Cumberland Farms Dairy of New York, Inc.,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 900 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cumberland Farms Dairy of New York, Inc. and
Lance Giles. Case 3-CA-9901
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 15, 1981, Administrative Law Judge
Arline Pacht issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,t find-
'As indicated in fi. 6 of her Decision, at the hearing the Administra-
tive Law Judge excluded as inadmissible hearsay the testimony of Plant
Foreman Pillai about swhat Plant Manager Azoia told Pillai were Azoia's
reasons for discharging Charging Party Giles. In her Decision, the Ad-
ministrative Law Judge reversed her ruling at the hearing, and admitted
Pillai's testimony under the "present sense impression" exception to the
hearsa) rule, as provided for by Rule 803(1) of the Federal Rules of Evi-
dence.
'We reverse the Administrative l.aw Judge's ruling admitting Pillai's
testinny as an exception to1 the hearsay rule. Rule 803(1) provides that
"a statement describing or explaining an event or condition made while
the declarant was perceiving the event or condition, or inmmediately there-
after" is not excluded by the hearsay rule. (Emphasis supplied.) However.
the record establishes that Azoia's statement to Pillai that he fired Giles
because Giles called him "an asshole" was not made until 10 minutes
after the event, by which time Azoia had become, in Pillai's view. '"wor-
ried," but not excited. Thus, the circumstances surrounding Azoia's state-
ment to Pillai about why he discharged Giles are discordant with the un-
derlying rationale for admitting into evidence hearsay statements of the
type described in Rule 803(1). Particularly, as stated in the Advisory
Committee's Note Accompanying Rule 803(1):
The underlying theory of [the "present sense impression"] exception
is that subrtantial contemporaneity of event and statement negative the
likelihood of deliberate or conscious misrepresentation . . [al-
though] a slight lapsri is allowable. [Emphasis supplied.]
Under the circumstances of this case, the 10-minute lapse between
Azoia's discharge of Giles and his subsequent offer of an explantion to
Pillai as to why he did it is significantly more than "slight," and fails to
meet any reasonable application of a "substantial contemporaneity stand-
ard.
Moreover, two ther factors, emphasized by authorities as additional
safeguards for the reliability of such hearsay evidence, are not present in
the instant circumstances. Thus:
[T]he statement will usually have been made to a third person (the
witness who subsequently testifies to it) who, being present at the ime
and scene of the observation, will usually have an opportunity to obh-
serve the suation hit.self and thus provide a chec o the accuracy of
the declaran's statement. Moreover, since the declarant himself will
usually be availahle fir ross-examination, his credibility will be sub-
ject to substantial verification before the trier of fact. [Emphasis sup-
plied]. McCormick's Handbook of the Law of Evidence, sec 298 (2d
ed. 1972).
The record establishes that Pillai was not present when Azoia dis-
charged Giles, and thus had no opportunity to observe the situation
himself, so as to provide a check on the accuracy of Azoia's state-
ment that he discharged Giles because Giles called him "an asshole."
Finally, Azoia himself did not appear as a witness in this proceeding
258 NLRB No. 120
ings, and conclusions of the Administrative Law
Judge and to adopt her recommended Order as
modified herein.2
The Administrative Law Judge concluded, inter
alia, that Respondent violated Section 8(a)(1) of the
Act when its safety director, Phillip Proulx, told
then-job applicant Arthur McClaskey that Re-
spondent discouraged hiring employees who for-
merly belonged to unions. While we agree with the
Administrative Law Judge that Proulx made inher-
ently coercive comments to McClaskey, in viola-
tion of Section 8(a)(1), we note that the record re-
veals not that Proulx made the above comment,
but rather, during McClaskey's prehire driving test
administered by Proulx, according to McClaskey's
uncontroverted testimony, "[Proulx] asked if I be-
longed to the union. And I said no. And he said
well, the company frowns on unions." As indicat-
ed, we find Proulx's interrogation of McClaskey
about his union affiliation, and particularly when
coupled with Proulx's statement that "the company
frowns on unions," to be inherently coercive, tend-
ing to interfere with and restrain McClaskey in the
exercise of his rights under Section 7 of the Act.
See Bendix- Westinghouse Automotive Air Brake
Company, 161 NLRB 789, 791-792 (1966); see also,
generally, e.g., Quality Drywall Company, Inc., 254
NLRB 617 (1981); Eastern Maine Medical Center,
253 NLRB 224 (1980).3
In light of all of the above-described evidentiary shortcomings attend-
ant to Pillai's hearsay testimony about what Azoia told him were Azoia's
reasons for discharging Giles, we rule that testimony to be inadmissible.
