All American Gourmet

National Labor Relations Board - Board Decisions

Feb 14, 1989

292 N.L.R.B. 1111 (N.L.R.B. 1989)

ALL AMERICAN GOURMET
The All American Gourmet and Service Employees
International Union, Local 579, AFL-CIO
Cases 10-CA-22144-1, 10-CA-22144-3, 10-
CA-22144-5, 10-CA-22305, 10-CA-22339,
and 10-RC-13308
February 14, 1989
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On February 9, 1988, Administrative Law Judge
Howard I Grossman issued the attached decision
The Respondent filed exceptions and a supporting
brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions,' and to adopt the recommended
Order as modified 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, The All American Gourmet, Atlanta,
Georgia, its officers, agents, successors, and as
1 The Respondent asserts that the judge s resolution of credibility find
rags of fact and conclusions of law are the results of bias After a careful
examination of the entire record we are satisfied that this allegation is
without merit There is no basis for finding that bias and partiality existed
merely because the judge resolved important factual conflicts in favor of
the General Counsels witnesses As the Supreme Court stated in NLRB
v Pittsburgh Steamship Co 337 U S 656 659 (1949) [T]otal rejection of
an opposed view cannot of itself impugn the integrity or competence of a
trier of fact Furthermore 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 the relevant evidence con
vinces us that the resolutions are incorrect Standard Dry Wall Products
91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have careful
ly examined the record and find no basis for reversing the findings
We note that the judge erroneously stated that the Respondent s work
rules permitted rather than prohibited distribution of literature in work
mg areas or during working time
8 In adopting the judge s conclusion that the Respondent violated Sec
8(a)(1) by threatening to call the police on an employee if he did not quit
handbilling on the Respondents premises we distinguish the instant case
from Nice Pak Products 248 NLRB 1278 ( 1980) cited by the Respondent
in support of its contention that no unfair labor practice should be found
because its manager subsequently told the employer that he was allowed
to handbill in that location In Nice Pak unlike here the employer did
not threaten to call the police Further the employers conduct in Nice
Pak was not analyzed under the standard for repudiations of coercive
conduct set forth in Passavant Memorial Area Hospital 237 NLRB 138
(1978)
3 In the absence of exceptions we adopt pro forma the judge s recom
mendation to overrule the Respondents objections in Case 10-RC-13308
and to certify the Union s status as the collective bargaining representa
tive of the Respondent s employees in the unit found appropriate
signs, shall take the action set forth in the Order as
modified
1 Substitute the following as paragraph 1(g)
"(g) In any like or related manner interfering
with, restraining, or coercing employees in the ex
ercise of the rights guaranteed them by Section 7
of the Act "
2 Substitute the following as paragraph 2(h)
`(h) Offer full and immediate reinstatement to
the following employees listed below who have not
yet been reinstated to their former positions or, if
those positions no longer exist, to substantially
equivalent positions, without prejudice to their se
niority or any other rights and privileges and make
them whole with interest for any loss of earnings
or benefits they may have suffered by reason of the
Respondent's unlawful layoffs of them on February
23, 1987
Ethel Hill
Linda Wright
Paulette Ellison
Valerie Berry
Scedro Williams
Mary Davenport
Sherry Nelson
Charlanda Wyser
My Diep
Arthur Thomas
Patricia Jones
Kinh Tua Nguyen
Dieu Minh Hoang
Minh Pham Hoang
Charles Boyd
Veester Murphy
Celstine Lawrence
Penny Stembridge
Ida Howell
Canetra English
Gwen Wright
Brenda Parks"
3 Substitute the attached notice for that of the
administrative law judge
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal
lots have been cast for Service Employees Interna-
tional Union, Local 579, AFL-CIO and that it is
the exclusive collective-bargaining representative
of the employees in the unit found appropriate
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT tell employees that we will call
the police on them because they are engaged in
protected concerted activities
292 NLRB No 128
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT prohibit employees from discuss
ing the terms and conditions of their employment
with anybody except our supervisors
WE WILL NOT discourage membership in Service
Employees International Union, Local 579, AFL-
CIO, or any labor organization, by discharging em
ployees because of their union or other protected
concerted activities
WE WILL NOT unilaterally change our disability
policies or our policy on periodic raises to employ
ees, nor will we unilaterally lay off employees,
without first giving the above-named Union notice
thereof and an opportunity to bargain over these
matters
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Ricky Reeves and Mike Collier
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits they may have
suffered by reason of our unlawful discharges of
them, with interest
WE WILL remove from our personnel records all
references to our unlawful actions concerning
Ricky Reeves and Mike Collier, and notify them in
writing that this action has been taken and that evi
dence of such action will not be a basis for future
personnel actions against them
WE WILL withdraw our rescission of our former
policy of paying disability pay for the first 3 days
of disability, reinstate such policy, and make whole
with interest any employees who suffered losses be-
cause of our unilateral change in such policy on
June 16, 1986
WE WILL offer 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 any other rights and
privileges previously enjoyed to any of the follow
ing employees who we unlawfully laid off on Feb-
ruary 23, 1987, that we have not yet reinstated, and
make them whole with interest for any loss of
earnings or benefits they may have suffered as
reason of the Respondent's unlawful layoffs of
them on February 23, 1987
Ethel Hill Kinh Tua Nguyen
Linda Wright Dieu Minh Hoang
Paulette Ellison Minh Pham Hoang
Valerie Berry Charles Boyd
Scedro Williams Veester Murphy
Mary Davenport Celstine Lawrence
Sherry Nelson Penny Stembridge
Charlanda Wyser Ida Howell
My Diep Canetra English
Arthur Thomas Gwen Wright
Patricia Jones Brenda Parks
WE WILL give the above named Union notice
and an opportunity to bargain before we institute
any future changes in our disability or periodic
raise policies, or before we lay off employees
WE WILL notify Amelia Thompson in writing
that, on her return to employment with us, if any,
she is free to discuss the terms and conditions of
her employment with anybody
THE ALL AMERICAN GOURMET
Victor Alan McLemore Esq for the General Counsel
Richard R Boisseau and David P Phippen Esqs (Kilpa
trick & Cody) of Atlanta, Georgia for the Employer
and the Respondent
Robert Sarason Regional Coordinator and Linda Rig
gins International Field Representative, for the Peti
tioner and the Charging Party
DECISION
STATEMENT OF THE CASE
HOWARD I GROSSMAN, Administrative Law Judge
The petition in Case 10-RC-13308 was filed on 7 April
1986 by Service Employees International Union Local
579 AFL-CIO (the Petitioner the Charging Party or
the Union) Pursuant to a Stipulation for Certification on
Consent Election Agreement an election by secret ballot
was conducted on 23 May 1986 among the employees in
the appropriate unit to determine the question concern
ing representation ' On conclusion of the balloting the
parties were furnished a tally of ballots which shows
that of approximately 371 eligible voters, 201 cast valid
votes for the Petitioner 131 cast valid votes against the
Petitioner, and 12 cast challenged ballots The chal
lenged ballots are insufficient in number to affect the re
sults of the election
On 2 June 1986 the All American Gourmet Company
(Employer or Respondent) filed timely objections to the
election and a copy was served on the Petitioner After
an investigation of the issues raised by the objections the
Regional Director for Region 10 on 1 July 1986, found
The stipulated appropriate unit in the representation case was
All production and maintenance employees employed by the Em
ployer at its Atlanta Georgia facility including all maintenance me
chanics maintenance crew leaders tool crib attendants tool crib
leaders sanitation aides sanitation crew leaders food preparers food
preparer leaders cooks cook leaders material handlers material
handler leaders production assemblers machine operators line at
tendants q c inspectors and line leaders but excluding all other em
ployees temporary employees office clerical employees guards and
supervisors as defined in the Act
In the unfair labor practice proceeding the pleadings as amended at
the hearing add the Employers street address so that the stipulated unit
is All production and maintenance employees employed by the Employ
er Respondent at its 5475 Bucknell Drive facility in Atlanta Georgia
ALL AMERICAN GOURMET
that the objections raised no material or substantial issues
affecting the results of the election On 16 July 1986 the
Employer timely filed exceptions to the Regional Direc
tor s Report on Objections On 5 March 1986 the Board
found that substantial and material issues of fact and law
had been raised regarding the conduct described in the
Employers Objections 1-6 and 8 which could best be
resolved at a hearing
The original charges in Cases 10-CA-22144-1 -3 and
-5 were filed on 10 November 1986 by the Union the
original charge in Case 10-CA-22305 on 11 February
1987 and the original charge in Case 10-CA-22339 on
24 February 1987 After previous issuance of a consols
dated complaint an amended consolidated complaint
issued on 27 March 1987 As further amended at the
hearing it alleged that the Respondent threatened its em
ployees engaged in distribution of union literature in
nonwork areas during nonworktime and prohibited its
employees from discussing terms and conditions of em
ployment with anyone but Respondent, in violation of
Section 8(a)(1) of the National Labor Relations Act (the
Act) The complaint further alleged that the Respondent
discharged employees Ricky Reeves and Mike Collier
because of their activities on behalf of the Union and be
cause they engaged in concerted activities with other
employees for mutual aid and protection, in violation of
Section 8(a)(3) and (1) of the Act Finally, the complaint
alleged that the Respondent unilaterally changed its dis
ability pay policy without consulting the Union refused
to bargain with the Union over its denial of a wage in
crease to employees, and unilaterally laid off various em
ployees without consulting the Union-all in violation of
Section 8(a)(5) and (1) of the Act
On the same date as the complaint 27 March 1987
pursuant to the Board s aforesaid Order in Case 10-RC-
13308 the Regional Director for Region 10 issued orders
consolidating the representation and unfair labor practice
cases for hearing
A hearing was held before me on the aforesaid matters
on 12-15 May 1987 in Atlanta, Georgia Thereafter, the
General Counsel Petitioner/Charging Party and
Employer/Respondent filed briefs Subsequently the
Employer/Respondent submitted a letter objecting to
certain statements in the General Counsels brief On the
entire record and on my observation of the demeanor of
the witnesses I make the following
FINDINGS OF FACT
I JURISDICTION
The Employer/Respondent is a Delaware corporation
with an office and place of business located at Atlanta
Georgia where it is engaged in the production and dis
tribution of food items During the calendar year preced
mg issuance of the amended consolidated complaint, a
representative period, the Employer/Respondent sold
and shipped from its Atlanta, Georgia facility food prod
ucts valued in excess of $50 000 directly to customers lo
cated outside the State of Georgia The Employ
er/Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
1113
The pleadings establish and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
III THE OBJECTIONS TO THE ELECTION
A Summary of the Objections
The Employers objections are basically that union
agents engaged in unlawful electioneering in and around
the polling area, that the Union circulated campaign ma
terials containing forged signatures, that completed bal
lots were improperly exposed to employees, and that the
union agents in general acted improperly and interfered
with the process of the election 2
A threshhold question raised by the Employer is
whether individuals who assertedly engaged in such con
duct were union agents so that their conduct is attributa
ble to the Union The Employer bases its argument that
such attribution can be made on its contention that cer
tam of the individuals who allegedly engaged in objec
tionable conduct were members of an in house organiz
mg committee (IHOC), and that some were also union
observers at the election
2 The Employer s brief in support of exceptions to the Regional Direc
tor s report on objections RD Exh 1(i) at 2-3 As condensed in the
Employers brief Objections 1 2 3 4 and 6 are as follows
I [O]ne of Petitioners organizers engaged in impermissible elec
tioneering campaigning and conversation with prospective voters
who were in line waiting to cast ballots to vote for Petitioner He
also entered the polling area to survey the situation there and spoke
to one of the Petitioners observers in the polling area while several
prospective voters looked on
2 [T]wo of Petitioners observers communicated and conversed
with each other with prospective voters and with representatives of
Petitioner in the polling area itself
3 [O]ne of Petitioners observers who was assigned to release
voters repeatedly engaged in improper electioneering and compaign
ing and encouraged numerous prospective voters to vote for the Pe
titioner as they left their work stations to vote
4 [S]everal employees including one of Petitioners organizers
openly displayed to numerous prospective voters in the polling area
election ballots marked with an X in the yes box Further one
employee in the polling area boisterously called the attention of pro
spective voters to his ballot and created a significant disturbance
Also one of Petitioners organizers voted in the morning polling
period but returned to the polling area in the afternoon and had to
be ordered to leave the area by the National Labor Relations Board
agent in the presence of numerous prospective voters as they pre
pared to cast ballots
6 Petitioner through its representatives and supporters circulated
a piece of campaign literature containing a number of employee sig
natures indicating that the listed employees had signed the docu
ment were voting yes and had authorized Petitioner to use their
names on the document In fact numerous employees whose signa
tures appeared on the document had not signed the document or an
thorized the use of their names and their signatures on the document
constitute forgeries Many of the listed signatures were of names of
former employees [ID at 3-41
Objections 5 and 8 are conclusory allegations that Petitioner by this
conduct considered individually and cumulatively interfered with em
ployees rights to freely select a bargaining representative (R D Exh
1(1))
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B The Organizational Campaign and the
Establishment of the IHOC and its Functions
The chief organizer of the campaign was Linda Rig
gins International field representative She was assisted
by other union officials-Orah Bilmes, another Interna
tional field representative, Robert Sarason regional coor
dinator and Nancy Lenk Riggins held meetings, passed
out authorization cards and did leafleting in front of the
plant
Riggins testified that the IHOC consisted of any
workers who attended meetings passed out leaflets, and
got other employees to sign union authorization cards '
Its employee members distributed leaflets including
some to the Employer, solicited employees to sign au
thorization cards and petitions , obtained employee ad
dresses and telephone numbers, participated in union
skits at meetings and, with a Union rep, visited em
ployees at their homes Riggins testified that IHOC
members did not call meetings or make major campaign
decisions Some of them signed the tally of ballots after
the election
Riggins and another union official prepared a docu
ment with the words Organizing Committee at the
bottom It contains 25 signatures The document states
that the signatories are on the Organizing Committee
and that they had authorized the Union to use their
names to show their support for the Union The docu
ment contains various arguments favoring the Union It
also contains a reminder of a forthcoming union meet
ing 3 The Union distributed copies of this document to
employees at a union meeting
The Employer submitted union documents distributed
subsequent to the election not to prove improper elec
tioneering, but to establish that the IHOC was the
Union s agent One document states that SEIU Local
579 and the Organizing Committee are fighting for
guaranteed wages and another document links the two
together Several documents with IHOC s name an
nounce forthcoming union meetings One with the
Union s name shows several raised fists, said by the Em
ployer to be a union symbol The Union and the Com
mittee for a Fair Contract otherwise unidentified are
shown to have the same telephone number 4
C Alleged Objectionable Conduct During the Election
I Summary of the evidence
a Arrangements for the election
There were two voting sessions one in the morning
and one in the afternoon Employer Official Rick Shan
non testified that the parties were concerned that noise in
the plant might prevent employees from heanng an an
nouncement on the public address that it was time to
vote Accordingly the parties agreed that the releas
ing observers would carry a sign saying Time to
Vote
There is conflicting evidence on the number of signs
carried by the releasing observers The Company had the
3 Emp Exh 1
4 Emp Exh 13
same observers for both voting sessions and Anthony
Chapman was the Company s releasing observer Chap
man asserted that there were two signs and that he car
reed one of them
The Union had different observers for the two ses
sions The Union s releasing observers for the morning
and afternoon sessions, Precious Jones and Frances
Young, testified that there was only one sign and that
they, the union observers, carried the sign Young said
that it was possible that the Company observers car
reed a sign Company Official Shannon testified on cross
examination that there was only one Time to Vote
sign
There is further conflicting evidence whether the re
leasing observers were authorized to say anything to the
voters Company observer Chapman contended that, if
the voters did not see the sign the observers were au
thorized to say the word Attention Company Official
Shannon contended that various words were bantered
about, and that the Board agent finally agreed on the
word, Attention Union observer Precious Jones
denied that the observers were allowed to say anything
Union observer Frances Young affirmed that he said
nothing while releasing voters and so far as he knew, no
one else did either
The Board s written instructions, given to the observ
ers, admonish them not to help any voter or electioneer
or to argue during the election 5
b Alleged objectionable conduct of union observer
Precious Jones-Objection 3
Precious Jones was a union observer during the morn
ing session and signed the talley of ballots What put
ports to be her signature appears on the Organizing
Committee document There is no other evidence of
union activities by Jones except Riggins general testi
mony about the activities of IHOC members
Company observer Chapman testified that he had been
actively opposed to the Union s campaign since it start
ed Chapman and Jones together released voters during
the morning session According to Chapman he and
Jones were releasing voters in the Blancher area
about 30 feet from the voting area Chapman could not
recall whether he and Jones shouted Attention The
sound would have carried into the voting area Chapman
testified that employeee Grady Langford asked Jones
How s it going? Jones nodded affirmatively Chapman
then turned to show his sign to voters and, when he
turned back Jones was flashing hand signals to
give a count of how the election was going' Asked to
describe what Jones did, Chapman fully extended his
right hand and fingers partially extended his left hand
shook his right hand, and pointed at himself with his
index finger As indicated Chapman contended that he
and Jones each had a sign
Jones denied that Langford asked her how it was
going or said anything else to her She denied that she
gave any signals or flashed her hands Langford did
not testify
5P Exh 11
ALL AMERICAN GOURMET
Jones, as indicated, affirmed that there was only one
Time to Vote' sign It was a large sign, and she held it
with both hands Jones further declared that she did not
try to keep track of how the vote was going The voters
placed their ballots in the ballot box, and she does not
have X ray vision She acknowledged that the cooks
had voted by 6 14, but denied that she knew the cooks
were strongly for the Union Consistent with her testi
mony about general instructions, Jones denied that she
and Chapman said Attention"-they were not allowed
to say any words
Chapman also asserted that, when he and Jones were
releasing voters in another area, she raised her hand with
the Fist of Unity Chapman identified this as a sign
used by most union supporters As indicated above, some
of the union documents show this sign Jones was asked
whether she was familiar with the salute of raising a
clenched fist, and said that it means Right On She
denied that she ever gave this sign during the election-
that s not me, she said
Chapman further contended that, when he and Jones
were releasing voters at the shipping dock, employee
Conrad Wells gave the Fist of Unity, and Jones re
turned it Wells then asked Chapman whether he was
also for the Union Jones shook her head and touched
Chapman s company observer badge Other employees
were present that could have seen this Jones denied that
Wells spoke to her before he reached the voting area He
was talking when he entered the voting area, and Jones
put her finger to her lips and said ` Sssh' Wells did not
testify
c Alleged objectionable conduct of union observer
Natasha Kelly-Objection 2
Natasha Kelly, together with Precious Jones, was one
of the Union s observers during the morning session and
signed the tally of ballots 6 What purports to be Kelly s
signature appears on the Organizing Committee docu
ment There is no other evidence of union activities by
Kelly except Riggins general testimony about the ac
tivities of IHOC members
Company observer Chapman asserted that on seven
occasions he saw Kelly talking to employees waiting in
line to vote On cross examination Chapman admitted
that it was the employees who initiated the asserted con
versations and that although he could not hear what
Kelly said she was moving her lips These conversa
tions lasted a few seconds Although Chapman did not
bring these matters to the attention of the Board agent,
the latter on "several occasions told Kelly not to talk
Although not asserted by Chapman Precious Jones tests
feed that the observers did not talk to one another
Kelly acknowledged that the Board agent 's instruc
tions were that the observers were not to talk to voters
She denied that any voters attempted to talk to her or
that she spoke to them Kelly further denied that she was
reprimanded by a Board agent The Regional Director s
6 The third union observer during the morning session was Rosemary
Graham
1115
representative signed a certificate that the voting had
been fairly conducted 7
d Alleged objectionable conduct of employee Steven
Hill (Objection 1)
What purports to be Steven Hill s signature appears on
the organizing committee document According to com
pany observer Chapman, he knew Hill to be a union sup
porter because, in the breakroom, Hill told employees
what the Union could do for them Company observer
Lasanja Williams also identified Hill as a union support
er
Company observer Chapman contended that Hill, after
voting during the morning session , came into the wait
mg area during second shift voting time and said
Right on, y all are going to vote my way aren t you?
