 (1969), Conair
Corp, 261 NLRB 1189 (1982)
In the instant case there can be no doubt that Jack
Glass and Ramos made specific threats to close the shop
in violation of Section 8(a)(1) Thus, the evidence estab-
lished that Ramos told Perez that Local 3 had closed
other shops down and that Jack Glass had told him that
if Local 3 won the election he (Jack Glass) would close
the shop Several days later Jack Glass spoke with Mor-
eira and in the process of unlawfully interrogating him
and promising the employees benefits, informed him di-
rectly that if Local 3 came in he would close the shop.
Still several days later, Jack Glass told Ochoa he would
never bargain with Local 3 and would close the shop
rather than deal with Local 3. Several days later he
made virtually the same statement to Edith Flori. Later
that same day, Ramos repeated the same threat to Flori
while he was unlawfully interrogating her. A few days
later, Jack Glass sarcastically told Flori and Escobar at
their workplace that everybody looked tired and maybe
he would close the shop for 6 months or a year, and give
everybody a vacation Counsel for Tubari contends this
last statement by Jack Glass was made in jest and was
not a threat In view of the other threats to close the
shop, in view of the other 8(a)(1) violations, and in view
of the statement being made to employees at their work-
place, however, I find Jack Glass was merely stating in
another way what he and Ramos had repeatedly told
other employees, that if Local 3 came in, he would close
the shop Ethyl Corp, 231 NLRB 431, 434 (1977); Don-
nelly Mfg. Co., 265 NLRB 1711, 1713 (1982). Counsel for
Tubari also contends the statements to employees were
lawful economic predictions. I reject this contention It is
obvious that these statements do not convey the employ-
er's belief as to demonstrably probable consequences
beyond its control Rather, they are clear threats of eco-
nomic reprisal to be taken solely on its own volition I
find such statements violations of Section 8(a)(1) More-
over, as discussed above and below, it is evident that Tu-
bari's entire course of conduct was designed to coerce
employees from joining Local 3 and to encourage them
to remain in Local 1518 I find such conduct violative of
Section 8(a)(1). Servair Inc., 236 NLRB 1278 (1978); Life-
time Doors, 233 NLRB 829, 833 (1977). I also conclude
such threats were part of Tubari's course of conduct de-
1281
signed to discourage employees from replacing Local
1518 with Local 3 and are violative of Section 8(a)(2)
Servair, supra; Commercial Body & Tank Corp, 229
NLRB 876, 879 (1977)
Threats to discharge employees because of their sup-
port for a union have always been violative of Section
8(a)(1) of the Act. Horizon Air Services, 272 NLRB 243,
253 (1984)
The facts establish that about November 21, during a
conversation with Moreira, Jack Glass threatened to fire
Molina and Gonzalez. He told Moreira the reason was
that they were bad workers. However, this threat was
made in connection with a conversation in which Jack
Glass was coercively interrogating Moreira as to which
employees signed Local 3 cards, and threatening to close
the shop if Local 3 came in. Under these circumstances,
it is crystal clear to me that Glass was telling Moreira
that he suspected Molina and Gonzalez of signing Local
3 cards and if they continued their support on behalf of
Local 3, he would fire them. I find such threat violative
of Section 8(a)(1)
The facts also establish that about November 27 and
29, Ramos while unlawfully interrogating various em-
ployees including Ochoa, whether they signed cards for
Local 3, told them that Jack Glass would fire those who
signed cards. He then added that Jack Glass was think-
ing of firing Gonzalez, Perez, Molina, and Sara Valar-
ezo Ochoa later asked Jack Glass if this was true and
Jack Glass said it was. Clearer threats of unlawful dis-
charge cannot be imagined. I find such threats violative
of Section 8(a)(1). I also conclude such threats were part
of the Tubari's course of conduct designed to discourage
employees from replacing Local 1518 with Local 3, and
are violative of Section 8(a)(2). Servair, supra; Commer-
cial Body & Tank Corp, supra.
An implied threat of an unspecified reprisal in the face
of an organizing drive is violative of Section 8(a)(1). Bill
Johnson's Restaurants, 249 NLRB 155 (1980), enfd. 660
F.2d 1335 (9th Cir 1981). The evidence established that
in early July 1984, Jack and Esther Glass, while unlaw-
fully interrogating Ochoa, told him if Local 3 came in he
would be responsible I feel such statement strongly sug-
gests to an employee that the employer will take some
future unspecified action against him for his union activi-
ties Although it is true that the statement was made at a
time when the Local 3 organizing campaign had been
suspended, in view of the Tubari's intensive, systematic,
and unlawful campaign in late November, when Local
3's campaign resumed, the coercive impact of the July
threat was reinforced I find such threat violative of Sec-
tion 8(a)(1) Additionally, for reasons set forth above, I
find such threat also violative of Section 8(a)(2) Servair,
supra; Mego Corp., 254 NLRB 300, 312-313 (1980).
An employer also violates Section 8(a)(1) by implying
that employees' union activity is being watched. Frito
Lay, Inc., 232 NLRB 753 (1977), enfd. '585 F.2d 62 (3d
Cir 1978); Armcor Industries, 217 NLRB 358 (1975),
enfd. in part 535 F.2d 239 (3d Cir. 1976).
Tubari's first implied surveillance of employees' union
activities occurred in June 1984 when Jack and Esther
Glass told Ochoa that they had "heard" he was in con-
1282 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tact with Local 3. Then, sometime between November
20 and November 30, Esther Glass stated to Steve Weise
that she knew he was talking to the floorworkers in
favor of Local 3, also creating the impression that
Weise's actions were being monitored. Similarly, both
Jack and Esther Glass implied that Malcolm Skolnick's
actions were being watched when, during the week of
November 26, they told him that they knew he was the
one who instigated the Local 3 organizing drive. I con-
clude that each conversation described above violated
Section 8(a)(1)
An employer violates Section 8(a)(1) of the Act by so-
liciting grievances from employees and promising to
remedy those grievances. NLRB v. Exchange Parts Co.,
375 U.S 405, (1964); Fuchs v. Jet Spray Corp., 560
F.Supp 1147, 1154 (1983); Varco, Inc., 216 NLRB 1
(1974).
