Cook Family Foods

National Labor Relations Board - Board Decisions

Aug 20, 1993

311 N.L.R.B. 1299 (N.L.R.B. 1993)

1299
311 NLRB No. 178
COOK FAMILY FOODS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
2 We find it unnecessary to pass on the judge’s finding that Super-
visor Barry Forbes unlawfully interrogated employee Todd Bolling,
as this finding is cumulative of other unfair labor practices found by
the judge and does not affect the remedy.
1 The underlying unfair labor practice charges filed by the above-
captioned International Brotherhood of Firemen and Oilers, AFL–
CIO (the Union) were timely served on Respondent on June 17,
1991 (Case 9–CA–28666); November 26, 1991 (Case 9–CA–29116);
and December 31, 1991 (Case 9–CA–29192).
2 The complaint alleges, and Respondent admitted in its answer
and at the hearing, that the following individuals were its supervisors
and agents, respectively, within the meaning of Sec. 2(11) and (13)
of the Act: Tim Messick, plant administrator; Les Johnson, plant su-
perintendent; Steve Wennerholt, director of human resources; Dave
Bolio, processing manager; John Wenson, coordinator; Troy Adams,
coordinator; Deb England, purchasing agent; Barry Forbes, coordi-
nator; Fred Fischer, coordinator; David Blake, coordinator; as well
as Brent Vernon, Doug Stedman, and Nick Raybourn.
Cook Family Foods, Ltd. and International Broth-
erhood of Firemen and Oilers, AFL–CIO.
Cases 9–CA–28666, 9–CA–29116, 9–CA–29192,
and 9–RC–15900
August 20, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On August 25, 1992, Administrative Law Judge
Robert Leiner issued the attached decision. The Re-
spondent has filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Cook Family Foods, Ltd.,
Grayson, Kentucky, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Vyrone Cravanas, Esq., for the General Counsel.
Kelvin C. Berens, Esq. and Mark McQueen Esq. (Berens &
Tate, P.C.), of Omaha, Nebraska, for the Respondent.
John Thacker, Business Representative, of Russell, Kansas,
for the Union.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter was heard on six occasions between June 2
and June 18, 1992, in Grayson, Kentucky, and Ironton, Ohio,
upon General Counsel’s second consolidated complaint and
notice of hearing dated February 25, 1992, together with
issues raised by certain Union (International Brotherhood of
Firemen and Oilers, AFL–CIO) objections to the above-cap-
tioned election and Respondent’s (Cook Family Foods, Ltd.)
challenges to four ballots in the election. The consolidation
of this matter was ultimately directed by the Board, adopting
the acting Regional Director’s report on challenged ballots
and objections to the election, etc., dated November 26, 1991
(G.C. Exh. 1(v)). The consolidated complaint alleges viola-
tions of Section 8(a)(1) of the National Labor Relations Act,
as amended (the Act), as a result of alleged acts of restraint
and coercion by Respondent among its employees imme-
diately prior to the Board-conducted election in the above-
captioned representation case. The complaint further alleges
particular violation of Section 8(a)(3) and (1) of the Act in
the discharge of five named Respondent employees.
Respondent filed timely answer to the above complaint al-
legations wherein it admitted certain of the allegations, de-
nied others and denied the commission of unfair labor prac-
tices.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses, to
submit relevant oral and written evidence and to argue orally
on the record. At the close of the hearing, the parties waived
final argument and elected to file posthearing briefs. The
Union did not file a brief. Respondent’s brief was timely
submitted and duly considered. General Counsel’s brief was
untimely filed but has nevertheless been considered. On Au-
gust 6, 1992, absent a showing of prejudice, I denied Re-
spondent’s August 3, 1992 motion to preclude General Coun-
sel’s brief.
On the entire record, including the briefs, and on my most
particular observation of the demeanor of the witnesses as
they testified, together with an evaluation of the testimony
and other evidence of record, I make the following1
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
The consolidated complaint alleges, Respondent admits,
and I find, that Respondent, at all material times, has been
and is a corporation engaged in the processing and nonretail
sale of meat at its facility in Grayson, Kentucky. In the
course and conduct of its business operations in 1991, Re-
spondent purchased and received at its Grayson, Kentucky
facility goods valued in excess of $50,000 directly from
points outside the State of Kentucky. Respondent concedes,
and I find, that it has been and is, at all material times, an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find, that
at all material times International Brotherhood of Firemen
and Oilers, AFL–CIO (the Union) has been and is a labor
organization within the meaning of Section 2(5) of the Act.2
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 At the close of General Counsel’s case, on Respondent’s motion,
I dismissed the allegation of unlawful discharge of Sharon McGinnis
on the ground that the evidence adduced at the hearing demonstrated
that she had voluntarily quit her employment regardless of any pre-
determined, uncommunicated desire of Respondent to discharge her.
Her employment status will not be treated further in this decision ex-
cept that Respondent’s challenge to her ballot is necessarily sus-
tained.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged in the processing and shipment of
hams from facilities in Nebraska, Michigan, Kentucky (Gray-
son), Maryland, and Pennsylvania.
In April 1991, the Union commenced organizing activities
among Respondent’s Grayson, Kentucky employees. These
activities were conducted principally out of a rented building
approximately one-quarter to one-half mile from Respond-
ent’s Grayson plant, the rented building being on the same
road leading to the plant. The building is isolated, the nearest
building being about 50 yards away. The organizing activi-
ties included employees handbilling coemployees before and
after work on the road leading to the plant; phone calls to
employees’ homes, the use of bumper stickers, buttons and
ultimately union ‘‘T’’ shirts and the use of an employee or-
ganizing committee. The first union handbills were distrib-
uted around April 14 or 15, 1991. About 20 to 30 employees
openly distributed union materials up through the middle of
June. Of the 20 to 30 employees who distributed union lit-
erature, 15 or so were more active than the others; among
the more active were employees Carl Hale, Ramona Martin,
Patty Kouns, Toby Kouns, and Sharon McGinnis.
On June 17, 1991, the Union filed a petition in the above
Case 9–RC–15900 for certification in a unit comprised of:
All full-time and regular part-time production and
maintenance employees, including group leaders, em-
ployed by the Employer at its Grayson, Kentucky meat
processing facility excluding all coordinators, office
clerical employees, professional employees guards and
supervisors as defined in the Act.
A Board-conducted election was held on September 20,
1991. The resulting tally of ballots, as amended by the open-
ing of certain challenged ballots, demonstrated that of 346
valid votes counted, 175 employees voted for the Union; 2
employees voted for an intervenor labor organization (Local
227, United Food and Commercial Workers, AFL–CIO) and
169 employees voted against the Union. There were nine
challenged ballots. Five of the challenges were separately
thereafter resolved, raising the votes ‘‘against’’ to 174. A
majority of valid votes cast for the Union (175), therefore,
was not a majority in view of the 2 votes cast for the inter-
venor (Local 227).
