Han-Dee Pak, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1977

232 N.L.R.B. 454 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Han-Dee Pak, Inc. and Teamsters Local Union No.
728, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Independent. Cases 10-CA-
12273, 10-CA-12439, and l0-RC-10770
September 28, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On July 8, 1977, Administrative Law Judge Donald
R. Holley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge, to
modify his remedy,3 and to adopt his recommended
Order, as modified herein.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified by footnote 4, supra, and hereby orders that
the Respondent, Han-Dee Pak, Inc., Doraville,
Georgia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified.
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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
We note that in sec. I11, 3, par. 8, of his Decision, the Administrative Law
Judge referred to an unlawful statement made by Darrel Shattuck, whereas
it is clear from the record, and the Administrative Law Judge himself
previously found, that the statement in question was made by Clayton
Shattuck. Inasmuch as we agree with the Administrative Law Judge that the
conduct of Clayton Shattuck is imputable to Respondent (see fn. 2, infra),
this apparently inadvertent error does not affect our decision herein.
2 We agree with Respondent that the Administrative Law Judge erred in
stating in fn. 3 of his Decision that Respondent admitted that Clayton
Shattuck was its agent and supervisor within the meaning of the Act.
However, we nevertheless find a sufficient basis in the record for adopting
the Administrative Law Judge's conclusion that the threat of plant closure
made by Clayton Shattuck to assembled employees on June 21, 1976, is
attributable to Respondent. Thus, employee Carol Kopis testified that
Clayton Shattuck was her shift supervisor until the middle of July 1976.
Similarly. Shattuck himself testified that prior to July 1976 he was the
supervisor of the first shift. Finally, Respondent's counsel elicited the
following testimony from Plant Manager Chambers:
Q. All right. Going back to the meeting on the 21st of June that
you called for the first shift, were you the only one that talked insofar as
any supervisor or management employee of Han-Dee Pak?
A. Let's see. Clayt Shattuck was there, and he did make a couple
of comments after a meeting, yes.
In view of the foregoing, we find that Clayton Shattuck was a supervisor of
Respondent at the time the threat of plant closure was made, and that, even
if he were not, Respondent would still be responsible for his conduct
because it placed him in a position where employees could reasonably
believe that he spoke on behalf of management. See Helena Laboratories
Corporation, 225 NLRB 257 (1976), enfd. in pertinent part 557 F.2d 1183
(C.A. 5, 1977); Broyhill Company, 210 NLRB 288, 294 (1974), enfd. 514 F.2d
655 (C.A. 8, 1975).
3 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
4 On September 20, 1977, the Board issued an order sevenng Case 10-
RC-10770 from Cases 10-CA-12273 and 10-CA-12439, granting the
Petitioner's request to withdraw its petition previously filed in Case IO-RC-
10770, and closing Case 10-RC-10770. For that reason, we do not adopt the
Administrative Law Judge's recommendation that the election held in Case
10-RC-10770 be set aside and the case be remanded to the Regional
Director for Region 10 for the purpose of conducting a new election.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge: Upon a
charge filed by the above-named Union in Case IO1CA-
12273 on September 17, 1976,1 a complaint alleging
independent violations of Section 8(a)(l) of the National
Labor Relations Act, as amended, herein called the Act,
and violation of Section 8(aX)() and (3) of the Act by the
discharge of employee Carol Kopis, was issued on
November 1. Respondent duly answered the complaint,
denying the commission of the unfair labor practices
alleged. On November 5, the Regional Director for Region
10 issued an order directing hearing, consolidating cases
and notice of hearing wherein he provided that certain
objections filed in Case 10-RC-10770 be consolidated for
hearing with Case (0-CA-12273. Thereafter, on November
22 the complaint in Case 10-CA-12273 was amended and
Respondent filed a timely answer. The Union filed the
charges in Case 10-CA-12439 on November 29 and on
December 29 the aforesaid Regional Director issued
complaint, notice of hearing, and order consolidating cases
which consolidated all three cases for hearing and alleged
further violation of Section 8(a)(I) of the Act and further
violation of Section 8(aX)(I) and (3) of the Act by the
discharge of Evelyn Smith. Respondent filed a timely
answer to the December 29 complaint, denying the
commission of the unfair labor practices alleged.
The case was heard in Atlanta, Georgia, on February 22
and 23, 1977. All parties were afforded full opportunity to
participate in the hearing.2 Following the close of the
hearing, counsel for General Counsel and Respondent filed
briefs, which have been carefully considered. Upon the
All dates are in 1976 unless otherwise indicated.
2 At the commencement of the hearing, General Counsel was permitted
to amend the consolidated complaint to change the spelling of "Sobel" in
par. 6 to "Sodel" and to add the name "Clayton Shattuck" to par. 8 of the
onginal complaint.
232 NLRB No. 71
454
entire record and the briefs filed by the parties, I make the
following:
FINDINGS OF FACT
I. JURISDICTION
The consolidated complaint alleges, and the answer
admits, that Respondent is a Georgia corporation with an
office and place of business located at Doraville, Georgia,
where it is engaged in the manufacture and sale of food
and products. During calendar year 1975, a representative
period, it sold and shipped products valued in excess of
$50,000 to customers located outside the State of Georgia.
Upon these facts, I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATION
It was admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
I. Background
Respondent operates a plant at Doraville, Georgia,
where it utilizes some 150 employees on 3 shifts to
manufacture and package condiments such as salad items,
jams and jellies, mustard, and catsup for customers in the
fast food industry. Most of its employees, approximately
130, work on the first shift (8 a.m. to 4 p.m.). Supervision of
the employees and the operation is accomplished through
the following: Herbert A. Sodel, president; Darrel Shat-
tuck, vice president; James Chambers, plant manager;
Clayton Shattuck, material coordinator; and James Coul-
ter, assistant production manager. 3
In early June, employee Carol Kopis contacted the
Union regarding representation for the plant employees
and she thereafter distributed approximately 40 union
authorization cards to employees. The Union notified
Respondent it enjoyed majority status by telegram dated
June 28, and it filed the petition in Case 10-RC-10770 on
July 8.