2 In addition to the modification to the Administrative Law Judge's
recommended Order resulting from our clarification of the unfair labor
practice attributable to Respondent's Safety Director Proulx, discussed
below, we also note that in setting out her recommended remedy for Re-
spondent's unlawful discharge of Charging Party Giles, the Administra-
tive Law Judge inadvertently failed to make reference to Isis Plumbing d
Heating Co., 138 NLRB 716 (1962), in her description of how interest on
any backpay that may be owed to Giles is to be computed. Accordingly,
we hereby direct that any backpay owed to Giles as a result of Respond-
ent's unlawful discharge of him be computed in the manner established
by the Board in FI W. Woolworth Company, 90 NLRB 289 (1950), and
with interest as computed in Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, sis Plumbing Heating Co., supra.
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
a In affirming the Administrative Law' Judge's finding that Respondent
is liable for Safety Director Proulx's unlawful remarks to job applicant
McClaskey, on the grounds that Respondent placed Proulx in a posi-
lion-as administrant of prehire driving tests-in which it appeared to ap-
plicants that his comments carried some weight with respect to their em-
ployment, we do not rely, as the Administrative Law Judge did, on Air
Expres InternationIal Corporation, 245 NLRB 478 (1979). In Air Express,
the Board expressly rejected, for lack of supporting evidence, the admin-
istrative law judge's finding that the respondent had effectively made an
individual its agent for purposes of liability for unlawful activity. In find-
ing that Proulx was an agent of Respondent under the circumstances of
this case. we rely generally on Quality Drywall Compay. Inc.. .uprau,
Booth Services, Inc., 206 NLRB 862, 864-865 (1973); see also Behrirng In-
teriational Inc., 252 NLRB 354 (1980) (agency may be inferred from cir-
cumstainces; not necessary 1to prose direct authorization or subsequent
ratificatlon)
9(X)
CUMBERLAND FARMS DAIRY OF NEW YORK. INC.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Cumberland Farms Dairy of New York, Inc.,
Canton, Massachusetts, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified.
I. Delete paragraph l(d).
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT interrogate employees con-
cerning their union membership, activities, or
sympathies.
WE WILL NOT threaten employees with dis-
charge, plant closure, a reduction in hours of
employment or any other adverse consequence
concerning terms and conditions of employ-
ment, for engaging in union activities, or any
other protected, concerted activities under the
National Labor Relations Act, or for giving
statements to Government agencies on behalf
of other employees.
WE WILL NOT discharge or otherwise dis-
criminate against any employee for the pur-
pose of discouraging employees from engaging
in union activities or because an employee en-
gaged in protected, concerted activities.
WE WILL. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by the Na-
tional Labor Relations Act.
WE Wll. offer Lance Giles immediate and
full reinstatement to his former job or, if that
job no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority
or other rights and privileges previously en-
joyed, and make him whole for any loss of
earnings suffered by him by reason of the dis-
crimination against him with interest thereon
at the rate currently being utilized by the
Board.
CUMBERLAND FARMS DAIRY
NEW YORK, INC.
OF
DECISION
STATEMENT O 'TriH CASE
ARIINEI PACTCH, Administrative Law Judge: Upon a
charge filed by Lance Giles, the General Counsel of the
National Labor Relations Board (the Board) for Region
3, issued a complaint dated August 19, 1980, as amended
on September 11, 1980, and March 12, 1981, alleging that
the Respondent, Cumberland Farms Dairy of New York,
Inc., had engaged in unfair labor practices in violation of
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (the Act). Respondent filed a timely
answer denying any wrongdoing. A hearing was held on
March 25, 26, and 27, 1981, in Albany, New York, at
which the parties were given full opportunity to examine
and cross-examine witnesses and to present documentary
evidence.
Upon the entire record in this case,' including observa-
tion of the demeanor of the witnesses and consideration
of the parties' briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Massachusetts corporation, has its prin-
cipal office and place of business in Canton, Massachu-
setts, and facilities in other States. Respondent's plant at
9120 Erie Boulevard, Schenectady, New York, is the
only site involved in this proceeding.
Respondent is engaged in the retail sale of dairy prod-
ucts, groceries, and related goods. During the course of
its business operations, Respondent earned gross rev-
enues during the past year in excess of $500,000 and re-
ceived within New York State, goods valued in excess of
$50,000 from points outside the Stale.
Accordingly, I find that Respondent is an employer
engaged in commerce within the meaning of Section
2(2). (6), and (7) of the Act.
