American Tara Corp.

National Labor Relations Board - Board Decisions

Jun 18, 1979

242 N.L.R.B. 1230 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Tara Corporation, American Carbon Paper
Division and Soong Baik and The Disciplinary
Committee, Party in Interest and The Employees'
Committee, Party in Interest
American Tara Corporation, American Carbon Paper
Division and Soong Balk. Cases 13-CA 17422 and
13-CA- 17732
June 18, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On January 30, 1979, Administrative Law Judge
George F. McInerny issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and General Counsel
filed an answering brief thereto and cross-exceptions
and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, American Tara Corporation,
American Carbon Paper Division, Chicago, Illinois,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Substitute the following for paragraph 2(c):
"(c) Offer Soong Baik immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
I Respondent and the General Counsel have excepted to certain credibility
findings made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with respect
to credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Drv Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 The Administrative Law Judge's recommended Order is modified to state
established Board policy with respect to reinstatement.
leges previously enjoyed, and make him whole in the
manner described above in the section entitled 'The
Remedy.' "
2. Insert the following as paragraph 2(d), and re-
letter the subsequent paragraphs accordingly:
"(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NAIIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities ex-
cept to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become
union members.
WE W'IL. NOT interrogate you concerning your
union sympathies and activities or concerning
the union sympathies and activities of your fel-
low employees.
WE WILL NOT threaten you with closure, dis-
charge, or reduction or loss of benefits or with
other reprisals because you support Miscella-
neous Warehousemen, Airline, Automotive
Parts, Service. Tire & Rental, Chemical & Petro-
leum, Ice, Paper & Related Clerical and Produc-
tion Employees Local 781, affiliated with the In-
ternational Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America.
WE WILL NOT solicit complaints and griev-
ances that have led you to seek union representa-
tion and promise, either expressly or by implica-
tion, to correct those matters in an effort to
encourage you to forego being represented by
the labor organization of your choice.
242 NLRB No. 172
1230
AMERICAN TARA CORPORATION
WE Wll. NOI render financial aid to or cam-
paign for or promote the cause of the Disciplin-
ary Committee or the Employees' Committee,
nor for any other labor organization.
WI WI.i. NOT post, promulgate or enforce a
no-solicitation, no-distribution rule which for-
bids such activities on nonworking time in non-
work areas, and WE WI.. NOI discriminatorily
enforce any such rule.
WE WILL. NOT dominate, support, assist, or
otherwise interfere with the establishment, op-
eration, and administration of the Disciplinary
Committee or the Employees' Committee, or any
other labor organization of our employees.
WE WILI. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights set forth above which are guar-
anteed by the National Labor Relations Act, as
amended.
WE WILL withhold all recognition from, repu-
diate, and promptly and completely disestablish
the Disciplinary Committee.
WE WILL offer Soong Baik immediate and full
reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any
other rights or privileges previously enjoyed. and
make him whole because of the discrimination
suffered by him, with interest.
AMERICAN TARA CORPORATION, AMERI(AN
CARBON PAPER DIVISION
DECISION
STATEMENT OF THE CASE
GEORGE F. MCINERNY, Administrative Law Judge: As
the result of a charge filed in Case 13-CA 17422 on March
21, 1978, by Soong Baik, an individual, alleging that Ameri-
can Tara Corporation, American Paper Division. herein re-
ferred to as Respondent or the Company. had engaged in a
course of conduct designed to restrain and coerce employ-
ees in the exercise of rights guaranteed them in Section 7 of
the National Labor Relations Act, as amended, herein re-
ferred to as the Act, the Regional Director for Region 13 of
the National Labor Relations Board issued a complaint on
April 28, 1978, alleging that Respondent had violated Sec-
tion 8(a)(1), (2), and (3) of the Act. Respondent filed an
answer denying the commission of any unfair labor prac-
tices.
Thereafter, on June 15. 1978. Soong Baik filed the charge
in Case 13-CA-17732. alleging that Respondent had un-
lawfully discharged him in violation of Section 8(a)(3) and
(4) of the Act. On June 29. 1978. the Acting Regional Di-
rector for Region 13 issued a complaint in Case 13 CA
17732, at the same time ordering that the two cases be con-
solidated for purposes of hearing. Pursuant to notice in said
complaint, a hearing was held before me at Chicago, Illi-
nois, on July 17 21, 1978, at which all parties had the op-
portunits to present evidence, to examine and cross-exam-
inc witnesses. to argue orally, and to file briefs.' Following
the hearing Counsel for the General Counsel submitted a
brief, which has been carefully examined.
Upon the entire record in this proceeding, including my
observation of the witnesses, I make the following:
FINDINGS OF FA(I
1. tilE BUSINESS OF RESP()NiDNI
Respondent is an Illinois corporation engaged in the
manufacture of carbon paper at its Chicago, Illinois. facil-
ity. In the year prior to the issuance of the complaints
herein Respondent sold and shipped goods valued in excess
of $50.000 from its Chicago facility directly to points out-
side the State of Illinois. The complaints allege, the answers
admit, and I find that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
II. HE I.ABOR ORGANIZATIONS INVOLVED
(a) The complaint in Case 13-CA 17422 alleges, the an-
swer admits, and I find that Miscellaneous Warehousemen,
Airline, Automotive Parts, Service, Tire & Rental, Chemi-
cal & Petroleum, Ice, Paper & Related Clerical and Produc-
tion Employees Local 781, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. herein referred to as the Union, is a
labor organization within the meaning of Section 2(5) of the
Act.
(b) The complaint in Case 13 CA-17422 alleges, and the
answer denies, that the Disciplinary Committee and the
Employees' Committee are labor organizations. The evi-
dence on this point shows that early in November 1977
there came into existence' a committee called the Disciplin-
ary Committee. composed of three members, all employees
of Respondent. The purposes of the Disciplinary Commit-
tee were, first, to review written warnings issued by supervi-
sors dealing with employee conduct and to make recom-
mendations to the manager of manufacturing, James
Kawano, and, second, to participate in the formulation and
enactment of new rules and regulations governing the con-
duct and behavior of employees. The Employees' Commit-
tee was organized (or reorganized) in November 1977 and is
composed of five employee members. While the purposes of
this Committee are nowhere written down, the evidence
shows that the Employees' Committee in fact engaged in
discussions with representatives of Respondent on wages,
fringe benefits. hours of work, and other conditions of em-
ployment.
For reasons which will be set forth below, I find that the
Employees' Committee and the Disciplinary Committee are
labor organizations within the meaning of the Act.
I Following the close of the heanng General Counsel filed a motion to
correct the transcnpt in a number of instances. There was no objection, and
I have examined the proposed corrections. The motion is allowed.
2 The circumstances surrounding this will be reviewed later
1231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ill. TIIE AlI..E(;ED UNFAIR ABOR PRA( i(EFS
A. The Union Organizational Activity
In July 1977 the Charging Party. Soong Baik, who had
first been hired by Respondent in September 1973 and was,
in July 1977, employed as a slitter operator on the second
shift, contacted Kenneth A. Cook, vice president of Team-
sters Local 781, and inquired about organizing Respon-
dent's plant.3 A meeting was arranged between Baik and
Cook on July 24, 1977, in the Union's office, at which time
they discussed details of organizing. Baik signed an authori-
zation card and, at the end of the meeting, took additional
cards with him.
Baik testified that from that point until October 20, 1977.
he passed out cards to employees, but apparently this ac-
tivity produced little or no results.4 Accordingly. Baik deter-
mined, after further consultation with Cook and Union
Business Agent Charles Cross, to adopt different tactics. On
October 20 he arrived in front of the plant at 4 a.m.' and
commenced passing out cards and union literature to em-
ployees as they arrived for the 6 a.m. start of the day shift.
At about 5 a.m. James Kawano, Respondent's manager of
manufacturing, arrived at the place where Baik was passing
out cards and literature. At this time there occurred an inci-
dent which General Counsel contends constitutes the Re-
spondent's first violation of Section 8(a)(1) of the Act,
which will be discussed below.
Baik remained at the entrance to the plant until about 6
a.m., passing out union literature and cards without further
incident. Later that day, about 3 p.m., he returned in the
company of Business Agent Cross and continued distribu-
tion of these materials until he himself reported to work at
3:30 p.m. Thereafter he did not repeat this activity, but did
continue to pass out cards and literature inside the plant.
There is some evidence that employees reported to manage-
ment officials that this activity occurred during working
time and in working areas, and there is testimony by Divi-
sion Manager A. L. Sartini that Baik admitted this to him.
In any event, Baik's organizational activities continued
down to the time of his discharge.
The effect of this activity on the Company and thence on
the employees will be discussed below. The record does
show that it was not successful. There is no evidence that
anyone other than Baik ever signed a card. At a meeting
late in November 1977 at a Korean restaurant in Chicago,
only eight employees showed up. Later, at a meeting ar-
ranged by Baik in the Union's offices on May 20, 1978,
Baik himself was the only employee who attended.
B. The October 20 Incidents
The first incident which occurred on October 20, alluded
to above, presents the first question of credibility which
must be resolved.
It seems clear from the record that Baik acted alone and not in concert
with other employees.
4 Possibly because there are only a few employees on the second shift.
There is no evidence that Baik attempted to organize any employees on the
first, or day, shift during this July-October period.
5 As a second-shift employee, Baik was not scheduled to be at work until 4
p.m.
Soong Baik testified that while he was passing out union
literature and authorization cards in front of the plant that
morning about 5 o'clock, Kawano came by and asked Baik
what he was doing and then invited him to come "up to the
office and talk about this." Baik stated that he attempted to
pass out cards to other employees who were coming in to
work, but Kawano stepped between Baik and the other em-
ployees and blocked the employees from Baik, physically
preventing the passing of the cards. Baik further testified
that Kawano said to him that he already knew what he was
doing. and remained about 1/2 hour outside the plant.
Kawano testified that he merely asked Baik why he was
there so early in the morning and whether something was
wrong. He mentioned no other employees and denied see-
ing any union cards.
In resolving this as well as other questions of credibility,
I rely upon my observations of the witnesses: their demea-
nor while testifying: collaboration of their recitation of
events, if any; inconsistencies in their versions of events
with other established facts: and the inherent possibilities of
the situations in question.