2. Issues
General Counsel alleges that Respondent engaged in
numerous violations of Section 8(a)(1) and (3) during the
period June 21, 1976, to September 1, 1976. The issues
posed are whether Evelyn Smith and Carol Kopis were
discharged in violation of Section 8(aXl) and (3) on August
4 and September I, respectively, and whether Respondent
engaged in independent violations of Section 8(a)( ) by: (1)
creating the impression of surveillance of employees' union
activities on June 21; (2) threatening to move the plant due
to union activity on June 28; (3) promulgating and
thereafter enforcing a new absentee policy to discourage
union activity commencing July 7; (4) posting two pictures
:' It was admitted, and I find, that the named individuals are agents of
Respondent and are supervisors within the meaning of Sec. 2(1 ) of the Act.
4Clayton Shattuck testified his remark was to the effect that if something
HAN-DEE PAK, INC.
which threatened plant closing because of union activity
from July 22 to July 30; (5) coercively interrogating an
employee on July 29; (6) threatening employees with
discharge for signing union cards on July 29; (7) creating
an impression that employees' union activities were under
surveillance on July 29; (8) threatening on July 30 to
eliminate employee participation in Respondent's profit-
sharing plan if employees selected the Union as their
bargaining agent; (9) creating an impression that employ-
ees' union activities were under surveillance on July 30;
(10) threatening employees on July 30 with lack of direct
access to management for discussion of grievances if they
selected the Union; and (1 I1) threatening employees on July
30 with loss of benefits if they selected the Union.
Discussion of the issues is set forth chronologically below.
3. The alleged 8(a)(l1) conduct
The June 21 Meeting
On June 21 Respondent held a meeting with first-shift
employees. James Chambers and Clayton Shattuck repre-
sented management. General Counsel's witness, Carol
Kopis, testified that Chambers did most of the talking and
informed the employees that they were aware of union
activities in the plant and knew who was behind it; the
Company did not need a union and there was no room for
people like this and they wished they would leave; the
person responsible had 24 hours and only 24 hours to come
to the office. Kopis testified Shattuck informed the
employees they had a plant in Texas which was growing
and would if necessary move the plant there. According to
Kopis, the remainder of the meeting involved questions
and answers. Employees Ruth Harrison and Alma Taylor
corroborated Kopis' testimony to some extent. Chambers'
version of the meeting was that he told the employees they
had heard rumors of union talk and activities and he did
not feel it was necessary, that they did not need any kind of
union in the plant or any people involved in it, and that if
people had problems they could come to the office and talk
about it. Chambers denied he said he knew who was
behind the Union and he denied he said people for it
should leave and the leader should come to the office in 24
hours. He testified Shattuck told the employees if the
Union was voted into Han-Dee Pak it would probably be
necessary for some people to go down possibly to keep up
production in the Dallas plant. 4 I found Kopis to be a
straightforward witness who attempted to limit her testimo-
ny to matters she was certain of and I credit her where her
testimony conflicts with that of Chambers and Shattuck.
Accordingly, I find that Respondent violated Section
8(a)(1) of the Act on June 21 by: (1) stating to employees
that Respondent did not need a union or any people
involved in it and those involved should leave; (2) creating
an impression that the employees' union activities were
under surveillance by stating they knew who was behind
the Union; (3) threatening employees by saying the person
responsible for the union activity should come to the office
happened some of them might have to go to Dallas to help out. Shattuck
claimed he was referring to supervisors. I find the testimony of Kopis and
Chambers was more explicit and credible than that of Shattuck.
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in 24 hours; and (4) threatening to move the plant or
employees to Dallas because of union activities.5
Promulgation and Enforcement of Absentee Rule
James Chambers testified Respondent was experiencing
difficulty with absenteeism and lateness in July and then
sought to rectify the situation by revising the company
policy regarding absenteeism. Thus, on July 7 or 8, he met
with employees and gave them copies of a document which
was placed in evidence as Respondent's Exhibit 1. In its
original form, the document stated:
July 7, 1976
To: All Han-Dee Pak Employees
Subject: Absenteeism
Your Company feels it is necessary and appropriate
to clarify our policy regarding absenteeism on the part
of our employees.
First, we want to discourage all of our employees
from being absent in that it hurts production and tends
to place an extra burden on your fellow employees who
are working. However, we know from time to time it
may be necessary for an employee to be absent for a
good reason such as illness, death in family, etc.
If you find it necessary to be absent, call your
immediate supervisor as soon as possible prior to the
start of your shift and tell him the reason for your
absence. If you cannot phone, have a relative or friend
call in for you. Your immediate supervisor will have the
responsibility of determining if your absence is to be
excused based upon your reasons. The Company
reserves the right to require evidence of your excuse,
including a Doctor's certificate, if you visit a Doctor. In
the event you fail to call in to your immediate
supervisor on the day you are absent, it will be an
unexcused absence, except in the case of extraordinary
circumstances.
In the event you incur more than three days of
unexcused absences in a six (6) months period, you will
be subjected to disciplinary action up to and including
discharge. In the event you incur two days of unexcused
absences during a six month period you will receive a
written warning notice that a third day's absence within
the six month period will subject you to disciplinary
action.
Any employee who is absent for three consecutive
working days without notifying his immediate supervi-
sor will be assumed to have quit his employment with
this Company.
Herbert A. Sodel - Pres.
Darrel L. Shattuck - Sec./Treas.
Chambers testified that he explained at meetings held with
the employees that the fourth paragraph of the above-
' The statement regarding Respondent's wish that those involved in
union activity leave and the demand that the person responsible report to
the office were not alleged as violations. The issues were fully litigated,
however, and I deem the findings appropriate.
quoted document was erroneous as it should have stated
that three unexcused absences would result in the issuance
of a warning slip which would state that a fourth
unexcused absence in a 6-month period would subject the
employee to disciplinary action. In addition, he testified an
unexcused absence was an absence for which the employee
did not produce a doctor's excuse or another acceptable
written excuse. When describing a new 3-day policy,
Chambers told employees the only requirement was that
they call their supervisor before the start of their shift to
report they would be out. He referred to the 3 days as "go
to hell" days, meaning they did not have to explain the
reason for the absence.
The record reveals that Respondent's prior absenteeism
policy was one which caused employees missing 3 consecu-
tive days to be terminated as quits. There was no policy
applicable to the I- or 2-day absences, and Chambers
testified many employees took advantage of the lack of a
policy, with many being absent on Monday in particular. It
is undisputed that no mention was made of the Union at
meetings wherein the new policy was discussed.
