Chef's Pantry, Inc.

National Labor Relations Board - Board Decisions

Mar 11, 1985

274 N.L.R.B. 775 (N.L.R.B. 1985)

CHEF'S PANTRY
Chef's Pantry, Inc. and United Food and Commer-
cial Workers District Union No. 346 , United
Food and Commercial Workers International
Union , AFL-CIO-CLC. Cases 9-CA-16368-1
and 9-CA-16705
11 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 8 September 1982 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Respondent filed exceptions 1 and a supporting
brief, the General Counsel filed limited cross-ex-
ceptions, a supporting brief, and an answering brief
to the Respondent's exceptions, and the Charging
Party filed a brief in response to the Respondent's
exceptions and in support of the General Counsel's
cross-exceptions and brief.2
The Board has considered the decision and
record in light of the exceptions, cross-exceptions,
and briefs and has decided to affirm the judge's rul-
ings,, findings,3 and conclusions to the extent con-
sistent with the Decision and Order.4
The judge found that the Respondent violated
Section 8(a)(5) of the Act by refusing on or after
15 January 1981 to bargain with the Union as the
exclusive collective-bargaining representative of
the employees in the appropriate unit. He further
found that the Respondent committed additional
violations of Section 8(a)(5) by the unilateral
changes it made in the employees' terms and condi-
tions of employment, without notice to or consulta-
tion with the Union, on or after 10 November 1980
(the date on which the Union won the representa-
tion election). These changes included rescinding
the use by its employees of the kitchen and food
t The Respondent has requested oral argument The request is denied
as the record , exceptions , and briefs adequately present the issues and the
positions of the parties
8 The Charging Party contends that the routine 8(a)(3) and (5) order is
not appropriate in this case and that the Respondent should be ordered to
reimburse the Charging Party for organizing costs and litigation expenses
it incurred as a result of the Respondent 's illegal conduct We find that
the facts in this case do not warrant such a remedy
a The Respondent has excepted to some of the judge 's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
I The judge failed to require the Respondent to expunge from its
records any reference to the unlawful discharges found herein Our
Order shall include the direction that the Respondent expunge any such
reference from its records, including the personnel files of employees Mi-
chael Slatzer and Marshall Farmer
We conclude that the Respondent's egregious and widespread miscon-
duct demonstrates a general disregard for its employees ' fundamental
statutory rights and warrants a broad order Hickman Foods, 242 NLRB
1357 (1979)
77 5
storage facilities, prescribing a new system of com-
pulsory overtime, and implementing a new rule re-
quiring medical certificates from employees who
are absent from work due to illness. In addition,
the judge found that the Respondent violated Sec-
tion 8(a)(3) by discharging employees Michael
Slatzer and Marshall Farmer5 for engaging in pro-
tected union activity. We agree with the judge's
conclusions concerning all of these violations6
except that concerning the system of compulsory
overtime. In addition, we agree, for reasons stated
below, with certain of the General Counsel's and
the Charging Party's contentions that the judge
erred in dismissing allegations that the Respondent
committed additional violations of Section 8(a)(3).
A. Dismissal of Violations of Section 8(a)(5)
Contrary to the judge, we do not find that the
Respondent violated Section 8(a)(5) of the Act by
prohibiting employees from leaving their jobs
unless they had completed their work or obtained
the permission of their supervisors.7 The Respond-
ent's action did not change an established term and
condition of employment. Accordingly, the Re-
spondent was not obligated to bargain over this
matter with the Charging Party.
It is undisputed that on 21 and 24 November
1980 the Respondent posted notices to employees
stating that they were not to leave work unless
they had completed their job assignments or ob-
tained the permission of their supervisors. While
employees Slatzer and Allen testified that the Re-
spondent had no prior policy of requiring employ-
ees to work overtime, the judge relied instead on
5 We have found below that the Respondent unlawfully transferred
employee Farmer from his position as assistant to the plant supervisor to
working on the dock Thus , we shall order the Respondent to reinstate
Farmer to the position from which he was removed on 24 November
1980 because of his union activities
8 The General Counsel excepts to the judge's failure to find that the
violations of Sec 8 (a)(5) are also violations of Sec 8 (a)(3) We find it un-
necessary to pass on this exception , as the remedy would not be affected
The General Counsel and the Charging Party except to the judge's
failure to pass on and find the 8 (a)(5) allegation in the complaint based on
the Respondent 's failure to bargain with the Union prior to effecting the
rule in January 1981 requiring night-shift employees to submit memoran-
da justifying the necessity for overtime We find meat in this exception
The record establishes that, before January 1981 , night-shift employees
worked overtime as required by the job with no explanation required It
is undisputed that the January rule requiring written memoranda to justi-
fy overtime was implemented without prior notice to or consultation
with the Union As a change in rules concerning overtime constitutes a
change in "wages , hours and terms and other conditions of employment,"
as defined in Sec 8(d), the Respondent 's unilateral implementation of the
new rule violates Sec 8(a)(5)
The judge found that the Respondent violated Sec 8(a)(5) by stating
in a 21 November notice that employees were not to leave work without
permission from their supervisors until they finished the job they were
working on This statement was repeated in a 24 November memo con-
cerning shift changes The judge failed to pass on the alleged unlawful
statements in the 24 November memo As set forth below, we find noth-
ing unlawful in either memo
274 NLRB No. 117
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the testimony of Supervisor Bennis that the Re-
spondent's practice before November 1980 was to
require employees to stay on the job and work
overtime if their remaining job duties could be ac-
complished in a relatively short period of time.
While the judge found that "[t]he testimony of the
employees is that there are times when it is an in-
convenience to be compelled to remain for an ex-
tended overtime period in all circumstances," the
record reveals no evidence that any employee was
ever required to work any "extended" overtime.
Nor was there evidence presented that employees
have generally worked more overtime since the
posting of the notices.
It is thus clear that the record will not support a
finding that the Respondent has applied a new
policy as to overtime. Further, while the language
of the Respondent's notices to employees specifi-
cally requires that employees obtain supervisory
permission before leaving unfinished work, such a
requirement is consistent with, and comprehended
within, the previously existing discretion of super-
visors to require completion of those job duties
which could be performed in a relatively short
period of time. For these reasons, we do not find
that the Respondent's 21 and 24 November 1980
notices to employees changed established condi-
tions of employment and, accordingly, we dismiss
this allegation of the complaint.8
The General Counsel and the Charging Party
contend that the judge erred in dismissing the alle-
gations that the following changes violated Section
8(a)(5): (1) on 3 December 1980, the Respondent
issued a notice which informed employees that
they could make and receive telephone calls only
during their work breaks and restricted their in-
coming calls during work to emergencies; (2) on 16
January 1981, the Respondent instituted a rule re-
quiring that employees clock out when use of the
restroom would involve "in excess of 2 or 3 min-
utes"; (3) on 1 January 1980, the Respondent con-
verted a 2-day employee holiday to a single-day
holiday with an additional day of personal leave to
be taken later in the year. We agree with the judge
that these changes are not unlawful.
