Ideal Macaroni Co.

National Labor Relations Board - Board Decisions

Jan 31, 1991

301 N.L.R.B. 507 (N.L.R.B. 1991)

507
301 NLRB No. 73
IDEAL MACARONI CO.
1 On November 2, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. Accordingly, the caption has been amended.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing the findings.
3 In the absence of exceptions, we adopt pro forma the judge’s dismissal of
the 8(a)(1) allegation regarding the conversation between the Respondent’s
chief executive officer and employee Johnson.
4 The judge erroneously listed the date of this speech as March 16.
5 The court of appeals’ decision in Alumina Ceramics, 690 F.2d 136 (8th
Cir. 1982), cited by the judge, is easily distinguishable. The court enforced
that portion of the Board’s decision, Alumina Ceramics, 257 NLRB 784
(1981), finding that the respondent had granted employee Sledd a benefit to
influence his opinion of the union and the company. The respondent cosigned
a loan that the respondent’s president arranged for Sledd at a bank—something
it had never done before. The instant case does not involve any action by the
Respondent that was inconsistent with past practice.
Ideal Macaroni Company and Teamsters Local No.
407, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO.1 Cases 8–CA–
19186 and 8–RC–13426
January 31, 1991
DECISION, ORDER, AND DIRECTION
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On February 24, 1988, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The General Counsel and the Respondent filed excep-
tions and supporting briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 only to the extent consistent with this Deci-
sion and Order.
A. The 8(a)(1) Allegations
1. We adopt the judge’s findings that the Respond-
ent violated Section 8(a)(1) by more stringent enforce-
ment of its dress code and by announcing and posting
a restrictive no-distribution policy.
2. The Respondent has excepted to the judge’s con-
clusion that the Respondent’s president, Ippolito, vio-
lated the Act by mentioning in a speech to employees
that he had given interest-free loans to some employ-
ees. In addressing this allegation, the judge stated that
‘‘[t]he General Counsel contends that although such
loans had evidently been made in the past’’ the state-
ment violated Section 8(a)(1) by virtue of its timing.
The judge agreed with the General Counsel, with the
citation ‘‘[S]ee NLRB v. Alumina Ceramics, Inc., 690
F.2d 136 (8th Cir. 1982).’’ We find merit in the Re-
spondent’s exception.
During the campaign, Ippolito gave four speeches to
employees, including the May 164 speech at issue. In
that speech, Ippolito stated that, ‘‘some of you—espe-
cially those who have not been with us very long—
may not be aware of all this company does for you
today.’’ The speech then detailed various benefits, in-
cluding the company-paid life insurance; the company-
paid health, accident, and disability insurance, includ-
ing the full cost of family medical coverage; the com-
pany-paid pension plan; the company-paid profit-shar-
ing plan; paid holidays and vacations; the Company’s
attendance bonus; and wages, including Christmas bo-
nuses and yearly wage increases. Ippolito continued:
There are probably some other little things that I
have forgotten, like the Christmas luncheon, the
birthday cakes, the company-paid uniforms, and
even the no-interest loans that I have given to
some of you over the years, but I do not think
every detail of that is important. I think what I am
really trying to say today is that Ideal Macaroni
has honestly tried hard to be a good company to
work for.
There is no dispute that Ippolito had in fact granted
interest-free loans to various employees over the years,
usually for automobile-related purposes, and that sev-
eral long-term employees were aware of the fact that
others had received such loans.
The Board has recently reiterated that ‘‘prohibiting
an employer from publicizing existing benefits merely
because employees had not previously been made
aware of such benefits would deprive the employer of
a legitimate campaign strategy . . . .’’ Weather Shield
of Connecticut, 300 NLRB 93, 97 (1990); Scotts IGA
Foodliner, 223 NLRB 394 (1976), enfd. mem. 549
F.2d 805 (7th Cir. 1977). Because the Respondent was
referring to existing benefits, rather than granting or
announcing new benefits, that reference does not in
itself violate the Act.5 Accordingly, we shall dismiss
this allegation of the complaint.
B. The Warning Notices
The judge concluded that the Respondent violated
Section 8(a)(3) and (1) by issuing warning notices on
March 18, 1986, to employees Janet Gage and Dawn
Tyree for absence and tardiness, and by issuing a
warning notice on the same date to employee Elizabeth
Tyczynski for poor job performance. We disagree.
1. In assessing the warnings given to Gage and
Tyree for tardiness and absence, the judge reviewed
their attendance records. He found that Gage’s attend-
ance record showed that she was off sick on March 7,
February 20, and on two dates in January, and that
Tyree’s record revealed ‘‘sick’’ absences 5 days in
February and 2 days in late January. The judge com-
pared those records with those of two other employees
who also received warnings. The judge noted that em-
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The judge apparently misconstrued the testimony to indicate that Hunter’s
timecard was reviewed on the same day as those of Gage and Tyree, which
would not have been consistent.
7 The warning notices to Gage, Tyree, and Barnes all cited both ‘‘absence’’
and ‘‘tardiness.’’ The judge’s analysis, however, addressed only full days out
marked as ‘‘sick.’’
ployee Barnes was sick on 3 days each in January and
February and 2 days in March and that employee Jean-
nie Bussy received a first warning on January 1 after
she was sick and took a leave of absence during late
December 1985.
The judge observed that the attendance warnings
given to Gage and Tyree ‘‘could be found to be sup-
ported by valid indications of excessive use of sick
leave, however, most of the infractions were in January
and February . . . .’’ From the timing of the warn-
ings, which he placed ‘‘in late March,’’ the judge in-
ferred that the union organizing campaign was a moti-
vating factor because the warnings were issued after
the employees had worn union T-shirts. The judge then
found that Plant Manager Sarkissian ‘‘did not provide
a plausible explanation’’ for his method of selection of
attendance cards for review, because the judge per-
ceived an inconsistency between his testimony and the
actual cards selected. As he found animus elsewhere in
his decision, the judge accordingly concluded that the
warnings were unlawful. We do not agree.
Initially, we note, contrary to the judge, that the
record does not show the inconsistency that the judge
perceived between Sarkissian’s method of selecting
timecards for review and the results.6 The cards were
placed in stacks in the office, arranged by department
and seniority. Sarkissian’s usual practice was to pick
up several cards and go through them when he had the
opportunity.
We do not agree with the judge’s apparent inference
of disparate treatment based on his description of the
attendance records. The judge was correct in finding
that Gage missed 2 full days in January, 1 in February,
and March 7. But in addition she was out on March
12 (a date not noted by the judge) and, in the pre-
ceding 3 months, had missed partial days on seven
more occasions not mentioned by the judge.7 The
judge correctly noted that Tyree missed 2 full days in
January and 5 full days in February. She was also out
2 full days and 3 partial days in December, and an ad-
ditional 9 partial days from January until her warning
on March 18. Employee Barnes, whom the judge com-
pared with Tyree, had been out 1 more day than Tyree
since January 1 (but the same number of full days
since December), and 1 less partial day than Tyree.
Tyree conceded that Sarkissian had previously told her
(prior to the advent of the union activity) that she was
missing too much time. Tyree’s warning was a first
notice with the comment ‘‘Please improve your attend-
ance’’ written at the bottom. Barnes’ warning, also
dated March 18, was a second notice which stated at
the bottom ‘‘You must make improvements or be dis-
missed.’’ Thus, Tyree and Barnes had almost identical
attendance records; each received a warning dated
March 18, a date on which each had an infraction. The
differences are that Tyree got a first warning asking
that she ‘‘Please improve’’ her attendance, and Barnes
received a more stringent second notice stating, ‘‘You
must make improvements or be dismissed.’’ Tyree’s
warning is alleged to be a violation. No such allegation
is made regarding the stricter second warning given to
Barnes. As to employee Bussy, we note that she re-
ceived a warning dated January 6, 1986 (not January
1 as stated by the judge), notwithstanding the facts that
she had fewer partial days off or latenesses (three) and
fewer full days off than either Tyree or Barnes, and
that Bussy’s warning notice itself acknowledged that 3
of those days off had been given to her as a leave of
absence. Bussy’s warning occurred prior to the advent
of union activity and is not alleged as a violation.