The curtain to the voting area then opened, and Chap
man assertedly saw Hill talking to employees waiting in
line to vote A few minutes later Hill came into the
voting area and whispered to an observer who Chapman
believed to be Natasha Kelly After the luncheon recess
at the hearing, Chapman changed his testimony and said
that the observer was not Natasha Kelly
After a review of the identities of the Unions after
noon observers Chapman denied that it was either Ricky
Reeves or Frances Young to whom Hill spoke Chapman
therefore concluded that it had to have been Deborah
[Wright]
Another company observer Lasania Williams, gave a
different version of this asserted incident 8 She heard
Hill talking through the curtain, but did not hear what
he said Hill then put his head through the curtain a few
times and came in He spoke to a union observer whom
Williams identified as Precious Jones A Board agent
asked Hill to leave and he did so, but Williams could
hear him talking outside the voting area There is no
mention of this incident in affidavit that Williams submit
ted to the Employer on 9 June 1986 9
Precious Jones and Natasha Kelly were union observ
ers only during the morning session Both denied talking
to voters during that session The union observers for the
afternoon session were Frances Young Ricky Reeves
and Deborah Wright Young and Reeves said that they
knew Hill but denied seeing him during that session
Wright testified that Hill peeped through the curtain
from the outside When he did so company observer
Chapman jumped up to report the matter to the Board
agent However before anything further occurred, Hill
left Wright did not hear Hill say Right on you re
going to vote my way, aren t you? or anything else
e Alleged objectionable conduct of employee Barbara
Saratt-Objection 4
What purports to be employee Barbara Saratt s signa
ture appears on the organizing committee document
There is no other evidence of her union activities except
' P Exh 9
8 The third company observer was Kim Shaw
9 P Exh 8
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Riggins general testimony about the function of IHOC
members
Saratt voted during the morning session Company ob
server Lasanja Williams asserted that Saratt placed her
ballot inside the ballot box but that Williams could see
that she had voted Yes Other employees were
present but Williams did not know whether any of them
saw this On cross examination, Williams agreed that Sar
att s ballot was slightly folded Williams contended
that she never heard the Board agent give instructions to
fold ballots before placing them in the ballot box Wil
Hams further asserted that either company observer An
thony Chapman or Kim Shaw told her that he had seen
Saratt s marked ballot Chapman did not corroborate this
testimony and Shaw did not testify
Saratt s testimony about her voting is unclear After
repeated questions and examination of a diagram of the
voting area, she appears to have told Petitioners counsel
that she marked her ballot in an enclosed voting area
but folded it just prior to placing it in the ballot box
However on recross examination by the Employer s
counsel Saratt testified that she folded her ballot at the
place marked on the diagram at the enclosed place for
voting and then placed it in the ballot box In any event,
Saratt denied showing her ballot to anybody The three
union observers during the morning session-Jones
Kelly and Graham-denied seeing Saratt openly display
her ballot
f Alleged objectionable conduct of employee Linwood
Barber-Objection 4
What purports to be Linwood Barber s signature ap
pears on the organizing committee document There is
no other evidence of his union activity, except Riggins
general testimony about the functions of IHOC members
Company observer Chapman testified that Barber
after having voted in the morning session returned to
the voting area and was told by a Board agent to leave
Barber testified that he was assisting an employee who
had been out for 3 weeks because of an injury At about
2 p in he showed this employee to the voting area up to
but not through double doors leading to the voting
area Barber denied that any Board agent asked him to
leave Ricky Reeves a union observer during the after
noon session denied seeing Barber
g Alleged objectionable conduct of employee Ivan
Jeter-Objection 4
Employee Ivan Jeter worked on the first shift Compa
ny observer Chapman testified that Jeter after voting
placed his ballot in the ballot box pulled it back up, and
said, I ve got to check and see if I done voted right
According to Chapman, Jeter then opened his ballot and
held it up showing a mark in the Yes box so that
other prospective voters could have seen it Chapman
agreed that he himself had already voted
Jeter testified that he voted in the voting booth folded
the ballot inside the booth and then placed it in the
ballot box He denied pulling it back out after placing it
in the box Jeter also testified that he did not say any
thing out of the ordinary Asked to clarify this on
cross examination Jeter stated that he did not say any
thing except to give his name when asked Union observ
er Precious Jones affirmed that she knew Jeter, and
denied that she saw him openly display his ballot with an
X marked in the Yes box Union observer Natasha
Kelly denied that she heard any employee say, I ve got
to make sure I done voted right Kelly also denied
seeing any employee openly display his ballot or pull his
ballot out of the ballot box after placing it inside
2 Factual analysis
a Precious Jones
I credit Jones uncontradicted and partially corroborat
ed testimony that she was carrying a long Time to
Vote sign with both hands i° In these circumstances it
would have been physically impossible for Jones to have
extended both arms in a signal to employee Grady Lang
ford as Chapman contended Further, I note the inher
ently reasonable nature of Jones testimony that she had
no way of knowing how the voting was proceeding In
addition Jones appeared to be a more truthful witness
than Chapman For these reasons plus the fact that the
Employer did not call Langford as a witness I reject
Chapman s testimony and credit Jones denial that she
engaged in the alleged conduct
For essentially the same reasons, I reject Chapman s
testimony that Jones raised the Fist of Unity while re
leasing voters either independently or in response to
such a sign from employee Conrad Wells Although it
would have been easier to raise one arm rather than two
the fact that Jones required both hands to hold the sign
is a factor suggesting that Chapman s testimony is erro
neous Jones testimony about the fist - it s not me -
was an apparently truthful description of her own reac
tion to the union salute
Although Jones did not specifically deny that Wells
asked Chapman any questions such denial is implicit in
her testimony including the description of Wells talking
in the voting area 11
For these reasons I conclude that Jones did not
engage in any of the conduct alleged by Chapman 12
b Natasha Kelly
I do not credit company observer Chapman s testimo
ny that union observer Kelly spoke to voters on any oc
casion much less seven occasions, or that the Board
agent on several occasions asked Kelly not to talk I base
10 The testimony of Jones and Young corroborated by Employer Offi
cial Shannon tends to establish that there was only one sign and that
Chapman s assertion that there were two signs should be rejected How
ever it is not necessary to establish the number of signs because the evi
dence clearly shows that Jones was carrying one
I I Assuming arguendo that Wells did ask Chapman whether he was
also for the Union Jones asserted gesture of touching Chapman s compa
ny observer badge did not as the Company argues tend to demean
Chapman Rather it would have been a simple nonverbal gesture identi
fying Chapman s status in the election procedure In any event I note
that the Company did not call Wells as a witness and find that Jones did
not engage in this conduct
12I find it unnecessary to determine whether the observers were au
thorized to say the word Attention to voters Chapman could not re
member and Jones denied it
ALL AMERICAN GOURMET
this finding in part on Kelly s denial because she ap
peared to be a more truthful witness than Chapman I
note also that Chapman did not bother to protest this
matter to the Board agent and that the latter signed a
certificate that the election had been fairly conducted
c Steven Hill
The Employers witnesses supplied inherently contra
dictory testimony whether Hill could be heard outside
the voting area saying anything, much less asking voters
to vote his way Although Hill supposedly said this
before coming into the voting area , according to Chap
man, Williams could not hear what he said Williams did
not mention the asserted incident in a pretrial affidavit
Further Deborah Wright, who was a more truthful wit
ness than either Chapman or Williams testified that she
did not hear Hill say anything
The Company s evidence that Hill came in during the
afternoon session and spoke to a union observer is even
more contradictory Company observer Williams select
ed Precious Jones as the union observer However, this
would have been impossible, because Jones was not
present during the afternoon session Chapman s first
choice-Natasha Kelly-was also a morning observer
not present in the afternoon Chapman s final conclusion
that it had to have been Deborah Wright was reached
by a logical process rather than direct knowledge, which
does not inspire confidence
Crediting Wright, I conclude that union supporter
Steven Hill after having voted during the morning ses
sion , put his head through the curtain during the after
noon session and then left when company observer
Chapman jumped up to protest There is no credible
evidence that Hill said anything
d Barbara Saratt
I do not credit company observer Williams testimony
that Saratt displayed a Yes vote on her ballot because
(a) Saratt s testimony although confusing finally settles
on the voting booth as the place she folded her ballot,
after Saratt examined a diagram of the voting area (b)
the three union observers denied that Saratt displayed
her ballot and (c) Williams admitted that Saratt s ballot
was slightly folded Although Williams asserted that
company observer Chapman or Shaw also told her about
the visibility of Saratt s ballot marking neither of them
corroborated her-Chapman was a witness
e Linwood Barber
Barber was a more truthful witness than Chapman
and I credit his testimony that he helped an employee
reach the voting area but did not enter it I rely also on
the fact that Barber s testimony was corroborated by an
other witness and the fact that the Board agent signed a
certificate that the election had been fairly conducted
f Ivan Jeter
The consistent testimony of Jeter and union observers
Kelly and Jones has greater probative weight than Chap
man's uncorroborated assertions I note also the difficulty
if not impossibility of retrieving a ballot once it has been
1117
fully placed through the slot into the ballot box-as Jeter
did according to Chapman Relying also on the Board
agent s certificate and the absence of any evidence that
this asserted incident was protested during the election, I
conclude that Jeter did not engage in the conduct attrib
uted to him by Chapman
D The Alleged Forgeries-Objection 6
1 Summary of the evidence
a The Union s election day campaign leaflet
On election day the Union distributed a large leaflet
with purported signatures of over 200 employees on the
front and reverse sides The front side had a diagram and
printing at the top, including an authorization to use the
signatories names on a leaflet 13
This leaflet was a compilation of numerous other doc
uments characterized as petitions by one union wit
ness According to Union Official Riggins, the Union
started with a petition containing 17 original signatures
and the legend at the top described above Copies of this
document were made, and were used to obtain additional
signatures on other petitions These in turn were copied
and the process repeated The petitions are in evidence
The numbers of names on them vary but they all begin
with the same names 14 Although Riggins did not per
sonally observe the solicitation of all the signatures she
testified that, to her knowledge all signatures were genu
me and none was secured without the legend at the top
She told union supporters obtaining signatures to make
sure that the employees read the top of the petition
Some of the petitions contain an irregular line which
with some gaps extends across the petition between the
legend and the first names Although this line is lighter
on some petitions and darker on others it has the same
contour on all petitions and just touches the top of the
first letter of the first name of the signatory in the right
hand column 15 Other petitions do not have this line
Riggins testified that this line on occasion was made by
the Unions photocopy machine, for unknown reasons
On other occasons the machine did not make the line
Union employee Nancy Lenk who actually produced
the leaflet was unaware of these lines
Lenk did the layout for the leaflet She testified that
she made copies of the various petitions cut up the
copies and pasted signatures onto two larger pieces of
paper This document is in evidence, and shows the past
ing of various signatures onto the larger two pages 16
"TheThe top of the front page of the leaflet contained the statement
We Are Voting Yes This was followed by a diagram across the page
consisting of raised fists Thereafter the following statements appeared
We Are Voting Yes for Three Simple Reasons 1 ) Dignity and Re
spect 2) Job Security Eliminate the Point System 3) Money
We authorize the Union to use our names on a leaflet since we
want the All American Gourmet Workers to know that we are
voting Yes for SEIU Local 579 We want the All American Gour
met Workers to stick together' [Emp Exh 2 ]
i4 Emp Exhs 3-12 P Exhs 13(a)-(y)
15 Deborah Wright
16 P Exh 12
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Prior to pasting them on Lenk checked the Excelsior list
to make sure that all names appearing on the leaflet ap
peared on that list Lenk then created the leaflet by pho
tocopying the two pages of the layout on the front and
back of one large sheet of paper 17 Employer Official
Shannon testified that six of the names on the leaflet
were those of individuals who were no longer employed
at the time of the election, and were thus ineligible to
vote
b The Employer s evidence in support of the alleged
forgeries
(1) Todd Pierce
Pierce testified that a signature appearing to be his on
the leaflet was actually his signature 18 He also agreed
that a signature purporting to be his, which appeared on
a petition, was his signature This petition contains the it
regular line described above 19 Although Pierce stated
that both signatures were his he contended that he only
signed the leaflet and professed not knowing how his
signature came to appear on the petition
(2) George A Fordham
What seems to be George A Fordham s signature ap
pears in the second column on the reverse side of the
leaflet On direct examination , Fordham denied that this
was his signature although he agreed that, while in a
hospital he did sign a document for Union Official Sara
son
On cross examination, Fordham could not remember
the date that Sarason came to visit him in the hospital
He was then on medication and was concerned about
being fired He agreed that Sarason told him that the
Union wanted to see how many people supported the
Union, and contented that he signed a blank piece of
paper for Sarason He was shown a petition on which his
purported signature appears together with 17 other sig
natures Fordham s name appears at the bottom of the
right hand column, underneath four other names The
above described irregular line appears on his docu
ment 20
Fordham admitted that the signature on the petition
was his but denied that he signed the document Instead
Fordham maintained he signed a blank piece of white
paper about 8 by 11 inches in size Although this paper
was folded when Sarason took it out of his pocket the
union official completely unfolded it Fordham held it in
his hand and examined it Fordham said that he placed
his own signature on this document somewhat down
from the top There were no other signatures on the doc
ument
Fordham was then asked to sign his name on a blank
piece of paper at the hearing and did so 21 I conclude
15 Lenk used a larger copying machine in another office for this pur
pose
18 Pierce s name minus the last three letters of his last name appears
near the bottom of the last column on thne reverse page of Emp Exh 2
19 P Exh 1
20 P Exh 2
21 P Exh 3
that what appear to be Fordham s signatures as they
appear on the leaflet the petition and the slip of paper
signed by Fordham at the hearing were all signed by the
same individual 22 Fordham stated he did not support
the Union
(3) Carmen E Head
Head s apparent signature appears on the reverse side
of the leaflet Head denied seeing the leaflet before the
hearing and denied tht she signed it She did sign a peti
tion for blue authorization card allowing the Union to
come in and a few months after the election, a peti
tion for maternity leave
Head was shown a petition bearing numerous signa
tures with Head s name appearing in the first column
This document has no irregular line below the legend at
the top 23 On cross examination, Head agreed that this
was her signature On redirect examination she denied
that she signed this document or any document with
raised fists authorizing the Union to use her name in a
leaflet On further examination she affirmed that the sig
natures on both the leaflet and the petition were hers
Head was asked to sign a blank piece of paper at the
hearing and did so 24 I conclude that the signatures pur
porting to be those of Head appearing on the leaflet, the
petition and the blank piece of paper actually signed by
Head at the hearing are all signed by the same individ
ual 25
(4) Marlon V Baskin26
What seems to be Baskin s signature appears in the
second column on the reverse side of the leaflet Baskin
denied that he signed this document but affirmed that it
was possible that he had signed another document
Baskin was shown a petition 27 and acknowledged that
what purports to be his signature on this document
looked like his signature There is no irregular line on
this document Baskin was asked to sign his name on a
blank piece of paper at the hearing 28 I conclude that
what appears to be Baskin s signatures on the leaflet the
petition, and the blank piece of paper actually signed by
him at the hearing are all signed by the same individ
ual 29
(5) Dollie Tigner
What appears to be Tigner s signature appears on the
reverse side of the leaflet between the second and third
columns On direct examination Tigner testified that it
looked like her signature but that she did not sign the
document On cross examination Tigner was shown a
22 Fed R Evid 901(b)(3)
29 The document was originally identified as P Exh 5 but the parties
agreed that it was the same document as Emp Exh 6
24 P Exh 4
25 Supra at fn 22
26 At the hearing Baskin spelled his last name Bskin However
when he signed his name Baskin inserted an a as the second letter I
conclude that this is the correct spelling
27 Emp Exh 12
28 P Exh 6
29 Supra at fn 22
ALL AMERICAN GOURMET
petition with her apparent signature in the right hand
column There is no irregular line below the legend on
