New England Fish Co.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 306 (N.L.R.B. 1974)

306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New England Fish Company and Nicholas F. Facelo
Local #37, International Longshoremen's and
Warehousemen's Union and Nicholas F. Facelo.
Cases 19-CA-6569 and 19-CB-2099
June 28, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On March 26, 1974, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief. Respondent Employ-
er and Respondent Union each filed cross-exceptions
and a brief supporting its cross-exceptions and an-
swering the General Counsel's 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, the cross-
exceptions, and the briefs, and has decided to affirm
the rulings, findings,' and conclusions of the Adminis-
trative Law Judge 2 and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
1 The General Counsel and Respondents have excepted to certain credibil-
ity findings made by the Administrative Law Judge. It is the Board's estab-
lished policy not to overrule an Administrative Law Judge's resolutions with
respect to credibility unless the clear preponderance of all the relevant evi-
dence convinces us that the resolutions are incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3) We have carefully
examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge ruled that union delegate Padua's affida-
vit should not receive independent evidentiary weight in place of his oral
testimony for the reason , inter aka, that the General Counsel gave Padua no
opportunity to have counsel present when the affidavit was taken. The Gen-
eral Counsel has excepted to this ruling on the grounds that the Union's
counsel had notice that Padua's affidavit would be taken yet never asked to
be present We have concluded that even if given independent evidentiary
weight Padua's affidavit would not significantly have contradicted his oral
testimony, and we therefore deem it unnecessary to pass upon the correctness
of the Administrative Law Judge's ruling
The Administrative Law Judge also concluded that the Union's role in
Facelo's discharge was so extensive that it would have violated Sec 8(bX2)
and (i)(A) had Facelo's protected concern purpose been known to the Em-
ployer and the Union. Respondent Union has excepted to this conclusion.
Since we have affirmed the Administrative Law Judge's finding that Facelo's
protected concerted purpose was not known to the Employer or the Union,
we deem it unnecessary to decide whether the Union's role in Facelo's
discharge would have violated Sec. 8(b)(2) and (1)(A) in other circumstances
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER, Administrative Law Judge: This matter
was heard at Seattle, Washington, on January 29 and 30,
1974, pursuant to an order consolidating cases, consolidat-
ing complaint and notice of hearing issued on October 17,
1973, by the Regional Director of the National Labor Rela-
tions Board for Region 19.1 The complaint and notice of
hearing was based upon a charge filed in Case 19-CA-6569
on August 3, 1973, by Nicholas F. Facelo; and an original
charge filed on August 3, 1973, in Case 19-CB-2099 by said
Facelo, followed by an amended charge filed on October 15
by Facelo. The consolidated complaint alleges violations of
Section 8(a)(1) and (3) and Section 8(b)(1)(A) and 8(b)(2) of
the National Labor Relations Act, as amended, hereinafter
called the Act.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor, and consideration
of the briefs of the parties, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
New England Fish Company, herein called the Company
or Respondent Company, is a Maine corporation with
places of business in various states of the United States,
including a place of business at Chatham, Alaska, where it
is engaged on a seasonal basis in the processing and canning
of seafood products.
Alaska Employers Engaged in the Salmon Canning In-
dustry is an association of employers in the seafood pro-
cessing industry in the State of Alaska. The Association
includes the Respondent Company among its membership.
The association is established and exists, inter alia, for the
purpose of negotiating collective-bargaining agreements
with Respondent Union and various other labor organiza-
tions on behalf of its members.
During the calendar year immediately preceding the is-
suance of the complaint herein, the employer-members of
the association, in the course and conduct of their business,
sold and distributed products valued in excess of $500,000,
of which products valued in excess of $50,000 were shipped
from their plants in the State of Alaska directly to points
outside the State of Alaska.
The association and its employer-members, including Re-
spondent Company, are, and have been at all material
times, employers within the meaning of Section 2(2), en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
1 Unless specified otherwise, all dates refer to the calendar year 1973.
212 NLRB No. 44
NEW ENGLAND FISH COMPANY 307
II THE LABOR ORGANIZATION INVOLVED
Local #37, International Longshoremen's and
Warehousemen 's Union, hereinafter called the Union or
Respondent Union, is a labor organization within the mean-
mg of Section 2(5) of the Act.
HI THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues are (1) whether Nicholas Facelo was
engaged in protected concerted activity when he seated
himself at a mess table which had theretofore been used
exclusively by female employees at the Company 's Chat-
ham facility ; (2) whether Facelo's subsequent termination
resulted from his involvement in protected concerted activi-
ties; and (3) whether the Union caused or attempted to
cause the Company to terminate Facelo because he had
engaged in protected concerted activity.