Contrary to the judge, we conclude that a compari-
son of the warnings given to Gage and Tyree with
those given to Barnes and Bussy does not support a
finding that Gage’s and Tyree’s were discriminatory.
Indeed, if there is any distinction to be drawn in com-
paring their circumstances, it is that both Bussy and
Barnes, whose warnings are not alleged to be unlawful,
received more stringent treatment than did either Gage
or Tyree. We conclude that even in the absence of
antiunion animus, the Respondent would have given
Gage and Tyree warnings for tardiness or absence. Ac-
cordingly, we shall dismiss those allegations.
2. The Respondent has excepted to the judge’s find-
ing that a warning given to Elizabeth Tyczynski on
March 18 for failing to weigh lasagna violated Section
8(a)(3). We find merit in the exception.
The Respondent’s product is packaged by weight.
Thus, packages that do not contain the listed weight
may be expected to create difficulties with customers,
while packages containing excess amounts may in-
crease the Respondent’s costs. For this reason, employ-
ees packaging lasagna are required to weigh each
quantity they pack. Tyczynski was one such employee.
The judge’s discussion of the alleged violation is
somewhat abbreviated. He considered Tyczynski’s tes-
timony that she did not deserve the warning. He noted
that she had previously been told to button up her uni-
form smock to cover a union T-shirt, which he found
to be a violation. He concluded that she was warned
for a ‘‘single apparent [sic] minor infraction of work
practices,’’ and inferred that the warning would not
have occurred were it not for the union organizing
campaign.
The judge referred to the testimony of Plant Man-
ager Sarkissian, who stated that he gave Tyczynski the
March 18 warning for not doing her job properly, after
watching her continuously for 5 minutes and observing
509IDEAL MACACRONI CO.
8 Contrary to our colleague’s dissent, the Respondent’s requirement of accu-
racy as to the amount of its product in a box that is sold by weight (i.e., qual-
ity control) is, in our view, in ‘‘furtherance of an established policy.’’ Further,
as noted above, there is no showing of disparate treatment, or indeed that any-
one other than Tyczynski failed to weigh the lasagna properly before it was
put into boxes.
9 Member Cracraft would affirm the judge’s finding that Tyczynski’s March
18 warning violated Sec. 8(a)(3). The General Counsel presented a prima facie
case based on Tyczynski’s union activities, the Respondent’s knowledge of
those activities, the Respondent’s antiunion animus demonstrated during this
period and the timing of the warning. Contrary to her colleagues, Member
Cracraft does not agree that the Respondent has rebutted the General Coun-
sel’s prima facie case. Unlike the situations presented with regard to Gage and
Tyree’s warnings, the Respondent has not established that the warning to
Tyczynski was in furtherance of an established policy or in accord with any
past practice. Rather, there is no evidence that any employee had ever been
disciplined for failing to weigh every box of lasagna. Thus, she would find
a violation.
10 The Respondent’s pasta business comprises three separate product lines:
Long goods (e.g., spaghetti and linguini); short goods (e.g., elbow macaroni
and rigatoni); and lasagna.
11 Total monthly hours worked in the packing department, as pertinent here,
were as follows: August 1985, 1042 hours; September, 1194; October, 1709;
November, 2788 (5-week total); December, 2187; January 1986, 2254; Feb-
ruary, 1999; March, 1963; April, 1607; May, 1967 (for 5 weeks); June, 1627;
July, 1140 (for 3 weeks).
12 251 NLRB 1083 (1980).
that she did not weigh every quantity of lasagna she
packed, as was required. Instead, according to
Sarkissian, whose testimony was not discredited,
Tyczynski skipped weighing some of the lasagna she
boxed. Sarkissian testified, however, that the employee
on the other side of the conveyor from Tyczynski, who
was also weighing and boxing lasagna, was keeping up
well.
Tyczynski did not dispute that she was guilty of the
infraction for which she was warned. Indeed, she ad-
mitted in her testimony that this was not the first time
she had been told her work was substandard. Her ex-
cuse, according to Sarkissian, was that the lasagna was
‘‘bad,’’ that it was hard to get the lasagna off the belt,
and that it stuck to her fingers. Sarkissian testified
without contradiction, however, that the lasagna could
not be ‘‘bad’’ for all of the 5 minutes he was watching
Tyczynski’s work.
In our opinion the infraction was by no means
‘‘minor,’’ as Tyczynski’s failure to weigh each box of
lasagna could have impinged directly on customer sat-
isfaction and the Respondent’s profitability. Further,
Tyczynski’s failure to weigh the lasagna was not lim-
ited to an isolated box. She was observed over a 5-
minute period weighing boxes only intermittently and
Tyczynski herself admitted that she previously had
been cautioned about substandard work. The General
Counsel did not contend, nor did the judge find, that
the Respondent deviated from its usual disciplinary
procedures, and there is no direct evidence of disparate
treatment in Tyczynski’s case. In these circumstances,
we are persuaded that that warning was justified. Thus,
we conclude that, even in the absence of antiunion ani-
mus, the Respondent would have given Tyczynski the
warning.8 Accordingly, we shall dismiss this allega-
tion.9
C. The Layoffs
The judge found that on March 31 the Respondent
laid off employees Gage, Tyree, and Lillian Nash for
their union activities. He rejected the Respondent’s de-
fense that there were valid business reasons for the
layoffs. We are persuaded, however, by the Respond-
ent’s explanation for the layoffs that the three alleged
discriminatees would have been laid off even in the
absence of their union activity.
As noted by the judge, the Respondent began a
modernization program in 1984. This involved the in-
stallation of additional production capacity for long
goods and new packaging equipment for short goods.10
New, state-of-the-art, long-goods packaging equipment
was ordered and installed in 1985, but was plagued
with operational problems. As a consequence of these
problems and of the Respondent’s embarking on a pro-
motional campaign for lasagna in the fall of 1985,
which resulted in a large influx of orders, the Re-
spondent hired more workers. The number of employ-
ees in the packing department more than doubled in
the fall of 1985, and employee work-hours in the pack-
ing department increased dramatically from September
through October and November. With the end of the
lasagna promotional campaign, and a concomitant fall-
ing off in orders, and with the elimination of some of
the operational problems involving the long-goods
packaging equipment, employee work hours declined
in December. The hours leveled off in January, but
then dropped again in February and March and de-
clined substantially in April.11
Gage, Tyree, and Nash were hired by the Respond-
ent at the end of October, during the period the Re-
spondent was increasing its work force in the pack-
aging department. On March 31, when they were laid
off, they were the junior employees in the packaging
department. The judge credited the testimony of Gage
and Nash that at the end of the day on Monday, March
31, Sarkissian told them that ‘‘Due to lack of needs of
the company, they [were] being laid off,’’ ‘‘solely on
the basis of seniority.’’ Sarkissian explained that the
company had ‘‘hired too many people and none had
quit as was usually the case,’’ so Gage and Nash
would have to be laid off. Sarkissian advised them,
however, that although they were not entitled to a va-
cation because they had not worked the required 6
months, they would receive 1 week of vacation pay.
Because Tyree was not at work at the time, the Re-
spondent sent her a telex, which she received April 1,
advising her that she was laid off.
The judge concluded that the General Counsel had
made a prima facie showing under Wright Line12 that
the layoffs were discriminatory. He then rejected the
Respondent’s principal defense that it had valid busi-
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 The machine was designed to be operated by only two employees. To an-
ticipate continued, occasional problems after the major operational difficulties
were remedied, however, the Respondent continued to use three employees
rather than two.
14 The judge relied on his determination that employee packing hours in-
creased in May over the March levels. His analysis is flawed, however. Al-
though the figures cited by the judge for May were 4 hours more than those
recited for March, the judge’s analysis did not consider the fact that the May
figures were for 5 weeks rather than March’s 4 weeks. The record discloses
that no 4-week period in May reflects as many hours as the 4 weeks listed
for April or the 4-week totals in March.