While we disagree with the judge's characteriza-
tion of the Respondent's 3 December memo re-
8 Member Dennis dissents from the majority's finding that the Re-
spondent did not violate Sec 8(a)(5) of the Act by posting notices on 21
and 24 November which prohibited employees from leaving their jobs
unless they had completed their work or obtained permission While her
colleagues accurately state that there were times prior to the posting of
the notices when the Respondent required an employee to stay on the job
and work overtime if the job could be completed within a relatively
short period of time, they fad to note that this was not a fixed and bind-
ing obligation until the notices were posted Thus, in Member Dennis'
view, the notices transformed the nature of the work requirement and
constituted a unilateral substantive change in working conditions
stricting employee calls as trivial, we conclude that
the record does not support the finding of a viola-
tion here, where outgoing calls had been restricted
previously. Similarly, while we disagree with the
judge's characterization of the rule concerning use
of bathrooms as not warranting consideration, we
conclude that the record does not support the find-
ing of a violation inasmuch as employees had
always been required to clock in and out for nu-
merous breaks. Finally, with respect to the Re-
spondent's actions with regard to the 1980-1981
Christmas and New Year's holidays, we note that
the complaint alleges and the Respondent admits
that on or about 1 January 1981 the Respondent
withdrew 1 day of a "traditional"9 2-day employee
holiday and substituted a personal leave day in its
place. According to the uncontroverted testimony
of Supervisor Bennis, before 1978 or 1979 the Re-
spondent did not give 2-day holidays at Christmas
and instead permitted employees to take a single-
day holiday with credit for a day of personal leave
to be used at a later time . While Bennis recalled
that employees were permitted during the 1979-
1980 Christmas and New Year's holidays to take 2-
day holidays on consecutive days during the work-
week, there is no evidence that the Respondent's
actions took place pursuant to an announced
change in its holiday policies. Under these circum-
stances, we do not find that the evidence in regard
to the 1979-1980 holidays is a sufficient basis on
which to conclude that the Respondent maintained
a practice or policy of granting 2-day holidays
during the Christmas and New Year's holiday
season . As the Respondent's actions conformed to
its stated practice before the 1979-1980 holidays,
and did not result in the loss of holiday time by
employees, we conclude that the Respondent did
not change an established condition of employment
and was therefore not obligated to bargain with the
Charging Party before giving employees a single-
day holiday with a day of personal leave to be
used at a later time.
B. Additional 8(a)(3) Violations
Following the election on 10 November 1980,
the Respondent took action which was clearly in
violation of Section 8(a)(3) of the Act.
(1) On 5 December 1980, employee Slatzer, a
known union activist, received a written warning
for an error he made on 28 November 1980 in
stocking pizza. The error resulted in destruction of
some of the pizza by the night crew who could not
remove the product without breakage. Slatzer, in
9 The complaint does not further define the General Counsel's use of
the term "traditional " as applied to the holidays at issue
CHEF'S PANTRY
unrebutted testimony, asserted that some time prior
to the election he had made a similar stocking
error which caused destruction by the night crew
and he had not received a warning. In addition, on
22 January 1981, Slatzer received a warning for
being 5 minutes late to work. The warning noted
that Slatzer also had been 14 minutes late on 13
January 1981, and 6 minutes late on 6 January
1981. Slatzer testified that because he has to pass a
railroad crossing he was sometimes late, but that
prior to the election he had not received a warn-
ing. Further, John Bennis, the Respondent's plant
supervisor, testified that the Respondent's normal
disciplinary procedure was to give three verbal
warnings for minor infractions and that a written
warning was issued on the fourth infraction. When
asked for an example of a minor infraction, Bennis
answered coming in a few minutes late.
It is clear from the foregoing that the above in-
stances of misconduct would not have warranted a
written warning prior to the 10 November 1980
election.1 ° Accordingly, we find that because
Slatzer's efforts on behalf of the Union, both
during its organizing campaigns and after the 10
November election, were well known to the Re-
spondent and the warnings the Respondent issued
to Slatzer on 5 December 1980 for the stocking
error, and on 22 January 1981 for tardiness, were
contrary to its usual disciplinary policy, these
warnings were in response to Slatzer's union activi-
ties and thus violated Section 8(a)(3) of the Act.
(2) The General Counsel alleges that employee
Farmer, another known union activist, received
written warnings from the Respondent as a result
of his union activities. The warnings were issued
on 16, 20, and 21 January 1981, ostensibly for
Farmer's misuse of the plant telephone. The warn-
ings issued on 16 and 20 January resulted from the
many calls Farmer made to the Respondent's San-
dusky office in which he sought information con-
cerning the employees' company-paid insurance
program in preparation for expected contract nego-
tiations. The 21 January warning was issued to
Farmer for using the telephone in the plant garage
for a nonbusiness call
With respect to the 16 and 20 January warnings,
the record indicates that Plant Supervisor Bennis
suggested that Farmer call the Respondent's San-
dusky office for the insurance information and that
only after several calls to this office did Mel Safer-
stein, a Respondent representative, inform Farmer
that his information would not be available to him.
Thereafter, the Respondent issued a warning to
10 Although the fudge found that the Respondent unlawfully dis-
charged Slatzer 5 months after the election, he failed to evaluate these
warnings in light of the election and the Respondent's past practice
777
Farmer for making excessive telephone calls, and
at Saferstein's insistence a second warning was
issued to Farmer because of the same incident. As
to the 21 January warning, Farmer testified that he
made the call from the plant garage after he
checked out for the day, that no one was waiting
to use the telephone, and that prior to that warning
there had been no restriction on the use of the
garage telephone. Farmer's testimony is unrebutted.