Weighing the testimonies of Baik and Kawano by these
standards, I conclude that Kawano's testimony is more
credible. Baik is an intelligent, intense young man, a native
of Korea, whose perserverance in the cause of unionization
continued in the face of employer hostility and the seeming
indifference of other employees. However, in certain in-
stances this zeal has led him, as so often happens with those
whose devotion to their cause influences their moral judg-
ment, to embellish events and conversations with manage-
ment representatives. Further, I note that Baik's difficulties
with the English language. which were even more evident at
the hearing than the stenographic record of his testimony
reflects, may have caused misunderstandings or misinter-
pretations of words addressed to him by English-speaking
supervisors. I specifically do not credit Baik's version of this
conversation with Kawano for the following reasons. First,
the allegation that Kawano physically impeded Baik in
passing out cards is wholly inconsistent with descriptions of
Kawano's actions in a number of encounters with other
employees. Kawano's methods, and his approach to the
employees, may have been abrupt, but they never ap-
proached the level of physical confrontation. Second, the
other employees who allegedly were blocked and prevented
from receiving the union cards from Baik were neither fur-
ther identified nor produced as witnesses to corroborate this
incident. Third, Baik's allegation that Kawano stated that
he already knew what Baik was doing is not credible in
view of Kawano's later reaction on that same day.
Kawano is a Japanese-American 6 who spoke with no dis-
cernible accent. To be sure, his testimony in regard to many
of the incidents in this case was, in General Counsel's
words, "vague and general." and in some cases abrupt and
arrogant, but I consider him, on the whole, a candid wit-
ness. Certainly he made enough admissions against Respon-
dent's interest to convince me that he was telling the truth
in most instances. In addition, if he had in fact seen Baik
6 Ordinarily. I would neither mention nor concern myself with the racial or
ethnic origins of participants in a hearing. However. in this case, awareness
of the ethnic and racial background of the work force. while not matenal to
the substantive issues, will be helpful in understanding the background to the
events which transpired.
1232
AMERICAN TARA CORPORATION
with cards in front of the plant, he would have mentioned
that fact in his meeting with employee Calvin Manshio later
that day. Kawano was not shy about mentioning Baik's
activities to Manshio at that time as well as other times, and
he would have had no reason to lie to Manshio on October
20. Indeed, it is what Kawano did not say, or was not asked
about, that impels me to the conclusions I eventually reach
on the discharge of Soong Baik.
Thus I find that Kawano's confrontation with Baik in
front of the plant involved nothing more than an inquiry by
Kawano as to what Baik was doing there and whether any-
thing was wrong. Kawano's report of Baik's reply, "[Y]ou
will find out," is completely consistent with Baik's character
and manner as I observed him on the witness stand at this
hearing.
Late in that same day, October 20, a slitter operator on
the first shift, Calvin Manshio, was summoned to Kawano's
office.
Manshio has been employed by the Company for about
13 years as a rank-and-file employee, but during that same
period he has attended school at night to the point where,
at the time of the hearing, he was in his final year at the
John Marshall School of Law. Because of this, Manshio, a
Japanese-American, had for some time prior to the events
of this case acted as a liaison and spokesman for Respon-
dent's polyglot work force' in dealing with management.
The record also shows that he acted as a conduit through
which management's views could be conveyed and, hope-
fully, understood by the employees. Throughout his long
examination and cross-examination in the record of this
case it was apparent that, while he did not favor the Union,
he was completely dedicated to improving the condition of
his fellow employees through the application of standards
of reason and moderation.
For some period, then, prior to the onset of Baik's union
activity, Manshio had been accustomed to visit with Ka-
wano, or his predecessor, at his own behest or at the request
of management, to discuss problems in the shop both in
general terms and as they related to specific employee
grievances. The employees, many of whom did not speak
English or spoke it poorly, relied on Manshio in these mat-
ters, although it does not appear that he had much success
in moderating Kawano's abrasive style of administration.
Thus it is understandable that Kawano, when he learned
of Baik's union activity, summoned Manshio to his office.
When the latter arrived in the office Kawano immediately
asked him if he knew that someone was passing out union
cards.' Manshio replied in the negative, since he had some-
how not seen Baik when he reported in that morning. Ka-
wano went on to ask Manshio if he knew that Soong Baik
was passing out cards before the first shift that morning and
asked what Manshio thought about the Union. He then
asked what seemed to be the problems "downstairs" 9 and
why the people down there felt that they needed a Union.
7 The record shows that Respondent's production force was made up en-
tirely of black Amencans, Mexicans, Japanese, and Koreans. Some of these
employees were citizens, some were resident aliens, and some may have been
in this country illegally.
These conversations are reported on the basis of Manshio's credible tes-
timony. Kawano did not testify concerning them.
9 In this record "downstairs" is the production area, and "upstairs" is the
office and administrative area of the plant.
Manshio then suggested that he would go around and ask
the day shift employees what their concerns were. Kawano
agree, and Manshio went back downstairs and asked var-
ious unnamed employees what their problems were at the
time. Later. when Manshio had returned to his machine,
Supervisor John Quezon approached him and asked if he
had finished talking to the employees. Manshio said he had.
and Quezon then said that Jim Kawano wanted to see him.
Back in Kawano's office, Manshio related three separate
problems. The employees were concerned over, first. the
Company's treatment of Chang Kim: second, the discharge
of S. D. Park: and, third, Jim Kawano's attitude toward
employees. These matters were discussed, but Kawano was
not satisfied and stated to Manshio that there must be
something else that the latter was not telling him. Kawano
then asked Manshio whose idea it was to bring in the
Union and specifically asked if it was Soong Baik.
Receiving no answers to the last two questions, Kawano
launched into a monolog which dealt with a number of
subjects, including the assertion that employees in Chicago
enjoyed more overtime than did employees at the Compa-
ny's unionized operations in Atlanta and Los Angeles. He
said that if the Union came in, overtime would he cut
down, and the employees probably would have to work
only an 8-hour shift. Kawano went on to talk about em-
ployees who were not citizens, stating that one of the prime
goals of unions was to place citizens in jobs and that if the
Union came in he would have to look closer into the citi-
zenship of employees. If employees were not citizens, they
would have to be discharged, and. probably, the union
would want this. Turning to another subject, Kawano said
that if the Union came in and insisted on bringing up "little
problems," Bridell (A. M. Bridell, the Company's board
chairman) would probably decide to "just pack up and
move the Company." Manshio then asked if the Compan5
had plans to move. Kawano replied that that was not what
he was trying to get at, but that such a move was "possi-
ble." Manshio demurred, stating that he did not think it
was probable, but Kawano insisted that such a move was,
indeed. "possible." Finally, Kawano asserted that working
conditions were more lax than at Atlanta or Los Angeles
and that if the Union came in, there would be stricter en-
forcement of work rules, and the employees would suffer as
a result.
At that point Kawano suggested that they should start
having weekly meetings "between the employees to find out
what the problems were." He asked Manshio to get up a list
of employees from each department to attend and set the
next day, October 21, as the date for the first meeting.
Manshio then left the office and, after experiencing some
difficulty. finally managed to get one person from each de-
partment to attend the October 21 meeting.
As noted above, Kawano did not testify concerning these
events. Manshio's version, although uncorroborated, is
forthright, credible, and completely compatible with Ka-
wano's manner and approach as revealed in other testi-
mony. including Kawano's own, and with the inherent
probabilities of the situation. Thus I credit Manshio's ac-
count of the October 20 meetings, as well as his version of
subsequent events.
1233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The October 21 Meeting
On October 21, 1977, as arranged the day before, the
employees recruited by Manshio met with Kawano in the
employees' lunchroom. Manshio took notes on the wide-
ranging discussions,' ° which, at the outset, bore out Man-
shio's report of the day before. The Korean employees were
upset over the treatment of Chang Kim and S. D. Park, the
black employees were concerned over what they perceived
as discrimination against them, and all were united on their
difficulty in communicating with Kawano.
Beyond these topics, the employees also discussed with
Kawano a variety of subjects, including wages, sick days
and holidays, work breaks, shift starting times, safety mat-
ters, productivity (including a recent report by an outside
consultant), insurance coverage, repairs and maintenance
of machinery, and the Company's bonus system.
During this meeting Kawano announced that in the fu-
ture he would communicate only with maintenance person-
nel and would allow individual supervisors to undertake the
handling of grievances. Further, Kawano proposed that all
discipline be suspended for the time being and added that
he had some ideas on the subject, one such idea involving
an employees' committee to handle disciplinary matters.
The framework of the committee was not formalized at this
meeting, but Kawano did add that final decisions on mat-
ters of discipline would rest with him. He also mentioned
that an employees' committee could look into the Compa-
ny's work rules and revise them.
Testimony as to this meeting was received from Manshio
and was corroborated by Kawano's own responses to ques-
tions about the genesis of the Disciplinary Committee. I
find the facts as reported above to be an accurate reflection
of the credible testimony of Manshio and Kawano on this
meeting.
D. Meetings from October 21 to October 28
On October 24 Kawano again called Manshio to his of-
fice alone. In this conversation Kawano returned to the
subject of employees who were aliens. He told Manshio
that if the Union came in, every alien employed by the
Company would be required to bring in a "green card,"
apparently some sort of certification of resident alien status.
Also in this conversation Kawano informed Manshio that if
the Union came in, the Company would "bargain from
scratch," that it would not bargain from the existing bene-
fits and pay scale, but would go down to "zero" and start
from there.
Kawano then turned to the subject of the Disciplinary
Committee. He informed Manshio that he was being forced
to move to a more rigid disciplinary structure because the
employees thought he was arbitrary in his handling of disci-
pline. He pointed out that this more formal system was
similar to that in a union shop, but he did not think the
employees would like it or could get along under it. He then
instructed Manshio to prepare a ballot to be used in the
selection of a three-member disciplinary committee by vote
l0 The notes were later typed by Respondent's office staff, reproduced by
Respondent, and posted on the employees' bulletin board.
of the employees, laying down, at the same time, several
conditions for membership on the committee: that employ-
ees who ran for the committee had to be persons other
employees believed had good attendance records and per-
sons who were on time for work generally. He felt, in sum,
that members of the Disciplinary Committee should set an
example for other employees.
Manshio alluded in his testimony to other meetings be-
tween October 24 and 28, but mentioned only Kawano's
return to the subject of stricter working rules at such meet-
ings.
E. The October 28 Meeting
On October 28 a general meeting of all employees was
held at 1:30 p.m. in the paper warehouse. Presumably the
employees knew that the purpose of the meeting was to
discuss the recent onset of union organizing, because both
Manshio and Soong Baik commented on the subdued and
sober atmosphere among the employees, as contrasted with
the holiday spirit accompanying such general meetings in
the past.
Present for the Company were A. M. Bridell, chairman
of the board, A. L. Sartini, Chicago division manager, Ka-
wano, manager of manufacturing, and Harvey Lemovitz,
controller. The formal portion of the meeting consisted of
the reading of a statement by Sartini dealing with union
organization and the Company's opposition to a union in
the Chicago plant, which had been prepared for delivery on
this occasion by the Company's attorneys, and the distribu-
tion of a sheet setting out the Company's philosophy and
belief in fair dealing and the free enterprise system. The
floor was then opened to questions and general discussion.