15 Having found that the layoff was based on legitimate business consider-
ations related in large part to a permanent change in the automated equipment
ness reasons for the layoff. In so doing, the judge re-
fused to accept the Respondent’s explanation for the
layoffs—that it had determined that the number of em-
ployees would have to be reduced by the end of the
first quarter. The judge was not persuaded that the Re-
spondent’s packing statistics supported the assertion of
valid business reasons for the layoffs. He opined that
the decrease in April production and packing, which
Respondent had attributed to the end of its promotional
campaign for lasagna, ‘‘demonstrates merely that Re-
spondent failed to make any new or additional pro-
motional efforts, a matter under its control . . . .’’ He
also relied on the fact that the Respondent did not tell
the several employees hired in the fall of 1985 that
they were being brought on as temporary employees,
but were informed that the Company had never had
layoffs. Although acknowledging that it was ‘‘likely
that some layoffs would occur’’ at a future time, the
judge concluded that the Respondent had failed to
show that the decision to lay off the three employees
at the end of March was based on specific, meaningful
business factors. Noting that the Respondent did not
have an established layoff-selection policy, the judge
also intimated that the Respondent should have used
some basis other than strict seniority for laying off em-
ployees.
We find merit in the Respondent’s contention that
the layoff was justified by business reasons. Examina-
tion of the undisputed sales and packing figures for
1985 and 1986, not discussed by the judge, support the
Respondent’s defense. First, the total sales and packing
of bulk ‘‘long goods,’’ which was labor intensive inso-
far as packing was concerned, declined by approxi-
mately one-third from 1985 to 1986 inclusive. Second,
beginning in January 1986, new state-of-the-art long-
goods packaging machinery, known as ‘‘Fast
Freddie,’’ accounted for packing 72 percent of the Re-
spondent’s retail long-goods production. The record
shows that ‘‘Fast Freddie’’ had a substantial impact on
Respondent’s manpower needs. Fast Freddie operated
at a rate of 80 boxes per minute as opposed to the ap-
proximately 55 to 60 boxes per minute packed under
the old system. That considerable increase in packing
speed was achieved with the additional benefit that it
required fewer employees. The Fast Freddie packaging
line needed only three employees,13 rather than the six
or seven employees required for the old packaging
line. Thus, although total long-goods production actu-
ally increased slightly, fewer employees were required
to package more goods. Due to the purchase and in-
stallation of additional automated machinery in 1985,
the Respondent also experienced a considerable shift in
packaging short-goods from boxes to cellophane bags,
thus permitting it to employ fewer employees to pack-
age short goods at faster rates.
Finally, although not discussed by the judge, we rely
on the fact that three additional employees in the pack-
ing department were laid off in 1986, prior to the hear-
ing in this proceeding. Those additional layoffs are not
alleged to be unlawful. These additional layoffs tend to
substantiate the Respondent’s contention that it needed
fewer employees to maintain its production levels.
We do not agree with the judge’s suggestion that the
Respondent was responsible for the decline in produc-
tion because it did not make additional promotional ef-
forts in early 1986. We are unwilling to substitute our
business judgment for that of the Respondent in as-
sessing what, if any, additional promotional efforts the
Respondent might undertake in the conduct of its busi-
ness. Further, we reject any implication that the Re-
spondent somehow engineered the reduction in work
hours to coincide with the union campaign, with a
view to eliminating active union adherents by laying
them off. The evidence shows that the need for fewer
packers—which had begun before the start of the
union campaign—continued for the next several
months.14
We also reject the judge’s implication that the Re-
spondent should have relied on some other basis for
the layoffs than strict seniority. Seniority was widely
used in the plant. For example, the record shows that
overtime was offered to employees on the basis of
their seniority. Seniority was also the basis for selec-
tion of the floor leader during the sudden, albeit short-
lived, expansion in the number of employees in the
packing department. Finally, we disagree with the
weight the judge gave to the fact that the new employ-
ees hired in October 1985 were not told, at the time,
that they were being hired as temporary employees,
but rather were informed that the company had not had
layoffs. We do not find this of much importance in de-
ciding whether these employees’ services were re-
quired about 5 months after they were hired, and in
admittedly different circumstances.
We conclude, contrary to the judge, that the Re-
spondent’s layoff of Gage, Tyree, and Nash was not
unlawful.
D. The Challenged Ballots15
1. In the representation election in Case 8–RC–
13426 the Board agent challenged Gage, Tyree, and
511IDEAL MACACRONI CO.
at the plant, Member Cracraft would sustain the challenges to the ballots of
the laid-off employees. Although the statements made to each of the employ-
ees on the occasion of their layoffs were vague as to when and if these em-
ployees were to be recalled, they do not, in light of other evidence presented,
support a finding that the layoffs were temporary. Rather, the Respondent has
established on the basis of the surrounding objective facts (those which are
relied on in reversing the judge’s finding that the layoffs were not discrimina-
tory), that there is not a reasonable expectancy of recall. In this regard, she
notes that the changes at the facility which necessitated the layoff were not
the types of changes that are reflective of fluctuations in the workload which
would support a finding that employees could reasonably expect that the work-
load would increase and employees would thus be recalled.
16 The judge inadvertently stated that the Employer challenged them.
17 House of Mosaics, 215 NLRB 704, 712–713 (1974).
18 We note that on April 15, 1986, the Petitioner and the Respondent Em-
ployer entered into a stipulation, attached to the Stipulation for Certification
upon Consent Election, that neither Pepus nor employee John Puskar had any
supervisory authority, as enumerated in Sec. 2(11) of the Act. The parties fur-
ther stipulated that neither would, by challenge or otherwise, raise any super-
visory eligibility issues, absent a substantial and material change in the duties
and responsibilities of Pepus and Puskar occurring after the execution of the
agreement. Because we find that Pepus is not a supervisor, we find it unneces-
sary to pass on the question of whether the stipulation is binding in this pro-
ceeding.
Nash, whose names were not on the eligibility list.16
We have reversed the judge’s finding that these three
employees were unlawfully laid off.
Alternatively, the judge found that at the time of the
election the three employees had a reasonable expecta-
tion of reemployment within the foreseeable future,
and that their ballots should accordingly be opened and
counted. He found that the three employees were not
told when they were hired the previous October that
they were temporary employees, and that at the time
of the layoff they were not specifically told that the
layoff was permanent. Rather, they were told ‘‘some-
what vaguely’’ that recall could be in days, weeks, or
months. The judge also noted that under the Respond-
ent’s recall policy the three employees had an apparent
right to recall equivalent to the time already worked
for the company, in this case approximately 5 months.
The election was conducted approximately 2 months
after the layoff. On these facts, and in agreement with
the judge’s alternative finding, we find that the three
employees had a reasonable expectancy of recall. Ac-
cordingly, we shall direct that their ballots be opened
and counted.
2. The Charging Party challenged Hope Pepus on
the basis that she was a supervisor. Pepus was hired
as a packer in 1972, and was named floor leader in the
fall of 1985. Her job involved assisting Packing Fore-
man Seaman, particularly in training the influx of new
employees hired during October. Job assignments to
the employees were made by Foreman Seaman. Pepus
generally assisted in training new employees, in reliev-
ing other employees on the packing lines for
breaktimes, and in checking the weight sheets and
packing tickets. None of these duties is supervisory.
The judge nonetheless concluded that Pepus was a
supervisor. He relied on what he characterized as her
other ‘‘apparent duties’’ including, among other things,
signing warning slips, asking employees to work over-
time, and giving employees permission to leave early.