Meanwhile, however, as the complaint alleges, on June 14,
1991, Respondent discharged employees Toby Kouns, Patri-
cia Kouns, Ramona Martin, and Sharon McGinnis.3 When
these employees attempted to vote at the September 20 elec-
tion, their four votes were challenged (as part of a total of
nine challenges overall). The challenges to these four ballots,
together with the alleged unlawful discharges of the same
employees, were consolidated in this hearing. Since these
June 14 discharges occurred before the filing of the June 17
petition for certification, they do not form the basis for ob-
jections to the outcome of the election under the Board’s
rules. Ideal Electric Co., 134 NLRB 1275 (1961) (objection-
able conduct must occur between filing of petition and hold-
ing of election). However, should the allegations of the com-
plaint be proved as to them, they would be eligible ‘‘employ-
ees’’ within the meaning of the Act for purposes of the elec-
tion and their challenged ballots would therefore be counted
in determining a majority. All parties concede that a resolu-
tion of the three remaining challenged ballots may affect the
results of the election.
Furthermore, the parties are also in agreement that the
Union’s objections to the election ‘‘track’’ the allegations of
violation of Section 8(a)(1) of the Act. Thus, none of the ob-
jections to the election need be treated separately from the
disposition of the alleged violations of Section 8(a)(1) of the
Act. To the extent proven, each violation of Section 8(a)(1)
would constitute objectionable conduct. Dal-Tex Optical Co.,
137 NLRB 1782, 1786 (1962).
Lastly, at the close of General Counsel’s case-in-chief, on
Respondent’s motion, I also dismissed two allegations of an
8(a)(1) violation: Paragraph 5(a)(i), alleging Respondent’s
engaging in surveillance by making written account of li-
cense plate numbers of employee vehicles displaying union
campaign insignia, was dismissed for insufficient evidence;
and paragraph 5(g)(ii), wherein Tim Messick, Respondent’s
plant administrator, allegedly threatened employees with
more onerous working conditions if the employees selected
the Union was similarly dismissed for failure of proof.
Alleged Violation of Section 8(a)(1)
1. Surveillance; guard’s use of binoculars
The complaint (par. 5(a)(ii)) alleges that in the period be-
tween the filing of the June 17 election petition and the Sep-
tember 20, 1991 election, Respondent’s guards used bin-
oculars to monitor vehicles entering and exiting the parking
area of the Union’s campaign headquarters. The evidence
shows that the only access to Respondent’s plant is on the
road called Stevens Boulevard. About one-quarter to one-half
mile from that plant is the rented facility of the Union’s
headquarters. Respondent’s guardshack is located 30 to 40
yards from the plant itself and has an unobstructed view of
the isolated Union facility. There is parking around the union
hall at its front and sides.
Although several of General Counsel’s witnesses testified
concerning the use of binoculars by Respondent’s guards, I
was particularly impressed by the testimony of Esta Sexton,
a currently employed first-shift employee. She testified that
the guardshack contains within it a separate area called the
‘‘trucker’s lounge.’’ This trucker’s lounge is separated from
the guard office by a wall containing a glass window open-
ing. On September 18, 2 days before the election, while
waiting for her husband in the trucker lounge section of the
guardshack, she saw a Respondent guard, in the guardshack,
using binoculars watching cars go in and out of the union
meeting hall area. In particular, she recalled that the guard
then phoned to someone and specified the makes and models
of the cars entering or leaving the union facility. These tele-
phone calls occurred three or four times and the speaker re-
ferred only to the makes and models of cars entering or leav-
1301COOK FAMILY FOODS
ing the union hall. She was in the guardshack for about 15
minutes and four or five cars were reported by the guard
using binoculars.
Respondent’s contrary testimony, elicited from David
Caudill, the supervising guard at the main gate, was that he
uses binoculars on many incoming vehicles and records the
license numbers of any suspicious vehicles. In his 3 years of
employment by Respondent, he uses binoculars at all times,
perhaps once or twice a day. He denied learning the identity
of employees going into or out of the union hall or recording
their names or using phones to report on any such subjects
to management.
Even without the fact that Esta Sexton is a current em-
ployee of Respondent and would ordinarily be hesitant in re-
porting such particularized facts as the guard, using bin-
oculars, recording and reporting only the cars entering or
exiting from the union hall, and doing so four or five times
within the 15 minutes she was there, I would credit such par-
ticularized testimony over Caudill’s denial. Furthermore,
Sexton’s testimony does not necessarily implicate only
Caudill. She may have witnessed another guard. Certainly in
the presence of her current employee status, however, I con-
clude that General Counsel, by a preponderance of credible
evidence has supported the allegations of employer unlawful
surveillance 2 days before the election. I therefore conclude
that, as Esta Sexton (and Chlotene Tackett similarly) testi-
fied, Respondent, engaged in objectionable conduct affecting
the outcome of the election and, in violation of Section
8(a)(1) of the Act, through its plant security guards, engaged
in unlawful surveillance of its employees’ union activities by
using binoculars to monitor and record the vehicles entering
and exiting the parking area of the Union’s campaign head-
quarters. NLRB v. Grover-Shipper Vegetable Assn., 122 F.2d
368 (9th Cir. 1941). Cases cited by Respondent involving
open and notorious union activities which an employer may
observe without engaging in prohibited surveillance, e.g.,
Baddour, Inc., 281 NLRB 546, 548; Southwire Co., 277
NLRB 377, 378 (1985), constitute no support for Respond-
ent’s innocence here. The identity of the recipient of the
phone calls is irrelevant.
2. Employee David Blake ‘‘physically accosted’’
The complaint alleges that about September 6, 1991, i.e.,
after the June 17 petition and before the September 20 elec-
tion, Respondent, by its ‘‘coordinator’’ (supervisor) David
Blake, ‘‘physically accosted’’ an employee because of the
employee’s union sympathies.
William Bailey, a current employee of Respondent, testi-
fied that sometime prior to the election, on September 5 or
6, 1991 (on cross-examination Bailey admitted that it might
have been as late as September 10, 1991), a coordinator (su-
pervisor) David Blake approached him in the lunchroom.
Blake was not Bailey’s supervisor. Bailey, however, worked
on the curing line along with Blake’s wife, Brenda Blake.
Brenda Blake, staunchly antiunion, testified, as did all other
witnesses, that the matter of union organization and represen-
tation was a subject of frequent discussion on the work line
and during break periods. On one occasion, in September
1991, before the election, she referred to the consequences
flowing from a possible strike. William Bailey told her to
‘‘shut her mouth’’ and that her opinion ‘‘didn’t matter.’’ She
told this to her husband.
Thereafter, in the lunchroom and locker room, where
Blake approached Bailey, there ensued two subjects of con-
versation. Which of the two subjects was first raised is un-
clear. Respondent’s supervisor, David Blake, did not testify.
As I can best reconstruct the event, I conclude that, in the
lunchroom, as Bailey testified, Blake grabbed at Bailey’s
union button and said that it was ‘‘bull shit.’’ The button
carried the inscription ‘‘vote union.’’ Bailey then told Blake
that he used to be a ‘‘good old guy’’ and asked whether the
‘‘red hat’’ (plant supervisors wear red hard hats) had caused
a change in Blake. Blake answered that: ‘‘There’s nobody
will take food out of [my] kid’s mouth. Union people sucks
dicks.’’ When Bailey left the lunchroom, Blake followed him
into the locker room and, according to Bailey’s
uncontradicted and credited testimony, hemming Bailey up
against a concrete pillar near the lockers in the locker room,
again told Bailey that no ‘‘S O B would take food out of
his kid’s mouth’’; and that it was wrong for Bailey to vote
for the Union. Bailey testified he couldn’t leave because
Blake hemmed him in near the locker room concrete pillars.
