Borden Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1980

248 N.L.R.B. 1228 (N.L.R.B. 1980)

1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Borden Inc. Foods Division, Drake Bakeries and
Paul Griffis. Case 22-CA-8562
April 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On December 19, 1979, Administrative Law
Judge Irwin Kaplan issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, 2
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Borden Inc.
Foods Division, Drake Bakeries, Wayne, New
Jersey, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent has also excepted to the Administrative Law Judge's failure
to disqualify himself from the case. Respondent asserts that because the
Administrative Law Judge previously had been employed as a National
Labor Relations Board attorney in the Region where this case arose, his
credibility resolutions, findings of fact, and conclusions of law are the
result of bias. There is no basis for finding that bias and partiality existed
merely because the Administrative Lasw Judge resolved factual conflicts
in favor of the General Counsel's witnesses. IVL.R.B. v. Pittsburgh
Steamship Company, 337 U.S 656 (1949). We have further considered Re-
spondent's contention that the Administrative Law Judge has evidenced
a bias against Respondent's position. We have carefully considered the
record and the attached Decision and reject these charges.
2 Member Penello would not defer herein to the arbitral process be-
cause the issuance of the disciplinary warning sheet to the discriminatee
at a grievance meeting involving another matter can only inhibit the
future use of the grievance machinery under the collective-bargaining
agreement.
248 NLRB No. 162
DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: This case
was heard in Newark, New Jersey, on March 8, 1978.
The underlying charge was filed on June 28, 1978, by
Paul Griffis, an individual, alleging that Borden Inc.
Foods Division, Drakes Bakeries (herein called Respon-
dent or the Company), engaged in certain acts and con-
duct violative of Section 8(a)(1), (3), and (4) of the Na-
tional Labor Relations Act, as amended (herein called
the Act). The aforenoted charge gave rise to a complaint
and notice of hearing which issued on August 11, 1978,
alleging in essence that Respondent violated Section
8(a)(1), (3), and (4) of the Act by issuing a warning
notice to Paul Griffis on May 23, 1978, at a grievance
meeting because Griffis, who had been the subject of a
previous charge in Case 22-CA-7880, threatened to go
to the National Labor Relations Board.
Respondent filed an answer conceding inter alia, juris-
dictional facts, but denying all allegations that it commit-
ted any unfair labor practices. In particular, Respondent
denied that it issued the disputed warning notice. Ac-
cording to Respondent, it merely recorded the events
which occurred at the above-noted grievance meeting,
which it contends did not constitute a warning as al-
leged.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after careful consid-
eration of the post-trial briefs, I find as follows:
FINDINGS OF FACT
I. JURISDICTION
Respondent, Borden Inc. Foods Division, Drakes Bak-
eries, is a New Jersey corporation engaged in the manu-
facture, sale, and distribution of bakery goods and related
products. In connection with the aforenoted business op-
erations, Respondent derived revenue in excess of
$50,000 during the preceding 12 months, a representative
time frame, from products sold and distributed from its
Wayne, New Jersey, plant, its only facility involved
herein, directly to points located outside the State of
New Jersey. The Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
Respondent admits, and I find, that Local Union No.
50, Bakery & Confectionery Workers Union (herein
called the Union), is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
11. THE A.EGED UNFAIR I.ABOR PRACTICES
A. Setting
Respondent and the Union have long been parties to a
series of collective-bargaining argeements covering all
the employees employed at Respondent's Wayne, New
Jersey, plant, but excluding principally "executives, route
foremen, supervisors, non-working foremen, office work-
ers and specialty salesmen." Paul Griffis, the Charging
Party, is, and has been at all times material herein, in-
BORDEN INC. FOODS DIVISION 1229
cluded in the above-described bargaining unit as a
second-class mechanic.
On April 22, 1978,1 Respondent's maintenance super-
visor, John Bieckman, issued Griffis a personnel data
sheet (herein called data sheet) for allegedly poor work
performance. (Jt. Exh. lB.) Bieckman issued Griffis an-
other data sheet on April 29, this time for allegedly fail-
ing to set up a machine in a proper manner. (G.C. Exh.
3.) The record discloses that, unless an employee who
disagrees with the facts contained in a data sheet secures
the Union's assistance, said data sheet as originally issued
will be permanently included in the employee's personnel
file. The data sheets may serve as a basis for further dis-
ciplinary action, including suspension and discharge.