We conclude, therefore, that it was the Respond-
ent's failure to cooperate, and not misuse on Farm-
er's part, which was responsible for the large
number of calls Farmer made to the Sandusky
office in his unsuccessful attempt to get information
about the employees' insurance plan, i i and that
until the Respondent issued the warning to Farmer
there had not been a rule restricting the use of the
garage telephone. Accordingly, we find that the
written warnings issued to Farmer on 16, 20, and
21 January 1981 resulted from Farmer's efforts on
behalf of the Union and violated Section 8(a)(3).
(3) The General Counsel further alleges that the
Respondent's discriminatory conduct toward
Farmer was not limited to the above-described
warnings, and that his union activities were also re-
sponsible for his reassignment from training for a
supervisory position to working on the dock. The
judge failed to address this issue in his decision.
According to the record, prior to the 10 November
1980 election, Farmer worked directly with the
plant supervisor, and the training he received in
that capacity, particularly in inventory control,
placed him under consideration for supervisory po-
sitions at some of the Respondent's other facilities.
However, 2 weeks after the 10 November election,
Farmer's working hours were changed, and he was
reassigned to work on the dock. The Respondent
has provided no explanation for its reassignment of
Farmer. Thus, in light of the absence of such an
explanation, together with Farmer's notoriety as a
union activist and the closeness of the date of
Farmer's reassignment to the date of the election,
we are compelled to conclude that it was his con-
nection with the Union that was the true explana-
tion for Farmer's reassignment. Accordingly, we
find that the Respondent's reassigning Farmer from
assisting the plant supervisor to working on the
dock violated Section 8(a)(3) of the Act.
(4) The General Counsel alleges that the Re-
spondent violated Section 8(a)(3) on 17 March 1981
by issuing a "Notice-Warning" to six employees in
the bargaining unit admonishing them to start their
1' We note that to the extent the judge considered these matters, he
failed to evaluate them in connection with the election and preparations
for expected negotiations
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work on time and not to disturb other employees
who were working, and threatening them with dis-
ciplinary action for infraction of these rules. The
judge concluded that the warning merely informed
employees that "working time is for work" and as
such did not rise to the level of a violation of the
Act. The wording of the notice supports this con-
clusion. However, the means by which the Re-
spondent disseminated its message belies an inno-
cent purpose. Although there is no evidence in the
record that these six employees were guilty of
wrongdoing with respect to the rules set out in the
"Notice-Warning," the Respondent first issued
these warnings individually to each of the six em-
ployees and placed copies in the employees' per-
sonnel files. When Michael Slatzer, who had been
designated shop steward, questioned Bennis on the
reason for the warnings, Bennis conceded that
there was no justification for the warnings being
placed in the employees' personnel files. Then and
only then were the warnings removed from the
employees' files, and the "Notice-Warning" was
posted on the plant bulletin board. Since there ap-
pears to have been no justification for the issuance
of these warnings, we find, in agreement with the
General Counsel, that the Respondent's purpose in
issuing them was to punish the six employees be-
cause the bargaining unit 12 had selected the Union
as its bargaining representative, and that by such
conduct the Respondent violated Section 8(a)(3) of
the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Chef's Pantry, Columbus, Ohio, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with United
Food and Commercial Workers District Union No.
346, United Food and Commercial Workers Inter-
national Union, AFL-CIO-CLC as the exclusive
representative of the employees in the following
appropriate unit:
All freezer employees employed by the Re-
spondent at its Columbus, Ohio, facility, in-
cluding the shuttle driver, but excluding the
sales servicemen, advance salesmen, swingmen,
telephone salesmen , all office clerical employ-
ees and all professional employees, guards and
supervisors as defined in the Act.
12 We note that the warning was directed to six employees in a bar-
gaining unit of nine and that included among the six employees were
Farmer and Slatzer, who the judge found were discriminatorily dis-
charged
(b) Unilaterally depriving its employees of previ-
ously enjoyed kitchen and food benefits.
(c) Unilaterally establishing a new rule requiring
employees to submit memoranda justifying over-
time work.
(d) Unilaterally establishing a new rule requiring
medical certificates of all employees absent from
work because of illness.
(e) Unilaterally instituting a new rule prohibiting
employees from receiving compensation for work
performed during their off-hours from truckdrivers
delivering merchandise to the Respondent's facility.
(f) Discouraging membership in the above-named
labor organization of its employees by discharging
employees, or by transferring employees to a less
desirable position, and by more stringently enforc-
ing the tardiness rules, work rules, and rules with
respect to telephone calls against employees be-
cause of their membership, support, or activities on
behalf of the above-named Union.
(g) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights to self-organization, to form, join, or
assist the above-named labor organization or any
other labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid
or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Recognize and, on request, bargain collec-
tively with the Union, as the exclusive bargaining
representative of the employees in the appropriate
unit described above, with regard to wages, hours,
and other terms and conditions of employment and,
if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Offer to Michael Slatzer immediate and full
reinstatement to his former position, and to Mar-
shall Farmer immediate and full reinstatement to
the position he held before his transfer about 24
November 1980 or, if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed.
(c) Make whole Slatzer and Farmer for any loss
of earnings which they may have suffered by
virtue of the discrimination against them. Backpay
shall be calculated in accordance with F W. Wool-
worth Co., 90 NLRB 289 (1950), plus interest as
computed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962).
CHEF'S PANTRY
(d) Rescind the disciplinary warnings given to
Marshall Farmer on 17 December 1980, 16, 20 and
21 January 1981 and to Michael Slatzer on 5 De-
cember 1980 and 22 January 1981, and expunge
from their personnel and other records all refer-
ences to these warnings and notify Marshall
Farmer and Michael Slatzer in writing that this
action has been taken.
(e) Remove from the bulletin board at its Colum-
bus, Ohio facility the disciplinary notice placed
there on 17 March 1981.
(f) Expunge from personnel and other records all
references to the discharges of Michael Slatzer and
Marshall Farmer on 7 April 1981.
(g) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, 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.
(h) Post at its Columbus, Ohio place of business
copies of the attached notice marked "Appen-
dix."13 Copies of the notice , on forms provided by
the Regional Director for Region 9, after being
signed by the Respondent 's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered , defaced,
or covered by any other material.
(i) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
13 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join, or assist any union
779
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain with United
Food and Commercial Workers District Union No.
346, United Food and Commercial Workers Inter-
national Union , AFL-CIO-CLC as the exclusive
representative of our employees in the following
appropriate unit:
All freezer employees employed by the Re-
spondent at its Columbus , Ohio facility , includ-
ing the shuttle driver, but excluding the sales
servicemen , advance salesmen , swingmen, tele-
phone salesmen , all office clerical employees
and all professional employees , guards and su-
pervisors as defined in the Act.