At the time of this conversation, employee Chris Stone, ac-
cording to Bailey’s uncontradicted testimony, was 8 to 10
feet away and that employee Jim Barry entered the locker
room at the end of this locker room incident.
Bailey admitted that, during the conversation, particularly
when Bailey asked Blake whether the ‘‘red hat’’ had
changed him, Blake told him that he didn’t like ‘‘people’’
hassling his wife. Blake then accused Bailey of hassling his
wife and Bailey said he didn’t hassle people that he worked
with and that he respected Blake’s wife.
Since Respondent previously notified its employees that
they should be free from harassment and coercion not only
by the Union but from their supervisors concerning their
choice of accepting or rejecting union representation, Bailey
reported the incident to Director of Human Resources Steve
Wennerholt the next morning. He also told his supervisor,
Bill Griffith, that Blake was harassing him and that he want-
ed to make a report of it. Griffith told him that he would
set up a meeting with Plant Administrator Tim Messick.
Griffith returned and brought the entire curing line of 45
employees to a meeting with Messick. All curing line pro-
duction was halted. Messick told all the employees, including
Bailey, that the rumors of harassment of an employee were
all untrue, ‘‘its all bull shit about Dave Blake and an asso-
ciate . . . .’’ Messick did not name Bailey. Messick told the
assembled employees that he wanted all this ‘‘stuff’’ to stop.
Thereafter, coordinator Griffith and Director of Human
Resources Wennerholt came to Bailey to take his written
statement of the events. While Wennerholt was transcribing
Bailey’s statement, he was laughing. Bailey told him that it
was useless for Wennerholt to record Bailey’s version if he
thought it was funny. Wennerholt answered that if he thought
‘‘that way’’ about the Company, why would Bailey ‘‘want
to work here?’’ Bailey nevertheless complained to
Wennerholt that Messick called the incident ‘‘bull shit’’ be-
fore anybody knew what it was about. When Bailey then told
Wennerholt that he had a witness to the incident, employee
Chris Stone, Wennerholt told him that the matter would be
checked into later. Wennerholt never got back to Bailey.
There was no evidence that Wennerholt, or any other super-
visor, consulted the alleged witness, Chris Stone. After this
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
conversation with Wennerholt, Bailey testified that he saw
Blake and another supervisor laughing at him.
Neither Supervisor Blake nor employee Jim Barry were
called to testify regarding this incident. Respondent called
Bailey’s alleged witness, Chris Stone, and Supervisor
Wennerholt to testify concerning several matters but they
were not questioned concerning this incident.
Plant Administrator Tim Messick testified that Director of
Human Resources Steve Wennerholt investigated the matter
and found that there were different accounts. Messick testi-
fied that Wennerholt spoke to employee Barry and Barry’s
statement resembled Blake’s version which Messick found to
be not threatening. In any event, Messick testified that the
subject matter of the incident related to Bailey hassling
Blake’s wife and that Wennerholt told Messick that he
thought that Bailey exaggerated the incident and therefore no
further action was warranted or taken. Messick’s testimony,
resting entirely on Wennerholt’s report, is necessarily ac-
corded little weight. The failure to call Wennerholt and
Blake clearly calls for my drawing an inference adverse to
Respondent.
Discussion and conclusions
Bailey’s testimony concerning the incident was particular-
ized, credible as to detail, and demonstrated reasonable ar-
ticulation and memory of the event. Since neither Super-
visors Wennerholt nor Blake nor employees Stone or Barry
ever testified concerning this incident, there is only
Messick’s testimony concerning Respondent’s responsibility
for and reaction to the incident. I infer from Messick’s testi-
mony that employee Chris Stone was not interrogated by Re-
spondent. Employee Barry who, according to Bailey, was
present only at the end of the incident, was apparently inter-
rogated but Messick’s testimony concerning Barry’s interro-
gation is entirely hearsay and a statement of conclusions
rather than what Barry told Wennerholt. Even more unsatis-
factory is Respondent’s failure to call its own supervisors.
Regardless that Blake may have been stimulated to con-
front Bailey because of what he believed to be Bailey’s dis-
courteous remarks (concerning the Union) to Blake’s wife,
there is no question that Bailey’s uncontradicted and credited
testimony was that Blake’s conduct in grabbing at the union
button, telling Bailey that the union was ‘‘bull shit’’; that no-
body would take food out of his kid’s mouth; that ‘‘the
union sucks dicks’’; and then, hemming him against the
locker, telling him that it was wrong for him to vote for the
union, not permitting Bailey to leave, constituted something
more than an expression of opinion from a supervisor to an
employee. No matter how delicately urged and notwith-
standing the prior provocation of Bailey’s conversation with
Blake’s wife, Blake’s statement and action: that it was wrong
for Bailey to vote for the Union and grabbing the union but-
ton and saying that it was ‘‘bull shit’’ and hemming Bailey
up against the concrete locker room pillar, are not the free
discussion concerning contrary views on the wisdom of
union representation which is encompassed in Section 8(c) of
the Act. Such a physical and emotional confrontation by a
supervisor against an employee, I find, is outside the bounds
of protected statutory free speech and demonstrates unlawful
coercion and objectionable conduct, respectively, within the
meaning of Section 8(a)(1) of the Act and the timely objec-
tions filed by the Union.
Since there is no allegation relating to Wennerholt’s con-
duct in transcribing Bailey’s version of the incident, I refrain
from passing on Wennerholt’s comment to Bailey that if Bai-
ley thought ‘‘that way’’ about the Company (i.e., Bailey
being prounion) why would you want to work here? What
is, significant, is that Bailey reminded Wennerholt that
Messick had called the incident ‘‘bull shit’’ before anybody
had investigated the incident and that Wennerholt, advised of
the presence of the witness, Chris Stone, said that the matter
would be checked into. Wennerholt laughed at Bailey while
taking his statement. Messick’s testimony did not suggest
that he had ever contacted Chris Stone. The fact that there
was no contradiction of Bailey’s testimony that Blake and
Wennerholt laughed at him, apparently an uncommon experi-
ence, does not go far to support Respondent’s repeated posi-
tion at the hearing: that Respondent sought to protect em-
ployees’ rights to select the Union as their collective-bar-
gaining representative notwithstanding that Respondent op-
posed the Union and that it would not permit harassment of
its employees for a pro union position. Together with the
guard’s telephone reporting on vehicles at the union hall,
above, this evidence of Respondent’s disdain undermines its
professed position.
3. Respondent allegedly compels wearing of its
antiunion T-shirt
The complaint alleges that Respondent’s supervisor, Deb
England, ordered an employee to wear its antiunion cam-
paign T-shirt (par. 5(c)).
The evidence, uncontradicted on this record, shows that
employees Carolyn McBurney and Vicki Johnson were
working in the supply room under Supervisor Deb England
in September 1991, before the election. The Respondent in-
tended to distribute black T-shirts (with white writing) car-
rying the legend ‘‘We’re the family in Cook Family Foods.’’