What happened then is the subject of testimony of em-
ployees Manshio, Soong Baik, Henry Jones, and Sam
McMillon and by A. L. Sartini. There is general agreement
that Soong Baik was the first to take up Respondent's invi-
tation as contained in Sartini's speech, and in the opening
of the meeting to general discussion, Baik spoke to the
group, beginning with three anecdotes, or what Manshio
aptly characterized as "parables." The first of these dealt
with a remark made by the late President Kennedy that his
father had once told him that businessmen were all sons of
bitches. The second "parable" concerned a man who owned
a mouse and an elephant and pointed to the difference in
feeding requirements for those animals. The third had to do
with a master who had two slaves and paid them at differ-
ent rates.
There then ensued a dialog between Baik and Chairman
Bridell which covered such subjects as conditions in Korea,
freedom, politics, and other abstract concepts. The exact
course of this discussion is not apparent in the testimony,
but it is undenied that at one point Bridell told Baik that if
he did not like the working conditions there at American
Tara, he could get a job somewhere else. At the point an-
other employee, Willie Theard, rose and pointed out the
difficulties of obtaining new employment and starting at the
bottom again. Bridell and Baik then resumed the discus-
sion, with the chairman informing Baik that he had recently
visited Sweden, a country where the Government provides
a more equal distribution of earnings, and, maybe, Baik
would be better suited if he went there. Baik apparently
1234
AMERICAN TARA CORPORATION
concluded the discussion by relating his anecdotes to what
he termed the inequities of the Company's wage structure,
suggesting that the employees needed an organization to
protect them from the Company's "unfair practices" and to
protect wages and benefits and urging, "[W]e need a union
organization here."
Following this exchange both Manshio and Baik left the
meeting, which, however, continued. Other employees, in-
cluding Sam McMillon and Henry Jones, spoke and asked
questions. Both McMillon and Jones testified that Sartini
responded to a question by Jones or some other employee
that he knew of a local company (identified by Sartini as
the Frye Company) which had closed down after being
forced out of business by a union and had thrown its em-
ployees out of work. Sartini denied having said anything
about closing the plant, but admitted that he had adverted
to a local situation where a competitor of Respondent's had
trouble with a union and, as a result, was forced to close,
and employees lost their jobs. In the light of Sartini's admis-
sions, I find, in further reliance upon the credible testimony
of McMillon and Jones, that Sartini had given an example
of a plant in Chicago which had closed on account of a
union, with a resulting loss of jobs for employees.
In addition, I find that Sartini, in his prepared speech,
stated:
No employee will be allowed to solicit for the
Union, carry on union activities or any other outside
activities during his or her working time or with an-
other employee during that employee's working time.
Any employee who does so and thereby interferes with
his own work or the work of other employees will be
subject to immediate discharge and/or disciplinary ac-
tion.
As noted by the General Counsel, there is no evidence in
the record as to the prior existence of any sort of no-distri-
bution, no-solicitation rule promulgated by Respondent.
F. The Events Between October 28, 1977, and April. 1978.
Following the election for the Disciplinary Committee
(discussed below) and the October 28 general meeting,
there was a meeting on November 4, 1977, attended by
Kawano, Manshio, the four employees who had received
the highest vote totals in the election for the Disciplinary
Committee," and eight other employees. At this meeting
Henry Jones, one of those tied for the third place on the
Disciplinary Committee, withdrew his name from consider-
ation, feeling that his record on absenteeism and tardiness
did not come up to Kawano's standards, and the member-
ship of that committee was resolved to be Bas Guerero,
Jim Yoshimura, and Sam McMillon. Kawano indicated
that he would meet with the committee on November 7.
Beyond this resolution of the membership of the Disci-
plinary Committee, Kawano and the employees discussed a
number of items, including overtime pay for attendance at
employee meetings, grievance forms, additional sick days
and holidays, and cost-of-living wage increases.
tl There were only three slots to be filled on the Disciplinary Committee.
but two employees were tied for third place.
Between this meeting on November 4 and November 9,
Manshio and Kawano had several conversations on the
Disciplinary Committee and its operations. In one of these
meetings Kawano said to Manshio that Soong Baik was
still soliciting for the Union and asked what Manshio in-
tended to do about it. The latter replied that it was not his
problem, to which Kawano rejoined that as long as this
union activity went on, the Company would not grant any
benefits. This incident, credibly reported by Manshio, was
not denied by Kawano.
In March 1978 Manshio was suspended for 3 days for
tardiness." There apparently was a recommendation by the
Disciplinary Committee in this case, but there was no com-
munication between the committee and Manshio. and he
was not given the opportunity to appear in his own defense.
This annoyed him, and he remonstrated about it to Ka-
wano, finally writing a memorandum on the matter to Ka-
wano. Manshio then asked to see Sartini, but Kawano
would not allow it. Instead he had a conversation with
Manshio in his office in which he agreed that, in the future,
employees who were to be disciplined would have the privi-
lege of appearing and stating their case to the Disciplinary
Committee. In the course of this conversation Baik's work
record came up. Manshio was particularly vexed that he
was suspended and that Baik was not. Kawano stated that
he would take care of Baik when the unfair labor practice
charges that Baik had by that time filed were settled. Again,
I rely on Manshio's credible testimony. Kawano did not
deny this conversation. The suspensions eventually were re-
scinded, and the employees were paid for the time.
Sam McMillon testified that late in March Kawano ap-
proached him at his work station and said that he had
heard that McMillon was for the Union. McMillon replied
that he was not for it or against it. Kawano said nothing
and left. This conversation was reported in the same terms
by McMillon and Kawano.
Manshio testified as to a conversation around the same
time with Kawano in which Kawano commented that the
petition Manshio had passed around in favor of the Em-
ployees' Committee did not mean anything because he
knew for a fact that some of the people who had signed the
petition had also signed union cards. This, too, went un-
denied into the record.
Both Sam McMillon and Henry Jones testified that on
April 3, 1978, they were called separately into Kawano's
office. Kawano asked each of them about "problems" with
the employees downstairs. He told Jones he had been hear-
ing about things going on downstairs and asked McMillon
what was causing the "confusion" down there.
G. The Disciplinary Committee
As described above, the Disciplinary Committee origi-
nated in Kawano's reaction to the comments by Manshio
on October 20, 1977, that many of the problems which then
concerned the employees arose from the current disciplin-
ary system and its administration by Kawano. Manshio's
report on employee attitudes was verified at the meeting
2 Two other employees. Henry Jones and Jasper Edwards, were sus-
pended at the same time and for the same reason.
1235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between the group of employees and Kawano on October
21. This must have triggered Kawano's announcement to
the assembly at that meeting that disciplinary actions
would be temporarily suspended pending the establishment
of an employee disciplinary committee with advisory pow-
ers to recommend discipline.
The idea was further developed in conversations between
Kawano and Manshio in the next few days, but it is evident
from the testimony of both men that the substance of the
rules for eligibility and the operating methods came from
Kawano and that the mechanical tasks of preparing and
distributing the ballots were performed by Manshio.
The basic operational guidelines were contained in a
memorandum written at Kawano's direction in response to
a series of questions as to policy posed by Manshio. The
memorandum provided: that members of the Disciplinary
Committee would be compensated for time spent on com-
mittee matters; that the committee could not reject warn-
ings by supervisors, but could recommend what disciplinary
action was to be taken by the manager of manufacturing
(Kawano); committee formulation and enactment of rules
and regulations governing the conduct and behavior of em-
ployees; that supervisors' warnings were to be in writing:
and that the employee's side was to be obtained.
On receiving this memorandum, and as a result of his
conversations with Kawano, Manshio drafted a notice of
the election for the Disciplinary Committee. The notice
stated that the "Company is establishing an employee Dis-
ciplinary Committee," went on to describe that advisory
nature of its functions and the makeup of the committee,
and specified that only employees with excellent work rec-
ords, good attendance and on-time performance should be
members. The notice was typed by company clerical em-
ployees, reproduced on company equipment, and posted on
the employee bulletin board, with a copy furnished to Ka-
wano.
The election for the members of the Disciplinary Com-
mittee was held on working time on November 2, 1977.
Ballots were distributed to employees at their work stations
and were deposited by them in a ballot box located in the
employees' lunchroom. Afterward, the box was picked up
by John Quezon, a supervisor, who arranged for the tally of
the ballots. As noted above, Bias Guerero and Jim Yoshi-
mura were the two top votegetters, with Sam McMillon and
Henry Jones tied for third place. Jones felt that his work
record was not up to Kawano's standards and withdrew his
candidacy, leaving the third place on the committee to Sam
McMillon.
The evidence shows that the Disciplinary Committee had
no officers, no constitution or bylaws (other than the Ka-
wano memorandum referred to above), and no regular
meetings, and the only procedures were established or re-
vised as they went along.
Further, there is no evidence as to the number of disci-
plinary meetings which were held. We know of at least
four: the first meeting with Soong Baik in December; the
meeting which recommended discipline for Manshio, Jones,
and Edwards; the joint meeting with the Employees' Com-
mittee on the question of imposing discipline on Soong
Baik; and a meeting in March 1978 mentioned in the testi-
mony of McMillon, which he stated was the last meeting of
the committee.
The Disciplinary Committee did not conduct its disci-
plinary meetings with Kawano present. However, McMil-
Ion's undenied and credible testimony shows that the com-
mittee members were called in twice by Kawano and asked
what they were going to do about Soong Baik. The mem-
bers replied that no supervisor had yet approached them
with anything on Soong Baik.
The committee did meet with Kawano in pursuance of its
other function, the drafting of a new set of work rules. Be-
tween November 1977 and January 1978 they met three
times and went over and revised the Company's work rules.
After this Kawano had the new rules typed in four lan-
guages, English, Spanish, Japanese, and Korean; the rules
were signed by Guerero, Yoshimura, and McMillon and
posted in the plant. Manshio testified credibly that one of
the rules forbade distribution in the plant without company
approval." Once these rules had been posted, the Disciplin-
ary Committee performed no further function with regard
to rules.
H. The Employees' Commiltee
The history of the Employees' Committee at Respon-
dent's plant is more extensive and more complex than that
of the Disciplinary Committee. The Employees' Committee
did not, like the Disciplinary Committee, spring full grown
from the brow of management. The record shows, rather,
that as the result of a spontaneous work stoppage which
occurred early in 1976 over employee dissatisfaction with
the bonus system, an employees' committee was chosen by
a consensus of' the employees. This committee consisted of
Manshio, Bias Guerero, Fred Jones, and Henry Jones. The
committee formulated a list of demands and discussed them
with Hank Burrey, Kawano's predecessor, and Jack Fricke,
Sartini's predecessor as division vice president. Among the
matters discussed were the bonus system and plant mainte-
nance. The committee and Burrey met two or three times in
the Company's conference room in the spring of 1976; then
the meetings apparently were discontinued.