Griffis took issue with the allegations contained in
both the April 22 and 29 data sheets, thereby giving rise
to a grievance meeting which was conducted at Respon-
dent's Wayne facility on May 23. In attendance for the
Company at the aforenoted meeting were then-Produc-
tion Manager Steve Webber, Shift Superintendent Car-
ston Nickels, and Bieckman. Griffis also attended the
meeting and was represented by Union Representative
Tony Centi. Later at the meeting, the above-named indi-
viduals were joined by Personnel Manager Walter Fran-
kowski.
Griffis testified that he complained to Weber at the
May 23 grievance meeting that he "had been unnecessar-
ily harassed by the supervisors, especially, Mr. Bieck-
man." He asked Weber to get Bieckman off his back,
stating that, if he didn't, Griffis would. Weber asked
Griffis if his statement was a threat, and Griffis in turn
told him that it was not a threat but a promise. Griffis
added that he would get Bieckman off his back if he
"[has] to go all the way to Washington." According to
Griffis, everyone in the room knew that he had done
something like this once before. 2 Griffis testified that
Union Representative Centi ushered him out of the meet-
ing and urged him to further clarify his statement for
Weber because Weber was not with the Company when
Griffis had previously sought relief from the National
Labor Relations Board. Upon returning to the meeting,
Griffis assertedly explained to Weber that he "would go
to the National Labor [Relations] Board if [he] had to go
all the way to Washington." According to Griffis, Weber
asked him and Centi to step outside where they remained
for 10 or 15 minutes. However, Griffis asserted that he
could observe Weber using a telephone through a glass
door from an adjacent office. When Griffis and Centi
were called back to the meeting, Weber (who was now
joined by Personnel Manager Frankowski) asked Centi
to sign a new data sheet containing inter alia, Griffis' al-
leged threat, which he refused to do. The remarks which
were composed by Weber appear on the data sheet in a
I All dates hereinafter refer to 1978 unless otherwise indicated.
2 The record reveals that Griffis was previously the subject of an
unfair labor practice charge in Case 22-CA-7880 The matter was dis-
posed of in an informal "Settlement Agretment" with a nonadmission
provision and notice posting. 'I'he "Notice" stated, inter alia, "wi l. Nt-
utilize any of the information contained in data sheets issued to Paul Grif-
fis from June 4, 1977 to June 29. 1977 as a basis for any disciplinary
action." (G.C Elxh 2A and 211 )
section entitled "Company Rule Infraction," and in their
entirety read as follows:
Made a threat-"He is on my back and I will get
him off me one way or the other." I asked if that is
a threat-He said that "it's not a threat, it's a prom-
ise." After being taken out of the office by Mr.
Centi he returned an[d] he inferred the use of out-
side agencies. The individual threatened Mr. Bieck-
man. [Jt. Exh. IC.]
After the new data sheet was given to Griffis, Fran-
kowski left the session, but the others (now joined by Su-
pervisor Bill Speed) remained to further discuss the
April data sheets. With regard to the April 29 data sheet,
it developed that Griffis had been given conflicting
instructions by Supervisors Bieckman and Speed and that
Griffis was therefore justified in being confused. Weber
agreed to remove the April 29 data sheet from Griffis'
file and tore it up. However the April 22 data sheet, as
well as the one which had just been issued, were main-
tained in Griffis' file.
While a substantial portion of Griffis' testimony was
corroborated by Weber, the latter described the circum-
stances which gave rise to the May 23 data sheet in a
somewhat different fashion. According to Weber, when
he asked Griffis to further explain the alleged threat,
Griffis responded "no explanation was necessary."
Weber then assertedly began making up a new data
sheet. Weber testified it was at this point that Centi
ushered Griffis out of the office to further discuss the
matter with him. While they were out of the office,
Weber called Frankowski and told him in effect that his
presence was urgently needed at the meeting.3 Weber
testified with corroboration from Frankowski that, when
Centi4 and Griffis returned, Weber asked Griffis to
repeat for the benefit of Frankowski (who had now
joined them) what he had stated earlier. Griffis again
stated that he was going to get Bieckman off his back,
but, rather than characterize it as a threat, Griffis called
it a promise. Frankowski assertedly asked Griffis to ex-
plain himself, to which the latter responded, "I will use
agencies again." Weber could not recall whether any
particular agency was mentioned; he assumed that
"[Griffis] meant something like the Labor Board."