this document 30
Tigner acknowledged that the signature on the petition
looked like her signature but denied that it was She
was asked to sign her name on a blank piece of paper at
the hearing and complied 31 I conclude that the signa
tures on the leaflet, the petition, and the blank piece of
paper actually signed by Tigner at the hearing were all
signed by the same individual 32
Tigner agreed that she signed a piece of paper to get
somebody to talk about the Union Employees
Deborah Wright and Frances Young gave it to her
Wright testified about this subject, and identified
Tigner s purported signature on the petition as Tigner s
actual signature which Wright obtained
Tigner agreed that her brother, Freddy Watley was a
supervisor that he was opposed to the Union that she
talked to Watley when she first saw the leaflet and that
he advised her to talk to the Company about it
2 Factual analysis
a Petitions bearing the irregular line
The Employer argues that the irregular line between
the legend at the top of the petition and the names below
it suggests that the heading was added after signatures
were secured Amazingly the lines always conveniently
go exactly between the heading and the signatures, actu
ally winding [their] way around the signature, as if the
heading were already on the paper The Employer also
relies on Riggins inability to produce a photocopy with
this line at the hearing and Lenk s lack of knowledge of
the asserted defect in the photocopy machine 33
The line appears on the petition bearing Fordham s
name However it does not appear immediately above
his name but rather above the topmost names on the
petition Any such documentary alteration as suggested
by the Employer could not have affected the names
below the allegedly added heading of the petition
Fordham admitted that the signature was his but denied
that he signed that document Instead Fordham asserted
he signed a blank piece of paper without any signatures
This is unlikely, because other signatures appear above
Fordham s but below the asserted place of documentary
alteration Accordingly the document probably had
other signatures on it when Fordham signed it An infer
ence that Fordham signed the petition with the heading
is buttressed by his admission that Sarason completely
unfolded the document and that Fordham examined it
Further, it is unlikely that Fordham would have signed a
blank piece of paper given to him by a union official Fi
nally Fordham s actual signature at the hearing is the
same as that appearing on the petition Fordham admit
tedly did not support the Union, and may have been a
biased witness
30 Emp Exh 6
31 P Exh 7
32 Sup a at fn 22
33 Emp Br 14
1119
For these reasons, I find that the evidence is insuffi
cient to establish that Fordham s purported signature on
the petition is not his actual signature and it is obvious
that it is a photocopy of this signature that appears on
the leaflet
The other petition with the irregular line was that
bearing Todd Pierce s name Unlike Fordham Pierce did
not contend that he signed a document without the head
ing Instead, he contended that he signed the leaflet This
is patently false, because the evidence is clear that the
leaflet was composed of photocopies of the original sig
natures appearing on the petitions In fact, a photocopy
of Pierces original signature may be found on the re
verse side of the layout which Lenk prepared for the
leaflet-it is a strip of paper about 2 inches by one fourth
of an inch, in size 34 Pierce s testimony that both signa
tures were his but that he signed only one document is
unbelievable I conclude that the evidence is insufficient
to establish that Pierce s name on the leaflet is not a pho
tocopy of his geniune signature appearing on a petition
The record thus does not disclose a complete explana
tion for the sporadic appearance of the irregular line
except for the truism that machines occasionally act pe
culiarly for unknown reasons The Employers theory-
that the irregular line represents a heading added to
sheets of paper signed in blank by various employees-is
highly improbable There are numerous such petitions
but only Fordham asserted that he signed a blank piece
of paper Moreover it is unlikely that the Union s assert
ed documentary alteration would have resulted in an it
regular line with precisely the same curvature, touching
one signatory s name at precisely the same point on dif
ferent documents In any event the only evidence in
support of the Employer s theory-Fordham s testimo
ny-is insufficient to establish the validity of that theory
for the reasons given above
b Petitions without the irregular line
Carmen E Head s testimony consists of repeated con
tradictions both affirming and denying that the signa
tures on the leaflet and the petition were hers Accord
ingly her testimony has no probative value Head s dem
onstrated signature at the hearing establishes that it was
she who signed the petition
Baskin admitted that a signature purporting to be his
on the petition looked like his signature and his dem
onstrated signature at the hearing proves this to be cor
rect
Like Baskin Dolly Tigner admitted that a signature on
the petition looked like hers but she denied that it was
in fact her signature Tigner s actual signature given at
the hearing establishes that it was she who signed the pe
tition with her name on it
c Summary
The credited evidence shows that the Petitioner ob
tamed employee signatures on petitions containing a
heading favoring the Union and authorizing the Union to
use the signatories' names The evidence is insufficient to
34 P Exh 12
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
establish that any of the signatures appearing on these
petitions were not genuine The Petitioner then made
copies of these signatures and with these copies pre
pared a leaflet bearing the same heading Six of the
names on this leaflet appeared on the Excelsior list but
were no longer employed at the time of the election and
were thus ineligible to vote The leaflet was distributed
on the day of election
E Legal Analysis Conclusions and Recommendation
It is well established that an objecting party has the
burden of going forward with the evidence and the ulti
mate burden of proof 35
As indicated I have found the evidence insufficient to
establish that Petitioner engaged in any of the objection
able conduct alleged in connection with the conduct of
the election 36 Further the evidence is insufficient to es
tablish that the Union circulated a leaflet with forged
signatures It did circulate a leaflet with photocopies of
employee signatures not proved to be forged and the
signatures of six employees who, although their names
appeared on the Excelsior list were not employees at the
time of the election and were thus ineligible to vote I
conclude that these actions did not interfere with the
conduct of a fair election Accordingly I shall recom
mend that the Employers objections be overruled in
their entirety, and that a certification of representative
issue
IV THE ALLEGED UNFAIR LABOR PRACTICES
A Alleged Threat to Employees Engaged in
Distributing Union Literature
1 Summary of the evidence
On the morning of 2 October union supporter Ricky
Reeves International Representative Linda Riggins, and
Field Coordinator Robert Sarason were distributing liter
ature near the entrance to the plant Reeves was in the
parking lot According to Reeves Production Manager
Joseph C Adams37 came out of the plant about 6 30
a m with two security guards and told Reeves to get off
the property Reeves replied that he had a right to pass
out leaflets in a nonwork area during nonworktime
Adams then threatened to call the police Employees
as Emerson Electric Co v NLRB 649 F 2d 589 (8th Cir 1981) enfg
247 NLRB 1365 (1980) IDAB Inc 269 NLRB 554 570 (1984) enfd 770
F 2d 991 (11th Cir 1985)
36 In its brief supporting exceptions to the Regional Director s report
on objections the Employer argues that IHOC was the Union s agent
RD Exh 1(i) It is unnecessary for me to decide this issue because
IHOC members did not engage in any objectionable conduct However I
note in passing that those IHOC members who participated in the elec
tion did not acquire apparent authority to engage in the alleged miscon
duct either under the principles of Bio Medical of Puerto Rico 269 NLRB
827 (1984) cited by the Employer or those of L & J Equipment Co 278
NLRB 485 (1986) in which the Board accepted a four part test enunci
ated by the Court of Appeals for the Third Circuit to determine when
actions of IHOC members may be attributed to a union NLRB v L & J
Equipment Co 745 F 2d 224 (3d Cir 1984) remanding 266 NLRB No
29 (Feb 9 1983) (not reported in Board volume)
37 The pleadings appear to establish tht Adams was a supervisor
Adams testified that he was responsible for production on two shifts and
that seven supervisors reported to him I find that he was a supervisor
within the meaning of the Act
were present, coming to work for the first shift that
began at 7 am Adams went back into the plant re
turned to Reeves in about 5 minutes patted him on the
shoulder and told him that Adams was in a bad post
tion
According to Linda Riggins while Reeves Sarason,
and she were handbilling, a security guard first told
Reeves to get off the property about 6 30 a m and the
latter asserted his right to be there The guard then en
tered the building and returned with Adams and two
other supervisors Adams told Reeves to get off the
property or Adams would call the police Reeves again
explained his right to be on the property distributing
union literature in a nonwork area during nonworktime
Sarason joined the conversation and suggested that
Adams consult Company Official Shannon or an attor
ney Adams left returned in about 5 minutes and told
Reeves and Sarason that they were correct
Adams testified that a security guard informed him
that an employee was handing out literature on company
property The production manager then went out and
told Reeves to leave the property According to Adams,
it was about 7 am Adams testified that Reeves com
plained that the guard had threatened to call the police
and denied that Adams threatened to have Reeves arrest
ed However he did not deny that he threatened to call
the police According to Adams Reeves complained that
Adams had embarrassed him in front of his peers On
direct examination Adams said that he did not recall
other employees being present However on cross exam
ination he agreed that they could have been there
Adams professed that he did not recall whether Linda
Riggins was present
The company manager of human resources Rick
Shannon testified that Adams called him about the inci
dent and that Shannon told Adams that Reeves was al
lowed to engage in such activity Shannon instructed
Adams to apologize to Reeves Adams called back a few
minutes later and said that Reeves claimed to have been
humiliated
Security guard Theron Griffin testified that about 6 50
a in he told Reeves to leave the property if he wanted
to pass out pamphlets Reeves said that he was an em
ployee and had a right to distribute pamphlets Griffin
replied that [w]e would have to call the police The
guard admitted that he saw other employees but denied
that any were within earshot of Reeves Griffin returned
to the building and saw Production Manager Adams to
whom he reported the incident Adams left the building
approached Reeves, and had a conversation with him
that Griffin could not hear Adams returned to the build
ing, and later went back out to Reeves, telling the latter
that he was sorry and that Reeves did have the right to
pass out pamphlets on company property
Respondent s rules which Shannon asserted, were
posted on a bulletin board permit the distribution of
written material of any kind during working time or in
work areas and the posting of such material on company
premises 38
3s R Exh 11
ALL AMERICAN GOURMET
2 Factual analysis
Respondent contends that there is no evidence that the
union proponents were engaged in protected activity be
cause there is no evidence that the literature they were
distributing was union literature This argument borders
on the frivolous It is obvious that the handbilhng in
which Reeves, Riggins, and Sarason were engaged con
sisted in the distribution of union literature Indeed the
representation case record includes documents distribut
ed after the election by the union Committee for a Fair
Contract introduced by the Employer 39
Riggins had the best recall of these events, and I credit
her version of the incident After a security guard told
Reeves to get off company property Adams came out
repeated the order and told Reeves to get off company
property or he would call the police This testimony is
corroborated by Reeves and not explicitly denied by
Adams Griffin s testimony that he told Reeves the Com
pany would call the police is not inconsistent with
Reeves contention that Adams did so
Respondent contends that there is no evidence that
any other employee heard the Adams Reeves conversa
tion However the testimony of Reeves and Riggins, tac
fitly corroborated by Adams established that employees
were going by when this conversation took place Grif
fin s denial that employees were within earshot refers
only to his conversation with Reeves Further Adams
testified that Reeves complained he had been embar
rassed in front of his peers Reeves had been humiliat
ed according to Shannon s version of Adams report to
him On this evidence I find that other employees did
overhear the conversation between Adams and the union
advocates Further, because these other employees were
on their way to work, it is obvious that they were not
present when Adams returned 5 minutes later with the
statement that Reeves and Sarason were correct
3 Legal analysis and conclusion
Adams threat to call the police on Reeves for engag
ing in protected activity the distribution of union litera
ture during nonworktime in nonwork areas was patently
coercive Respondent argues that Adams admission to
Reeves and Sarason 5 minutes later that they were cor
rect constitutes repudiation of the threat However of
fective repudiation must include adequate publication to
the employees involved assurances to employees that
their employer will not in the future interfere with their
Section 7 rights and, in fact no proscribed conduct
thereafter Passavant Memorial Area Hospital 237 NLRB
138 (1978) Respondents purported repudiation fails to
meet any of the Passavant tests Other employees were
present when Respondent engaged in the unlawful con
duct, but absent when Adams made his asserted repudi
ation Accordingly, there was insufficient publication of
the claimed repudiation Adams gave no assurance that
the Respondent would not in the future interfere with its
employees Section 7 rights and as I find Respondent in
fact did engage in such interference In these circum
stances, Respondents assertedly published rule premit
39 Emp Exh 13
1121
ting distribution of written materials did not constitute
effective repudiation If anything Respondents conduct
was in apparent contravention of the rule 40 I therefore
conclude that Respondent by threatening to call the
police on an employee because he was engaged in pro
tected activity thereby violated Section 8(a)(1) of the
Act
B The Alleged Discriminatory Discharges
1 The alleged discriminatees union activities and
prior work records
a Ricky Reeves
Ricky Reeves name is the second one on the organiz
mg committee (IHOC) document utilized during the
election campaign 41 the first name on the numerous pe
titions that formed the basis for the Union s campaign
leaflet 42 and the first name on that leaflet 43 He was a
union observer at the election According to Reeves
credible testimony, corroborated by Company Official
Shannon Reeves, and 11 other employees went to the
office of one of Respondents attorneys where Reeves
acted as the spokesperson in protesting the Company s
asserted legal games and refusal to bargain with the
Union Union Official Riggins suggested this visit Fur
ther, as indicated, Reeves was the recipient of Respond
ent s unlawful threat when he was handbilling in the
parking lot
Subsequent to the filing of the General Counsels brief
Respondent filed a letter protesting the General Court
sel s characterization of Reeves as the main leading most
vocal, or most active union proponent Respondent as
serts that Reeves was no more active than several hun
dred other employees Although the Board s Rules do
not allow for the filing of reply briefs in these circum
stances 44 I have considered Respondents objection and
find it to be substantially without merit Although it may
be questionable whether Reeves was the foremost union
proponent the record supports an inference that he was
one of the foremost and that he was the only one shown
to have engaged in a confrontation with Respondent be
cause of his union activities
Reeves was employed by the Company as a cook on
the second shift in October 1985 and received a raise
after his 90 day probationary period He received an
other raise in June 1986
40 Accord Safeway Stores 266 NLRB 1124 (1983) Respondent cites
Ducane Heating Corp 254 NLRB 112 116 (1981) enfd as modified 665
F 2d 1039 (4th Cir 1981) This case is inapposite because there is no evi
dence of other employees having been affected by the unlawful conduct
and thus no need for publication of repudiation Respondent also cites
Bellinger Shipyards 227 NLRB 620 (1976) in which the employer re
sanded a purportedly unlawful no soliciation/distribution rule and re
placed it with a lawful rule There was no evidence that the employer
engaged in other unlawful activity and the Board concluded that the
effect on the employees of the prior rule was so minimal that no remedy
was warranted This case which preceded Passavant does not support
Respondent s position here
41 Emp Exh 1
42 Emp Exhs 3-12 P Exh 13
43 Emp Exh 1
44 Board s Rules and Regulations § 102 42
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to Cookroom Supervisor Mike Stiggers
Reeves complained of a strained back after lifting a tub
of carrots, thus violating Stiggers instructions to em
ployees on proper lifting techniques Accordingly, Stig
gers on 29 October wrote a final written warning to
Reeves that further accidents would result in ` corrective
action possibly including suspension or termination 45
Reeves testified that he protested this write up to
Company Official Shannon on 3 October, and that the
latter promised to tear it up and not place it in Reeves
file Shannon denied this, but admitted that he did not
rely on the warning in discharging Reeves
Stiggers testified about another asserted conversation
with Reeves the following day 30 October, during
which Reeves was sitting on the table After Stiggers
criticized Reeves the latter replied that everything was
in his kettle, i e that all his work had been performed
Stiggers said that Reeves was there to work Although
Stiggers asserted that he talked to Reeves about working
harder Reeves testified that he received no verbal warn
rags There is no mention of this incident in Stiggers
pretrial statement
b Mike Collier
Mike Collier was employed as a cook on the second
shift in October 1985 He signed a union card and passed
out leaflets Cookroom Supervisor Stiggers testified that
he knew Collier was for the Union
Collier received a written warning for excessive absen
teeism or tardiness on 28 March 1986 46 Thereafter, Stig
gers testified that he talked to Collier 10 times about
horseplaying at work Collier denied any such conversa