The General Counsel contends that the solicitation of
employee grievances by the Glasses and the subsequent
distribution of the new Local 1518 medical plan leaflets
during the Local 3 campaign, in response to such solici-
tation, constitutes an unlawful promise of benefit. The
evidence established that the new medical plan was ob-
tained by Local 1518 before the Local 3 campaign.
There is no evidence that such new plan was obtained by
Local 158 as a result of any activity by Local 3. At all
times material, prior and subsequent to the Local 3 cam-
paign, Local 1518 was a party to a collective-bargaining
agreement with Tubari, and therefore required to pro-
vide the contract benefits including health coverage.
RCA Del Caribe, 262 NLRB 963 (1982), Lutheran Ilospi-
tal of Maryland, 265 NLRB 1198 (1982). Although I am
convinced that the Glasses would not have distributed
the insurance leaflets or offered to assist its employees in
the processing of claims, the Board held in a similar case
that an employer cannot be said to have unlawfully in-
formed its employees of benefits that it could lawfully
grant. Cardivan Co., 271 NLRB 563 (1984). Accordingly,
I find the questioning of employees about their dissatis-
faction with Local 1518, and distribution of medical leaf-
lets and offer of aid in processing medical claims arising
under such coverage is not violative of the Act
However, the evidence also established that during
Jacks Glass' November 21 conversation with Moreira,
Jack Glass promised to pay the employees higher wages
after the Local 1518 contract expired, and Michelle and
Esther Glass in conversations with employees promised
them improved medical over that of the existing Local
1518 medical plan I find these promises to be violative
of Section 8(a)(1) of the Act Marchese Metal, 270 NLRB
293 (1984) For the reasons set forth and discussed
above, I also find such conduct to be violative of Section
8(a)(2). Servair, supra; Mego Corp., supra
C. Alleged Discriminatory Conduct
Tubari operated out of a single facility located in
Saddlebrook, New Jersey, with two floors or levels. The
first floor was called the "wet floor" and the upper one
floor the "dry floor." Wet floor work consisted entirely
of "pulling paddles" which is a process of loading the
furs into various chemical or dye vats, or "paddles,"
emptying the vats after the skins are allowed to soak for
an appropriate period of time, removing the soaked skins
from the "paddles," placing them in extractors or dryers,
removing the skins from these dryers, and sending the
dried skins to the dry floor by means of a lift. Pulling
paddles also includes the task of cleaning the vats and re-
filling them with solution Tubari regularly employed
four floorworkers to perform this wet floor work These
employees were Paco Molina, Tomas Cruz, Felix Gonza-
lez, and Juan Perez. These four wet-floor workers spend
most of their workday performing the tasks associated
with "pulling paddles." When they are not engaged in
pulling paddles, they would assist the dry floorworkers,
whose job it was to turn the skins so that the fleshers
could cut away the excess fat from the skin.2
Juan Perez, Enrique Moreira, and Paco Molina testi-
fied that wet floorworkers usually pulled between two to
three paddles per day and spent the rest of their day on
the dry floor They further testified that on November
29, Jack Glass assigned Felix Gonzalez to pull five to
seven paddles which had never been done by any em-
ployee before On this day Gonzalez worked his usual 7
a.m. to 3 30 p.m shift. He did not work overtime. More-
over, he spent at least 1 hour performing dry-floor work
Pulling paddles is hard and dirty work because the em-
ployees are required to lift an armfull of heavy wet skins
from the vats and load them into dryers. The General
Counsel contends the assignment to Gonzalez of such
wet-floor work on this day was made because Jack Glass
suspected him of being one of the leading Local 3 adher-
ents.
As set forth above, the credible evidence established
that wet floorworkers spent most of their day pulling
paddles There was simply no other wet floor work to be
performed. Moreover, Moreira testified that on Novem-
ber 30 he was assigned to work on the wet floor; that he
worked a 12-hour day on the wet floor including 4 hours
overtime and pulled six paddles. The General Counsel
does not allege with respect to Moreira that pulling six
paddles was more arduous work as compared with the
usually assigned to wet floorworkers 3 If pulling 6 pad-
dles was not more arduous work for Moreira, who nor-
mally did not work the wet floor, I cannot see why it
was more arduous work for Gonzalez Moreover, if
Moreira, working an entire 12-hour day, pulled six pad-
dles, I find it hard to believe that Gonzalez working an
8-hour shift with at least 1 hour on the dry floor pulled 6
paddles. He probably pulled no more than three or four.
I therefore conclude that on November 29 Gonzalez per-
formed his usual wet-floor duties and that he was not
discriminatorily assigned more arduous work.
Enrique Moreira had been originally employed as a
wet floorworker at Tubari's prior facility in Ridgefield,
New Jersey. This facility operated in a similar manner to
the present facility. Moreira's duties there consisted pri-
2 There is some testimony that would indicate that wet floorworkers
spent only half their day pulling paddles and the remainder of the day on
the dry floor I discredit this testimony as contrary to the weight of evi-
dence in the entire record
9 The General Counsel does allege the assignment of wet-floor work
to Moreira itself was an assignment of arduous work This contention is
discussed below
TUBARI LTD
manly of pulling paddles, the same as all wet floor-
workers In Moreira's case he generally spent even less
time on the dry floor than other wet floorworkers be-
cause he did not get along with Ramos, who supervised
the dry floor and requested Jack Glass not to assign him
to dry-floor work Jack Glass accommodated him. Some-
time during the summer of 1984, Moreira became a
driver, making deliveries. His driving duties took place
in the afternoon In the mornings he continued to work
the wet floor By mid-November 1984, Tubari had
moved to its present Saddlebrook facility About this
time Moreira requested Jack Glass to remove him as a
driver. Jack Glass complied with Moreira's request.
Thereafter he made deliveries only as a helper About
November 20, Moreira requested that Michelle Glass
assign him more hours so he could earn more money.
Michelle Glass complied with this request and he began
working a 12-hour day starting at 7 a.m. Moreira's re-
quest was granted about the same time that Local 3
began its organizing at Tubari Thereafter, prior to No-
vember 30, Moreira would begin work at 7 a.m, primari-
ly on the wet floor, pulling paddles. He would then help
with the deliveries as needed beginning in the early after-
noon For at least a week before November 30, Moreira
worked 12-hour days On November 30, Local 3 officials
were outside Tubari organizing and speaking to employ-
ees One of the employees they spoke to was Moreira.