The record is to the contrary. It is true that Pepus on
three or four occasions was asked to sign a warning
slip as a witness. The record discloses, however, that
nonsupervisory clerical employees also witnessed
warning slips. The determination of whether overtime
would be worked was made by Sarkissian and Fore-
man Seaman. Pepus then simply asked the employees
if they wished to work overtime, in the order of their
seniority. If no one wanted to work overtime, Pepus
reported that fact to Seaman or Sarkissian, who would
then determine how to proceed. The record also shows
that Pepus merely acted as a conduit for transmitting
to supervision requests to leave early. She did not au-
thorize such leave. Although Pepus’ hourly pay in-
creased slightly when she became floor leader, she
continued to wear the same nonsupervisory uniform,
use the same locker, and punch the timeclock. She also
continued to enjoy the same benefits as other hourly
nonsupervisory employees, which were different from
the benefits provided to supervisory employees. She
did not attend, nor was she asked to attend, any of the
regular management meetings.
Shortly after the layoffs at the end of March, Pepus
requested that she be removed from the floor leader
position because she did not ‘‘have the authority to tell
the girls what to do’’ and they did not listen to her.
About a week later, Sarkissian told her she did not
have to worry about being the floor leader any more.
We find, contrary to the judge, that Pepus was a
senior employee and skilled worker whose position as
floor leader did not involve supervisory responsibilities
within the meaning of Section 2(11) of the Act.17 Ac-
cordingly, we overrule the challenge to Pepus’ ballot,
and we shall direct that her ballot be opened and
counted.18
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. By more strictly interpreting and enforcing its
dress code to require the covering or removal of union
T-shirts and by announcing and posting a rule restrict-
ing the distribution or posting of notices the Respond-
ent violated Section 8(a)(1) of the Act.’’
Delete the judge’s Conclusions of Law 4, 5, and 6,
and renumber Conclusion of Law 7.
ORDER
The Respondent, Ideal Macaroni Company, Bedford
Heights, Ohio, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing its em-
ployees in the exercise of Section 7 rights by announc-
ing and posting a more restrictive policy concerning
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
1 All following dates will be in 1986 unless otherwise indicated.
2 At the close of the General Counsels presentation this issue was dismissed
in response to Respondent’s motion.
the bringing in or posting of notices or by more strictly
interpreting or enforcing its dress code.
(b) In any like or related matter interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Bedford Heights, Ohio facility and
mail to all employees who were working or on layoff
status on May 21, 1986, copies of the attached notice
marked ‘‘Appendix.’’19 Copies of the notice, on forms
provided by the Regional Director for Region 8, after
being signed by the Respondent’s representative, shall
be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
DIRECTION
It is directed that Case 8–RC–13426 is severed from
this proceeding and remanded to the Regional Director
for Region 8, who shall, within 14 days from the date
of this Decision, Order, and Direction, open and count
the ballots of Hope Pepus, Janet Gage, Dawn Tyree,
and Lillie Nash. The Regional Director shall then serve
on the parties a revised tally of ballots and issue the
appropriate certification.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed them in
Section 7 of the Act by announcing rules that restrict
the bringing in or posting of notices or by more strictly
interpreting or enforcing our dress code because of our
employees’ activities in pursuit of union affiliation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
IDEAL MACARONI COMPANY
Mark F. Neubecker, Esq. , for the General Counsel.
Andrew C. Meyer, Esq., of Cleveland, Ohio, for the Re-
spondent.
Peter A. Joy, Esq., of Cleveland, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
These consolidated cases were heard in Cleveland, Ohio, on
15 through 18 December 1986. Subsequently, briefs were
filed by all the parties. The proceedings are based on a
charge filed 27 May 1986,1 by Teamsters Local No. 407 a/w
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO. The Regional
Director’s complaint dated 11 July alleges that Respondent
Ideal Macaroni Company of Bedford Heights, Ohio, violated
Section 8(a)(1) and (3) of the National Labor Relations Act
by announcing to employees that interest-free loans were
being made available; by stating that working conditions,
benefits, and its seniority system would be improved;2 by in-
terrogating an employee as to his union activity and prom-
ising a benefit to discourage the activity; by requiring em-
ployees to cover or remove T-shirts indicating employees’
union sympathies; by promulgating a rule restricting the
posting of written materials without obtaining prior approval
from Respondent; and by issuing written warnings to and
laying off named employees.
Subsequent to an election on 21 May and the challenge of
ballots by both parties, the Regional Director determined that
‘‘a substantial factual and legal issue was presented by the
four challenged ballots which should be resolved at an evi-
dentiary hearing’’ and the matter was consolidated with this
complaint proceeding.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
513IDEAL MACACRONI CO.
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Ohio corporation engaged in the manu-
facture and distribution of macaroni and other pasta products.
It annually purchases and receives goods valued in excess of
$50,000 directly from points outside Ohio and it admits that
at all times material it has been an employer engaged in op-
erations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also admits that the Union
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
Respondent, a family owned business, was purchased in
1969 by American Special Foods, Inc. (ASF), a holding
company that also owns three other food processing compa-
nies, Weiss Noodle Company, Roll-ups Inc., and DeMarco
Frozen Foods, all located in northeastern Ohio. Certain em-
ployees of Weiss Noodle Company and Roll-ups are rep-
resented for purposes of collective bargaining by United
Food and Commercial Workers Union, Local 880.
James Price is president of Special Foods, he is chairman
and president of Weiss Noodle and acts as its general man-
ager, and he is also an officer in each of the four food proc-
essing companies and a member of the Special Foods board
of directors. In his capacity as an executive officer Price is
involved in establishing labor policy at each of the four food
processing companies, and in representing the financial inter-
est of the parent company, and in approving all major acqui-
sitions of equipment.
Pat Ippolito, a family member of the founding past own-
ers, is president of Respondent Ideal Macaroni and is respon-
sible for the day-to-day operation of the Company. Richard
Sarkissan is the plant manager in charge of all production,
packing, and maintenance activities at the plant. Iggy
Semean is foreman of the production and packing depart-
ments. In the fall of 1985 Hope Pepus was designated as
floor lady for the packing department and served in that ca-
pacity until sometime in April or May 1986.
Respondent’s pasta business is divided into three distinct
product lines, long goods (spaghetti, fettuccine, and linguini),
short goods (elbow macaroni, rigatoni, and mostacelli), and
lasagna. Historically, most business has been in long goods
products, but in recent years there has been a trend in the
marketplace toward short goods.
Ideal sells its products to retail customers, particularly su-
permarkets, where it faces competition for retail shelf space,
to industrial purchasers who utilize the pasta as an ingredient
in their own product line, and to institutional customers like
restaurants and hospitals. Respondent’s production depart-
ment at the Company, where the raw ingredients are mixed
and dried, operates on a three-shift, 24-hour-per-day basis.
Most packing is done during an 8-hour day shift, however,
since much of the production process is automated, produc-
tion employees are utilized to do some packing on the sec-
ond and third shifts. Other support departments (sanitation,
shipping, receiving) work staggered shifts of 8 to 9 hours.
The Company delivers about 10 percent of its product to its
customers, while the rest is picked up at the plant.
On 22 February Respondent’s employees attended a union
organizational meeting. Several employees signed authoriza-
tion cards at the time and an organizational drive was started.
Authorization cards and union materials were distributed at
work and several additional meetings were held, generally at-
tended by between 10 and 15 employees.
The Union filed an election petition on 18 March and an
election was held on 21 May. The tally of ballots shows that
15 votes were cast for the Union, 15 for the Respondent, and
4 ballots (those of Hope Pepus, Janet Gage, Lillie Nash, and
Dawn Tyree), were challenged. Prior to the election the
Company held several group meetings with its employees
and it engaged in certain conduct, discussed in detail below,
alleged to have interfered with the employees’ rights. It also
gave several employees disciplinary warnings and on 31
March it laid off several employees.
III. DISCUSSION
The issues in this case arise from the above-described
events which occurred during a union organization drive
among Respondent’s employees, the subsequent layoff of
three employees who were apparent union supporters and
election results which probably would favor the Union over
the Respondent by a close margin, if the ballots of the laid-
off employees were counted.
Respondent asserts that the employees were laid off prior
to the election for valid business reasons with no expectation
of recall and were therefore ineligible to vote. It also con-
tends that Pepus did not hold a supervisory position. It denys
engaging in any unfair labor practices and asserts proper
business reasons for the warnings and the layoffs.