WE WILL NOT unilaterally change conditions of
employment , without prior consultation with the
above-named Union , by depriving our employees
of previously enjoyed kitchen and food facilities,
by establishing a new rule requiring medical certifi-
cates of all employees absent because of illness, or
by unilaterally establishing a new rule requiring
employees to submit memoranda justifying over-
time work.
WE WILL NOT discourage membership in the
above-named Union by discharging any of our em-
ployees, or by transferring any of our employees to
a less desirable position, and by more stringently
enforcing the tardiness rules, work rules, and rules
with respect to telephone calls against employees,
because of their membership , support, or activities
on behalf of the above -named Union.
WE WILL NOT in any other manner interfere
with , restrain , or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request , bargain col-
lectively with the Union, as the exclusive bargain-
ing representative of the employees in the appro-
priate unit described above, with regard to wages,
hours, and other terms and conditions of employ-
ment and , if an understanding is reached , embody
such understanding in a signed agreement.
WE WILL rescind the disciplinary warnings given
to Marshall Farmer on 17 December 1980, and 16,
20, and 21 January 1981, and to Michael Slatzer on
5 December 1980 and 22 January 1981, and ex-
punge from personnel and other records all refer-
ences to these warnings and notify Marshall
Farmer and Michael Slatzer in writing that this
action has been taken.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL remove from the bulletin board at our
Columbus, Ohio facility the disciplinary notice
placed there on 17 March 1981.
WE WILL expunge from personnel and other
records all references to the discharges of Michael
Slatzer and Marshall Farmer on 7 April 1981.
WE WILL offer to Michael Slatzer immediate and
full reinstatement to his former position, and to
Marshall Farmer immediate and full reinstatement
to the position he held before his transfer about 24
November 1980 or, if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or
privileges previously enjoyed.
WE WILL make Michael Slatzer and Marshall
Farmer whole with interest, for any loss of earn-
ings they may have suffered in consequence of our
unlawful discrimination against them.
CHEF'S PANTRY, INC.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held at Columbus, Ohio, on
June 15 and 16, 1982, on separate complaints of the Gen-
eral Counsel against Chefs Pantry, Inc. (the Company or
the Respondent). The first complaint issued on February
6, 1981 (Case 9-CA-16368-1), upon a charge filed by
United Food and Commercial Workers District Union
No. 346, United Food and Commercial Workers Interna-
tional Union, AFL-CIO-CLC (the Union or the Charg-
ing Party). The second complaint (Case 9-CA-16705)
issued on June 9, 1981, upon a charge filed on April 17,
1981, by the same Union. The issues are whether the Re-
spondent violated Section 8(a)(1), (3), and (5) of the Act.
Briefs were filed after the close of the hearing by all par-
ties.
On the entire record, and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Chef's Pantry, Inc., an Ohio corporation, has an office
and place of business in Columbus, Ohio, where it is en-
gaged in the nonretail sale and distribution of frozen
food and related products. During the 12-month period
before issuance of the complaints, a representative
period, the Respondent in the course of its business sold
and shipped from its Columbus, Ohio facility products
and goods valued in excess of $50,000 directly to points
outside the State of Ohio. I find that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that United Food and Commercial Workers Dis-
trict Union No. 346 , United Food and Commercial
Workers International Union , AFL-CIO-CLC is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Case in Brief
Pursuant to a Decision and Direction of Election
issued on October 9, 1980 (Case 9-RC-13417), a Board
election was held among nine employees in the Respond-
ent's plant in Columbus, Ohio. The election took place
on November 10, the Union won, and the Board certi-
fied it as exclusive bargaining agent on January 2, 1981.
During that same month the Union asked the Company
to bargain with it but the Company refused. Also after
the election the Respondent made a number of changes
in the conditions of employment of the employees in-
volved in the bargaining unit, all called unfair labor prac-
tices in the complaint because the actions were taken uni-
laterally, i.e., without first bargaining with the Union as
the statute commands. In April the Respondents dis-
charged two employees who had been very active in the
Union's organizational campaign. The discharges are said
to have been in violation of Section 8(a)(3) of the Act.
B. Refusal to Bargain
In its first demand letter, dated January 7, 1981, Bobby
Ross, designating himself "Secretary-Treasurer District
Union No. 346," reminded the Respondent that the
Board had certified Union Food and Commercial Work-
ers, District Union No 346, and said the Union wished
to "enter into meaningful negotiations for a labor agree-
ment . . . after January 11, 1981." A second letter, dated
January 15, designated the same way, said, "Negotiations
should commence as soon as possible." The Respondent's
sole answer to those demands was that it was "not in a
position to consider bargaining negotiations . .. ."
I find that by refusing to bargain with the Union on
request the Respondent violated Section 8(a)(5) of the
Act. In its brief the Respondent articulates four defenses
to this part of the complaint. They are all without merit.
(1) It says the demand was made by a union other than
the one certified by the Board. The documents in evi-
dence clearly prove otherwise (2) The Respondent also
contends that the demand letter asks for "recognition"
only, and is not an "unequivocal demand for bargain-
ing." Again, the record does not support the assertion.