In the fall of 1976 Burrey and Fricke were replaced by
Kawano and Sartini. Later in the fall, at a general em-
ployee meeting with management similar to that held on
October 28, 1976, Manshio got up and asked Chairman
Bridell whether they could have some formal arrangement
whereby employees could meet with management to in-
crease communication between the employees and manage-
ment. Bridell replied that they had always worked things
out on a one-to-one basis and should continue in this fash-
ion. In his opinion no formal structure was necessary.
This rebuff served only as a temporary deterrent, for in
March 1977 Manshio approached Kawano with the sugges-
tion that he and three other employees begin monthly meet-
ings with management. Kawano agreed, and a series of
meetings were held between March 30 and August 4, 1977.
The composition of these meetings was somewhat different
than the preceding or succeeding committees, since Man-
"" Respondent refused to supply a copy of these rules, which were one of
the items subpenaed by General Counsel. No reason was advanced for this
refusal. Accordingly, I did not permit any examination or cross-examination
by Respondent's counsel on the content of the rules. C H. Sprague & Son
Co. v. N.L.R.B., 428 F.2d 938 (Ist Cir. 1970).
1236
AMERICAN TARA CORPORATION
shio and Kawano were the only permanent members, the
other employee representatives being chosen by Manshio at
the time of each meeting to attend that single meeting.
Again, as in the case of the 1976 committee, this second
group activity petered out, the last meeting being on Au-
gust 4, 1977.'' However, it appears from the record that a
number of issues were discussed, including plant proce-
dures, maintenance (which apparently was a chronic and
recurring problem), and overtime. As with the earlier com-
mittee, Manshio took detailed notes, which were typed and
reproduced by Respondent's clerical employees and posted
in the plant, with copies given to Kawano.
On the genesis of the employees' committee which was
formed in November 1977, there is some slight but signifi-
cant difference of opinion. If one looks at the testimony of
Calvin Manshio, it appears that the idea of a five-member
committee to deal with management arose spontaneously
out of discussions he had with Henry Jones during the pe-
riod between October 28 and November 9. Jones, on the
other hand, recalled that in those discussions he and Man-
shio discussed a two-man committee, which Jones said was
suggested by Sartini during the open discussion on October
28, and then decided that two men were not enough and
went on from there. I feel that Jones was probably correct.
Manshio did not deny that they discussed Sartini's sugges-
tion. But since Manshio had not remained at the October
28 meeting for the question and answer period, and in the
light of the experience he had had with employees' commit-
tees in the past, I cannot find the linkage claimed by the
General Counsel between Sartini's suggestion and the com-
mittee which was eventually formed.
In any event Manshio and Jones engaged in conversa-
tions about the objectives and dimensions of an employees'
committee, how many people should serve, who they
should represent, how to keep from being dominated by the
Company, what interests the committee should pursue, and
what specific things the committee should ask for. There is
no evidence that these two employees discussed their plans
with others, either Soong Baik or other union adherents or
management officials.
When Manshio and Jones had finalized their prepara-
tions, Manshio circulated a petition among the employees
on November 9, calling on the Company to reject the ef-
forts of an outside union and to recognize an employees'
committee of five members elected by popular vote as the
exclusive representative of all employees. His solicitation
was successful in that 85 percent of the employees signed
the petition. Manshio then presented the signed petition to
Sartini. In the ensuing conversation Sartini said that he
needed to talk to the Company's lawyers about it. Manshio
reassured him, giving his opinion that the petition was suf-
ficient to preclude any outside agency from representing the
4 Unless the meeting of October 21, called by Kawano with an ad hoc
employee group chosen by Manshio, could be considered a continuation of
the earlier series of meetings. Looking at the entire context of Respondent's
reaction to the onset of union activity, however, I view the calling of the
October 21 meeting merely as a part of that reaction. having no real connec-
tion with the past or future employees' committee except insofar as the firm
of the committee on October 21 was suggested by experience with the former
employees' committee.
employees and remarking that if he was worried about un-
fair labor practices, he should examine the conduct of Jim
Kawano.
The next day, November 10, Sartini called Manshio to
his office and told him that the Company was pleased with
the petitions and would allow the employees to organize a
committee. Manshio then worked up rules for an election to
be conducted for membership on what was to be called the
Employees' Committee, consulting with Kawano, presum-
ably about the time these matters would take" and the ef-
fect of this upon production. Manshio envisioned a regular
campaign for places on the committee, because he posted a
signup sheet on which employees could place their own
names or the names of others. On November 16 a general
meeting was held in the paper warehouse at which time the
objectives of the committee were outlined and each candi-
date for the committee spoke to the assembled group." The
election was then held, and Manshio. Jim Yoshimura, Bias
Guerero. Henry Jones, and Freddie Jones were elected as
the members of the committee.'7
The Employees' Committee. like the Disciplinary Com-
mittee. had no constitution or bylaws, collected no dues,
had no officers, and represented only employees of Ameri-
can Tara's Chicago division.
Between November 16 and December 1 the committee
met and formulated a list of proposals to be presented to
the company, and on December I a meeting was arranged
between the committee and management. The meeting took
place upstairs in the Company's conference room and was
attended by the members of the Employees' Committee,
Jim Kawano. and Harvey Lemovitz. Respondent's control-
ler.
The meeting opened with a statement by Lemovitz that
the members of the Employees' Committee were not to con-
sider themselves as a bargaining unit or a bargaining team
for the Company's employees and that they were not to
consider that the Company was bargaining with the com-
mittee.'l He added, however, that management was ready
to listen to any reasonable requests. The parties then went
on to discuss specific benefits, using as a guide for some of
their discussions a chart prepared by Lemovitz showing
comparative benefits at the Company's Chicago, Los Ange-
les, and Atlanta locations. Without going into detail, it is
noted that they discussed wages, hours, sick days, holidays.
and a number of other matters. The meeting concluded
with the management officials taking the committee's re-
" Manshio, as well as the other employees involved, were paid for all time
spent on Employees' Committee matters. including pay at time and one-half
if these functions extended beyond the regular workday. They did not, how-
ever, earn any bonus payments, since those were based on productivity and
not attendance.
16 Including Soong Baik, who, although he was a candidate for member-
ship on the committee, urged his fellow employees to support the Union. The
poor showing Baik made in the subsequent election seems to me to be a fair
indication of employee support for Baik's views, and for the Union, at that
time.
'~ Manshio received the largest vote. and it appears that he acted as the
comittee's principal pokesman, although he testified that the committee had
no officers.
81 The impact of this disclaimer was negligible. Henry Jones wondered
what they were doing there, but Manshio felt that regardless of what the
Company said, the committee intended to ask for benefits
1237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quests under advisement and agreeing to meet again when
they had obtained answers.'9
A second meeting was held between December 1 and 10,
with the same people in attendance. Among other things,
the Company agreed to an increase in the number of sick
days, set up a bonus arrangement for good attendance, and
agreed to a 5-percent wage increase to be effective on Janu-
ary 1, 1978.
There were, apparently, no futher meetings until March
31, at which time the members of the committee met among
themselves to discuss some minor problems. During this
meeting Manshio announced that he felt the committee was
no longer effective and that he was resigning. Henry Jones
also tendered his resignation.
Manshio then talked to Kawano and told him of the res-
ignations. He said to Kawano that the latter was putting
the committee in a "squeeze" between management and the
employees. Manshio complained about his suspension and
about the fact that Soong Baik had a poorer attendance
record and had not been disciplined. It was at this point
that Kawano mentioned that Baik had filed unfair labor
practice charges, but as soon as that was over, he, Kawano,
would take care of Baik.
Shortly after that a final meeting of the Employees' Com-
mittee was held with Jim Kawano at his request. Kawano
told the members20 that Supervisor John Quezon had been
fired for falsifying an employee's production card." Ka-
wano then berated the Employees' Committee, stating that
it was his feeling that the committee had been totally in-
effective, that they had done nothing for the Company, and
that Baik was still passing out cards.
No other meetings were held after that time, no elections
were held to replace Manshio and Henry Jones, and Fred
Jones was made a supervisor on June 5 and, so far as is
known, was still a member of the committee.
I. Soong Baik, Employment History and Discharge
As noted above, Baik's union organizational activities
commencing on October 20, 1977,1U set in motion the se-
quence of events chronicled above. I now turn to Baik's
own connection with these events and his eventual dis-
charge.
It is undenied that Baik was not an exemplary employee.
His production was consistently low, even among the low-
est of Respondent's employees. His record for tardiness was
not bad but not perfect. Likewise, his attendance was not
good and not bad, although he was out sick for a period
from January 16 to February 6, 1978. It is also clear that he
had not been disciplined or warned about productivity or
absenteeism prior to his activities on behalf of the Union.
19 Manshio took notes on these meetings, which, as before, were typed,
reproduced, and distributed by Respondent's personnel and facilities.
0 The members of the disciplinary committee apparently were present at
this meeting.
21 Manshio's testimony on the reason for Quezon's discharge is somewhat
contradictory. At one point he testified that Kawano said Soong Baik's card
was altered. Later he denied this, but then came back to the original charges
again. In view of this I cannot find sufficient credible evidence that Kawano
in fact referred to Baik's card.
22 While Baik testified that he began passing out cards in July 1977, think
it is clear that such activities had not come to the attention of the Company.
After his October 20 encounter with Kawano, Baik was
next in contact with management on November 18, when
he was called to Sartini's office. Sartini asked him if he had
finished passing out cards. At this point the testimonies of
Baik and Sartini diverge, Sartini claiming that he referred
to passing out cards on working time and then pointed to
the speech he had given on October 28, indicating that Baik
should stop doing this on working time. Sartini further said
that Baik admitted passing out "one or two" cards on work-
ing time and denied that he had threatened Baik with dis-
charge. Baik, on the other hand, noted no restrictions with
respect to working time, and averred that Sartini had
pointed to the words "immediate discharge" on the copy of
the speech he held, and further told Baik that if he broke
the Company's rule, he would "get fired and more."
There again I am faced with a question of credibility
between Baik and a representative of management. And
here, again, I find that Baik, possibly because of his difficul-
ties with the English language, may have misinterpreted
Sartini's words to him or may, as in the October 20 incident
with Kawano, have embellished the incident. Sartini, as
with Kawano, impressed me as a generally credible witness.
