Associated Grocers of New England, Inc.

National Labor Relations Board - Board Decisions

Jan 18, 1977

227 N.L.R.B. 1200 (N.L.R.B. 1977)

1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated Grocers of New England , Inc. and Chauf-
feurs, Teamsters and Helpers Local Union No. 633,
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case I-CA-10591
January 18, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
The issues are whether the Respondent violated Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended, by refusing to reinstate four economic strikers,
suspending two economic strikers for 1 week, and suspend-
ing three economic strikers for 2 weeks.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respondent,
I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
On March 8, 1976, Administrative Law Judge
Almira Abbot Stevenson issued the attached Deci-
sion in this proceeding. Thereafter, the Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the
Administrative Law Judge's Decision. The Respon-
dent has requested oral argument.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Associated Gro-
cers of New England, Inc., Manchester , New Hamp-
shire, its officers, agents , successors , and assigns, shall
take the action set forth in the said recommended
Order.
i This request is hereby denied because the record, the exceptions, and
the briefs adequately present the issues and the positions of the parties
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule as Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing her findings
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON , Administrative Law Judge:
This case was heard at Manchester , New Hampshire, on
November 4-6 and 19-21, 1975. The charge was filed and
served on the Respondent April 14, 1975. The complaint
was issued July 3, 1975.
227 NLRB No. 170
The Respondent, a New Hampshire corporation, is a
cooperative food wholesaler owned by approximately 300
retail grocers located in New Hampshire, Maine, Vermont,
and Massachusetts. Its principal office and place of
business is located at 725 Gold Street, Manchester, New
Hampshire. The Respondent buys products from various
food manufacturers throughout the United States and
distributes them to its retail grocery owners. Annually the
Respondent receives at its Gold Street plant here involved
grocery items valued in excess of $50,000 directly from
outside New Hampshire. The Respondent admits, and I
conclude, that it is an employer engaged in commerce
within the meaning of the Act.
II. LABOR ORGANIZATION
The Respondent admits, and I conclude, that the
Charging Party Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The Respondent admits, and I find , that General
Manager Norman Turcotte , Director of Human Resources
John O 'Sullivan , and Director of Operations Frederick
Foley are its supervisors and agents.
In June 1974, some 6 weeks before a collective -bargain-
ing agreement between the Respondent and the Union
expired , negotiations began for a new agreement. On
August 10, 1974 , approximately 189 of the Respondent's
employees engaged in an economic strike. The strikers
made an unconditional offer to return to work on October
31, 1974, the strike was settled , and a new collective-
bargaining agreement was entered into. All nine of the
employees involved in these proceedings were strikers. Four
of them were terminated during the strike on grounds of
serious misconduct ; and the other five were suspended for 1
or 2 weeks on grounds of misconduct . The Respondent
contends it had a good -faith belief that these strikers
engaged in the conduct for which they were penalized and
that the conduct justified the penalties imposed. The
General Counsel contends that the Respondent did not in
good faith believe that these strikers engaged in the
misconduct attributed to them; that they did not in fact
engage in the misconduct, or at least not as relied on by the
Respondent ; and that , even if they did, it was not senous
enough to justify their termination or suspension.
ASSOCIATED GROCERS OF NEW ENGLAND
When the strike was called, picket lines were established,
and front and back gates of the plant were picketed. On
some days there were only a few pickets, and on other days
there was mass picketing by more than 100 pickets at the
two gates. On September 30, 1974, the Superior Court of
New Hampshire issued a temporary injunction restraining
the Union, its officers, agents, and members from any
threatening, coercive, or violent conduct. On October 18,
the court found the Union (but not its officers or members
individually) in contempt of its order; and on October 22,
1974, the court limited the number of pickets to five at the
front, and five at the back, gate of the plant.'
All decisions to discipline strikers were made by General
Manager Norman Turcotte after consulting with other
members of management and counsel , on the basis of
reports received by Turcotte.
At a meeting with the Union on October 24, Turcotte
gave the Union a list of strikers he had tentatively decided
to discipline. At discussions of those to be terminated and
those to be suspended with the Union at that meeting and
subsequent meetings held on October 25 and 28, the Union
brought some information to his attention regarding some
strikers under consideration for discipline , and as a result
Turcotte eliminated some names from his list. On October
28, the final list of 11 strikers (including 2 not involved in
this proceeding who were terminated ) was firmed up, and
on October 29, the Respondent made clear its position that
no grievance-arbitration procedures were available to them
as no collective -bargaimng agreement was in effect.
None of the stnkers involved herein was interviewed by
management in an attempt to get his version of what
occurred. Turcotte testified that company practice of
getting the employee's story before disciplinary measures
were taken was not followed because "in this case it simply
was not practical to talk with the employees involved since
we were in the middle of a strike and a strike that, I think,
by testimony already offered was a very militant one, it was
our advice from counsel that we were on shaky ground, if
you will, to talk with the people, who were on strike at that
time." In addition, Turcotte said, the reports upon which
the disciplinary actions were taken were based on eyewit-
ness accounts by persons whose veracity he had no reason
to doubt.
On October 28, letters, and on October 29, telegrams,
were dispatched to the nine strikers here involved advising
them of the disciplinary action taken against them. In the
letters and telegrams , employees Emile Juneau , George
Karam, William Bourgeois, and Edouard Paquette each
was advised of his termination because of "serious miscon-
duct"; Stephan Coppez, Raymond Samson, and Arthur
Moreau, of their suspension for 2 weeks ; and Richard
Smith and Francis Bernier, of their suspension for 1 week,
commencing on the date they might otherwise be recalled
to work, for "misconduct" during strike. Turcotte explained
that the three levels of discipline were based on a determi-
nation of the relative seriousness of the misconduct
attributed to the strikers.