' After the hearing concluded, the General Counsel and Respondent
rnomed to correct the ralscript. Since the requested rerilons concern
nmisspellcd ords or obhious error%. find since no ohiecli ons ere raied
h. hller pa;lr to the propo ,cd change'. hot h mionlros are granted
901
DECISIONS OF NATIONAL LABOR RELATIONS HOARD
Ii. THE ALL. LEGI:I) UNFAIR L.ABOR PRACTICES
A. Background
Larry Giles, the Charging Party, first sought employ-
ment as a tractor-trailer driver for Respondent's milk-
processing and bottling facility in Schenectady in No-
vember or December 1977. During his initial interview,
the then-plant manager, Dwight Brockway, asked Giles
if he had been in a union, to which Giles replied that he
had belonged to the Teamsters 10 years earlier. Giles
was not hired then or on several subsequent occasions
when he reapplied. Finally, in February 1978, Giles ap-
plied again in response to a newspaper advertisement.
This time, after assuring Brockway and Phillip Proulx,
Respondent's safety director, that he was no longer in-
volved with a union, he was hired. Brockway explained
to Giles that he had not been hired previously becau'e of
his prior union membership. Several weeks later, Brock-
way repeated this comment to him and revealed that he
was not supposed to hire applicants with a union back-
ground, but made an exception in Giles' case because of
his persistence.
In May 1979, Brockway introduced Giles to Joseph
Martinez, Respondent's general manager who was visit-
ing the plant. Giles urged Martinez to consider pay raises
for the drivers since no increases had been granted for
over a year. 2
The next month, Luis Azoia, who had replaced Brock-
way as plant manager, told Giles that Martinez had been
angered by Brockway's permitting Giles to approach
him directly about wage increases. Azoia then admon-
ished Giles that he was to talk only to him and mind his
own business.
Giles did not heed Azoia's advice. In the fall, the driv-
ers were advised that some executives from corporate
headquarters in Canton had arranged a meeting to dis-
cuss safety matters. Prior to the meeting, the drivers
agreed to present problems with their pay and other
working conditions to management and asked Giles, the
most senior driver, to serve as their spokesman. As
planned, Giles introduced himself at the meeting as the
drivers' spokesman and then asked each man to present
his particular complaint. Giles himself raised a question
as to a proposed profit-sharing plan. Management's re-
sponse was cool: in so many words, they stated that it
was a safety meeting and they did not wish to dwell on
extraneous matters. The next day, Azoia advised Giles
that he had been instructed by the officials to keep an
eye on him for they were displeased by his role as a
spokesman. Azoia added that Giles was a troublemaker
and he could fire him anytime he chose.3
B. Alleged Concerted Activity
This was neither the first time that Azoia rebuked
Giles for meddling nor would it be the last. Throughout
the fall of 1979 and for the first 6 months in 1980, up to
At that time, there were four drivers on the payroll. The number of
drivers at the Schenectady facility has ranged from two to seven over
the past few years.
:' Another driver, George Peek, overheard this conversation and con-
firmed Giles' account.
and including the date of his discharge on June 3, 1980,
Giles' and Azoia's confrontations were frequent and
often hostile.
It was commonplace for the drivers to gather in the
plant lounge or in an adjacent diner before or after their
deliveries to prepare their paperwork and have coffee.
At such times, they shared their concerns about wages,
working conditions, equipment safety, and the like.
Sometimes, they would speculate about what advantages
might accrue if they were to unionize. There was noth-
ing furtive about these meetings. If Azoia happened by,
the drivers did not conceal their conversation. Azoia's
invariable reaction to any mention of unions was that the
Company would not tolerate one and that any driver
who wished to join could "go down the road," a euphe-
mism for finding a job elsewhere, or be fired.
As an outgrowth of these conversations, drivers would
ask Giles to raise their problems with Azoia. On occa-
sion, the drivers and Giles approached Azoia together;
more frequently, at least several times a month, Giles
took on Azoia alone, seeking redress for his own com-
plaints or for those of his coworkers. Each of the em-
ployee witnesses confirmed that it was at their request
that Giles voiced their grievances to Azoia. On rare oc-
casions, Giles succeeded in persuading Azoia to take
some corrective action with respect to a problem. More
often than not, Azoia reacted by accusing Giles of being
a troublemaker and threatening to get rid of him.
The drivers acknowledged that although Giles was
their most persistent spokesman, they did not always rely
on him to confront Azoia. For example, employees Claus
and Blythe testified that on one occasion they protested
having to work 6 or 7 days a week without relief.