Jack Glass admits he suspected Moreira of being a lead-
ing Local 3 advocate, and he probably observed him
talking to Local 3 officials As it happened on November
30, Gonzalez, who regularly worked the wet floor, was
absent. Moreira began working the wet floor at 7 a.m as
he had been doing for the past several weeks. On this
day, however, he was assigned to work the entire day on
the wet floor A dry floorworker was assigned to help
with the deliveries that day. The General Counsel con-
tends Jack Glass assigned Moreira to work the wet floor
that afternoon rather than perform his usual delivery
work because of his activities on behalf of Local 3 Jack
Glass testified Moreira was assigned to work the wet
floor that afternoon because Gonzalez was absent and he
required his services at this position.
I conclude that the General Counsel has failed to es-
tablish that such assignment was discriminatorily moti-
vated Moreira was an experienced wet floorworker He
regularly performed wet-floor work. He specifically re-
quested not to be assigned dry-floor work because he did
not want to work under Ramos' supervision Most im-
portantly, Gonzalez was absent and Jack Glass needed
someone to take his place The logical person to do so
would have been Moreira The General Counsel con-
tends that Tomas Cruz and Molina, who worked the wet
floor, were assigned easier dry-floor duties that day
However, the record establishes that Molina and Cruz
performed wet-floor work that day The record fails to
establish that either employee performed more than the
usual minimal dry-floor work that day Moreover, be-
cause the General Counsel also contends that Jack Glass
discriminated against Molina, it makes no sense to me
that he would discriminate against Moreira one day
while at the same time giving Molina favored treatment.
1283
On November 30 Felix Gonzalez did not report to
work He told Veronica Avila, an employee of Tuban
with whom he lived, to inform Tubari of his absence
Avila testified she informed Michelle Glass of Gonzalez'
absence about 8 a m that same morning
Tubari's written work rules specifically provide that
employees who are absent must notify either Jack or
Esther Glass before 9.30 am of such absence. Michelle
Glass is not designated as an agent for such purpose
Gonzalez had failed to comply with this rule on other
occasions. Jack Glass denied he was notified of Gonza-
lez' absence on November 30 and so the same date
mailed a warning letter to Gonzalez. Later in the day,
Avila attempted to obtain Gonzalez' paycheck, but
Esther Glass refused explaining to Avila that Gonzalez
would have to authorize such action Such refusal by
Esther Glass was pursuant to established Tubari policy
A few days later Gonzalez submitted written authoriza-
tion authorizing Avila to receive his check and Esther
Glass gave her the check
The General Counsel contends the warning letter
issued to Gonzalez and the refusal to give his paycheck
to Avila was discriminatorily motivated I reject these
contentions. The evidence failed to establish other dis-
criminatory conduct by Tubari directed toward Gonza-
lez. Moreover, Gonzalez failed to comply with Tubari's
work rules of informing Jack or Esther Glass of his ab-
sence It would appear that Jack and Esther Glass were
specifically selected because they were always in the
shop and office respectively, while Michelle was in and
out Further, Gonzalez had violated this rule on other
occasions. As to the General Counsel's contention in
connection with giving Avila Gonzalez' check, when
company rules were complied with, Esther Glass gave
Avila Gonzalez' check. Accordingly, I conclude that
there is insufficient evidence to establish the warning
letter issued to Gonzalez or the initial refusal to give
Gonzalez' paycheck to Avila was discriminatorily moti-
vated
Malcolm Skolnick, a flesher, testified that following a
conversation with Jack and Esther Glass in mid-Novem-
ber or early December during the Local 3 campaign,
both Jack and Michelle Glass began harassing him by
checking his work repeatedly and returning skins to him
for minor corrections that ordinarily would have been
passed through He testified on one occasion on Decem-
ber 26, while operating his machine, Jack Glass threw
some skins at -him claiming they were flawed It is al-
leged that this created a hazardous condition because the
machine he was operating consisted of an electrically
power-operated blade.
On cross-examination, however, Skolnick admitted
that at least since April 1984, long before Local 3's cam-
paign, he had a bitter dispute with the Glass family, Jack
in particular He was an experienced flesher and believed
that he taught Jack Glass all he (Glass) knew about the
business He wanted Jack Glass to sign a "work con-
tract" which would have made him part of the supervi-
sory hierarchy Jack Glass refused to sign such agree-
ment As a result, during the summer and fall of 1984,
the personal relations between Skolnick and the Glasses
1284 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
were decidedly unfriendly. Skolnick also admitted on
cross-examination that as early as the summer of 1984,
and Michelle Glass began checking his work and return-
ing it to him to correct minor flaws. He admits he resent-
ed any criticism of his work because in his opinion his
work was above criticism.
Jack Glass denied that he threw skins at Skolnick. His
testimony was corroborated by Anthony Bascano I
credit Jack Glass in view of the corroborative testimony
of Bascano and my negative impression as to the de-
meanor of Skolnick. Throughout his testimony he was
consistently arrogant, sarcastic, and argumentative.
It is absolutely clear to me that the Glasses began
checking Skolnick's work prior to Local 3's campaign,
and that the incident which took place.in November and
December was unrelated to his perceived activity on
behalf of Local 3.
D The Events of December 3
On the morning of December 3,4 Jack Glass assigned
Molina to the dye paddles. Whereas in the past Jack
Glass had always spoken to Molina in Spanish, that
morning he gave him his assignment in English Molina
asked him to speak in Spanish as he had always done
Molina does not understand much English Glass angrily
told him that if he did not understand English, he should
go to school and learn it While waiting for the dye to
empty out from the first paddle he pulled, he noticed
that Moreira was experiencing difficulty in pushing one
of the carts and he went over to help him Jack Glass
saw him and angrily told him in English to return to the
dye paddle. Molina, speaking in Spanish, asked Jack
Glass what was his problem and again asked him to
speak to him in Spanish
That morning there were approximately 1240 male
mink skins soaking in 3 dye paddles. The single dye cen-
trifuge could accommodate between 600 and 700 of the
male mink. Thus, the three paddles full could be dried in
the centrifuge in two equal loads
When Molina finished putting the skins from the first
dye paddle in the dryer, Jack Glass told him in English
to pull half of the second dye paddle and put those skins
in the dryer with the skins from the first dye paddle
This would fill the dryer The remaining half paddle and
the skins in the third dye paddle could then be combined
in the dryer later. Molina, claiming he did not under-
stand Jack Glass' orders, began to unload the dye paddle
by opening the lower door and allowing all the skins to
tumble into a waiting cart. Jack Glass saw this process
which would have been contrary to his intention of pull-
ing only half the paddle, and began screaming at Molina
in English trying to get him to pull only half the paddle.