Analysis
General Counsel contends that the promulgation and
enforcement of the above-discussed absenteeism policy
violated the Act. I find no merit in this contention. General
Counsel does not contend in this case that Respondent
violated Section 8(aX5) of the Act by instituting a new
policy at a time when it was obligated to bargain with the
Union, and I note that the Union or union activities of
Respondent's employees were not mentioned in connection
with institution of the policy. Moreover, I find Respondent
was experiencing difficulty with absenteeism prior to the
promulgation of the policy in question and conclude that it
had adequate valid business reasons for changing its
policy. Accordingly, I find General Counsel has not
sustained the applicable complaint allegations and recom-
mend that paragraphs II and 12 of the original complaint
be dismissed.
The Photograph(s)
General Counsel's witness Evelyn Smith testified that
during the month of July she saw two pictures posted on
the bulletin board in the plant. Over Respondent's best
evidence objection, she testified one picture depicted a
plant with people in trucks and goods sitting on docks, and
the other was of the same premises with an absence of
people, nothing on the dock, weeds growing, the gate
closed, and signs which stated "closed due to union" and
"This was once a thriving company until the Union was
voted in."
Through Plant Manager Chambers, Respondent placed
in evidence a photograph it claimed was posted on the
bulletin board from July 22 to July 30.6 Chambers testified
the document was the only picture or photograph posted
by Respondent. The photograph in question depicts a plant
with no persons visible which has a "for sale" sign affixed
6 See Resp. Exh. 2.
456
HAN-DEE PAK, INC.
to a cyclone fence surrounding the property. The sign on
the fence is illegible, but an arrow leads from the sign to the
bottom of the photograph where it is reproduced in such a
manner as to permit the viewer to read the language on the
sign. Additionally, a union campaign message to employ-
ees is set forth in the lower left corner of the photograph.
The sign reads:
FOR SALE
13.9 acres - INCLUDNG LAND & BLDG. Call SY. 9-5371
or your real estate broker
The campaign message reads:
The union won its demands in this meat-packing plant
- but they forced the plant to close.
Closing the plant (and its cattle pens) may have
sweetened the air in this neighborhood, but it surely
soured on the Georgia workers who lost their jobs,
cattle growers who lost this market, countless mer-
chants, bankers, others who lost these customers.
Employees, stockholders in the company, everybody
came out losers.
General Counsel elected to prove the alleged photograph
violation by offering testimony rather than the actual
photograph(s) which could have been obtained by subpe-
na. The testimonial evidence was received reluctantly since
the photographs would have clearly constituted the best
evidence available in the circumstances. When Smith was
shown Respondent's Exhibit 2, she originally said it was
the photograph of the closed plant she had described in her
direct testimony. After inspecting the exhibit, she changed
her mind and testified she had never seen it before. Smith
exhibited confusion regarding the photograph(s) posted
and Respondent has represented that the photograph
placed in evidence was the only one posted. I conclude that
the testimony of Chambers is more reliable than that of
Smith and view the photograph in evidence to determine
whether the complaint allegation has been proved.7
Considering in context the probable impact of Respon-
dent's Exhibit 2 upon employees, I find that Respondent
violated Section 8(a)(l) of the Act as alleged by posting the
photograph which clearly conveyed the message that
unionization leads to plant closure. Before the photograph
was posted, Darrel Shattuck had informed employees that
their selection of the Union might cause transfer of the
operations to the Dallas plant. In the circumstances, I fmd
that Respondent's posting of the photograph in question
constituted a threat of reprisal rather than an objective
prediction of what might possibly happen, and as such the
action constituted a violation of Section 8(a)(1).8
' Smith inaccurately testified Respondent threatened to cease employee
participation in a nonexisting pension plan and she inaccurately testified her
son telephoned the plant from her bedroom. As her testimony is sprinkled
with inaccuracies revealing her recollection was somewhat faulty, I find
Chambers' testimony more reliable.
Alleged Interrogation of Smith by Coulter
Smith testified her supervisor, James Coulter, ap-
proached her at her work station in late July and stated
they knew she had signed the union cards. She claimed she
asked how they knew she had signed a union card, and that
Coulter replied they had their way of knowing these things.
She allegedly asked if he had seen the card, and he
reportedly replied he did not have to see the card. Smith
stated she replied that he should not come to her and
accuse her of doing something unless he could show her the
card she was supposed to have signed. She claims Coulter
then stated "she wasn't so cute; that they were going to fire
everybody that signed a union card."
Coulter testified he did not engage in the conversation
described by Smith. He testified he "vaguely" recalled that
Smith told him on one occasion that she did not want to
have anything to do with the Union. Significantly, Kopis
testified that subsequent to Smith's discharge she con-
versed with Coulter, indicating to him that Smith had
discussed the union card with her about a week prior to her
discharge and he had no right to question people about
signing authorization cards. Kopis testified Coulter told her
he had not, but if he did it would not matter because he
was an hourly employee like everybody else.
Analysis
While Smith exhibited a tendency towards inaccuracy,
her demeanor while on the stand was such that I felt she
sought to testify truthfully. Her problem was inaccurate
recollection rather than dishonesty. As her testimony
concerning the Coulter interrogation was indirectly corrob-
orated by Kopis, I credit the testimony. Accordingly, I find
as alleged that Respondent, through Coulter's late July
actions, violated Section 8(aX)(I) of the Act by: coercively
interrogating an employee concerning her union activities:
unlawfully threatening with discharge employees who had
signed union cards; and unlawfully creating an impression
that the union activities of employees were under surveil-
lance by Respondent.
The July 30 Employee Meeting
On or around July 30, Respondent Vice President Darrel
Shattuck conducted meetings with the employees on all
three shifts. The record reveals he appeared at the meetings
with written questions and answers and he testified that his
talk with all employees closely followed the written
document, with some elaboration and some deletion. The
written document, which is in evidence as General
Counsel's Exhibit 7, reads as follows:
July 30, 1976
Here are some questions that usually come up when a
union election is to be held and I thought it might be
interesting to each of you to go over them in a question
and answer manner.
8 Essex Wire Corporation, 188 NLRB 397, 403 (1971), and cases cited
therein.
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i. Do I have to vote in the election?
A. No, you are not required to vote, but a majority
of the vote cast will determine the outcome, so if you
don't want someone else to make your decision for you,
you should be sure and vote.
2. Will anyone know how I vote when I vote in the
election?
A. No. The election will be absolutely secret. You
will be given a ballot that has no number on it. You will
take it into a booth - where you mark it yes or not -
and then put it in a sealed ballot box. No person can
ever know how you vote except yourself. There are no
names or other identifying marks on the ballot which
you cast.