The initial principal issue , in turn, raises the question of
whether Facelo , by his actions , was, as claimed , contesting
sexual discrimination in mess hall seating ; and whether Re-
spondents had knowledge of Facelo 's purpose and objec-
tives so as to render applicable the Board 's decision in Walls
Manufacturing Company, Inc., 128 NLRB 487; 137 NLRB
1317.
B. Pertinent Facts
1. Background facts
a. The setting
The Chatham, Alaska, facility of the Company, pertinent
to the instant proceeding, is situated on a small island sever-
al airline miles from the principal cities of Juneau and Sitka,
Alaska. The Chatham operation is a seasonal one of approx-
imately 2 months' duration. Both male and female employ-
ees are included in the employee complement. Caucasians,
Orientals, and Filipinos are the principal ethnic groups rep-
resented. At all pertinent times, by reason of the remote and
relatively isolated geographic location of the Chatham facil-
ity, the Company has provided mess hall eating facilities for
the employees at the Chatham cannery. The employees at
Chatham are served food prepared in the kitchen facility of
the mess hall.
Commencing with the summer 1973 season , a new mess
hall facility was provided by the Company. Table facilities
were located in three separate areas of the mess hall build-
ing. In the area which is of significance herein are situated
seven separate tables placed on row. Each table accommo-
dates approximately 18 individuals. During the course of
the 1973 season-until the events subsequently delineat-
ed-four tables were occupied virtually exclusively by male
employees, while the other three tables were used exclusive-
ly by female employees.
By reason of custom in the industry, it had been practice
prior to 1973 at Chatham for male and female employees to
be segregated at separate tables in the mess hall facilities.
On the initial day of the 1973 season, at a meeting of its
membership attended by employees of the Chatham facili-
ty, including Nicholas Facelo, the Union through its dele-
gate, Miguel Padua, had declared that the male employees
should sit at tables separate from the female employees and
that each employee should retain for the entire season the
seat selected on the initial day. Only male employees attend-
ed this meeting because the male complement arrived a few
days prior to the female employee group. Because of this,
for all intents and purposes, a seat and table selection pro-
cess had been accomplished when the female employee
group arrived at Chatham.
When the female employees arrived at Chatham, they
used the three remaining tables at meal times. Unlike the
male employees, they tended to shift seats at the three ta-
bles. There were occasions when female employees sat tran-
sitorily, for one meal only, at tables used by male
employees. There were also times when male employees sat
briefly at tables used exclusively by female employees. No
corrective action was taken .2
b. Facelo's work
Nicholas Facelo, a young American National of Filipino
and Italian extraction, was initially employed by the Com-
pany during the summer season of 1973. His employment
commenced on July 2 and he served in the capacity of a
slimer. His duties required him to trip} the fins and tail of
freshly caught fish and to cleanse blood or any foreign
substance from the outside of the fish. The skills requisite
to this job are quickly and easily mastered. Facelo was
terminated on July 27.
c. The union delegate
At pertinent times, Miguel Padua served as the union
delegate at the Chatham facility. The collective-bargaining
agreement defines the duties and responsibilities of the dele-
gate. The pertinent provisions of the agreement are as fol-
lows:
A. The Company agrees to recognize one member
of the crew of each cannery designated by the Union
2 During the course of the hearing , the General Counsel sought to intro-
duce testimony relating to alleged complaints lodged by female employees
with management concerning the difference in quality of food at the tables
occupied by female employees as contrasted to those occupied by male
employees . It was counsel 's theory that if the difference existed, seating
thereby came synonymous with food quality. It was counsel 's further conten-
tion that the testimony proffered would reveal that there had been a back-
ground of dissatisfaction relating to seating because of the difference in food
quality and that this evidence could be weighed in evaluating the validity of
the Company's claim that it lacked knowledge of Facelo's objectives in
seating himself at a table normally occupied by female employees only.
It is to be observed , in passing, that the General Counsel's thesis would
have been more persuasive had the complaint and notice of hearing herein
alleged female sit-in activity at a table relegated to male use , for the record
suggests that , under the General Counsel 's theory , the quality differential in
food favored the male employees. Moreover, it is not contended by the
General Counsel that the proffered evidence regarding alleged earlier em-
ployee protests related in any manner to sex segregation , as contrasted to
food quality . In any event, the General Counsel was permitted to introduce
all available evidence bearing directly on the issue of whether Facelo in-
formed management he was protesting seating segregated on the basis of sex.