(3) The Respondent disputes the appropriateness of the
unit as found by the Board in its Decision and Direction
of Election. That matter is not litigable at this stage of
this proceeding.' (4) Finally, the Respondent argues that
because an earlier Board proceeding, involving an earlier
election held by the Board in 1978, was still in litigation,
the November 11, 1980 election which the Union won
must be ignored The argument misconceives fundamen-
I I find that the appropriate bargaining unit in which the Respondent
illegally refused to bargain is
All freezer employees employed by the Employer at its Columbus,
Ohio facility, including the shuttle driver, but excluding the sales
servicemen , advance salesmen , swingmen , telephone salesman, all
office clerical employees and all professional employees, guards and
supervisors as defined in the Act
CHEF'S PANTRY 781
tal Board law A union is entitled to a second election
after 12 months have passed since the first. To permit
earlier litigation, no matter what issues are raised there,
to frustrate the right of employees after such 12-month
period to prove majority status would be a denial of the
basic rights set out in this statute
C The Discharge of Two Employees
Michael Slatzer and Marshall Farmer worked on the
dock, where food in large quantities is received by truck
delivery and, in the warehouse freezer where it is stored
and then shipped out to customers Each had worked for
the Respondent for over 5 years, and each had been, ad-
mittedly, very "outspoken and visible" in trying to bring
the Union into the plant. Slatzer had been the Union's
observer in the 1978 election, had testified for the Union
in a prior unfair labor practice hearing before another
administrative law judge, had been with the Union's at-
torney at a Board hearing leading to the 1980 election,
and had acted as the Union's steward when employees
later had difficulties with members of management-
once persuading the Company to remove a reprimand
from the personnel file of an employee and once calming
a dispute arising from acrimony between another em-
ployee and a supervisor Farmer, too, testified against the
Respondent in the earlier unfair labor practice proceed-
ing, and acted as the Union's observer at the 1980 elec-
tion
On the morning of April 6, 1981, there arrived a large
semitrailer full of chickens for delivery to the Company
It was an unusually large load-1000 trays, 1000 boxes
or 10,000 pounds of food-the record is ambiguous as to
exactly how much it was, with the witnesses using con-
flicting phrases. But clearly it was greater than the usual
loads that come A question arose as to how to get the
chickens off the truck and into the warehouse. The
upshot was that the driver-an hourly paid employee of
a trucking company-agreed to pay Slatzer and Farmer
$100 to do the necessary work either after their regular
hours with the Respondent, or early the next morning
before they went on the clock in their regular employ-
ment Donald Craine, the plant manager, heard about the
arrangement and told Slatzer and Farmer they should
not do that, should not take any money from the driver,
should do whatever was necessary on the Company's
time instead They did as they were told and the chick-
ens were processed into the warehouse that day At the
end of their shift the next day both men were summarily
fired The complaint alleges they were discharged in re-
taliation for their prounion activity. In defense, the Re-
spondent contends they were sent away only because
they had agreed to accept money from that driver.
Before considering the merits of either side of the
issue, it is necessary to make clear what is a recurring
problem that arises at this unloading platform, or dock
The arriving food is most times stacked in containers-
called pallets or boxes or whatever-that can be raised
by forklift carriers which are pulled or rolled off the
truck, onto the dock, and straight into the warehouse for
storing At times, however, the food does not come so
arranged, instead it is either lumped together inside the
truck, sometimes called "on the floor," or placed in
many small trays or pallets that cannot be transferred to
the forklifts These are called throw away pallets. In
such cases, the contents must all first be transferred to
acceptable pallets or trays that are then placed on 'the
company lifts or carriers for movement into the ware-
house. This sometimes necessary operation was referred
to at the hearing as "repalletizing." Depending on the
size of the shipment or the kind of product, this neces-
sary work can take only an hour or two, but sometimes
4 or 5 hours for more than one man
When all that has to be done is unloading the truck,
the driver does part of the work and the Respondent's
employees on the dock, to the extent that they had the
time, help him unload. They actually go into the truck to
forklift the correctly stacked food This record shows,
despite the vague and oblique words of the two supervi-
sors who testified for the Respondent, that when repal-
letizing is necessary, it is the essential burden of the
driver, or the shipping company that sends him, to see
that cargo is correctly stacked or is put on pallets that
can be brought into the warehouse. And it was this kind
of load that arrived at the dock that April 6 morning.
John Bennis was for several years the direct supervisor
at the dock over these men. He tried to make the point
that the repalletizing work that had to be done on that
one truck cargo was in fact a duty for which the Re-
spondent paid Slatzer and Farmer. In his direct examina-
tion, when called early in the hearing by the General
Counsel, Bennis was evasive and not at all clear. Asked
was it "primarily the driver's responsibility" to do the re-
palletizing, he answered, "Not necessarily " Asked again
could the driver just stand by and do nothing about the
needed repalletizing, Bennis said, "If that's the way it's
contracted between our company and his company,"
which happens, he added, "In some cases." Continuing
with his testimony. "Q How do you determine which
case is contracted that way? A It's right on the bill of
lading " Not only was the contract underlying this par-
ticular delivery not produced, but no such contract for
any delivery was offered in evidence. Bennis was not
telling the truth. From his later testimony:
Q Okay Now, isn't it a fact, Mr Bennis, that on
numerous occasions drivers have come to the distri-
bution center with full loads on the floor of the
truck and complained that they were too tired to
unload them and they had been required to just pull
the trucks away because your people weren't going
to do it?
A That has happened.
From his prehearing affidavit:
Some of the loads coming in are full loads; some
part. On a partial load which is on the floor, not on
pallets, it is the driver of the truck responsibility to
get the product on our back door and on our pallet
where our forklift operator will put it up and bring
it in . When we have a man available or when we
need to expedite unloading one of our people
[Farmer] would assist the driver Under normal cir-
cumstances this was the driver's responsibility
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Craine, the manager who said it was he who decided
to discharge the two men, was the first witness called by
the General Counsel Repeatedly he said repalletizing
was the work of his dockmen and that he had never
heard of any of the Respondent's men being paid, either
on or off the clock, for doing the restacking at a driver's
request. But, again like his subordinate supervisor, Craine
then admitted that at an unemployment compensation
hearing after the two discharges, he made the following
statement: ". . . the primary responsibility for restacking
merchandise on acceptable pallets is that of the truck-
driver if the truckdriver brings it in on pallets which are
unacceptable " Craine also testified that a "lumper" is "a
person that hangs around receiving docks and he hires
himself out to help semi-drivers-help drivers unload
their trucks." Craine even said at the hearing that at the
request of the driver, Bennis, the supervisor, sometimes
calls "Manpower to send a man down to unload the
truck." If in truth the driver is not responsible for getting
the load properly on the dock, why should he ever hire
an outsider to do it?
Six employees, two still working for the Respondent
today, plus a former supervisor who was in charge of
this dock for several years, testified directly that the use
of dockmen like Slatzer and Farmer, to help repalletize a
load at the request of a driver and at the expense of the
driver, was a common occurrence up to the time of the
two discharges. When the testimony of Craine and
Bennis is appraised together with the rest of the testimo-
ny, the credibility of both management agents suffers
very badly. Craine even admitted that he knew of one
occasion before these dismissals when an employee of his
company while on the clock, was paid by a driver to re-
palletize a load. And Bennis admitted he once personally
called an employee at home, again at the request of a
driver, "to assist in the repalletizing of a load," and that
the driver paid the man for the work. I credit the em-
ployee witnesses and Ackley, the former supervisor over
the dockmen, and I find it a fact that, on occasion, with
the knowledge of Supervisor Bennis, at least, the dock-
men, certainly on their own time, were paid by outside
truck delivery drivers to repalletize loads.2 Certainly
Craine also knew it had happened before, for he admit-
ted as much. Did he also know it was a common prac-
tice? In all probability he did.