Molina asked Jack Glass to speak to him in Spanish, but
Jack Glass continued to speak in English Molina then
got Moreira over to translate Jack Glass' orders Jack
Glass testified he told Moreira to tell Molina to pull
4 The incidents which occurred on December 3, namely the discharge
of Molina, the subsequent discharge of the floorworkers, the offer of rein-
statement by Jack Glass, and the offer to return to work by the dis-
charged employees set forth below, are based on a compilation of the
credible testimony of Moreira, Molina, Ochoa, Edith Flon, Elvia Esco-
bar, Veronica Avila, Juan Perez, and Jack Glass
about 175 skins (half of the dye paddle), and put it in the
dryer. Moreira testified Jack Glass told him in English to
tell Molina to pull 175 skins, one at a time and put them
in the cart to be transferred to the dryer After giving
Moreira instructions for Molina Jack Glass left the area
and headed for the dry floor Moreira told Molina that
Jack Glass wanted him to pull 175 skins, one by one, and
put them in the dryer. Molina began complying with
these instructions
The General Counsel contends additionally that this
assignment was a discriminatory assignment of arduous
work
Jack Glass testified that a short time later he saw
Molina from the dry floor, pulling the paddle one skin at
a time and could not believe it.
I credit Glass' testimony. Glass, based on his testimony
and my impression of his demeanor, is simply physically
and mentally incapable of making such a time-wasting as-
signment The record is replete as to how hard the Glass
family worked and how hard they worked their employ-
ees. I distinctly remember the look of disbelief on Jack
Glass' face at trial as he testified to observing Molina
pull the skins one at a time. I conclude that Moreira
must have misunderstood Jack Glass' instructions and re-
layed them improperly to Molina, or that Molina, angry
with Glass' refusal to speak Spanish to him, was deliber-
ately playing games in retaliation. Accordingly, I do not
conclude Glass' assignment to Molina to pull about 175
skins was discriminatory
After pulling out 175 skins, Molina put them in the
dryer where they were to remain for 1 hour. It is the
employee's responsibility to time the dryer. As there is
no clock on the wet floor, and he was not wearing a
watch, Molina asked Jack Glass for the time Jack Glass
looked at his watch, but turned around without answer-
ing Molina then went to the upper level to look at the
timeclock which is located near the stairs He was wear-
ing boots, gloves, and an apron worn while working
with the dye paddles. Employees routinely walked up-
stairs dressed in that fashion to check the time None had
ever been disciplined for doing so
Jack Glass contends he was upset with Molina because
he was dripping dye in an area where there were fin-
ished skins. However, it is unlikely that Molina's gloves
were dripping as he had used the gloves to load the ex-
tractor, a process that takes approximately 10 minutes
during which time the gloves dry Also, his concern
about possible damage to finished goods is an empty
claim as the record shows that employees regularly went
by the timeclock to go to the restroom and to bring up
skins for turning. Therefore, Molina was no closer to any
finished goods than usual
When Jack Glass saw Molina going upstairs, he fol-
lowed him and began shouting at him in English to get
back downstairs Jack Glass testified Molina was drip-
ping with dye and Jack Glass was concerned he would
drip dye on the skins. Molina continued to ask Jack to
speak to him in Spanish so he could understand him At
this time both Glass and Molina were standing toe to toe
and screaming at each other At one point Molina poked
Jack Glass. Jack Glass, however, took no disciplinary
TUBARI LTD
action Molina then returned to his work station on the
wet floor He angrily threw his gloves to the floor. Jack
Glass smiled at Molina and beckoned Molina with his
index finger to come upstairs to the dry floor where Jack
Glass was standing At this point Molina angrily headed
toward Glass Moreira stepped between them Both
Molina and Jack Glass began screaming at each other
and Jack Glass finally yelled at Molina to "go home."
On his way to the dressing area Molina stopped by the
fleshers table He began addressing the employees on the
dry floor in Spanish. They stopped work and assembled
around him. The wet floorworkers stopped work and
also assembled on the dry floor. Molina told the assem-
bled employees that he had been fired. He then told
them that Jack Glass treated them like dogs and the only
way to stop such treatment was to bring in Local 3
Molina then headed out the door As he walked out Jack
Glass told Moreira that Molina could come back the
next day Moreira, who had made up his mind to walk
out with Molina to protest Molina's discharge, walked
out with Molina Jack Glass then turned to the other as-
sembled employees and told them if they were with
Molina they should "get out." The employees believing
they, like Molina, were fired, followed Molina out the
door Jack Glass testified he did not recall what he told
the employees immediately prior to their leaving the
plant 5
The General Counsel alleges the following employees
were discharged-
Juan Perez
Edith Flori
Luis C. Ochoa
Sara Valarezo
Ismelda Castro
Concepcion Molgado
Ramon Molgado
Edwardo Martinez
Arnalfo Hernandez
Martha David
Elvia Escobar
Gladys Luna
Hugo Patino
Tomas Felipe Cruz
Edgar Aguilar
Veronica Avila
The General Counsel does not allege the unlawful dis-
charge of Moreira A careful evaluation of the facts leads
me to conclude that Jack Glass intentionally provoked
Molina and thereafter discriminatorily discharged him
Jack Glass freely admitted that if the employees select-
ed Local 3 as their bargaining representative it would be
the "death knell for his business." It was therefore a
matter of survival for him to keep Local 3 out. Thus, the
Glass family and Supervisor Ramos engaged in an inten-
sive, systematic, and unlawful campaign intended to dis-
courage employee support for Local 3 Employees were
interrogated so that Jack Glass could find out who the
leading adherents and card signers were. Jack Glass ad-
mittedly suspected Molina as one of these adherents. Em-
ployees were then threatened with plant closure and dis-
charge if they supported Local 3 and promised benefits if
they gave up their support for Local 3.
The evidence established that Jack Glass intended to
discharge Molina because of his support for Local 3.