Supervisor England told McBurney to distribute the T-shirts
2 days before the election and to keep a log of who came
by and how many employees picked up the shirts. McBurney
testified that no names were kept and Supervisor England
told her merely to keep a record of the sizes because every-
thing going out of the supply room had to be accounted for.
McBurney also admitted that England told her that the way
she voted in the election was her own business and that she
was free to speak up for or against the union.
A few days before the election, England told McBurney
and employee Vicki Johnson to make sure that they wear the
company T-shirt. McBurney then asked England: ‘‘Do we
really’’? England replied: ‘‘If I have to wear mine, you have
to wear yours.’’
Vicki Johnson’s testimony corroborates McBurney’s par-
ticularly that Vicki Johnson recalls that, with Carolyn
McBurney present, England told them that if she had to wear
Respondent’s T-shirt, so did they. Johnson, however, recalled
a later conversation, before she went home (on the same day
as the above conversation) when Johnson asked England:
‘‘Did you really mean it—wearing the T-shirt’’? England,
according to Johnson, answered ‘‘no’’ and Johnson did not
wear the company T-shirt. Johnson’s testimony, however,
fails to demonstrate whether McBurney was present at this
second conversation.
Supervisor Deb England did not testify in the proceeding.
1303COOK FAMILY FOODS
Discussion and conclusions
As far as the evidence of record discloses, there is no
question that Supervisor England told employees McBurney
and Johnson that they were required to wear Respondent’s T-
shirt (a response to the Union’ T-shirt). England told
McBurney, in response to McBurney’s question (‘‘do we
really’’?) ‘‘if I have to wear mine, you have to wear yours.’’
England’s direction to McBurney requires McBurney to dem-
onstrate procompany sympathy and support regardless of
whether McBurney had contrary sentiments. Such a super-
visor direction necessarily coerces the employee into wearing
a prorespondent T-shirt, demonstrating prorespondent and
antiunion sentiments and necessarily restrains and coerces the
employee in violation of Section 8(a)(1) of the Act and is
objectionable conduct, as alleged.
It is true that Vicki Johnson testified that in a later con-
versation, there was an apparent retraction by England of the
obligation of Johnson to wear the shirt. There was no show-
ing, however, that McBurney was present or otherwise heard
that England had retracted the statement. Therefore, assum-
ing that Supervisor England’s statement to Johnson that she
need not wear the shirt constitutes a sufficient repudiation of
the prior unlawful direction to wear the shirt, since there was
no showing that McBurney was ever advised of this apparent
retraction, it is not a retraction as to McBurney whose Sec-
tion 7 rights were already substantially invaded, within the
meaning of Section 8(a)(1)’s prohibition against restraint and
coercion.
4. Alleged interrogation in violation of Section 8(a)(1)
Supervisor Barry Forbes
Lauretta Holbrook, a current employee of Respondent at
the time she gave testimony, testified that one day before the
September 20 election, her supervisor, Barry Forbes, asked
her how three of her fellow employees were going to vote;
and he told her that if he could not report on how they were
going to vote, he would lose his job. Holbrook told him that
he was better off not knowing ‘‘in your position.’’
Todd Bolling, also presently employed by Respondent at
the time he gave his testimony, testified that one day before
the election, his Supervisor Barry Forbes saw him wearing
the union T-shirt. Forbes told him that he was wearing the
wrong shirt and asked him if he was going to vote for the
union. Forbes told him that he was going to vote for the
union. Forbes then asked him to wear the Company button
(vote no) and Bolling refused.
In response to questions on cross-examination, Bolling tes-
tified that Respondent told its employees to vote in their own
best interest; that a company poster told employees that vot-
ing for or against the Union was a privilege which would be
protected and that the Company would honor their vote. He
denied recalling any suggestion that if he voted for the Union
he would be protected and did not hear the Company say
that it would attempt to negotiate a collective-bargaining
agreement if the Union won the election.
Supervisor Barry Forbes did not testify in the proceeding.
Discussion and conclusions
The uncontradicted testimony of Lauretta Holbrook and
Todd Bolling is credited. Supervisor Forbes’ questions as to
how other employees would vote and whether Bolling, in
particular, would vote for the Union are all none of the su-
pervisor’s lawful business and are coercive invasions of em-
ployees’ Section 7 rights, violating Section 8(a)(1) of the
Act, and, in the instant case, objectionable conduct. More-
over, Forbes’ attempt to cause Bolling to wear a union but-
ton, under the circumstances of unlawful interrogation, is a
further violation of Section 8(a)(1) of the Act. In view of Re-
spondent’s repeated suggestions, at the hearing, as noted
above, with regard to Wennerholt’s and Blake’s laughter di-
rected to employee Bailey’s complaint, that its antiunion
stance did not include unlawful conduct, necessarily makes
Lauretta Holbrook’s testimony concerning her conversation
with Forbes an ominous contradiction of Respondent’s posi-
tion. Thus the record stands that Supervisor Forbes told Hol-
brook not only that he wanted to know how three employees
were going to vote, but that if he couldn’t report on that
point, he would ‘‘lose his job.’’ I find that on September 19,
1991, the day before the election, Forbes unlawfully interro-
gated employees Holbrook and Bolling within the meaning
of Section 8(a)(1) of the Act, such activity constituting ob-
jectionable conduct as alleged.
5. Alleged taking of names of and threatening
union supporters
The complaint (pars. 5(e) and (f)) alleges that about Sep-
tember 18, Respondent, by its Supervisors Les Johnson and
Troy Adams, wrote down the names of union supporters:
Johnson on the road in front of the Union’s campaign head-
quarters; Adams at Respondent’s Grayson facility, where he
impliedly threatened union supporters with unspecified retal-
iation.
a. The activities of Supervisor Troy Adams
With regard to Troy Adams’ activities, employee Wanda
Erwin credibly testified that while she and other employees
were working on the production line, her supervisor, Troy
Adams, approached them with a pencil and paper, writing
down names. When Wanda Erwin asked him why he record-
ing the names, Adams said that it was ‘‘you people wearing
union shirts.’’ Erwin told him that she could transfer out of
his line to which Adams replied: ‘‘no you can’t; I have to
give the okay.’’
John Rogers, currently employed by Respondent at the
time he gave testimony, testified that while he was working
on his second shift on the converting line in the week prior
to the election, his supervisor, Troy Adams was taking the
names of employees wearing union shirts, including Lauretta
Holbrook, himself, Glenn Elkin, and Larry Hale. After he ap-
parently recorded the names, he handed the list to Supervisor
Doug Stedman. About a half-hour later in the ‘‘break room,’’
while Rogers, Hale, Holbrook, and other employees were sit-
ting at a table, Adams approached them and said: ‘‘I will re-
member the ones who have the shirts on. No matter how this
thing goes, if the Union gets in, you’ll have to work for
me.’’