Be that as it may, we come to the incident on April 6.
When Tony Nave, the truckdriver, arrived he was tired
after driving a long distance . On learning the chickens
were not on acceptable pallets, he turned to Farmer for
help. According to Farmer, Nave said he was too tired
after driving all night and asked if anybody could help
him. Farmer suggested calling Manpower, or going to
the nearby bar for a lumper When Nave said he did not
want anybody from the bar, Farmer suggested he and
2 Called by the Respondent as the last witness , the following came
from Bennis
On one occasion, if I remember anything of that nature being said
and that was a passing comment, "What if this guy wants to pay us
for unloading your truck?" I said, "No We are going to unload it on
our time and on our clock " I said, "If you want to unload it for him
and it was a bluff, you get off the clock and he pays you, you get
back on the clock, you finish your shift and that's it "
Slatzer would help him but that it would have to be
"after work." Nave checked with his dispatcher by
phone and obtained approval for the arrangement
Apparently someone from the office of the shipper
who was sending the chickens telephoned Craine that
morning to complain about the $100 price, or maybe
about the idea of having to pay anybody for the repallet-
izing. Bennis, the supervisor, was on leave, and did not
return until the end of the week Craine then went to the
dock and talked to Slatzer and Farmer Just what the
three said in that conversation is stated differently by the
witnesses, but one thing is clear: Craine told the men
they should not accept money from Nave under any
conditions, and should instead do whatever work was
necessary, including all of the repalletizing, on the Com-
pany's time. Whatever they told Craine in justification of
what they had proposed to do, they obeyed the superior
and together proceeded to repalletize the entire load and
get it correctly into the warehouse before the day ended.
Both Slatzer and Farmer came in the next day and
worked a full shift as always. Craine went on to testify
that on Tuesday he consulted his superiors about the
matter, and that when they asked for his opinion, he ad-
vised discharging the men. More than once he stated un-
equivocally that the sole reason the men were dis-
charged, without advance warning, at the end of the
shift, was because they had arranged to accept the
money from the driver Bennis, their immediate supervi-
sor, had nothing to do with the decision; he was away at
the time. Only Craine and Nave testified for the Re-
spondent about what was said by the pertinent actors at
the time of the incident. In the light of all other relevant
factors, and what the two men told the manager when
they talked on Monday, can Craine be believed as to
what truly motivated him that day. I think not.
An insight as to the reason why Craine fired these two
men is revealed in major part in what was said by
Slatzer and Farmer, and by Nave and Craine, in more
than one conversation. When he first came to the dock
in the morning, Craine spoke to Nave, and then to the
two employees. Nave had already talked to Slatzer and
Farmer, and he talked with them again later during that
day. Also, in the afternoon, while complying with the
manager 's instructions to do the repalletizing on compa-
ny time, both men went to Craine's office to explain
again why what they had intended to do was not wrong,
did not violate a company policy, and had been openly
permitted by their supervisor, Bennis, in the past. In the
course of their testimony the witnesses were not always
precise as to which conversation they were at the
moment referring to. But since the decision to fire the
men was not made until the next day, April 7, it is of no
great moment just when things were said during April 6.
It is the thoughts that were exchanged that count.
Before the manager arrived on the scene, the dnver
was perfectly satisfied with the arrangement for payment
he had made, even though he called it "steep." He had
asked for help, he had found it, and things were going to
his satisfaction. It was only when Craine began to criti-
cize the dockmen for planning on taking any money
from the driver that Nave began to think ill of Slatzer
CHEF'S PANTRY
and Farmer. His testimony is ridden with belittling com-
ments, in an obvious attempt to portray the men as dis-
honest thieves. He admitted he did not really recall what
anybody said, yet kept mouthing offensive remarks
Wherever his story conflicts at all with that of Slatzer
and Farmer, I do not credit him. He said that his open-
ing complaint to Craine was that "your two men are
standing there at the table playing cards and messing
around," "that they weren't working." Again: "I just
went in to ask Mr. Craine how come the gentlemen
weren't working and holding me up." The fact is Slatzer
and Farmer were then on their break period. But these
statements by the driver show he was not upset by the
fact of payment at all Later, as he worked up his indig-
nation as a witness, came the following-
Q. What did you tell him [Crame]9
A. I said, "What's going on here?" I said, "It's a
union dock and the union man is getting x amount
of dollars per hour to work and then he goes up
and charges me a hundred bucks to do work that
wouldn't take a half hour to unload me and get me
back to the road again " I said, "It's a ripoff."
As a witness Craine argued much more than he spoke
plainly. Repeatedly he evaded direct answers, injected
oblique innuendoes, and more than once his earlier
signed statements contradicted his oral testimony. For
example- A number of times he tried to convey the
thought that the two men were scheming to get money
while still on the Company's clock. The question was
put directly: "Q.. . .. In deciding to fire him, was your
reason that you fired him wrongdoing on his part for
taking money from the trucking company while being on
your payroll, on your clock, or did you fault him be-
cause he had no right to do it even on his own time?
Which was it? A. For taking . . . . The reason he was
discharged is for jeopardizing the company with other
drivers" This sort of response from the man who took
sole responsibility for the discharge serves only to
damage his credibility all the more.
Four critical facts are clear on this record, because
they were stated directly by the two dockmen, and be-
cause, aside from diatribes and generalizations voiced by
the managers, all four of the facts were truly conceded
by the company witnesses Both Slatzer and Farmer told
Craine (1) that the work involved was repalletizing, not
just unloading the truck, (2) that they were going to do
it on their own and not while on the clock, (3) that simi-
lar work assignments had been carried out before with
direct payment by drivers, and (4) that their supervisor,
Bennis, always knew it and had permitted it. In both the
discharge entries made in the men's personnel files, and
in his statement to the unemployment compensation
hearing later, Craine wrote that the two were discharged
"for attempting to take money from a truck driver to
unload pallets without authorization from a supervisor "
But he also admitted, on the record, that "the money
was . . . for the purpose of repelletizing rather than un-
loading the pallets .. . ." Next: "Q Now, during your
discussions with Mr. Farmer and Mr. Slatzer about re-
palletizing that chicken, they both insisted they were
783
going to do it on their own time, did they not? A . That's
right ." Next - "Q Well, they did tell you that Mr. Bennis
allowed them to charge the drivers to repalletize the
work , didn ' t they? A. They said that they charged for it
in the past and they had always done it, and I was not
aware of anything like that going on." From Craine's in-
vestigation affidavit - " I said you guys both know we
don't charge to unload trucks Slatzer, I believe, said,
`We all do that ,' and that, `We 're doing what our super-
visors told us."'