Glass told Moreira and Ochoa of his intention to dis-
5 All but two or three floorworkers left The fleshers who were not
part of the group of employees assembled around Molina remained at
their table working None of these employees were discharged
1285
charge Molina Although he did not specifically state
such intention was based on Molina's union activities, in
view of the fact that these threats were made in conver-
sations where other clear interrogations, threats, and
promises of benefit were made, one does not have to be
a weatherman to see which way the wind was blowing
The facts preceding the discharge establish an inten-
tion to provoke Molina into conduct providing Glass
with an excuse to discharge him. Jack Glass departed
from his usual practice of giving assignments to Molina
in Spanish although he knew Molina did not speak Eng-
lish, and Molina repeatedly requested that he speak to
him in Spanish Although Jack Glass knew that Molina
was required to time the drying process, he refused to
tell Molina what time it was when Molina asked him.
When Molina went upstairs to check the time, a frequent
and established practice of the wet floorworkers, Jack
Glass verbally abused him and provoked an argument
Finally, when Molina frustrated and angry, went back to
the wet floor, throwing his gloves to the floor in disgust,
Jack Glass merely smiled and in a manner of a master,
beckoned Molina like a slave with his finger. When
Molina lost his temper he discharged him "An employer
cannot provoke an employee to the point where [the em-
ployee] commits . an indiscretion . . . and then rely
on this to terminate [the] employment." E I duPont &
Co., 263 NLRB 159 (1982)
Tubari contends Molina was not fired, that he was
merely suspended for the day so that he could "cool"
off The evidence established that Jack Glass told Molina
to "go home " At best, this statement is ambiguous
Molina believed he had been fired and told the employ-
ees this moments later when they were assembled. It was
only as Molina was walking out the door that Jack Glass
told Moreira that Molina could return the next day. It
was too late, the damage had been done Where an em-
ployer's action is ambiguous the Board looks at the event
from the point of view of a reasonably prudent employ-
ee. Ridgeway Trucking Co., 243 NLRB 1048 (1979).
Where an employer creates an ambiguity, it is his burden
to correct it. Pennypower Shopping News, 253 NLRB 85
(1980). I conclude that when Molina left the plant he had
a reasonable impression he had been fired Under these
circumstances he is discharged for the purposes of Sec-
tion 8(a)(1) and (3). King Trucking Co., 259 NLRB 725,
730 (1981).
I also conclude that Jack Glass discriminatorily dis-
charged the floorworkers set forth above
The evidence established that when Jack Glass dis-
charged Molina he was angry. Such anger was directed
at Molina, a Local 3 supporter and at supporters for
Local 3 in general. He had been threatening to fire such
supporters over the past 2 weeks He believed his busi-
ness life was at stake, he had just fired Molina in a burst
of anger and such anger continued when he told the em-
ployees if they were with Molina they could go with
him. In the circumstances of this case I believe a reason-
able interpretation of Jack Glass' statement to them was
that they, like Molina, were discharged Evidently, the
employees believed so because they left. Ridgeway Truck-
ing Co., supra; Marchese Metal, supra.
1286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I conclude the discharge of Molina and the other
floorworkers was part of Tubari's course of conduct de-
signed to discourage employees from replacing Local
1518 with Local 3 Accordingly, I find such discharges
violative of Section 8(a)(2), (3), and (1) of the Act. Ser-
vair, supra.
The evidence established that on learning of Molina's
discharge Moreira decided to walk out in protest of Tu-
bari's action and that he walked out with Molina before
the other employees were discharged by Jack Glass.
Therefore I conclude that Moreira was not discharged
but walked out in protest of Molina's discharge.
The General Counsel also contends that if the employ-
ees were not discharged by Jack Glass, they, like Mor-
eira, walked out to protest Molina's discharge and the
General Counsel further contends that such activity was
protected, notwithstanding that the, collective-bargaining
agreement between Tubari and Local 1518 contained
grievance-arbitration and no-strike provisions. I concur
with the General Counsel's contention.
It is clear that Jack Glass' statements to the employees
following Molina's exit to the effect that if the employees
were with (in support of) Molina, they could go (with
him), support the General Counsel's alternative conten-
tion that the employees walked out in support of Molina
to protest his discharge.
The legal issue is whether such walkout is protected
notwithstanding the arbitration no-strike provisions of
the Local 1518 contract.
In Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956),
the Supreme Court held a contractual no-strike clause
does not render unprotected the strike against serious
unfair labor practices that interfere with the employees'
right to select their bargaining representative. In Mastro
Plastics, the findings disclosed vigorous efforts by the
employer "to influence and even coerce their employees
to abandon the Carpenters as their bargaining representa-
tive and to substitute Local 318." Under these circum-
stances the Court held the employees were protected in
striking in protest to a discriminatory discharge of a
single union adherent.
In Arlan's Department Store, 133 NLRB 802 (1961), the
Board interpreted the Supreme Court's decision in
Mastro Plastics and held that strikes in protest against se-
rious unfair labor practices are immune from general no-
strike clauses. In Arlan's the Board concluded the strike
to protest the discharge of a union steward was not pro-
tected However, the facts in Arlan's are clearly distin-
guishable from the facts of the instant case. In Arlan's the
employer's policy was to remain neutral in the campaign
by one union to oust the incumbent. In the instant case
Jack Glass admitted that if Local 3 were selected by his
employees to replace Local 1518, it would be a "death
knell" to his business. He thereafter embarked in a sys-
tematic, extensive, and unlawful campaign to keep Local
3 out He coercively interrogated employees, threatened
to discharge Local 3 supporters, threatened to close the
shop and alternatively promised benefits to employees if
they supported Local 1518 Significantly, in Arlan's the
discharge was not connected to the union campaign but
rather a clash of personalities between the store manager
and the union steward that festered over a long period of
time. The Board concluded such discharge "was not in-
tended to constitute a warning to employees against
changing bargaining representatives " The exact opposite
is true in this case Thus, Jack Glass and Ramos on sev-
eral occasions had threatened to discharge Molina be-
cause of Tubari's perception that he was one of the lead-
ing Local 3 adherents. Such discharge coupled with Tu-
bari's intense unlawful anti-Local 3 campaign lead me to
conclude that facts of this case are very similar to those
in Mastro Plastics. See also Servair, Inc., 265 NLRB 181
(1982); Ford Motor Co., 131 NLRB 1462 (1961) I con-
clude that the discharge of Molina in the context of Tu-
bari's threats to discharge him and other extensive unfair
labor practices designed to coerce its employees from se-
lecting Local 3 as their bargaining representative is of
such a serious nature that the Mastro Plastics doctrine
should be invoked I further conclude that Moreira's
walkout was protected. I additionally conclude that if
the Board should conclude that the above employees
were not discharged, then they were engaged in a pro-
tected strike.