I affirm my ruling excluding the evidence proffered. To have indulged the
General Counsel would have invited a skirmish into wholly collateral areas.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the delegate or shop steward.
B. The Union claims certain definite rights and ben-
efits in behalf of its membership as outlined in this
Agreement, and those rights shall be upheld by the
authorized delegate, who shall, in addition to his regu-
lar duties as an employee, act as the representative and
spokesman of the Union. In the event of a dispute, he
will be vested with the authority to settle to the best of
his ability, all issues that may be, brought to his atten-
tion. Further, a delegate is authorized and instructed to
see that all rules and regulations, hours, wages, and
general conditions are to be observed. He shall endeav-
or to settle all issues in a mutually satisfactory manner.
C. All disputes that cannot be settled at the cannery
shall be adjusted after return to the port of embarka-
tion.
Padua varified that, in practice, he carries out the respon-
sibilities vested in him by the agreement. He further testified
that he is the only delegate of the Union at Chatham and
that he considers it part of his responsibility to maintain
harmony among the employees and to do all in his effort to
foster a satisfactory work-performance level by union mem-
bers.
2. The seating incident
On Wednesday, July 25, Facelo spoke with a female em-
ployee whom he knew only as "Polly" concerning "discrimi-
nation in mess hall seating." Plans were made for Facelo to
switch mess hall seats with Polly the following evening at
dinner. During the next day, Facelo also spoke with Linda
Carroll, an employee, and informed her of the plan. He
requested Carroll's participation in carrying out the plan?
During the course of the day, Polly and Linda Carroll in-
formed Patricia Jasper, an employee, about the plans to
"protest" and Jasper agreed to cooperate. In addition, Face-
lo asked a fellow employee, Arlando Aspurias, to sit at "the
women's table," and Aspurias stated he would do so. The
plan of action proposed by Facelo was not in any manner
communicated to any supervisor or official of the Compa-
ny, or to any agent or officer of the Union.
On July 26, dust prior to the 5 p.m. dinner hour, Facelo
went to the mess hall and stationed himself outside the door
to the mess hall. He waited to be joined by Aspurias and
Polly. They did not arrive in a timely fashion and Facelo
entered the mess hall alone.' Upon entering the mess hall,
Facelo took a vacant seat at a table normally used only by
male employees. He selected a seat which had been used
exclusively at meal times by an Oriental employee known
as Bonzo. Facelo was observed by Francisco Arde, a waiter
in the the mess hall. Arde immediately approached Facelo
and informed Facelo that he was not permitted to occupy
that particular seat.' Facelo asserted he could sit wherever
he chose but Arde insisted that he could not. The discussion
3 The anticipated form or character of Carroll's participation is not reflect-
ed in the record.
4In point of fact, Aspurias arrived late at the mess hall as did Polly and
Linda Carroll and Patricia Jasper. None-of these employees participated in
the events which subsequently transpired
5 The record establishes that Arde possessed no supervisory authority
was a brief one and Facelo arose and went directly to the
next table. This table was one which theretofore during the
1973 season had been used solely by female employees.
Facelo seated himself at the table. Upon observing this,
Arde immediately approached Facelo. As he did so, Facelo
from his position at the table was in the process of turning
up a dinner plate preparatory to serving himself. Arde
placed his hand on the dinner plate and informed Facelo
that he was not permitted to sit at the table in question
because it was "for the women." Facelo again stated that he
could sit down any place he desired. Arde was adamant and
from his standing position behind Facelo, who remained
seated at the table, Arde placed one hand on the top of
Facelo's right shoulder and the other under Facelo's left
arm. Feeling the pressure of this contact, Facelo arose,
stepped over the seat into the aisle separating the tables, and
struck Arde. Arde lunged toward Facelo but was restrained.
He did not strike Facelo. Arde and Facelo were separated
and their confrontation ended.'
As Arde and Facelo were separated, Tom Sullivan, a
mess hall cook who had apparently assisted in separating
Aide and Facelo, asked Facelo what had happened. Facelo
answered "nothing" and went back to the women's table to
sit down and eat. Sullivan approached Facelo, who said "I
can sit where I want through EOC." Sullivan answered "I
am no foreman. But if you want to keep your job you will
go back to your normal seat." Facelo arose and went to his
normal seat and finished his meal.' There is no evidence
that Sullivan discussed this matter with any representative
of the Union or any company supervisor or official.