3. If I sign a union authorization card do I have to
vote for the union at the time of the election?
A. No - You can vote either way you like -
either No or Yes. Nothing you have signed or said or
promised in any manner binds you to vote a certain
way.
4. If I have not signed a card or if I vote NO and
against the union will this affect me in any way if the
union wins the election?
A. No - The union is required to represent all of
the people, whether or not they have joined the union
or not. Everyone will be treated in the same manner.
5. If the union is voted in here at Han-Dee Pak, do
I have to join the union to keep my job?
A. No - definitely not - Georgia law prohibits a
union or a company from requiring you to join any
union in order to keep your job.
6. If the union promises me a raise or other benefits
if I vote for the union, can I bank on it?
A. No - Even if the union is voted in here all the
company is required to do is bargain with the union in
good faith. The union cannot require the company to
do anything that it does not want to do. Such union
promises are just hot air and you should not rely on
them when making your decision on how to vote.
7. What do I have to lose by voting for the union?
A. A lot - a whole lot-
(a) You could run the risk of having to pay union
dues, union fines, initiation fees, special assessments
and on and on.
(b) You could lose your pay check if the union calls a
strike and you go out on strike.
(c) You could no longer take up any problem you
might have with your supervisor, but would have to go
through some union job steward or some union
business agent.
(d) You could lose your job if the union calls a strike
as the company has the right to permanently replace
striking employees.
8. If I go out on strike will I continue to get a
paycheck?
A. NO.
B. If I go out on strike, can I draw unemployment
benefits?
A. No - The law provides that persons on strike
are not eligible for unemployment benefits.
General Counsel asserts that paragraph 7(c) of the
above-quoted document was intended to mislead employ-
ees regarding their rights under the Act, and he maintains
Respondent violated Section 8(aX)I) of the Act when
Shattuck read such remarks to employees. Shattuck
testified that his comment on representation was very close
to the statements in the document. He indicated, "I said
that the Company always had an open-door policy; that if
anybody felt they were [not] getting the right kind of
interest from a supervisor, they certainly could see me or
Mr. Sodel; and that if a union got in they would most likely
have to go through a union steward or arbitrate."
In addition to attacking paragraph 7(c) of the document
in question, General Counsel adduced testimony to show
that during the meetings Shattuck made violative com-
ments which do not appear in the document. Thus, Smith
testified if they voted union and the Union said strike, they
had to strike and had no choice; that they would more than
likely lose their profit-sharing and pension benefits because
the Union would not allow those things; and that Shattuck
concluded the meeting she attended by stating "they
weren't dummies and that they knew who were behind the
Union." Kopis testified that Shattuck told those attending
the first-shift meeting that if the Union was voted in they
had to bargain, but the law did not control where they
started and they could cut wages back to $2.30 per hour
and prolong negotiations. Employee Harrison corrobo-
rated Kopis' assertion that Shattuck told employees
Respondent could prolong negotiations.
Shattuck testified he did not expand on the written
questions and answers as Smith, Kopis, and Harrison claim
he did. He claimed he did not threaten to eliminate benefits
if the employees selected the Union and that the only
mention of profit sharing occurred in a context wherein he
enumerated the benefits employees were then receiving. He
testified he did not say anything about pensions and would
have no reason to as the Company does not have a pension
plan. He flatly denied mentioning a minimum wage of
$2.30 per hour; denied that he threatened to prolong
negotiations; and denied that he said they were not
dummies and they knew who was behind the Union.
Respondent adduced testimony through employee wit-
nesses Gloria Layman, Betty Jo Cheek, and William
Griffin to bolster Shattuck's denial that he made state-
ments attributed to him by General Counsel's witnesses.
Layman testified Shattuck did not tell employees they
would not receive profit sharing if the Union came in; that
he did not threaten loss of any benefits; that he did not say
he knew who was behind the Union; and that he simply
read questions and answers from a document. Cheek
testified that the meeting merely consisted of a discussion
of the pros and cons; that Shattuck said if they had the
Union they might not have all their present benefits, with
specific reference to profit sharing; and that Shattuck said
negotiations would probably take some time. Griffin
testified he did not hear Shattuck say he knew who was
behind the Union.
Analysis
Technically, Respondent violated the Act when Shattuck
informed employees they would not be able to come
458
HAN-DEE PAK, INC.
directly to management with their problems if they selected
the Union, since Section 9(a) provides "any individual
employee or a group of employees shall have the right at
any time to present grievances to their employer ...
without the intervention of the bargaining representative."
As Shattuck's remarks, whether they involved the reading
to employees of paragraph 7(c) of General Counsel's
Exhibit 7 or followed the testimonial version given at the
hearing, constituted a misstatement of the employees'
rights under the Act and they clearly implied that by
selecting the Union the employees would lose the rights
guaranteed by Section 9(a), I find the remarks constituted a
threat of the loss of a substantial benefit and that by
making them Respondent violated Section 8(aXl) as
alleged. 9
The remaining issues regarding Shattuck's comments at
the meeting in question are not easily resolved. In my view,
the witnesses offered by General Counsel, and Respondent
as well, described the conclusions they reached after
hearing Shattuck rather than what he actually said. Thus,
without specifying what Shattuck said, Smith and Respon-
dent's witness Cheek testified Shattuck threatened them
with loss of profit sharing if the Union came in, but
Respondent's witness Layman testified no threat to remove
the profit-sharing benefit was made. Similarly, General
Counsel witnesses Kopis and Harrison testified Shattuck
threatened to prolong negotiations while Respondent
witness Cheek testified Shattuck said negotiations might
take some time. Finally, Smith's assertion that Shattuck
said they knew who was behind the Union was not
corroborated by any General Counsel witness and was
denied by Shattuck and Respondent's witnesses; addition-
ally, Kopis' assertion that Shattuck specifically threatened
to start wage negotiations at the minimum wage of $2.30
per hour was not corroborated by any other witness and
the assertion was denied by Shattuck. In view of the fact
that Shattuck obviously received legal assistance during his
preparation for the meeting in question, including prepara-
tion of General Counsel's Exhibit 7, 1 am disposed to credit
Shattuck's denial that he made the comments attributed to
him. Accordingly, I find that General Counsel has failed to
prove by a preponderance of the credible evidence that
Respondent, through Shattuck's remarks on July 30,
threatened to eliminate profit sharing if the employees
selected the Union; created the impression that it had
employees' union activities under surveillance by stating
they knew who was behind the Union; 10 threatened
employees with loss of benefits if they selected the Union;
or threatened to prolong negotiations for a year. For the
reasons stated, I recommend the dismissal of paragraph 9
of the original complaint and paragraphs 10, I 1, and 13 of
the consolidated complaint issued on December 29, 1976.