Diana Bryant, currently employed by Respondent at the
time she gave her testimony, testified that while she was
working her second shift on the converting line in the week
prior to the September 20 election, on the night the employ-
ees wore their prounion T-shirts (apparently the night of Sep-
1304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tember 18, 1991) Supervisor Troy Adams approached and
asked her if she was wearing a union shirt. When she said
that she was wearing a union shirt, he said: ‘‘your name goes
on my list too.’’ Bryant asked: ‘‘what list is that’’ and
Adams replied: ‘‘a list of people that I will remember come
Monday morning,’’ i.e., following the Friday, September 20
election. Nearby employee Cathy Stephens asked Adams:
‘‘for what reason’’? and Adams replied for ‘‘personal rea-
sons.’’ When she then asked him what his ‘‘personal rea-
sons’’ were, he said: ‘‘Monday, you all [will] be working for
me, union or no union and I will remember the ones that
wore the blue [union] shirts’’ (Tr. 191).
Supervisor Troy Adams was not called to testify in the
proceeding.
Discussion and conclusions
The uncontradicted testimony of employees Rogers, Bry-
ant, Stephens, and Erwin is all mutually corroborative and
credible. I thus conclude, consistent with their testimony, that
on or about September 18, 1991, 2 days before the Board-
conducted September 20 election, Supervisor Troy Adams re-
corded the names of employees demonstrating support for
the union by wearing blue union T-shirts; transmitted the list
of names to another supervisor, Doug Stedman; told the em-
ployees that he was transcribing their names because they
were wearing the blue prounion T-shirts; and told them that
the reason he was engaging in this conduct was that he
would remember the employees who were wearing the
prounion T-shirts; particularly because they would still be
working for him on the following Monday morning whether
the union won or lost the election.
This Adams’ conduct demonstrates not merely a series of
listings in violation of Section 8(a)(1) of the Act, but an
unsubtle threat of retaliation because of employee support of
the union. Any doubt whether the employees recognized
Adams’ retaliatory threat comes from the uncontradicted
Wanda Erwin testimony. When he told them that he would
‘‘remember’’ who had worn the T-shirts when they returned
to work for him on the following Monday, Wanda Erwin im-
mediately recognized the threat and told him that she could
be transferred off of his production line. He reminded her
that she could not do so without his permission (Tr. 95).
Greater evidence of coercion and restraint is unnecessary. I
therefore conclude that Respondent, by Troy Adams, unlaw-
fully recorded the names of union supporters and threatened
them with retaliation of an unspecified nature regardless of
the outcome of the union election. This conduct, as alleged
in paragraphs 5(e) and (f), violates Section 8(a)(1) of the Act
and constitutes objectionable conduct as alleged.
b. The activities of Supervisor Les Johnson
Lauretta Holbrook and Chlotene Tackett, presently, em-
ployed at the time they gave testimony, testified that they
handbilled for the union almost every day. Aside from seeing
a female guard watching them through binoculars on several
occasions before the election and watching the binoculars
trained on other employees handbilling, they saw Les John-
son (Respondent’s plant superintendent, apparently subordi-
nate only to Plant Administrator Tim Messick) drive up to
the plant on most mornings that she was handbilling. He
slowed down and recorded things on a yellow pad.
Les Johnson testified that he saw employees handing out
literature on the road leading to the plant; that he talked to
them; that he never wrote down the names of the handbillers
but did write the legends of the picket signs at the picket
line. He testified moreover, that he did this on one occasion,
did not stop but admitted he slowed down and drove through
the line. He also testified that he reported his conduct to the
plant administrator, Tim Messick.
Discussion and conclusions
Despite the fact that there is no evidence that the Union
ever employed picket signs at or near the road leading to Re-
spondent’s plant and notwithstanding that Les Johnson, ac-
cording to Lauretta Holbrook, cruised past them on five oc-
casions, there is no proof, even on a prima facie basis, that
what Les Johnson was writing on his yellow pad were the
names of the handbillers. Indeed, the identity of the
handbillers could easily be ascertained through the same bin-
oculars that General Counsel was accusing Respondent’s
guards of unlawfully using in other sections of the consoli-
dated complaint.
Johnson testified that he was recording only the picket
sign legends that the employees carried. There is insufficient
evidence, prima facie, to prove that he was recording
handbillers’ names. While it is suspicious that he cruised
back and forth on more than one occasion, according to Hol-
brook (notwithstanding his denial), I find it improbable that
he was recording names. What he may have been doing, on
the other hand, was seeking to intimidate the employees by
his cruising up and down and feigning his recording either
their names or other elements. While it may be argued that
this is within the ambit of the allegations of the complaint,
there is no proof supporting such a speculation. Thus, when
the implausibility of the necessity of Johnson recording
names is added to the fact that the names of the handbillers
could easily be obtained through binoculars, I conclude that
General Counsel has failed to prove, by a preponderance of
the credible evidence, a prima facie case to support the alle-
gation that, on or about September 18, in violation of Section
8(a)(1), Les Johnson was recording the names of union sup-
porters. I not only recommend that the allegation of unfair
labor practice be dismissed but note that there was no indica-
tion of when Les Johnson was alleged to have engaged in
this activity, i.e., whether before or after the filing of the
June 17, 1991 petition for certification. In short, I rec-
ommend that both the complaint allegation and the cor-
responding election objection be dismissed for want of proof.
The September 18 and 19, 1991 preelection speeches of
Plant Administrator Tim Messick
As above noted, the election was on Friday, September 20,
1991. On the preceding Wednesday and Thursday (Sep-
tember 18 and 19, 1991) Respondent held four meetings of
its employees, two on Wednesday and two on Thursday (Tr.
1868–1869). Unlike previous meetings called by Respondent
at which it discussed the upcoming union election with its
employees, at these four meetings, there were no question
and answer periods permitted (Tr. 1870). It was at these
meetings that employees Carl Hale and William Bailey at-
tempted to ask questions and were told to shut up and to sit
down.
1305COOK FAMILY FOODS
4 I have already noted Respondent’s failure to contradict or avoid
the evidence of its supervisor, Barry Forbes, complaining that if his
interrogation of employees proved unsuccessful, he could lose his
job.In view of the credited testimony of William Bailey concerning
the treatment he received from Supervisors Wennerholt and Blake
including the nonchalant and, at times, derisive response to his re-
port of being harassed by Supervisor Blake, and in view of the cred-
ited (uncontradicted) evidence that Messick characterized Bailey’s
complaint as ‘‘bull shit’’ before Wennerholt even investigated the
matter, I do not credit the sincerity of Messick’s requesting employ-
ees to report incidents of threats and harassment to upper manage-
ment.
5 Messick also at first testified that there was a question and an-
swer period in the four meetings immediately prior to the election
(Tr. 1855), but thereafter recalled that there was no question and an-
swer period in any of the four meetings immediately prior to the
election (Tr. 1869–1870).
Employee Wanda Erwin testified that at a September 18
meeting, Attorneys McQueen and Berens together with Plant
Administrator Tim Messick, addressed 35 to 40 converting
line and curing line employees at about 5 p.m. After showing
a movie concerning labor relations at Respondent’s Michigan
plant, Plant Administrator Messick, according to Wanda
Erwin, told the employees that: ‘‘if [the Union were] voted
in, [Respondent] would move out the plant in 48 hours, back
to Michigan if the union was voted in.’’
On cross-examination, Erwin denied having been told, at
company-sponsored meetings, that the choice of voting for or
against the union was up to employees, denied that the Re-
spondent stated that employees should feel free to talk about
the Union if they supported it and free to talk against the
Union if they did not support it; and could not recall whether
she attended only three or four meetings or perhaps more.