A. Alleged 8(a)(1) Violations
Respondent’s president, Pat Ippolito, testified that he be-
came aware of the Union’s organizational drive about 6
March, by word of mouth. Thereafter, he gave four speeches
to the employees, including one on 16 March in which he
said he was going to talk about their fringe benefits and
shortly thereafter mentioned that he had given interest-free
loans to some employees. Employee Louis Brown had re-
ceived such a loan in the past, however, other employees in-
cluding Lamont McCannon were unaware that this benefit
was available until it was mentioned in the speech. A printed
statement of Respondent’s plant benefits, rules, and policy
signed by Ippolito does not mention loans of any sort. After
the speech and prior to the election McCannon sought and
received a $300 interest-free loan.
The General Counsel contends that although such loans
had evidently been made in the past, Respondent’s timing in
announcing this as a benefit was calculated to discourage
employees’ union activity, membership, and sympathy. Here,
I agree that the clear effect of such an announcement under
these circumstances is to discourage employees’ union activi-
ties and thereby violate Section 8(a)(1) as alleged, see NLRB
v. Alumina Ceramics, 690 F.2d 136 (8th Cir. 1982).
Respondent’s plant rules provide that employees are to ar-
rive ready for work with the correct uniform (issued at the
Company’s expense) clean and neat. Several employees testi-
fied that employees wore smocks with several buttons open,
however, Hope Pepus testified that it was company policy to
have smocks buttoned ‘‘all the way’’ for safety reasons so
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
they don’t get caught in machines. After the union campaign
was underway Vivian Martin wore a union T-shirt with the
top three buttons of her smock unbuttoned. The second day
she did so she was told by Pepus to button it all the way.
Employees Robert Vondrak, John Johnson, Lamont
McCannon, and Elizabeth Tyczynski all testified that the
dress code was not enforced prior to the union campaign but
that during March Ippolito and Manager Sarkissian told them
to button up their smocks or to cover up or remove the union
T-shirts they were then wearing. Two employees testified
they regularly had worn other type of lettered T-shirts with
partially unbuttoned smocks without admonition.
While it is clear that a dress code existed, it appears that
it was not enforced to the degree that the top several buttons
on employees’ smocks were required to be buttoned. The
more strict interpretation and enforcement coincided with the
employees’ wearing of union paraphernalia and I find that it
was done so in order to cover the union identified T-shirts
worn by several employees, and therefore infringes on em-
ployees’ Section 7 rights. Accordingly, I find that the Gen-
eral Counsel has established that Respondent acted unlaw-
fully as alleged in paragraph 7(c) of the complaint.
Vivian Martin testified that sometime after she wore her
union T-shirt on 6 March and before the May 21 election,
she distributed a union flyer to Hope Pepus at lunchtime.
Shortly thereafter Ippolito questioned Martin about who had
brought flyers into the building—who had put them in the
kitchen and on top of the candy machine. Ippolito then said,
‘‘He didn’t want them in there. That anything that was
brought in had to be cleared through the office before it was
brought in or posted.’’ He then posted a notice on the bul-
letin board which stating that nothing could be posted unless
it was cleared through the office. Martin and other employ-
ees were unaware of any prior rule to this effect and it is
not a rule listed with others in the printing rules distributed
to employees (G.C. Exh. 4). On brief Respondent implies
that the rule may have been a reissuance of prior company
policy that Martin was not familiar with, however, no evi-
dence of the existence of such a rule was presented. To the
contrary, General Counsel’s Exhibit 4 shows that the Com-
pany had printed rules that omitted any reference to such a
policy and, accordingly, I find that by announcing and post-
ing a restrictive policy immediately after discovering that
union flyers were being distributed, Respondent acted unlaw-
fully as alleged in paragraph 7(d) of the complaint.
Employee John Johnson, a 7-year employee, testified that
he wore his union T-shirt during the week preceding the 21
May election and that on 19 May Jim Price, Respondent’s
chief executive officer, spoke to Johnson privately in the
warehouse and asked him why he thought the Company
needed a union. Johnson then complained about not getting
a particular job which he felt entitled to by reason of his se-
niority and Price replied that if he was given a chance he
could straighten it out. Price testified that the conversation
had been initiated by Johnson and that he had replied he
would look into the situation.
Here, the Respondent’s conversational-type question stands
alone and otherwise there is no indication that it was made
under circumstances that would tend to restrain, coerce, or
interfere with employee rights guaranteed by the Act, see
Rossmore House, 269 NLRB 1176 (1984). I also find that
Price’s alleged promise of benefits is too ambiguous to sup-
port an inference that a promise is being made, especially in
view of the fact that Johnson admitted that Price otherwise
stated that he could make no promises. Accordingly, I find
that the record fails to support the allegations of paragraph
7(b) of the complaint and I conclude that Respondent is not
shown to have violated the Act in this respect.
B. Issuance of Written Warnings
On 18 March Respondent issued written warnings to em-
ployees Janet Gage, Dawn Tyree, and Elizabeth Tyczynski.
Gage testified that she attended union meetings, signed a
union authorization card, passed out union authorization
cards to other employees, and wore a union T-shirt to work
on two occasions in March. Plant Manager Sarkissian
worked alongside Gage while she was wearing her union T-
shirt on 6 March and Gage testified that floor lady Pepus
began to give her a difficult time after she wore her union
T-shirt, asking her questions such as why she was working
slow. On 18 March she was handed a white envelope (in-
stead of the usual brown paycheck envelope) bearing a ‘‘sec-
ond’’ warning slip signed by Pepus and Sarkissian but no
paycheck. When asked, Pepus said she didn’t know anything
about it. When lunchtime arrived she called the Union and
was advised to sign the warning but under protest. Sarkissian
‘‘stormed’’ in as she was eating lunch saying that he pulled
her timecard, that she wasn’t going to sign ‘‘this,’’ she
wasn’t going to get her paycheck and that she had been late
and had done poor work. Gage said she would talk to him
after lunch.
Tyree and Tyczynski were separately given warnings, and
their paychecks withheld, the same morning. Both had signed
union cards and worn Union T-shirts that were visible under
their partially unbuttoned smocks.
After lunch all three went to talk to Sarkissian. Tyczynski,
who is still employed by the Respondent, testified that she
was ‘‘mad’’ about getting the warning slip and just remem-
bered the others doing most of the talking except for her say-
ing that she had never received any verbal warning and that
she didn’t deserve the warning, which mentioned her work
attitude and not keeping up with her work, and that she inde-
pendently decided to sign the warning under protest so she
could get her paycheck. She remembered that Sarkissian
asked what the problem was between her and Hope Pepus
and she replied she was unaware of a problem, that she had
no verbal notice of a warning and that it was a total shock.
Sarkissian then asked: ‘‘Well, do you think the power of
being a supervisory or forelady to Hope, do you think it
went to her head?’’ When asked by counsel if he used the
word ‘‘supervisor’’ or ‘‘forelady’’ Tyczynski answered,
‘‘What’s the difference? I mean, to me it’s the same thing.’’
Both Gage’s and Tyree’s warnings were for ‘‘tardiness’’
and ‘‘absence’’ on unspecified dates. Gage’s attendance
record shows she was off sick on 7 March, 20 February, and
on two dates in January. Tyree’s record shows a ‘‘sick’’ ab-
sences 5 days in February and 2 in late January. Record for
two other employees for 1986 through 18 March, show that
Jannette Barnes was sick on three dates in both January and
February and on two dates in March including 18 March.
She was warned when she returned to work a day after Gage
and Tyree had complained about their warnings. Employee,
Jeannie Bussy, is shown to have received a first warning
dated 1 January after sickness and a leave of absence during
515IDEAL MACACRONI CO.
late December 1985. She than was out sick twice in both
January and March and once in February but received no
second warning. None of these records were marked ‘‘x’’ for
an unexcused absence. Gage testified that she told Sarkissian
that Pepus had not said anything about her work habits and
complained about Pepus’ name being on the warning when
Pepus had said she didn’t know about them. Tyree testified
that she also spoke about Pepus never having warned her and
that Sarkissian said that Pepus ‘‘always signed the warning
slip. You know, she was supervisor, and she signed and he
approved it.’’ Tyree agreed that Sarkissian had previously
told her she had missed 4 or 5 days on a date prior to the
union activity when she got sick at work and asked to leave
early, however, he had allowed her to leave without giving
her any specific further warning.
Sarkissian testified that a secretary prepared the warnings
per his instructions after he had reviewed some employee at-
tendance records. He asserts that Hope Pepus’ signature was
not on them when they were first distributed but that he sub-
sequently had her sign them at lunchtime prior to his discus-
sion with the employees concerning the warnings. He agrees
that the employees did not want Pepus’ name on the warn-
ings and that he rewrote them without Pepus’ name and that
the paychecks then were distributed. His testimony did not
address his use of the term ‘‘supervisor’’ during this con-
versation as recalled by employees Tyree and Tyczynski.
Sarkissian said he gave Tyczynski a warning because he
watched her for 5 minutes and observed that she failed to
weigh every quantity of lasagna she packed, as was required.
He testified that he reviews attendance records on an appar-
ent random basis when he gets the opportunity and goes over
as many cards as he can at that particular time. The cards
are selected from the pile which is organized by the depart-
ment and then by either seniority or clock member. He said
that in addition to Gage’s and Tyree’s cards he also looked
at those of Bussy and Sydney Hunter on the same occasion.
Hunter had received an attendance warning 26 September
1985 and is in department 3, while the warnings of 18 March
were for employees of department 5 (packing) in 1986 and
Hunter (clock 161, hired September 1984) otherwise is not
listed as a member of the packing department. (Hunter was
warned in 1985, not March 1986, and his warning said it was
a final notice given prior to termination, however he is still
an employee.) Gage, Tyree, and Bussey were hired in Octo-
ber 1985 and had clock numbers 196, 197, and 191, respec-
tively.
Here, it is shown that Respondent gave warning to three
employees who had worn union T-shirts. One, Tyczynski,
had been discriminatorily told to button her smock over the
shirt and was given a warning for a single apparent minor
infraction of work practices based on Sarkissian’s one obser-
vation (Sarkissian said that he did not consult floor lady
Pepus about Tyczynski’s overall work habits). The attend-
ance warning given to the other two employees could be
found to be supported by valid indications of excessive use
of sick leave, however, most of the infractions were in Janu-
ary and February and I infer from the timing of the distribu-
tion of the warnings in late March, after the employees en-
gaged in outward displays of union support, that Respond-
ent’s reaction to this display was a motivating factor in the
issuance of the warnings. I also find that Sarkissian did not
provide a plausible explanation for his alleged method of se-
lection of attendance cards to review inasmuch as the actual
cards selected reflect an inconsistency with his testimony.
(Hunter works in a different department, his clock number is
much lower, and he is more senior than the other and his
comparable violations were early in the previous year.)
As indicated below I find that the General Counsel has
made an appropriate showing of antiunion animus and, under
these circumstances, I infer that Respondent’s 18 March
warnings would not have occurred were it not for the union
organizing campaign and the employees protected activity of
showing support for the Union by their wearing of union T-
shirts and I conclude that these discriminatory warnings vio-
late Section 8(a)(1) and (3) of the Act as alleged in para-
graph 8 of the complaint.
C. Layoffs and Terminations
In a layoff discharge case of this nature, the General
Counsel must meet an initial burden of presenting sufficient
evidence to support an inference that the employees’ union
activities were the motivating factor in the employer’s deci-
sion to terminate the employees. Here, the record shows that
Gage, Tyree, and Lillie Nash started work for Respondent on
28 October 1985. Nash signed a union authorization card on
5 March. She received her card from Vivian Martin in the
open parking lot adjacent to the plant and returned the card
to Martin in the same place. She did not wear a union T-
shirt, but regularly ate lunch at a table with Tyree, Martin,
Gage, and Tyczynski, when they all wore union T-shirts.
Nash had specifically indicated to floorlady Pepus that she
was for the Union. In view of the size of Respondent’s work
force and Nash’s pattern of conduct and association, I con-
clude that the record support an inference that Respondent
believed that Nash, as well as Gage and Tyree, were union
sympathizers.
Gage and Nash testified that at the end of the day on
Monday, 31 March, Pepus told her and Nash that Sarkissian
wanted to see them. Sarkissian told them ‘‘that due to lack
of needs of the Company they were being laid off, and sole-
ly, on the basis of seniority.’’ He also said that although they
were not technically entitled to vacation because they had
not worked the required 6 months, the Company had decided
to give them 1 week of vacation pay. He said he was sorry
but right now warehouses were overstocked and they had
hired too many people and none had not quit so they would
be laid off. He said it might be temporary, a couple of days,
a week, a month and that they would be called to work dur-
ing the production shutdown (during the regular July vaca-
tion the plant undergoes an apparent annual cleaning). He
also said he would have to send Tyree a telegram as she was
absent that day. Nash said she never received a lay off slip
although she called and asked for one about a week latter.
Gage testified that initially she didn’t believe the layoff
would be permanent and so did not draw unemployment. She
testified that Sarkissian did not ask them to return their uni-
forms or to clean out their lockers and also said she never
received any subsequent telegram to that effect. Nash said
Sarkissian had said they wouldn’t have been the ones layed
off if the choice were his as he considered them to be very
good workers. Nash also testified that several weeks or a
month later she received a call from a lady in the office ask-
ing her to return her uniform, but received no written cor-
respondence about the uniform or any communication in-
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forming her that she had been terminated. Nash said she did
not immediately look for another job or file for unemploy-
ment as Sarkissian suggested but instead got part-time work
where she thought she could make more than under unem-
ployment compensation and she continued with part-time
work until she was promoted to a full-time seasonal position
in November.
On 31 March, Tyree called Sarkissian at 7 a.m. and indi-
cated she wanted to switch a scheduled day off for an ap-
pointment from Tuesday to Monday. Sarkissian said it was
no problem and asked her phone number but said nothing
about any layoff. When she came to work the next day she
found no timecard and was told she had been sent a lay off
telegram the previous day. Later, on 1 April, she received a
telex that said she was ‘‘layed [sic] off due to lack of com-
pany need.’’ No request was made for the return of her uni-
form, and nothing was said regarding the length or perma-
nence of the layoffs. The employees also testified that they
had not heard any previous reference to possibility of layoffs
and that Sarkissian told them that the layoffs were a last
minute decision. Previously, when they were hired, they had
been told the Company had never had any layoffs.
Sarkissian testified that when he laid off Gage and Nash
he also told them to clean out their lockers and hand in their
uniforms and did the same with Tyree the next day. A con-
firmation copy of a mailgram dated 5 May requesting Gage
to return her uniform was received into evidence and
Sarkissian testified similar telegrams were sent to the other
laid-off employees. The employees, however, deny receiving
these orders, especially at the time of the initial layoff con-
versation.
Sarkissian denies that he indicated how long the layoff
might be. He acknowledged that there had never before been
layoffs at Respondent’s plant and that there was no estab-
lished policy regarding layoffs except that ‘‘if you didn’t
need people you would lay them off.’’
Tyree also testified that Sarkissian told her that he went
by seniority and would have preferred to lay off someone
else because she was a good worker, but might have to lay
off other people. He offered to help her get another job and
also mentioned her coming to clean the plant during the shut-
down period if she wasn’t called back by that time. She
looked for another job right away as she ‘‘had bills to pay’’
and began a full time job on 24 May, 3 days after the date
of the election, at the same $4.50 an hour rate she received
from the Respondent.
Respondent’s president, Price, acknowledged that in Feb-
ruary 1986, one of his other companies had a strike over the
issue of union recognition. He also said that the Respondent
spent a lot of its energy directed toward the union election
and both Price and Ippolito stated to employees that they did
not need a union. As noted above, the Respondent also en-
gaged in a series of unfair labor practices and I conclude that
the General Counsel has shown that Respondents had feel-
ings of antiunion animus. The General Counsel also has
shown that three union supporters, otherwise vulnerable be-
cause of a lack of seniority, were laid off shortly after two
of them wore union paraphernalia and prior to the scheduled
election. After the election, where the results thereof hinged
on whether or not their votes were counted, their ballots
were challenged and they were not offered recall. Under
these circumstances, I find that the General Counsel has met
his initial burden by presenting a prima facie showing, suffi-
cient to support an inference that the employees’ union ac-
tivities were the motivating factor in Respondent’s decision
to terminate them. Accordingly, the testimony will be dis-
cussed and the record evaluated in keeping with the criteria
set forth in Wright Line, 251 NLRB 1083 (1980), see NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983),
to consider Respondent’s defense and, in the light thereof,
whether the General Counsel has carried his overall burden.
Respondent’s principal defense rest on alleged valid busi-
ness reasons for its actions. It contends that it hired addi-
tional packaging employees in the fall of 1985 because of
operational problems with new packaging equipment and an
influx of orders generated by a new promotional campaign.
It explains that when the latter campaign ended and the new
equipment began operating efficiently, the need for the addi-
tional employees was alleviated and the three least senior
employees were laid off.
The record shows that the Respondent began implementa-
tion of a modernization program in 1984 with the installation
of additional production capacity for long goods and new
packaging equipment for short goods. New, ‘‘state of the
art’’ long goods packaging equipment was ordered and in-
stalled in June 1985, however, it was plagued with oper-
ational problems. Respondent asserts (inaccurately) that 6
new packing employees were hired in October 1985, bring-
ing the total number of employees in the packing department
to 12. Price testified that when the new machine was oper-
ating more effectively in January 1986, he suggested to
Ippolito that with anticipated further improvements the work
force could be reduced to nine packers at the end of March
(no written company records corroborated this testimony).
Price asserts that he decided to implement a layoff in March,
by selecting the three least senior employees (despite the ap-
parent fact that there was no significant difference in the hir-
ing date for the six least senior employees). Price also said
that Respondent’s recall policy was to equate the time in
which an employee would be subject to recall to the length
of service with the Company (here, the three employees each
had 5 months).
Respondent maintains monthly records that reflect the
number of packers and the regular and overtime hours they
work. Prior to October 1985, seven to eight packers worked
regularly. This work force increased to 16 during the last
week in October when 8 new names were listed (the lists
often include 3 persons from other departments that also do
packing work). The week ending 2 November lists 18 names
including Nash, Gage, and Tyree. Total packing hours in No-
vember were 2787. January record showed 14 employees and
2254 total hours. Employee B. Cales is not listed after mid-
February and total packing hours for that months are reported
as 1999. Thirteen employees worked a total of 1964 hours
in March, 54 of which were overtime. April figures reflect
10 employees and 1607 hours, while May hours were up to
1967 for 10 employees (with 89 hours of overtime). Four
employees worked 41 hours of overtime the last week of
May (after the election) and these employees had 31 hours
of overtime the following week, however, no laid-off em-
ployee was offered recall. Subsequent figures for August
through November generally reflect 10 employees and ap-
proximately 1600 packing hours monthly.
517IDEAL MACACRONI CO.
Here, I am not persuaded that Respondent’s packing statis-
tics support its assertion that valid business reasons dictated
layoffs on 31 March and I find that Price’s testimony that
a firm decision was made to lay off employees prior to the
union campaign is not consistent with the overall record. I
do not credit his testimony in this regard and I find that Re-
spondent’s overall rational for executing layoffs on 31 March
is pretextual.
First, I find that Respondent did not give the several em-
ployees that were hired in October 1985 any indication that
they were being brought on as temporary employees. To the
contrary, they were accurately told that the company had
never had layoffs. Also, at the time they were laid off, they
were not told or given the impression that the layoffs were
permanent. I credit the forthright testimony of the several
employees that they initially were given the impression they
could be called back in a few days, weeks, or a month and
also their testimony that they initially were not requested to
turn in their uniforms. No written evidence of notification of
any sort is shown to have been given to employees Gage and
Nash except for a copy of a mailgram to Gage dated 5 May
requesting a return of her uniform (Gage denied receiving it).
Although Tyree was sent a Telex (received 1 April), that
mentions her layoff, it made no reference to its duration and
it did not request a return of her uniform. Significantly, when
Tyree asked Sarkissian on the morning of 31 March to
switch her planned day off, he gave her permission and
failed to say that she would be laid off that same afternoon.
Sarkissian told the employees that the lay off were a last
minute decision and I infer that the decision to act was made
Monday, 31 March, the day of the layoff.
It is clear that none of the employees were given any indi-
cation that possible layoffs were imminent, the laid off em-
ployees were given no advance notice but were laid off pre-
cipitously on a Monday at the end of the first full day of
a new pay period, and the lay off occurred within a few
weeks of the beginning of union activities and Respondent’s
commission of several unfair labor practices.
Although it is likely that some layoffs would have oc-
curred at some future time when Respondent’s packaging
equipment began to consistently operate more efficiently,
there is some testimony that problems continued during the
months after the layoffs and I find that Respondent has failed
to persuasively show that its decision to layoff three employ-
ees on 31 March was based on specific, meaningful business
factors. Respondent’s statistic show that while April packing
hours were down to 1607 hours, figures for May show an
increase to 1967 hours, slightly more than prior to the layoff
in March. The increased work load in May was handled not
by the recall of one or more laid-off employees but by over-
time for some packing department employees and the use of
production employees for packing duties on weekends and
during the night shifts. This reaction fails to support Re-
spondent’s rational and, to the contrary, supports the infer-
ence that its decision was made precipitiously and motivated
by antiunion consideration rather than the suggested business
reasons.
I also find that Respondent did not have an established
layoff selection policy and that its arbitrary selection of
Gage, Nash, and Tyree on the alleged basis of senority is in-
consistent with its comments that they were better workers
than other employees with no significantly greater amount of
seniority (who were not laid off).
I find that the apparent decrease in April production, at-
tributed to an ending of Respondent’s promotional efforts,
demonstrates merely that Respondent failed to make any new
or additional promotional efforts, a matter under its control,
and that this action contributed to a decline in its need for
packers following the start of the union campaign and fol-
lowing the layoff of the alleged discriminatees. Moreover,
employee packaging hours returned to near the March level
in May but not one laid-off employee was offered recall, al-
though over 89 hours of overtime was given to other em-
ployees.
Under all these circumstances, I find that Respondent
would not have laid off three employees on 31 March were
it not for the union organizational drive and I find that Re-
spondent has failed to meet its burden of showing that the
31 March layoff and subsequent failure to recall employees
Gage, Tyree, and Nash was not primarily motivated by the
illegal and discriminatory reasons demonstrated by the Gen-
eral Counsel and discussed above. I therefore conclude that
the General Counsel has met his overall burden and shown
that Respondent violated Section 8(a)(3) of the Act as al-
leged in paragraph 8 of the complaint.
D. Voting Eligibility of the Laid-off Employees
As noted, an election was held on 21 May and 34 ballots
were cast: 15 in favor of union representation, 15 against and
4 challenged. The Company challenged the eligibility of
Janet Gage, Dawn Tyree, and Lillie Nash, the three employ-
ees who were laid off on 31 March.
As set forth above, I have found that these three employ-
ees were unlawfully laid off on 31 March and therefore
should be considered as eligible voters and their votes count-
ed. I also find that the record otherwise supports the conclu-
sion that at the time of the election these employees had a
reasonable expectation of reemployment within a reasonable
time in the future.
When Gage, Tyree, and Nash were hired they were told
the Company had never had layoffs. They were not told, at
any time, that employment levels in the packing department
were only temporarily increased for a short period while Re-
spondent installed and brought into effective operation new
machinery. They were not told they were temporary employ-
ees and, at the time of the layoff in March, they were not
told that the layoff was to be permanent. To the contrary, I
credit the employees’ testimony that they instead were told,
somewhat vaguely, that recall could be in days, weeks, or
months. Significantly, Respondent’s contention that the lay-
offs were permanent is unsupported by any documentary evi-
dence except, indirectly, the single mailogram to one em-
ployee dated 5 May, requesting the return of her uniform.
Otherwise, however, Respondent clearly told them that they
could come back to work during the plant shutdown in July.
Moreover, under Respondent’s recall policy, they had an ap-
parent right to recall equivalent to their time with the Com-
pany, in this instance until approximately 31 August. There-
fore, if other employees had quit or been terminated one or
more of the three could have been recalled as management
had indicated to each that they were considered to be good
workers.
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although the Respondent may have had a subsequent valid
business reason to reduce staffing levels at a later date, I
infer that it laid off precipitiously three employees on 31
March not only because of operational and production level
requirements but because of antiunion consideration related
to the union campaign and the forthcoming election.
I find that the employees’ participation in the vote on 21
May also indicates their expectation of returning to work
and, under all these circumstances, I find that the laid-off
employees did have a reasonable expectation of recall, I find
that the employees on lay-off status on 21 May were entitled
to vote. I conclude that the challenge to the ballots of Janet
Gage, Dawn Tyree, and Lillie Nash should be overruled and
the ballots counted.
E. Supervisory Status of Hope Papus
The Union challenged the ballot of Hope Papus con-
tending that she was a supervisor. Section 2(11) of the Act
defines a supervisor as
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsible to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
The existence of any one element can be sufficient to con-
vey supervisory status, however, sporadic or occasional exer-
cise of supervisory authority is insufficient to make an em-
ployee a supervisor. Also, investiture with a title and theo-
retical power which may imply supervisory authority does
not automatically transform a rank-and-file employee into a
supervisor.
Pepus was hired as a packer in February 1972, and in
1985 was the second most senior employee in the packing
department. With the increase of employees in October 1985,
from 8 to 16 packers, Supervisor Iggy Seaman, who also had
authority in the production department, was unable to handle
all his responsibilities, especially training, and the Company
named Pepus as ‘‘floorlady’’ to assist Seaman.
It is shown that when the new employees were hired they
were told that Pepus was their supervisor, that Plant Manager
Sarkissian specifically referred to Pepus as a ‘‘supervisor,’’
when he discussed the warnings given to employees, and that
she exercised various supervisory functions in directing their
day-to-day activities, including telling employees which of
several functions to perform on a particular machine at any
particular time (employees regularly changed between ma-
chines and activities such as boxing, packing, or weighing
every 2 hours). She generally did not spend time on a ma-
chine unless she was relieving another employees to go to
the rest room and she exercised her own judgment in select-
ing when to do so. She spent time watching to see that the
employees’ work was done properly. Other apparent duties
performed included signing warning slips, warning employee
to button up uniforms, reporting horseplay, asking employees
to work overtime, and giving permission to leave early. Her
hourly pay was increased slightly when she became floorlady
but she continued to wear the same uniform and use the
same locker.
Sometime in April Pepus complained to Sarkissian that
she didn’t ‘‘have the authority to tell the girls what to do and
they don’t listen to me because I don’t have the authority’’
and told him she no longer wanted to be floorlady and he
said he would look into it. Sarkissian said about a week later,
he told her she did not have to worry about being floorlady
anymore, however, Pepus also testified that she recalled the
election was near ‘‘Mothers day’’ and that she was relieved
of her floorlady duties after the election. She also said it was
a week or so after she told Sarkissian and thereafter testified
that she could not remember if she was still floorlady the day
before the election.
She did not revert back to her former hourly pay when she
return to regular packing duties, and no company records re-
flect the date of her change in status, however, two employ-
ees who regularly worked with Pepus testified that she did
not return to regular packing work with them until June or
after the election.
While it is apparent that Pepus was not entrusted with a
full range of supervisory duties when she became floorlady,
she was something more than a mere senior employee. She
was not a rank-and-file employee and did not perform reg-
ular packing work with the other employees (except on a
sporadic, fill-in basis) but engaged in general oversight duties
where she exercised at least a minimal use of independent
judgment in instructing newer employees and in directing the
work assignments and standards of all packing department
employees. She was referred to as a supervisor by the plant
manager and was introduced to new employees by that title
and, under the circumstances, I conclude that the functions
exercised by Pepus as floorlady are sufficient in this instance
to show that she was a statutory supervisor.
Although Sarkissian asserts he told Pepus in April that she
‘‘didn’t have to worry’’ about being floorlady, his testimony
falls short of being an unequivocal statement that she was re-
lieved of her duties at that time. Pepus did not receive a cut
in pay when she reverted to her former status as a packer,
sometime after mid-April, and there is no documentary evi-
dence to show when the change occurred. Pepus own testi-
mony is contradictory on this point, however, in response to
the questions on cross-examination by the General Counsel
she recalled that she still was floorlady the week that Moth-
er’s Day was celebrated. Two employees that were still
working at that time independently recalled that Pepus did
not join them in regular packing work until June or after the
election and, accordingly, I find that the most credible evi-
dence shows that Pepus was still acting as a supervisor on
the date of the election and I therefore find that the Union’s
challenge to her ballot should be sustained.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce with-
in 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.
3. By announcing the availability of previously
unpublicized company benefits during the union campaign,
by more strictly interpreting and enforcing its dress code to
require the covering or removal of union T-shirts, and by
promulgating a rule restricting the bringing in or posting of
519IDEAL MACACRONI CO.
3 Under New Horizons, interest is computed at the ‘‘short-term Federal
Rate’’ for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621. Interest accrued before 1 January 1987 (the effective date
of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB
651 (1977).
any notices the Respondent violated Section 8(a)(1) of the
Act.
4. By issuing warning slip to employees Janet Gage, Dawn
Tyree, and Elizabeth Tyczynski on 18 March 1986, and by
laying off employees Gage, Tyree, and Lillie Nash on 31
March 1986, Respondent violated Section 8(a)(3) and (1) of
the Act.
5. On 21 May 1986, and all times material, floorlady Hope
Pepus was a supervisor within the meaning of Section 2(11)
of the Act and was not an employee within the meaning of
Section 2(3) of the Act, eligible to vote in the representation
election and her ballot should not be counted.
6. On 21 May 1986 employees Janet Gage, Dawn Tyree,
and Lillie Nash were eligible voters as a result of their un-
lawful layoff and their eligibility and reasonable expectation
to be recalled from layoff, their ballots should be counted,
and a certification of result of election should be issued in
Case 8–RC–13426.
7. The Respondent otherwise is not shown to have en-
gaged in conduct violative of the Act as alleged in the com-
plaint.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having disciminatorily laid off and failed
to recall employees Janet Gage, Dawn, Tyree and Lillie
Nash, must make them whole for any loss of earnings and
other benefits during the period between 31 March and 31
August 1986 (the last date of their eligibility for recall under
company policy) as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987),3 and shall
offer them reinstatement or recall to any additional or current
packing department position held by any employee hired
subsequent to 31 March 1986, discharging, if necessary any
less senior employee and shall place the discriminatees on a
preferential hiring list, for a period of 1 year from the date
of such notice, and inform the discriminatees, in writing, of
such listing. In view of the nature of the violations I find it
unnecessary to issue a broad Order, see Hickmott Foods, 242
NLRB 1357 (1979).
As part of the relief sought, the General Counsel also
seeks imposition of a ‘‘visitorial clause’’ whereby the Board
would be authorized to engaged in certain discovery activi-
ties in order to monitor compliance. Although a request for
the imposition of such a provision recently has become a
common practice, there is no showing that it is of particular
applicability or usefulness in dealing with the type of unfair
labor practice involved in this proceeding. Accordingly, the
request is denied and no visitatorial clause will be imposed
as part of the order, see Cherokee Marine Terminal, 287
NLRB 1080 (1988).
[Recommended Order omitted from publication.]