" Cosmo Graphics, Inc., 217 NLRB 1061 (1975).
'0 This contention was based on Smith's testimony. which I found to be
inaccurate in several respects.
" Respondent considered the July 26 absence to be unexcused as the
doctor's note made reference to July 27 only.
4. The alleged 8(a)(3) conduct; the alleged
discriminatory discharge of Evelyn Smith
Evelyn Smith was hired by Respondent on July I and
commenced work on July 2. She worked in the catsup
room where she boxed catsup.
Smith was hired by James Coulter who credibly testified
he told her at the time of hire that he was hiring her over
other applicants at the request of one of her friends because
she needed a job. Coulter indicated he told her at the time
of hire that he asked two things: an honest day's work and
an attempt to try to be at work and not lose any work.
The record reveals that Smith signed a union authoriza-
tion card on July 6, 1976. She testified this was the extent of
her union activity.
As previously indicated in the section of this Decision
entitled "The alleged 8(a)(1) conduct," James Coulter told
Smith in late July that he knew she had signed a card and,
when she argued with him about signing, he replied she
"wasn't so cute," they were going to fire everybody who
had signed cards. Consequently, it is clear that Respondent
knew or suspected that Smith was a union advocate.
Coulter testified Smith had a bad attendance record
during her brief period of employment. He testified her
records revealed: she was absent on July 12 (excused); she
came in late and left early on July 15; she left early on July
19; she was late on July 21; she left early on July 22 and
23; she was absent on July 27 (unexcused and did not call);
she was absent on July 27 (excused); she left early on July
29; she asked permission to leave on August 3 and the
request was denied; and she was absent on August 4, 5,
and 6. Coulter indicated that leaving early does not "go
against" an employee.
While Smith was unable to recall the exact dates on
which she arrived at work late or took time off, she
indicated she had valid reasons for her absences. On July
12, she testified she took the day off to take her little girl to
the doctor; she became ill at the plant on Friday, July 23,
and recuperated at home on July 26 and 27, obtaining a
doctor's excuse on July 27.11 On Tuesday, August 3, Smith
went to work with a headache. Twice during the day she
asked Coulter if she could go home and he told her to
continue to work. The following day, August 4, she stayed
home and her son called the plant and told Coulter his
mother was sick and Coulter replied it was all right, "just
have her bring a doctor's note the next day and everything
would be okay." Linda Frix, Smith's girl friend, stayed with
her on Tuesday and Wednesday nights (August 3 and 4)
and she called the plant on Wednesday or Thursday
morning August 4 or 5, and asked to speak to Coulter.' 2
She testified a person who identified himself as Coulter
came to the phone and she told him she was calling for
Jean Smith who was sick. She claims Coulter told her he
was sorry that she had been terminated and, when she
asked if that was fair since she was sick, he hung up.'3
On Friday, August 6, Smith went to the plant to get her
paycheck. She testified she then asked Coulter why he had
12 The record does not clearly indicate whether the absences occurred on
Tuesday, Wednesday, and Thursday or commenced on Wednesday. In any
event the son made his call the first day of absences and Fnx called the next
day.
13 Coulter denied that he talked to Frix. I credit Frix.
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terminated her without giving her a chance to bring in a
doctor's excuse, and he allegedly replied she was not fired,
but had been laid off. Smith claims she asked for how long,
and that Coulter turned around and left without answer-
ing.14 Several weeks later, Smith was notified by letter from
Respondent that she had been terminated on August 6
because of unexcused absences. Respondent does not
dispute the fact that Smith did not receive a warning notice
prior to her termination.
In further defense of its discharge of Smith, Respondent
adduced testimony to show her sickness was self-inflicted.
Cheek testified that Smith told her on an occasion at work
that she had come in late the night before and was sick with
a hangover. Similarly, Locklear testified that, one day
when Smith was out sick, she had observed Smith "coming
in" as she was on her way to work at approximately 7:30
a.m.
Additionally, Respondent defended the discharge by
adducing testimony through Cheek that Smith told her
after she had been working several weeks that she did not
want to have anything to do with either side in the union
matter. Similarly, Locklear testified Smith told her at an
undisclosed time that she was not going to have anything
to do with the Union.
Analysis
Respondent's basic contention was that it fired Smith
because she had four unexcused absences. The absenteeism
policy it followed from July 7 forward is revealed by
Respondent's Exhibit 1, which provides (in relevant part):
If you find it necessary to be absent, call your
immediate supervisor as soon as possible prior to the
start of your shift and tell him the reason for your
absence. If you cannot phone, have a relative or friend
call in for you. Your immediate supervisor will have the
responsibility of determining if your absence is to be
excused based upon your reasons. The Company
reserves the right to require evidence of your excuse,
including a Doctor's certificate, if you visit a Doctor. In
the event you fail to call in to your immediate
supervisor on the day you absent, it will be an
unexcused absence, except in the case of extraordinary
circumstances.
In the event you incur more than three days of
unexcused absences in a six (6) month period, you will
be subject to disciplinary action up to and including
discharge. In the event you incur [three] days of
unexcused absences during a six months period you
will receive a written warning notice that [any unex-
cused after] a third day's absence within the six month
period will subject you to disciplinary action.' 5
Any employee who is absent for three consecutive
working days without notifying his immediate supervi-
sor will be assumed to have quit his employment with
this Company.