Azoia's reply was to threaten them with a severe curtail-
ment of working hours which would have meant a sub-
stantial reduction in pay.
Azoia was unreserved in sharing his opinion of Giles
with the other drivers. In his more polite moments, his
choicest epithets for Giles were "troublemaker," and
"bad apple"; a man who other drivers should avoid.
In March 1980, Giles' relationship with Azoia took a
turn for the worse. Early in the month, Azoia told Giles
he had no future with the Company; that he could get
rid of Giles because of his poor attitude; that Giles
should stop minding other people's business. During the
same month, while Giles, fellow-driver Mike Herring,
and Azoia were discussing a problem with Herring's
truck, Giles asked what would happen if the drivers re-
fused to take their trucks out because they were unsafe.
Azoia retorted that they would be fired and their places
filled by other people from Canton, Massachusetts.
Driver Lorenzo Claus recalled another incident in
March when, after Giles and Herring had discussed Her-
ring's pay problem with Azoia, the plant manager
became visibly upset and threatened to get rid of trouble-
makers, starting with Giles. Later that same day, Azoia
questioned Claus as to whether "you guys are trying to
start a union."
For the most part, the employees merely speculated
about the possible advantages of union representation but
took no overt steps to organize formally. However, in
902
CUMHERLAND FARMS DAIRY OF NEW YORK, INC.
March, Giles, partly in jest, told a driver from another
Cumberland Farms plant that the Schenectady drivers
were forming a union. Shortly thereafter, Herring en-
countered the same driver during one of his runs and,
when questioned, reinforced Giles' assertion. Within a
week, Azoia called Giles into his office, in uncharacteris-
tic fashion shut the door, and asked him if he and Her-
ring were starting a union. Azoia revealed that he had
received a telephone call from the Canton corporate
headquarters and had been told to get rid of Giles be-
cause of his union activity. When Giles asked why he
did not discharge him immediately. Azoia boasted that
he ran the Schenectady plant and would fire him when
he chose to do so. During this session, employee Peek
knocked on the office door and Azoia repeated the
threat he had just made to Giles.
Throughout April and May, Giles continued to press
Azoia to correct the drivers' problems and Azoia contin-
ued to respond with anger. After one such occasion,
Azoia turned to another driver, Arthur MCLaskey, and
referred to Giles as a "big shot union man" who "hasn't
long for this company."
I. The June 3 discharge
Respondent's plant is located on heavily trafficked
Erie Boulevard in Schenectady. In approaching the plant
for loading or unloading, the drivers must back their
tractor-trailers into loading bays from this street. There
is an additional parking area in the rear of the plant.
On returning from his regularly scheduled deliveries
between 12:30 and 1:30 p.m., Giles was supposed to park
in Bay I or, if it was blocked, Bay 2. The drivers were
to avoid parking in Bay 3 since it was the only area in
which certain milk tankers could be accommodated.
Giles often returned to find Bay I obstructed by cars
belonging to patrons of the nearby restaurants. Occasion-
ally, if Bay 2 also was blocked, Giles would park his
truck temporarily in Bay 3 until such time as he or an-
other employee could shift it. Azoia had yelled at Giles
in February when he was about to leave his truck in Bay
3 overnight. However, neither Giles, nor any of the
other drivers who on occasion also pulled ito Bay 3,
was ever disciplined for doing so.
On Saturday, May 31, Giles returned from his run to
find Bay 1 obstructed by an automobile. He parked in
the rear of the plant, and then when requested to do so,
attempted to move into Bay . Finding it was still
blocked, he moved his truck into Bay 2 for the evening.
On Monday, June 2, Giles had no problem parking in
Bay 1. 4 On reviewing his scheduled deliveries for the fol-
lowing day, he realized he would be unable to fit seven
extra dollies of milk on his truck. When he asked Azoia
how this problem should be handled, Azoia indicated
that Giles would have to take on the additional milk
after completing his first run and make a second deliv-
ery. Azoia then criticized Giles for parking in the wrong
bay on Saturday.
During cross-examination. Giles indicated that he parked in Bay I on
June 3. It is apparent from the context of this portion of his estimon,)
that Giles misunderstood the question posed and assumed that Respond-
ent's counsel was referring to June 2.