She did insist, however, that at the meeting 2 days before the
election, Plant Manager Messick said that if the Union was
voted, in, Respondent would move the factory out within 48
hours, back to Michigan (Tr. 102). She denied that Messick
said that Respondent ‘‘could move the plant back to Michi-
gan in 48 hours; rather, that if the Union was voted in, Re-
spondent ‘‘would move it out within 48 hours’’ (Tr. 103).
When Respondent counsel asked if she were positive that
Plant Administrator Messick made this statement in the 10
minutes that he spoke after the film, she said she was posi-
tive (Tr. 103).
Employee Lauretta Holbrook testified, in response to Re-
spondent’s questions, that Respondent did tell employees
that, however they voted, they would always have a job at
Respondent; but also recalled that either Attorney Berens or
Plant Manager Messick, at a meeting at which both spoke,
said that ‘‘if the union came in, the plant could very easily
move back to Detroit within 48 hours.’’ While she was not
sure whether it was Messick or Attorney Berens who said it,
she recalled the ‘‘48-hour comment’’ only because Respond-
ent asked about it on cross-examination (Tr. 148).
Employee William Bailey testified that the company meet-
ing he attended, with about 45 or 50 employees present, was
on the day before the election, in the morning (Tr. 252-253).
He recalled that after the showing of the movie, ‘‘they were
talking about moving the plant back’’ (Tr. 254). Bailey testi-
fied that Messick said that ‘‘they could—he said he would,
move the plant back in 24 hours if it turns [out] to be a
union plant’’ (Tr. 255); and that Messick did not mention
where they would move the plant to (Tr. 255). Bailey was
an outspoken union supporter, wore a union T-shirt and was
one of many employees on the union organizing committee.
Respondent did not explore Bailey’s testimony concerning
Messick’s statement.
Testimony of Plant Administrator Tim Messick
Messick testified that in response to the union organizing
drive, Respondent commenced holding meetings with its em-
ployees in April or May 1991 (Tr. 1848). At the same time,
he informed his supervisors, after consulting counsel, that
they were not to spy on, make promises to, interrogate or
threaten any of the employees concerning their union activi-
ties (Tr. 1849). At employee meetings, Respondent told the
employees that in the event that they were threatened, they
should contact someone in management because management
would not tolerate threats in any way from any individual
who supported the union or was nonunion (Tr. 1849–1850).4
With regard to the speeches made in the four meetings on
the last 2 days prior to the election, Messick testified that he
didn’t use the expression ‘‘48 hours’’; asserted that it was
only Attorney Berens who used that expression; and that the
substance of the speech was not consistent with the testi-
mony of General Counsel’s witnesses. Rather, because there
had been a report to his supervisors that some employees be-
lieved that if the Union were elected on Friday (September
20), there would be a strike on Monday (September 23),
Berens told the employees (in Messick’s presence) that he
hoped that there would not be a strike; that in any event the
plant would continue to operate in Grayson; that production
would be continued by management staff and any employees
who crossed the picket line; and that if production was insuf-
ficient at the Grayson plant, Respondent would produce hams
at its plant in Lincoln, Nebraska (Tr. 1854). Messick testified
that Berens also told the employees: ‘‘We could possibly
open Detroit in 48 hours if it was necessary’’ (Tr. 1854). In
particular, Messick testified in response to the question of
whether he spoke of the reopening of the Detroit plant: ‘‘No,
sir. I don’t think so’’ (Tr. 1854). When the quality of his an-
swer, apparently both emphatic and hesitant at the same time
(‘‘No, sir. I don’t think so’’) was called to his attention as
presenting a difficult question for resolution,5 Messick,
pressed on the record for a particularized answer, stated:
‘‘No, I don’t think I did. I’m sure I did not’’ (Tr. 1855). He
then settled into specific denial: ‘‘I am sure I did not’’ (Tr.
1855). He specifically denied that there was any discussion
at the meetings concerning relocating the plant if the union
was elected (Tr. 1855). No supervisor testified of having
heard anyone say that if the Union were elected, there would
be a strike. Messick’s testimony of such a report is
uncorroborated.
Respondent’s witness, employee Chris Stone, testified that
Messick told the assembled employees that Respondent could
open the plant in Detroit in 48 hours (thus contradicting
Messick on whether Messick mentioned the reopening of the
Detroit plant in 48 hours).
Respondent’s witness, Brenda Blake, testified that Attor-
ney Berens told the employees that, in the event of a strike,
the Detroit plant could be opened in 48 hours in order to
continue production. Thus, Brenda Blake testified concerning
what Attorney Berens said rather than what Messick said.
1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 At the conclusion of General Counsel’s case, as above noted, I
dismissed, as unproven, General Counsel’s further allegation that on
September 20, 1991, Messick threatened employees with more oner-
ous working conditions if they selected the Union as their bargaining
representative.
7 As above noted, I dismissed at the close of General Counsel’s
case the allegation that, on the same date, June 14, 1991, Sharon
McGinnis was also unlawfully discharged.
Similarly, employee Elaine Dickerson testified what
Berens said rather than what Messick said. No supervisor
testified concerning what Messick said.
Thus, the only employee witness called by Respondent,
Chris Stone, who testified concerning what Messick told the
employees at the meeting, contradicted Messick’s testimony.
Whereas Messick testified—ultimately—that he never men-
tioned ‘‘reopening the Detroit plant in 48 hours (Tr. 1855).
Stone testified that Messick said that the Detroit plant could
be reopened in 48 hours if there was a strike (Tr. 1177).
Discussion and conclusions
Employee Wanda Erwin was emphatic, unconditional, and
positive in her testimony that Respondent would move Re-
spondent’s plant back to Detroit, Michigan, if the Union was
voted in (compare: Tr. 93 with Tr. 102–103). I observed that
Wanda Erwin was militantly prounion and was prepared to
discount her testimony, in some part, on that basis, especially
in view of her admission that she was not only no longer
employed by Respondent but was totally disabled and would
be unable to return to Respondent’s employment (Tr. 85–86).
On the other hand, Lauretta Holbrook admitted that the
Respondent told her that regardless of how she voted, she
would always have a job at Respondent (Tr. 147), and that
either Messick or Attorney Berens said (Tr. 147–148) that if
the Union came in, the plant could very easily move to De-
troit within 48 hours. Her testimony, like Wanda Erwins’
was unconditional and emphatic. Indeed, she testified,
credibly that she failed to mention this 48-hour threat of re-
opening the Detroit plant to the Board agent during inves-
tigation but mentioned it at the hearing only because Re-
spondent inquired of it on cross-examination (Tr. 147–148).
I credit her testimony that either Berens (in the presence of
Plant Manager Messick) or Messick himself made the state-
ment. Unlike witness Wanda Erwin, Lauretta Holbrook was
currently employed by Respondent at the time of giving her
testimony and testified within 10 or 15 feet of Plant Manager
Messick who was in attendance at the hearing at all times.
On this basis, and in view of Respondent’s obvious antiunion
stance, whether or not the attitude was always lawfully ex-
pressed, witness Holbrook’s testimony should be given spe-
cial consideration in terms of its credibility.