According to Weber, "[H]e felt strongly that the inci-
dent required further action on [the Company's] part,"
and asked Frankowski to step outside to further discuss
the situation. Frankowski testified that Weber wanted to
impose some form of "disciplinary action, a suspension."
He further testified with corroboration that he called
Labor Relations Manager Harvey Frem to review the
matter vis-a-vis, Griffis. Frem told Frankowski that the
Company could not discipline Griffis for making a threat
because "he [Griffis] had clarified what he meant, [and]
you could not discipline an employee for threatening to
go to any outside agency." Weber and Frankowski re-
turned to the meeting where Weber completed writing
Accordiig to Weber, it was important to have Frankowski partici-
pate because a week earlier a third-shift supervisor was threatened by an-
other employee which resulted in that employee's suspension
4 Cenlti did not testify. and no reason was advanced for the failure to
call him as a witness.
B O R D E N IN C . F O D S D IV I S IO N 1 2 2 9~ ~
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up the data sheet and served a copy thereof on Griffis.
Weber testified that he maintained the May 23 data sheet
notwithstanding the fact that Griffis explained that "get-
ting Bieckman off his back" referred to relief from an
outside agency because he didn't believe him. Both
Weber and Frankowski expressed the view that Griffis
made reference to an outside agency only because he
was encouraged to do so by Centi. In any event, they
contended that the May 23 data sheet did not represent a
form of discipline, and no disciplinary action was taken
against Griffis resulting therefrom.
On June 21 the Company made out another data sheet
concerning Griffis' behavior. This one issued because
Griffis allegedly "refused to follow instructions, and abu-
sive behavior." (Jt. Exh. D.) Griffis was afforded an op-
portunity to grieve the allegations contained in the June
21 data sheet at a meeting with union and company rep-
resentatives on June 28, but did not meet with any suc-
cess. Instead, he received a warning letter from Fran-
kowski dated June 29 which noted, inter alia, that "[Grif-
fis'] personnel file reveal[ed] a continuous pattern of con-
frontations with other management and immediate super-
visory personnel." The letter referred to March 19 and
June 21 as two such specific occasions. There was no
specific reference therein to the disputed May 23 data
sheet. The last paragraph contains a warning that, unless
Griffis takes corrective action to improve his record, he
"will be subject to more severe disciplinary action in-
cluding suspension and/or termination of [his] employ-
ment." (Jt. Exh. IE.)
B. Discussion and Conclusions
1. The alleged warning notice
The General Counsel contends that, on May 23, Grif-
fis was issued a warning notice in the form of a docu-
ment entitled "Personnel Data Sheet" (herein also called
data sheet) because he threatened to go to the National
Labor Relations Board (herein also called the Board or
NLRB). Respondent, relying largely on recent Board au-
thority, contends that the disputed document does not
constitute a warning or any other form of disciplinary
action but merely a document recording events. 5 While
Respondent stipulated that disciplinary action may be
predicated on a data sheet, it denies that a data sheet by
itself is a manifestation of disciplinary action. According
to Respondent, where discipline is administered as a
result of a data sheet, the personnel manager always pre-
pares a separate letter, which was not done with regard
to the disputed May 23 data sheet. Respondent contends
that the General Counsel's assertion that the disputed
data sheet constituted per se discriminatory action must
fail for the additional reason that Griffis did not further
protest the document under the grievance procedure.,
U.S. Postal Service, 233 NLRB 518 (1977); The Dayton Tire & Rubber
Co., a Division of the Firestone Tire & Rubber Company. 216 NLRB 1003,
1007 (1975).
^ The record reveals that data sheets may give rise to more formal
written grievances which are processed under the grievance machinery
provided by the collective-bargaining agreement. I rind contrary to Re-
spondent that Griffis' failure to further utilize the grievance machinery
vis-a-vis, the May 23 data sheet is not decisive.
The record discloses that, before a personnel manager
issues a disciplinary letter, the employee's entire person-
nel file is reviewed, including all data sheets contained
therein. While Personnel Manager Frankowski asserted
that no discipline has or will result from the disputed
May 23 data sheet, he also conceded that there is no no-
tation thereon that would alert a successor personnel
manager that he is not to rely on this data sheet as a
basis for disciplinary action. Aside from Frankowski's
representation, there are no concrete safeguards that the
disputed data sheet will not be used by him adversely vis-
a-vis Griffis. Thus Frankowski's warning letter to Griffis
dated June 29 notes, inter alia, "[Y]our personnel file re-
veals a continuous pattern of confrontations with other
management and immediate supervisory personnel."