The next day. June 3, Giles returned from his first trip
to find a car impeding Bay 1, and another of Respond-
ent's trucks in Bay 2. Assuming he would be parked only
for the 10 or 15 minutes it would ake to load the seven
milk dollies, Giles backed his truck into Bay 3. Giles did
not know that at approximately 11:30 a.m. Azoia had di-
rected two employees to load the dollies onto the truck
in Bay 2. As Giles entered the facility to prepare some
paperwork and have a cup of coffee, Azoia rushed
toward him, screaming obscenities because he had
parked in Bay 3. Giles continued walking into the plant
and, when Azoia's abusive language did not cease, told
him "You know, you ought to get your shit together and
your head on straight." At this, Azoia yelled at Giles
that he was fired. '
Azoia did not offer Giles any reasons for the dis-
charge, but he did tell several other employees that day
that he "got rid of the troublemaker." Some 10 minutes
after his outburst, Azoia called the plant foreman, Gonga
Pillai, into his office, and in an apparently calmer but still
angry mood, told him he fired Giles for using abusive
language.6 In Respondent's termination form, Azoia at-
tributed Giles' termination to a "conflict with . . . the
supervisor" and added the following comment: "This
man used bad language with everbody [sic] including
manager. Last 6 months very poor performance. Disliked
company policy, pay etc. Make conflict with either [sic]
drivers."
2. Events after June 3
In July, Azoia mentioned to employees Peek and
Blyth that he had received a subpena to testify at Giles'
unemployment compensation hearing before the state
board. He agreed that any employee could appear at the
hearing but then he would find out who were the bad
apples and get rid of them.
In October, Azoia's antiunion bias surfaced again in
comments to several drivers who were discussing unions,
' At the hearing. I ruled that Respondent could not question Giles as
to statements which Azoia presumably made during Giles' hearing before
the State Department of Labor Unemployment Insurance Board. Re-
spondent argues in brief that Azoia's "testimony" is admissible under
Fed. R. Evid. Rule 804(b)(1) which permits as a hearsay exception.
former testimony given by a witness at another hearing if the declarant is
unavailable. Respondent's argument is without merit, first because no
showing was made that Azoia was unavailable as a witness. and second
because statements elicited from Giles are no substitute for Azia' sworn
testimony in the previous proceeding.
Even if Azoia's statements (as adduced through Giles) "ere admissible.
they would have no impact on my crediting Gile's account of the June 3
confrontation. Giles impressed me as a forthright witness Moreover. hi,
version of the discharge episode was corroborated by another emplo.ee.
Carl Knuth. Azoia's contention that Giles knew he was to pick up an-
other truck is undermined by Knuth's testimony that he was not directed
to load the truck in Bay 2 until 1130 a.m while Giles was still on the
road. Finally. Azoia's assertion that he used no obscenities on June 3 is
incredible in light of abundant testimony as to his constant use of profaln-
ity
A the hearing I also ruled that Pillai's testimony as to what Azoia
said to him 10 minutes after firing Giles was inadmissible hearsay. but
permitted Respondent to make an offer of proof. In its brief, Respondent
argues that Azoia's comments are admissible under the prcscnl sense im-
pression exception to the hearsay rule See Fed, R. Evid. Rule 03(1). I
find merit in Respondent's argument and reverse my previou, ruling.
therchb admitting into evidence Respondent', proffer as to hal Pillai
would he said had he been permitted o testify.
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Respondent would close its doors before it permit-
ted a union at the Schenectady facility.
C. Discussion
The General Counsel contends that Respondent dis-
charged Giles for his persistent efforts to protest what he
and other employees regarded as unfair and unsafe work-
ing conditions. Respondent contends, on the other hand,
that Giles' discharge was motivated by lawful consider-
ations; that is, his insubordination in disregarding compa-
ny policy by parking in a prohibited area and cursing at
a supervisor.
In these circumstances, the General Counsel is re-
quired to prove that Respondent's asserted reasons for
the discharge were pretextual, designed to obscure its
real, discriminatory motivation. I find that the General
Counsel has adduced abundant evidence to satisfy its
burden.
The record in this case leaves no doubt as to Respond-
ent's union animus. Indeed, Respondent does not, and
could not, contest that fact. Azoia made no attempt to
conceal his own and the Company's hostility to union
activity. His adamant opposition toward any expression
of interest in union representation by the employees was
open and persistent. The drivers could not mistake Re-
spondent's aversion to organizational activity in light of
Azoia's frequent statements that drivers who wanted a
union "could go down the road," or be fired; that the
Company would close rather than be organized; that
anyone who protested a company policy or practice was
a troublemaker. Of course, an employer is free to dislike
unions and to express such views to employees without
violating the Act. See N.L.R.B. v. Threads, Inc., 308
F.2d 1, 8 (4th Cir. 1962). But Azoia's statements were far
from mere expressions of opinion. They were threats,
and the fact that Azoia failed to carry them out at least
until June 3 does not strip them of their intimidating
character or make them any less violative of the employ-
ees' Section 7 rights.