Following the incident in question, during the evening of
July 26, Arde spoke with Johnnie Mathias, the first foreman
at the cannery. He gave Mathias his version of the events
of the evening. In the course of his description, he told
Mathias of Facelo's efforts to sit at two different tables in
a I have carefully considered the testimony of record relating to the inci-
dent in question . With respect to the scuffle or altercation, I have credited
the testimony of Francisco Arde over that of Nicholas Facelo, in those
circumstances wherein their testimony is in conflict.
In particular, I credit Arde and reject the testimony of Facelo in finding,
as I do, that during the course of the disputation between Arde and Facelo,
Facelo made no reference to "sex discrimination" in seating, to "E.E.O.C.,"
to "equal employment opportunities" or to any like or similar subject. I am
convinced that Arde accurately testified that no utterances-actual or infer-
ential-were made by Facelo to sex discrimination in seating . Arde im-
pressed me as I observed him testify at the hearing as a very understated
individual possessed of a gentle nature with no discernible combatitive bent.
While he was clearly resolute in his efforts to prevent Facelo from sitting at
tables and places where he, Arde, deemed improper, I am convinced that
Arde undertook these efforts in a controlled fashion and was thereby atten-
tive to Facelo's reactions and behavior. On the other hand, I conclude that
Facelo imputed to himself statements which, although they may have reflect-
ed his state of mind had they been uttered, were not, in fact, articulated by
him during the course of the episode in the mess hall Although Facelo's
testimony gains some support from that of Andrea Lilleness, I find that
Lilleness was not entirely accurate in her testimony relating to the statements
which Facelo allegedly made during the course of the incident. A careful
analysis of her entire record testimony reveals that her recollection of the
incidents which she observed was not fully reliable.
I have carefully analyzed all of the testimony relating to the physical nature
of the disputation and find more credible that testimony which reveals that
Arde neither pulled nor shoved Facelo from his seat at the table into the aisle;
nor in any manner struck Facelo after Facelo left his seat at the table.
7 The foregoing is based upon the credited and undisputed testimony of
Nicholas Facelo. Facelo identified Sullivan as the head cook. Sullivan is not
alleged to be a supervisor.
NEW ENGLAND FISH COMPANY
seats which were not assigned to him, and of Facelo's insis-
tence that he had a right to sit in any place of his choice in
the mess hall. Arde also told Mathias that Facelo'had struck
him. In the course of his discussion with Mathias, Arde gave
a rather full accounting of the incidents, and no mention
was made by Arde to Mathias concerning his understanding
of the intention or purpose of Facelo's activities. Mathias
did not speak that evening with Facelo concerning the inci-
dent.
The following morning, Don Freeman, one of the fore-
men at the installation, informed Mathias that Arde desired
to go home. As a result of this conversation, Mathias spoke
again with Arde. Arde informed Mathias that he desired to
go home because every time he saw Facelo, he became
nervous. Upon learning of Arde's desire, Mathias met with
Miguel Padua, the union delegate, at the cannery. Mathias
told Padua of Arde's desire to return home and Mathias
expressed his wish to meet with Facelo concerning the mat-
ter. Mathias made it clear to Padua that in speaking with
Facelo he would urge Facelo to apologize to Arde for the
incident and to himself go home unless the matter could be
settled amicably .8
In the meantime, on the morning of July 27, Padua met
with Patrick O'Leary, manager of the Chatham cannery.
O'Leary sought to obtain Padua's account of what had tran-
spired in the mess hall the previous evening. Padua in-
formed O'Leary that he had not witnessed the altercation
but the context of their discussion revealed that both
O'Leary and Padua had been given certain information
concerning the altercation. They were aware of the identity
of the participants and the fact that Facelo was reputed to
have struck Arde. O'Leary informed Padua that he did not
wish this sort of trouble to fester and without saying so in
words gave Padua the impression that he was giving consid-
eration to terminating Facelo. Padua, in substance, request-
ed O'Leary to permit him to endeavor to achieve 'a
reconciliation between Arde and Facelo. O'Leary suggested
that Padua do so.9
8 In addition to his conversation with Arde, Mathias had been informed
that Facelo had struck Arde during the course of the mess hall incident.
9 The foregoing is based upon a consideration of the testimony of Miguel
Padua and Patrick O'Leary. I have carefully considered the record testimony
of Padua as it evolved from very careful direct examination by counsel for
the General Counsel. Initially, I am convinced that when called as a witness
by the General Counsel to testify concerning the incident in question Padua
was a reluctant witness. However , when confronted by his pretrial affidavit
and after being given full opportunity to study the affidavit , Padua re-
sponded in a forthright manner to questions carefully propounded to him.
The above findings are based upon witness-chair testimony of Padua, consid-
ered in context with supporting testimony of Patrick O'Leary.