The record clearly reveals that, at most, Smith had one
unexcused absence when she experienced the illness which
14 Coulter denied the August 6 conversation with Smith. I credit Smith.
15 Bracketed portion denotes interlineations.
resulted in her termination. Respondent claims she was
terminated after she had four unexcused absences. I find
no merit in this defense. Apparently, Coulter's attitude
towards this employee changed at some point in time as
illustrated by the fact that he refused to permit her to leave
work on the Monday or Tuesday preceding her last period
of absences even though she told him several times that day
that she was ill and wanted to go home. It seems unlikely
that he would conclude she was feigning illness as she had
previously almost fainted while working and she had
informed him her doctor had taken diagnostic x-rays to
determine the cause of her difficulty. The only evidence
which serves to explain the change in his attitude is that
evidence which reveals he questioned her about signing a
card immediately before her final illness and then told her
she was not so cute, that they were going to fire those who
had signed union cards. It certainly appears that Coulter
decided, at the time of the conversation concerning the
signing of a card, that she no longer deserved his
consideration. Thus, it is clear that he did nothing after her
son and girl friend called him to advise higher management
that the employee was absent due to illness, and he
permitted the front office to send her on August 6, 1976, a
letter of termination for four unexcused absences. In the
circumstances, I infer that the reason for Coulter's actions
was his dissatisfaction with Smith which resulted from their
discussion concerning the signing of a union card. I find
that Coulter deliberately refrained from reporting the true
facts regarding Smith's absence to cause her to be
discharged, thus fulfilling the earlier prediction that she
would be discharged because she signed a union card.
The remaining defenses offered to justify the termination
of this employee were clearly afterthoughts. Thus, while
Cheek and Locklear testified Smith had indicated to them,
or they had observed, that part of her absences was due to
the fact that she drank too much or stayed out too late, it
was not shown that Coulter or any Respondent official was
aware of this or considered such facts when the decision to
terminate was made. Similarly, Respondent observes in its
brief that Smith's overall attendance record was sufficiently
poor that it justified the discharge action. While this is true,
her poor overall attendance record was not the assigned
cause for the termination. In sum, I conclude the reasons
assigned for the discharge were a pretext and that the real
reason was Coulter's desire to show Smith "she wasn't so
cute" and could be discharged for signing a union card. It
follows, and I find, that Respondent violated Section
8(a)(1) and (3) of the Act by discharging Evelyn Smith on
August 5, 1976.16
The Alleged Discriminatory Discharge of Carol
Kopis
Carol Kopis started to work for Respondent on Septem-
ber 11, 1974, and was a machine operator in the cuproom
at the time of her termination on September 1, 1976. No
issue was raised concerning her work performance and all
agreed she had an excellent attendance record during the
term of her employment. She was the employee who
16 1 find the date of the discharge to be August 5, 1976, as Coulter
informed Frix on that day that Smith was terminated.
460
HAN-DEE PAK, INC.
contacted the Union in early June, and the record clearly
reveals she was the principal employee organizer at
Respondent's plant. While there is no direct evidence that
Respondent was aware of the extent of her activities on
behalf of the Union, she served as the Union's observer at
the election held on August 20.
Kopis testified that James Coulter, her immediate
supervisor, told her on August 24 that there were hard
feelings against her in the Company and if she had
succeeded in getting the Union in they would have lost two
of the best men in the business. Upon hearing this, Kopis
claims she asked Coulter, "Why don't you just fire me."
She testified Coulter replied, "Why don't you quit," and
that she said, "No. When you get rid of me, you're going to
fire me because I'm going to draw my unemployment while
I'm looking for another job." 17
Later in the afternoon on August 24, Coulter and Kopis
had a conversation concerning Respondent's absenteeism
policy. Coulter testified Kopis started the conversation by
asking him to review the rules on absence and he told her
that after 3 days of unexcused absence a written warning
was issued to the employee which indicated that a fourth
unexcused absence within a 6-month period could result in
discharge. t
Kopis did not work on August 25, 26, or 27. She testified
without contradiction that she called Coulter at the plant
on August 25 and told him she had an ear infection and
would not be in. He replied that she should take care of
herself and he would arrange to send a vacation check to
her by her sister.' 9 On August 26, Kopis called the plant
before Coulter got there and asked Ruth Harrison to tell
Coulter she would be out that day because she still had an
ear infection; on August 27 she called early and told
Donald Harper essentially the same thing.
Kopis reported for work on Monday, August 30, and
worked that day. She credibly testified no management
official asked her for a doctor's excuse for the absences
during the preceding week.20 She testified her ears were still
bothering her and for this reason she did not go to work on
Tuesday, August 31. She indicated, without contradiction,
that she called the plant on August 31 and told Coulter she
would not be in because she was still sick and he said
nothing.
When Kopis reported for work on Wednesday, Septem-
ber I, she testified Coulter asked her if she had a doctor's
excuse and when she said she had none he told her they
would have to terminate her and asked if she wanted to
work the rest of the day. She claims she said she would like
to work the rest of the day. Subsequently, between 10 and
10:30 a.m. Plant Manager Chambers called her to his
ti Coulter testified that Kopis initiated the conversation by telling him
she felt there were hard feelings against her in the Company and that she
asked if he could fire her so she could draw unemployment. I found Kopis
to be the more reliable witness and credit her version of the incident.
"' While I found Kopis to be a more reliable witness than Coulter
generally, my observation of the demeanor of both witnesses while they
testified concerning the afternoon discussion causes me to conclude that
Kopis started the conversation as claimed by Coulter.
19 Coulter testified that he told Kopis on August 25 to bring in a doctor's
excuse when she returned. Kopis testified she was never asked for a doctor's
excuse for the August 25, 26, or 27 absences. If Coulter had asked for such
an excuse on August 25 as he contended, the probability is that Kopis would
have told him she had medication and did not intend to go to the doctor. I
office. She testified that Chambers opened the conversation
by saying he understood from James (Coulter) that she had
quit. She replied she had not quit, she was terminated.
Chambers replied if James was going to fire her he should
have fired her before she hit the clock that morning and
told her she would have to leave. She maintains she then
asked if she was terminated and he replied she was
terminated for unexcused absences.2 1
Kopis testified she did not go to the doctor during the
period August 23 - August 30 because her sister had given
her medication for her ear infection. Without indicating
specific details, she testified that she has been absent from
work on occasion while at Respondent and, although she
did not visit a doctor, the absences were excused.
Analysis
General Counsel contends Respondent terminated Kopis
becuase it bore animosity towards her because she was the
employee who was most active in the attempt to cause
unionization of the plant. Respondent contends the
employer intentionally remained away from work for 4
days and she was discharged because she had four
unexcused absences within a 6-month period, and solely
for this reason. The contentions are discussed below.
To prove a primafacie case of discriminatory discharge,
General Counsel adduced evidence which revealed that
Respondent exhibited marked union animus at the outset
of the union campaign by telling its employees it was aware
of union activity, it did not need a union, and it did not
need employees who were involved in it. His evidence
revealed that Supervisor Coulter was particularly adamant
in his opposition to the Union, and that Coulter invited
Kopis to quit her job on August 24 because he felt there
were hard feelings against her due to her leadership in the
organizing campaign. Finally, General Counsel contends
Kopis was terminated on September I for reasons which
would not have resulted in her discharge but for the
animosity against her which had developed because of her
union activities.