Respondent's antiunion bias provides a backdrop
against which cast Respondent's true motives in dis-
charging Giles into bold relief. Early in his employment,
Giles was selected by the drivers as their spokesman and
continued to be the primary proponent of the employees'
interests until the date of his discharge. Other employees
raised issues about their employment with Azoia, but
none as frequently as Giles. Respondent clearly regarded
him as a provocateur, the principal instigator fomenting
dissatisfaction with the Company among the employees.
Azoia's constant reference to Giles as a troublemaker is
unambiguous, for the only manifestations of trouble
making occurred when Giles made common cause with
other employees and complained to management about
wages, or unsafe equipment. Whether or not a union was
' Because, as I conclude below. Respondent's assigned reason for the
discharge was a thinly disguised pretext, here is no need to analyze the
evidence in this case under the mixed motive theory of causation outlined
in Wright Line. a Division of Wright Litre. Inc.. 251 NLRB 1083 (1980). As
the Board stated in that case, where there is sufficient evidence of im-
proper motive and the employer's "asserted justification is a sham in that
the purported rule or circumstance advanced by the employer did not
exist or was not. in fact, relied upon" then there is no occasion for con-
nict between "legitimate competing interests.
involved is immaterial, for it is well settled that by pro-
testing the terms and conditions of employment through
the only means available to him, Giles was engaged in
concerted activity which is protected from employer re-
taliation under the Act. See N.L.R.B. v. Washington Alu-
minum Company, Inc., 370 U.S. 9, 14 (1962); Wheeling-
Pittsburgh Steel Corp. v. N.L.R.B., 618 F.2d 1009, 1017-
1019 (3d Cir. 1980), cert. denied 449 U.S. 1078 (1981).
While Azoia's threats to Giles may be viewed as in-
nocuous prior to March 1980, events occurred in that
month which marked a turning point in Giles' relation-
ship to Respondent. Corporate officials apparently heard
rumors that Giles was forming a union and instructed
Azoia to discharge him. From then on, it was not a ques-
tion of whether but merely when Azoia would use some
incident as a pretext to fire Giles.
Respondent contends that notwithstanding its union
animus and regardless of any inclination it may have had
to be rid of Giles because of it, Giles provided valid, in-
dependent grounds for his discharge by engaging in
egregious misconduct. An examination of the circum-
stances surrounding Giles' alleged misconduct on June 3
reveals, however, that Respondent's purported reasons
for the discharge are wholly meretricious.
According to Respondent, Azoia became legitimately
outraged on June 3 when he found that Giles had defied
the proscription on parking in Bay 3, particularly since
he had rebuked him as recently as May 31 for parking in
the wrong area. Respondent's effort to portray the
policy against parking in Bay 3 as absolute and invariable
finds no support in the record. Several drivers, in addi-
tion to Giles, acknowledged that they were supposed to
leave Bay 3 open, and yet frequently disregarded the ban
when the other loading areas were unavailable. Indeed,
on some occasions, they were even directed to park in
Bay 3. On no occasion was any sanction imposed for
such conduct. Even Respondent's sole witness, Foreman
Pillai, cast doubt on the firmness of the parking prohibi-
tion by testifying that the Company's policy as to where
the drivers were to park their trucks changed from time
to time.
Further, Azoia was well aware that Giles parked in
Bay 3 that day for a valid business purpose. The day
before, Azoia had discussed reloading Giles' truck with
excess milk after he completed his first scheduled run.
He knew, or should have quickly understood, that Giles
was unaware that the excess milk had already been
loaded on the truck in Bay 2 and that he had backed into
Bay 3 only for the brief time it would take to reload his
own vehicle. If more than a technical violation of policy
was involved and Azoia was upset because Giles' truck
was preventing a tanker from docking, he could easily
have asked Giles or some other employee to move the
obstructing truck. However, no tanker either sought to
or was prevented from docking in Bay 3 during Azoia's
contretemps with Giles. Thus, Azoia could not have
been disturbed by any interference with the orderly load-
ing process.
Respondent also implied that Azoia's tirade came
about as a result of Giles engaging in similar behavior
several days earlier. Thus, Respondent attempted to liken
904
CUMBERLAND FARMS DAIRY OF NEW YORK. INC
Giles' conduct to that of the employee in Zarda Brothers
Dairy, Inc., 234 NLRB 93, 95 (1978), whose errors were
"of such frequency as to cause mounting anger and frus-
tration on the part of his supervisor." Azoia's irritation
with Giles for allegedly parking in the wrong bay on
May 31 was completely unjustified, and in any event,
Giles parked in Bay 2, not Bay 3 on that day. Accord-
ingly, Respondent's reliance on Zarda Brothers Dairy is
misplaced.