William Bailey, though an outspoken union advocate, was,
like Lauretta Holbrook, presently employed by Respondent
and testifying in the presence of Plant Administrator
Messick. Notwithstanding his overt union activities and
prounion stance, he appeared to me to be somewhat reluctant
in testifying in the presence of Messick. Thus he could not
at first recall what he had divulged to the NLRB during the
investigatory stage which appeared in his affidavit. He finally
testified, without further prompting, that: ‘‘they were talking
about moving the plant back’’ (Tr. 254). In particular, he
then testified (Tr. 255) that Plant Administrator Messick said:
‘‘they could— he said he would, move the plant back in 24
hours if it turns to be a union plant.’’ Although he testified
that the period mentioned was 24 hours rather than 48 hours
(which I find was actually said by Messick) and did not re-
call where the plant would be moved back to (Tr. 255), there
was no question in his direct or cross-examination that it was
Plant Administrator Messick (rather than Attorney Berens)
who had made the statement concerning moving of the plant
if the Union were voted in.
Respondent’s witnesses, Brenda Blake and Elaine
Dickerson, testified concerning what Attorney Berens said
rather than what Messick said at the meetings. Chris Stone,
as above noted, fatally contradicted Messick’s denial of hav-
ing mentioned reopening Respondent’s Detroit plant in 48
hours in his speech at the meetings immediately before the
election.
In view of Bailey and Holbrook, current employees, testi-
fying in the immediate presence of and against the interest
of their employer’s chief supervisor; in view of their essen-
tially corroborating Wanda Erwin’s similar testimony; in
view of Stone’s materially contradicting Messick’s denials;
and in view of Messick’s original hesitant and equivocal de-
nials of having even mentioned reopening the Detroit plant
or a time period, I do not credit Messick’s testimony that he
did not mention reopening the Detroit plant or a time period;
and I further do not credit his testimony that Berens and
Berens alone mentioned the reopening of the Detroit plant in
48 hours. In view of all these circumstances, I credit General
Counsel’s witnesses and find, as alleged, that on September
18 and 19, 1991, 2 days before the Board-conducted election
of September 20, Respondent, through Messick, in violation
of Section 8(a)(1) of the Act (and thus also committing ob-
jectionable conduct for purposes of setting aside the elec-
tion), threatened its employees that Respondent would relo-
cate its facility if the employees selected the Union as their
bargaining representative.6
Patricia Kouns, Toby Kouns, and Ramona Martin7
The hiring, union and concerted protected activities of
Ramona Martin, Toby Kouns, and Patty Kouns
(1) Hiring and union and protected activities
Ramona Martin, Patty Kouns, and Toby Kouns were all
hired in May 1991: Ramona Martin and Patty Kouns on May
13; Toby Kouns on May 3, 1991. They were all discharged,
consecutively, on June 14, 1991. All were hired to work on
the ‘‘curing’’ production line which involved principally the
‘‘bagging’’ of hams. As I understood the testimony, the eight
or more bagging employees on the curing line picked hams
off of the moving belt and placed them in bags. That moving
belt was itself fed from another moving production line
wherein the hams were injected with various solutions for
preservation and other purposes (the ‘‘Koch machine’’). The
two lines apparently ran independent of each other so that
the belt of hams ready for bagging could be run independ-
ently of the production of hams. Thus, if the bagging of
hams ran behind the number of hams coming out of the
Koch machine, the ham production line could be stopped and
the bagging line continued so that the bagging operation
could keep up with ham production.
In the Grayson plant, the first level supervisors are called
‘‘coordinators.’’ John Wenson was the ‘‘coordinator’’ for the
1307COOK FAMILY FOODS
curing line and the direct supervisor of Toby Kouns, Patty
Kouns and Ramona Martin. Two nonsupervisors regularly as-
sist the ‘‘coordinator’’ in the proper running of the curing
line: the two nonsupervisory ‘‘group leaders,’’ Bill Griffith
and Christine Hale. Among the functions of the group leader
is to time the production of each of the curing line employ-
ees, to instruct the employees in the operations of the job,
and to counsel them in case their production was inadequate.
An acceptable rate of production for curing line baggers was
about seven or eight hams per minute. Ramona Martin testi-
fied without contradiction that after her first week, when she
bagged four to five hams per minute, she was timed by
Christine Hale at 10 to 14 per minute. Toby Kouns testified
without contradiction that Chris Hale told her that she was
bagging 10 to 12 hams per minute and Patty Kouns testified
that Chris Hale told her that John Wenson himself had timed
her at 10 to 11 bags per minute. All three testified that prior
to their June 14 discharges, they had never been disciplined
or counseled (orally) for the speed of their bagging produc-
tion. Toby Kouns ate lunch with Ramona Martin and Patty
Kouns about twice a week but it was only in the last week
of their employment that they worked constantly together on
the line. She met them on the first day of their employment
(May 13) but became acquainted while working on the line
and handing out union leaflets.
(2) Union activity
Union organizational activity among Respondent’s em-
ployees started in April 1991. Ramona Martin first became
involved with the Union at the end of May when she signed
an employee petition in favor of the Union. She stood next
to Patty Kouns who distributed handbills on the road leading
to the plant from the nearby union headquarters. Patty
Kouns’ distribution of leaflets occurred both in the morning
before work and in the afternoon or evening after work. At
the beginning of June, at lunchtime, in the cafeteria, she,
Brenda Blake, Toby Kouns, Ramona Martin, and Sharon
McGinnis were at a table with several newly employed fe-
male employees. Seated together about 9 feet away were co-
ordinator John Wenson, coordinator-trainee Bill Griffith, and
two members of Respondent’s supervisory hierarchy, Les
Johnson, the Plant Superintendent, and Dave Bolio, the Plant
Processing Manager. Her testimony is that these supervisors
at the nearby table were staring at them while they sought
to have the new employees sign a union support petition.
One of the two new employees, ‘‘Gloria’’—then signed the
union petition and passed it to another new employee who
did not sign it.
Toby Kouns testified that her union activities commenced
about a week after she started work (May 3, 1991). Thus, in
or about May 10, both before and after work, she handbilled
employees proceeding to and from the plant on the road be-
tween the Union’s headquarters and the plant itself. Plant
Administrator Tim Messick, coordinator Wenson, and Plant
Superintendent Les Johnson saw her distributing the hand-
bills. As above noted, although she worked regularly with
Ramona Martin and Patty Kouns, it was only in the last
week of their employment (June 7–14) that they worked con-
stantly together notwithstanding that they were at lunch
about twice a week.
Patty Kouns testified that she, also, distributed union leaf-
lets on the road to the plant and helped circulate employee
petitions and spoke to coworkers in favor of the Union. Cor-
roborating Ramona Martin, she testified that she signed up
an employee for the Union at the lunch table in the cafeteria
in the presence of Supervisors Wenson, Bolio, and others.
She testified it was she who passed around the petition at the
table with the supervisors silently observing the transaction.
Patty Kouns placed this event as occurring around June 12,
1991, and acknowledged that it was not only she who cir-
culated the petition but that she and Sharon McGinnis did so.
She also recalled that Brenda Blake, an employee like her-
self, left the table (at which Toby Kouns, Patty Kouns, and
Ramona Martin was sitting) to join the supervisors at the su-
pervisory table. Brenda Blake’s husband is a supervisor at
the plant.