I have evaluated the affidavit of Padua and am unwilling to give the
affidavit independent, substitute status for Padua's oral testimony . The docu-
ment in question was secured 8 weeks after Facelo's termination by a field
examiner of the Board in direct interview with Padua, without union counsel
being present. In typical fashion the affidavit records the recollection of a
participant in events under investigation and is subject to the frailities of
memory and the honing effects of rationalization . There is no suggestion that
in securing the affidavit the field examiner placed Padua on notice that the
affidavit would be treated as a statement of official union position on matters
relevant to the pending charge. Under all of the circumstances of this case-
the witness present, full opportunity on the part of all parties to question him
on all relevant matters , the essentially low-echelon status of the witness in
the union hierarchy and the failure of the General Counsel to provide Padua
with an opportunity to have counsel present during the investigatory inter-
view-I affirm my ruling made at the hearing refusing to give the affidavit
309
During the course of the morning, Padua and Mathias
proceeded together to Facelo's work station in the cannery.
Padua and Mathias approached Facelo and spoke to him in
a small office area near his work station. The din of the
machinery made it necessary for the participants to speak
in a loud voice. Padua asked Facelo to describe the incident
and Facelo gave Padua his version of what had transpired.
Padua then requested that Facelo go to Arde and apologize
in order to smooth matters over. Facelo stated in emphatic
terms that he would not do so. He asserted that Arde should
apologize to him. Padua repeated his request that Facelo
apologize to Arde but Facelo again stated that he would not
do so and that he would rather go home than apologize.
Mathias told Padua to take Facelo to the office and have
the bookkeeper "pay him and order the plane." Padua and
Facelo went to the office but were unable to meet with
O'Leary. Padua instructed Facelo to go to the bunk house
and prepare to leave Chatham.1°
After meeting with Facelo, Padua met again with
O'Leary. Mathias was not present. Padua informed O'Leary
that Facelo had refused to apologize to Arde and had stated
his desire to go home rather than to do so. Padua observed
that Facelo's stated wish to be sent home rather than to
apologize was "good enough" for him (Padua)." O'Leary
agreed that, under the circumstances, no purpose would be
served in "keeping [Facelo] there if he wanted to go home."
O'Leary gave his approval to the earlier directive given
Facelo to pack his bags.'2
Following his meeting with Padua, O'Leary met with Fa-
independent, substantive evidentiary status.
to I have considered the testimony of Johnnie Mathias, Miguel Padua and
Nicholas Facelo relating to this occurrence I am unable to credit Facelo's
testimony to the effect that, during the conversation, he explained to Padua
and Mathias his objectives in seating himself at the table in the mess hall used
by the female employees. Both Mathias and Padua specifically testified that
in the course of the conversation in question, Facelo made no reference to
sex discrimination in seating or to "equal employment opportunities commis-
sion: " Moreover, Padua and Mathias denied that any references of this type
were made by Facelo during the meeting. It is noteworthy that in initially
recounting the exchange between him and Padua, Facelo did not include
such references in his testimonial summation. Only after Facelo's attention
was directed by counsel for the General Counsel to any further statements
he may have uttered on this occasion did Facelo testify to the inclusion of
such references in his comments to Padua. I am unable to credit Facelo in
this regard and reject his testimony
Moreover, I reject the testimony of Facelo to the effect that following the
conversation in the small office, he was directed by Padua to go', to the
bunkhouse and pack. Rather, I find that Mathias directed Padua to take
Facelo to the office to be paid off and to have transportation to Seattle
arranged . Facelo's testimony, when carefully analyzed, reveals that this was
the chronology followed. It was following the visit to the office that Facelo
went to the bunkhouse I am unable to credit Facelo's testimony that in the
bunkhouse Mathias was conciliatory and suggested he could be employed
next season . Mathias credibly denies that he conversed with Facelo in the
bunkhouse and I credit his denial
11 On this score, Padua testified in specific terms that he told O'Leary this
during the course of the meeting in question.
12 O'Leary conceded that at the time of his meeting with Padua, he was
aware that Facelo had been instructed to prepare to depart from the Chat-
ham facility.
In finding that Mathias was not present during the meeting between
O'Leary and Facelo, I credit the testimony of Mathias. The testimony of
O'Leary and Padua on this score was marked by a lack of certitude.