Respondent's effort to portray Giles' behavior as so in-
subordinate as to warrant dismissal is equally unconvinc-
ing. When Giles retreated into the plant, it was to obtain
certain documents which Azoia knew he needed before
making a second delivery. Moreover, it was customary
for the drivers to have some coffee during such intervals.
In addition, it was Azoia who initiated the cursing.
When Giles did respond, it was with words far less
vulgar than the profanities used by Azoia. Given how
commonplace the use of profanity was at the plant, it is
ludicrous to suggest that Azoia was offended by Giles'
swearing or that it played any part in Azoia's decision to
fire him.
In an effort to bolster his case against Giles, Azoia
wrote on the termination form that the discharge was at-
tributable to Giles' poor work performance for the past 6
months, his dislike of company policy, and his conflict
with other drivers. These reasons are simply spurious.
There is no evidence in the record that Giles was not a
competent employee. Indeed, Azoia praised him for his
efficient performance. The other assigned factors are
merely Azoia's slanted way of miscasting Giles' concert-
ed activity. Moreover, when an employer vacillates in
offering a rational and consistent account of its actions,
an inference may be drawn that the real reason is not
among those advanced. Steve Aloi Ford, 179 NLRB 229
(1969). Such an inference is warranted here.
Respondent also suggested that Giles was not subject-
ed to disparate treatment by introducing documents
showing that Azoia dismissed another employee for in-
subordination. However, Respondent failed to explain
the facts involved in that instance of insubordination.
Therefore, whatever the particular circumstances were
underlying another employee's termination, it does not
prove that Giles' conduct on June 3 was insubordinate.
Neither does it establish that Respondent had a consist-
ent policy of discharging employees for cursing or for
parking in Bay 3 without suffering retribution. Respond-
ent may have had a written regulation making the use of
abusive language an offense subject to discipline, but it
was honored more in the breach than the observance.
In sum, Respondent's asserted reasons for discharging
Giles proved false. Accordingly, "an inference may be
drawn that the true reason was one which the employer
desired to conceal-and that it was unlawful." Shattuck
Denn Mining Corporation (Iron King Branch) v. N. L. R. B.,
362 F.2d 466, 470 (9th Cir. 1966). Giles was not dis-
charged for the reasons asserted. Rather, Respondent
fired him to purge its work force of the most vocal and
persistent advocate of the employees' interests at a time
when it believed he was on the verge of forming a union
in the plant. Such motivations are proscribed by Section
8(a)(l) and (3) of the Act. See .:L.R.B. v. Eric Resistor
Corp.. et al., 373 U.S. 221 (1963).
D. Independent 'iolations of the l.ct
In its answer to the complaint Respondent denied any
wrongdoing. However, I find there is sufficient and fre-
quently uncontroverted evidence in the record which
supports the General Counsel's allegations that Respond-
ent was involved in an extensive series of unfair labor
practices.
Thus, in agreement with the General Counsel, I find
that Azoia's unmistakeable intention in telling the drivers
that he intended to fire Giles, was to inhibit their joining
with him in concerted activity. Such ill-concealed mes-
sages constitute independent violations of Section 8(a)(1).
Further, I find Azoia's unabashed and direct warnings to
employees that they, too, would be discharged if they
formed a union or protested the terms and conditions of
their employment violative of the Act. Azoia's threats
that Respondent would close the plant rather than toler-
ate a union, that the drivers would be fired if they re-
fused to drive their trucks, however unsafe, or suffer a
reduction in the number of days they worked if they
complained about overly long hours, were equally bla-
tant demonstrations of Respondent's unrelenting efforts
to restrain and coerce the employees in the exercise of
rights guaranteed by Section 7. Azoia's remark that em-
ployees who testified on Giles' behalf would be identified
as "bad apples" and fired also conveyed an unlawful
threat of retaliation. Additionally, Proulx's comment to
McClaskey that the Company discouraged hiring em-
ployees who formerly belonged to unions was inherent-
ly coercive. See Rochester Cadet Cleaners, Inc., 205
NLRB 773 (1973). Whether or not Proulx was a supervi-
sor is irrelevant since Respondent placed him in a posi-
tion in which it appeared to applicants that his comments
carried some weight with respect to their employment.