His speech, and no doubt his actions in regard to Baik, was
influenced by advice from the Company's labor relations
attorney." Sartini, like Kawano, made admissions against
the Company's interest, and his demeanor was such as to
convince me, in this instance, that his version of the inci-
dent was closer to the facts than was Baik's.
On December 8, 1977, Baik was called to Kawano's of-
fice. Kawano opened the meeting by telling Baik that if his
production remained low, he would be fired. Baik rejoined
that he had received the lowest raise that year and asked
Kawano how he would feel if he got the lowest raise. Ka-
wano, apparently in an attempt to persuade Baik to recon-
sider this viewpoint toward his work, then began discussing
professional basketball, pointing out that Kareem Abdul
Jabaar makes lots of points and thereby lots of money. Fur-
ther discussion ensued on that point, professional football,
and other matters. Kawano then changed the subject, ask-
ing Baik what he thought of Bob Smith as a supervisor. He
then stated that Kohn Kim was going to be a supervisor,
adding that he had "lots of positions" to fill.
On December 15 Baik was again called into Kawano's
office in the presence of Supervisor Max Tosino. According
to Baik, there was a union authorization card on Kawano's
desk and a printed form bearing the words "Employee Re-
signing Form." Kawano then pointed to the form and said,
"Sign here." He also told Baik that he had received his first
warning at the October 28 general meeting and his second
warning in Sartini's office on November 18, and he then
pointed to the authorization card. Kawano then asked Baik
where he had passed out the cards, and Baik responded that
he had passed them out in the locker room. Kawano
reacted to this by saying that he could not pass out cards in
the locker room because it was on company premises. Ka-
wano then stated that he was going to turn the matter over
to the Disciplinary Committee, but refused Baik's request
for a copy of the resignation form.
23 The fact that Sartini did not discharge Baik in the face of the latter's
admission that he violated the no-distribution rule indicates a very cautious
approach to Baik's situation by the Company.
1238
AMERICAN TARA CORPORATION
Kawano's testimony concerning this incident, unlike his
recall of the October 20 encounter, is phrased only in gen-
eral and conclusionary terms. He denied that there was a
document or a card on his desk and claimed that Soong
Baik admitted he was passing out cards. Tosino, the super-
visor who was a witness, was not called upon to testify.
However, it seems clear that the Company never has had
a form called "Employee Resigning Form." Baik obviously
mistook another form, probably an employee warning
form, which the Company did have, in the circumstances of
this interview.
However, Baik's story is the more credible in this in-
stance, and I find that, in fact, Kawano demanded that
Baik sign the warning form and resign from the Company's
employ. Failing this, Kawano made good his threat to refer
the matter to the Disciplinary Committee. In so doing.
however, he took the unusual step of summoning a joint
meeting of the Disciplinary Committee with the Employees'
Committee. The two committees, with no comment about
this unique procedure, met on December 16 to consider the
charges brought by Kawano against Baik. Kawano himself
was not present. The assembled employees discussed the
case for some time, until Soong Baik himself appeared.
Baik denied passing out a card on working time or on com-
pany property, but did admit handing a card to an em-
ployee outside the plant. The group continued its delibera-
tions, but, unable to reach a decision, finally determined to
vote no recommendation.
Manshio was delegated to report this decision, or lack of
decision, to Kawano. Kawano was unhappy with the result,
asking "what kind of a decision" that was, but stated that
since there had been no recommendation, he would do
nothing further about the matter.
After this meeting Baik approached his supervisor, Bob
Smith, and asked if he would be paid for the 1/2 hour
before his shift began that he had spent with the committee.
Smith said he would not be paid. Baik had previously spo-
ken to Smith about what he felt were shortages on his pro-
duction cards on certain dates in December. Smith an-
swered that there was no discrepancy.
As noted above, Baik was ill from January 16 to Febru-
ary 6, 1978, and on February 15 he was 10 minutes late for
work. On March 28 Baik had an appointment at the Na-
tional Labor Relations Board's Chicago Regional Office, as
a result of which he was I hour late for his shift. Supervisor
John Quezon asked him why he was late, and, after some
hesitation, he told him. The next day Baik was notified that
he was being considered for discipline. Early in April Baik
met with the Disciplinary Committee in Kawano's office.
They reminded him of his absences and tardiness and rec-
ommended that he be given 1 week's suspension. Kawano
never implemented this recommendation.
Baik further testified about a meeting in Kawano's office
on April 5. This had to do with an altercation between Baik
and another Korean employee, Kohn Kim. However, the
testimony concerning this incident is not only inconsistent
but also in large part unintelligible. Thus I find that Gen-
eral Counsel has not established sufficient facts concerning
the incident to permit me to make a finding.
Finally, on May 22 Baik received a call from his brother
in Korea, informing him that their father had died. Baik
began to make arrangements to return to Korea for the
funeral and attendant rites and spoke to Bob Smith, re-
questing "a few weeks" or "two or three" weeks' leave of
absence. Smith told Baik that he would report the matter to
Kawano and get back to him. Smith called back, making no
reference to the length of the leave, but told Baik that Ka-
wano wanted him to bring back a cops, of his father's death
certificate. Baik then made reservations to fly to Korea,
but could not get a return reservation before June 12. At
that, he had only a standby reservation fotr that date.
Baik then left for Korea and participated in the funeral
and rites conducted in accordance with Korean custom,
which lasted for some days. On June 7 he attempted to
check on his return with the airline, and, at his request, a
teletype was sent to Mrs. Baik, who had remained in Chi-
cago, to the National Labor Relations Board attorney, who
was handling the charges Baik had filed, and to Jim Ka-
wano. General Counsel stated that he had received a phone
call from the airline, but Kawano denied that he had.2
Meanwhile, on June 5, Bob Smith had called Baik's wife.
inquiring when he would return to work. Mrs. Baik was
upset and prevailed upon a friend of Baik's, Ho Young
Ahn, to call Smith to find out what the problem was. Smith
seemed to be acting under the assumption that Baik had
asked for 2 weeks' leave, but Ahn told him that it was 2 or
3 weeks. Smith replied, "Okay, I understand."6
Baik was able to make his flight on June 12, and he re-
turned to Chicago at 5:30 a.m. on Tuesday, June 13. He
was exhausted after a journey of almost 24 hours and went
to bed. About 10 a.m. he was called by supervisor Max
Tosino, who asked him what was going on. Baik told him,
and added that he would return to work on Thursday., June
15. Tosino did not reply to this.
On June 13 or 14 Kawano reported to Sartini that Baik
had been given 3 weeks' leave of absence and had not re-
turned. Sartini told him to consider the matter carefully and
to do what he wanted. On June 14 Kawano wrote out a
discharge notice for Baik and sent it to his home by special
messenger, where it arrived about 5 p.m.
J. Discussion and Anaolsis
Rather than enter into any analysis of the totality of Re-
spondent's conduct or construct any theories based on an
overview of the events chronicled above, it is necessary to
examine each of the reported incidents found by me to re-
flect the actual state of the facts in the case. My decision is,
then, based upon the accumulation of these incidents and
their cumulative effect, not on any pattern drawn from the
sum of all of them.
The first such incident involving Baik and Kawano, on
October 20, 1977, I have found to have happened substan-
tially as described by Kawano. Thus, I find no indication
there of any violation of law. What apparently did happen
was that at some time during the day an unidentified em-
2 This is based on Batk's undenied and credible testimony. Smith did not
testify.
2' I find that the Teletype was sent, but I cannot find, on this evidence, that
Respondent knew of Baik's problems in returning to the United States.
X Ahn's testimony was credible and forthnght, and Smith did not testify in
denial.
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee turned in one of the union authorization cards to
Kawano and informed him that Baik was passing them out.
Since the record does not disclose the time of this incident,
I can read no significance into the difference in time be-
tween the distribution of the cards before 6 a.m. and the
fact that Manshio testified that Kawano called him into his
office "late in the day" on October 20. Thus, it is not known
whether Kawano's interview with Manshio that afternoon
was a calculated move, decided upon after consultation
with higher management, or even legal counsel, or rather a
visceral reaction, taken by Kawano on his own, to the ap-
pearance of union organization at the gates of the plant.
Whatever the reason, Kawano's action in summoning
Manshio indicates that he was disturbed by the union orga-
nizing, he wanted information about possible sources of dis-
content, and he chose his prospective informant carefully.
Calvin Manshio is a most extraordinary employee. Better
educated, perhaps, than anyone in the plant, whether rank
and file or management, he remained a production worker
for reasons not disclosed in this record. His testimony re-
veals that he had the best interests of his fellow employees
at heart, but at the same time he was able to communicate
with and to understand the motivations of management. He
had been for over 1-1/2 years in October 1977 the chief
spokesman for the employees, and their overwhelming sup-
port for his candidacy in the Employees' Committee elec-
tion shows that they respected and trusted him as their
spokesman. Thus, in summoning Manshio, Kawano knew
that he was a person who was trusted by the employees and
who had in the past served as a conduit for communication
between labor and management and might reasonably be
expected to do so again, particularly in this kind of crisis.
So Manshio, in responding to Kawano's inquiries about the
problems downstairs, volunteered to ask the employees
what their problems were and, in fact, did so. Kawano thus
accomplished his objective of finding out what the prob-
lems were without having, himself, to engage in widespread
and possibly fruitless interrogation. Manshio's conduct
comes close, in my opinion, to making him an agent of
management. However, one critical element required in
such a finding, the identification with management or the
appearance that he was acting on behalf of management, is
not present." Macon Textiles Inc., 80 NLRB 1525 (1948);
Harrison Sheet Steel Co., 94 NLRB 81 (1951).
Kawano's interrogation of Manshio occurred in an atmo-
sphere which, even at that point, showed hostility toward
the Union and was later to show even more hostility. The
examination took place in Kawano's office, and while Man-
shio had been there many times before, he was aware of the
element of menace in Kawano's presence (witness his state-
ment to Sartini on November 9 that Sartini should examine
Jim Kawano's conduct if he was concerned with unfair la-
bor practices). I find, therefore, that by the interrogation of
Manshio by Kawano at their first meeting and by soliciting
employee grievances through Manshio at that time, Re-
spondent violated Section 8(a)(l) of the Act. Federal Yeast
Corporation, 226 NLRB 1046 (1976); Solmica, Inc., 199
NLRB 224 (1972); Cf. Bonnie Bourne, an individual d/bla
Bourne Co. v. N.L.R.B., 332 F.2d 47 (2d Cir. 1964).
27 Nor is identification with management present in Manshio's activities
later in connection with the Employees' Committee.