I find , all things considered , that Craine discharged
Slatzer and Farmer on April 7, 1981, because of their
prounion activities and to weaken the Union 's strength
among these employees , and that thereby the Respond-
ent violated Section 8(a)(3) of the Act.
Craine was a principal witness for this same Company
at an earlier unfair labor practice proceeding before the
Board (Chefs Pantry, Inc., 247 NLRB 77 (1980)), was
discredited by the administrative law judge there, and
found by the Board to have committed acts of coercion,
against these same employees , violative of Section 8(a)(1)
of the Act He knew the work Slatzer and Farmer were
going to do was not going to be paid for by the Compa-
ny, and was to be performed on their own time They
obeyed him when he told them to do it without extra
pay. He also heard them say-when they came to his
office to explain the propriety of their action-that they
had often done it before and that their supervisor had ap-
proved the practice . Maybe Craine had no direct knowl-
edge of how often his dockmen had helped other drivers
discharge what definitely was a responsibility of the out-
sider, although I doubt that . But even so, a more under-
standable behavior , since he was dealing with employees
who had been perfectly acceptable for over 5 years,
would have been to wait until Bennis returned , at least
to ascertain whether they were telling the truth. Had he
really been incensed by what at the hearing he called
reprehensible behavior, he would have sent them off
then and there , or surely at the end of their shift that
Monday Instead he took another day to think about it.
Having waited I day, he could have waited 3 more until
Bennis returned . It is a matter of credibility. He stated
what his reason was; I do not believe him.
The prima facie case in support of the complaint with
respect to these two men is clear . Knowledge of their
outstanding union activities, set opposition to the union
movement by the Respondent as evidence by its earlier
unfair labor practices, and discharge for doing no more
than what they had been permitted to do in the past. In
the total circumstances , I have no doubt the Company
did not discharge Slatzer and Farmer as it did for the
reason advanced by Craine. And when "the stated
motive for a discharge is false, he [the administrative law
judge] certainly can infer that there is another motive.
More than that, he can infer that the motive is one that
the employer desires to conceal-an unlawful motive-at
least where, as in this case , the surrounding facts tend to
reinforce that inference ." Shattuck Denn Mining Corp. v.
NLRB , 362 F . 2d 466 (9th Cir. 1966).
After the election was held on November 10, 1980,
and the Union won a clear majority , the Respondent
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued to operate its business as it always had.
Changes in the rules governing conditions of employ-
ment were made, old practices were enforced , estab-
lished rules were reannounced so the employees would
be reminded about them In many instances the notices
of violations were recorded and warnings issued to indi-
vidual employees . All this, of course, was consistent with
the Respondent 's announced intention not to bargain
with the Union regardless of its proven majority and the
Board's certification. The law is clear. When majority
representative status has been proven in a regular elec-
tion, the employer may not make any changes in condi-
tions of employment without first discussing its proposals
with the exclusive bargaining agent Forest Park Nursing
Home, 235 NLRB 408 (1978); Lawrence Textile Shrinking
Co., 235 NLRB 1178 (1978). If it ignores the union, and
acts unilaterally , as the cases say, it commits a violation
of Section 8(a)(5) of the statute no matter how many
times it orders its employees to work under the changed
terms.
The question now is which of the notices the Re-
spondent posted , which of the warnings of rules viola-
tions issued were new, changed substantive conditions of
employment , and can therefore be said to have been in
each case an unfair labor practice? At the hearing the
General Counsel took a blunderbuss approach. He put
into the record virtually every fault-finding document
placed into an employee file, every notice posted after
the election , and called just about everything the Re-
spondent did illegal . But while it is true an employer
may not change conditions of employment unilaterally in
these circumstances , it still may run its business as it
always did. For example, one notice, dated November
24, 1980 , set out the shift schedule, with some changes,
for all employees It differed from the immediately pre-
ceding schedule then in effect . But the record also
shows, via documents filed by the Respondent into the
record , that shift rescheduling of this kind was always
done from time to time as a regular method of running
the business . It cannot be said , therefore , that this was
change, subject to union negotiation at that time. There
were other messages the Respondent conveyed to the
employees that really amount to no more than what any
employer in the normal conduct of any business of neces-
sity will say to its employees . On December 5, 1980, the
supervisor told a man he had failed to stack the freezer
properly, an error which then caused a loss of product,
and that the next time it happened he would be disci-
plined. The employee, Slatzer, admitted he had made the
mistake when he got that warning . Then he added he
had made errors before. This is hardly the sort of criti-
cism expressed by a supervisor that merits the label
unfair labor practice . In the end , in his brief, the General
Counsel narrowed his contentions to the more significant
things the Respondent did. We will consider them seria-
tim.
1 On November 13 the Company posted a notice tell-
ing the employees that from that time on kitchen facili-
ties and food products in a freezer stored there could no
longer be used by the employees for their lunch They
had always been permitted to enjoy that benefit in the
past. I find that by taking that kitchen and food privilege
away from the employees the Company violated Section
8(a)(5)
2 On November 21 another notice was posted to all
hourly employees saying that thereafter they were not to
leave work without permission of a supervisor until the
particular job they were on "has been completed." There
was no such written rule before, although Bennis, the
dock supervisor, testified there had been an unwritten
one. But Bennis also said that in the past people had to
stay "if there was another 15 or 20 minutes" of work to
be done, and then he admitted he meant "if it was not
too long." The testimony of the employees is that there
are times when it is an inconvenience to be compelled to
remain for an extended overtime period in all circum-
stances . Again , because there had been no such fixed and
binding obligation about overtime hours before, I find
that the posting of that rule also constituted an 8(a)(5)
violation . It was a definite and substantive change in
binding conditions of employment
A comment is in order here. The Respondent justifies
this new rule as economically advisable and an objective
business necessity . I have no doubt that is a correct state-
ment But the true theory of illegality concerning these
unilateral changes is not that they were inspired by any
direct antiunion motive-the repeated hints to the con-
trary in the General Counsel's brief notwithstanding. The
fact an employee change in working conditions is good
for the business is not reason enough for ignoring the
statutory mandate that the employer must first bargain
about changes If the union adamantly persists in refusing
to go along , the employer may then go ahead and do it.