tions Stiggers agreed that another supervisor had ad
vised him to reduce these admonitions to writing How
ever Stiggers did not do so I credited Collier s denial
that any such conversations or verbal warnings took
place
Stiggers admitted that he saw Collier holding his
crotch a month or so after Stiggers assumed his position
as cookroom supervisor (August 1986) Richard Sims a
second shift cook, testified that Collier had engaged in
horseplaying from the time he was hired (October 1985)
On 24 September Stiggers wrote a memorandum that
Collier had been counseled for sweeping various work
items off a table onto the floor, for insubordination and
misuse of company property 47 Stiggers agreed that he
had no direct knowledge of these events and that he had
relied on the report of another employee Tony Purdy, a
leadman Purdy did not testify
Respondent elicited evidence that on the second shift
on 29 October one of the production lines shut down
because of a stoppage of sauce for the beef dinners being
prepared Collier was one of the cooks in the kitchen at
that time The problem was that an agitator in the
holding kettle was not running The evidence is con
flicting on the identity of the employee responsible for
running the agitator Production Supervisor Linda
Murphy testified that it is the maintenance mechanic s
45GC Exh 3
46 R Exh 14
41 R Exh 4
function if the agitator was malfunctioning, but the
cook's duty if there was no malfunction However Rich
and Sims, a cook, testified that the cooksheet instructs
cooks not to turn the agitator on when the sauce is in the
holding kettle and that it is the maintenance mechanic s
function to watch the agitator Collier contended that his
kettle was full of sauce that the pump was running, and
that was the extent of his responsibility He had no way
of knowing whether sauce was flowing through the lines
to the production area Collier further testified that his
supervisor had instructed him not to leave the agitator
on when meat was in the sauce-as was the case in this
instance-because the agitator shredded the meat There
was a dispute among the supervisors in discussion of this
matter from which discussion Collier was ultimately ex
eluded Production Supervisor Paul Dolak gave Collier a
verbal warning Collier talked with Company Manager
of Human Resources Shannon about this subject the next
day The latter promised to get back to Collier but
never did so
Cookroom Supervisor Stiggers asserted that, on the
same day, 29 October, he saw Collier put his hand [on]
or hit a female employee and that the latter brushed
at Collier as if to say Leave me alone Stiggers said
to Collier, Stop the playing around He then wrote a
memorandum stating that Collier had been coun
seled for horseplay, and to be more attentive to his
cooking Stiggers labeled this memorandum, Final Writ
ten Warning 48 The cookroom supervisor agreed that
he wrote this document after the sauce incident, as de
scribed above Production Supervisor Dolak said that he
was unware of this written warning
c Additional evidence of misconduct
Maintenance employee Paul H Hollifield testified that
he saw Reeves and Collier playing meatball baseball
and hammering nail holes into a company table Holli
field said that he complained to supervisors about Reeves
and Collier 25 or 30 times However there is no evi
dence of written warnings concerning these asserted inci
dents Hollifield admitted that he thought the Union was
a bad thing and that he talked against it in the plant
Second shift cook Richard Sims a union proponent who
worked with Reeves and Collier denied seeing the mci
dents asserted by Hollifield
2 The 31 October sickout and the meeting on 3
November
a Summary of the evidence
On 30 October various employees discussed a sick
out as a method of protesting what they characterized
as company harassment The following days 31 October
a Friday five out of the six cooks on the second shift
including Reeves and Collier called in sick and did not
report for work 49
46 R Exh 5
49 The other three employees were Antonio Copeland Richard Sims
and Mohammed Haran The sixth cook Yusuf Rashid did not participate
in the sickout
ALL AMERICAN GOURMET 1123
When they returned the following Monday, 3 Novem
ber, a meeting was called by Production Manager
Adams in a conference room Numerous employees were
present According to the General Counsels witnesses,50
Adams said that such absences could not happen again
and that, if they did, the employees would be transferred
to the line or terminated Reeves then stated that the
reason for the sickout ' was the employees concern
over harassment by supervisors, the Company s refus
al to bargain with the Union,' and the legal games they
were playing We won the election fair and square
Reeves said 5 1 Adams did not discuss the union issue and
told the employees to go back to work
Mike Stiggers cookroom supervisor on the second
shift testified that he had been advised in advance by
leadman Tony Purdy that there would be a layout
Stiggers attended the 3 November meeting but denied
that there was any discussion that the absences had been
a planned layout
Production Manager Adams who conducted the meet
ing testified that he told the employees that the absences
of the second shift cooks had `put the Company in a
bind and that this was very, very serious to the Com
pany Although Adams denied saying that employees
might be fired if the absences continued, he agreed
that he said they might be replaced Adams acknowl
edged that Reeves spoke, but asserted that Reeves com
ments were that the point system was supposed to take
care of absenteeism Adams denied that any employee
stated the reason that he had been absent The produc
tion manager admitted that a question arose in his mind
as to the reason for the absences However, he was
doubtful that the matter really concerned him Cook
room Supervisor Stiggers gave similar testimony about
Reeves statements at the meeting He asserted that he
` cared about the fact that five out of six cooks had not
reported for work, but never asked them the reason
Richard Sims one of the cooks acknowledged that
Reeves spoke about the point system However, this took
place after Reeves told Adams the employees' reasons
for staying out and after Adams said employees would
be terminated in the event of another layout Reeves
then asked how this could be done under the point
system, apparently referring to the disciplinary system
because none of the cooks had points Adams replied
that points had nothing to do with it The next time it
happened the employees would be removed or terminat
ed regardless of how many points they had 52
Collier testified that he had to return to the conference
room after the meeting to get his cap When he did so
he overheard Supervisor Mike Stiggers engaged in con
versation with Ed Kelley cookroom supervisor for the
first shift Kelley said to Stiggers You have to write
these employees up Write them up a second time Write
so Reeves Sims Copeland and Collier
51 Testimony of Reeves and Collier
12 Sims stated on cross examination that his pretrial affidavit does not
mention Adams as saying that points didn t matter However the affi
davit does contain the following statement after a discussion of the meet
mg The supervisors told us from that day on if any cook didn t show
up for work on a Friday they would either be put on the line or terms
nated regardless of how many points we had (R Exh 24 )
them up a third time Boom They are terminated, and
your problems are solved You don't have to worry
about them no more '
On direct examination , Stiggers testified that he dis
cussed disciplinary procedures with Kelley when Stig
gers was first assigned to his position (August 1986), but
did not recall having any other such conversations He
repeated this position on cross examination but then ap
parently agreed that he discussed problems" concerning
his employees with Kelley Although Stiggers denied
that Kelley told him to document charges against em
ployees to terminate them there is no specific reference
in his testimony to any conversation with Kelley in the
conference room after the 3 November meeting and, as
indicated Stiggers otherwise admitted that another su
pervisor had advised him to reduce his warnings to writ
ing
b Factual analysis
It is undisputed that the sickout was planned and exe
cuted as a concerted protest against certain company ac
tions Further, Adams admitted saying that the absences
were serious , and that renewal of them might result in
replaced employees In these circumstances, it is
highly unlikely that Reeves an outspoken union propo
nent, would have replied to Adams merely with a mild
discussion of the point system It is more likely that
Reeves would have stated the real reason for the sickout,
followed by a discussion of the point system, when
Adams threatened discharge
Adams admission that he thought about the reason for
the very, very serious' absences makes improbable his
expressed doubt that the reason concerned him Stig
gers similar testimony is also unrealistic The General
Counsels witnesses were apparently truthful, and I
credit their version of the meeting 53
Further I credit Collier s account of the conversation
in the conference room between Stiggers and Kelly be
cause of the specificity of Collier s testimony as contrast
ed with Stiggers generalized statements because of Stig
gers slight change of position on cross examination, be
cause of his admission that another supervisor advised
him to reduce his warnings to writing and because Col
her appeared to be the more truthful witness
sa Sims and Copeland were current employees at the time of their tes
timomes and it is therefore unlikely that they were fabricated Bohemia
Inc 266 NLRB 761 764 fn 13 (1983)
Respondent asserts contradictions in the General Counsels evidence
e g that Simms said Shannon was not at the meeting whereas Collier
affirmed that he was In fact Sims merely omitted Shannon s name Re
spondent asserts another contradiction in that Sims unlike other wit
nesses supposedly testified that only Reeves spoke In fact Reeves was
the only speaker named by Sims but he did not explicitly deny that other
employees spoke Finally Respondent points to Copeland s denial that
Adams asked for a show of hands whereas other witnesses affirmed
that he did These are minor or nonexistent differences that do not affect
the credibility of the General Counsel s witnesses (R Br 60)
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The events during the second shift on 3
November
a Summary of the evidence
(1) The asserted misconduct
Cookroom Supervisor Stiggers testified that he ran out
of sauce during the second shift, but was uncertain as to
the number of times He was unaware of the reason and
consulted with Production Supervisor Paul Dolak Stig
gers and Dolak decided to observe Reeves and Collier
through ventilation fans on the side of the kitchen The
parties stipulated that it is possible to look through these
fans into the kitchen which is on the second floor, or
mezzanine while the observers are standing on the ad
joining roof of the first floor The two supervisors did
this, according to Stiggers, although Dolak was there
only a part of the time 54 There were two visits to the
roof, according to Stiggers from 7 15 to 7 45 p in , and
from 9 to 9 55 p in
Stiggers asserted that he saw Collier open his shirt,
display his abdomen make overtures to female employ
ees and otherwise engage in horseplaying The cook
room supervisor contended that he observed Reeves
talking to employees and doing very little work Specifi
cally, Stiggers said that he saw Reeves taking 7-8 min
utes to empty a gondola of veal into the kettle a job that
can be accomplished in about 30 seconds Further, it
took Reeves 10 minutes to remove a plastic wrap from
frozen veal, when this should have been done in 15 to 45
seconds
Stiggers testified about certain notes of these events
His testimony is unclear , but he appears to have asserted
that he made two sets of notes From his testimony the
first set was apparently made on sheets from a small note
pad Stiggers appears to have claimed that he made the
notes on this pad while on the roof Althought it was
quite dark at the time, Stiggers said that he made the
notes in light emanating from the kitchen through aper
tures in the ventilating fans On cross examination he ap
pears to have asserted that he made these notes before
12 o'clock Although I sustained the General Counsel s
hearsay objection to receipt of these notes they appear
unaccountably in the official exhibit file and constitute
seven sheets about 2 by 4 inches in dimension 55 The
notes contain various comments on what Stiggers asser
tedly observed-including Dolak in the kitchen below
Although they are critical of Reeves and Collier they do
not assert the exact details claimed in Stigger s testimo
ny
The other notes consist of a copy of a five page
memorandum from Stiggers to Shannon on letter sized
lined notepaper 56 This memorandum contains criticism
of Reeves and Collier more nearly in accord with Stig
gers testimony It contains a reference to Dolak s ac
companying Stiggers during the second visit, at 9 p m ,
but not the first visit
Stiggers testified that he wrote the memorandum after
coming down from the roof the second time On cross
examination , Stiggers cound not recall exactly when he
wrote the memoranudm and conceded that it could have
been as late as 12 45 a in Nonetheless, Stiggers contend
ed that he read this memorandum verbatim, word for
word to Company Manager for Human Resources
Shannon at approximately 11 p m 5'7 After this asserted
conversation Stiggers and Dolak suspended Reeves and
Collier
Production Supervisor Dolak testified that the kitchen
ran out of sauce, but he could not remember the number
of times He asserted that he went up on the roof to ob
serve the kitchen on two occasions, the first time at ap
proximately 7 p in, and the second time at approximate
ly 9 p in It was pointed out to him that his pretrial affi
davit does not mention that he went up on the roof 58
Dolak responded that his affidavit states that he had read
the attached notes made by Staggers [sic] [and] ob
served the cook room 59 Dolak agreed that the at
tached notes mentioned in his affidavit refer to Stiggers
memorandum, and that this document places Dolak on
the roof only during the second visit about 9 p in
Dolak asserted that he saw Stiggers memorandum on
the night in question The memorandum contains Dolak s
purported signature as a witness However Dolak denied
that the signature was his He also testified that he and
Stiggers talked to Shannon When asked whether Stig
gers had any notes when talking to Shannon, Dolak re
plied that Stiggers had notes on a notepad However
he did not recall whether Stiggers had the memoran
dum 60
Dolak s testimony about the activities of Reeves and
Collier in general is similar to that of Stiggers
Company Official Shannon testified on direct examina
tion that he received a call from Dolak late on the
evening of 3 November and that Dolak and Stiggers
then related the asserted conduct of Reeves and Collier
as set forth above Shannon said that he concurred in the
supervisors recommendation of suspension for gross
negligence in their job performance Shannon asserted
that Stiggers memorandum61 was on his desk the next
morning i e 4 November 1986 and that he reviewed it
with other supervisors However, on cross examination
Shannon agreed that his pretrial affidavit62 does not
mention a phone call from Stiggers or Dolak concerning
Reeves or Collier any observation of them made from
the roof or Stiggers memorandum being on Shannon s
desk the next day The affidavit contains no reference to
any such memorandum from Stiggers and instead lists
the charges against Reeves and Collier outlined above 63
Reeves version of the second shift is that he was as
signed to work on preparation of butter sauce on D
kettle by Cookroom Supervisor Stiggers Reeves nor
57 Stiggers pretrial affidavit does not mention this call (G C Exh 10)
"GC Exh 11
111d at 2 As noted above Stiggers first notes perhaps made on the
roof place Dolak physically in the kitchen
54 Stiggers pretrial affidavit does not mention that Dolak accompanied
him G C Exh 10
60 R Exh 7
81 R Exh 7
55 R Exh 8 62 G C Exh 14
56 R Exh 7 6s Id at 8-10
ALL AMERICAN GOURMET 1125
mally works on A kettle Reeves started to do this but
noted that he did not have enough butter to complete
the batch He informed leadman Tom Purdy of this fact
and Purdy said that he would go downstairs to get the
butter Stiggers came up 2 minutes later and said, I
heard you weren t going to make the sauce? No
Reeves replied, I don t have enough butter to complete
the batch Reeves completed this task and then was as
signed to D kettle by Stiggers He started to prepare
sauce for this kettle when leadman Purdy approached
said that he would kick [Reeves ] ass and started put
ting his hands in [Reeves ] face The leadman told
Reeves that they were going to get rid of [him] and
that [he] wasn t going to be there much longer Reeves
protested harassment to Stiggers who rejected the pro
test Purdy then assigned Reeves to assist Richard Sims
on kettle A by emptying 27 boxes of veal into the
kettle Reeves did not have enough boxes at the outset
but more were provided Meanwhile this job was de
layed because of the absence of the veal
Collier testified that he was not even given the respon
sibility of cooking on 3 November Instead, he was di
rected to help Sims and Yusuf Rashid another cook
Collier was directed to pick up heavy items that the
other cooks could not pick up themselves and to load
the kettles
Antonio Copeland was a cook on the second shift
during these incidents He testified that the supervisors
first sent Reeves to kettle C Copeland was next to
him on kettle D ' Copeland heard leadman Purdy ask
Reeves whether he was cooking it and Reeves an
swered Yes Copeland then heard Purdy tell Cook
room Supervisor Stiggers that Reeves was not cooking
the sauce Stiggers accused Reeves of refusing to do
so, and Reeves replied that he was waiting for the last
ingredient butter
Copeland contended that Stiggers was in the kitchen
continuously for about a 5 hour span and never left it
According to Copeland one of Reeves kettles did run
out of sauce The kettle of another cook Rashid ran out
of sauce three times Rashid was assisted by Collier
Rashid was not disciplined according to Copeland 64
Richard Sims was Reeves cooking partner during the
second shift on 3 November from about 4 o clock until
about 9 30 p in when Reeves was called to the office
Sims testified that Reeves did not work any differently
on that shift than he did at other times When Sims was
chopping veal over the kettle Reeves was opening the
boxes of veal and placing the empty boxes in a rack over
the kettle Reeves would open five boxes of veal at a
time Sims denied that it took Reeves 10 minutes to open
a box of veal Sims also denied that Reeves stood around
doing nothing Whenever Reeves walked elsewhere it
was to get products such as butter or spices and he did
not take an inordinate amount of time to do this
Sims stated on cross examination that Stiggers spent
an awful lot of time in the kitchen contrary to his
usual policy which was to pop in and out every hour
or two Sims noticed Stiggers standing back near the
mezzanine as though he was watching every move Rick
Reeves was making Stiggers was in the kitchen most
of the second shift although he was absent on occasion