Accordingly, Respondent is liable for his statement
which violated Section 8(a)(1). See Air Express Interna-
tional Corporation, 245 NLRB 478 (1979).
In March 1980, Azoia questioned Herring and Giles
and another employee as to whether there was, in fact,
an effort to organize a union in the plant. The interroga-
tions were not the product of idle curiosity since they
were prompted by an inquiry from corporate officials
who had heard rumors to that effect. By such interroga-
tion, Respondent again violated Section 8(a)( ) of the
Act.
However, I do not find evidentiary support for the al-
legation that Azoia engaged in unlawful surveillance.
The record shows that Azoia frequently entered the
plant lunchroom and adjacent diner and engaged in con-
versation with whomever was present. Moreover, the
drivers made no effort to halt their discussions or con-
ceal their gatherings. Thus, there is no showing that
Azoia's visits were purposefully contrived so that he
could survey the employees' activities. Indeed, it would
have been difficult for him to avoid such encounters. Ac-
cordingly, paragraph v(i) of the complaint should he dis-
missed.
I)'CISIO)NS ()IO NATIONAL I AI()OR RL ATIONS Bt()ARI)
CONCI USIONS 01 LAW'
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)( I) of the Act by
threatening employees with discharge, plant closure, and
a reduction in hours of employment if they joined a
union, engaged in a work stoppage, protested the terms
and conditions of their employment, or otherwise took
part in protected concerted activities.
3. Respondent also has violated Section 8(a)(1) of the
Act by interrogating employees concerning their union
membership and activities, by impliedly threatening em-
ployees with discharge if' they testified in proceedings on
behalf of an employee who was discriminatorily dis-
charged, and by stating that it is company policy not to
hire applicants who were union members.
4. Respondent further violated Section 8(a)(1) and (3)
of the Act by discharging Lance Giles on June 3, 1980,
and thereafter refusing to reemploy him.
5. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not engage in surveillance of its em-
ployees in violation of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be required to cease and desist therefrom. Because
these violations were numerous and continuous, I con-
clude that unless restrained, Respondent is likely to
engage in continuing unlawful efforts to prevent its em-
ployees from engaging in union and protected concerted
activity. Accordingly, Respondent will be required to re-
frain from in any other manner infringing on employees'
rights to engage in such activity. Hickmott Foods. Inc.,
242 NLRB 1357 (1979).
In addition, the recommended Order will provide that
Respondent be directed to offer Lance Giles immediate
and full reinstatement to his former position or, if such
position no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earn-
ings he may have suffered by reason of Respondent's un-
lawful discharge by payment to him of a sum of money
equal to the amount he would have earned from the date
of the unlawful discharge to the date of an offer of rein-
statement, less net earnings during such period, with in-
terest thereon to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpo-
ration, 231 NLRB 651 (1977).
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER'
The Respondent, Cumberland Farms Dairy of New
York, Inc., Canton, Massachusetts. its officers, agents,
successors, and assigns, shall:
I. Cease and desist from.
(a) Interrogating employees concerning their union
membership, activities. or sympathies
(b) Threatening employees with discharge, plant clo-
sure, a reduction in hours of employment or other repri-
sals for engaging in union activities. or any other pro-
tected concerted activities under the Act.
(c) Threatening employees with discharge for giving
statements to government agencies on behalf of other
employees.
(d) Threatening employees that it is company policy
not to hire individuals who were in a union.
(e) Discharging or otherwise discriminating against,
any employee for the purpose of discouraging employees
from engaging in union activities or because an employee
engaged in protected concerted activities for their
mutual aid or protection.
(f) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Offer Lance Giles immediate and full reinstatement
to his former position or, if such a position no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and
make him whole for any loss of earnings which he may
have suffered by virtue of the discrimination against him
in the manner set forth in the section herein entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the term of this Order.
(c) Post at its facility at 1120 Erie Boulevard, Schenec-
tady, New York, copies of the attached notice marked
"Appendix." 9 Copies of the notice, on forms provided by
the Regional Director for Region 3, after being signed
by an authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
* 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 find-
ings. 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.
u In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order or the National Labor Relationrs oard" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enrorcing an
Order of the National Labor Relations Board."
0(h
CUMBERLANI) FARMS DAIRY OF NEW YORK. INC 9()7
tices are not altered. defaced. or covered by any other steps Respondent has tken to comply herewith.
material. IT IS FURTHER RECOMMIENI) that insofar as para-
(d) Notify the Regional Director for Region 3. in writ- graph v(i) alleges conduct which has not been found to
ing, within 20 days from the date of this Order, what violate the Act, that allegation is hereby dismissed.