Respondent defends by claiming the evidence reveals
that Kopis intentionally missed work on August 25, 26, 27,
and 31, thus creating a situation wherein she had four
unexcused absences. It points to the evidence which reveals
Kopis asked Coulter on August 24 to review Respondent's
absenteeism policy for her, and to the fact that her
absences immediately followed the discussion, thus strong-
ly suggesting the absences were intentional and not caused
by illness. It maintains the record reveals she was given an
opportunity to establish that the absences were due to
illness but she failed to produce a doctor's certificate and
credit Kopis' claim that she was never asked for a doctor's excuse for the 3
days under discussion and I do not credit Coulter's claim that he told her on
August 25 to bring a doctor's excuse.
20 I credit Kopis because Chambers and Coulter gave inconsistent
testimony regarding what happened on Monday. Chambers testified that a
warning slip was prepared for Kopis on that afternoon but it was never
given to her because she was absent the next day. Coulter testified he asked
her for a doctor's excuse for the 3 days and gave her a warning slip when he
learned she had not been to a doctor. Kopis denied receiving a warning slip.
21 Chamber's testimony was substantially the same. He testified he
specifically asked Kopis if she had a doctor's excuse for the absence on
August 31 and when she said she had no doctor's excuse he told her she had
four unexcused absences and should leave the plant.
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that its decision to terminate her was in accord with
company policy.
The legal principles governing the resolution of this issue
have been frequently stated and are as follows:
The issue before us is not, of course, whether or not
there existed grounds for discharge of these employees
apart from their union activities. The fact that the
employer had ample reason for discharging them is of
no moment. It was free to discharge them for any
reason good or bad, so long as it did not discharge them
for their union activity. And even though the discharges
may have been based upon other reasons as well, if the
employer was partly motivated by union activity, the
discharges were violative of the Act. [N.L.R.B. v. Great
Eastern Color Lithographic Corp., 309 F.2d 352, 355
(C.A. 2, 1962), enfg. 133 NLRB 911 (1961).]
The mere existence of valid grounds for a discharge
is no defense to a charge that the discharge was
unlawful, unless the discharge was predicated solely on
those grounds, and not by a desire to discourage union
activity. [Sunshine Biscuits, Inc. v. N.LR.B., 274 F.2d
738, 742 (C.A. 7, 1960), cited with approval in N.L.R.B.
v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A.
7, 1964).]
It must be remembered, in this connection, that the
question involved [a finding of discrimination I is a pure
question of fact; that, in passing upon it, the Board may
give consideration to circumstantial evidence as well as
to that which is direct; that direct evidence of a purpose
to violate the statute is rarely obtainable; and that
where the finding of the Board is supported by
circumstances from which the conclusion of discrimi-
natory discharge may legitimately be drawn, it is
binding upon the courts, as they are without power to
find facts or to substitute their judgment for that of the
Board. [Hartsell Mills Co. v. N.L.R.B., III F.2d 291,
293 (C.A. 4, 1940).]
Applying the above discussed principles to the facts
relating to the Kopis discharge, I am compelled to
conclude that this employee's union activities played a
substantial part in the motivation for her discharge, and
therefore the termination violated Section 8(a)(1) and (3) of
the Act.
Thus the record reveals Kopis had an excellent atten-
dance record and prior to her involvement in union activity
her periodic absences had been excused when she ex-
plained the reasons for the absences, despite the fact that
she offered no doctor's certificate to prove illness. More-
over, the absenteeism policy adopted by Respondent on
July 7, 1976, specifically states, inter alia, "Your immediate
supervisor will have the responsibility of determining if
your absence is to be excused based upon your reasons.
The Company reserves the right to require evidence of your
excuse, including a Doctor's certificate, ifyou visit a Doctor. "
(Emphasis supplied.) While Kopis credibly testified she did
not go to a doctor in connection with her late August
absences since she obtained needed medication from her
2~ The requirement was imposed despite the fact that Coulter testified
Kopis told him she had not gone to the doctor.
23 Kopis credibly testified that Coulter told her she was fired when she
sister, Respondent offered no evidence which would reveal
it had reason to believe she did not have an ear infection as
she claimed. Instead, contrary to its stated policy, the
employee was arbitrarily asked to produce a doctor's
certificate to prove the absences were legitimate.2 2 When
she indicated she had no doctor's certificate, she was
immediately terminated.2 3
The summarized facts which reveal Respondent's actions
in connection with the Kopis termination show that
Respondent treated this employee differently on the
occasion of her August absences from the way it had
treated her prior to her involvement in the Union.
Additionally, they reveal it failed to follow its written
absenteeism policy to determine whether her August
absences were excused or unexcused. In view of the fact
that Coulter told her immediately prior to the absences in
question that her union activities had caused hard feelings
against her and he would like to have her quit, I infer that
she was asked to do that which was impossible in the
circumstances on September 1 - produce a doctor's
certificate - because her union activities rather than her
work performance or her attendance record had rendered
her an undesirable employee. While it is true that
participation in union activities does not insulate an
employee from discharge for cause, it is equally true that if
part of the motivation for the discharge of a union
adherent is the union activities of the employee, the
discharge is unlawful. I find that Respondent was motiva-
ted, at least in part, to terminate Carol Kopis by its
displeasure with the fact that she had tried to unionize the
Company and, accordingly, find that by discharging her on
September 1, 1976, it violated Section 8(a)(1) and (3) of the
Act as alleged.
IV. THE REPRESENTATION CASE
The following objections were consolidated for hearing
with the complaint cases:
Objection No. 2:
Prior to the election on August 20, 1976, the
Comnpany threatened that it would not agree to
any contract with the Union and that a strike
would be necessary if the Union was voted in.
Objection No. 3:
The conduct of the Company enumerated above
was blatantly unfair and willful conduct which
affected the results of the election by destroying
the laboratory conditions of the election and
influencing the voters in favor of the Company.
Objection No. 4:
Conduct disclosed by the investigation but not
alleged as objections.
The evidence offered to prove Objections 2 and 3 was
evidence which related to the July 30 meetings Shattuck
held with employees. As previously indicated in the section
of this Decision entitled "The alleged 8(aX I) conduct" I
find the evidence offered was insufficient to prove that
came to work on September I and that Chambers confirmed the action and
told her to leave immediately at or about 10:30 a.m.