Following Manshio's discussions with the employees
downstairs, he was again called up to Kawano's office. Af-
ter some discussion of the employee complaints turned up
in Manshio's investigation, Kawano made it clear that he
had been looking for simpler and more easily accommo-
dated problems, and he doubted Manshio's accuracy in re-
porting that the main problem was generalized discontent
with Kawano's methods of supervision. Unprepared to re-
spond to this more basic problem, Kawano then began dis-
cussing the Union, and unions in general, in terms designed
to discourage Manshio (and, through this immensely influ-
ential employee, the others) from participation in whatever
organizational activities were then underway. Kawano's
statements, undenied by him and credibly reported by
Manshio, not only show his animus toward the Union but
also exceed the boundaries of protected free speech in pre-
dicting loss of overtime due to the Union, stricter enforce-
ment of company discipline, discharge of alien employees
whose papers were not in order, and a clear warning that it
was "possible" that the plant would be closed if the Union
persisted in bringing up "little problems."
These threats2" were designed, because of Manshio's
unique position in the Company, for broadcast to the other
employees, and the record indicates that at least some dis-
semination occurred. The fact that Manshio did not believe
that the plant would, in fact, be closed, is, as pointed out by
General Counsel, irrelevant. Thus I find that Kawano's
statements on this occasion establish Respondent's animus
toward the Union and violate Section 8(a)(1) by threatening
loss of benefits, stricter discipline, and closure of the plant
because of the union activities of the employees. N.L.R.B.
v. Copps Corporation, 458 F.2d 1227 (7th Cir. 1972).
The meeting of October 21 was a further attempt by Re-
spondent, through Kawano, to solicit grievances from em-
ployees in order to head off the union organizational ac-
tivity, and I find this meeting as well as the November 4
meeting to be violative of Section 8(a)(1). Solmica, Inc., su-
pra.
On October 24 Kawano again summoned Manshio and
again adverted to the consequences which would befall
alien employees without papers if the Union came in. He
went on, in this instance, to tell Manshio that if the Union
came in the Company would "bargain from scratch" and
would not consider the existing benefits as the starting point
for negotiations, but would go down to "zero" and start
from there. As in the case of the October 20 meeting, I find
that Kawano's intent was not merely to impress Manshio,
but, knowing of the latter's influence and stature "down-
stairs," also to impress all of the other employees with the
threats so imparted. Whether Manshio thought that this
was legally permissible, or whether his reply that he knew
the Company could do this was an admission that the Com-
pany could do it, legally or illegally, is not important. In
this context, it is inescapable that this was anything but a
threat to eliminate existing benefits if the Union came in.
This sort of statement may, in some circumstances, be law-
ful in the sense that it may merely be indicative of what
:2 While the suggestion that loss of overtime and action against aliens
would be attributable to the Union is neither "absurd" nor "ridiculous," as
claimed by the General Counsel, I find that the intent of Kawano's state-
ments was not that the Union would be responsible. but that Respondent
would do these things if the Union came in.
1240
AMERICAN TARA CORPORATION
Respondent is legally entitled to do, but here I find it to be
another violation of Section 8(a)(1). Stumpf Motor Com-
pany, Inc., 208 NLRB 431 (1974); Tamper, Inc., 207 NLRB
907 (1973).
By the time of the October 28 meeting Respondent had
availed itself of legal advice, and the speech prepared by
Respondent's counsel and delivered by Sartini to the assem-
bled employees is not alleged by General Counsel, nor does
it appear to me, to violate the law except in one instance.
That is in what Sartini described as a "restatement" but
which the record shows to be a new no-solicitation, no-
distribution rule. It is clear from the record that the prior
rule against "unauthorized activity during working hours"
bore no resemblance to the precise conduct forbidden by
the October 28 rule. Rather than a restatement, then, the
October 28 pronouncement was new and, I find, designed
specifically to interfere with and, hopefully. to prevent the
employees' exercise of their Section 7 rights. Medlev Distill-
ing Co., Inc., 187 NLRB 84 (1970).
The evidence with respect to enforcement of the rule
shows that raffle tickets were sold before and after iniposi-
tion of the new rule, and collections were solicited and
taken up unimpeded by the alleged ban on such activities.
Kawano's testimony makes it clear, if the two incidents
when Soong Baik was called before management officials
do not, that Respondent regarded this rule as applicable
only to union distribution or solicitation or to materials
directed against "the American way."29 Thus the rule suf-
fers from the twin liabilities of having been invalidly im-
posed and discriminately enforced. Hoerner Waldorf Corpo-
ration, 227 NLRB 612 (1976).
Subsequent to the delivery of Sartini's prepared remarks
and the discussion between Soong Baik and A. M. Bridell,
which discussion is not alleged as a violation of law, Sartini,
in response to a question, indicated that the presence of a
union in the Company would make it difficult for it to re-
main in business, citing an instance where a competing em-
ployer in Chicago was forced out of business by a union,
throwing its employees out of work. I find this statement, in
the context in which it was uttered, was intended to implant
in the minds of the employees a very real fear that if the
Union came in, their continued employment would be in
danger. This, then, constitutes a further violation of Section
8(a)(1). The fact that at least one employee, McMillon, did
not believe it is irrelevant. The Cooper Thermometer Com-
pany, 154 NLRB 502 (1965).
Between the October 28 meeting and April 1978 there
occurred several incidents alleged to constitute violations of
the Act. The first of these occurred sometime between No-
vember 4 and 9 at a meeting between Manshio and Ka-
wano where Kawano stated to Manshio that Soong Baik
was still soliciting for the Union. When informed that Man-
shio did not consider this his problem, Kawano replied that
as long as the union activity continued, the Company
would not grant any benefits. This incident is not alleged by
General Counsel to be a violation, but is referred to in his
argument on the motivation behind the Employees' Com-
: General Counsel, I think, misstates Kawano's testimony in this regard
As I recollect that testimony, Kawano did make a distinction between the
union and anti-American matters, although he iewed both as subject to the
Company's rule against distribution or solicitation.
mittee. The incident also contributes to the total impression
of Respondent's implacable opposition to the Union.
This atmosphere furnishes the reason why two other inci-
dents, isolated in time from the major events of October
and November and seemingly innocuous in themselves, are
found to be violations of law. The first occurred late in
March 1978 when Kawano approached Sam McMillon at
his work station and said he had heard that McMillon was
for the Union.
The second incident took place shortly thereafter, on
April 3, when Kawano called Jones, McMillon, and other
employees into his office and inquired as to what the prob-
lems were with the employees downstairs.
These incidents occurred at about the same time as Ka-
wano's confrontation with Manshio over the latter's suspen-
sion, Manshio's and Jones' resignation from the Employees'
Committee, and a conversation between Kawano and Man-
shio in which Kawano commented that some employees
had signed Manshio's petition and had also signed union
cards. Thus I infer and find that Kawano's suspicions,
fueled by the events and his animus toward the Union,
made him again seek out the causes of employee unrest, as
he had in October. The difference this time was that Man-
shio, angry over what he felt were the unjust circumstances
of his suspension, was no longer an instrument to be used
for this purpose. I thus find both incidents to be violative of
Section 8(aX I) of the Act. Eagle-Picher Industries, Inc., 171
NLRB 293 (1968).
The Disciplinary Committee, as shown above, originated
somewhere in the experience of Jim Kawano. Its form and
function were developed over the period between October
21 and November 2, 1977. The purposes of the committee
were twofold, to make recommendations to Kawano on
matters of employee discipline and to prepare and publish a
new set of rules governing the conduct and behavior of
employees. The committee members were chosen at an
election for which preparations had been made on com-
pany time, and the ballots were collected and counted and
the results announced by company supervisors or under
their supervision. Members of the committee were allowed
to work alone" but were paid, including premium pay for
overtime, for the time spent on committee work. The com-
mittee has no officers or bylaws3' and met as needed or, in
the case of the new employee rules, at the request of Ka-
wano.
I find, in view of these facts and circumstances, that the
Disciplinary Committee was, and is, a labor organization
within the meaning of Section 2(5) of the Act. N.L.R.B. v.
Cabot Carbon Company and Cabot Shops, Inc., 360 U.S. 203
(5th Cir. 1959). General Counsel noted some difficulty in
reconciling the status of the Disciplinary Committee with
the Board's decisions in Sparks Nugget, Inc. d/b/a John
Ascuaga's Nugget, 230 NLRB 275 (1977) and Mercy-Memo-
rial Hospital Corporation, 231 NLRB 1108 (1977). I have no
problem in distinguishing this case from those in view of the
Disciplinary Committee's function in "dealing with" man-
" There is evidence that Kawano called them in to discuss Baik, but no
evidence that he actually participated in their deliberations as a committee.
1m This does not preclude findings that the Disciplinary Committee or the
Employees' Committee, is a labor organization. Good Hope Industries, Inc.,
d/hb/a Gasland, Inc., 230 NLRB 1132 (1977). The irony of this citation by
General Counsel is not lost on me
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agement in regard to the new work rules. In neither of the
two cases cited, Sparks Nugget and Mercy-Memorial Hospi-
tal, supra, did the committees there involved have a similar
function.
Having found that the Disciplinary Committee is a labor
organization, I find further that it was, and is, almost com-
pletely a creature of Respondent. Whatever Manshio may
have contributed to its birth, the record is clear that the
idea and the physical and financial support during its for-
mation, and continuing through its existence, all emanated
from Respondent. The evidence shows that, except in one
instance, the disciplining of Soong Baik in December 1977,
the committee served only the purposes of Respondent and,
in the case involving Manshio himself, could do so harshly
and abruptly. I therefore find that Respondent created the
Disciplinary Committee and thoroughly dominated it
throughout its existence, in violation of Section 8(a)(2) of
the Act. The Carpenter Steel Company, 76 NLRB 670
(1948).
1 have less difficulty in finding the Employees' Commit-
tee to be a labor organization. Despite the avowals of Sar-
tini and Lemovitz that they were not recognizing and deal-
ing with the Employees' Committee as a bargaining agent
or as representative of the employees, the facts are plain
that they did recognize and deal with the Employees' Com-
mittee over a number of issues, agreeing with some and
rejecting others, as with the employees' committees in Cab-
ot Carbon, supra, and with their employer. On the basis of
that authority I find the Employees' Committee to be a
labor organization within the meaning of Section 2(5) of the
Act.
However, I do not agree with General Counsel's conten-
tion that the Employees' Committee, like the Disciplinary
Committee, is wholly a creature of, and dominated by, Re-
spondent. Tending, as I do throughout this decision, to lean
strongly on the testimony of Calvin Manshio, I believe that
the idea for an Employees' Committee originated first, out
of the work stoppage and ad hoc committee in early 1976;
second, out of Manshio's request to Bridell at a general
meeting sometime in the fall of 1976; and, third, out of the
ad hoc meetings between Kawano, Manshio, and other as-
sorted employees in the period between March and August
of 1977.12
Whenever or however the germ was planted, the cultiva-
tion was almost entirely in Manshio's hands. He discussed
with Henry Jones the organizational details, checked with
Kawano as to administrative problems, and launched the
whole enterprise by hs circulation of the petition among the
employees on November 9. This activity shows very little
company involvement.