Otherwise Sims testimony in general corroborates that
of Reeves
Collier worked on the kettle next to Sims The latter
characterized Collier as a very good worker On the
dinner line the sauce never ran out down there Mike
was very responsible as far as keeping up with the
sauce Sims further affirmed that Collier would break
his neck trying to help you If he was told to clean
the floor he d clean the floor
As indicated Sims testified that Collier had engaged in
horseplay since the day he was hired He would some
time raise his shirt because his belly always lapped over
his buckle Sims called this basic teasing On direct
examination Sims testified that this was common
knowledge throughout the plant, and that supervisors
were present Challenged on cross examination, Sims
could not affirm that he actually saw supervisors looking
at Collier However although he agreed that there were
areas of the plant with which he was not familiar, Sims
maintained that there were many areas where employees
saw Collier opening his shirt
(2) The suspensions
Reeves testified that about 10 pm or shortly thereaf
ter on 3 November, Stiggers told him to come upstairs
Reeves did so, and met Production Supervisor Dolak
Supervisor Linda Murphy, and two security guards
Dolak told Reeves that he was being suspended for neg
ligence When Reeves asked for more explanation Dolak
replied that Shannon would be in touch with him The
guards then escorted Reeves out of the plant
Collier stated that Dolak spoke to him at about the
same time and said that he was being suspended because
of negligence When Collier asked how he had been neg
ligent, Dolak told him to ask Shannon Collier repeated
the question to Stiggers He [Stiggers] didn t say noth
ing He looked down
The record contains apparent written suspensions of
Reeves and Collier for gross negligence of job perform
ance signed by Stiggers and dated 3 November 65 Stig
gers contended that he talked with Shannon 3 November
before preparing Reeves written suspension However
the cookroom supervisor stated that he could not recall
whether he gave Reeves a copy or showed it to him
Stiggers also said that he did not recall whether he had a
copy of Collier s written suspension at the time he met
with the employee on the evening of 3 November but
affirmed that he promised to get him one
b Factual analysis
The issue is whether Reeves and Collier engaged in
the conduct alleged by Supervisors Stiggers and Dolak
This in turn raises the question of the reliability of Stig
gers and Dolak as witnesses I conclude that they were
unreliable witnesses because of discrepancies in their
own statements and contradictions with the statements of
64 As noted Rashid was the one second shift cook who did not partici
pate in the sickout 65 R Exhs 9-10
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
others Neither Stiggers nor Dolak s pretrial affidavit
mentions that Dolak went up on the roof Although
Dolak claimed that he went up there twice, Stiggers
memorandum has him there only once and Stiggers
rooftop notes have him at other times actually in the
kitchen
Stiggers and Dolak s contention that Stiggers read
over his memorandum to Shannon that night is a sheer
fabrication Dolak could only identify notes on a note
pad as something Stiggers had while assertedly talking
to Shannon The rooftop notes do not contain the spe
cific accusations against Reeves and Collier contained in
the memorandum 66
Stiggers could not possibly have read the memoran
dum to Shannon at 11 p in , as he contended, if it was
not even written until 12 45 a in which Stiggers admit
ted was possible Although Shannon claimed that he re
ceived such a call his pretrial affidavit does not mention
either the call or Stiggers memorandum, which alleged
ly was on his desk the next morning Dolak refused to
identify his own purported signature on the memoran
dum These contradictions and inconsistencies establish
the unreliability of Stiggers, Dolak, and Shannon as wit
nesses, at least as to the asserted misconduct of Reeves
and Collier
Further, I do not credit Stiggers testimony regarding
preparation of the written suspensions Stiggers conten
tion that, although he prepared Reeves written suspen
sion before talking to the latter he could not recall
giving or showing it to the employee, is implausible The
cookroom supervisors professed lack of memory con
cerning Collier s written suspension is similarly unpersua
sive Neither Reeves nor Collier mentioned a written sus
pension on the evening of 3 November, and I conclude
that none was then given to them I note in passing that
Collier s written suspension speaks only of asserted
gross negligence and says nothing about horseplaying
Respondent contends in effect that all the General
Counsels witnesses were biased, the alleged discrimina
tees because of self interest and Sims and Copeland be
cause of sympathy with them However Sims and Cope
land were current employees of Respondent at the time
of their testimonies, and the Board has repeatedly held
that the pecuniary interest involved in preservation of
jobs makes it unlikely that such testimonies, adverse to
the employers interest are fabricated 67 Respondent also
contends that Sims testimony that Stiggers was in the
kitchen most of the second shift is inconsistent with
other evidence that he was elsewhere including the roof
This contention begs the question of the accuracy of
Stiggers and Dolak s testimonies
All the General Counsels witnesses appeared to be
truthful and I credit their testimonies 68 The evidence
66 Although I sustained the General Counsel s objection to receipt of
the rooftop notes they are contained in the exhibit file and counsel for
Respondent thereafter directed questions about them to Production Su
pervisor Dolak after the latter failed to affirm that Stiggers had the
memorandum when assertedly talking with Shannon
67 Bohemia Inc supra at in 53 and cases cited therein See also South
ern Paint & Waterproofing Co 230 NLRB 429 431 fn 11 (1977)
66 I note a minor inconsistency in the testimonies of Reeves and Cope
land concerning the kettle to which Reeves was first assigned but con
considered as a whole establishes that Reeves worked at
his usual pace which did not involving wasting time Al
though Reeves ran out of sauce on one occasion this
was due to lack of materials Rashid-who did not join
the stickout-had three such shortages, but was not dis
ciplined L eadman Purdy told Reeves that they were
going to get rid of him, and that he was not going to be
there much longer
Collier was a responsible worker who did not shirk his
duties Although he may have engaged in horseplay, he
had done this throughout his employment, occasionally
in the presence of supervisors, as noted Collier s suspen
sion did not mention horseplaying
4 The discharges
a Summary of the evidence pertaining to Collier
Collier testified that he saw Shannon on 5 November
and asked in what manner he had been negligent Shan
non said that he had three statements against Collier
signed by upstairs female employees The substance of
the asserted statements was not stated Collier asked to
see the statements, but Shannon refused Shannon said
that he would discuss Collier s case with supervisors and
Collier suggested that he discuss it with the employees
upstairs Shannon replied that what the employees say
doesn t count According to Collier Shannon called
Production Manager Adams into the room Adams said
that the line went down for 34 minutes and he was
not going to take the blame Adams denied that The
only other reason given to Collier for the Company s
action was that they had been having problems with the
upstairs kitchen crew Collier denied that Shannon men
tioned horseplaying as a reason Although Shannon did
not give Collier a final decision at that time he called
later and told Collier that he had decided to go along
with the termination
Shannon testified that Collier was separated on 4 No
vember He identified a separation notice and testified
that it was prepared and signed by him on 5 November
The document is actually dated 4 November and asserts
that Collier was discharged for gross negligence and
continued horseplay 69
Shannon agreed that he met with Collier on 5 Novem
ber He testified that he reviewed the events of
November 3rd which included Collier s horseplay and
non attendance to his job performance Shannon char
acterized this as gross negligence and dismissed Col
her He denied telling Collier that he would discuss his
case with supervisors and get bactc to him Shannon also
denied telling Collier that he had three signed statements
from other employees, that he in fact had any such state
ments or that what employees say did not count How
ever Shannon s pretrial statement affirms that he told
Collier without naming names that other employees had
complained about Colliers not doing his assigned
work 70 Although Shannon s pretrial statement asserts
sider this to be an insignificant and possibly mistaken identification of
kettle C or D
69 R Exh 12 The separation notice asserts that Collier had been
issued prior warnings on the need to improve his work performance
10 G C Exh 13 at 10
ALL AMERICAN GOURMET 1127
his own conclusion based on reports from Stiggers and
Dolak, that Collier had engaged in horseplay rather than
work the statement does not relate that he accused Col
her of horseplaying 71 Shannon agreed that his own in
vestigation of Collier s case was limited to receipt of re
ports from Stiggers and Dolak
b Summary of the evidence concerning Ricky Reeves
Reeves testified that he called Shannon on 6 Novem
ber and met him at the plant The company official told
Reeves that he was being terminated because his work
performance wasn t up to par Shannon contended that
Reeves was not being sufficiently helpful to Sims, his
cooking partner When Reeves asked Shannon whether
the latter had talked to Sims about the matter Shannon
replied No
Shannon testified that he told Reeves that the latter
had been grossly negligent, and was being terminated
Reeves disagreed and said that he had been doing his
job Shannon did not contradict Reeves testimony con
cerning allegations that Reeves had been insufficiently
helpful to Sims
Reeves separation notice is dated 4 November and as
serts that he had been discharged for gross negligence
It further alleges previous warnings for substandard
work performance and reluctance to follow instruc
tions 7 2
c Factual analysis
The principal factual issues concern Collier Although
his separation notice and Shannon s testimony assert that
an accusation of horseplaying was made the absence of
affirmation of such accusation in Shannon s pretrial state
ment and in Collier s written suspension tend to support
Collier s denial that Shannon made that accusation Al
though Shannon claimed that the discharge was actually
made on 4 November-apparently without notice to Col
leer-the separation notice was not prepared until the
next day, when Collier met with Shannon It may be that
the horseplaying accusation was added to the separation
notice as an afterthought on 5 November In any event
I credit Collier s denial that it was made during the dis
charge interview
Collier s testimony that Shannon said he had signed
statements against Collier from other employees is par
tially corroborated by Shannon s pretrial statement that
other employees had made complaints about Collier
However this does not establish that Shannon actually
had made any such statements Collier was a more truth
ful witness than Shannon and I credit his testimony con
cerning the discharge interview
I credit Reeves uncontradicted testimony that Shan
non accused him of being insufficiently helpful to Sims
and that Shannon admitted not talking to Sims about the
matter
7 ` Ibid
72 R Exh 13
5 Respondent's progressive disciplinary policy and
its application to Reeves and Collier
Company Official Shannon testified that the Company
has a progressive disciplinary policy consisting of verbal,
written and final written warnings 7,1 As indicated
above Shannon agreed that he did not rely on Stiggers
final written warning based on alleged improper lifting
techniques, in discharging Reeves He also agreed that
there is no record of verbal warnings in Reeves file The
only infraction, Shannon admitted was Reeves gross
negligence on 3 November However, despite the pro
gressive disciplinary policy this infraction was serious
enough to warrant Reeves termination
With respect to Collier the final written warning on
29 October is predicated on disputed evidence as to re
sponsibility for the agitator as well as horseplaying Fur
ther Collier appears to have been warned twice for the
same incident first by Dolak and then by Stiggers Shan
non never responded to Collier s protest at what he as
serted was an improper attempt to blame him for the fail
ure of the sauce to flow on 29 October In view of the
conflicting evidence on this incident, including responsi
bility for the agitator and Shannon s failure to get back
to Collier, the latter cannot fairly be described as culpa
ble in this matter
6 Legal analysis and conclusions
The General Counsel has the burden of establishing a
prima facie case sufficient to support an inference that
protected conduct was a motivating factor in Respond
ent s discharges of Reeves and Collier Once this is estab
lished the burden shifts to Respondent to demonstrate
that the discharges would have taken place even in the
absence of the protected conduct 74
It is obvious that the union activities in which Reeves
and Collier participated constituted protected activities
With respect to the sickout, the employees were protest
ing asserted harassment by supervisors i e working con
ditions and Reeves articulated a complaint to Supervisor
Adams that the Company was refusing to bargain after
the Union had won the election Although the Board
and the courts have held that concerted activity may be
unprotected when the employees conduct violates Fed
eral law or is otherwise indefensible 75 no such circum
stances exist in this case Accordingly I find that the
sickout also constituted concerted protected activity 76
73 Jt Exh 1 sec 5
74 Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir
1981) cert denied 455 U S 989 (1982) approved in NLRB v Transporta
tion Management Corp 462 U S 393 (1983) The test set forth above ap
plies regardless of whether the case involves pretextual reasons or dual
motivation Frank Black Mechanical Services 271 NLRB 1302 fn 2
(1984) [A] finding of pretext necessarily means that the reasons ad
vanced by the employer either did not exist or were not in fact relied
upon thereby leaving intact the inference of wrongful motive established
by the General Counsel Limestone Apparel Corp 255 NLRB 722 (1981)
enfd 705 F 2d 799 (6th Cir 1982)
75 See authorities cited in Spencer Trucking Corp 274 NLRB 1444
1449 (1985)
76lbid See also Shogun Restaurant 273 NLRB 755 763 (1984) (Con
clusion of Law 4) Because of these findings I need not decide whether
Reeves visit to the company attorneys office together with other em
ployees also constituted protected activity
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Inasmuch as Reeves was one of the leading proponents
of the Union was threatened by Supervisor Adams
while handbilling and was one of five cooks participat
ing in the sickout, it is clear that Respondent knew of his
union sympathies and other protected activities Al
though Collier was not as outspoken as Reeves, he also
participated in leafleting , and Supervisor Stiggers admit
ted that he knew Collier favored the Union Further
Collier was one of five cooks who participated in the
sickout I, therefore find that the Respondent had
knowledge of Reeves and Collier s union sympathies
and concerted protected activities
The Respondents unlawful threat to call the police on
Reeves when the latter was handbilhng and Production
Manager Adams statement at the 3 November meeting
that another layout would result in replacement or dis
charge of the cooks, evidences Respondent s animus
against union sympathizers such as Reeves and Collier
Accordingly I conclude that the General Counsel has
established a prima facie case that Reeves and Collier s
union and other protected activities were motivating fac
tors leading to their discharges
The Respondents asserted reason for the discharge of
Reeves, gross negligence, is not supported by credible
evidence for the reasons given above Reeves did not
fail to work nor did he waste time Although he ran out
of sauce once on 3 November this was due to a lack of
ingredients not negligence on Reeves part Another em
ployee, Rashid ran out of sauce three times but was not
disciplined Rashid was the only second shift cook who
did not participate in the sickout Such disparate treat
ment is evidence of discriminatory motivation under
well established Board law
Reeves had received two raises in the period of slight
ly over a year which elapsed between his hiring and his
discharge Although he was given a warning on 29 Octo
ber for assertedly lifting a tub of carrots improperly, Re
spondent s designation of this as a final written warn
ing was excessive in light of the nature of the claimed
offense In any event the charged offense did not relate
to the asserted reason for Reeves termination gross
negligence Moreover Company Official Shannon ad
mitted that he did not take this final written warning
into account when discharging Reeves
Shannon further admitted that Reeves was discharged
because of his asserted misconduct on 8 November solely
on the basis of supervisory reports without any inde
pendent investigation by Shannon or questioning of
Reeves This is a factor indicating discriminatory motiva
tion 77 Shannon also admitted that his discharge of
Reeves did not follow the Company s progressive disci
plinary system leading from verbal to written to final
written warnings This constitutes additional evidence of
discriminatory motivation 78
Although Collier had more warnings than Reeves
they do not support Respondents asserted reasons for his
discharge Collier s 28 March warning for absenteeism or
tardiness is unrelated to the reasons advanced for his dis
charge, and took place too far in the past to have been a
factor The 24 September warning for assertedly sweep
ing items off a table was based on hearsay The 29 Octo
ber warnings to the extent they were based on Collier s
alleged responsibility for the production line running out
of sauce were the subject of a supervisory dispute and
were not proved to have been substantiated, Shannon
never responded to Collier s protest over this incident
As for the supposedly determinative second shift on 3
November Collier was not even assigned to cooking
was not responsible for any asserted failures and the
credited evidence shows that he was a good employee
The principal distinction between Reeves and Collier s
cases is the latter s engaging in horseplay However Col
her engaged in this activity from the day he was hired
occasionally in the presence of supervisors Cookroom
Supervisor Stiggers admitted that he was aware of Col
her s activities at least as early as September 1986 Re
spondent s witness Hollifield contended that he notified
supervisors of Collier s (and Reeves) supposedly aber
rant activities 25 or 30 times-yet no written warnings
were ever issued and, as shown above the evidence is
insufficient to establish that Collier was ever given a
verbal warning for engaging in horseplay Finally, Col
her was suspended on 3 November, not for horseplay,