That is all this Respondent is obligated to do. It did not.
3. Employee Farmer testified , without contradiction,
that at least twice before 1981 he had been absent 2 con-
secutive days for illness and had never brought in, or
been asked to bring in , a doctor's certificate to prove he
had been ill He was absent because he was ill on De-
cember 15 and 16, 1980. When he phoned in the second
day to report he was still ill, the supervisor told him to
obtain a doctor's certificate . He did , and brought it with
him when he arrived for work on schedule the following
morning. Bennis told him it was not enough, because the
doctor had not written down the nature of the illness.
Bennis then prepared a formal written warning for that
offense, suspended Farmer indefinitely , and sent him
away. The employee went straight to the doctor, got an-
other certificate , brought it to Bennis, and was returned
to work.
There is no need to add that this too was a new and
material change in conditions of employment . I find that
by establishing such a rule in December 1980, the Re-
spondent committed another unfair labor practice. It
must now rescind that rule and remove that reprimand
notice from Farmer's personnel file.
4. The next item rests only upon a complaint allega-
tion , which the Respondent admits, that "on about" Jan-
uary 1, 1981. it changed its holiday system by saying em-
ployees could not have two consecutive holidays, but
must take one holiday at a time and the next some time
later The complaint says "on about "; I take this to mean
the Christmas and New Year holidays of 1980-1981,
CHEF'S PANTRY
when Christmas Day and Christmas Eve as well as New
Year's Day and New Year's Eve were consecutive holi-
days Taking one day at a time the employees did not
lose anything. The Company being in the food business,
and people eating more on holidays than at other times, I
can understand the Company wanting its people to work
at least 4 days each of those weeks The rule was elimi-
nated later anyway. It would have been better judgment
to have left this allegation out of the complaint
5 A better example of the catchall technique of the
complaints is a warning issued to Slazter on January 22,
1981. It reminded him that when he came late for work
that morning it was the third time that single month-
with chapter and verse to the minute-and advised him
of his responsibility to get to work on time. The General
Counsel suggests I find an unfair labor practice based on
that warning because no warning was issued the first two
times the employee came late.
6 On March 17, a notice warning was posted ad-
dressed by name to six employees . It reads:
When you arrive at work you are to start your as-
signed job at your appointed starting time-not five
or ten minutes later When you arrive at work
early, go on break or lunch, do not disturb other
employees who are working. Your break time is not
necessarily theirs.
Again the General Counsel finds fault with the Respond-
ent for telling its employees working time is for work.
Surely he does not mean any employer is so restricted,
but only one whose employees are represented by a
union The reasoning equates union with a license to do
as you please in the workplace. This sort of stuff in a
Board complaint is better left without comment.
7. Two more warnings, dated January 16, were placed
in evidence , one issued to Farmer and one issued to em-
ployee Allen Farmer was criticized for being in the rest-
room 21 minutes and Allen for staying there 19 minutes
They were ordered thereafter to "check in and out"
when taking such breaks for more than 2 or 3 minutes,
just as they were always required to check in and out for
"lunch break-coffee break-warm-up break " At the
hearing neither employee denied having stayed in the
restroom that long , they explained it as necessary to
remove the protective clothing they had to wear in the
freezer warehouse , and then having to put it on again I
do believe their problem was different from the ordinary
one. But it is also conceded the employees at all times
are required to check in and out for lunch, coffee, and
"warm-up breaks " Is going to the toilet for 20 minutes
really any different from whatever was meant by the
phrase "warm-up breaks?" I do not know. Twenty min-
utes is a long time for whatever had to be done in the
toilet. There was no suggestion in the notices that the
men would lose any pay even if they stayed 20 minutes,
just so long as they did check in and out I do not think
this little matter was such a change as to warrant any
consideration here.
The major thrust of this entire consolidated proceed-
ing is to compel the Respondent to bargain with the
newly established majority representative of its employ-
785
ees, which is the principal concern of this statute Con-
tinuing to discuss other piddling details enumerated in
the complaints would only frustrate that objective by
pointless repetition of the same thing There came a time
when the Respondent announced that thereafter it would
no longer call employees away from their work to
answer personal telephone calls that came for them in
the office, except in case of emergency It also told them
that they should stop using the Company's phones for
personal matters This last warning came about when
one man made several long-distance calls on the compa-
ny phone-to Sandusky , Ohio, and to Madison , Wiscon-
sin, two distant offices of the same company The em-
ployee had been authorized to call Sandusky for certain
insurance rate information , but his total testimony does
indicate he took much greater liberty on the long-dis-
tance line then could have been intended In any event, I
do not believe trivial matters of this kind, perfectly rea-
sonable in the day-to-day conduct of any business, ought
to keep this case in continuing litigation . In Board pro-
ceedings it is substance that counts , not frills.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above , occurring in connection with the operations
of the Respondent described in section I, have a close,
intimate , and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
The Respondent must be ordered to cease and desist
from again committing the unfair labor practices of
which it has been found responsible. Affirmatively, it
must be ordered to bargain with the Union in good faith
on request now It must also be ordered to offer Slatzer
and Farmer reinstatement to their old position with full
backpay, and to post the appropriate notices In the cir-
cumstances of the total case, the restraining order must
be that the Respondent not hereafter violate the statute
in any other manner
CONCLUSIONS OF LAW
1. By refusing to recognize the Union, on demand, as
exclusive bargaining agent of the employees in the ap-
propriate bargaining unit, the Respondent has violated
and is violating Section 8 (a)(5) of the Act The appropri-
ate bargaining unit is:
All freezer employees employed by the Employer
at its Columbus, Ohio facility, including the shuttle
driver, but excluding the sales servicemen, advance
salesmen, swingmen , telephone salesman , all office
clerical employees and all professional employees,
guards and supervisors as defined in the Act
2. By discharging Michael Slatzer and Marshall
Farmer for engaging in protected union activity, the Re-
spondent has engaged in and is engaging in unfair labor
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices within, the meaning of Section 8(a)(3) of the
Act.
3. By unilaterally depriving its employees of the previ-
ously enjoyed privilege of kitchen and food facilities, by
unilaterally instituting a new system of compulsory over-
time work , by unilaterally establishing a new rule requir-
ing medical certificates of all employees absent from
work because of illness, all without prior opportunity
given to the Union to bargain about these matters, the
Respondent has engaged in and is engaging in violations
of Section 8(a)(5) of the Act.
4. By all of the foregoing conduct the Respondent has
violated and is violating Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]