462
HAN-DEE PAK, INC.
Shattuck threatened to prolong negotiations for a year if
the Union was selected by the employees. I further finmd
that no evidence has been offered to prove the objection
allegation that "Prior to the election on August 20, 1976,
the Company threatened that it would not agree to any
contract with the Union and that a strike would be
necessary if the Union was voted in." Accordingly, I
recommend that Objection 2 be overruled. Since Objection
3 is based on Objection 2, I recommend that it be overruled
also.
Remaining is Objection 4. While the objection is
sufficiently broad to cover any conduct engaged in by
Respondent during the period July 8, 1976 (date petition
was filed), to August 20, 1976 (date election was held),
Respondent contends this objection should be overruled as
General Counsel contended at the hearing that the
objection was coextensive with paragraph 7 of the original
complaint and that allegation was deleted from the
complaint on General Counsel's motion at the conclusion
of his case. I conclude that Respondent's contention is
without merit. Objection 4, which embraces any objection-
al conduct occurring during the pertinent period, has not
been withdrawn. Moreover, I would arguably be required
to consider the impact of the unfair labor practices found
herein upon the employees in the absence of any objection
whatsoever.24 Accordingly, Objection 4 is considered
below.
In the instant case, I have found that Respondent
violated Section 8(aX1) of the Act during the pertinent
period by engaging in unlawful interrogation and uttering
unlawful threats and by creating the impression that the
union activities of employees were under surveillance.
Additionally, I have found that on August 5, 1976, it
terminated Evelyn Smith in violation of Section 8(aX)() and
(3). I find that this conduct interfered with a free and
untrammeled choice of the employees in the election and
recommend that Objection 4 be sustained and that the
results of the August 20, 1976, election be set aside.
v. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the 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 disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
24 See Monroe Tube Conmany, Inc., 220 NLRB 302, 305 (1975), where the
Board held:
"IW e find that matters litigated in a complaint case which is
consolidated with a representation case can form a basis for setting
aside the election even though those matters were not raised by the
objections.
3. Respondent violated Section 8(a)(l) of the Act by
interrogating an employee concerning her union activities;
threatening employees with plant closing and loss of the
right to discuss grievances directly with management if
they selected a union to represent them; coercing employ-
ees by stating it did not need employees involved in a
union and they should leave and that the leader should
report to the office in 24 hours; threatening an employee
with discharge because she had signed a union card; and
coercing employees by creating the impression that their
union activities were under surveillance.
4. Respondent violated Section 8(aXI) and (3) of the
Act by discharging Evelyn Smith and Carol Kopis because
of their union activities.
5. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
6. Respondent has not committed any other unfair
labor practices alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(aX)() and (3) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Objection 4 to the election in Case
10-RC-10770 is to be sustained, I shall recommend that
the election held on August 20, 1976, be set aside and that
the case be remanded to the Regional Director for Region
10 for the purpose of conducting a new election.
Respondent will be required to offer Evelyn Smith and
Carol Kopis reinstatement to their former positions of
employment or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dismissing, if
necessary, anyone who may have been hired to perform the
work which they had been performing. Additionally,
Respondent will be ordered to make these employees
whole for any loss of earnings they may have suffered by
reason of their unlawful termination, with backpay to be
computed on a quarterly basis, making deductions for
interim earnings, and with interest to be paid at the rate of
6 percent per annum. F. W. Woolworth Conpany, 90 NLRB
289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716
(1962), enforcement denied on different grounds 322 F.2d
913 (C.A. 9, 1963).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER25
The Respondent, Han-Dee Pak, Inc., Doraville, Georgia,
its officers, agents, successors, and assigns, shall:
25 In the event no exceptions are filed as provided in 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 he
deemed waived for all purposes.
463
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities and sentiments.
(b) Threatening employees with discharge, plant closing,
or other reprisals (including loss of their statutory right to
discuss grievances directly with management) if they select
a union to represent them or engage in activities on behalf
of a union.
(c) Coercing employees by asking them to leave or report
to the office because of their union activities or sentiments.
(d) Creating the impression that the union activities of
employees are under surveillance to discourage member-
ship in or activities on behalf of a union.
(e) Discouraging membership in or activities on behalf of
Teamsters Local Union No. 728, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Independent, or
any other labor organization of its employees, by discharg-
ing employees because of their activities on behalf thereof
or otherwise discriminating in regard to the hire or tenure
of employment or any terms or conditions of employment
of its employees.
(f) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act, or to
refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Evelyn Smith and Carol Kopis immediate and
full reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights previously enjoyed, and make them whole for any
loss of pay due to the violation against them in accordance
with the manner set forth in "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, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its place of business in Doraville, Georgia,
copies of the attached notice marked "Appendix."2 6
Copies of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent, shall be posted by it 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.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated complaint
be, and it hereby is, dismissed insofar as it alleges unfair
labor practices not specifically found herein.
IT IS FURTHER ORDERED that the election held in Case 10-
RC-10770 be, and it hereby is, set aside and that case be
remanded to the Regional Director for Region 10 for the
purpose of conducting a new election in the appropriate
unit at such time as he deems the circumstances permit the
free choice of a bargaining representative.
26 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate employees concerning their
union activities and sentiments.
WE WILL NOT threaten employees with discharge,
plant closing, or other reprisals (including loss of their
statutory right to discuss grievances directly with
management) because they select a union as their
bargaining agent or engage in union activities.
WE WILL NOT coerce our employees by asking them
to leave or report to the office because of their union
activities or sentiments.
WE WILL NOT create the impression that the union
activities of our employees are under surveillance to
discourage membership in or activities on behalf of a
union.
WE WILL NOT discourage membership in or activities
on behalf of Teamsters Local Union No. 728, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Independent, or any other labor organization, by
discharging employees because of their activities on
behalf of a union or otherwise discriminate in regard to
the hire or tenure of employment or any terms or
conditions of employment of our employees.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through represen-
tatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act, or to refrain from
any or all such activities.
464
HAN-DEE PAK, INC.
WE WILL offer Evelyn Smith and Carol Kopis
immediate and full reinstatement to their former jobs
or, if such positions no longer exist, to substantially
equivalent positions of employment, without prejudice
to their seniority or other rights and WE WILL make
them whole for any loss of pay they may have suffered
by reason of our discrimination against them.
HAN-DEE PAK, INC.
465