but for gross negligence Within 24 hours in his sepa
ration notice the next day (not then communicated to
Collier) horseplay appeared as an additional reason for
the discharge I conclude that this addition was an after
thought, and that Respondent had condoned Collier s en
gaging in horseplay 79
To these observations must be added the fact that Su
pervisor Kelley after the 3 November employee meet
ing, advised Supervisor Stiggers to write up these em
ployees Write them up a second time a third time
Boom They terminated All the evidence including the
unsubstantiated exaggerated or distorted discipline of
Reeves and Collier and Stiggers and Dolak s contradic
tory assertions concerning the second shift on 3 Novem
her warrant an inference that the warnings were con
cocted by the Respondent in an effort to justify the dis
charges of known union adherents 80
For these reasons I conclude that the Respondent s
evidence is insufficient to establish that either Reeves or
Collier would have been discharged absent the protected
activity in which they engaged Accordingly I conclude
that the General Counsels prima facie case has not beeen
rebutted, and that the discharges were discriminatorily
motivated in violation of Section 8(a)(3) and (1) of the
Act
77 Greensboro News Co 272 NLRB 135 143 (1985) Beverly Enterprises
272 NLRB 83 89-90 (1984)
18 St Paul s Church 275 NLRB 1242 1259 (1985)
79 Downtown Toyota 276 NLRB 999 1016 (1985) Limpert Bros 276
NLRB 364 376-377 (1985)
80 Rikal West Inc 266 NLRB 551 567 (1983) enfd 721 F 2d 402 (1st
Cir 1983)
ALL AMERICAN GOURMET 1129
C The Alleged Prohibition Against Discussing Terms
and Conditions of Employment with Anyone but
Respondent
1 Summary of the evidence
Amelia Thompson was an employee who supported
the Union and passed out leaflets and petitions At some
time prior to 1 November she complained to Union Offi
cial Linda Riggins that she and other female employees
were being sexually harassed by an inspector for the
United States Department of Agriculture (USDA) who
was stationed in the plant
The union attorney called company counsel and was
advised that this was a matter that should be raised with
Company Official Shannon Union counsel thereupon
called Shannon and reported the matter Shannon said
that he would talk with the USDA official in charge did
so, and secured USDA permission to interview the em
ployees and report back to USDA
Thompson testified that she and other female employ
ees were called to Company Official Shannon s office on
or about 1 November, and were interviewed separately
Shannon told Thompson that he had received a call from
Union Representative Sarason informing Shannon that
some employees were being harassed by the USDA in
Spector Thompson replied affirmatively and said that the
inspector had offered to buy things for her and request
ed meeting her after work Thompson asked Shannon to
get the inspector transferred to another plant The com
pany official replied that he could not do this but prom
iced to take Thompson s complaint and those of the
other employees to the USDA Shannon concluded by
telling Thompson that if she had a problem with the in
spector or anyone else in the future, to report the matter
to Shannon or Thompson s immediate supervisor but not
to talk to anyone else about the matter
Shannon agreed that he met separately with three
then current employees and one former employee One
of the persons he interviewed was Amelia Thompson
Shannon s description of Thompson s complaint against
the USDA inspector is similar to Thompson s testimony
although he contended that the alleged conduct consti
tuted very unprofessional behavior rather than sexual
harassment
On direct examination Shannon testified that he told
Thompson she should feel free to discuss such matters
with him or other supervisors Thompson agreed that
Shannon said this However Shannon denied telling
Thompson that she should not discuss these matters with
anyone else 81
81 Errors in the transcript are noted and corrected
Respondent sought to question employee Charlotta Walker with re
spect to conversations about sexual harassment she had with company of
facials The Union and the General Counsel objected on the ground that
there was no complaint allegation concerning Walker and that the prof
fered evidence was therefore irrelevant Respondent contended that if
Walker testified Shannon did not instruct her not to discuss sexual harass
ment with others this would tend to establish that Shannon similarly did
not so instruct Thompson I sustained the objection
Respondent then submitted an offer of proof that Walker and another
employee interviewed at the same time Sheila Morant if allowed to tes
tify would assert that Shannon did not instruct them not to talk to other
persons about sexual harassment The same objection was made to prof
The transcript of Shannon s cross examination reads in
part as follows
Q Mr Shannon, isn t it true that you would have
preferred to have dealt with the issue of sexual har
assment in house rather than dealing with the Serv
ice Employees Union9
A I would have liked for employees to come to
me if they had a problem regarding sexual harass
ment , that s correct
Q And that they would come to you first rather
than going to the Union isn t that correct9
A Not first or second I just would prefer them
to come to me, period
Q You were not pleased that you received that
phone call from me were you?
A I don t like any phone call that talks about
sexual harassment I wasn t displeased that you had
called me about it In fact I was somewhat sur
prised that you d call and inform me of some issues
Shannon reported the results of his investigation to the
appropriate USDA official who assertedly said that he
would consult with his supervisor and possibly with
Union Attorney Sarason There is no evidence that
Shannon himself called Sarason about this matter The
USDA inspector about whom Thompson complained
was transferred out of the plant about 2 months prior to
the time such transfer would normally have taken place
according to Shannon
2 Factual and legal analysis
Respondent argues that Shannon rather than Thomp
son should be credited because Shannon (a) would not
simultaneously have prohibited Thompson from talking
to other persons while telling her to feel free to talk to
him or other supervisors about sexual harassment (b)
handled the sexual harassment issue in cooperation
with the Union and USDA officials (c) would have ex
pected continued contact with Mr Sarason in resolving
the sexual harassment problem and (d) there is no evi
dence that the statements attributed to Shannon by
Thompson were disseminated to other employees 82
Respondents argument is not persuasive There is
nothing inconsistent in Shannon s telling Thompson to
feel free to discuss such matters with supervisors while
at the same time prohibiting her from doing so with
others Although Shannon agreed to handle the matter
referred to him by Sarason the company argument that
Shannon would have expected further contact with
the Union on this issue is speculative, and Shannon did
not affirm that he called Sarason back about the matter
When asked whether he preferred in house handling of
the sexual harassment issue rather than dealing with the
Union Shannon replied that he would have liked em
ployees to come to [him] if they had a problem regard
ing sexual harassment that s correct This admission is
fered testimony from Shannon about his conversations with other em
ployees and was sustained and the same offer of proof was made There
was no exception to my exclusionary rulings
82 R Br at 97-100
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
inconsistent with Respondents contention that Shannon
anticipated future cooperation with the Union on this
matter
Rather than cooperating with the Union Respondent
had already demonstrated its antiunion animus by threat
ening Reeves and was, about the time of Shannon s con
versation with Thompson engaged in preparation of the
above described distorted warnings concerning Reeves
and Collier Further Shannon admitted that he would
have preferred in house handling of the sexual harass
ment issue In these circumstances it is not unlikely that
Shannon would have told an employee to present such
grievances to the Company rather then discuss them
with others Thompson s appearance on the witness
stand convinced me that she was a more truthful witness
than Shannon and I credit her version of the conversa
tion
My conclusion would not be otherwise if I had re
ceived and credited the proffered evidence that Shannon
did not make a similar statement to other employees
named by Respondent Although evidence is relevant if
it has a tendency to make the existence of any fact
of consequence to the determination of the action more
probable or less probable than it would be without the
evidence, 83 some evidence of unquestioned relevance
may properly be excluded if its receipt would involve a
waste of time 84 That would have been the result in
this instance In civil actions of negligence, the courts
have generally excluded evidence of similar prior acts
because such evidence would introduce collateral
issues 85 Respondent proffered evidence is intended to
establish a predisposition not to engage in the same act in
similar circumstances Wigmore concludes that a nega
tive habit may be shown but only if the instances be
sufficiently numerous as to indicate a general course
of behavior under like circumstances 86 The instances
submitted by Respondent are insufficiently numerous for
this purpose
The Board has agreed that the layoff of certain indi
viduals may be discriminatorily motivated even though
other employees were not chosen for such layoffs 87 In
another case, the Board stated that the fact that the em
ployer did not choose to compound the wrong by pick
ing out union adherents for layoft (at one plant) can
hardly cure the unlawful nature of (the employer s) ini
tial decision causing the layoffs 88 As set forth above I
conclude that the proffered evidence as detailed in Re
spondent s offers of proof even if received, would have
insufficient probative weight to overcome the likelihood
that Shannon did make the statement attributed to him
by Thompson, or to overcome the latter s inherent credi
bility
Thompson's grievance, asserting sexual harassment at
the workplace, concerned her working conditions As set
forth above Shannon told Thompson that if she had a
problem with the USDA inspector or anybody else in
81FedREvid 401
84 Id at 403 and Advisory Committee Note
85 29 Am Jur 2d Agency § 315
86 2 Wigmore Evidence § 376 (Chadbourn rev 1979)
87 Rea Trucking Co 176 NLRB 520 (1969)
88 Ethyl Corp 231 NLRB 431 433 (1977)
the future i e , a problem involving sexual harassment
she would be free to discuss the matter with Shannon or
her immediate supervisor, but that she was not to discuss
it with anybody else 89 This rule was so broad that it
precluded Thompson from discussing sexual harassment
with other employees in addition to preventing her from
bringing it to the attention of the Union It is clear that
such a rule is impermissibly broad and is violative of
Section 8(a)(1) of the Act 90 Respondents argument that
there is no evidence the rule was disseminated to em
ployees other than Thompson is an insufficient defense
because such a statement made to only one employees is
violative of the Act 91 I conclude that Respondent, by
Supervisor Shannon s statement to Thompson thereby
violated Section 8(a)(1) of the Act
D The Alleged Unilateral Change in Disability Pay
Policy
1 Summary of the evidence
The complaint alleges that Respondent unilaterally
changed its disability pay policy about 1 June without
notice to or consultation with the Union Respondent
agrees that there was a change, but contends that it took
place about 1 May and thus prior to the date of the elec
tion (23 May) and more than 6 months prior to the filing
date of the first charge in this case (10 November) The
evidence is both documentary and testimonial in nature
The parties stipulated that Georgia law provides that
employees injured at work are not to be compensated for
their injuries for the first 7 days Respondents director
of human resources Shannon testified that in January
1986 he decided to pay employees for the first 3 days of
this 7 day waiting period because he considered it good
policy However the policy was not accurately imple
mented for various reasons, and Shannon issued a memo
randum 6 February explaining that employees were to be
compensated for the first 3 days of a work related acci
dent as verified by a doctor s statement 92 Shannon iden
tified a list of employees with work related injuries
showing that of nine employees with such injuries
during the last quarter of 1985, none received compensa
tion for the first 3 days Thereafter beginning 6 January
and continuing for several months some employees re
ceived such benefits and some did not 93 Shannon testa
feed that his new policy was not uniformly followed de
spite his February memorandum because of the advent of
new supervisors who did not understand the policy and
because of computer and clerical errors
89 The pleadings appear to establish Shannon s supervisory status On
the basis of the pleadings and the record evidence which contains ample
indicia of such status I conclude that Shannon was a supervisor within
the meaning of the Act
80 Pontiac Osteopathic Hospital 284 NLRB 442 (1987) Scientific Atkin
to 278 NLRB 467 (1986) The Loft 277 NLRB 1444 (1986)
AL.SAC 277 NLRB 1532 (1986) There is no evidence that the Re
spondent considered sexual harassment of its employees to be information
confidential to the Company such as comparative wages Cf L G Wil
hams Oil Co 285 NLRB 418 (1987)
91 Flex Plastics 262 NLRB 651 659-660 (1982) enfd 726 F 2d 272
(6th Cir 1984)
91 G C Exh 4
91 G C Exh 5
ALL AMERICAN GOURMET 1131
Shannon further asserted that Respondent decided to
eliminate this 3 day payment at the end of April 1986
because it caused people to stay out of work longer than
they needed to do so Accordingly, after meeting with
supervisors, Shannon decided to discontinue the policy
effective I May There is no evidence that Resnondent
documented this asserted elimination of the 3 day policy
with a memorandum as it did the implementation of the
policy in February
Respondents records show that it continued to pay
some 3 day benefits and to deny others until 13 June,
when the last such payment was made Thereafter be
ginning with the first nonpayment on 16 June and for the
remainder of 1986 and about the first 3 months of 1987
no such payments were made to any of numerous em
ployees with work related injuries 94 Shannon acknowl
edged the continued payments after 1 May Some were
paid and some weren't The same as had occurred
before Shannon claimed that this was not to happen
but agreed that he was responsible for the continued
payments The director of human resources also agreed
that he did not notify the Union of this mid June change
of policy which date he later corrected to 1 May
Reeves was one of the employees who was given 3
day disability pay subsequent to the asserted elimination
of the policy for an injury sustained on 4 June 95 Reeves
testified that he was injured again about 27 July, and that
his supervisor at the time, Dan Rhymer, told him that he
would receive disability pay and so marked his time
card 96 Reeves affirmed that he was not compensated for
this injury, and protested to Company Official Shannon
about the end of July According to Reeves Shannon
said that the policy had changed about a month before
[Reeves ] injury i e , about 27 June, that Shannon had
notified the supervisor and that the latter should have
notified Reeves Shannon did not contradict this testimo
ny and Rhymer did not testify
2 Factual analysis
Respondents records are more persuasive than Shan
non s testimony They show two periods of nonpayment
(for the first 3 days of work related injuries) the first
period being the last quarter of 1985, and the second
period beginning on 16 June 1986 and continuing into
1987 Shannon s explanation of the continuation of such
payments after 1 May-his asserted date of the elimina
tion of payments-is almost nonexistent About all that
he contends is that the same thing happened again i e
alleged errors However, Shannon gives no explana
tion of the fact that the second unbroken series of non
payments began on 16 June, just as the last one ended at
the close of 1985 This is consistent with Reeves uncon
94 Ibid
95 G C Exhs 5 and 6
96 G C Exh 6 A photostat of Reeves timecard for the period ending
27 July is in evidence and the word Disability although faint appears
in the spaces for the last 3 days Reeves timecard for the June disability
also contains very faint markings appearing to show the word Disabil
ity However immediately below these faint markings the printed word
Disability appears clearly followed by a clearly imprinted but some
what illegible word that appears to be pan or pair (pay9) R Exh
17
tradicted testimony, which I credit, that Shannon told
him that the policy changed about a month before
Reeves 27 July accident
For these reasons I find that Respondent changed its
disability policy about 16 June so as to eliminate pay
merit for the first 3 days of disability 97 I credit Shan
non s testimony that this change was made without
notice to the Union
3 Legal analysis and conclusions
The foregoing discontinuance of disability pay consti
tuted a unilateral change in employees terms and condi
tions of employment which took place while the Em
ployer s objections to an election were pending I have
concluded that the objections are without merit and that
a certification of representative should issue The Board
has stated the law in such circumstances as follows
The Board has long held that absent compelling
economic considerations for doing so, an employer
acts at its peril in making changes in terms and con
ditions of employment during the period that objec
tions to an election are pending and the final deter
mination has not yet been made And where the
final determination on the objections results in the
certification of a representative the Board has held
the employer to have violated Section 8(a)(5) and
(1) for having made such unilateral changes Such
changes have the effect of bypassing, undercutting,
and undermining the union s status as the statutory
representative of the employees in the event a certi
fication is issued To hold otherwise would allow an
employer to box the union in on future bargaining
positions by implementing changes of policy and
practice during the period when objections or de
terminative challenges to the election are pend
ing 98
I therefore conclude that Respondent, by its unilateral
change in disability pay policy on about 16 June so as to
eliminate such pay for the first 3 days of disability there
by violated Section 8(a)(5) and (1) of the Act 99
97 Respondents reliance on the absence of the word pay after the
word disability on Reeves July timecard (G C Exh 6) as contrasted
with the asserted addition of that word on the June timecard (R Exh
17) has little probative value because the evidence cited above shows
that the policy change was made in mid June and because the June time
card has markings that suggest an addition to it subsequent to the original
entries (R Exh 17)
96 Mike 0 Connor Cheverolet 209 NLRB 701 703 (1974) revd on
other grounds 512 F 2d 684 (8th Cir 1975) see also Master Slack 230
NLRB 1054 fn 3 (1977)
99 Because the change took place in mid June and the Union filed an