Moreover, I find unconvincing the testimonial speculation of O'Leary to
the effect that before giving his acquiescence to Facelo's termination, he
discussed with Padua Facelo's work record. The reasonable inference of
record is that O'Leary was well aware of Facelo's shortcomings as an employ-
Continued
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
celo. In speaking with O'Leary, Facelo sought to obtain an
explanation from O'Leary as to the reasons for his termina-
tion. O'Leary told Facelo that it was his poor work record,
his tardiness, and the "episode" or "fight" in the mess hall.13
Stephanie Acse, one of the female employees at the can-
nery, testified credibly that the day following Facelo's ter-
mination, she spoke with Padua. She asked Padua why the
female employees could not sit at the same table as the men
and Padua answered that this would lead to jealousy among
the male employees. Acse then asked Padua why Facelo had
been terminated and Padua stated that Mathias had termi-
nated Facelo because he "wasn't cooperating." 14
Prior to his termination, Facelo had twice sought to sit in
a mess hall seat normally used by Mariano Umpig, head
warehouseman. The first occasion passed without incident.
The second time Umpig directed Facelo to vacate his seat
and return to his own place. Facelo did so. Umpig reported
the matter to Arde.15
Testimony of record reveals that the work which Facelo
was performing at the cannery was relatively simple in na-
ture. The record testimony also establishes that Facelo was
not a particularly proficient worker and he lacked punctual-
ity in reporting to work in the morning, and returning from
coffee breaks. Mathias had observed Facelo's lack of work
skills and had reported this to O'Leary. Both had observed
Facelo's work and deemed it unsatisfactory. Mathias en-
deavored to instruct Facelo in an effort to improve his
permormance.
O'Leary testified that Facelo's termination resulted from
an "accumulation" of his poor work record, his tardiness
and the mess hall fight. O'Leary further testified that at the
time of Facelo's termination he was "shorthanded" and
might have kept Facelo on but for the mess hall incident.
On the other hand, Mathias testified that if O'Leary had not
terminated Facelo following the mess hall altercation, he
would have pressed for Facelo's termination because of
Facelo's poor work performance.
O'Leary testified that "standard practice" relating to em-
ployees who are ineligible for rehire calls for a written notifi-
cation served upon the employee 2 or 3 days following the
end of the work season and after the employee's departure
from the Chatham facility. O'Leary further testified that
Facelo was the only employee sent home from Chatham
during the 1973 season. On the other hand, O'Leary testified
that two employees were terminated following the 1973 sea-
son. With respect to their terminations, the normal or stan-
ee but I am unable to find that this became a topic of discussion between
him and Padua on the occasion in question
13 I have considered the testimony of Patrick O'Leary and Nicholas Facelo
relating to this conversation. I place principal reliance upon the testimony
of O'Leary but find, consistent with the testimony of each, that in discussing
the cause of the termination, O'Leary made specific reference to the "fight"
in the mess hall but that Facelo made no reference to the purposes or
ob1ectives of his conduct in the mess hall.
Acse testified that there was an understanding among the female em-
ployees that they should sit at separate tables from the male employees. She
testified further, however, that she had never received any instructions from
management or supervision to this effect and that she had, in fact, on occa-
sions, sat at a table in the mess hall with male employees and had never been
instructed to cease the practice. She further testified, in substance, that she
had never been disciplined for having done so
15 The testimony of Francisco Arde and Mariano Umpig establishes the
foregoing.
dard practice was followed.
By letter dated August 13, O'Leary notified the Union
that Facelo had been terminated and gave, as the reasons
for the termination Facelo's tardiness, unproductivity on
the job and the mess hall incident. With respect to the latter,
the letter contained the following:
One evening in the mess hall, Nicholas [Facelo] ex-
changed words and punches with a waiter, and member
of Local 37, Frank Arde. Frank was performing his
normal duties and didn't appear to provoke the distur-
bance. The initiative appeared wholly on Nicholas'
part.
Conclusions
The instant record establishes that Facelo, in concert with
other employees, formulated a plan designed to protest
mess hall seating segregated on the basis of sex. For reasons
not siginificant, Facelo, without communicating his inten-
tion to any member of company supervision or union offi-
cialdom, embarked upon his protest alone. Whether
through mistake or ambivalence, Facelo sat first at a table
normally occupied by male employees and was told by
Arde, the mess hall waiter, to vacate the seat chosen. Arde
noted that the seat was one relegated to the use of another
male employee.16 In the face of Arde's directive to vacate
the seat, Facelo moved, averring, however, his right to sit in
any seat of his choice. On this note, Facelo moved to a seat
at a table normally used by female employees. He was again
instructed by Arde to move, this time more forcefully.
Again Facelo asserted his right to sit wherever he chose. No
reference, direct or indirect, was made to sex discrimination.