(Emphasis supplied.) While there is no specific reference
in the aforenoted letter to the May 23 data sheet, it is
impossible to determine to what extent Frankowski con-
sidered said data sheet when he wrote that Griffis was
involved in a "continuous pattern of confrontations"
with management.
As data sheets may serve as a basis for disciplinary
action, and given the subjective nature of evaluating the
contents in a personnel file, I am unpersuaded that the
disputed data sheet merely represents a memorialization
of certain events on May 23. I therefore find that the
cases relied on by Respondent (previously cited) are dis-
tinguishable from the case at bar on their facts.
On the other hand, there are a number of significant
factors which tend to support the General Counsel's con-
tention that the disputed data sheet itself is tantamount to
a warning or a form of adverse action. Thus, as noted by
the General Counsel, the fact that data sheets may be de-
leted from an employee's personnel file (as was the case
with Griffis' April 29 data sheet) should the Company
later determine that the employee's position was "justi-
fied" tends to suggest that the Company, by maintaining
the documents, may wish to use the contents therein in
some negative manner. This may result, inter alia, in a
subjective evaluation of the employee's overall work
record or in the issuance of a more formal warning
letter. In further construing the disputed data sheet as a
form of adverse action, it is significant to note that the
company's negative comments about Griffis appear on
the face of the document in a section entitled "Company
Rule Infraction." The company immediately served a
copy of the disputed data sheet containing the alleged
company rule infraction on Griffis. In these circum-
stances, I am persuaded, and I find, that the disputed
data sheet represented a reprimand or warning rather
than "merely a documentation of what occurred [at the
May 23] meeting" as contended by Respondent.
2. Alleged unlawful motivation
Having previously found that the disputed data sheet
constituted a warning notice, the case now turns on the
reasons for its issuance. Respondent contends that
Weber's motivation in issuing the data sheet was to doc-
As an 8(a)(4) allegation is in issue, there is an overriding policy to pro-
tect the Board's processes. See McKinley Transport Limited, 219 NLRB
1148, 1151 (1975).
BORDEN INC. FOODS DIVISION 1231
ument Griffis' threat to Supervisor Bieckman. The Gen-
eral Counsel, on the other hand, contends that Weber
issued Griffis the disputed data sheet or warning because
he threatened to go to the National Labor Relations
Board.
The record discloses that Griffis was the subject of a
previous unfair labor practice charge in Case 22-CA-
7880 which was resolved by the Company's compliance
with an informal settlement agreement and the posting of
a notice. The "Notice" stated, in pertinent part:
WE WILL NOT utilize any of the information con-
tained in the data sheets issued to Paul Griffis from
June 4, 1977, to June 29, 1977, as a basis for any
disciplinary action.
WE WILL NOT threaten, interfere with, restrain,
coerce any of our employees because they file
grievances or exercise any of the rights guaranteed
by Section 7 of the National Labor Relations Act,
as amended.
In April 1978 and soon after compliance with the
above-noted settlement agreement had been achieved,
Respondent issued Griffis two more data sheets, one for
allegedly poor work performance and the other for al-
legedly failing to set up a machine in a proper manner. It
is not contended that the aforenoted April data sheets
were predicated on unlawful considerations. In any
event, Griffis elected to challenge the propriety of these
data sheets and, as previously noted, these matters were
further aired at a company-union meeting on May 23. It
is undisputed that during the course of this meeting Grif-
fis asked Weber to get Supervisor Bieckman off his back,
stating that, if not he, Griffis, would do it. It is also un-
disputed that Weber asked Griffis whether he was threat-
ening Bieckman. Griffis denied that he made a threat, but
promised to get Bieckman off his back even if he had to
go all they way to Washington. From this point in the
meeting until Griffis was served with a new data sheet,
there is some dispute as to what Griffis stated and the
precise timing of his remarks. For example, the testimo-
ny is in conflict as to whether Griffis made reference to
other agencies and the National Labor Relations Board
in particular before Frankowski was summoned by
Weber to appear on the scene.