Once the employees were outside the plant, Moreira
and Molina called Local 315 representative Laboriel and
asked him to come over. Molina and Moreira then re-
turned to the employees who were assembled in front of
Tubari's facility. A while later, Jack Glass came outside
and handed Moreira the following letter, copies of which
he attempted to give to all the employees:
This is to certify that on December 3, 1984 you
were not terminated by your employer. By walking
off of your job during the work day you have in es-
sence abandoned your position.
We have asked you to report back to work upon
this hand delivered notice and if you do not, we are
forced to fill your abandoned position with a new
employee.
Sincerely,
Jack Glass
Tubari Ltd.
Moreira speaks and reads some English He looked at
the letter, understood it to mean that Jack Glass was ac-
cusing them of abandoning their jobs He threw his letter
away and at his direction none of the employees accept-
ed the letters. Jack Glass made no further attempt to
offer the employees reinstatement although he was stand-
ing before them.
About an hour later Local 3 representative Laboriel
arrived. The employees explained what had happened.
With Local 3's help the employees prepared individual
letters on blank stationery which they signed and which
stated, "I request unconditional reinstatement " The em-
ployees tried to give the letters to Jack Glass but they
were refused entry by Esther Glass. Some of the em-
ployees held their letters against the window for Esther
Glass to see but Tubari refused to reinstate the employ-
ees.
On December 4, Local 1518 representative Mongello,
while investigating the discharges, unconditionally re-
TUBARI LTD
quested Jack Glass reinstate the discharged employees.
Jack Glass refused to do so
Tubari contends that after the employees left it made a
valid unconditional offer of reinstatement to the employ-
ees However, the offer of reinstatement letter that Jack
Glass attempted to hand the employees accused them of
an unlawful walkout and an abandonment of their jobs.
This is contrary to what happened Based on the findings
of this case, Tubari's offer was not an unconditional offer
of reinstatement Rikal West, Inc, 274 NLRB 1136 fn 2
(1985)
Moreover , an offer of reinstatement must provide em-
ployees with a reasonable time to consider the offer In
this case the employees were required by the wording of
the offer to return to work upon hand delivery of the
offer. In other words, immediately. The Board has re-
peatedly held such offers did not provide reasonable time
to consider and were invalid. Southland Knitwear, 260
NLRB 642, 654-655 (1982).
Accordingly, I find Tubari did not make a valid offer
of reinstatement
The evidence established that after consulting with of-
ficials of Local 3, the employees decided to offer uncon-
ditionally to return to work. Such unconditional offer
was made individually by the employees, and reduced to
writing and signed by each employee. The employees at-
tempted to communicate their offers to Tubari about an
hour after Jack Glass had made conditional offers of re-
instatement However, Esther Glass refused to admit the
employees to the facility or to accept the proffered offers
to return unconditionally to work . Moreover , the next
day such unconditional offer on behalf of all employees
was communicated by Local 1518 representative Mon-
gello to Jack Glass He refused to reinstate the employ-
ees
Refusal to reinstate unfair labor practice strikers on an
unconditional offer independently violates Section 8(a)(3)
of the Act. Mastro Plastics, supra, Struther Wells Corp. v.
NLRB, 262 NLRB 1080 (1982), enfd. in pertinent part
721 F.2d 465 (3d Cir 1983), Jacques Syl Knitwear, 247
NLRB 1525 (1980), enfd. 672 F 2d 904 (3d Cir 1981)
On such an offer the burden is "on the employer to offer
immediate and unconditional reinstatement, even if strik-
er replacements must be terminated to make room for
the returning strikers " Atlas Metal Parts Co, 252 NLRB
205 (1980), revd. on other grounds 660 F 2d 304 (7th Cir
1981). Moreover, an employer 's subjective belief regard-
ing the nature of the strike is irrelevant . As unfair labor
practice strikers it is the employer ' s obligation to rein-
state them . Atlas Metal Parts Co., supra. Thus, assuming
arguendo that the employees were not discharged, but
walked out when Molina was fired , they are unfair labor
practice strikers, and as such are entitled to reinstatement
to their former jobs on an unconditional offer to return
to work, even if Tubari had hired replacements, which it
had not done in this case. W. C. McQuaide, Inc, 220
NLRB 593 (1975), enfd. in pertinent part 552 F 2d 519
(3d Cir. 1977); Mastro Plastics, supra; Heads & Threads
Co, 261 NLRB 800, 812-813 (1982), enfd. in pertinent
part 724 F.2d 282 (2d Cir 1983)
E. The Arbitration
1287
On December 10, as set forth below , an arbitration
took place concerning the discharged employees An ar-
bitrator's decision ultimately issued upholding Tubari's
discharge of Molina and the other employees
Counsel for Tubari contends the Board should defer to
the arbitrator ' s decision The General Counsel contends
deferral is not appropriate
In Spielberg Mfg. Co., 112 NLRB 1080 (1955), the
Board held that it would defer to an arbitrator 's award if
three conditions were met ( 1) the proceedings were fair
and regular , (2) the parties agreed to be bound, and (3)
the decision was not clearly repugnant to the purposes of
the Act In Raytheon Co, 140 NLRB 883 (1963), the
Board added a fourth requirement-that the arbitrator
has considered and ruled on the unfair labor practice
issue Recently, in Olin Corp , 268 NLRB 573 ( 1984), the
Board defined the standard on the fourth requirement by
finding that an arbitrator has adequately considered the
unfair labor practice issue if ( 1) the contractual issue is
factually parallel to the unfair labor practice issue and (2)
the arbitrator was presented generally with the facts rele-
vant to resolving the unfair labor practice issue
I conclude that deferral would clearly be inappropriate
for three separate and independent reasons.