When Arde supplemented his oral directive with a physical
imperative,' Facelo rose and struck Arde. The fact of
Facelo's assault on Arde gamed quick notoriety in the can-
nery and Arde's desire to leave Chatham in the aftermath
of the antipathy caused by the confrontation came quickly
to the attention of management. The assistance of the
Union's delegate, Padua, was enlisted, with management
conveying a desire to retain both Arde and Facelo; but with
a preference noted for retaining Arde's services, if the serv-
ices of both could not be salvaged. Efforts at a mediation
failed and the decision to terminate Facelo was made.
Upon this outline of facts, which I find fully in accord
with the record evidence, I am unable to find that Facelo
was terminated for engaging in concerted activities. Rather,
he was terminated because, without reasonable provoca-
tion, he struck a fellow employee, creating disharmony
which was eradicable only through the removal of one of the
two contestants. The Company chose to retain the employee
least at fault and most valuable to the operation.
It is well settled that an Administrative Law Judge of the
National Labor Relations Board, is bound by the policy and
precedence enunciated by the Board. In this regard, Re-
spondent Company argues persuasively for the continued
validity of the principle of law enunciated by the Board in
16 It is of passing interest that Facelo had on previous occasions sought
unsuccessfully to occupy a seat normally used by one Umpig, a venerable
male employee
NEW ENGLAND FISH COMPANY
Walls Manufacturing Company, Inc., 128 NLRB 487.17 In
the Board's decision in the initial Walls case, the Board
stated the following:
In order to sustain a finding of an 8(a)(1) violation
based on discharge, it is necessary to establish that at
the time of the discharge the employer had knowledge
of the concerted nature of the activity for which the
employee was discharged. We find no evidence in this
record to warrant attributing such knowledge to the
Respondent. We shall therefore dismiss the complaint
in its entirety.
On remand, the Board found evidence from which it
could be determined that contemporaneously with the ter-
mination the employer acquired knowledge of the concerted
nature of the activity of the employee being considered for
termination. However, in two particulars the instant case is
distinguishable from the facts as found by the Board in
considering the Walls case on remand. Initially, the Compa-
ny herein at no time prior to Facelo's termination and de-
parture from Chatham became aware of the objectives of
Facelo's conduct in the mess hall. In addition, at no time
prior to Facelo's departure from Chatham did the Company
know that Facelo was acting in concert with other employ-
ees.
It is unnecessary to this Decision to deal at length with
the truism that individual action is nonetheless concerted if
it is engaged in by a single employee for the purpose of
protesting a policy or correcting a term and condition of
employment applicable to two or more employees.'8 Nei-
ther is it essential to belabor the obvious point that a con-
certed protest against mess hall seating segregated on the
basis of sex is a concerted activity protected under the provi-
sions of the Act.19 Nor, upon the facts as I view them, is it
decisionally essential or pertinent to evaluate whether Face-
lo was acting in harmony or in discord with union policy 20
Despite my agreement with the General Counsel that the
conduct of Facelo in the mess hall was concerted in charac-
ter, I am unable to find that Facelo's termination violated
the Act. In the instant case, as in Walls, the Company had
no insight into the end Facelo was seeking to achieve by
sitting at tables other than his own in the mess hall. So far
as was known, up to the point of Facelo's termination and
departure from Chatham, Facelo was asserting a right to sit
wherever he chose in the mess hall. There was nothing to put
the Company or the Union on reasonable notice that
Facelo's protest was against seating segregated on the basis
of sex, for his claim crossed sexual lines and encompassed
tables normally occupied by both sexes.21 Absent this in-
17 Remanded 299 F.2d 114 (C A D.C.); decided on remand 137 NLRB
1317.
18 See , e.g., Salt River Valley Waters Users Association, 99 NLRB 849, 853.
19 See Western Edition Community Org. [Emporium Capwell Co.] v
N.LR.B, 485 F.2d 917 (C.A.D.C., 1973), Tanner Motor Livery Ltd, 144
NLRB 1402, remanded 349 F.2d I (C A. 9), order on remand 166 NLRB
551, enfd 419 F.2d 216 (C.A. 9, 1969)
20 Id
21
For legal purposes, the General Counsel accurately analogizes the objec-
tives which Facelo secretly harbored to racially segregated seating. However,
I do not perceive the complaint as seeking to nullify any right of the Compa-
ny to maintain orderly seating patterns and to instill normal attitudes of
311
sight, I am unable to find merit in the General Counsel's
position. Rather, I find that in the circumstances of this
record, there is insufficient basis to warrant a departure
from the implicit and explicit rationale of the initial Walls
decision. Accordingly, I find that rationale to be here appli-
cable. 2
The General Counsel appears to contend that the princi-
ples of Burnup & Sims, 379 U.S. 21, are here controlling.23
Clearly, they are not, for this is not a case wherein a termi-
nation is accomplished because of employee involvement in
protected concerted activity known to management person-
nel who effectuate a termination upon a mistaken belief that
the employee being terminated was engaged in misconduct.