1201
B. The Termination of Emile Juneau and George
Karam
Emile Juneau has been employed by the Respondent for
20 years, and was the union steward for the drivers and a
member of the negotiating committee . George Karam has
been employed 13 years and was the alternate steward.
Turcotte testified these two stnkers were terminated
because it was reported that they were involved in an
incident which occurred early in the strike in New London,
New Hampshire. Either Frank Cricenti, a retail grocer who
was a stockholder and a member of the board of directors
of the Respondent, or his brother George Cncenti, owner of
a shopping center next to which Frank's grocery store was
located, called Turcotte on the telephone and reported that
George Cricenti had seen Emile puncture the tire of one of
the Respondent's trucks with a sharp instrument, and got
the license number of the car used by Juneau. George
Cricenti reported the incident to the police, who identified
the car as belonging to George Karam. Turcotte recalled
that Cricenti had described the driver of the car, and that
Karam had deposed that he never lent his car to anyone
else. Turcotte believed that Cncenti had later identified
Karam.
In August 15 the Respondent's counsel obtained a signed
statement from George Cncenti to the following relevant
effect:
... About 7 p.m. Aug. 14, 1974 when [sic ] I noticed a
white Buick Le Sabre parked in the Medical Building
parking lot across from our market, Cncenti's Market,
New London. The car had a N.H. license number LK
858. I recognized Emile Juneau and George Karam as
the occupants of the car. They appeared to be waiting
for our truck to return from Manchester. As I ap-
proached the market, they drove across and parked in
front of the drug store. I was curious so I went around
the store and as I came around the side of the truck, I
saw Emile punching a hole in the tire of the Ryder
truck. He acted surprised and tried to get into the back
of our store. At this time he had a linoleum knife in his
hand which he put into his pocket. He couldn't get in
and he ran back past me. I asked him what he thought
he was doing. He said he was just playing a little trick
on us. He then jumped into the white Buick and sped on
toward Claremont. I had yelled and someone called the
police . The police from New London came and took
pictures. The police have the spike that was in the tire
On August 28 Juneau was found guilty of criminal
mischief by a justice of the peace upon prosecution by
counsel paid by the Respondent; upon appeal to the
Superior Court of New Hampshire he was found not guilty
after a jury trial on April 16-17, 1975. Turcotte was aware
of Juneau's conviction at the original trial, he said, but
insisted it was not a factor in the decision to terminate him
which was made before that. Karam was not charged.
George Cncenti, a native of New London, was on the
board of selectmen for 12 years and a member of the water
i The Respondent 's offer to prove the occurrence of many acts of violence
during the strike was rejected because of its admitted inability to connect
them to any stnkers.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commission for 6 years. He testified that he recognized
Emile Juneau because he had seen Juneau making deliver-
ies to Frank's store and had talked with him on one
occasion 2 or 3 months before while groceries were being
unloaded , and had seen Juneau 's picture in the newspaper
on August 10 in an article about the strike. Cricenti said he
did not know the driver at the time of the incident, but he
identified Karam in the hearing room as the driver, after
Karam testified. Cricenti reported the matter to Police
Sergeant Ralph Marshall when he amved on the scene.
Although Cncenti said he did not report the incident to the
Respondent, he did tell his brother Frank about it.
Sergeant Ralph Marshall testified to reporting to the
scene of the incident shortly after receiving a call at 7:12
p.m. in his cruiser, and that George Cricenti told him he
had observed Juneau puncture the tire and identified
Juneau as an employee of the Respondent, and gave him
the license number of the car describing the driver as a
white male . The instrument was still in the tire and the tire
was going flat. Although Marshall radioed the state police
to intercept the car, he never received a report of this
request. He did obtain information that the license had
been issued to George Karam. Marshall returned to the
scene that evening and took a picture of the tire with the
instrument still in it . He could not remember whether he
spoke to George Cncenti again at that time.
Both Juneau and Karam denied being in New London on
August 14 and denied any participation in the incident.
Juneau gave the following account of his activities on that
day: he spent the afternoon at home in Manchester, and his
brother dropped by leaving between 5 and 6 p.m. Between
6:30 and 7 p.m. Juneau went to the Circle National social
club next door . He had one beer there and left about 7:15
for the VFW hall where he arrived between 7:30 and 8
o'clock and attended a meeting of VFW. He remained at
the hall until 10 p.m. Then he returned home and stayed
there for the rest of the night. When confronted with his
deposition dated October 7, 1974, in another proceeding, to
the effect that he could not then recall whether or not he
was on the picket line during the evening of August 14,
Juneau explained he must have been mixed up on the date
because he now knows he was not on the picket line that
night . Juneau testified he spent time with Karam, as well as
other strikers, during the first week of the strike. Juneau
said he has often driven to the New London supermarket
for the Respondent and he knows George Cricenti, having
seen and talked with him once at his brother 's store.
Emile Juneau's wife Claire supported his testimony that
he spent the afternoon of August 14 at home and that he
left at 6:30 or 6:45 p.m. for a meeting at the VFW hall.
Richard Mann, employed by the Respondent as a driver,
whom Juneau had helped get a part-time job as bartender
at the VFW club during the strike, testified that Juneau
arrived at the club at approximately 7:45 p.m. on August 14
for the meeting. VFW Adjutant-Quartermaster Edward
Pratt presented the attendance record of the meeting that
evening which he testified established that Juneau an-
swered present when the roll was called at a minute or two
after 8 p.m.