In Servair, Inc., 265 NLRB 181 (1982), the Board held,
in a case very similar to this case , that there is an inher-
ent conflict that arises when an incumbent union seeks to
arbitrate the discharges of employees who are members
of, or support , another union seeking to represent the in-
cumbent unit . The Board reasoned that although the in-
cumbent union had an interest in representing the dis-
charged employees in order to encourage their member-
ship and support , it also stood to benefit if a substantial
number of supporters of the outside union were not re-
turned to their jobs. Thus, there was an inherent conflict
which would fail to meet the Spielberg requirement that
the proceedings were fair and regular The Board's rea-
soning was adopted by the Ninth Circuit which enforced
the Board 's Order. Servair, Inc, 726 F 2d 1435 (9th Cit.
1984). The same situation exists in the instant case. The
discharged employees represented virtually the entire
unit of floorworkers and almost unanimously were mem-
bers or supporters of Local 3, the outside union Thus,
on this inherent conflict alone I would not find deferral
inappropriate
I also would not defer because it is clear that the re-
quirement articulated in Olin , that the arbitrator was pre-
sented generally with the facts relevant to resolving the
unfair labor practice issues, was not met Although it is
true that the arbitrator was generally presented with
facts of December 3 relating to the discharge of Molina
and the other floorworkers, he was not presented with
any evidence relating to Tubari's extensive 8(a)(1) con-
duct. Such 8(a)(1) conduct included threats to discharge
employees who supported Local 3 and specific threats to
discharge Molina whom Jack Glass suspected was a
leading Local 3 adherent Without such evidence in the
record, I do not believe any arbitrator or administrative
law judge could find a discriminatory discharge. With
such evidence in the record an arbitrator or administra-
1288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tive law judge would be virtually compelled to conclude
that the discharges were violative of Section 8(a)(1) and
(3). I therefore conclude that the arbitrator was not gen-
erally presented with the facts necessary to resolve the
discriminatory discharge issue within the meaning of
Olin Servair II, supra.
I would additionally refuse to defer based on my con-
clusion that the discharge of Molina and the floor-
workers, coupled with the 8(a)(1) violations, constituted
an integral part of Tubari's unlawful assistance to Local
1518 in violation of Section 8(a)(2). The Board has held
that such unlawful assistance cannot be delegated to an
arbitrator, but rather require consideration by the Board.
Servair I, supra
The General Counsel contends that Local 1518 violat-
ed Section 8(b)(1)(A) by perfunctorily representing
Molina and the discharged floorworkers I do not agree
The General Counsel contends specifically that Mon-
gello did not investigate the facts surrounding the dis-
charge, prepare for the arbitration, or present the case
before the arbitrator in an adequate manner.
A union is entitled to a wide range of discretion in
serving the employees in a bargaining unit it represents.
Plumbers Local 598 (Columbia Mechanical Contractors),
250 NLRB 75 (1980). A union breaches its duty to pro-
vide fair representation when its actions are arbitrary,
discriminatory, or in bad faith Vaca v. Sipes, 386 U.S
171 (1967); Miranda Fuel Co., 140 NLRB 181 (1962). A
union 's negligent action or poor judgment standing alone
does not establish a breach of the union's duty to provide
fair representation. Office Employees Local 2, 268 NLRB
1353 (1984).
The facts of the instant case establish that on Decem-
ber 4, the day after the discharges, Local 1518 Repre-
sentative Mongello came to Tubari. He demanded that
Tubari reinstate all discharged employees. Jack Glass re-
fused. Mongello then notified Jack Glass he was submit-
ting the matter to an expedited arbitration. He immedi-
ately notified the discharged employees of this decision
by mail. An arbitration was scheduled for December 10.
On December 10 the case was arbitrated before an ar-
bitrator An interpreter was present and an official tran-
script of proceedings taken.6
Mongello met with all the employees for about 40
minutes before the arbitration and discussed the Decem-
ber 3 incidents with them. It was mutually agreed that
Moreira and Molina would be the witnesses selected by
Local 1518 to testify on behalf of all the employees. It
was also agreed that if any employee had additional testi-
mony they would be allowed to testify.
Mongello presented the case before the arbitrator
Mongello has been an official with labor organizations
for 20 years. He has been the president of Local 1518 for
the past 3 years During his career he has conducted
over 40 arbitrations, winning more than 50 percent of
them. Tubari was represented by Melvin Gelade, Esq.
Molina and Moreira testified for Local 1518 and Jack
and Esther Glass testified for Tubari. Mongello and
Gelade cross-examined witnesses. The record was 75
pages. As set forth above, the facts elicited during the ar-
6 Local 1518 Exh I
bitration concerning the incidents that took place on De-
cember 3 were substantially the same facts elicited
during this trial. There was no testimony concerning the
8(a)(1) allegations.
Applying the above principles to the instant case, I
conclude Local 1518 did not breach its duty of fair rep-
resentation to the discharged employees. Thus Mongello
demanded reinstatement. When Tubari refused, he
brought the matter to an expedited arbitration He met
with the employees and selected as witnesses the most
qualified employees, Molina and Moreira, and briefly re-
viewed their testimony Mongello, who had considerable
experience in arbitrations, represented the employees. In
analyzing the arbitration record he elicited considerably
the facts surrounding the discharges on December 3. The
only significant evidence not presented to the arbitrator
was Tubari's 8(a)(1) activity. There was no evidence that
Local 1518's failure to elicit such evidence was based on
a discriminatory intent or in bad faith. Vaca v. Sipes,
supra. I attribute such failure to poor judgment, or inept
or careless handling. However, such conduct standing
alone falls far short of a breach of duty of fair represen-
tation. Office Employees Local 2, supra.
Accordingly, I find insufficient evidence to establish
that Local 1518 perfunctorily represented the discharged
employees as alleged
F. Other Alleged Misconduct by Local 1518
On November 6, 1984, Dagoberto Perez was dis-
charged by Tubari for excessive absenteeism unrelated to
the Local 3 organizing campaign.
On November 8 Perez filed a grievance with Local
1518.
On November 27 Local 1518 scheduled an arbitration
concerning Perez' discharge.
On November 28 Perez met with Mongello at Local
1518's office Mongello asked him if Local 3 representa-
tives had spoken to him Perez did not answer. Mongello
told Perez he would try to get him reinstated if he
agreed to support Local 1518. Perez told him he could
not count on his support. Mongello then told Perez if he
was not going to help him he (Mongello) was not going
to help Perez.'