Notwithstanding some conflicting testimony, it is
noted that there is substantial agreement on certain criti-
cal facts. Thus, it is undisputed that during the course of
this meeting Griffis explained away his threat to get
Bieckman off his back to mean that he would again go to
an outside agency. According to Griffis, everyone at the
meeting knew that he was referring to the National
Labor Relations Board. This was largely confirmed by
Weber who conceded that Griffis meant "something like
the Labor Board." In any event, I credit Griffis' testimo-
ny that he explained his remarks further to Weber and
specifically mentioned the Board as the agency he would
go to for relief.
7 While at times Griffis was not fully responsive to questions put to
him, I believe that overall he testified truthfully, and I credit his testimo-
ny in all critical areas Respondent, in urging that Griffis' testimony not
be credited, argues that an adverse inference be drawn by the failure of
I reject Weber's assertion that he issued the May 23
data sheet because Griffis threatened Supervisor Bieck-
man as implausible and not supported by the credible
evidence. 8 According to Weber, he viewed Griffis'
threat as a serious matter, particularly because approxi-
mately 1 week earlier another employee threatened a su-
pervisor and was suspended for it. (Resp. Exh. 5.) How-
ever, the record discloses that the incident relied on by
Weber was markedly different from the Griffis incident.
The suspended employee, inter alia, used offensive lan-
guage "F- you" and threatened to "fix" the supervisor
"real good." Weber testified that the suspended employ-
ee not only verbally abused the supervisor, but impliedly
threatened him with bodily harm. In the case at bar,
there is no evidence tending to show that Griffis made
an aggressive gesture or that he otherwise threatened to
physically abuse Bieckman.9 Apparently, the discussion
of Bieckman's harassment of Griffis caused both Bieck-
man and Griffis to become somewhat spirited, and
Weber had to calm both of them down.l° Weber con-
ceded, however, that Griffis was no more aggressive
than Bieckman. I do not credit Weber's assertion that he
did not believe Griffis' explanation that he would get
Bieckman off his back by going to an outside agency. It
is noted that Weber elected to make reference to Griffis'
threat to go to an outside agency on the data sheet even
though Personnel Manager Frankowski and Labor Rela-
tions Manager Frem told him not to discipline Griffis for
threatening to go to an outside agency because it was un-
lawful. In these circumstances I fail to discern any legiti-
mate purpose for recording such information on the data
sheet. It is significant to note that Weber did not commu-
nicate to Griffis that the new data sheet would not serve
as a basis for further disciplinary action. Given the addi-
the General Counsel to call Union Representative Centi as a corrobora-
tive witness. While no reason was advanced for the failure to call Centi,
it is noted, as testified by Weber, that Griffis was not satisfied with
Centi's representation at the meeting and in this context Griffis alluded to
an outside agency in seeking help. It is also noted, as averred in Respon-
dent's brief, that Centi was present at the hearing under "subpoena by the
company," so that it would appear that Respondent could have availed
itself of the same opportunity as the General Counsel. Moreover, it is
noted that Griffis, and not the Union, is the Charging Party. In these cir-
cumstances I draw no adverse inference against either party for the fail-
ure to call Centi.
s In rejecting Weber's testimony for its lack of candor, I noted particu-
larly his shifting responses as to when he first learned that Griffis had
utilized the services of the NLRB Initially, he testified that he learned
about it after May 23. Later, he admitted that he knew about it prior to
May 23. Still later, he variously testified that the remembered seeing the
Board notice involving Griffis in his file and also on the bulletin board.
When pressed further on this subject, he finally responded, "To tell you
the truth, I don't remember-it was either in the file or on the wall or
something, but I recall seeing a notice of some sort." I also reject Fran-
kowski's denial that he did not know that Griffis was referring to the
NLRB. As Frankowski knew that Griffis had recently secured relief
from the NLRB, I find it highly unlikely that he never discussed this
matter with Weber as he testified. Further reflecting adversely on the tes-
timony of both Weber and Frankowski is their respective accounts of
what Weber told Frankowski to get him to come to the May 23 meeting
Weber testified that he did not have time to give Frankowski a reason.
This is disputed by Frankowski, who asserted that Weber told him about
the threat.
9 Cf. Wonder Markets, Inc., 246 NLRB No. 56 (1979).
1O See, e.g., M Restaurants, Incorporated, d/b/a The Mandarin Corpora-
rion, 221 NLRB 264, 270 (1975); Will & Baoumer Candle Co., Inc.. a
Wholly Owned Subsidiary of Syracuse China Corporation, 206 NLRB 772
(1973).