Further, the meetings between the committee and man-
agement were scheduled, structured, and relatively formal.
The testimony from all who attended and testified shows
that the parties dealt at arm's length and in a manner simi-
lar to a legitimate collective-bargaining relationship. Fi-
nally, the evidence shows that neither side was happy with
32 Thus I do not find that either the suggestion by Sartini on October 28 or
the remark by Kawano sometime between November 4 and 9 that the em-
ployees would not receive any benefits while union activity persisted were
prime motivating factors in Manshio's organization of the Employees' Com-
mittee.
the functioning of the committee. Manshio and Henry
Jones were unhappy because the committee did not seem to
be effective, and they resigned in March 1978. Kawano, on
the other hand, felt that the committee had done nothing
for the Company, specifically with regard to the fact that
Soong Baik was still passing out cards."3
There is no question but that Respondent assisted the
fbormation of the Employees' Committee by contribution of
paper, typists, machines, production time, and space for
meetings of the employees and the committee. This assist-
ance, motivated by Respondent's fear and dislike of the
Union, I find to be violative of Section 8(a)(2) of the Act. It
may be that, deprived of such support, the Employees'
Committee will wither away. It may have anyway since
Manshio and Henry Jones resigned from membership I
cannot find, in view of all the circumstances, that Respon-
dent so dominated the committee, or placed it entirely in
Respondent's control as to warrant an order for disestab-
lishment. Carpenter Steel Company, supra.
Before leaving the subject of these two committees, I note
that as a part of its function, the Disciplinary Committee
revised and rewrote the Company's work rules. As noted
above, Respondent refused to supply a copy of these rules
for General Counsel at the hearing. Thus I foreclosed any
testimony from Respondent on these rules. The only testi-
mony relative to them came from Manshio, who said that
one of the new rules stated that there would be no distribut-
ing in the plant "without approval." Since Respondent by
its own refusal can give us no explanation, the rule must be
viewed as described by Manshio and, further, viewed as if
Respondent had no special circumstances warranting the
overly broad restrictions imposed by the rule.
Therefore, since the rule appears to ban distribution or
solicitation on nonwork time and nonwork areas and since
no valid business reason for such a rule was, or could have
been in this case, adduced, the rule is invalid on its face,
even apart from the question of its discriminatory enforce-
ment vis-a-vis Soong Baik, as will be seen below. Republic
Aviation Corporation v. N.L.R.B., 324 U.S. 793 (1945).
Turning to Respondent's treatment of Soong Baik, it may
be seen that the Company's response to Baik himself fol-
lowed the same general pattern as its response to his orga-
nizing efforts: that is, carefully modulated, well-advised,
but implacable in its opposition to Baik and to his organiza-
tion efforts. My finding as to this kind of approach is consis-
tent with the credible testimony of Manshio, Jones, and
McMillon, as corroborated in certain respects by Sartini
and Kawano. It is not inconsistent with my findings and
credibility resolutions, as noted above, with respect to
Baik's several confrontations with management. I found
Baik in those instances to be a witness who tended to exag-
gerate and embellish his accounts of conversations and
meetings and, because of his linguistic handicap, capable of
33 Kawano's attitude is illustrative of Respondent's unlawful motivation in
recognizing and bargaining with the committee, but not of employer domi-
nation. It was the want of domination which led to Respondent's unhappi-
ness with the committee.
'The fact that a member of the committee, Fred Jones, was made a
supervisor and apparently is still a member shows the moribund nature of
this committee rather than employer domination. In any event, the evidence
showed that the committee had not met since late March or early April 1978.
1242
AMERICAN TARA CORPORATION
misunderstanding what was said to him. I do not find that
this credibility problem influences the total impact of his
testimony. The initial meeting with Kawano in front of the
plant did, in fact, take place on October 20, and subsequent
meetings between Baik and management officials did take
place. It is this sequence of events, the admitted purpose of
these meetings, and the overall treatment of Baik, particu-
larly having reference to parallel events, which I find was
designed to restrain and coerce Baik to cease his union ac-
tivities.
The meeting with Sartini on November 18 certainly took
place pretty much as summarized by Baik and corroborated
by Sartini. I believe and find that Sartini did ask Baik if he
had finished passing out cards and warned him about pass-
ing out the cards on company time and in work areas. I do
not believe that Sartini said that Baik would be "fired and
more" if he continued to break the company rules. But I do
not have to make that finding in order to find violations in
the facts that Baik was singled out for a visit to Sartini's
office, interrogated about his union activities, and warned
about breaking a rule which I have found to have been
unlawfully instituted. There is no question that other em-
ployees, including production workers and office clericals,
were engaged during this same period in soliciting for
causes, however worthy, with no similar application of the
no-distribution, no-solicitation rule. The site of the meeting,
unusual in itself, was obviously designed to intimidate and
coerce Baik into refraining from further distribution of
cards.
The December 8 meeting with Kawano takes different
tack, a carrot-and-stick approach, in an attempt to per-
suade Baik to get into line. I view Kawano's initial threat to
discharge Baik for low production as an effort to intimidate
him. The fact was that he was among the lowest producers,
but the action taken by Kawano was unusual. Despite his
assertions that he spoke to other employees about produc-
tion, Kawano offered no credible examples of similar treat-
ment of other employees. Kawano then turned to talking
about supervisors and the number of positions he had avail-
able and could award, presumably to cooperative employ-
ees. While this inducement is heavily veiled, it is apparent
that if Baik had then and there abandoned his unionizing,
he could have expected some economic advantage.
On December 15 Baik was again summoned to Kawano's
office. As I have found, Kawano demanded that Baik resign
because of what Kawano believed was a further violation of
the Company's no-solicitation rule. He apparently had been
informed that Balk had passed out a card somewhere in the
plant, probably in the employees' locker room, and, count-
ing back, figured that Baik was warned for the first time at
the general meeting on October 28 and for the second time
in Sartini's office on November 18. This was the third warn-
ing, and I find that Kawano, in order to avoid possible
embarrassment by referring the matter to the Disciplinary
Committee, tried to force a resignation. I find that both the
warning and the demand for Baik's resignation are viola-
tions of Section 8(a)(I) of the Act.
Frustrated by Baik's refusal to resign, Kawano turned
the matter over not to the Disciplinary Committee alone
but to a joint meeting of that body and the Employees'
Committee. By this move" Kawano clearly wanted to enlist
the support of the most popular employees in the plant in
administering the coup de grace to Baik. Kawano's frustra-
tion was compounded by the failure of the joint committees
to come to a resolution of the problem and a recommenda-
tion for action against Baik, but despite his anger, which
displayed to Manshio on hearing of the decision, or lack of
decision, he let the matter drop.
The General Counsel has alleged that Respondent dis-
criminatorily manipulated Soong Baik's production bonus
figures for the three times that he was called away from his
work, twice, on December 8 and 15, 1977, to confer with
Kawano, and on December 16 when he attended that joint
meeting of the Disciplinary and Employees' Committees.
This allegation is based upon assumptions which the
General Counsel has made, but it does not appear to me
that these assumptions are supported by a preponderance
of credible evidence. The first of these derives from Baik's
protest to his supervisor, Bob Smith, after his December 8
meeting with Kawano, that his bonus rating for that date
was unusually low. General Counsel also refers to what he
describes as low bonus ratings on December 15. However,
General Counsel has not introduced any evidence of other,
comparative, production figures which would allow me to
make a determination of what is "low" and what is "high."
For example, if Baik produced 156,000 feet on December 8,
I have no way of knowing from this record what the pro-
duction records of others were on that date or whether his
bonus rating of 59 percent on that date was inconsistent
with the bonus ratings of others." Further, the evidence is
undisputed that other employees who served on the com-
mittees set up by Respondent were paid their hourly rate
for meetings with company officials, as was Baik, but since
they did not produce while at those meetings, they were not
awarded production credits.
The second assumption raised by General Counsel is
based on the fact that Baik was not paid for the 1/2 hour
before his shift started that constituted a part of the time he
spent at the joint committees' meeting on December 16. To
be sure, the members of the two committees were paid for
the time they spent on committee business, including pre-
mium pay if these duties took them beyond the ends of their
shifts. But there is no evidence that anyone else was paid
overtime for time spent in dealing with, rather than partici-
pating in the deliberations of, these bodies.
The third assumption raised by General Counsel is based
on testimony by Manshio to the effect that Kawano stated
at a meeting in April 1978, that supervisor John Quezon
had been fired for falsifying Baik's production records.
Aside from the fact that I have previously found the attri-
bution of that statement to Kawano to be extremely doubt-
ful, I further note that Quezon was not Baik's supervisor,
and his initials or endorsements do not appear on the pro-
duction cards offered in evidence. Thus, even if the state-
" None of the members of either committee protested or even commented
on the procedure, despite the fact that the two committees possessed inter-
locking memberships.
3 In view of this lack of evidence. I do not find it necessary to delve
further into Respondent's bonus system
1243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment were made by Kawano, there is no evidence that can
tie the activities of Quezon with the alleged discrepancies in
December 1977.
Thus, as noted above, I find that General Counsel has
not established his premise that Respondent discriminated
against Baik by depriving him either of hourly pay or in-
centive pay. Indeed, such a conclusion would run contrary
to Respondent's pattern shown in this record of handling
Baik very, very carefully. Manshio's testimony shows the
feeling among employees who were handed suspensions by
Respondent in March 1978 while they claimed, with what
they felt was justification, that Baik's record was worse, but
he was not disciplined. These facts indicate that if there was
any disparate economic treatment in the period from De-
cember 1977 to June 1978, such treatment was more favor-
able to Baik than unfavorable.
Beneath this outward calm, the evidence shows that
Baik's activities continued to disturb and anger Kawano.
The interrogation of McMillon late in March; the solicita-
tion of grievances from McMillon, Jones, and others on
April 3 the statement to Manshio late in March that Ka-
wano would "take care of' Baik when the unfair labor
practice charges were settled; and Kawano's anguished
complaint to Manshio and the surviving members of the
Employees' Committee in April that the committee had
been totally ineffective, that they had done nothing for the
Company, and that Baik was still passing out cards all
make it clear that Kawano's anger and frustration over
Baik's union activities continued unabated despite a mora-
torium on overt approaches to Baik after December 16.