On February 5, 1985, Local 1518 notified the Ameri-
can Arbitration Association that it was withdrawing
Perez' grievance based on its subsequent determination
that the discharge was for cause.
Mongello gave inconsistent reasons for dropping the
arbitration. At the trial he testified he dropped the griev-
ance because he believed Perez was one of the employ-
ees discharged on December 3, and since he lost that
grievance he thought Perez was no longer an employee
or member of Local 1518, he did not believe the union
could go to arbitration. This testimony is inconsistent
with the reason submitted to the American Arbitration
Association. It is also inconsistent with the December 10
arbitration record where Mongello stated on page 4 of
' The above facts are based on the credible testimony of Perez I do
not believe he has the imagination or inventiveness to fabricate such testi-
mony Also, as set forth below, I was not impressed with Mongello's de-
meanor on this issue
TUBARI LTD 1289
that record:8 "I would dust like the record to reflect that
there is one other arbitration case that has been filed for
Mr. Perez, and that in no way is going to be decided
upon at this arbitration . . "
Following the filing of an unfair labor practice against
and the issuance of the instant complaint relating to
Perez, Local 1518 rescheduled the arbitration.
Based on Mongello's statement to Perez on November
28 indicating he would not help Perez because he would
not support Local 1518 and on Mongello's inconsistent
reasons for withdrawing the Perez arbitration, I con-
clude Local 1518 violated Section 8(b)(1)(A) by refusing
to represent Perez because of his support for Local 3
Furniture Workers Local 1010, 261 NLRB 524 (1982)
I also conclude such statement unlawfully restrains
and coerces employees and for this reason additionally
violates Section 8(b)(1)(A). Peninsula Shipbuilders' Assn.,
237 NLRB 1501, 1505 (1978)
About December 20, 1984, Mongello visited Tubari's
facility, and notified the striking employees that the arbi-
trator had ruled in Tubari's favor. He told Moreira that
because they were with Local 3, he would instead repre-
sent the people inside Mongello also told Moreira that
the employees should have gone to him instead of Local
3; that if they had done so, things would have been dif-
ferent, but that because they did not, they had lost the
case 9
I conclude that Mongello's statement to the effect that
because the discharged employees supported Local 3,
Local 1518 would not represent them, restrains and co-
erces employees and is violative of Section 8(b)(1)(A).
Peninsula Shipbuilders' Assn., supra
behalf of Local 3, Tubari has violated Section 8(a)(1) and
(2) of the Act.
8 By creating the impression among its employees that
their activities on behalf of Local 3 were under surveil-
lance, Tubari has violated Section 8(a)(1) and (2) of the
Act
9. By promising its employees improved wages and
medical benefits to induce them to cease their member-
ship in, and activities on behalf of, Local 3, Tubari vio-
lated Section 8(a)(1) and (2) of the Act.
10. By discharging its employees Francisco Molina,
Juan Perez, Edith Flori, Luis C. Ochoa, Sara Valarezo,
Ismelda Castro, Concepcion Molgado, Ramon Molgado,
Edwardo Martinez, Arnalfo Hernandez, Martha David,
Elvia Escobar, Gladys Luna, Hugo Patino, Tomas Felipe
Cruz, Edgar Aguilar, and Veronica Avila because of
their membership in and activities on behalf of Local 3,
Tubari has violated Section 8(a)(1), (2), and (3).
11. By refusing to reinstate Enrique Moreira and the
employees set forth in paragraph 10, above, on their un-
conditional offer to return to work, Tubari violated Sec-
tion 8(a)(1), (2), and (3) of the Act.
12. By withdrawing the grievance of Dagoberto Perez,
an employee of Tubari and a member of Local 1518, be-
cause Perez refused to support and campaign for Local
1518, but rather supported Local 3, Local 1518 violated
Section 8(b)(1)(A) of the Act.
13. By statements to employees of Tubari and mem-
bers of Local 1518 that Local 1518 would not represent
them because of their membership in and support of
Local 3, Local 1518 violated Section 8(b)(1)(A) of the
Act
CONCLUSIONS OF LAW
1. Tubari is, and has been, at all times material, an em-
ployer engaged in commerce within the meaning of the
Act.
2 Local 1518, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Fur Workers Union, Local 3, United Food and
Commercial Workers, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act
4. By interrogating its employees concerning their
membership in or activities on behalf of Local 3, Tubari
has violated Section 8(a)(1) of the Act.
5. By threatening to close its plant if Local 3 was se-
lected by the employees as their collective-bargaining
representative, Tubari has violated Section 8(a)(1) and
(2) of the Act
6. By threatening to discharge its employees because
of their membership in or activities on behalf of Local 3,
Tubari has violated Section 8(a)(1) and (2) of the Act.
7. By threatening its employees with unspecified re-
prisals because of their membership in or activities on
8 Local 1518 Exh I
9 Based on Mongello's inconsistencies concerning the Perez arbitration
and on the consistent testimony of Perez and Moreira, I credit Moreira's
testimony
THE REMEDY
Having found that Tubari and Local 1518 have en-
gaged in various unfair labor practices, I shall recom-
mend that they cease and desist therefrom and take cer-
tain affirmative actions designed to effectuate the policies
of the Act.
Since I have found that Tubari discriminatorily dis-
charged and thereafter refused to reinstate those employ-
ees set forth in paragraph 10 and 11 above, I shall rec-
ommend that Tubari be ordered to offer them immediate
and full reinstatement to their former jobs or, if they no
longer exist, to substantially equivalent positions of em-
ployment, without prejudice to their seniority or other
rights and privileges.
I shall recommend that Tubari make whole the em-
ployees set forth above in paragraphs 10 and 11, for any
loss of earnings they may have suffered by reason of the
discrimination against them from the date of their termi-
nation until the dates of their reinstatement or offers of
reinstatement.
Backpay for the above employees shall be computed in
accordance with the formula approved in F. W. Wool-
worth Co , 90 NLRB 289 (1950), plus interest as set forth
in Florida Steel Corp., 231 NLRB 651 (1977)
I shall also recommend that Tubari remove from its
records any reference to their unlawful discharges, and
to provide written notice of such removal to those em-
ployees, and to inform them that Tubari's unlawful con-
1290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
duct will not be used as a basis for further personnel ac- [Recommended Order omitted from publication.]
tions concerning them. Sterling Sugars, 261 NLRB 472
(1982).