George Karam conceded he is the owner of a white Buick
Le Sabre, license New Hampshire LK 858. He said,
however, that the car was parked from 5 p.m. until
midnight on August 14 in the lot near the rear gate of the
plant, where it was in his view most of the time. Karam also
said he did not lend the car to anyone, and never does so.
According to Karam, at 5 p.m. on August 14 he and Robert
Morneau went to supper together and returned to the
picket line about 6 p.m. The two of them patrolled the two
picket lines, one at the front gate and one at the back gate in
Morneau's van, getting out once in a while to talk with the
pickets.
Karam was supported by Morneau, warehouse steward
and a member of the negotiating committee, who said that
he was in Karam's company at or in the vicinity of the
picket line from 5 p.m. until 10 p.m.
Two days after the incident and the day after he gave the
statement set forth above to the Respondent's counsel,
George Cricenti went to the police station, and entered a
room occupied by Sergeant Marshall, Juneau, and Edward
Silva. Silva, one of the Respondent's drivers, had been in
police work for several years in the past; he was the
chairman of the Merrimac board of selectmen but was
unknown to Cricenti. Cricenti testified he looked at Juneau
and said, "Hi, Juneau." Marshall testified he was satisfied
with this identification, but Silva testified that Cricenti was
not looking at any of the three men in the room when he
made this remark. At that point, Silva walked up to Cncenti
and asked, "Do you know me?" Cricenti replied either that
Silva was, or might be, George Karam. Cricenti testified
that this was the first time he had seen Sergeant Marshall
since August 14, and he could not remember where or when
he found out what George Karam's name was.
It is about an hour's drive by the most direct route at the
55 mile-an-hour speed limit, from the New London to the
Manchester locations involved.
It is clear that someone deliberately punctured the
Respondent's truck tire on the night of August 14. It is not
at all clear, however, that either Emile Juneau or George
Karam had anything to do with it.
There is no doubt that George Cricenti and Emile Juneau
were acquainted, and that Cricenti was capable of recogniz-
ing and identifying Juneau. Juneau admitted this. More-
over, save for the testimony of his wife, no one supported
Juneau's testimony as to his whereabouts during the time
required for him to ride from Manchester to New London
and be back in Manchester by 8 p.m. on August 14 where I
find on the basis of the clearly truthful testimony of VFW
Adjutant-Quartermaster Edward Pratt that he was. Cricenti
was not previously acquainted with Karam and therefore
could not identify him to Sergeant Marshall at the time the
incident occurred, and Karam's testimony that he was at or
near the picket line during the critical time that evening was
solidly supported by Robert Morneau who had the demea-
nor of a truthful person and who was not impeached in any
way.
In my opinion, Cricenti's credibility was destroyed by the
hopeless inconsistency between his statement given to the
Respondent's counsel on August 15 that he had recognized
George Karam as an occupant of the car, and his
identification of Edward Silva in the police station on
August 16 as George Karam. Without determining, there-
fore, whether or not Karam's automobile was at the scene
ASSOCIATED GROCERS OF NEW ENGLAND
(which could have happened without Karam's knowledge),
I credit the testimony of Morneau and Karam and find that
Karam was not. Having found George Cricenti untruthful
in one such crucial aspect of his testimony, I cannot believe
his testimony placing Juneau at the scene in the face of the
flat denial of Emile Juneau as supported by Claire Juneau,
neither of whose testimony was substantially shaken.
Accordingly, I find that neither Emile Juneau nor George
Karam engaged in the misconduct attributed to them by
the Respondent.
C. The Termination of William Bourgeois
Bourgeois, a driver, was employed by the Respondent for
12 years. General Manager Turcotte testified he decided to
terminate Bourgeois on the basis of an oral report from
Samuel Nadeau, a professed job applicant. Turcotte
received telephone calls from Nadeau and either Harold
Clark or a man named LaValle on a day in mid-October
1974. They told him that the three of them had seen an
advertisement in the newspaper that jobs were available
and had driven to the plant in a van to apply. When they
stopped to wait for a policeman to clear a path through the
picket line, a man described in a manner that management
felt matched only Bourgeois, made threatening remarks to
them to the effect that "You'd better not enter that gate if
you value your life," and the three left without entering the
gate. Turcotte referred Nadeau to the Respondent's coun-
sel. None of the three applicants was hired by the
Respondent. In November, after Bourgeois was terminated,
he came to see Turcotte and said he was unfairly discharged
and asked what he could do in order to be reconsidered.
Turcotte told him, "We certainly do not want to take
disciplinary action against the wrong individual," and it
was suggested that Bourgeois present a picture for identifi-
cation. On November 14, 1974, Nadeau signed the follow-
ing statement for the Respondent's counsel:
I, Samuel Nadeau, identified the man shown in the
picture bearing my signature as the man who threatened
me when I tried to apply for a job at Associated Grocers
of New England, Inc. He said to be "Don't think about
entering the gate if you value your life."
Samuel Nadeau substantially confirmed the account
Turcotte said he gave over the telephone, except that he
said the applicants did not attempt to drive through the gate
but intended to park outside the plant and walk through.