Coming, then, to the circumstances of Baik's discharge,
for the most part I rely on Baik's credible and undenied
testimony concerning those circumstances. It is clear from
this testimony that his attitude toward his obligations to
Respondent was somewhat casual. He knew before he left
for Korea that his return reservation on June 12 was tenta-
tive, and he did not notify the Company of this, perhaps
assuming that the rather indefinite period of his leave of
absence would suffice to cover a day or two, or three, at its
conclusion." Baik did attempt to notify the Company
through the Korean airline of his tentative arrival and did
attempt to secure earlier reservations, but both attempts
were unsuccessful.
But what I find most unusual about Baik's handling of
his proposed return to work is the fact that he did not try to
contact the Company sooner when he finally got back on
June 13, a Tuesday. To be sure, he was exhausted from a
24-hour flight, but in response to supervisor Max Tosino,
he stated that he would return not that day or the next, but
on Thursday, June 15. If Baik had been fired for that, I
might be tempted to reach a different conclusion, but it
does not appear from the evidence that such was the case.
Kawano testified that Baik was fired because of a company
rule that employees are terminated if they do not return on
37 I specifically find that the leave granted by supervisor Bob Smith to Baik
was "about two or three weeks," and was not limited as noted in Smith's file
memorandum. If there were discrepancies in communication between Smith
and Kawano, these were not explained on the record, and Baik's testimony is
undenied on that subject.
the first day following the expiration of the leave. Baik was
discharged for violating this rule.3"
It is evident from this record that the "rule" relied upon
by Respondent to justify its discharge of Baik did not, in
fact, exist. The record does show that the employees' hand-
book provided for discharge after 3 days' absence without
proper excuse. The handbook did not specifically mention
leave of absence, so it must be assumed that the general rule
applied as well to leaves as to mere failure to report to
work. If the new employee work rules developed with the
help of the Disciplinary Committee in December and Janu-
ary contained a different rule, there is no evidence in this
record of its existence.
In practice, Respondent's handling of this kind of situ-
ation appears to be at least as casual as Baik's own attitude.
They only example of another employee in a similar situ-
ation was the case of one Luis Sandoval, who, according to
Controller Harvey Lemovitz, was discharged in May 1977
for overstaying a leave by 5 days. This action is at variance,
as noted above, with the employees' handbook and differs
also from Kawano's testimony that employees are termi-
nated after the first day. Kawano was unable to furnish any
examples of employees whose cases were handled under his
version of the rule, and in all the circumstances I cannot
credit his testimony, unsupported even by Lemovitz, the
only other company official to testify on this subject.
Thus I find that Respondent's policy with respect to em-
ployees returning from leave, if it had any policy at all, was
to permit at least 3 and possibly 5 days of grace between the
expiration of the leave and the requirement that the em-
ployee either return or furnish some legitimate excuse. This
kind of informal approach is consistent with Respondent's
practice, as admitted by Kawano, of allowing extended
leaves of absence of 4 to 6 weeks. The latter policy, as
pointed out by General Counsel, surely would have a
greater impact on production than would Baik's continued
absence for I or 2 days.'"
The treatment of Baik was, then, at variance with Re-
spondent's somewhat vague policies ° and, from all the evi-
dence, is logically understandable only in the light of Re-
spondent's reactions to Baik's union activity. From
Kawano's immediate reaction to Baik's initial card distribu-
tion in October to the summoning of employees to solicit
grievances to the establishment of the Disciplinary Com-
mittee and the recognition of and negotiation with the Em-
ployees' Committee, there runs a continuous thread of ref-
erence to Baik and his continuing actions. This, coupled
with the treatment of Baik, by means of threats and veiled
inducements to discontinue his activities, culminating in the
n I do not accept General Counsel's argument that Respondent advanced
shifting and inconsistent reasons for Baik's discharge. Sartini and Kawano
said a great deal about Baik's productivity and his absentee record, but at no
time did they claim that he was fired for those reasons.
t9 Even if Respondent was especially concerned with the effect of Baik's
absence on its total production, which does not appear from this record. Baik
was admittedly one of the lowest producers and was spoken to on one occa-
sion on this subject.
i0 Another variance from established policy is shown by the fact that Ka-
wano went to the expense of using a special messenger service to make sure
that Baik received his discharge letter. This is further evidence of Respon-
dent's particular concern for Baik and its unique response to his situation in
June 1978.
1244
AMERICAN TARA CORPORATION
anger and frustration demonstrated by Kawano in his final
meeting with the Employees' Committee in April 1978 to
the effect that after all he had done. Baik was still out there,
organizing, leads inescapably to the conclusion that Ka-
wano had determined that all these other devices had
failed, and, when the first opportunity presented itself he
himself would rid the Company of Baik once and for all.
I therefore find that Baik would not have been dis-
charged if it had not been for his continuing activities on
behalf of the Union4 ' and that he was discharged in viola-
tion of Section 8(a)(3) of the Act. N.L.R.B. v. Tom Wood
Pontiac, Inc., 447 F.2d 383 (7th Cir. 1971); N.L.R.B. v.
Long Island Airport Limousine Corp., 468 F.2d 292 (2d Cir.
1972): N.L. R.B. v. Wal-Mart Stores, Inc., 488 F.2d 114 (8th
Cir. 1973); N.L.R.B. v. Circle Binden,, Inc., 536 F.2d 447
(Ist Cir. 1976).
IV. THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(1), (2). and (3) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom, and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Since I have found that Respondent unlawfully dis-
charged Soong Baik. I will therefore recommend that Re-
spondent offer Baik his former job or, if that job no longer
exists, a substantially equivalent job, without prejudice to
his seniority and other rights and privileges. and make him
whole for an), loss of earnings suffered by reason of the
discrimination against him by payment to him of a sum of
money equal to that which he normally would have earned,
absent the discrimination, less net earnings during such pe-
riod, with interest thereon to be computed in the manner
prescribed in F. W. Woolworth Compar'. 90 NLRB 289
(1950), and Florida Steel Corporation, 231 NLRB 651
(1977).42
Respondent will also be ordered to disestablish the Disci-
plinary Committee and to cease rendering unlawful aid and
assistance to the Employees' Committee.
It will further be recommended that Respondent preserve
and make available to the Board, upon request, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary and
useful to determine the amounts of backpay due and the
rights of reinstatement under the terms of these recommen-
dations.
CONCLUSIONS OF LAW
I. American Tara Corporation. American Carbon Pa-
per Division, is, and at all times material herein has been.
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
4 I do not find that the discharge of Baik was caused by the fact that he
had previously filed charges with the Board Indeed, Kawano's statement to
Manshio that he would "take care" o Baik after the charges he had filed
were settled indicates that Respondent was not about to handle Baik differ-
ently because he had filed those charges The evidence is overwhelming that
Respondent's problem with Baik was his continuing union activity.
42See, generally Isis Plumbing & Hearing Co., 138 NLRB 716 (1962).
2. Miscellaneous Warehousemen, Airline, Automotive
Parts, Service, Tire & Rental, Chemical & Petroleum, Ice,
Paper & Related Clerical and Production Employees Local
781, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
is, and at all times material herein has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. This Disciplinary Committee is, and at all times ma-
terial herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
4. The Employees' Committee is, and at all times mate-
rial herein has been, a labor organization within the mean-
ing of Section 2(5) of the Act.
5. By interrogating employees and by soliciting griev-
ances from an individual employee and from groups of em-
ployees, Respondent violated Section 8(a)(1) of the Act.
6. B threatening loss of overtime, stricter enforcement
of discipline, termination of aliens, and denial of benefits
and by threatening to close its Chicago plant, Respondent
has violated Section 8(a)(1) of the Act.
7. By instituting a new no-distribution, no-solicitation
rule at the beginning of a union organization campaign and
by discriminatorily enforcing such rule, Respondent has
violated Section 8(a)( 1) of the Act.
8. By promulgating, implementing, and discriminator-
ily enforcing an overly broad no-distribution, no-solicita-
tion rule, Respondent has violated Section 8(a I) of the
Act.
9. By establishing, assisting, dominating. and interfer-
ing with the Disciplinary Committee, Respondent has vio-
lated Section 8(aX2) and (1) of the Act.
10. By recognizing and bargaining with and by provid-
ing financial and other assistance to the Employees' Com-
mittee, Respondent has violated Section 8(a)(2) and (1) of
the Act.
11. By interrogating and coercing Soong Baik and sin-
gling him out for warnings and demands for his resignation
because of his union organizing efforts, Respondent has vio-
lated Section 8(a)(1) of the Act.
12. By discharging Soong Baik because of his activities
on behalf of the Union, Respondent has violated Section
8(a)(3) and (1) of the Act.
13. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
14. Respondent did not violate the Act in any other
manner.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER"
Respondent, American Tara Corporation, American
Carbon Paper Division, Chicago, Illinois, its officers,
agents, successors, and assigns, shall:
4 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall. as provided n Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions. and Order, and all objections thereto shall be deemed
waived for all purposes.
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Interrogating employees concerning their union ac-
tivities or the union activities of other employees.
(b) Soliciting grievances from individual employees or
groups of employees in order to interfere with their free
choice of a bargaining representative.
(c) Threatening employees with loss of employment, re-
duced benefits, loss of overtime, and plant closure.
(d) Dominating and interfering with the establishment
and administration of the Disciplinary Committee or any
successor thereto, or any other labor organization or assist-
ing or supporting such labor organization.
(e) Rendering financial aid or any other form of assist-
ance to the Employees' Committee or any successor
thereto, or any other labor organization, or assisting or sup-
porting such labor organization.
(f) Giving effect to and discriminatorily enforcing any
no-solicitation and no-distribution rule which is unlawful
on its face or is enforced in a discriminatory manner.
(g) Discharging employees because they engage in union
activity.
(h) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Withhold all recognition from, repudiate, and com-
pletely disestablish the Disciplinary Committee and any
successor thereto.
(b) Withdraw recognition and all financial or other aid
from the Employees' Committee and any successor thereto.
(c) Offer to Soong Baik immediate reinstatement to his
former or a substantially equivalent position and make him
whole in the manner described above in the section entitled
"The Remedy."
(d) Post at its Chicago, Illinois, facility, copies of the at-
tached notice marked "Appendix."" Copies of such notice
on forms provided by the Regional Director for Region 13,
after having been duly signed by American Tara Corpora-
tion's authorized representative, shall be posted by Respon-
dent immediately on receipt thereof, and shall be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that such notices are not
altered, defaced, or covered by other material.
(e) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order what steps
have been taken by Respondent to comply herewith.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order of
the National L.abor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enlfircing an Order of the Na-
tional L.abor Relations Board.'
1246