Here, unlike Burnup & Sims, the altercation in the mess hall
did, in fact, transpire and was not a figment of the
Company's imagination. Moreover, as previously noted, the
events had accorded the Company no basis for concluding
that Facelo's efforts were of a concerted nature. According-
ly, the case at bar thus reduces to a typical one of causation.
On this score, I find that the evidence preponderates in
favor of a finding, which I make, that Facelo's termination
did not result from his involvement in protected, concerted
or union activity.
The Respondent Company earnestly contends that
Facelo's work deficiencies contributed to his discharge.
More accurately, his listless approach to his work and his
borderline skill as a shiner did nothing to fortify him against
termination. The Company's efforts to magnify Facelo's
marginal acceptability reduces to a classic case of overde-
fending. I am convinced and find that, but for the mess hall
altercation, Facelo would have served out the season.
A more telling fact of the Company's defense is its well
substantiated and wholly plausible explanation to the effect
that it sacrificed Facelo's minimal but nonetheless essential
services in order to assure the retention of Arde, a longtime,
reliable, and qualified employee. The record convinces me
that, following the mess hall altercation, the Company
found itself in a dilemma of losing Arde if the discomfiture
caused by Facelo's physical assault in the mess hall was not
erased. There is nothing of record to suggest that Facelo's
apology would not have been sufficient to remove Arde's
desire to leave Chatham in midseason. There is every reason
to believe that the responsibility for seeking conciliation
resided with Facelo. In reaching this conclusion, I reject the
contention of the General Counsel that Facelo was pro-
voked by Arde to physically assault him. In endeavoring to
preclude Facello from occupying mess hall seats normally
assigned to other employees, Arde was merely seeking to
enforce established industry policies and to preclude a for-
seeable contest of wills among employees over seating
rights. He sought to achieve these ends with firmness, but
his firmness did not justify the physical remonstration by
Facelo which followed Aide's attempts. Absent reasonable
provocation, physical assault does not become justified or
civility among the employee complement in the use of the mess hall facilities.
u See Marathon Oil Co, 195 NLRB 365, Standard.Brands, Inc., 196 NLRB
1006 See also Indiana Gear Works, 156 NLRB 397, enforcement denied. 371
F.2d 273 (C.A 7, 1967).
23 See also Allied Industrial Workers, AFL-CIO, Local Union No. 289 v.
N.L R B., 476 F.2d 868 (C.A.D C, 1973), Cavalier Division of Seeburg Corpo-
ration and Cavalier Corporation, 192 NLRB 290
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acceptable merely because the assaulting employee believes
at the time that he is engaging in protected activity, or that
his conduct is designed to achieve a justifiable end24
Objectively viewed, it is apparent that, when Facelo re-
jected conciliation, the reasonable course of action left open
to the Company was to immediately terminate a marginal
employee rather than to lose the services of a valued em-
ployee while the season was still viable 25
Upon the instant record, the Union is blameless in the
termination for the same reason that the Company is. Plain-
ly stated, the termination was lawful. Had the circumstances
been different and had the termination been effectuated
because of Facelo's challenge to segregated seating, and had
this objective been known to management and the Union
prior to Facelo's termination, the Union' s legal involvement
would have been established and its liability under the Act
revealed. This is so because Padua's participation in the
interview of Arde and Facelo following the incident, and
Padua's consultation with O'Leary prior to O'Leary's ratifi-
cation of Facelo's termination, was of a sufficiently intimate
and cooperative character as to have enmeshed the Union
and to have rendered the Union legally responsible within
the meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act.
But this postulation of facts is theoretical for the record
evidence is to the contrary. I find that the General Counsel
failed to sustain the allegations of the complaint and shall
accordingly dismiss the complaint.
Upon the foregoing findings of fact, conclusions, and the
entire record of the case, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
24 Cf. H. C. Smith Construction Co, 174 NLRB 1173
25 I am not persuaded by the General Counsel 's evidence to the effect that
discrimination is proven by the fact that Facelo alone among the entire
employee complement was terminated in midseason of 1973. In the remote
confines of Chatham, and given the dilemma the Company faced , it would
have been unusual for the Company to have followed typical termination
procedures.
ORDER26
The complaint-is dismissed in its entirety.
26 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulah'ns be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes