Nice-Pak Products, Inc.

National Labor Relations Board - Board Decisions

Apr 18, 1980

248 N.L.R.B. 1278 (N.L.R.B. 1980)

1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nice-Pak Products, Inc. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW. Cases
25-CA-9071, 25-CA-9201, and 25-RC-6622
April 18, 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On January 30, 1979, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs. The General Counsel also filed a brief in
partial support of the Administrative Law Judge's
Decision and Respondent filed an answering brief
to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Nice-Pak Prod-
ucts, Inc., Mooresville, Indiana, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
IT IS FURTHER ORDERED that the election held in
Case 25-RC-6622 be, and it hereby is, set aside,
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In his exceptions, the General Counsel asserts that the Administrative
Law Judge erred in not finding that Respondent violated Sec 8(a)(l) by
granting employee Donna Bennett preferential treatment under Respon-
dent's attendance and lateness plan. We find it unnecessary to decide this
issue. First, the Administrative Law Judge did find that the offer of pre-
ferred treatment to Bennett, based on her opposition to the Union, did
violate Sec. 8(aXI). In addition, a finding of the specific violation urged
by the General Counsel would be merely cumulative since the Order al-
ready requires Respondent to cease and desist from granting employees
benefits to induce them to refrain from union activities.
The General Counsel has also excepted to the Administrative Law
Judge's remedy insofar as it recommends that interest on backpay should
be computed at a rate other than 9 percent We find no merit in that ex-
ception. See Florida Steel Corporation, 231 NLRB 651 (1977).
248 NLRB NO. 173
and that said case be, and it hereby is, remanded to
the Regional Director for Region 25 to conduct a
new election when he deems the circumstances
permit the free choice of a bargaining representa-
tive.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charges in Cases 25-CA-9071 and 25-CA-9201 were
filed by International Union, United Automobile, Aero-
space and Agricultural Implement Workers of America,
UAW, referred to in this Decision as the Union, on July
I and August 29, 1977, respectively. The consolidated
complaint alleges that on and after March 29, 1977, Re-
spondent interrogated its employees concerning union
activities, threatened them with the loss of benefits and
plant closure if the Union became their representative,
kept their union activities under surveillance, asked em-
ployees to convince others to abandon the Union, prom-
ised and granted economic benefits to induce employees
to abandon the Union, and discriminatorily enforced a
no-solicitation rule. The complaint also alleges that Re-
spondent discriminatorily discharged Karla Collins and
Cathy Waldrip on June 22, 1977, and Cheryl Dellacca
on August 23, 1977. Respondent denies the commission
of any unfair labor practices.
The petition in Case 25-RC-6622 was filed on April
21, 1977, by the Union. Pursuant to a Stipulation for
Certification Upon Consent Election, an election was
conducted on June 24, 1977, among the production and
maintenance employees at Respondent's Mooresville, In-
diana, plant. The tally of ballots shows that 59 votes
were cast for the Union and 65 against representation.'
There were eight challenged ballots. Following the elec-
tion the Petitioner filed timely objections to conduct af-
fecting the results of the election. On August 22, 1977,
the Regional Director issued a report in which he found
that the challenges and objections raised substantially the
same issues as the complaint and that the cases should be
consolidated for purposes of hearing and decision.
A hearing in the consolidated cases was held before
me in Indianapolis, Indiana, on October 31 through No-
vember 4, 1977. At the conclusion of the hearing, oral
argument was waived. The parties have filed posthearing
briefs. 2
' The Intervenor, United Paperworkers International Union, AFL-
CIO and its Local Union No. 154 received no votes.
2 Following the close of the hearing the parties entered into a stipula-
tion modifying certain entries on Resp. Exh. 35, a summary of machine
movement at the Mooresville facility. Pursuant to the General Counsel's
motion the stipulation has been received in evidence as G.C Exh. 61.
The parties also have submitted a stipulation to correct transcript which
has been marked and received in evidence as G.C. Exh. 62. Certain
errors in the transcript have been hereby noted and corrected. The
motion and the opposition thereto will be received in evidence as Resp.
Exhs. 41(a) and (b), respectively.
NICE-PAK PRODUCTS, INC. 1279
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation, operates a fa-
cility at Mooresville, Indiana, where it manufactures,
sells, and distributes wrapped wet napkins and related
products. During a representative -year period, Respon-
dent manufactured, sold, and shipped finished products
valued in excess of $50,000 from the facility directly to
points outside the State of Indiana. I find that Respon-
dent is an employer engaged in commerce within the
meaning of the Act and that it will effectuate the policies
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and Background
Respondent engages in what is known as flexible unit
pouch packaging for various markets including pharma-
ceuticals, cosmetics, hospital supplies, and fast foods. Its
products are produced and packaged on specially de-
signed equipment.
Respondent's corporate headquarters, research, and en-
gineering facilities are located at Mt. Vernon, New York.
Its original manufacturing facility is also located there.
In June 1974, Respondent opened the Mooresville, Indi-
ana, plant to service the central and western portions of
its markets.
Before the Mooresville plant opened Respondent
began a joint venture in California with one of its major
customers to manufacture products for that customer uti-
lizing Respondent's machines. The operation proved inef-
ficient, however, and after a year it was terminated. Re-
spondent gave up the customer's account at that time be-
cause it was not economical to ship products from New
York to California. Thereafter, as Respondent continued
to develop its technology, its former customer urged it
to open a facility in California, and by late summer of
1976 Respondent had commitments from two major cus-
tomers to buy from Respondent if it opened a West
Coast facility. As one of the customers had prior com-
mitments running through June 1977, Respondent estab-
lished June 1977 as its target date for starting operations
and began seeking space and planning for its new facili-
ty.
In late February 1977 Respondent entered into a lease
for a plant in Los Angeles, California. The building
became available for occupancy in June, and manufactur-
ing began in July. The Los Angeles plant produces basi-
cally the same products as the Mooreville plant and
serves 11 western States previously served by the
Mooresville plant. The machines used in the Los Angeles
plant are basically the same as the machines used in the
New York and Mooresville plants and were shipped to
Los Angeles from the two eastern facilities.
In the spring of 1976 the Teamsters Union attempted
to organize the employees at the Mooresville plant and
filed a representation petition seeking an election among
them. The Teamsters, however, failed to gain certifica-
tion as representative of Respondent's employees. 3
Before the Teamsters petition was filed, the Moores-
ville plant had several different plant managers, each of
whom in the eyes of Respondent's president, Robert
Julius, had problems carrying out Respondent's objec-
tives in manufacturing and policy causing poor employee
attitudes, morale, and productivity. According to Julius,
the biggest problem was communication between man-
agement and employees which continued regardless of
who was manager, despite corporate policy which gave
great importance to communications. Julius testified that
the communications problem led ultimately to the Team-
sters organizing effort and petition.
In June 1976, the manager of Respondent's New York
plant became acting manager of the Mooresville plant,
and Julius started a search for a new plant manager for
Mooresville. In late 1976 the acting manager returned
full time to his New York duties, and Julius assumed the
basic responsibilities of the plant manager for the
Mooresville plant. From then until May 1977, Julius
spent about half his time at the Mooresville plant, while
continuing his search for a permanent plant manager. Ul-
timately he selected Lorin Hecox who started as plant
manager on April 11, 1977.
In December 1976 Julius published a newsletter for
employees in which, among other things, he announced
that a new attendance policy had been drafted which
would take effect on January 3, 1977, and that he would
soon be distributing a questionnaire to all employees con-
cerning general plant conditions.
In early February a questionnaire was distributed
which all employees were asked to answer. After the an-
swers were collected, Julius collated them, and, on
March 14, 1977, he spoke to each shift about the results
of the survey.
On or about March 29 the Union sent Respondent
notice that it had started an organizing campaign among
the production and maintenance employees at the
Mooresville plant. About the same time solicitation of
employees to sign union authorization cards began, and
some employees at the plant began to wear buttons
showing their support of the Union. It is conceded that,
from March 29 on, Respondent's officials were aware of
the campaign.
As set forth above, on April 21, 1977, the Union filed
its representation petition, and, on June 24, 1977, the
election was held pursuant to a Stipulation for Certifica-
tion Upon Consent Election.
B. Supervisory Issues
The complaint alleges that Sara Pierce, Mary Sims,
William Stone, and Leonard Worland are supervisors
I The Teamsters filed several unfair labor practice charges between
Feburary 12 and August 24, 1976, and the Regional Director issued com-
plaints against Respondent on March 31 and August 27, 1976. The issues
raised by the complaints were resolved by settlement.
NICE-PAK PRODUCTS, INC.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of the Act and agents of Respondent.
Respondent contends that all are lead persons who lack
supervisory status and were not Respondent's agents.4
1. Sara Pierce and Mary Sims
Sara Pierce and Mary Sims were both employed as
leadpersons in the production department at the Moores-
ville plant. Pierce works on the third shift and Sims on
the second. There are two other leadpersons in the pro-
duction department on the third shift and three on the
second shift. The third-shift leadpersons work under the
supervision of Shift Supervisor Delbert Myers, and the
second-shift leadpersons are under Shift Supervisor John
Atkins. Myers and Atkins report to Production Manager
Charles Dabney. There are from 18 to 25 production em-
ployees on the third shift, and presumably a comparable
number on the second shift.
The leadpersons punch a timeclock and are paid on an
hourly basis. They receive the same holidays, vacations,
fringe benefits, and work breaks as production employees
and are subject to the same attendance and lateness
policy. They do not have authority to hire, discharge,
promote, or discipline employees or to adjust grievances.
The leadpersons train new production employees, make
certain that proper materials are at machines to avoid
production interruptions, assist operators with produc-
tion problems, and initial production records.
There is no contention that all production leadpersons
were supervisors, and indeed there was a stipulation at
the hearing that leadperson Mildred Spoon, whose ballot
was challenged at the election, was not a supervisor
within the meaning of the Act. The question raised,
therefore, is whether the evidence shows that Pierce or
Sims had authority which other leadpersons may have
lacked.
In the case of Sims the only such evidence is in the
testimony of Cheryl Dellacca. She testified that on one
occasion after she had failed to respond promptly to an
instruction from Sims, Atkins told her that Sims had as
much authority on the floor as he did. She also testified
that on one occasion Sims told her that Sims had gotten
a woman fired and that when Respondent hired someone
they ought to get with her about it. The latter testimony
was not denied, but Atkins testified that when he repri-
manded Dellacca he told her that whatever Sims told
her she should do, she should do.
Even under Dellacca's version, I do not construe
Atkins' statement as indicating that Sims' authority was
coextensive with his. What was at issue was Dellacca's
failure to follow Sims' instructions, and this quite clearly
was what Atkins meant in referring to Sims' authority on
the floor. Sims' comments to Dellacca about her own au-
thority do not establish that she had authority effectively
to recommend discharges. I find the evidence insufficient
to establish that Sims was a supervisor within the mean-
ing of the Act.
In the case of Pierce, the evidence is more substantial.
Pierce was referred to as head leadperson on the third
4 Challenges to ballots cast by Pierce, Stone, and Worland are among
those to be resolved in this proceeding.
shift,5 and was paid approximately 25 cents an hour
more than the operators on her shift.6
The practice in the production department was to
rotate each operator to a different machine every week
so that operators would gain familiarity with every ma-
chine. Pierce prepared a weekly assignment schedule
with the other leadgirls on her shift which they submit-
ted to Myers for his approval, which he usually gave.
Pierce and the other leadpersons told the operators of
their machine assignments and asked employees to work
overtime when it was needed, but employees were free
to refuse to work overtime if they so chose.
According to employee Syble Dodson, Pierce's status
was different from the others in that other leadpersons
asked employees to perform certain tasks, while Pierce
told them to do so. 7 Mary Wagner testified that Myers
told her to do anything Pierce told her to do as if he had
told her to do it.
The fact that employees are expected to follow lead-
persons orders is not determinative of their supervisory
status. Rather that determination hinges on the nature of
the direction leadpersons are authorized to give. Here,
the evidence shows that Myers was present at all times,
that Pierce and other leadpersons handled routine prob-
lems on the production floor, and that they went to
Myers for guidance with bigger problems.8 I conclude
that the direction of employees by Pierce and other lead-
persons was routine.
There is evidence that Myers consulted with Pierce as
to the progress of employees and their training and about
what they could do to improve their work. However,
according to Pierce, Myers did not always accept her
evaluations of employees and let some go whom she
would have kept. There is no evidence to show whether
or not other leadpersons were similarly consulted by su-
pervision.
In February 1977, 9 Pierce was transferred to the
second shift because the supervisor for that shift had re-
signed without a replacement. Although Pierce handed
out the paychecks during this period, a function usually
performed by supervisors, she testified that she func-
tioned otherwise as she normally did. She also testified
that Production Manager Dabney came to the plant
B Although Plant Manager Hecox testified that there was no classifica-
tion of head leadperson he conceded that the term was used in the plant,
and both the third-shift employees and Pierce referred to Pierce as head
leadperson on that shift. According to Pierce, she received that designa-
tion because of her greater experience but she testified that she had the
same authority and duties as other leadgirls.
6 Pierce so testified. A stipulation comparing Pierce's pay to that of
Sims and Dodson indicates that for a period of approximately I month in
February 1977 Pierce received an additional 40 cents an hour her pay
was restored to its prior level. That increase was not explained, but it
appears to have coincided with a period when the second-shift supervisor
left and Pierce was transferred temporarily to the second shift.
? Dodson also testified that on one occasion Myers told her leadper-
sons had the same authority on the floor as he did. Myers gave a some-
what different version. Under either version it is clear that his comment
did not distinguish Pierce from other leadpersons, it was the same in
effect as Atkins' comment to Dellacca described above, and it was made
under similar circumstances.
8 Employees Wagner and Shook so testified.
9 Pierce testified that her transfer was in late 1976 or early 1977. Since
Atkins testified that he started in February 1977, conclude that her
transfer occurred at that time.
NICE-PAK PRODUCTS, INC. 1281
almost every night and called in every night during this
period and that if she had problems she called Dabney.
After John Atkins was hired as the new second-shift su-
pervisor, she continued to work on the second shift for a
while to help him to become familiar with operations.
During the first 2 weeks in June 1977, Third-Shift Su-
pervisor Myers was on vacation, and Pierce was respon-
sible for the third shift. She made all machine assign-
ments, handed out paychecks, signed timecards to verify
overtime, and gave three or four employees, including
Collins and Waldrip, their 30-day reviews. o
I find that Pierce was not a supervisor within the
meaning of the Act when she performed her normal
duties as head leadperson. However, I find, that she had
supervisory authority when she substituted for the
second- and third-shift supervisors. During the period
that she substituted for Myers there is little question that
her authority was expanded. While it is less clear for the
period that she substituted for the missing second-shift
supervisor, she transferred to a different shift because the
second-shift supervisor had left, she was in charge with
the responsibility to call Dabney if necessary, and she
was given the responsibility to hand out paychecks,
which under Respondent's policy was to be done only
by supervisors or personnel employees. From these facts
it appears that she was held out as the substitute second-
shift supervisor until Atkins arrived.
2. William Stone and Leonard Worland
William Stone and Leonard Worland were both em-
ployed as leadpersons in the molding department at the
Mooresville plant. Both started as mechanics in the fall
of 1976. Worland was made leadperson on the third shift
and served in that capacity until January 1977 when he
was transferred to the second shift in the same capacity.
At that time Stone was made leadperson on the third
shift. Both report to Molding Department Foremen
Steve Simpson who in turn reports to Molding Depart-
ment Manager Al Tullar. Simpson and Tullar are nor-
mally at work during the first shift, when there is no
leadperson in the molding department. The complement
of employees on the second and third shifts varies from
two to five.
As in the case of the production department leadper-
sons, Stone and Worland are hourly paid, punch time-
clocks, receive the same fringe benefits, and are subject
to the same rules as other hourly paid employees. Both
receive a 25-cent-an-hour differential for serving as lead-
person. ' "
10 According to Myers and Pierce, Myers prepared the "Employee
Appraisal" forms before he left for vacation and Pierce merely discussed
his evaluation with the employees. Although Collins testified that the ap-
praisal form for her was not signed when Pierce showed it to her, Wal-
drip testified that she could not remember if hers was signed, and I credit
Myers and Pierce that Myers filled out the forms before he left on vaca-
tion.
I The evidence shows that Stone and Worland receive a substantially
higher rate than machine operators Tomlinson and Dobson received in
the molding department. However, as Stone and Worland were mechan-
ics and not operators, this evidence does not contradict their testimony
that the differential was 25 cents an hour, which appears to be supported
by the records relating to Worland's November 1976 increase.
Stone and Worland assign employees to machines and
other duties and basically run the molding operation on
their shifts. They are responsible to insure continued op-
erations on their shifts.
Stone and Worland ask employees to work overtime if
Simpson orders overtime work, but employees are free
to decline. Stone and Worland initial timecards to show
overtime worked and to verify time of employees who
have failed to punch in or out. They also sign production
tallies and inspection sheets. They do not have authority
to hire, discharge, promote, or transfer employees to
other departments. If employees come to them with
complaints about pay or working conditions, they inform
Simpson of the problem. If problems arise during their
shifts, they call Simpson or Tullar at home for advice. If
employees ask to leave early because of illness, they
allow them to do so. They have permitted employees to
smoke in the molding department and to take extended
lunch hours. At least on occasion, Worland has distribut-
ed paychecks.
In March 1977 Stone recommended to Simpson that
operators be rotated so that they would learn to operate
all machines in the department, and Simpson accepted
this recommendation. Simpson has also sought Stone's
evaluation of employee performance. On one occasion
employee Syble Dodson complained to Stone about an
employee who threw a barrel lid at her. Stone spoke to
the employee and Dodson had no further problems. On
another occasion when Dodson told other employees
about a complaint she had over her pay, Worland called
her aside and told her that if she did not straighten out
what she had told the others about her complaint, he
would have to take steps to see that it did not happen
again. 2
When Mary Tomlinson started to work in the molding
department on the third shift, Production Foreman
Myers introduced her to Worland, who was then lead-
man on that shift, as her supervisor.'t Later, when Tom-
linson complained about her assignments, Worland called
her aside, told her that he did not like her attitude, and
threatened her with discharge if it did not change. 4 On
one occasion, when an employee complained about over-
time assignments in Tomlinson's presence, Worland re-
plied that he was boss and it was up to him to decide
who to ask to work. On another occasion Tomlinson
went to Tullar with a complaint about Worland. Tullar
told her that if she had a complaint she should go to
Worland first because he was her supervisor and then to
others above him if she did not get satisfaction. Tullar
made a similar statement to Dodson in response to a
question she asked about the chain of command in the
" Worland recalled that Dodson had talked to other employees about
her pay problem but denied making this statement to Dodson. He re-
called no other details of his conversation with Dodson about it. I have
credited Dodson who was still employed at the time of the hearing and
whose testimony I have found generally reliable despite her strong sup-
port of the Union.
is Myers remembered introducing her to Worland but had no other
recollection of the conversation. I have credited Tomlinson.
4 Worland denied telling Tomlinson he might fire her because of any
problem. He testified that he spoke to her about problems with her work
but had no specific recollection of his conversations. I have credited
Tomlinson.
NICE-PAK PRODUCTS, INC.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
molding department. According to Dodson she asked the
question "because the Company kept saying Leonard and
Bill didn't have any authority over you, and yet they
kept giving us orders."
While duties and responsibilities of the molding depart-
ment leadpersons are similar in a number of respects to
those of the production department leadpersons, there is
a substantial difference in that no higher supervision is
present in the molding department most of the time
during the second and third shifts. Absence of such su-
pervision necessarily places greater responsibility on the
leadpersons since they have the only opportunity to ob-
serve the work performance and demeanor of those
working on their shifts.' 5 Although Dodson's testimony
quoted above shows that Respondent sought to distin-
guish the authority of Worland and Stone from that of
other supervisors, Dodson's question itself indicates con-
fusion, and Tullar's responses to her and Tomlinson
show that Respondent viewed their responsibility as
more than routine. I find that Worland and Stone had
authority to direct responsibly the work of the second-
and third-shift molding department employees and were
supervisors within the meaning of the Act.'
6
C. Alleged Violations of Section 8(a)(1) of the Act
(a.) Paul Reeves and Wendell Owens, who worked in
Respondent's liquid room, signed union authorization
cards on March 28 and began wearing union buttons at
work the next day. On or about April 1, Reeves and
Owens were at work in the liquid room when Respon-
dent's president, Julius, entered. Julius looked at the but-
tons and said, "I see where you stand." He asked why
they were dissatisfied with the Company and why they
believed they needed the Union. They responded, men-
tioning among other things low pay. Julius said with
some heat that he was paying as much as he possibly
could and that, if anyone tried to make him pay more, he
would close the plant. Reeves asked if that meant Reeves
was making as much as he ever would, and Julius said
that he was unless profits increased. Reeves commented
that there was not much future for him with the Respon-
dent and Julius then said, "Why don't you just pack your
bags and get out." Reeves replied that jobs were not that
easy to find."
lb William 0. Hayes d/b/a Superior Casting Company, 230 NLRB 1179,
1189 (1977).
'6 Superior Casting Company, supra; National Electric Coil Division of
McGraw-Edison Company, 180 NLRB 961, 963 (1970)
"' These findings are based on the testimony of Reeves, as substantial-
ly corroborated by Owens. Julius testified that Reeves and Owens
broached the topic of the Union and volunteered their reasons for sup-
porting it. Julius testified that, when they indicated they wanted more
money, he told them that it would be offered to them if they went into
the other areas of the plant but not in the liquid room because their jobs
paid as much as they merited. According to Julius, they replied that they
did not want to leave the liquid room because they liked it there, and he
told them that in that case they would have to be satisfied with the
annual wage adjustments. Julius denied telling them that they should
pack their bags and get out, but testified that he did tell them that, if they
were not satisfied with the pay in the liquid department and did not want
to work elsewhere in the plant, then possibly they should see if there
were other jobs in the area more suitable for them. Julius also generally
denied discussing plant closing with employees, although he testified that
employees asked him about it and that he replied that the only factors he
considered in keeping any plant open were whether it runs profitably and
I find that Julius unlawfully interrogated Reeves and
Owens by asking them their reasons for their support of
the Union. 8 The threat to close the plant if anyone tried
to make Julius pay more independently threatened repri-
sal for employees' union activities and indeed related the
reprisal directly to the reason stated by Reeves and
Owens for their union activities in response to Julius'
questions. I find that this threat also violated Section
8(a)(1). '
(b). On April 7 employee Syble Dodson distributed
notices for a union meeting that day to employees as
they left the plant after the third shift. Dodson stood out-
side the plant about 5 feet from the employees' entrance.
About 5 minutes after Dodson started, Maintenance
Manager Kuorlall Seegolam approached her and told her
in an agitated manner that she could not distribute leaf-
lets there and would have to go off company property to
do so. She replied that she had already finished her dis-
tribution and she left. Thereafter, Seegolam spoke to
management about the incident and was told that em-
ployees had the right to distribute literature at that loca-
tion. Within 1 or 2 working days after the incident See-
golam apologized to Dodson and told her he had not re-
alized that she could distribute literature where he found
her. Thereafter, she passed out literature at the employ-
ees' entrance on several occasions. In the interim Dodson
had told other employees what Seegolam had done, but
she also told others of his apology and retraction.
There is no question that Dodson had the right to pass
out literature outside the employees' entrance on compa-
ny property and that Seegolam interfered with that right.
The only question is whether Seegolam's apology nulli-
fied the violation that otherwise would be established.
Counsel for the General Counsel contends that the apol-
ogy should be disregarded because of Respondent's other
violations of the Act and because it was communicated
only to a single employee. Respondent contends that the
effectiveness of the apology is demonstrated by the fact
that Dodson handed out leaflets thereafter and that em-
ployees were allowed to post union notices on the bulle-
tin board in the employees' lunchroom without restric-
tion. In the light of the circumstances relied on by Re-
spondent, I find that Seegolam's single effort to stop
that, if for any period of time he could not run any facility profitably, he
would consider closing it because that was a standard business decision
anyone would make.
I have not credited Julius because I find it much more plausible that
the conversation began as Reeves and Owens testified than as Julius testi-
fied, and Julius' testimony impressed me as often colored to put a gloss
on the basic facts most favorable to Respondent's position. In crediting
Reeves and Owens I have considered the fact that they both left their
jobs with Respondent shortly after their conversation with Julius, were
friends, and had discussed their testimony with one another after receiv-
ing subpenas to testify. However, Owens' testimony as to their discussion
and their mutual refreshing of their recollections, rather than establishing
improper collusion, shows only what might naturally be expected of two
witnesses to the same event who discuss it some months later. Owens'
testimony in this regard impressed me as candid in its disclosure of their
discussions.
1s Fred Jones Manufacturing Company, 239 NLRB No. 9 (1978);
Paceco, A Division of Fruehauf Corporation, 237 NLRB 399 (1978).
19 While the General Counsel contends that Julius' remark about pack-
ing and leaving also constituted an independent violation of the Act, it
was not separately alleged, and the basis for the contention that it was
independently coercive is not clear.
NIC-PAK PRODUCTS, INC. 1283
Dodson from distributing leaflets on company property
did not violate the Act. Tri-County Medical Center, Inc.,
222 NLRB 1089, 1093 (1976).
(c) On April 7 at I p.m. the Union held its first orga-
nizing meeting at Kelly's Grandview Restaurant in
Mooresville. 2 0 Molding Department Manager Tullar and
Materials Control Manager Walter Collins arrived at the
restaurant shortly before the meeting and sat at a booth
where they ate lunch. From where they sat, they could
see the employees who attended the union meeting. 21
According to Tullar and Collins, they had no knowl-
edge of the union meeting before they went to Kelly's
that day, but merely went there for lunch as had been
their practice a few times a week. 2 2 Both also denied
that they had been asked by management to go to
Kelly's to report on attendance at the union meeting.
There is no direct contradiction of their testimony, but
there are circumstances which make their denial of
knowledge of the meeting and their testimony as to their
reason for being at Kelly's at the time of the meeting sus-
picious. With respect to their knowledge, notice of-the
meeting had been posted on the lunchroom bulletin
board, had been distributed outside the plant that morn-
ing, and was the occasion for Seegolam's warning to
Dodson. Although Tullar and Collins testified that they
lunched frequently at Kelly's, Dodson testified that she
also ate there often at that time of the day and had not
seen them there before. 2 3 Kelly's was the furthest from
the plant of several restaurants in Mooresville, and
Tullar conceded that he did not particularly care for it,
which was one of the reasons they did not go there after
Hecox came to town. However, offsetting these suspi-
cions is the fact that neither Tullar nor Collins worked in
areas of the plant where most employees worked, and
they knew few employees outside of their own areas by
name. They were not the most likely members of super-
vision to have gone to the restaurant for the purpose of
learning who attended the union meeting. While not free
from doubt, I have concluded that the circumstantial evi-
dence is not sufficient to cause me to discredit Tullar and
Collins as to their lunchtime habits and their knowledge
of the union meeting. Accordingly, I find contrary to the
allegation of the complaint that their presence at Kelly's
did not constitute surveillance in violation of Section
8(a)(1) of the Act. 2 4
(d) On April 7 employees at work after the union
meeting talked about whether the plant would close or
wages would be cut. Employee Tomlinson asked Mold-
ing Department Manager Tullar if he thought Julius
might close the plant, and Tullar replied that there was a
"good possibility" that Julius would move the machinery
20 The meeting was announced in a leaflet distnbuted to employees
that morning and posted on the bulletin board in the lunchroom the night
before.
21 There is no dispute that Tullar and Collins were present at the time
of the meeting. Witnesses differed in their estimates of the distance be-
tween where Tullar and Collins sat and the entrance to the meeting
rooms but there is no question that they could see the entrance, and it
appears that they were about 20 to 25 feet from it, a distance on which
Tomlinson and Tullar agreed.
22 They testified that later that month after Hecox arrived to become
plant manager they started to go elsewhere with Hecox for lunch.
23 Leadman Stone testified otherwise however.
24 Vincenti Steak House. Inc., 216 NLRB 647, 649, fn. 5 (1975).
from Mooresville to the new facility in California when
it opened. She also asked him about wages, and Tullar
said a lot of times when unions came in wages were re-
duced to the minimum wage. 2 5
While Tomlinson's question initiated the conversation,
her questions were indicative of employee fears and con-
cerns of retaliation for union activity. There were
rumors in the plant that it would close, and, indeed, as
supervisors testified, many employees asked them about
the possibility of the plant closing. The rumors of closing
and the employee questions occurred against a backdrop
of movement of machines both in and out of the Moores-
ville plant, some for modifications and some in connec-
tion with the the impending opening of the California
plant.'2 Tullar's response to Tomlinson and responses of
Tullar and others to questions of other employees later
on, as will be seen below, not only failed to allay em-
ployees' fears but exacerbated them. Tullar's statements
to Tomlinson threatened plant closing as a reprisal for
employee union activities and violated Section 8(a)(1) of
the Act.
(e) As set forth above, in February Respondent distrib-
uted a questionnaire to all employees. In response to a
question about the most desired change in the plant, all
third-shift employees indicated that they wanted their
workweek to begin at midnight Sunday rather than mid-
night Monday as was then the practice. When Julius
spoke to the assembled empolyees on March 14 to report
the results of the questionnaire, he told the third-shift
employees that it was not possible to make that change
because there were no mechanics on the third shift to
start up the machines after the weekend shutdown. 2 7
26 Tomlinson so testified. Tullar did not recall that Tomlinson asked if
the plant would close, but testified that she and others asked if they
would lose a machine to California. He testified that he told his employ-
ees that some machines "up front" would possibly be assigned to Califor-
nia, but that the molding operation would continue to expand. Respon-
dent contends that an inference adverse to Tomlinson's credibility should
be drawn because Tomlinson testified that employee Mary Stapleton was
standing nearby during the conversation and the General Counsel failed
to call her as a witness However, there is no reason to believe that her
testimony should have favored the General Counsel rather than Respon-
dent or that she was any less available to Respondent than to the General
Counsel. In these circumstances, I find no reason to draw an inference
adverse to Tomlinson's credibility from the General Counsel's failure to
call Stapleton. See Local 259, United Automobile, Aerospace. and Agricul-
rural Implement Workers of America (Atherton Cadillac, Inc), 225 NLRB
421, 422 (1976). 1 have credited Tomlinson and not Tullar as it is clear
that employees were concerned about the possibility of plant closing and
not merely losing a machine, because Tullar's denial was limited, as were
those of Respondent's witnesses in many instances, to a claim of no recol-
lection, and because I have not credited Tullar in other respects as well.
25 On February 14 and May 18, machines were moved into the plant
On March 24, April 4, May 31, and June 14, machines were moved out
of the plant On June 22 a machine arrived at the warehouse from New
York and on June 27 a machine was moved from Mooresville to Califor-
nia The record does not show whether either of these machines was
moved on or off the production floor before the June 24 election. During
preelection period there were some capital improvements made in the
molding area of the plant.
27 Syble Dodson testified that Julius said that it was impossible. Julius
denied using the word "impossible" and testified that he told employees
he would consider the change, that it was probably difficult to make it
but that he would talk to his supervisors and get back to the employees.
Julius also testified that on earlier occasions he had told employees he
was not ready to consider such a change, and did not indicate what hap-
pened between March 14 and April 10 when the change was made
Continued
NIC-PAK PRODUCTS, INC.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, on April 10 Julius instituted the requested
third-shift change.
I find as alleged in the complaint that the implementa-
tion of the requested change in third-shift schedule vio-
lated Section 8(a)(1) of the Act. Despite unanimous em-
ployee support for the change, in mid-March Julius indi-
cated to the employees as he had before that the change
could not be made. Yet little more than 3 weeks later the
change was made. These facts coupled with the open
commencement of union activities on March 29 are suffi-
cient to establish prima facie that the cause of Respon-
dent's change in position was the intervening beginning
of the union activities. While Julius testified to a some-
what different version of what he told the third-shift em-
ployees in March, he did not testify to anything which
happened between March 15 and April 10 to explain
why what in his terms was "probably difficult" on
March 15 was implemented on April 10. In the absence
of such explanation I find Respondent failed to refute the
prima facie case and that implementation of the change in
third workdays violated Section 8(a)(1) of the Act.
There is evidence also as to changes in overtime pay
policies and the institution of a shift premium for third-
shift employees. As to the former, Dodson conceded that
the change may have occurred before the union activities
began, and no payroll records were introduced to show
otherwise despite their production pursuant to subpena.
As to the latter, while Dodson testified that the increase
became effective after the union campaign began, payroll
records show otherwise. As these benefits appear to have
been granted before the union activities began, 28 their
grant could not have violated Section 8(a)(l) of the Act.
(f) In mid-April, Julius held a meeting for the employ-
ees regarding the union organizational campaign. After
the meeting employee Tomlinson told Julius that she
could not understand why employees wanted a union be-
cause he had given them several bonuses. He replied that
if she felt that way she should discourage her friends
against the Union.2 9
Generally, an employer's action in seeking employees
to enlist their aid in opposing a union or supporting the
employer violates Section 8(a)(1) of the Act.30 Here
Julius' request to Tomlinson came only after Tomlinson
Dodson and Julius were the only witnesses called to testify as to what
Julius told the third-shift employees. When Julius was initially called as
an adverse witness at the outset of the hearing, he showed a hazy recol-
lection of his meetings with the employees and when he was recalled he
appeared to shape his ater testimony to advocate his position. Although
Dodson's testimony was not corroborated, she was still employed by Re-
spondent at the time of the hearing and I found her generally credible. I
have concluded in the circumstances that she is to be credited over
Julius.
" The record does not show when the Paperworkers organizing ac-
tivities began or became known to Respondent.
29 I have credited Tomlinson who so testified. While Julius testified
that he did not know Tomlinson and therefore did not recall any conver-
sation with her, he testified otherwise that, when employees indicated
that they did not support the Union or supported it only as the lesser of
two evils, he suggested they get their friends to support the Company. I
note that it makes no difference whether, as Tomlinson testified, Julius
asked her to work against the Union or, as Julius testified he asked
others, to work on behalf of the Company. See American Manufacturing
Company, Inc., 196 NLRB 248, 257 (1972).
30 Marathon Le Tourneau Company, etc., 208 NLRB 213, 215-216
(1974); Peerless ofAmerica, Incorporated, 198 NLRB 982, 990 (1972).
had indicated to Julius, at her initiative, her own skepti-
cism as to why the employees would want a union.
There is no indication that Julius asked her to change
her views or indicated that he would be watching to see
what she did in response to his request. His conversation
with her was free of any threat or promise. I find in the
circumstances that Julius' request to Tomlinson was not
so couched as to interfere with Tomlinson's right to
engage in or refrain from engaging in union activities. I
conclude therefore that Julius' request to Tomlinson did
not violate Section 8(a)(l).
(g) Before the union activity began, Respondent
posted a no-solicitation rule on the plant bulletin board
which provided: "In order to maintain production and an
orderly work flow, solicitation for any purpose is prohib-
ited during working time." In mid-April during working
hours Syble Dodson conversed with Donna Bennett, a
machine operator, while Dodson was assisting Bennett at
Bennett's machine. Dodson was wearing a UAW button
at the time. After Dodson left Bennett's machine, Myers
approached Bennett and asked her what she and Dodson
had been talking about. Although their conversation had
been about the Union, Bennett told him it was about sex.
Myers left Bennett and called Dodson into his office. He
told her that for the last 2 weeks she had not been doing
her job and that he did not want her talking to any oper-
ators at all. Dodson had routinely talked to operators on
the job before and had not been previously warned about
it.
After Dodson left Myers' office, Dodson asked
Wagner, another material handler on third shift, to talk
with Bennett at her machine to see whether Myers said
anything to her. Wagner was not wearing a UAW
button and was not known as a union supporter at this
time. She spoke to Bennett for approximately 5 minutes.
Although Myers was in a position to observe their con-
versation, he took no action to end it.
After this incident the operators were told that the
material handlers were not allowed to help them with
work at their machines as Dodson had done for Bennett.
Despite Myers' warning to Dodson, she spoke to em-
ployees during working hours about the Union and other
matters on a number of occasions thereafter. 3
The General Counsel contends that this incident shows
unequal enforcement of the no-solicitation rule since
Myers sought to find out what Dodson, a known union
supporter, was talking about, and warned her not to talk
to operators while ignoring Wagner. Respondent con-
tends that the evidence fails to establish uneven applica-
tion of the no-solicitation rule and, if anything, shows an
attempt by Dodson to entrap Respondent.
There is no evidence that Myers knew what Dodson
was talking to Bennett about, but the fact that Myers
asked Bennett what they talked about indicates that he
suspected her of violating the no-solicitation rule. His in-
5 The findings as to this incident are based on the testimony of
Dodson, Wagner, and Bennett. Myers denied that he had any conversa-
tion with Dodson in April about talking to other employees and denied
knowledge of any incident involving Wagner and Bennett. He testified
that in June he told her not to spend 15 or 20 minutes at a time talking to
operators. I have credited Dodson, Wagner, and Bennett, and not Myers
whose credibility was substantially impaired in his testimony concerning
the discharges of Collins and Waldrip.
-- -
NICE-PAK PRODUCTS, INC. 1285
struction to Dodson not to talk to operators about any-
thing indicates that he sought to treat her differently
from others, and the instruction to the operators that
they could no longer receive help from the material han-
dlers of the kind Dodson had been giving Bennett is fur-
ther indication of a intent to limit Dodson's opportunities
to talk to the operators. Although Wagner's conversation
with Bennett may not have exceeded normal conversa-
tion within the department, it shows that Dodson was
being singled out for special treatment. The fact that
Wagner's visit to Bennett occurred as a test of Myers did
not detract from its validity in showing the disparity,
since Myers was as free to stop Wagner as he had been
to stop Dodson. I conclude that Dodson was singled out
for special treatment on this occasion and that the only
apparent reason was her open support for the Union. I
find that in these circumstances Myers' instruction to
Dodson not to talk to operators violated Section 8(a)(l)
of the Act.
(h) A couple of weeks after the union campaign start-
ed Tomlinson asked leadperson Worland if he thought
the plant would close if the Union came in. Worland an-
swered that he was not worried about it because he
could always transfer to the California plant. On that oc-
casion and others Worland said that he felt that the plant
would close if the Union won the election and Respon-
dent would move everything. 3 2
As I have found above that Worland was a supervisor
within the meaning of the Act, I find that his statements
are attributable to Respondent. I find that like Tullar,
Worland exacerbated employee fears of plant closure as
retaliation for their union activities and that Respondent
thereby violated Section 8(a)(l) of the Act.
(i) Sometime in April, Tomlinson spoke with Tullar
about a medical leave of absence. During the conversa-
tion, Tullar asked her whether employees Carol Craft or
Mary Stapleton had signed union authorization cards.
She said that she did not know, and Tullar asked if she
knew how many cards had been signed. When she again
answered negatively, he asked Tomlinson if she could
get this information from Dodson. She replied that she
thought she could, but never talked to him about it
again. 33
The interrogation of Tomlinson as to the identity and
number of card signers, as well as the request to Tomlin-
son to get the requested information from Dodson all
violated Section 8(a)(l) of the Act.
(j) Around June 8 Dabney came to Karla Collins' ma-
chine and asked if she wanted to talk with him about the
Union.3 4 She replied affirmatively, and he told her to ac-
company him to the lunchroom. He showed her a list of
15 to 20 questions about unions and told her that, if she
32 Tomlinson so testified. Worland testified that he remembered telling
an unidentified employee that there was a good possibility that "they
could if they wanted to" close the plant. He did not deny the statements
attributed to him by Tomlinson. I have credited her testimony.
33 Tomlinson so testified. Tullar testified that he did not recall their
conversations on these occasions but that he would not have asked her
about who signed cards because he did not think it was permissible to do
so. I have credited Tomlinson.
34 During the 2 weeks before the election, members of management
spoke to a number of employees on a one-to-one basis about the Union
and the election.
went to a union meeting and asked them, they could not
be answered to her satisfaction. Collins said she was
going to a meeting in a few days and Dabney gave her a
copy of the list. After showing her some other written
materials, Dabney asked her opinion of the Union. She
replied that she was not sure yet, that she kept asking
questions but felt she was being led around the bush.3 5
I find that Dabney's question to Collins about her
opinion of the Union violated Section 8(a)(l) of the
Act.3 6
(k). About 2 weeks before the election, while Molding
Department Manager Tullar and maintenance employees
Jerry Huff and Tim Lowe were talking, Tullar told them
that he hoped the employees would enjoy "the nice long
vacation" they would have if they voted for the Union.
Huff asked Tullar what he meant, and Tullar said that
Huff knew what he meant.37
I find that in the atmosphere of rumors and employee
questions about plant closing Tullar's statement could
only be construed as a threat of reprisal for employee
union activities and violated Section 8(a)(1) of the Act.
(I) On or about June 10 Dabney aksed employee Ruth
Shook to talk with him in the lunchroom. Dabney told
her that Respondent did not need a union and stated a
number of reasons in support of that position. In the
course of his remarks, Dabney asked her if the Union
had promised the employees anything better than what
the Company was then giving them and said that, if the
Union came in, they could possibly reduce employees'
wages and the employees could lose benefits they cur-
rently enjoyed. Dabney asked her if she had any com-
plaints against Respondent's present policies. She did not
reply.38
The General Counsel contends that Dabney's state-
ments constituted unlawful interrogation calculated to
explore whether Shook supported the Union or the
Company and the depth of her feelings. Whether or not
these questions amounted to indirect questioning of
Shook about her support for the Union, they were an un-
lawful solicitation of grievances in violation of Section
8(aX1). 39
(m) About 2 weeks before the election, floorgirl Linda
Miller told Donna Bennett that if she had any "gripes"
to air she should talk to Dabney. Later, Miller sent Ben-
nett to the lunchroom where Dabney showed her some
papers and asked if she were going to vote for the
Union. She said that she was not there to talk for or
s5 I have credited Collins who so testified. While Dabney denied that
he predicted that the Union could not answer the questions on the list, he
did not deny asking Collins her opinion of the Union.
36 Fred Jones Manufacturing Company. supra.
3' I have credited Huff who so testified. Tullar denied any recollection
of having talked to Huff about the union campaign at any time and testi-
fied that he would not have said anything like what Huff attributed to
him. I have not credited Tullar as to a later conversation between him
and Huff and do not credit this less than direct denial. The General
Counsel's failure to call Lowe as a witness does not warrant drawing an
inference adverse to Huffs credibility. See fn. 25, supra.
38 Shook who was employed by Respondent at the time of the hearing
so testified. Dabney testified that he talked to 30 or 40 employees about
the Union in early June. He was not asked specifically about his conver-
sation with Shook but testified generally that he only tried to answer em-
ployees' questions and that he did not remember asking any employee if
she had any complaints. I have credited Shook.
s9 Fred Jones Manufacturing Company, supra.
NICE-PAK PRODUCTS, INC~~~~~~~~~~~~~~~~~. 1
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against the Union but to air her gripes. After talking to
him about them she told him that she was not for the
Union. Dabney put an arm around her, walked her back
to her machine, told her he was glad to have her on
their side, and warned her to watch whom she associated
with.4 0
I find that Dabney unlawfully interrogated Bennett.
(n) About 2 weeks before the election, Second-Shift
Supervisor Atkins called Ivory Parsons into the lunch-
room. Atkins asked her how she felt about the Union.
She replied that she felt that the employees needed it.
Atkins showed her newspaper clippings about UAW
strikes. 41
I find that Atkins' interrogation of Parsons as to her
feelings about the Union violated Section 8(a)(l) of the
Act.
(o) The day after Atkins spoke to Parsons, First-Shift
Supervisor Smith asked Parsons if he could talk to her
and took her to the lunchroom where he showed her the
UAW constitution, newspaper clippings about UAW
strikes, and the salaries of UAW officials. Smith asked
her what she thought about the UAW constitution and in
the course of the conversation told her that the employ-
ees could lose benefits, gain nothing, or possibly gain im-
provements if the Union won the election. When Parsons
replied that they could not lose much, Smith told her
they did not know that that would be the result. At the
end of their conversation, Smith asked her if their talk
did her any good. 4 2
40 Bennett so testified. Dabney recalled talking to her at her machine
but had no recollection of talking to her in the lunchroom. He denied
asking her if she were going to vote for the Union, putting his arms
around her, telling her he was glad to have her on his side, or warning
her to watch whom she associated with. Here, as elsewhere, Dabney's
denials are tempered by his claimed lack of recollection of the specifics
of any conversation with Bennett. It is apparent from the cumulative tes-
timony of the several witnesses to whom Dabney spoke during the pree-
lection period that he did more than simply ask if employees had ques-
tions they wanted to ask of him. I have credited Bennett.
41 Parsons so testified. Atkins testified he talked to Parsons after she
told him several times that she would like to speak with him. He testified
that he showed her newpaper clippings about UAW strikes, but denied
asking her how she felt about the Union Although Parsons showed some
confusion during her examination between this conversation and a con-
versation with Richard Smith the next day, that confusion was momen-
tary and came only after her examination was interrupted. Despite it Par-
sons appeared to be trying to be accurate in her testimony. Atkins con-
ceded that he did not recall what he said to her when he showed her the
strike clippings, or what she said after she saw them. While he denied
asking Parsons how she felt about the Union, he did not impress me as
having any clear recollection and initially testified only that he did not
recall asking her that question. I have credited Parsons who was still em-
ployed at the time of the hearing.
42 These findings are based on the testimony of Parsons and Smith
whose testimony was not in conflict except as to whether Smith men-
tioned the possibility that benefits could be improved as well as decreased
and whether Parsons answered affirmatively or negatively to his question
as to whether the talk did any good. I have credited Smith that he men-
tioned the possibility of benefits improving although find it understanda-
ble that Parsons did not remember that he did so in view of his response
when she expressed the view that there was little to lose. I credit her,
rather than Smith, that she told him the talk had done her no good in
view of his initial testimony that he terminated the conversation when he
concluded that she did not want to listen I also do not credit Smith as to
his reasons for talking to Parsons and then asking her if the talk had done
her any good. It is clear that his was a partisan effort to induce Parsons
to vote against the Union and part of a systematic program of employee
contacts for that purpose.
Smith's electioneering may have been protected, but
his parting question to Parsons was not. Since he be-
lieved Parsons to be a supporter of the Union,43 the
clear purpose of his question was to put Parsons in the
position of disclosing whether her views about the Union
had changed. I find that Smith's interrogation of Parsons
violated Section 8(a)(l) of the Act.
(p) On Friday June 17, Production Manager Dabney
asked Cathy Waldrip to come with him to the lunch-
room to talk. There he showed her some printed materi-
als relating to strikes and talked to her about what could
happen if there was a strike. In the course of the conver-
sation Dabney asked her why she thought the employees
needed a union. She told him they needed a union be-
cause they needed more benefits and pay. Dabney told
her that wages could not be increased due to the profit
margin. During the conversation Waldrip asked if it was
true that Respondent would shut the plant down if the
Union got in because rumors to that effect were circulat-
ing in the plant. Dabney replied that he had worked for
a company in Puerto Rico which locked its doors after a
union won an election and that he would be the last
person the Company would tell because he would start
looking for another job. 4 4
I find that Dabney's questioning of Waldrip about her
reasons for wanting a union violated Section 8(a)(1) of
the Act.4 Dabney's response to Waldrip's question
about plant closing did nothing to dispel employee fears
but suggested that plant closure was a distinct possibility.
I find that Dabney's statements about plant closing
threatened reprisal and violated Section 8(a)(1) of the
Act.
(q) About a week before the election, Maintenance
Manager Seegolam asked Linda Atwell whey she felt the
employees needed the Union. She replied that she
thought they could have better benefits and working
conditions. Seegolam showed her newspaper clippings
about UAW strikes, forms showing salaries of union offi-
cials, and a list of questions to ask union representatives.
Seegolam then asked her why she really wanted a union.
When Atwell replied that she felt she had been unfairly
passed over for a posted job opening, Seegolam told her
that, if she had come to him, he probably could have
straightened it out and asked if she were still interested
in it. Atwell gave an evasive answer. Seegolam said he
could understand why she was for the Union but that
there were other ways to handle her concerns. 46
43 He knew that her mother wore a union button and testified that he
believed Parsons might have been wearing a union T-shirt at the time of
the conversation.
44 I have credited Waldrip who so testified Although Dabney testified
that he told Waldrip and others thi he did not know why the plant in
Puerto Rico closed, it seems clear that the only purpose for mentioning
this experience in response to Waldrip's question was to leave the infer-
ence to be drawn that the plant had been closed because of the Union
4 Fred Jones Manufacturing Company, 239 NLRB No. 9 (1978).
4' Atwell so testified. Seegolam testified generally to conversations
with several employees during which he showed them materials relating
to the Union which he received at a supervisors' meeting. He testified
that he could not recall exactly what he said to the employees, but
denied that he encouraged employees to vote against the Union. He also
testified that, when employees asked about grievances or complaints, he
told them that during the campaign no one could do anything about it
He was not questioned specifically about his conversation with Atwell. I
Continued
NICE-PAK PRODUCTS, INC. 1287
I find that Seegolam's interrogation of Atwell as to her
reasons for supporting the Union violated Section 8(a)(l)
of the Act. His response to her complaint about being
passed over for a posted job implied a promise to do
something about the grievance which she had described
as reason for supporting the Union. That promise also
violated Section 8(a)(1).
(r) About a week before the election, Donna Bennett
was told to go to the lunchroom because Seegolam
wanted to speak to her. In the course of their conversa-
tion, Seegolam asked her if she felt the Company needed
a union. She said that she did not feel that the Company
needed a union, and he said that he was glad to hear
that.4 7
I find that Seegolam's interrogation of Bennett violat-
ed Section 8(a)(l) of the Act.
(s) Shortly before the election, Supervisor Myers en-
couraged Willetta Logsdon, a machine operator on third
shift, to attend a scheduled union meeting. A day or two
before the election, Logsdon wore a union T-shirt to
work. That night Myers asked her if she had gone to the
union meeting and had all her questions answered. She
told him she had been to the meeting but did not have
all her questions answered. Myers then spoke to her
about a UAW contract and changes which might occur
with a union, including a requirement of safety glasses,
no more talks between supervisors and employees, and
the possibility that the attendance point system could get
worse if the Union won. 48
I find that Myers' questioning of Logsdon violated
Section 8(a)(l) of the Act. Although the General Coun-
sel contends that Myers' statements about benefits were
threats of reprisal, it appears that his statements were
presented as possibilities of what could happen based on
another contract and I do not find that they violated
Section 8(a)(l) of the Act.
(t) Shortly before the election, Dodson asked Stone if
he really thought the plant would close if the Union
won. Stone replied that he really believed Julius would
close the plant before he would negotiate a contract.
Mary Wagner, who was present, asked why and Stone
answered because Julius needed a nonunion plant for
production if Respondent's other plants ever struck.4 9
I have found above that Stone was a supervisor within
the meaning of the Act and I find that Stone's statements
were therefore attributable to Respondent. I find further
have credited Atwell. Apart from Seegolam's failure to deny specifically
Atwell's testimony, his testimony that he did not try to encourage em-
ployees to vote against the Union is patently incredible in the circum-
stances and in the light of his own testimony on cross-examination.
47 I have credited Bennett who so testified. Seegolam testified general-
ly as to his conversations with the employees, as set forth above, but was
not questioned about this conversation.
'4 I have credited Logsdon who so testified. While Myers denied the
statements Logsdon attributed to him, he also testified that he had no rec-
ollection of their conversation.
49 Dodson and Wagner so testified. Stone testified that he told Dodson
that it was possible that the Company would shut its door but that he
meant that the plant could shut down for a while because the warehouse
was overstocked and not that it would move. Stone could not recall how
the conversation started or anything said by Dodson or Wagner. I have
credited Dodson and Wagner, both of whom were employees at the time
of the hearing
that his statement to Dodson and Wagner was a threat of
reprisal which violated Section 8(a)(l) of the Act.
(u) On the Monday or Tuesday before the election
Seegolam spoke to Ruth Shook in the lunchroom. He
told her that the Company did not need a union, and,
then, after looking directly at a UAW button she was
wearing, asked why she felt the employees needed a
union. Shook replied that she did not think the Company
was fair and that a contract might result in greater fair-
ness. Seegolam asked why she thought the employees
needed a contract, and she answered by asking whether
or not the Company required contracts when it sold its
products. Seegolam said that was a different matter and
showed her materials and newspaper clippings relating to
the Union. Seegolam asked if the Union had promised
the employees anything. She said the Union could not
promise anything and asked what the Company could
promise. He said the Company could promise nothing
but if she would have more faith in the Company she
would find that they were going to have great improve-
ments. Seegolam told her that they had just hired Plant
Manager Hecox and Personnel Manager Clark and that
if she had faith in them she would not vote for a union
but would give them a year to show improvement. See-
golam also said that if the Union won, the Company did
not have to agree to anything it asked for and there
would probably be a strike. Seegolam said that if there
was a strike, the employees would be replaced and
would be out of jobs. Shook told Seegolam that another
employee had told her that, if the Union got in, the
Company would close the plant. Seegolam said that was
very possible and that he had known it to happen
before.5 0
I find that Seegolam's interrogation of Shook as to her
reasons for supporting the Union violated Section 8(a)(1)
of the Act. I find further that Seegolam's response to her
question about plant closing could only feed the fears
and rumors which had been circulating in the plant and
violated Section 8(a)(l).
(v) On or about June 21 Donna Bennett's supervisor,
Myers, gave her a warning for excessive absences as she
had accumulated 11 points under Respondent's atten-
dance and lateness policy. She argued with him that 11
points did not warrant a warning. Myers told her not to
worry about it but that he had checked and II points
warranted a warning. Later that day Bennett took the
warning to Seegolam and asked him if 11 points warrant-
ed a write up. Seegolam checked and confirmed that
under Respondent's attendance and lateness policy, the
warning was warranted. Bennett pointed out to him that
the carbon paper had been placed improperly on her
copy so that it was backwards, and mentioned that she
had to take time off because her child was sick. Seego-
lam told her, "Let me show this to somebody, I just
can't believe this .... After all, you are on our side
60 I have credited Shook who so testified. Seegolam testified only gen-
erally as to his conversations with employees and could not recall exactly
what he said to them
NICE-PAK PRODUCTS, INC. 287
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and I just don't think you deserve it." Seegolam took her
copy and never returned it.51
I find that Seegolam offered to seek preferred treat-
ment for Bennett based on her professed opposition to
the Union, thereby violating Section 8(a)(l) of the Act.
(w) In June, about 2 days before the election, Quality
Control Manager Sanders came to the work station of
Machine Operator Linda Atwell and asked her either
why she felt she needed a union or whether she felt she
needed a union. In the course of the ensuing conversa-
tion, Sanders said that Julius was financially able to do
whatever he wanted to do after the election and asked
her if she knew what he meant. When she said she
thought so, Sanders said that he did not think Julius
would close the plant but that he could if he wanted
to. 52
I find that Sanders unlawfully interrogated Atwell. I
find further that whether or not, in response to a ques-
tion from Atwell, Sanders' statement about Julius' ability
to do whatever he wanted and to close the plant played
upon the fears of employees about the possibility of plant
closure as a reprisal for union activity and were designed
to keep that fear alive. I find that Sanders' statements to
Atwell violated Section 8(a)() of the Act.
(x) A couple of days before the election, Debbie Skin-
ner, a machine operator on third shift, asked Production
Manager Dabney if it was true that Julius would close
the plant if the Union won the election. Dabney told
Skinner that he would talk to her later, and later that
day Dabney summoned her to the lunchroom, where she
repeated the question she had asked earlier. Dabney re-
sponded that Julius could do whatever he wanted and
that he could close the plant down if he wanted when-
ever he wanted. They discussed benefits, and Skinner
asked if there would be a strike if the Union came in.
Dabney said it was up to the employees but it looked
like there would be a strike. 53
By stressing Julius' power to do whatever he wanted
whenever he wanted, Dabney underscored the possibility
that the plant could close because of the union activity
thus giving credibility to the rumors in the plant and
adding to employee fears of reprisal.
5' Bennett so testified. Seegolam testified that Bennett told him her
warning was typed backwards, and that when he said he did not believe
that, she showed it to him. However, he testified that he then gave it
back to her. He denied saying anything about her being on the Compa-
ny's side. On cross-examination, he testified that, before she mentioned
the typing, Bennett said she had received a warning notice for points and
he said, "Well there is nothing I can do about that." Seegolam's own ver-
sion on cross-examination of his initial response when Bennett told him
about the notice indicates that he took her statement to him as indicating
that she had come to him for help, as she testified. I credit Bennett that,
at that time, 3 days before the election and shortly after Seegolam had
interrogated her, Seegolam took the warning from her and led her to be-
lieve he would try to have it withdrawn as she also testified.
5 I have credited Atwell who was still employed at the time of the
hearing and so testified rather than Sanders who displayed little recall of
the details of his conversation with Atwell or other employees.
" I have credited Skinner who so testified and was still employed at
the time of the hearing. Dabney did not recall a specific conversation
with Skinner, and it is apparent even from Dabney's version of how he
responded to such questions that when employees asked him about the
possibility of the plant closing he did not seek to allay their concern but
kept it alive.
I find that Dabney's reply to Skinner violated Section
8(a)(l) of the Act.
(y) On June 22, the night that Collins and Waldrip
were discharged, as discussed below, Dodson talked with
machine operator Debbie Etchinson at her machine
while Dodson was checking boxes there. While she was
there Production Manager Dabney came over and told
Dodson that he did not want her talking to employees
and that she should do her work and move on. That
same night, Maggie Scroughams who opposed the
Union, talked against the Union to Collins for 35-40 min-
utes at her machine. Myers and Dabney observed this
conversation but did not act to terminate it. Shortly
afterwards, Wagner, who was then wearing a union
button, stopped to talk with Collins, and Dabney came
by and told her not to talk to employees or bother them
but to "move on,"5 4
The General Counsel contends that this sequence of
events shows discriminatory enforcement of the no-so-
licitation rule against union sustain that contention be-
cause there is no evidence that Scroughams' opposition
to the Union was known to Respondent. The only direct
evidence of Respondent's knowledge of her views relates
to a period after these events.55 However, the extensive
evidence of one-to-one meetings with employees, the in-
terrogation of employees, and the intensity of the cam-
paign within the plant over a 3-month period warrants
the inference that Respondent was aware of the identity
of those actively talking against the Union in the shop.
In any event, it is sufficient to sustain the General Coun-
sel's contention that Scroughams was not a known sup-
porter of the Union. I find that Respondent, which gen-
erally permitted employees to talk while at work, tolerat-
ed Scroughams' talking but admonished Dodson and
Wagner not to talk on the eve of the election because of
their union activities, thereby violating Section 8(a)(1) of
the Act.
(z) On the night before the election, Seegolam asked
Huff if he could speak with him. Seegolam asked Huff if
he thought the Company needed a union. Huff said he
did not know and Seegolam asked whether he had any
complaints about the way he was being treated. Huff re-
plied that he did not. Seegolam showed him copies of
disclosure forms filed by the Union and talked with him
about certain union expenses shown on the forms. Seego-
lam concluded by telling Huff that he hoped he would
make the "right decision" the next day.5
I find that Seegolam's interrogation of Huff and solici-
tation of complaints violated Section 8(a)(l) of the Act.
(aa) On July 6, after the election, Molding Department
Manager Tullar called Huff into his office to discuss a
warning Huff had received for excessive absences. After
4 Testimony of Dodson, Collins, and Wagner as to these incidents is
uncontradicted. Contrary to Respondent's contention there are no incon-
sistencies in their testimony which would warrant discrediting it.
" First Shift Supervisor Smith testified that Scroughams was vocally
antiunion in August when he substituted on the third shift.
"5 Huff so testified and to this extent his testimony was uncontradicted.
Huff's further testimony that Seegolam made derogatory and racist com-
ments about the use of union dues was contradicted by Seegolam While
I have substantial reservation as to Seegolam's credibility, I find it unnec-
essary to resolve this conflict, since assuming that Huff's testimony was
credited, these remarks would not violate the Act.
NICE-PAK PRODUCTS, INC. 1289
explaining what the warning meant, Tullar told Huff that
he should get his mind back on his work and "stay away
from all the radicals." Huff asked Tullar what he meant,
and Tullar replied, "You know what I mean." 5 7
I find that Tullar's warning to Huff to stay away from
unidentified radicals less than 2 weeks after the election
was both intended by Tullar and reasonably construed
by Huff as a warning not to associate with union sup-
porters and violated Section 8(a)(l) of the Act.
(bb) On September 1, Dodson and Smith had a con-
versation about the Union in his office. Smith told
Dodson that he probably was not supposed to ask her
but was going to ask her anyway which first-shift em-
ployees testified against him during the investigation of
the charges filed by the Union. Dodson told him he was
well liked and did not think anyone would testify against
him. She also told him that she would not tell anyone
about this conversation, but thereafter gave a statement
to the Board agent about it.58
I find that Smith's interrogation of Dodson about the
identity of employees who gave statements against him
violated Section 8(a)(1) of the Act.
(cc) In October 1977 Barbara Thomas was interviewed
by Personnel Manager Larry Clark for possible hire. In
the interview Clark told her that the plant was nonunion
and asked how she felt about unions. When Thomas ex-
pressed a dislike for unions, Clark said it was nice to
hear and said that after she started work perhaps she
could express her feelings.5 9
57 Huff so testified. While Respondent attacks Huff's credibility be-
cause of his confusion over a conversation described in his affidavit on
which no allegations of the complaint are based, Tullar's version of his
conversation with Huff is virtually the same as Huffs. Tullar testified in
addition, however, that he used the term "radical" to refer to a group of
long-haired part-time employees with whom Huff worked and who
Tullar had been told possibly smoked marijuana on the roof of the plant
According to Tullar, he later made the same comment to Personnel Man-
ager Clark and that when Clark "asked what he meant" he told Clark the
same thing as he had told Huff. Clark testified that Tullar told him he
had asked Huff to stop running around with radicals, that Clark asked
Tullar what he meant, and Tullar replied, "Oh, these people with dope
and long hair." In an affidavit Tullar gave on August 2, 1977, during the
investigation of the case, Tullar stated that he did not remember telling
any employee "to stop messing around with all these radicals." There is
no indication that Huff had any reason to know that Tullar was referring
to employees with whom Huff was assigned to work or that Tullar had
any reason to be coy in response to Huffs request for clarification if that
was what Tullar had in mind. Given the recency of the election, the dis-
crepency between Tullar's and Clark's testimony as to whether Tullar ex-
plained to Clark who the radicals were, and the statement in Tullar's affi-
davit, I do not credit Tullar as to what he had in mind.
5s Dodson so testified. Smith denied asking Dodson who had testified
against him, but conceded that he had a conversation with Dodson about
the charge in which she told him not to worry because she would keep
their conversation confidential. I have credited Dodson. If Smith had
only voiced his difficulty in understanding why a charge would be filed
against him, as he testified. there would have been little occasion for
Dodson to reassure him that she would not disclose their conversation. I
find Dodson's version of the conversation more credible in the context of
that remark and the fact that Smith and Dodson had talked about the
Union on other occasions without any assurance of confidentiality being
given. Although Dodson was clearly one of the most partisan supporters
of the Union, she also continued to he an employee at the time of the
hearing and I have found her generally credible. While she conceded
lying to Clark, she was not under oath when she spoke to him and her
admitted lie does not warrant rejecting her testimony.
us Thomas so testified While she initially omitted any mention of
Clark's question to her from her version of the conversation, Clark him-
self testified that he asked her whether the fact that the plant was non-
I find that Clark's questioning of Thomas coupled with
the suggestion that she convey her feelings to others vio-
lated Section 8(a)(1) of the Act.60
D. The Alleged Violations of Section 8(a)(3) of the Act
I. Respondent's attendance and lateness policy
As set forth in the introduction above, Respondent im-
plemented a new attendance and lateness policy on Janu-
ary 3, 1977. According to Respondent's president, Julius,
the new policy was designed to eliminate problems asso-
ciated with subjective judgments implicit in the former
attendance and lateness policy which gave supervisors
discretion whether or not to accept employee excuses.
Under the new policy, points are assigned for lateness,
leaving early, absence with calling in, and absence with-
out calling in ranging from two to five points depending
on the nature of the violation. Employees are required to
sign an attendance point record to knowlege points as
they are charged. Disciplinary action is based on the ac-
cumulation of points as follows: A warning for 11 to 15
points in any calendar quarter;"' supension for 16 to 20
points in a calendar quarter or a second disciplinary
action within 1 year; discharge for 21 or more points in a
calendar quarter or a third disciplinary action within I
year. The policy also provides for cash bonuses for em-
ployees who have perfect or near perfect attendance in
any quarter. 62 The attendance and lateness policy state-
ment includes a definition of terms and lists certain ex-
cuses which are described as the only unchargeable ex-
cuses. Two minor amendments to the policy statement
were issued in January and, on January 19, Respondent
issued a notice to all employees that the first four points
accrued by each employee would be eliminated from at-
tendance point totals for the first calendar quarter of
1977 because of severe weather conditions.
Copies of the policy were distributed to all employees
in January and, when new employees were hired there-
after, copies of the attendance and lateness policy were
given to them.
There is no mention of probationary employees in Re-
spondent's attendance and lateness policy statement, and
Julius gave no instructions to management personnel
concerning application of the policy to probationary em-
ployees. However, there is a 60-day probationary period
for newly hired employees, and, according to Julius, it
union posed any problem for her While Clark's version of the conversa-
tion was different, his recollection did not appear to be clear and his
denial that he suggested that she express her antiunion feelings to others
was qualified. I have credited Thomas.
o There is disputed evidence as to statements by leadperson Sims to
employees Tomlinson, Parsons, and Dellacca in late Apnl, mid-May, and
June and as to a statement by leadperson Pierce to employee Wagner in
April which the complaint alleges also violated Sec. 8(a)(I). As I have
found that Sims and Pierce were not supervisors and that Pierce was not
substituting for a supervisor at the time of the statement attributed to her,
these statements were not attributable to Respondent, and I find it unnec-
essary to consider them further.
at Discipline occurs when an employee's point total first falls within
the indicated range.
a2 Julius testified that attendance is of particular importance to Re-
spondent because its products are produced on automated machinery and
not by hand labor. Absenteeism and lateness result in machine downtime
which cannot e recaptured by increased overtime
N I C E - P A P R D C S N .1 8
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued to remain in management's discretion whether
or not to discharge an employee during the probationary
period for attendance or any other reason, so that the
system of progressive disciplinary actions set forth in the
attendance and lateness policy did not apply to proba-
tionary employees. According to Julius, it is the shift su-
pervisor who decides whether a probationary employee
is suitable to become a regular employee.
2. The termination of Collins and Waldrip
Karla Collins started to work for Respondent on May
2, 1977, on the third shift under the supervision of Fore-
man Myers. Collins was discharged for bad attendance
on June 22, 1977, 2 days before the representation elec-
tion and before the end of her probationary period.
Insofar as appears, Collins did not engage in any union
activity until May 26 when she signed a union card. She
did not display any union insignia on her person until
June 17 when she started to wear a union button at
work.
As set forth above, about 2 weeks before the June 24
election, Production Manager Dabney took Collins to
the cafeteria to talk to her about the Union and in the
course of the conversation asked her opinion of the
Union. At that time in her response she indicated uncer-
tainty, although she indicated her intention to attend a
union meeting.
Before June 20, Collins had accumulated 10 points
under the formula set forth in the attendance and lateness
policy.6 3
On June 6, while Myers was on vacation, leadperson
Pierce discussed Collins' 30-day review with her. 64 Col-
lins' quantity of work, quality of work, and attitude were
checked good on the review form; dependability and at-
tendance were marked fair. Under the heading of "Com-
ments," was written "needs to watch attendance."6 5
On June 20,66 Myers' first day back from vacation,
Collins was absent from work without notification. On
June 21, Myers saw her, but said nothing to her about
her absence.
e3 Collins had been charged five points for being absent without call-
ing in on May 21, three points for leaving early because of illness on June
2, and two points for lateness on June 10. In each case she had signed her
attendance point record acknowledging receipt of the points. Although
Collins claimed that she had called in on May 21 to report her absence
and that she should have been assessed only three points on that occa-
sion, 1 do not credit her testimony that she spoke to Clark on May 21, as
she failed to name him in her affidavit and never spoke to him after May
21 in the effort to have her points reduced. In any event if she were im-
properly charged five points on that occasion, it does not appear that the
overcharge bore any relation to her union activities which began there-
after
s4 Myers testified that he completed the form before leaving for his
vacation. Collins had accumulated eight points at that time.
6" Collins denied that this entry appeared on the form when Pierce
showed it to her, but I have credited Myers in this regard who testified
that he filled out the form before he left on vacation Collins had 8 points
at that time, and concededly dependability and attendance were marked
fair. While I find it likely that Pierce drew Collins' attention to this entry,
contrary to Collins' testimony, it is not likely that she told her she had
missed a lot of work, as Pierce testified, for Collins had only missed I
day and left early on another because of illness.
ee Third-shift hours were from midnight to 7 a m. Although there is
some confusion in the record, the day and date of each shift referred to
herein are the early morning hours of the day and date during which
those hours fell.
On June 22, early in the shift Myers called Collins into
his office and asked her to sign for five points for her
absence on June 20. He did not ask her the reason for
the absence, but told her he might want to speak with
her again later about her points. 6 7
During the June 22 shift, employee Maggie Scrough-
ams came to Collins' machine and stood there for about
35 to 40 minutes talking against the Union, as set forth
above. Just before the end of the shift, Myers called Col-
lins into his office. Myers showed Collins her point
record and told her that Respondent could not put up
with someone who had that many points and that she
was terminated. Collins said she did not think it was
right, and Myers said he was sorry.
Cathy Waldrip started to work for Respondent on
May 4, 1977, on the third shift under the supervision of
Myers. Waldrip was also discharged on June 22 because
of her attendance.
Waldrip signed a union authorization card on May 31.
In mid-June, she helped Dodson distribute UAW hand-
bills outside the plant for a short time, and she wore a
union T-shirt to work on June 21 and 22.
On May 17, Waldrip was absent without notification
and was charged five points. In early June before Myers
left for vacation he filled out a 30-day review form for
Waldrip, which Pierce discussed with her. On the form
all rating categories were marked good and there were
no added comments. Pierce told Waldrip that she was
doing good work and they were proud to have her
there.
On June 7, Waldrip was absent because of illness and
was charged three points. On June 14, 15, and 16 Wal-
drip was absent from work with notice so that she could
drive her mother-in-law to visit her husband's dying
grandmother. She returned in time to work Friday, June
17. That morning Production Manager Dabney talked to
her about her trip and offered his sympathy. Dabney said
nothing to her about her absences or points.
Later that morning, Dabney spoke to her about the
Union, asked her why she felt the employees needed a
union, and talked with her about the possibility of the
plant shutting down, as set forth above.
On June 20, Myers returned from vacation, but said
nothing to Waldrip about her points until June 22.
Around 1:30 that morning, Myers called Waldrip to his
office and asked her to sign for three points for each day
of her absence or a total nine points. 68 After Waldrip
signed, Myers told her that he might want to speak with
her again later. Near the end of the shift, Myers called
Waldrip to his office and told her that she had too many
points and that he had to terminate her. Waldrip said it
was not fair because if she had waited until her hus-
band's grandmother died she would have gotten 3 days
61 I have credited Myers that he did not tell her not to worry about
the points but indicated the reason he might want to see her later, as Col-
lins' affidavit is more supportive of Myers' version then her own.
6s Initially Myers sought to assess her five points for June 16, but Wal-
drip told him that her husband had notified the plant of her absence on
June 16, and Myers reduced the assessment for that day to three points.
NICE-PAK PRODUCTS, INC. 1291
off with pay and no points. 6 9 Myers replied that that
was the the way it went. Waldrip received no warning
or disciplinary action concerning her attendance before
June 22.
Myers testified initially as an adverse witness called by
counsel for the General Counsel. At that time he testified
that Collins and Waldrip were discharged for bad atten-
dance and no other reason. He testified that he became
aware of their excessive points on June 2070 and spoke
with Dabney about their excessive points on the morning
of June 21. Myers testified that he recommended Collins'
discharge to Dabney."7 Myers testified that probationary
employees were never given written warnings and that
he considered 11 or more points cause for discharge of a
probationary employee.
Myers was later recalled to testify by Respondent. At
that time he testified that he took Collins and Waldrip's
attendance point records to Dabney on June 21, that to-
gether they went to speak with Plant Manager Hecox
about them, and that Hecox kept the records while
Myers returned to the production floor. Myers testified
that later that day Hecox notified him that he and
Dabney had terminated Collins and Waldrip, 72 and that
the decision to discharge them was made and communi-
cated to him before Myers asked Collins and Waldrip to
sign for their points on June 22.
Dabney was not questioned about his role in the termi-
nation of Collins and Waldrip, but after Myers testified
the second time Hecox was questioned about the deci-
sion. He testified that when Dabney and Myers came to
his office on June 21, Myers told him he had two proba-
tionary employees whom he normally would discharge
for excessive points, but that he wanted to know what to
do because of the organizing campaign. 3 Hecox testified
that he asked if they were union sympathizers and Myers
responded that he thought they might have worn union
insignia. According to Hecox, Myers gave him the atten-
dance records of Collins and Waldrip, and Hecox told
him that he could not give him an immediate answer but
would have to review the situation. Hecox testified that
he asked Myers what the past practice had been, and
Myers indicated that the normal practice would have
been to dismiss Collins and Waldrip. Hecox testified that
he instructed a clerical to compile a list of employees
who had been terminated since January , 1977, showing
the number of points they had accumulated and the rea-
s9 Although Waldrip made this assertion, Respondent's bereavement
plan was limited to absences because of the death of a member of an em-
ployee's immediate family.
70 According to Myers no one kept the point records up to date while
he was on vacation.
71 Myers was not asked what he said about Waldrip Myers testified
also during his initial appearance on the stand that he spoke to Collins
and Waldrip about their 30-day evaluation, then testified that he did not
know, and finally that he did not. He also displayed no clear recollection
of his conversation with Dabney about the terminations, and did not
mention talking to anyone else in management about Collins and Wal-
drip.
72 Myers gave an affidavit during the investigation of this case in
which he made no mention of talking to Dabney or Hecox. In explana-
tion Myers testified that he was not asked at that time who made the de-
cision.
73 Hecox testified that at the beginning of the campaign he advised all
managers and supervisors not to discharge any employees without first
notifying him.
sons for termination.) 4 According to Hecox, it took most
of the day on Tuesday to compile the list, and he re-
ceived it very late in the day. He testified that he re-
viewed the situation at that point and found that there
were four employees who were terminated with less
points than Collins and Waldrip. He testified that, after
discussing the matter with counsel, he came to the plant
late Tuesday night to review the matter again with
Dabney and Myers and to develop the facts and make
certain it was consistent with the policy as they ex-
plained it to him. He testified that early Wedensday
morning, June 22, he made the decision to discharge
Collins and Waldrip, writing a list of reasons for the de-
cision which was subsequently attached to notices of per-
sonnel action placed in their files. According to Hecox
he then authorized dismissal of Collins and Waldrip. 75
The statement which Hecox wrote and attached to the
notices of personnel action for Collins and Waldrip was
as follows:
Two employees terminated on 3rd shift for exces-
sive absenteeism. Judgment regarding liability beca-
sue it is close to union election is as follows:
(I) We cannot suspend these employees because
it would set a precedent.
(2) We cannot ignore 15 and 19 points because
our normal policy is suspension for non-probation-
ary employees.
(3) We cannot ignore taking action because is
(sic] would not be consistent with past practice of
terminating employees at 11-13 points.
(4) If we waited until after the election, we
would be liable for not taking action in a timely
mariner.
Hecox testified that there were four probationary em-
ployees identified on the list of terminated employees
compiled for him whose terminations he concluded were
74 Respondent offered the list evidence in conjunction with Hecox's
testimony. The General Counsel objected to receipt of the list and there-
after moved to strike the exhibit and all testimony relating to it pursuant
to the Board's Decision in Bannon Mills, Inc., 146 NLRB 611 (1964), be-
cause Respondent failed to produce the list at the outset of the hearing
pursuant to a subpena calling among other things for production of "all
supervisory notations and all records and documents relied upon . . in
determining to discharge" Collins and Waldnp. While Respondent pro-
duced all other documents and records required by the subpena, with one
possible exception, it failed to produce this list and gave as its reason the
belief that it did not fall within the scope of the subpena. I cannot agree
that the list was not covered by the subpena, and in fact the coverage
would appear to be beyond debate. The absence of any more colorable
reason for failure to produce the list raises troublesome questions. Yet the
determination as to whether evidence which a party fails to produce pur-
suant to subpena should be excluded is a matter of discretion. Little Rock
Downtowner, Inc., 145 NLRB 1286, 1311, fn. 69 (1964), and the question
to be decided is whether in the circumstances here present discretion
should be exercised in effect to exclude the evidence on which Respon-
dent's defense is based. Because the original records from which the list
was compiled were produced at the outset of the hearing and because
counsel for the General Counsel had further opportunity to examine
them after the list was received in evidence, I have decided to deny the
General Counsel's motion to strike
65 Hecox's affidavit given during the investigation of this case does not
mention his participation in the decision to terminate Collins and Wal-
drip. Hecox testified that he was not asked about it and did not volunteer
information, although he knew that these terminations were under inves-
tigation.
NICE-PAK PRODUCTS, INC
ffi - s a
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
precedents for the terminations of Collins and Waldrip
and on which he based the conclusion set forth in his
statement of reasons supporting the terminations.
The relevant entries on thelist prepared for Hecox are
set forth in Attachment, p. 1297.
According to Hecox, in deciding that there was con-
sistent policy supporting the discharges of Collins and
Waldrip he looked at the list prepared for him and at the
attendance point cards summarizing the attendance re-
cords of the four probationary employees identified
above to confirm the number of points "since my con-
cern was not with clerical accuracy but it was to show
that there was a consistent policy which had been de-
scribed by the supervisors." Hecox testified that the per-
sonnel files of the four employees were available to him
but that he looked at nothing else from them.
Although I have no doubt that Hecox was consulted
before the decision to discharge Collins and Waldrip was
made, analysis of the evidence persuades me that
Hecox's search was designed to find a colorable basis to
support their discharges rather than to determine what
Respondent's policy was, and that the testimony of
Myers and Hecox as to their discussion and reasoning
cannot be credited.
At the outset, suspicion immediately arises from con-
trast between Myers' initial testimony and his testimony
after being recalled by Respondent, his failure to mention
Hecox's role in the determination both in his initial testi-
mony and his affidavit, and Hecox's failure to volunteer
any information concerning these discharges in his affida-
vit, although cooperating to the extent of giving a state-
ment. The evidence developed at the hearing as to what
Hecox did and did not investigate gives substance to the
suspicion.
Although Hecox testified that he was searching to see
if there was a consistent policy supporting the dis-
charges, he only examined the records of probationary
employees who had been discharged and did not inquire
as to whether probationary employees with similar re-
cords had been retained. By omitting that inquiry Hecox
excluded any possibility of determining whether there
was a consistent practice and insured that if there was
any evidence of past practice which supported what he
wished to do that alone would be found.
Although Hecox claimed to find evidence of a policy
to discharge probationary employees with from 11 to 13
points, only by managing to focus on the point totals of
the four employees on whom he concentrated and ignor-
ing the rest of their records could he reach his conclu-
sion. Thus, despite his claim that he did not seek to
verify clerical accuracy, Hecox checked the attendance
point cards of the four employees to verify their total
points but did not check their files to verify the cause of
their discharges. Had he done so he would have discov-
ered that not only was Mona Bain discharged for dual
reasons (personal problems and poor attendance) as the
list indicated, 76 but that Anita Deaton and Joan Smith
were discharged for poor attendance and inability to op-
erate machines up to standard. Hecox's testimony in con-
76 In fact the attendance point card which Hecox testified that he
checked for Bain shows two apparent errors which resulted in under-
statement of her total points.
junction with the file of Libby Poteet, the fourth em-
ployee on whom Hecox based his action indicates that
Respondent considered giving her a warning for more
than 11 points but discharged her when she failed to
report for work again after leaving work early on June 1
because of frustration. Despite Hecox's testimony that he
looked to these employees to determine whether there
was a consistent practice, even superficial inquiry should
have established that none, except possibly Poteet, was
an example of a probationary employee discharged solely
for bad attendance, and in the case of Poteet the record
raised sufficient question to warrant further inquiry.
The investigation which Hecox did not make would
have been equally revealing, for by checking the files of
employees who completed probationary periods and
were not discharged, Hecox would have found compel-
ling evidence that probationary employees were consis-
tently retained despite accumulation of 11 to 13 points.
Thus, on June 20 and 21, contemporaneous with
Hecox's investigation, written warnings were given to
probationary employees Short and Kerley, who were su-
pervised by Atkins, for accumulating 11 points. On May
6 a written warning was given to probationary employee
Reed Wehrly, who was supervised by Smith, based on
an accumulation of 13 points. Most significant, in March
a written warning was prepared for probationary em-
ployee Malinda Hostetler for accumlating 14 points, 77
and a written warning was also prepared for probation-
ary employee Penny Burton after she accumulated 18
points. In Burton's case, her probationary period was ex-
tended 30 days because she had 10 points at the end of
her first 60 days of employment. Both Hostetler and
Burton were supervised by Myers.
Not only would an adequate investigation have shown
Hecox that the claimed consistent practice did not exist
as of June 22, but the evidence shows further that fol-
lowing the discharges of Collins and Waldrip Respon-
dent continued to retain probationary employees with
from 11 to 13 points. By June 24, the day of the election
and 2 days after Collins and Waldrip were terminated,
probationary employee Gloria Frye, who was supervised
by Simpson, accumulated 11 points but was neither ter-
minated nor warned. Arlene Vanzant accumulated 13
points by the time of her 60-day appraisal on July 5. Her
supervisor, Atkins, extended her probationary period an
additional 30 days, but she was not warned. Probationary
employee, Geraldine Lucas, accumulated 13 points by
June 28 and was given a written warning on June 30. On
July 2 she received her 60-day evaluation from Foreman
Myers who rated her attendance good.
Indeed, in only a single instance after June 22 was a
probationary employee discharged for accumulating
more than 11 points. In that case David Brown was dis-
charged for accumulating 14 points in October 1977,
long after the charge in this case was filed.
Thus, the evidence not only establishes the absence of
the consistent practice claimed by Hecox but it contra-
dicts Myers' testimony as to his own practice with re-
77 Her accumulation was 18 of which 4 points assessed in January
were forgiven pursuant to Respondent's January 19 memo. Warning no-
tices were signed by Dabney or Hecox, but were recommended by em-
ployees' superv isors.
NICE-PAK PRODUCTS, INC. 1293
spect to warnings both before and after June 22. It also
undermines the credibility of Hecox's testimony as to his
discussion with Myers before the terminations were
made, for according to Hecox, he twice discussed past
practice with Myers, both before his investigation and
after, when according to Hecox he reviewed the matter,
developed the facts, and made certain that the proposed
terminations were consistent with policy. If Hecox is to
be believed, it is necessary also to believe that Myers not
only failed to mention the cases of Hostetler and Burton,
but then also completely forget about his discussions
with Hecox when he warned Lucas on June 30, a little
over a week later. One must also believe that Dabney
and Hecox, whose signatures appear on warning notices
issued to employees supervised by Myers and the other
supervisors, had no independent knowledge of the rea-
sons the warnings were given.
In these circumstances, I reject the explanation for the
discharges given by Hecox and Myers.7 8 There is no
question that Respondent was aware of the union activi-
ties of Collins and Waldrip and indeed that they had
openly displayed their support for the Union only short-
ly before their discharges. The evidence also leaves no
doubt that Respondent campaigned vigorously against
the Union and in the course of its campaign engaged in a
series of violations of Section 8(a)(l) found above. In
these circumstances the essential elements of knowledge,
animus, and pretext have been established, and I find the
inference warranted that Respondent discharged Collins
and Waldrip virtually on the eve of the election using
the pretext of poor attendance to discourage other em-
ployees from supporting the Union in the imminent elec-
tion. Accordingly, I find that their discharges violated
Section 8(a)(3) and (1) of the Act.
3. The termination of Cheryl Dellacca
Cheryl Dellacca started to work for Respondent on
March 3, 1977, on the second shift. In August she was
transferred to the warehouse on the first shift at her re-
quest. On August 23, 1977, she was discharged.
Dellacca signed a union authorization card on March
30 and attended the first union meeting on April 7.
Thereafter, she regularly wore a union "pocket saver" to
work and also wore union buttons and T-shirts. Dellacca
was a member of the union In-Plant Organizing Commit-
tee and distributed authorization cards and handbills to
other employees. She attended the preelection confer-
ence on May 31, where Personnel Manager Clark noted
her name. She also served as an observer for the Union
at the June 24 election.
In June, when supervisors met individually with a
number of employees regarding the Union, Dellacca
asked her Supervisor Atkins when she would have a
turn, and he replied that it would not do him any good
to talk to her. When Dellacca responded that it would
not hurt to try, Atkins said he would get back to her
later, but he did not do so.
78 In addition to the above, Hecox's written statement that normal
policy was suspension for nonprohationary employees with 15 points, the
number Collins had ccumulated, is not true.
By June 1, Dellacca had accumulated I points for ab-
senteeism, and on June 8 Dellacca received a written
warning for poor attendance. One further absence on
June 27 raised her point total to 14 for the second calen-
dar quarter but did not result in any further disciplinary
action.
On July 5, in the next quarter, Dellacca's car broke
down and she called in to report her absence for which
she was charged three points. Dellacca was absent again
the next day and was charged five points.7 9 On July 11
Dellacca was charged with 2 points and July 16 with an-
other 5 points bringing her total for the third quarter to
15. On July 18, she was notified of a 2-day suspension
for continued absences pursuant to Respondent's
policy. o0
On August 23, Dellacca arrived for work approximate-
ly 3 hours late. When she clocked in, Al Lowe, assistant
warehouse manager, asked whey she was late, and she
replied that she had overslept. About half an hour later,
she was sent to Personnel Manager Clark's office where
he and Warehouse Manager Gary Howard were present.
Clark told her that she had accumulated 17 points, that
the accumulation of 17 points warranted disciplinary
action, and that because it was her third disciplinary
action within I year's time she would be terminated.
Dellacca refused to sign for the points attributed to
August 23 and told Clark she felt her termination was
unfair. She told Clark that she knew of other employees
who had not received disciplinary action although their
attendance point records warranted it. When Clark asked
her for the names of those employees, she declined to
give a name.8I
Following Dellacca's termination Clark changed the
number points charged her for August 23 from two,
which appeared on the form at the time she refused to
sign it, to five, as she was more than 2 hours late and
had not called in. Howard prepared a notice of personnel
action form for Dellacca on which he explained the
change in points and also wrote that Dellacca had been
previously warned and suspended, that "Discipline called
for in this instance is within this year's period of time,"
79 Dellacca testified that, when she called in on July 5, she told a
floorgirl that she had car trouble and would try to get it fixed that day or
the next day, so that her absence on July 6 should not have been treated
as without notice. Atkins testified that no one ever told him that Dellacca
had indicated that she might be out the next day also I have credited
Atkins Whatever Dellacca told a floorgirl on July 5, she signed for her
points on her return, and there is no indication that Dellacca made any
effort at that time to have the assessment reduced from five to three.
ao According to Dellacca when Atkins notified her of her suspension
he told her that she had only four or five more points before he would
have to terminate her and that he did not want to have to do that. Ac-
cording to Atkins, he told her that "any additional points" could result in
her termination I have credited Atkins in this regard Apart from a slight
variance between Dellacca's testimony and her affidavit in this regard,
she also testified that at the time she was notified of the suspension she
knev. that 21 or more points i a quarter was grounds for discharge but
swas not sure whether receipt of a third disciplinary action in I year
would be grounds for discharge. I conclude that Dellacca's recollection
was influenced by her belief as to the number of points required for dis-
charge.
" Although Dellacca testified that she ssas told he was fired for ac-
cumulating 17 points, she also testified that Clark told her that she could
sas it ssas a third disciplinary action or something to that effect I have
credited Clark and Howard as to the reason they gas e her for her termi-
nation.
NIC-PAK PRODUCTS, INC.
-- -
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that whether she was assessed two or five points she
would have been terminated in any event. On the form
Howard rated Dellacca's quality and quantity of work as
fair and her attitude, dependability, and attendance as
poor and indicated that she was not reemployable. He
did not consult Atkins, her former supervisor, but rated
her on the basis of his observation of her work for I
week.
The General Counsel contends that Respondent's at-
tendance and lateness policy was not uniformly enforced
and was discriminatorily enforced against Dellacca. The
General Counsel contends further that the discrimination
is shown not only by Respondent's treatment of other
employees but also by change in assessment of points
against Dellacca after she was notified of her termination
and by the poor rating given her by Howard on the basis
of limited observation. Respondent concedes that there
were a few instances in which employees were not prop-
erly charged points under the attendance and lateness
policy but that those instances show only human error
which is to be expected and do not show discrimination
in the face of evidence of strict application of the policy
to other employees.
There is evidence that Garry Kincaid was terminated
on August 9, about 2 weeks before Dellacca, and Reed
Wehrley was terminated on October 3, both for receiv-
ing three disciplinary actions within a year under the at-
tendance and lateness policy. Each of them received his
first warning in May and his second warning and notice
of suspension in June shortly after the election. Al-
though, as set forth above, Wehrley's treatment during
his probation was inconsistent with that of Collins and
Waldrip, the attendance and lateness policy as written
appears to have been applied strictly to Wehrley and
Kincaid, and both were discharged for the same reason
as Dellacca. There is no indication in the record as to
the position they took with respect to the Union or the
extent to which Respondent knew of it.
Although the General Counsel contends that the atten-
dance and lateness policy was not strictly applied to La-
Conda Roe, I find that the apparent deviations were sat-
isfactorily explained. In the first calendar quarter, atten-
dance point record of LaConda Roe shows an accumula.
tion of 14 points. Although Roe's timecards show that
she was absent on January 10 and 28, she was not
charged points for either day because Respondent ex-
cused all absences on January 10, 17, 26, and 28 due to
weather and related problems. 2 The General Counsel
contends Roe should have been charged 3 points, rather
than 2, for lateness on March 14, raising her total for the
first quarter to 15. However, the two point assessment
would be proper if Roe called in, and there are other in-
stances in the records placed in evidence at the hearing
where two points were assessed without a specific nota-
12 Counsel for the General Counsel moved to strike the testimony of
Production Manager Dabney to this effect because Dabney referred to a
call-in book which Respondent failed to produce at the outset of the
hearing in response to the General Counsel's subpena calling, among
other things, for all records of attendance, absenteeism, and lateness I
agree with the contention that the book should have been produced but
decline to strike the testimony as notations on Roe's timecaids, which
were furnished in response to the subpena, give clear indication of the
reason why Roe was not charged for her abselnces on January 10 and 28
tion that the employee called in. Thus, I find that Roe's
point assessment for the first quarter was in accord with
policy. As the first four points accumulated in the first
quarter were eliminated for all employees, the failure of
Respondent to issue a warning notice to Roe in the first
quarter was consistent with its attendance and lateness
policy. During the second quarter Roe accumulated 17
points, received a warning on May 10 for accumulating
11 points, and was suspended from working on June 14
and 16 for passing 15 points. Roe was a lead person who
after initially supporting the Paperworkers during the
last 2 weeks to a month before the election talked with
employees against the Union.
In the case of Carolyn Bowers, the evidence shows
that she was not charged for leaving early during the
first quarter, and as a result was not given a warning she
should have received. Thus, her timecard for the week
ending January 17 shows that she left early on January
14, which merited a three-point assessment, but she was
not charged any points for that day. The addition of
those points to 13 points charged her would have raised
her total for the first quarter to 16, or 12 after allowance
for the 4-point amnesty given all employees. Under the
policy 12 points required a warning. 8 3
During the second quarter of the year Bowers was as-
sessed nine points for absences on April 9, May 6, and
June 16. Although she was also absent May 5, her point
record card shows an entry of only one point for the five
absences, which was not added into the point total for
that quarter. The General Counsel contends that she
should have been assessed three points for that absence
which would have required suspension as a second disci-
plinary action. Respondent contends that the proper in-
ference is that Bowers presented a doctor's excuse and
therefore was correctly charged three points for 2 con-
secutive days of absence due to illness. As there is no in-
fraction under Respondent's policy which results in a
one-point assessment and as the single point was not
added to the total, I find merit in Respondent's conten-
tion and that Bowers was not undercharged during the
second quarter. There is no evidence to show where
Bowers stood with respect to the Union.
In the case of Clark Depew, he was assessed 13 points
during the first quarter of 1977. He was not assessed
points for being late on January 10 and 11 for the stated
reason that his tardiness was excused because of bad
weather. However, there is no evidence that employees
were generally excused on January 11, and the failure to
assess him of two or three points was a deviation from
Respondent's policy. The addition of those points, even
after the 4-point amnesty would have given Depew a
total of 11 or 12 points, warranting a written warning in
mid-March, which he did not receive. Depew further ac-
cumulated 11 points in the third quarter for which he
was warned and which would have warranted suspen-
sion at that time. There is no indication of Depew's
stance or activity with respect to the Union.
"3 Bowers was not charged for an absence on January 10 or leaving
early on January 17 For the reasons set forth above with respect to Roe.
I have denied the General Counsel's motion to strike Dabney's testimony
in explanation and find that the failure to assess points on these occasions
was not in contraventilon of Respondent's policy.
NICE-PAK PRODUCTS, INC. 1295
In the case of Janet Bennett, she was not charged any
points for May 24 although she left early on that date
and should have been charged two points. The addition
of the 2 points would have raised her total to 11 points
in the second quarter and would have warranted her sus-
pension because she had been warned during the first
quarter.
The strongest evidence in support of the General
Counsel's contention is found in the treatment of Donna
Bennett. As set forth above, both Dabney and Seegolam
spoke to Bennett in the preelection period and ascer-
tained that she was opposed to the Union. A few days
before the election Bennett was given a warning for ac-
cumulating 11 points. When she complained to Myers
and Seegolam about it, Myers told her not to worry, and
Seegolam took the warning to show to someone else
saying that she was on Respondent's side and did not de-
serve it. Although Bennett's warning was not withdrawn
and she was assessed 9 points for three absences in
August and September, on four instances in August and
September Myers failed to charge her for points for ab-
sences and lateness which would have increased her total
to 20 points in that quarter, causing first suspension and
then discharge in the light of her earlier warning.8 4
Thus, on August 10 and 16, Bennett was absent, and her
timecard for both dates bears the notation "sick" with
points. However, the August 10 absence is not entered
on her attendance point record and she was charged no
points for it.85 For the week ending August 29, her time-
card again shows that she was absent because of sickness
2 days, and again her attendance point record shows
only one absence for which she was charged three points
rather than two absences and six points. 86 Bennett's ti-
mecard for the week ending September 5 shows that she
was more than an hour late and worked only 5-1/4 hours
on Wednesday, August 31, but there is no corresponding
notation for lateness on her attendance point record and
she was not charged at least two points as provided by
Respondent's policy. Bennett testified that in addition she
agreed to work on Saturday, September 10, when re-
quested, but called in that morning to say that she would
be absent. Although there is evidence that failure to
work on a Saturday under these circumstances is consid-
ered a chargeable absence, there is no notation on her at-
tendance point record for this absence which merited
three points. 87
84 Bennett was also absent for 3 days in July for which she was not
charged points under Respondent's bereavement leave policy, and there
is no contention that she should have been assessed points for these ab-
sences.
s8 Bennett was questioned about bringing in a doctor's excuse on this
occasion and testified that she had brought in one such excuse for August
10 but that she believed she was only absent I day at the time. Although
counsel was under the impression at that point that the timecard showed
2 consecutive days of absence on August 9 and 10, a later explanation of
the third-shift timecards showed that she was not absent on 2 consecutive
days, and there is no reason to conclude that the August 10 absence was
excused under Respondent's policy.
85 Bennett testified without contradiction that she brought in no doc-
tor's excuse other than the one referred to above.
s7 There is no direct eidence that Myers knew that Bennett had
agreed to work but it may be inferred that Myers was kept informed of
who was expected to work and who called in In any event, even if this
absence is ignored, Bennett's point total should have been 17 and the
result would be the same
Myers not only failed to discipline Bennett for all her
absences and tardiness, but, when Bennett resigned on
October 3 to move to California, Myers evaluated her at-
tendance and dependability as good and designated her
as "re-employable."
I find that the evidence supports an inference that
Myers favored Donna Bennett by not charging her prop-
erly for points she should have accumulated after her
preelection warning and her complaint to Seegolam
about it. However, the evidence as a whole as to the ap-
plication of the attendance and lateness policy does not
show a pattern of discriminatory enforcement or that the
so-called objective criteria were so subjectively applied
as to warrant the conclusion purported enforcement of
the rule was pretextual. It is true that in a few other
cases employees were not properly charged points on in-
dividual occasions, but there is no demonstrated connec-
tion between those omissions and employee union activi-
ties, and there is evidence that at least one other employ-
ee was discharged under circumstances similar to Dellac-
ca's before Dellacca was discharged, also without evi-
dent relation to union activities. Although it is likely that
Clark was aware of Dellacca's union activities at the
time of her discharge and that his awareness resulted in
the post termination amendment of her point total, I find
that the evidence is not sufficient to establish that Del-
lacca would not have been discharged but for her union
activities. I shall, therefore, recommend dismissal of the
allegation of the complaint based on her discharge. 88
IV. THE CHALLENGED BALLOTS AND OBJECTIONS
There were eight challenged ballots in the representa-
tion election. At the hearing the parties stipulated that
Tim Delp was a part-time temporary employee whose
ballot should not be counted and that Mildred Spoon
was a nonsupervisory leadperson whose ballot should be
counted. In addition, the Regional Director found with
the agreement of the parties that the ballot of Joyce
Kleineck was based on an inadvertent omission of her
name from the eligibility list and that her ballot should
be counted. Of the remaining challenges, I have found
above that Sarah Pierce was not a supervisor, except
when she substituted for foremen before the election.
She was therefore an eligible voter. I have found that
Karla Collins and Cathy Waldrip were discriminatorily
discharged so that they were also eligible voters. How-
ever, I have found that William Stone and Leonard Wor-
land were supervisors within the meaning of the Act,
and they were therefore not eligible voters in the elec-
tion.
As only five of the challenged ballots should have
been counted, they cannot affect the results of the elec-
tion and need not be opened.
The objections to the election overlap the allegations
of the complaint, and the findings of violations of Sec-
tion 8(a)(1) and (3), above, during the period between
April 21, 1977, and the date of the election warrant a
sh Although Howard's evaluation of Dellacca on the termination form
was based on limited observation, the form is designed for resignations,
layoffs. and suspensions, as well as discharges, and from those forms in
evidence it appears to be routine to designate those discharged for bad
attendance as not reemployable.
NICE-PAK PRODUCTS, INC
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding that the objections have merit. Accordingly, I
shall reccomend that Objections 1, 2, 3, 5, and 6 be sus-
tained.
V. THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully dis-
charged Karla Collins and Cathy Waldrip, I shall recom-
mend that Respondent be ordered to offer them immedi-
ate and full reinstatement to their former jobs, without
prejudice to their seniority or other rights and privileges.
I shall further recommend that Respondent be ordered to
make them whole for any loss of earnings they may have
suffered as a result of the discrimination against them by
payment to them of the amount they normally would
have earned from the date of their discharge until the
dates of Respondent's offers of reinstatement, less net
earnings to which shall be added interest to be computed
in the manner prescribed in F. W. Woolworth Company,
90 NLRB 289 (1959), and Florida Steel Corporation, 231
NLRB 651.89 I further recommend that the election held
on June 24, 1977, be set aside and that Case 25-RC-6622
be remanded to the Regional Director for Region 25 for
the purpose of conducting a new election at such time
that he deems that circumstances permit a free choice of
bargaining representation.
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Nice-Pak Products, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW,
is a labor organization within the meaning of Section
2(5) of the Act.
3. By interrogating employees concerning their union
activities and those of other employees, by threatening
employees with plant closure and loss of work if they
chose to be represented by a union, by promising em-
ployees benefits if they refrained from union activities,
by granting employees benefits to induce them to refrain
from union activities, by soliciting employee grievances
and complaints underlying their union activities, by ad-
monishing employees to avoid association with union ad-
herents, by soliciting employees to convey antiunion feel-
ings to others, by soliciting employees to obtain and
report information about union activities, and by discri-
minatorily enforcing a no-solicitation rule, Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Sections 8(a)(3) and (1) and 2(6)
and (7) of the Act.
4. By discharging Karla Collins and Cathy Waldrip be-
cause of their union activities, Respondent had engaged
in unfair labor practices affecting commerce within the
"8 See, generally, Isis Plumbling & Heating Co., 138 NLRB 716 (1962).
meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of
the Act.
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:
ORDER9 0
The Respondent, Nice-Pak Products, Inc., Moores-
ville, Indiana, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees about their union sympa-
thies or activities or those of other employees.
(b) Threatening employees with plant closure in the
event they choose to be represented by a labor organiza-
tion.
(c) Promising employees benefits if they refrain from
engaging in union activities.
(d) Granting employees benefits to induce them to re-
frain from union activities.
(e) Soliciting employee grievances and complaints un-
derlying their union activities in order to discourage
them from further union activities.
(f) Admonishing employees to avoid association with
union adherents.
(g) Soliciting employees to convey antiunion senti-
ments to other employees.
(h) Soliciting employees to obtain and report back in-
formation about union activities of other employees.
(i) Discriminatorily enforcing any rule against solicita-
tion in the plant on the basis of union activity.
(j) Discharging or otherwise discriminating against em-
ployees in regard to hire or tenure of employment or any
term or condition of employment because they become
members of or engage in activities on behalf of Interna-
tional Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, or any
other labor organization.
(k) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to
engage in or refrain from engaging in any or all the ac-
tivities specified in Section 7 of the Act.
2. Take the following affirmative action, which is nec-
essary to effectuate the policies of the Act:
(a) Offer Karla Collins and Cathy Waldrip immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of earnings
they may have suffered as a result of discrimination
against them in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
90 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
NICE-PAK PRODUCTS, INC. 1297
cords necessary to a determination of compliance with
paragraph (a) above.
(c) Post at its Mooreville, Indiana, place of business
copies of the attached notice marked "Appendix. "9 '
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by Re-
spondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices 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 25, in
writing, within 20 days from the date of this Decision,
what steps have been taken to comply herewith.
91 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPIOYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RELATIONS BOARD
An Agency of the United States Government
WE WII.l. NOT interrogate our employees about
their union activities or those of other employees.
WE WII.l NOT threaten employees with plant clo-
sure in the event they choose to be represented by a
labor organization.
WE WlI.L. NOT promise our employees benefits if
they refrain from engaging in union activities.
WI: Wil . NOT grant our employees benefits to
induce them to refrain from union activities.
Attachment
Eployee Attendance
WE WILL NOT solicit employee complaints and
grievances underlying their union activities in order
to discourage them from further union activity.
WE WILL NOT admonish our employees to avoid
association with union adherents.
WE WILL NOT solicit our employees to convey
antiunion sentiments to other employees.
WE WILL. NOT solicit employees to obtain and
report back information about union activities of
other employees.
WE WILL NOT discriminatorily enforce any rule
against solicitation in the plant on the basis of union
activity.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees in regard to their hire,
tenure, or any term or condition of employment be-
cause they become members of or engage in activi-
ties on behalf of International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, UAW, or any other labor or-
ganization.
WE WILL offer Karla Collins and Cathy Waldrip
immediate and full reinstatement to their former
jobs or, if these jobs no longer exist, to substantialyl
equivalent jobs, without prejudice to their seniority
or other rights and privileges, and WE WILL ma-
kethem whole for any loss of earnings they may
have suffered as a result of the discrimination
against them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their right to engage in or to refrain from
engaging in any or all the activities specified in Sec-
tion 7 of the Act. These activities include the right
to self-organization, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the purpose
of collective bargaining, or other mutual aid or pro-
tection.
NICE-PAK PRODUCTS, INC.
Term of Eployment
5/5--5/16/77
2/9 -3/17/77
5/4--6/3/77
1/25--3/18/77
Points
12
13
12
Mona Bain
Anita Deaton
Libby Poteet
Joan Smith
Poor
Bad
Bad
Bad
NICE-PAK PRODUCTS, INC.