unfair labor practice charge alleging unlawful changes on 10 November
(G C Exh 1(a)) it is obvious that Respondents tacit argument based on
Sec 10(b) of the Act is without merit
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E The Alleged Refusal to Bargain over Dental of a
Wage Increase
1 Summary of the evidence
a Respondents wage increase policies
The complaint alleges that the Respondent since about
1 December , refused to bargain with the Union over its
denial of a wage increase , thus violating Section 8(a)(5)
and (1) of the Act Much of the evidence pertains to the
Company s policies concerning pay increases The plant
opened in 1985, and prospective employees were inter
viewed in that year
Irma Jean Ming testified on direct examination that
she was interviewed in August 1985 by Supervisor Fred
die Whatley and that the latter told her she would get a
raise after her probationary period and every 6 months
thereafter On cross examination Ming stated that What
ley told her she would receive a performance evaluation
every 6 months and a raise based on her performance
On further questioning however Ming testified that she
was not evaluated prior to receiving her first raise in
January (after the probationary period), nor her second
raise in June In November , some time before Ming left
the Company , Whatley called her into his office and told
her that that was her evaluation
Ming further testified that she attended a meeting of
75-100 employees in October 1985 The meeting was
conducted by Company Official Rick Shannon and em
ployees were told that they would receive a raise after
the 90 day probationary period and every 6 months
thereafter
Ricky Reeves testified that he had a conversation in
October 1985 with Supervisor Whatley According to
Reeves Whatley said that employees would receive
raises twice a year in June and December Reeves also
testified that in a meeting he had with Shannon about
the same time in the latter s office the company official
said the same thing According to Reeves Shannon de
Glared that Reeves would be making $10 hourly at the
end of the year On cross examination Reeves testified
that Shannon said the same thing to him in Shannon s
office in May 1986 Reeves denied that anybody cau
tioned him about any misunderstanding he might have
had about automatic raises
Reeves also testified that he attended a meeting in a
breakroom in October 1985 when a supervisor named
Jerry utilizing an overhead camera, showed a projec
tion of two raises yearly
Lynwood Barber a sanitation worker , was hired in
November 1985 at $6 20 an hour and testified that Shan
non then told him that he would get a 15 cent raise after
90 days and subsequent raises twice yearly averaging 75
to 90 cents , so that Barber would be making about $10
an hour at the end of a year of employment Barber fur
ther averred that he received a 15 cent raise at the end
of his probationary period On cross examination Barber
agreed that the raises assertedly promised by Shannon
would not reach $ 10 and stated that he was making
$6 65 at the time of the hearing Barber denied that
Shannon said that the raises depended on an evaluation
Production Supervisor Whatley hired employees
before the plant opened He testified that pursuant to in
structions from Shannon he told employees that they
would receive raises after their probationary periods and
every 6 months thereafter if they qualified However
Whatley agreed that there was no evaluation process at
the time he interviewed employees Although the Com
pany was working on an evaluation policy none had
been approved as late as the date of Whatley s testimony
(13 May 1987) All employees of whom Whatley had
knowledge received raises if still employed at the end of
their probationary periods Whatley identified a company
handbook explaining wage policies, but denied that he
ever gave it to employees 100
On 4 June Union Official Linda Riggins wrote Shan
non a letter stating that the Union had learned that the
Company was refusing to grant the June 1986 wage in
crease and that the Union would file unfair labor prac
tice charges in such event 101 On 20 June Plant Manag
er James Beno wrote a memo to employees stating that
the June increase would be made pursuant to the prom
ise previously made [but] not because of any
threat by the Union 102
100 The handbook states that wages paid by other firms in the area will
serve as guidelines for the Company s determination of its wages and
that salary surveys will be conducted once a year for this purpose The
handbook further states
Pay will progress on the basis of merit Wage and salary increases
are intended to reward overall job performance and are not given on
the basis of length of service alone
Finally in a separate subsection the handbook provides for a per
formance appraisal interview every 6 months after the end of the proba
tionary period
This is an especially good time to discuss your present and future
opportunities with your supervisor You will be given a copy of
your performance appraisal
If you are a salaried employee you will be given a formal per
formance appraisal interview and considered for a merit increase
once each year [Jt Exh I Compensation Practices]
101 The letter reads as follows
It has come to the Union s attention that the Company is refusing
to grant the June 1986 wage increase Please be advised that the
Union will not file charges if the Company grants the June 1986
wage increase Please be further advised that the Union will file
unfair labor practice charges if the Company refuses to grant the
June 1986 wage increases
Follow the Law Grant the Wage Increase [G C Exh 8]I
102 The memo reads as follows
When we opened this facility we informed you that there would
be a wage review in June 1986 We have completed that wage
review and we are pleased to announce that all hourly non exempt
employees who have had more than 90 days of service as of June 16
1986 will receive a 4% increase in their next paycheck Maintenance
employees who received an increase in March will not receive this
announced increase
This wage increase is pursuant to the promise we previously made
to you It is not because of any threat by the union which is appar
ently trying to take credit for the increase We promised you this
wage review before the union came along and we live up to our
promises-union or no union The 4% increase is across the board
and does not reflect an individual judgment that an employees [sic]
performance is necessarily acceptable
Despite this wage increase you should be aware that we continue
to have certain problems Our cost per case remains too high com
pared to our other facility and the anticipated cost at the planned
new facility We hope that this wage increase will prompt an in
crease in productivity and a long term decrease in our cost per case
If not we will have to consider other ways to address this problem
Please see Rick Shannon or me if you have any questions about
this [G C Exh 18]
ALL AMERICAN GOURMET
The testimonies of the General Counsels witnesses
Production Supervisor Whatley , and Director of Human
Resources Shannon establish that all employees except
maintenance mechanics who had completed their proba
tionary periods received a wage increase at the end of
such periods and again in June 1986 without any evalua
tion of their individual qualifications The maintenance
mechanics had received a raise in March
Although Whatley said that he did not distribute hand
books that stated a merit policy with respect to raises
Shannon contended that he did distribute them , but then
had to recall the copies because they had not been an
thorized Shannon asserted that another supervisor inter
viewing potential employees was misstating company
wage policy , and that Shannon had to correct this How
ever , it was brought to Shannon s attention in October
1985 that employees still did not understand the Compa
ny s policy Accordingly , Shannon and a supervisor
named Gary Grayburn held employee meetings Gray
burn concentrated on production , and told employees
that the Company was then losing close to a million
dollars per month Shannon asserted that Grayburn did
not discuss wages-Shannon himself did so, and empha
sized to employees that raises would be based on per
formance reviews 103 Shannon denied that he promised
anybody automatic raises However as noted, Shan
non agreed that the raises at the end of probationary pe
nods and those in June 1986 were made without per
formance appraisals
Plant Manager Beno testified that an across the board
raise was given in June because there was no fair method
in place to evaluate 400 employees Beno asserted that
the June 1986 increase of 4 percent was based on the
amount of money that was in the budget He also of
firmed that the 1987 budget provided for two increases
without specifying the existence of a performance ap
praisal system
Director of Human Resources Shannon testified about
a long and unsuccessful attempt to get higher corporate
approval of a performance appraisal form After two
such failures in 1985 Shannon made another attempt in
September 1986 After numerous revisions it was put
into effect on 24 March 1987 according to Shannon As
noted Whatley on 13 May 1987 denied that there was
any such plan in effect Shannon agreed tht his pretrial
affidavitl04 states that his intent was to have the evalua
Lion system in place for the December raises At the
hearing, however Shannon denied this and said that his
intent was to have the system ready for the December
reviews
b Evidence concerning alleged refusal to bargain over
dental of a December wage increase
As set forth above there was employee dissatisfaction
with the Respondent 's refusal to accept the results of the
May election based on the asserted objections thereto
Thus sometime prior to November , Reeves and other
employees , at the Union s suggestion protested to Re
spondent s attorney about legal games and the Compa
103 Grayburn did not testify
104 G C Exh 17
1133
ny s refusal to bargain Following the sickout Reeves
made the same protest to Production Manager Adams at
the 3 November meeting On 10 November , the Union
filed an unfair labor practice charge alleging that Re
spondent had refused to bargain with the Union on or
about 23 May and thereafter and had made unilateral
changes without bargaining 105 On 9 December, the
Union sent Shannon a memorandum stating that it had
learned the Company was refusing to grant the Decem
ber, 1986 wage increase and advising the Company
that , in such event , the Union would file unfair labor
practice charges 106
Linda Riggins credibly testified that the Company did
not respond to this memorandum On 11 February 1987
the Union filed an unfair labor practice charge alleging
that Respondent since 1 December had refused to bar
gain with the Union and had made unilateral changes
to discourage union activities 1 07 As indicated the com
plaint alleges that Respondent refused to bargain with
the Union on about 1 December over Respondent s
denial of a wage increase 108
Riggins and Plant Manager Beno testified that there
was no wage increase in December According to Beno
the reason was that the evaluation system was not yet
ready
2 Factual analysis
The testimonies of the General Counsels witnesses,
corroborated by Respondents witness Whatley, estab
lished that the Company promised its new employees a
raise after successful completion of their probationary
periods and additional raises twice yearly thereafter The
factual issues are whether Respondent conditioned such
raises on an employees successful performance evalua
tion and whether it established a practice of giving raises
without such evaluations
With respect to the issue of what the Comapny prom
iced new employees Barber explicitly denied that a suc
cessful evaluation was a condition of a raise 109 and was
partially corroborated by Reeves denial that anybody
spoke to him about any misunderstanding concerning
automatic raises Although Ming testified on cross ex
animation that Whatley told her she would receive a per
formance evaluation every 6 months the importance of
this testimony is diminished by Ming s later clarification
105 G C Exh 1(a)
10° The memorandum signed by Field Representative Linda Riggins
reads as follows
It has been brought to the Union s attention that the Company is
refusing to grant the December 1986 wage increase Please be ad
vised that the Union will not file charges if the Company grants the
December 1986 wage increase Please be further advised that the
Union will file unfair labor practice charges if the Company refuses
to grant the December 1986 wage increase
Follow the Law Grant the wage increase [G C Exh 9]1
107 G C Exh 1(1)
i08 G C Exh l(p)
109 Respondent argues that Barbers assertion that Shannon told him
he would be making $10 an hour within a year is unrealistic considering
Barber s job classification as a sanitation worker However Reeves tests
fled that Shannon said the same thing to him and it is entirely possible
that Shannon gave some employees an exaggerated estimate of their
future earnings
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that Whatley told her some time before Ming quit that a
discussion Whatley then had with her in his office was
her evaluation Reeves description of Shannon s two
explanations of raises in Shannon s office contains no ref
erence to evaluation appraisals and is uncontradicted
It is unquestioned that Respondent held a meeting of
employees in October 1985 at which raises were dis
cussed Ming s and Reeves description of that meeting
consistently omit any reference to an evaluation as a re
quirement for raises twice yearly Both Reeves and
Shannon mentioned a supervisor who talked to employ
ees-Reeves called him Jerry and Shannon said his
name Gary Grayburn I infer that these names refer to
the same person I credit Reeves testimony that Jerry
[Grayburn] projected raises twice yearly from an over
head camera, and I do not credit Shannon s denial that
Grayburn discussed wages
The documentary evidence does not assist Respond
ent s cause Although Beno s 20 June memo to employ
ees states that the 4 percent across the board raise grant
ed that month did not reflect a judgment that an individ
ual employees performance was acceptable the docu
merit does not even mention performance appraisals
much less condition future raises on them Instead, the
memo justifies the raise on the basis of the promise we
previously made to you
The employee handbook does not help the Company s
case In the first place, Whatley and Shannon could not
agree whether the handbook was even distributed, and in
any event it was not authorized according to Shannon
The text of the handbook refers only to formal apprais
al interview for salaried employees, apparently as a con
dition for a merit increase once each year Unsalaried
employees were to be given performance appraisals
every 6 months, not specifically for the purpose of quali
fying for a raise but to provide opportunities to discuss
their future with the Company
Finally, Beno s description of the rationale for the
June 1986 raise and projected 1987 raises shows that
these were across the board raises based on budgetary
considerations
On the basis of the totality of the credible evidence, I
conclude that Respondent promised new employees a
raise after the 90 day probationary period and raises
twice yearly thereater in June and December without
any condition of a successful performance appraisal
It is unquestioned that the Company granted two
raises without any such evaluations at the end of each
employees probationary period and an overall raise in
June 1986 Respondents argument that it did not grant a
December 1986 increase because its performance apprais
al system was not yet in place is unpersuasive Respond
ent had previously given two raises without evaluations
and its witnesses could not even agree at the time of the
hearing whether an evaluation system was then in
place-after almost 2 years of trying
I conclude that the raises actually given established a
practice of giving employees raises after their probation
ary periods and periodic raises twice yearly thereafter in
June and December based on budgetary considerations
Although Respondent contends that such raises were
contingent on a successful performance evaluation per
each employee the fact that Respondent gave two such
raises without such evaluations at times when there was
no performance appraisal system in place establishes, at
the least a practice of omitting the evaluation require
ment in such circumstances It is undisputed that no eval
uation system had been established by December 1986
the time of the asserted withholding of a wage increase
Although Respondents prior practices is established by
only two instances of prior raises, these two instances
cover the entire period of the plant s existence, and were
preceded by explicit promises of such raises by Respond
ent to new employees I, therefore, conclude that Re
spondent s failure to grant a December wage increase
was a departure from such prior practice 1 10
The remainder of the evidence is uncontested The
employees twice protested the Company s refusual to
bargain while the Union sent a memo protesting the
failure to grant the December wage increase and filed
an unfair labor practice charge alleging both a refusual
to bargain and unilateral changes
3 Legal analysis and conclusions
Section 8(d) of the Act sets forth the obligation of the
parties to meet at reasonable times and confer in good
faith with respect to wages hours and other terms and
conditions of employment In addition, the employer
may not impose new or different working conditions
without first giving the employees representative an op
portunity to bargain over them 111 Because Respond
ent s denial of a wage increase in December 1986 consti
tuted a withdrawal of a previously established privilege
and thus a departure from past practice as well as a
denial of its promise to employees, and because Respond
ent failed at its peril to consult the Union about these
matters pending resolution of its objections to the elec
tion 112 it would appear that Respondent thereby violat
ed Section 8(a)(5) and (1) of the Act 113
However the complaint alleges that the gravemen of
Respondents offense was its refusal to bargain with the
Union over its denial of a December wage increase not
the unilateral change described above The Board and at
least three circuit courts of appeal have held in similar
circumstances that a variance of this nature does rot
deny a respondent due process Thus in Foss Co v
NLRB 752 F 2d 1407 (9th Cir 1985) enfg 270 NLRB
232 (1984) the complaint alleged and the General Court
sel contended that the employer discharged certain em
10 Plasticrafts Inc v NLRB 586 F 2d 185 (loth Cir 1978) enfg as
modified 234 NLRB 762 (1978) Memphis Furniture Mfg Co 252 NLRB
303 (1980) In cases where there is a clearly established departure from
prior practice there need be no finding that the withholding of a wage
increase was discriminatorily motivated Plasticrafts supra Although
there is evidence of antiunion animus in this case I make no finding
whether the withholding was motivated by such animus because of my
conclusion that Respondent departed from prior practice
111 A H Belo Corp v NLRB 411 F 2d 959 970 (5th Cir 1969) cert
denied 396 U S 1007 (1970)
112 Supra at fn 98
113 Plasticrafts Inc supra at fn 110 City Cab Co v NLRB 787 F 2d
1475 (11th Cir 1986) enfg 273 NLRB 1344 (1985) Auto Fast Freight