BORDEN INC. FOODS IVISION
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional fact that a copy was served on Griffis, I conclude
that Weber's comments on the document were intended
to represent adverse action.
In short, I find that Weber, who was aware that Grif-
fis had obtained relief from the NLRB previously, issued
the disputed data sheet as a warning calculated to inhibit
Griffis from further carrying out his threat to once again
seek relief from the NLRB. t Accordingly, I find that
Respondent thereby violated Section 8(a)(4) and (1) of
the Act.
In addition, I find that Respondent, by issuing the dis-
ciplinary data sheet to Griffis in the presence of his
union representative at a grievance meeting, tended to
discourage union activity and the use of the grievance
machinery under the collective-bargaining agreement,
thereby violating Section 8(a)(3) and (1) of the Act.12
IIi. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local Union No. 50, Bakery & Confectionery
Workers Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(4) and (1) of
the Act by issuing a disciplinary warning to Paul Griffis
because he had previously used the services of the Na-
tional Labor Relations Board, and because he again
threatened to resort to the Board's services.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by issuing a disciplinary warning to Paul Griffis
in the presence of a union representative at a grievance
meeting, thereby discouraging union activity and the use
of the grievance machinery under the collective-bargain-
ing agreement.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respon-
dent cease and desist therefrom and that it take certain
affirmative action to effectuate the policies of the Act.
Thus, it having been found that Respondent issued a
disciplinary warning in the form of a personnel data
sheet to Paul Griffis on May 23 to inhibit him from fur-
ther using the assistance of the National Labor Relations
II See, e.g., Hoover Design Corporation, 167 NLRB 461, 462 (1967), en-
forcement denied in relevant part 402 F.2d 987 (6th Cir. 1968); but see
also General Nutrition Center. Inc., 221 NLRB 850, 855, fn. 24 (1975),
citing N.L.R.B. v. Robert Scrivener d/b/a AA Electric Company. 405 U.S
117 (1972); Mitsubishi Aircraft International, Inc., 212 NLRB 856, 865-866
(1974).
12 See, e.g., G & M Underground Contracting Co., 239 NLRB No. 17
(1978); Walker Electric Co.. Inc., 219 NLRB 481, 485 (1975).
Board, in violation of Section 8(a)(4) and (1) of the Act,
I shall recommended that said data sheet be rescinded
and expunged from Griffis' personnel file and other re-
cords.
Further, it having been found that Respondent, by is-
suing the May 23 data sheet at a grievance meeting,
tended to discourage union activitiy and the use of the
grievance machinery under the collective-bargaining
agreement, thereby additionally violating Section 8(a)(3)
and (1) of the Act, I shall therefore recommend that it
cease and desist therefrom. However, as the record does
not reflect any previous history of unfair labor practice
findings engaged in by Respondent, I shall recommend
the narrow "in any like or related manner" injunctive
language. See Hickmotrt Foods, Inc., 242 NLRB No. 177
(1979).
On the basis of the above findings of fact, conclusions
of law, and the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 1 3
The Respondent, Borden Inc. Foods Division, Drakes
Bakeries, Wayne, New Jersey, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a)Issuing warnings, reprimands, or other reprisals
against employees for using or threatening to use the as-
sistance of the National Labor Relations Board.
(b)Issuing warnings or reprimands to employees during
grievance meetings.
(c)In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Rescind and expunge the May 23 personnel data
sheet from Paul Griffis' personnel file and other records.
(b) Post at its Wayne, New Jersey, facility copies of
the attached notice marked "Appendix."'4 "Copies of
said notice, on forms provided by the Regional Director
for Region 22, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
I' 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.
14 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
BORDEN INC. FOODS DIVISION 1233
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity 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 or-
dered us to post this notice.
WE WILL NOT issue warnings, reprimands, or
other reprisals against employees for using or
threatening to use the assistance of the National
Labor Relations Board.
WE WILL NOT issue warnings or reprimands to
employees during grievance meetings.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them in Section 7
of the National Labor Relations Act, as amended.
WE WILL rescind and expunge the May 23 per-
sonnel data sheet from Paul Griffis' personnel file
and other records.
BORDEN INC. FOODS DIVISION, DRAKES
BAKERIES