Nadeau testified that he described to Turcotte the man,
wearing a goatee, who told the three applicants, "If you
value your life, you'll turn around and get out of here," or
as put in Nadeau's prehearing affidavit, "Don't think about
entering the gate, if you value your life." Nadeau continued
that he later went to the office of Respondent's counsel and
identified a photograph shown to him which is in evidence
and which the parties stipulated to be a picture of
Bourgeois cleanshaven. Nadeau, who testified before Bour-
geois in this proceeding, positively identified him in the
hearing room, wearing a small beard, as the man who
threatened him. Nadeau said the applicants left the plant
area because there were too many people, 40 to 50 pickets,
at the gate, only 25 feet away. Nadeau considered Bour-
1203
geois' statement to be a threat on his life and thereafter told
the Respondent he did not want a job. He could not
remember when the incident occurred but thought it
happened in February or in the spring of 1974.
William Bourgeois denied the statement attributed to him
by Nadeau and denied ever saying to anyone who came to
apply for ajob words to the effect that if you value your life,
you will not go in. Bourgeois testified that upon receiving
notice of his termination he went to see Turcotte and asked
why he was fired. Turcotte said he did not know the
circumstances, and suggested Bourgeois see Director of
Operations Foley. Bourgeois saw Foley the next day, and
Foley told Bourgeois someone had claimed Bourgeois
threatened him going through the gate, and had two
witnesses besides. When Bourgeois denied it, Foley asked if
he was willing to take a lie-detector test or be identified by
the three people. Bourgeois said he was agreeable, and
Foley called Bourgeois a couple of days later and said the
three applicants were afraid to appear in front of him. Foley
proposed that Bourgeois permit a picture of himself to be
shown to them along with four or five other photographs,
and it was agreed if they could identify Bourgeois he would
have to suffer the consequences, but if they did not identify
him he would be reinstated. Bourgeois sent a photograph of
himself to Foley. Foley thereafter called Bourgeois and told
him his picture had been identified in a deposition signed
against him, and that Bourgeois would have to suffer the
consequences. Bourgeois then went to see the Respondent's
counsel, and again protested his innocence. Counsel
showed Bourgeois his picture with Nadeau's name on the
back and conceded it was the only picture shown to
Nadeau. Foley was not questioned on these matters.
Bourgeois' name appeared in a local newspaper article
dated October 15 as one of the strikers.
I credit Nadeau. Although he was off on the date, his
account of what happened was essentially consistent, and I
believe him . Bourgeois , by contrast, was trying harder to get
his job back than to tell the truth. In view of the overall
favorable impression made by Turcotte, as discussed below,
I am convinced that Bourgeois' testimony that Turcotte
told him he did not know the circumstances of his
termination was an invention. Although I accept Bourgeois'
undisputed account of his dealings with Foley and counsel,
I do not consider them the protests of an innocent man as
much as attempts to cast doubt on the identification of
himself, particularly as he submitted a snapshot of himself
cleanshaven, when at the time of both the incident and the
hearing he was wearing a beard. Despite Bourgeois' efforts,
however, Nadeau remained certain throughout that Bour-
geois was the man.
Accordingly, I find that Bourgeois approached the three
job applicants about 25 feet from the gate where 40 to 50
strikers were picketing, and told them not to go through if
they valued their lives, or words to that effect; that Nadeau
considered the remark as a threat on his life; and that the
incident caused Nadeau to abandon his intention of
applying for work.
D. The Termination of Edouard Paquette
Paquette had been an employee of the Respondent a total
of about 9 years. Turcotte testified he terminated Paquette
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of a report Director of Human Resources John
O'Sullivan made to him , to the effect that O'Sullivan had
received a telephone call from a Paul Perry who had been
interested in applying for a job at the plant ; that Perry said
that a neighbor of his , Paquette , told him that if he went to
work at Associated Grocers he would be taking work away
from other men, and some kind of accident could befall
him-he could be hit by a forklift or a truck or his car could
be blown up , or words to that effect. Turcotte asked that
Perry tell the Respondent's counsel about the incident, and
counsel reported back that Perry promised to testify but
refused to sign a statement.
Paul Perry , now a funeral director , testified he went to the
plant in mid-October at the suggestion of O'Sullivan, whom
he had known for over a year , to apply for a job. There were
15 to 25 pickets at the gate he went through after waiting for
the police to clear a path , and he was jeered at , called a
scab , and told by pickets he could not get a job there. Two
or three days later , Paquette stopped Perry as they passed
on the road and said , among other things, he understood
Perry had been out at Associated Grocers and filled out an
application . He told Perry
... that the strike was going on, that there was men
on the picket line on strike that had had fifteen , twenty
years of experience with the company and that their
jobs were in jeopardy and that if I was to take a job at
Associated Grocers , there could , possibly, be repercus-
sions.
He said that in past experience with strikes, not
necessarily at A.G . that men had been attacked by
members of the Union . Some had'had, you know, their
automobiles destroyed , been accidently injured on the
job, things of that nature.
Well, he left it , in my mind , perfectly clear that all the
examples he gave such as, you know , physical violence,
you know , the car being destroyed, hit by various
instruments at the shop , could very easily happen to
myself or anyone else that went to work at A.G.
Perry said he reported the conversation to O'Sullivan and
to the police who advised him not to make a formal
complaint due to "the explosive situation out at Associated
Grocers ." Paquette 's remarks caused Perry to give very
serious consideration as to whether or not he would accept
employment at the plant if it were offered. He added that he
had decided , however , that he did want a job there, but
never obtained one.
Paquette denied threatening Perry, who lives across the
street from him, but said he saw Perry go through the picket
line once in mid-October and one evening after that he
asked Perry if he had applied for a job . When Perry
admitted he had done so, Paquette explained the reasons
for the strike ; that if he went to work he might be taking a
job away from somebody who had worked there an awful
long time or a family man.
Paquette went on to say he told Perry:
... that if he did go across the picket line to go to
work , that I couldn 't guarantee what would happen,
seeing that there was a lot of people on the picket line,
and I made it very clear to him , at least I thought I made
it very clear to him, that hopefully nobody would get
hurt and that the strike would get settled soon , and that
I was against any kind of violence , and I didn't want
nobody to get hurt in the process of going in there.
What I told Mr. Perry was that I wasn 't sure if
anything would happen while crossing the picket lines. I
said , I can't speak for others , all I can speak is for
myself, I says , I don't want to see anybody get hurt. I
says , but you know , sometimes things can get out of
hand . But, I says , as far as I'm concerned , I says, I hope
that nobody gets hurt , and that I'm totally against
violence myself. I tried to make it clear that I didn't
want to see any violence happen.
Even if Paquette 's words to Perry were those testified to
by Paquette , they were so loaded with references to violence
that they carried a clearly implied threat of violence. I
believe , however , that Paquette was not aware of this when
he gave his testimony , but thought only of extricating
himself from the possible consequences of what he really
had said . And that, I believe, was more accurately recount-
ed by Perry. I further find, however, that although the
words said by Paquette were implied threats of harm to
Perry if he took a job during the strike , and gave Perry
pause , they did not intimidate Perry to any significant
extent or cause him to abandon his intent to get a job.
E. The 2-Week Suspensions of Raymond Samson
and Arthur Moreau
Raymond Samson has been employed by the Respondent
since 1957 . He was warehouse steward for 4 years, and at
the time of the strike was chairman of the negotiating
committee . Arthur "J.J" Moreau has also been employed
since 1957 . He was alternate steward and a member of the
negotiating committee during the strike.
General Manager Turcotte testified these two strikers
were suspended because they followed Warehouse Supervi-
sor Peter Bryden in a car when he left the plant after dark
on the night of August 28, 1974, past his home and into a
dead end in a rural area , where they blocked Bryden's car
while they talked to him , causing Bryden to be in fear for
his personal safety. The incident was reported to Turcotte
by Director of Operations Foley, and Bryden submitted a
written statement . Relevant portions of the statement,
dated August 30, 1974, were as follows:
On Wednesday evening, August 28, 1974, I left the AG
warehouse at about 9 : 00 p.m. I was driving to my home
in Merrimack . After I got to Merrimack , about two
miles from my home I noticed a car was following me
and I became suspicious . I drove past my home on
Meetinghouse Road and took a right on Amherst Street.
If someone was following me, I did not want to lead
them to my house as my wife and three sons were at
home . I continued on Amherst Street for a couple of
miles and pulled into what I thought was a driveway. It
turned out to be a dirt road. I looked back and the car
behind me blocked the end of the road by driving across
it. The occupants of the car then said "Pete , don't be
frightened, we just want to talk to you." Then they
backed their car from across the road and I drove out in
ASSOCIATED GROCERS OF NEW ENGLAND 1205
front of them. When they yelled I saw they were out of
the car and I recognized "J.J." who I learned was
Arthur Moreau. I knew him from A.G. The other man
was Sam Sampson who I recognized from a newspaper
picture. After they moved the car I had to go past them
to get out. I pulled up beside them and they began a
conversation about minor activities in the plant . I think
they were just making conversation and trying to show
they could follow me. They finished by saying "have a
good night's sleep" and I drove to my home. They
followed me to my home and when I pulled into my
driveway, they honked the horn and drove away.
Since they didn't threaten me after I was stopped, I
didn't call the police. I was scared for myself and my
family before they talked to me. That is why I did not
lead them to my home. It was also a tight spot when
they blocked my car on the dirt road since no one else
was around and there were no street lights. I didn't get
out of the car.
Bryden, warehouse supervisor since April 1974, testified
that his home was about 12-1/2 miles from the plant, and
that he drove about three or four car lengths into the
country road before he stopped. He testified that the other
car pulled in behind him on the same road. When reminded
of his written statement that the other car had driven across
the end of the dirt road, he became unsure whether the
other car drove across the road or pulled in directly behind
him, but insisted that whichever way it was he could not
back out until the other car moved. Bryden also testified
that a factor contributing to his fright was that another
supervisor had had objects thrown through the windows of
his home; that he was still somewhat frightened after the
occupants of the other car identified themselves; but that he
was more at ease after the other car backed out of the dirt
road so he could get out.
Samson and Moreau admitted a substantial part of this
evidence. They said they were on the picket line when
Bryden drove through the gate. Moreau said they possibly
were close enough to call to Bryden at that time, but
Samson did not think Bryden would have heard them as
they were 25 feet from his car. Although Samson did not
know Bryden, Moreau said he knew him and as he was a
decent fellow he might be able to talk to him. Samson then
said that his car was nearby and suggested they follow
Bryden and try to talk to him. Samson drove. As they
followed, one of the two suggested flicking the lights off and
on but they decided not to because it might scare Bryden
and it was not their purpose to frighten him. Their
testimony differed most markedly from Bryden's in that
both Samson and Moreau flatly denied blocking his car.
They said that Bryden turned left into a dead-end road or
driveway the length of one car only, and that Samson
stopped on the right-hand shoulder of the main road across
from the entrance to the dead-end, 20 to 25 feet from it.
When Samson was shown a statement in his prehearing
affidavit, "Bryden drove into a narrow dead-end street and
we pulled in along the other side, about twenty-five feet
away," he said he was not referring to the other side of the
same road Bryden pulled into. When his previous testimony
at an unemployment compensation hearing, that when both
cars came to a stop "I was behind him," was read to him, he
explained that he had not meant to say he stopped directly
behind Bryden 's car . Moreau was also shown the above-
quoted portion of Samson 's prehearing affidavit, and
suggested that "pulled up" would have been technically
more accurate than "pulled in." Bryden and Samson also
differed in that Bryden's testimony was that he asked
Samson "to back their vehicle so he could get out," while
Samson testified , "I told J.J. to tell [Bryden ] to drive his car
out so I could turn around ." In their conversation with
Bryden, they said, they asked him how it felt to be doing
manual labor instead of supervising, to what extent the
stock was depleting in the warehouse, and how long he
thought the strike would last.
I fmd that Sampson and Moreau set forth on this
adventure for the purpose of intimidating Supervisor
Bryden. They say they wanted only to talk to him because
he was a decent fellow. But the matters they talked about
hardly justified following him at night for more than 14
miles and accosting him two to one in a remote country
area unfamiliar both to themselves and to him. Had their
intentions been as innocent as they claimed, they surely
could have arranged to talk to Bryden at a place and time
less likely to frighten him. Based on their unsatisfactorily
explained behavior up until then, I find, as testified to by
Bryden, that they did indeed block his car when they finally
ran him aground in a lonely dead-end road.
F. The 2-Week Suspension of Stephan Coppez
Turcotte testified that he suspended Coppez because of
disorderly conduct on the picket line, when a number of
strikers were shouting at vehicles going through the plant
gate and Coppez spat on a vehicle and was arrested.
Although Turcotte could not remember how he first found
out about the incident, he ultimately obtained a copy of the
police report on it. Turcotte did not know whether Coppez
was charged or if so whether he was convicted.
Police Officer Thomas Munroe described the scene at the
rear gate of the plant on October 15, 1974. He said there
were a lot of pickets that day and they were boisterous,
yelling, shouting, and spitting at vehicles driven by non-
striking employees. He warned them that "any more
outbreaks like that, such as spitting would be arrested."
When Coppez then spat on the window of a security car
following a truck out the gate, Munroe placed Coppez
under arest, brought him to the station, and booked him.
Coppez was arraigned, eventually plead nolo, and on
December 11, 1974, was given a $25 suspended fine.
Stephan Coppez admitted spitting on the windshield of a
car coming out the plant gate, and that he was arrested and
jailed. He denied, however, that charges were pressed
against him.
I find, as Coppez admitted, that he spat on the vehicle. I
further find that he did so in the circumstances, and was
given a suspended fine, as described by Officer Munroe,
who appeared to be the more honest and disinterested of
the two witnesses to these matters.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. The I -Week Suspension of Francis Bernier
Bernier has been employed 4 years by the Respondent as
a warehouseman. General Manager Turcotte testified he
decided to suspend Bernier because of police reports that
he staged an accident at the picket line in the following
circumstances: in October 1974, the Company had sent
letters to the strikers advising them that they would be
permanently replaced if they did not report for work by a
certain date. There was heavy picketing after those letters
were sent, and on this day in mid-October there were 50 or
more men on the picket line at the 30-foot-wide front gate.
More police were present than usual, but they had difficulty
enabling customers and administrative employees to get in
and out of the premises. The police warned that such people
had a right to enter and leave, and that the pickets must
open a path for them as obstruction was illegal and
dangerous. After the warning, the police opened a path
through the picket line for a vehicle and,just as the vehicle
began to enter, Bernier stepped directly in front of it, came
in contact, and fell to the ground. As a result, the pickets
became agitated and the police had difficulty getting the
vehicle into the premises and safely escorting the driver into
the building. The police reported that the accident was
staged, and Turcotte considered it a deliberately falsified
accident which terrified the driver of the vehicle. In
response to a question by the Charging Party's counsel,
Turcotte said that he did not know, before he made the
decision to discipline Bernier, that Bernier had had surgery
on both legs before the incident.
The evidence places this incident on October 16, a rainy
cold morning with poor visibility, when there were more
than 50 pickets at the front gate of the premises. Lt. Gilbert
Vaal, Deputy Police Chief Leo Filipowitz, and Director of
Operations Foley all testified credibly that the pickets were
slow responding to police efforts to make a path for vehicles
passing through the gate, and that pickets engaged in
shouting, name-calling, and banging on vehicles. I find, as
testified to by Lt. Vaal and Edward Silva, that pickets
complained of vehicles driving through too fast, but I do
not credit Silva's testimony, unsupported by Raymond
Samson and denied by Vaal, that Samson was dragged
along after his poncho was caught on one of the vehicles. I
find, based on testimony by the Respondent' s witnesses as
against Silva's unsupported testimony to the contrary, that
two patrolmen were stationed between the picket line and
the highway attempting to regulate traffic through the gate.
Also I find that there was disagreement between police and
pickets over whether more danger lay in the slow movement
of pickets or the fast movement of vehicles.
Based on the testimony of Lt. Vaal and Robert Jordon, a
nonstriking employee, I find that Jordon approached the
gate driving a rented car; he stopped and waited for the
police to make a path through the picket line, which took
several moments because the pickets were slow to respond
to the police requests to move aside; when a path was
cleared, police motioned for Jordon to come ahead; Jordon
released the pressure from the brake and allowed the car to
move forward without pressing the accelerator; when he
had progressed about half way through the pickets, Bernier
walked in front of the car, the bumper struck his leg,
Bernier fell to the ground, and Jordon immediately stopped
the car. I do not credit Bernier that he lay with his legs
under the car, because it seems an exaggeration over Lt.
Vaal's more accurate account to the contrary. On the same
basis, I find that pickets became angry and abusive of both
Jordon and the police; that Vaal directed Jordon to back
up and drive around Bernier ; and that Lt. Vaal sent for an
ambulance although he observed no outward signs of
injury. It is undisputed that an ambulance arrived within 5
minutes, and that traffic through the gate was not delayed
by the incident . Bernier was carried to the hospital, where
his injury was diagnosed as acute contusion of the right
knee, and application of ice was prescribed. I also find, as
Bernier testified, that his ankles had been operated on in
1972 for removal of bone chips and he was away from work
4 months at that time. I credit Bernier , as supported in part
by Silva, that he was hit by Jordon's vehicle because as he
walked toward the middle of the gate Bernier turned to
wave at a truck driver, employed by another employer in
the vicinity, who as was his custom honked his horn to show
sympathy to the strikers; that Bernier's vision was impaired
by the hood of a poncho he was wearing; and that Bernier
was unaware of the nearness of Jordon's car at that
moment. In the absence of any direct testimony or any
basis for drawing such an inference, and in view of
Bernier's medical history, I credit Bermer's testimony that
he did not stage this accident, even though his carelessness
is apparent. I also find that although Jordon was frightened
by the incident, Bernier was not seriously injured and
traffic was not delayed.
H. The 1-Week Suspension of Richard Smith
Smith had been in Respondent's employ 8 years at the
time of the strike. He picketed every other day.
General Manager Turcotte testified he decided on the
suspension of Smith based on an oral report by Director of
Operations Foley that Smith engaged in disorderly conduct
on the picket line, harassing customers and administrative
employees entering and leaving the premises by making
threatening and obscene gestures, giving the finger, and
shouting obscenities.
Director of Operations Foley and Transportation Super-
visor Kenneth MacDonald testified that Smith engaged in
the conduct described by Turcotte on more than one
occasion.
Richard Smith admitted, and I find, that he did give the
finger to security guards and people driving vehicles and
trucks through the picket line but I do not believe he did so
only after they did it to him. I credit his testimony that he
did yell "scab" and "nigger-lover" but I find, in accord with
his uncontradicted testimony, that these epithets were
uttered when Foley and Superintendent Ciampi walked by
the pickets with their arms around striker replacements and
asked, "How do you like my colored boy?"
1. Conclusions
I find that the record fails to support the contention of the
General Counsel that General Manager Turcotte, who was
responsible for the Respondent's decision to discipline
these nine employees, did not believe in good faith that they
engaged in the misconduct attributed to them. On the basis
ASSOCIATED GROCERS OF NEW ENGLAND 1207
of his demeanor and my overall review of his testimony, in
light of the entire record, I find Turcotte to be a credible
witness. Although his memory of some of the details of the
information he received and acted on more than a year ago
was inaccurate, the overall impression he created was that
of sincerity and honesty. Moreover, Turcotte's testimony
was not directly contradicted, and no independent unfair
labor practices are alleged or found to have been commit-
ted by the Respondent during the period of the strike.
Moreover, there is no evidence of hostility to the Union. In
these circumstances, the fact that four of the nine strikers
disciplined were union officials cannot be considered
significant, particularly in the absence of any evidence of
disparate treatment. Similarly, Turcotte's explanation of
why he accepted what he referred to as eyewitness
accounts, given by comparative strangers, without obtain-
ing the strikers' stories, does not seem so unreasonable as to
be indicative of bad faith. Nor do I consider indicative of
bad faith the Respondent's attempt to obtain the Union's
acceptance of the terminations and suspensions as part of
the overall settlement of the strike and the contract
negotiations, and its pointing out that no recourse to
grievance and arbitration proceedings was available as no
contract was in existence.
In the above circumstances, I find that the Respondent
disciplined these nine strikers for reasons given by General
Manager Turcotte, based on the honest belief that they
engaged in strike misconduct.
However, I have found, based on the evidence before me
in this proceeding, that Emile Juneau, George Karam, and
Francis Bernier did not in fact engage in misconduct. I
conclude therefore that, as economic strikers, they were
entitled to reinstatement upon unconditional application
on October 31, 1974, and that the Respondent's refusal to
reinstate them constituted violations of Section 8(a)(3) and
(1) of the Act.2
The issue as to the remaining six is whether the miscon-
duct in which I have found they engaged was of a
sufficiently serious nature to deprive them of the protection
which the Act afforded to them as economic strikers.
The picket line conduct of Stephan Coppez, spitting on a
vehicle being driven through the line, even in the context of
disorderly (but nonviolent) conduct by other pickets, and
even though he received a suspended fine, and the conduct
of Richard Smith, making obscene gestures and vulgar and
derogatory remarks under provocation, was merely rough
and trivial and not of such a serious nature as to deprive
them of the protection of the Act.3
I find that Edouard Paquette's implied threats toward his
neighbor Paul Perry, although intended to intimidate Perry,
were general in nature, were not effective, and did not
frighten Perry or cause him to change his plans to obtain a
job with the Respondent if he could. I conclude from this
2 N L R B v Burnup and Sims, Inc, 379 US 21 (1964); Advance
Industries Division-Overhead Door Corporation, 220 NLRB 431, 438 (1975),
Otswego Ski Club-Hidden Valley, Inc, 217 NLRB 408, 414-415 (1975)
3 See N L R B v Community Motor Bus Company, Inc, 439 F 2d 965, fn 2
(C.A 4,197 1), Advance Industries Division-Overhead Door Corporation, supra,
Terry Coach Industries, Inc, 166 NLRB 560 (1967), enfd 411 F 2d 612 (C.A
9,1969)
4 The Blair Process Company, Inc., 199 NLRB 194, 198 (1972), Frontier
Guard Patrol, Inc, d/b/a Frontier Guard and Delue, Inc, Colorado Guard-
Patrol Service, Inc, and/or Patrol Services, Inc, 161 NLRB 155, 171 (1966)
that Paquette's conduct did not justify the Respondent's
terminating him .4
The conduct of Raymond Samson and Arthur Moreau,
following Supervisor Peter Bryden intending to and suc-
ceeding in frightening him, although closer to the border-
line, is also not sufficiently serious to justify disciplining
them. It is clear that Bryden's fear was soon put to rest, he
was never in any danger,5 and he eventually realized this as
shown by his waiting to talk with the strikers after he was in
a position to leave at W111 .6
The conduct of William Bourgeois was, in my opinion,
the closest of all to conduct serious enough to step him of
his reinstatement rights. In the presence of 40 to 50 pickets
he threatened the lives of 3 job applicants if they should
cross the picket line and succeeded in causing at least 1 of
them, Samuel Nadeau, to abandon his pursuit of a job.