272 NLRB 561 (1984) enfd 793 F 2d 1126 (9th Cir 1986) Meilman Food
Industries 234 NLRB 698 (1978) enfd sub nom Meat Cutters Local 301
v NLRB 593 F 2d 1370 (D C Cir 1979)
ALL AMERICAN GOURMET 1135
ployees discriminatorily because of their membership in
one union (NAIU) However, the Board found that the
illegality of the discharges was based on the fact that the
employer, after signing a contract with another union
(IBEW), discharged the employees without giving them
the 7 day grace period provided by Section 8(f) of the
Act before requiring them to become members of IBEW
On appeal, the employer contended that its due process
rights were violated because it was found guilty of an
unfair labor practice that was not charged in the com
plaint (id at 1411)
In an exhaustive review of the authorities, the Court
of Appeals for the Ninth Circuit noted that the Board is
not subject to the technical pleading requirements that
govern private lawsuits [and that] where the issue is
fully and fairly ligitated at the administrative hearing, the
Board may find an unfair labor practice even though no
specific charge is made in the original complaint Citing
NLRB v Blake Construction Co, 663 F 2d 272, 279 (D C
Cir 1981), the Ninth Circuit noted the District of Co
lumbia Circuits willingness to enforce a Board Order
when there had been a meaningful opportunity to litigate
the underlying issue The Ninth Circuit characterized
the issue before it in Foss Co as largely a technical and
semantic distinction In addition, the Company had
ample opportunity to litigate the violation as found by
the ALJ (id at 1411-1412) The court concluded as fol
lows
F The Alleged Unilateral Layoff of Employees
Director of Human Resources Shannon testified that
he told employees there would be a layoff in February
1987 and asked for volunteers , ' 15 without notifying the
Union Thereafter , on 23 February 1987, 22 employees
were laid off without such notification 116
Respondents witnesses contended that the reason for
the layoffs was excessive inventory Over 40 employees
volunteered 117 and because this was more than the
Respondent needed , a selection was made among the
volunteers on a seniority basis All the laid off employees
were back at work within a few weeks according to Re
spondent s witnesses
In a similar case the Board stated as follows
Although an employer may properly decide that an
economic layoff is required once such a decision is
made the employer must nevertheless notify the
Union, and upon request bargain with it concern
ing the layoffs, including the manner in which the
layoffs and any recalls are to be effected By failing
to so notify the Union while its objections to the
election were pending Respondent acted at its peril
and, since the Union was thereafter certified as the
collective bargaining representative of its employ
ees, Respondent thereby violated Section 8(a)(5)
and (1) of the Act 118
Finally even if the Company had not understood
the issue at the hearing it was fully litigated in
the sense that there was no more exculpatory evi
dence that could have been introduced Although
the Company states in its opening brief that it could
have proved a number of things to escape liability,
it cites no authority for the proposition that the al
legedly exculpatory evidence would be a defense to
a charge of discharging workers before the grace
period expired [Id at 1412 ]
More recently, the Court of Appeals for the Second
Circuit has expressed similar views in a case where the
Board s findings varied somewhat from the precise alle
gation in the complaint NLRB v Chelsea Laboratories
825 F 2d 680 (2d Cir 1987) enfg 282 NLRB 500 (1986)
In this case the issue whether Respondents refusal to
grant a December 1986 raise constituted a departure
from past practice was extensively litigated I therefore
conclude for the reasons given above that by such
action without notice and an opportunity for the Union
to bargain Respondent thereby violated Section 8(a)(5)
and (1) of the Act i II
114 The General Counsel states in his brief that any request to bargain
over such refusal (to grant a December wage increase ) would have been
futile in light of Respondent s action in testing the certification (G C
Br 9) In support of this portion counsel cites Sunnyland Refining Co
250 NLRB 1180 (1980) and Williams Energy Co 218 NLRB 1080 fn 4
(1975) The tacit premise in this argument-that the Union did not re
quest bargaining-is at least arguable See e g NLRB v Columbian
Enameling & Co 306 U S 292 297-298 (1939) Barney s Supercenter 128
NLRB 1325 1327 (1960) enfd 296 F 2d 91 (3d Cir 1961) Landers Dump
Truck 192 NLRB 207 208 (1971) Schreiber Freight Lines 204 NLRB
1162 1168 (1973) Marysville Travelodge 233 NLRB 527 533 (1977) enfd
I reach the same conclusion and find that Respond
ent s layoff of 22 employees on 23 February 1987 with
out notification to the Union violated Section 8(a)(5)
and (1) of the Act
637 F 2d 1309 (9th Cir 1981) Columbia Engineers 268 NLRB 337 340
(1983) Trucking Water Air Corp 276 NLRB 1401 1407 (1985) and Tile
Terrazzo & Marble Contractors Assn 287 NLRB 769 (1987) However I
need not pass on the issues whether the Union made a request to bargain
whether such request would have been futile or whether Respondent re
fused to bargain on the December wage increase issue in light of my
finding above that it failed to give the Union notice and opportunity to
bargain over its unilateral discontinuance of a wage increase in December
1986
115R Exh 22
116 Shannon identified an exhibit containing a list of 24 names as those
employees who were laid off (G C Exh 7) However he later testified
that two of the individuals whose names appear on the list (Mallme
Gleen and Janet Walker) were not laid off because work became avail
able Without these two employees the following names appear on the
list
Ethel Hill Kinh Tua Nguyen
Linda Wright Dieu Minh Hoang
Paulette Ellison Minh Pham Hoang
Valerie Berry Charles Boyd
Scedro Williams Veester Murphy
Mary Davenport Celestine Lawrence
Sherry Nelson Penny Stembridge
Charlanda Wyser Ida Howell
My Diep Canetra English
Arthur Thomas Gwen Wright
Patricia Jones Brenda Parks
119 R Exh 23
119 Clements Wire 257 NLRB 1058 1059 (1981)
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In accordance with my findings above, I make the fol
lowing
CONCLUSIONS OF LAW
1 The Respondent The All American Gourmet Com
pany, 1 19 is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 Service Employees International Union, Local 579
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act
3 By telling an employee that it would call the police
on him because he was engaging in protective activity,
and by telling an employee that she could not discuss
terms and conditions of her employment with anybody
but Respondents representatives Respondent thereby
violated Section 8(a)(1) of the Act
4 By discharging employees Ricky Reeves and Mike
Collier on 4 November 1986 because of their member
ship in and activities on behalf of the Union, and because
they engaged in protected concerted activities with other
employees for the purpose of mutual aid and protection
Respondent thereby violated Section 8(a)(3) and (1) of
the Act
5 The following unit is now and has been at all times
material an appropriate unit for the purposes of collec
tive bargaining within the meaning of Section 9(b) of the
Act
All production and maintenance employees em
ployed by Respondent at its 5475 Bucknell Drive
facility in Atlanta Georgia including all mainte
nance mechanics, maintenance crew leaders, tool
crib attendants tool crib leaders sanitation aides
sanitation crew leaders food preparers food prepar
er leaders, cooks cook leaders material handlers
material handler leaders production assemblers ma
chine operators line attendants q c inspectors and
line leaders but excluding all other employees tem
porary employees office clerical employees guards
and supervisors as defined in the Act
6 On 23 May 1986 in an election conducted by the
Board a majority of the employees in the unit described
above designated the above named Union as their repre
sentative for the purposes of collective bargaining with
Respondent with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ
ment
7 By engaging in the following unilateral actions
without notifying the Union and giving it an opportunity
to bargain over such matters Respondent thereby violat
ed Section 8(a)(5) and (1) of the Act
(a) On or about 16 June 1986 changing its disability
pay policy so as to delete disability pay for the first 3
days of disability
(b) Failing to adhere to its previously established
policy and promise to employees to grant across the
19 Although the pleadings in some instances omit the word Compa
ny in the Respondents name the Respondent in its formal pleadings
includes that word and I do the same
board raises twice yearly, in June and December by fail
ing to give such raises in December 1986
(c) On 23 February 1987 by laying off the 22 employ
ees listed above in footnote 116
8 The foregoing unfair labor practices affect com
merce within the meaning of Section 2(6) and (7) of the
Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices it is recommended that it be or
dered to cease and desist and to take certain affirmative
action designed to effectuate the policies of the Act
Having found that Respondent unlawfully discharged
Ricky Reeves and Mike Collier on 4 November 1986 it is
recommended that Respondent be ordered to offer each
of them immediate and full reinstatement to his former
position or, if such position no longer exists, to a substan
tially equivalent position dismissing if necessary any em
ployee hired to fill the position and to make each of
them whole for any loss of earnings he may have suf
fered by reason of Respondents unlawful conduct by
paying each of them a sum of money equal to the
amount he would have earned from the date of his un
lawful discharge to the date of an offer of reinstatement
less net earnings during such period, to be computed on
a quarterly basis in the manner established by the Board
in F W Woolworth Co 90 NLRB 289 (1950), with in
terest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987) 120
Having found that Respondent unlawfully changed its
disability pay policy on 16 June 1986 to eliminate disabil
ity pay for the first 3 days of disability it is recommend
ed that Respondent be required to reinstate such policy
forthwith to make each employee affected thereby
whole for any loss of earnings he or she may have suf
fered by reason of Respondents unlawful discontinuance
of the policy by paying him or her the amount of money
he or she would have received absent Respondents un
lawful change of policy with interest computed as de
scribed above 121 to notify the Union prior to any future
change in such policy and on request to bargain with it
over this matter
Having found that Respondent unlawfully changed its
policy of granting periodic raises by failing to give raises
to its employees in December 1986 it is recommended
that Respondent be required to make its employees em
ployed at that time whole for the loss of earnings they
suffered because of Respondents failure to give such
raises by granting them raises retroactively to December
1986 in such amounts as normally would have been
granted to them with interest computed as described
above 122 to notify the Union prior to any future change
110 Under New Horizons interest is computed at the short term Feder
al rate for the underpayment of taxes as set out in the 1986 amendments
to 26 U S C § 6621 Interest accured before I January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp 231
NLRB 651 (1977)
'21 Master Slack supra at fn 98
122 Plastzcrafts Inc 234 NLRB 762 768 (1978) enfd as modified 586
F 2d 185 (10th Cir 1978) Our Way Inc 268 NLRB 394 421-422 (1983)
ALL AMERICAN GOURMET 1137
in such policy and on request to bargain with it over
this matter
Having found that on 23 February 1987 Respondent
unlawfully laid off the 22 employees listed above 123 it is
recommended that Respondent be required to offer rein
statement to any such employee it has not already rein
stated and to make each laid off employee whole for
any loss of earnings he or she may have suffered by
reason of Respondents unlawful conduct by paying
each of them a sum of money equal to the amount he or
she would have earned from the date of his or her un
lawful layoff to the date of his or her reinstatement or
to the date of Respondents offer of reinstatement, less
net earnings during such period, with interest computed
as described above 124 It is further recommended that
Respondent be required to notify the Union prior to any
future layoffs and, on request bargain with it over this
matter
Having found that Respondent unlawfully ordered
Amelia Thompson not to discuss her terms and condi
tions of employment with anybody except Respondent s
supervisors it is recommended that Respondent be re
quired to notify her in writing at her last known address
that this order is withdrawn, and that she is free to dis
cuss her terms and conditions of employment while em
ployed by Respondent with anybody Although Thomp
son is no longer employed by Respondent she may again
be so employed in the future, and this action by Re
spondent is necessary to dissipate the effects of its prior
unlawful conduct against her
It is also recommended that Respondent be required to
post appropriate notices to remove from its personnel
records all references to its unlawful discharges of Ricky
Reeves and Mike Collier, and to notify each of them in
writing that such expunction has been made and that evi
dence of their unlawful discipline will not be used as a
basis for future personnel actions against them
The General Counsel has filed an extensive brief rec
ommendmg that a visitatorial clause be included in their
remedial order In 0 L Willis Inc 278 NLRB 203
(1986) the Board in similar circumstances found it un
necessary to include such a clause I reach the same con
clusion
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
edits
ORDER
The Respondent American Gourmet Company Atlan
to Georgia its officers agents successors and assigns,
shall
I Cease and desist from
(a) Telling employees that it will call the police on
them because they are engaged in protected activities
123 Supra at fn 116
1 24 Clements Wire supra at fn 118
125 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses
(b) Telling employees that they may not discuss their
terms and conditions of employment with anybody other
than Respondents supervisors
(c) Discouraging membership in Service Employees
International Union Local 579 AFL-CIO or any other
labor organization by discharging employees because of
their union or other protected concerted activitites or by
discriminating against them in any other manner with re
spect to their hire, tenure of employment, or other terms
and conditions of employment
(d) Unilaterally changing its disability policies without
giving advance notice thereof to the above named labor
organization or without affording it an opportunity to
bargain over such matters
(e) Unilaterally changing its policy regarding periodic
raises to employees without giving advance notice there
of to the above named labor organization or without of
fording it an opportunity to bargain over such matters
(f) Unilaterally laying off employees without giving
advance notice thereof to the above named labor organs
zation or without affording it an opportunity to bargain
over such matters
(g) In any other like or similar manner interfering
with restraining or coercing employees in the exercise
of their rights under Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer Ricky Reeves and Mike Collier full reinstate
ment to their former positions or if any such position no
longer exist to a substantially equivalent position with
out prejudice to the seniority or other rights and privi
leges of either of them, and make them whole for any
loss of earnings either of them may have suffered by
reason of Respondents unlawful discharges of them on 4
November 1986 in the manner described in the remedy
section of this decision
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way
(c) Withdraw its rescission on 16 June 1986 of its
policy of paying disability pay for the first 3 days of dis
ability reinstate its prior disability policy providing for
such payments and publish notices thereof on all bulletin
boards maintained by the Company and with the
Union s consent bulletin boards maintained by its em
ployees
(d) Make whole any employees who may have suf
fered a loss of disability pay because of Respondents un
lawful change of its disability policy on 16 June 1986 in
the manner described in the remedy section of this deci
sion
(e) Notify the above named labor organization prior to
any proposed change in disability pay policy and on re
quest bargain with it concerning such purposed change
(f) Make its employees whole for its unlawful failure
to give them a periodic raise in December 1986 in the
manner described in the remedy section of this decision
(g) Notify the above named labor organization prior to
any change in its policy of giving periodic pay raises to
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its employees twice yearly and on request bargain with
the Union over this matter
(h) Offer reinstatement to his or her former position to
any of the following employees not yet reinstated
Ethel Hill
Linda Wright
Paulette Ellison
Valerie Berry
Scedro Williams
Mary Davenport
Sherry Nelson
Charlanda Wyser
My Diep
Arthur Thomas
Patricia Jones
Kinh Tua Nguyen
Dieu Minh Hoang
Minh Pham Hoang
Charles Boyd
Veester Murphy
Celestine Lawrence
Penny Stembridge
Ida Howell
Canetra English
Gwen Wright
Brenda Parks
(i) Make whole the employees named immediately
above for any loss of earnings they may have suffered
because of Respondents unlawful layoff of them on 23
February 1987 in the manner described in the remedy
section of this decision
(l) Notify the above named labor organization prior to
any proposed future layoff of employees and on request,
bargain with it over this matter
(k) Notify Amelia Thompson in writing at her last
known address that on her return to employment if any,
the prior order prohibiting her from discussing the terms
and conditions of her employment with anybody except
Respondents supervisors is withdrawn and that she is
free to discuss such matters with anybody
(1) Preserve and, on request make available to the
Board or its agents for examination and copying all pay
roll records, social security payment records, timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(m) Post at its 5475 Bucknell Drive, Atlanta Georgia
facility copies of the attached notice marked Appen
dix 126 Copies of the notice on forms provided by the
Regional Director for Region 10 after being signed by
the Respondents authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notice to employees are cus
tomarily posted Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de
faced, or covered by any other material
(n) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
IT IS FURTHER RECOMMENDED that the Employers ob
Sections to the election in Case 10-RC-13308 be over
ruled in their entirety, and that a certification of repre
sentative issue designating the above named labor organs
zation as the representative of the employees in the unit
specified above in Conclusion of Law 5
126 If 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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board