However, the Board has recently affirmed its view that
verbal abuse and threats, not accompanied by any physical
acts or gestures which would provide added emphasis or
meaning to words, are not sufficient to warrant finding that
an economic striker should not be reinstated to his job at
the strike's conclusion.?
I therefore conclude that the Respondent's termination of
Bourgeois and Paquette, and its suspension of Stephan
Coppez, Richard Smith, Raymond Samson, and Arthur
Moreau were also violations of Section 8(a)(3) and (1) of
the Act.
IV. REMEDY
Having found that the Respondent committed certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom, and because of the nature of
the violations found to cease and desist from in any other
manner interfering with, restraining, or coercing employees
in the exercise of their rights under Section 7 of the Act. I
shall also recommend that the Respondent take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act by terminating Edouard Paquette,
William Bourgeois, Emile Juneau, and George Karam, I
recommend that these employees be offered full and
complete reinstatement to their former jobs or, if such jobs
are no longer available, to substantially equivalent jobs,
without prejudice to their seniority and other rights and
privileges, and that they be made whole for their loss of
earnings on and after the fifth day following October 31,
1974, when they unconditionally offered to return to work.
Having found that the Respondent also violated Section
8(a)(1) and (3) by suspending Stephan Coppez, Raymond
Samson, Arthur Moreau, Francis Bernier , and Richard
Smith, I recommend that they be made whole for their loss
5 Cf Alcan Cable West, a Division of Alcan Aluminum Corporation, 214
NLRB 236 (1974), The Blair Process Co, Inc, supra
6 Otswego Ski Club-Hidden Valley, Inc, supra
7 W C McQuaide, Inc, 220 NLRB 593,607 (1975). Accord, N LR B v
Hartman Luggage Company, 435 F 2d 178 (C A. 6, 1971). The Respondent
has called to my attention several cases in which courts of appeals have
found, contrary to the Board, threats toj ustify refusal to reinstate strikers I
am, however, required to follow the Board Iowa Beef Packers, Inc, 144
NLRB 615 (1963)
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of earnings during their suspensions. All backpay shall be the Respondent to insure that the notices are not altered,
computed in accordance with the formula described in F. defaced, or covered by any other material.
W. Woolworth Company, 90 NLRB 289 (1950), and interest (d) Notify the Regional Director for Region 1, in writing,
at the rate of 6 percent per annum shall be added. Isis within 20 days from the date of this Order, what steps the
Plumbing & Heating Co., 138 NLRB 716 (1962). Respondent has taken to comply herewith.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER8
The Respondent, Associated Grocers of New England,
Inc., Manchester, New Hampshire, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Chauffeurs, Teamsters
and Helpers Local Union No. 633, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
by terminating or suspending employees because they
engaged in an economic strike.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to Edouard Paquette, William Bourgeois, Emile
Juneau, and George Karam immediate and full reinstate-
ment to theirjobs or, if theirjobs are no longer available, to
substantially equivalent jobs without prejudice to their
seniority and other rights and privileges. Make the afore-
named employees and Stephan Coppez, Raymond Samson,
Arthur Moreau, Francis Bernier, and Richard Smith whole
for their lost earnings in the manner set forth in the remedy
section of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll, social security payment, and personnel records and
reports, timecards, and all records necessary to analyze the
amounts of backpay due under the terms of this Order.
(c) Post at its warehouse in Manchester, New Hampshire,
copies of the attached notice marked "Appendix."9 Copies
of the notice, on forms provided by the Regional Director
of Region 1, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
8 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and Order and all objections thereto shall be deemed
waived for all purposes.
9 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Chauffeurs,
Teamsters, and Helpers Local No. 633, a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor
organization, by terminating or suspending employees
because they engage in an economic strike.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights guaranteed by Section 7 of the National Labor
Relations Act, as amended.
WE WILL offer Edouard Paquette, William Bour-
geois, Emile Juneau, and George Karam immediate and
full reinstatement to their former jobs or, if their jobs
are no longer available to substantially equivalent jobs,
without prejudice to their seniority and other rights and
privileges.
WE WILL make whole Edouard Paquette, William
Bourgeois, Emile Juneau, George Karam, Stephan
Coppez, Raymond Samson, Arthur Moreau, Francis
Bernier, and Richard Smith for any loss of pay they
may have suffered as a result of the discrimination
against them, plus interest at 6 percent per annum.
ASSOCIATED GROCERS OF
NEW ENGLAND, INC.