At the end of 3 weeks of employment, thus around June
7, 1991, Patty Kouns (with other employees) was directed to
meet in the office of the highest plant supervisor, Plant Ad-
ministrator Tim Messick. The posttraining meeting of these
employees with Messick is called the ‘‘milk and cookies’’
meeting. Messick asked Patty Kouns if everything was okay;
how she felt about the Company and whether she was happy
as an employee. The conversation then turned to the question
of the Union. Union activity among the employees was a
common matter and employees in the plant openly took posi-
tions for and against the Union. Patty Kouns asked Messick
why Respondent, in view of the Union’s desire to debate the
Company, failed or refused to debate the union. Messick’s
reply was that he felt about the Union like he feels about
vacuum cleaner salesmen: they never get a foot into his
doorway.
Union Representative John Thacker testified that perhaps
250 of the 700 or more Grayson employees distributed union
literature; approximately 50 employees returned petitions on
which union support was recorded; and that there were 25
or more employees on the union’s organizing committee in-
cluding Carl Hale (husband of group leader Christine Hale),
Toby Kouns, Ramona Martin, Patty Kouns, and Sharon
McGinnis. There was no proof of Respondent knowledge of
their positions on the organizing committee.
(3) The testimony of group leader Christine Hale;
union animus
Christine Hale became a group leader in May 1991 on the
curing line. She knew Ramona Martin and Toby and Patty
Kouns as employees on the curing line.
The uncontradicted and credited evidence shows that on or
about May 23, 1991, she overheard ‘‘coordinator’’ John
Wenson tell his other group leader, Bill Griffith, that he was
going ‘‘to throw a . . . bitch fit . . . against the girls who
were out handbilling (Tr. 500–502). He specified that the
girls who were doing the handbilling were Ramona Martin,
Patty Kouns, Sharon McGinnis, and Toby Kouns (Tr. 505).
About 2 hours after she overheard Wenson’s remarks, she re-
peated them to the four female employees who were the ob-
ject of Wenson’s ‘‘bitch fit’’ remark (Tr. 506) and to other
employees as well.
While I noticed some hesitancy in Christine Hale’s re-
counting these events (notwithstanding that she testified in
support of the alleged unlawful discharge of her husband,
Carl Hale), there was no reluctance in the corroboration of
Hale’s testimony by former curing line employee, Betty Jo
McHenry. McHenry testified that on May 23, Ramona Mar-
1308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tin, Patty Kouns, and Toby Kouns were ‘‘out there’’ distrib-
uting union literature. On that day, her group leader, Chris-
tine Hale, told her and her curing line fellow employee ‘‘Me-
lissa,’’ that Wenson said that he was ‘‘going to throw a fit
but it would not be directed at me and Melissa and for us
not to pay any attention if he did throw one’’ (Tr. 1149).
Hale told Melissa and McHenry that they were not to pay
attention to the fit because it was not to be directed at them
(Tr. 1150), but that Wenson was ‘‘really upset because the
girls [were] out on the street handing out papers (Tr.
1151). . . handing out the union literature’’ (Tr. 1153).
McHenry testified that Supervisor Wenson appeared to her to
be upset, pacing back and forth (Tr. 1153).
(4) Ramona Martin’s arm injury; MSDS sheets and
other protected concerted activities
(a) Martin’s arm injury and the demand for
MSDS sheets
On June 3, 1991, Ramona Martin had cuts on her hands
due to work activities. On June 4, Ramona Martin, using an
allegedly too short shovel, hurt her arm shoveling ham
hocks. She told her group leader, Bill Griffith, who advised
her to see the coordinator John Wenson. Wenson told her to
visit the human resources department and speak with Super-
visor Raybourn. In Raybourn’s absence, the clerical in the
department gave her Tylenol and Martin returned to work.
By Friday, June 7, Martin noticed that her right hand was
swollen inside the glove and again informed the group lead-
er, Griffith, who sent her again to see Supervisor Raybourn
in the human resources office. Her hand was hot and swollen
and Raybourn advised an ice pack; and if it was not better
by lunchtime, she should return to the office. The hand did
not improve and she returned to the office. She then went
to see Supervisor Wenson in the cafeteria. He told her that
her condition looked like a ‘‘salt infection.’’ He told her to
return to work and she did so. Accompanied by Supervisor
Wenson, they visited Supervisor Raybourn. He told her it
was a salt infection and she questioned whether she had bet-
ter go to the doctor. Raybourn advised waiting a few days
and sent her home at 5 o’clock whereas her normal quitting
time was 8 p.m. He told her to soak her arm in warm water
(Wenson apparently advised her to soak her arm in cold
water).
On the same day, she called her doctor who, having men-
tioned that salt does not cause infections, advised her to dis-
cover what it was in the curing juice solution that might
react adversely against her. At that point, at about 7:30 p.m.
on Friday, June 7, she telephoned the plant and asked for the
MSDS sheets: the ‘‘Material Safety Data Sheets’’ sheets
which OSHA requires that each manufacturer keep at hand
to provide employees with information concerning the mate-
rials with which they work. There was nobody at the human
resources office at this time.
On Monday, June 10, she went to work and spoke to Su-
pervisor Wenson. She told him that her doctor wanted to
know of the materials used in the curing line juice. Wenson
told her that there was nothing in it but salt and water. When
she went to work that day, she visited the human resources
office and asked Human Resources Director Steve
Wennerholt for the MSDS sheets for her doctor. He told her
that he had none available at the time.
Some days before, after she had injured her arm and vain-
ly requested the MSDS sheets, her husband had telephoned
OSHA to determine the employer’s obligation to supply the
sheets. Martin testified that OSHA suggested that she ask for
the MSDS sheets again and, if refused, make a written re-
quest in the presence of witnesses.
At 9 a.m., on Wednesday, June 12, Ramona Martin, to-
gether with Patty Kouns and Sharon McGinnis, entered the
human resources office. Martin asked for Supervisor
Wennerholt and was told he was not there. She then handed
her written MSDS request to the secretary in the office. She
told the secretary that she needed the MSDS sheets by that
evening. The secretary told her that the supervisor who had
the sheets, Nick Raybourn, was out of town and that it was
unlikely that she would get the sheets.
At 1:30 p.m. on the same day (Wednesday, June 12) on
her lunchbreak, she went to Wennerholt’s office and asked
for the MSDS sheets. He told her that he did not have copies
of the sheets at that time. At this lunchbreak she, Patty
Kouns, Toby Kouns, and Sharon McGinnis were observed by
supervisors at a nearby table, attempting to cause new em-
ployees to sign a petition in support of the Union.
On the next day, Thursday, June 13, she again went to the
human resources office in the morning before 10 a.m. (her
starting time was at 10 a.m.) and asked Wennerholt for the
MSDS sheets again. She could not recall what his response
was but she did not get the sheets.
Later that day, at about 4 p.m., at breaktime, Ramona
Martin, in the company of Sharon McGinnis, Toby Kouns,
and Patty Kouns, spoke to Processing Manager Dave Bolio
in the cafeteria.
The afternoon cafeteria conversation between Supervisor
Bolio and the four employees resulted from events earlier
that day. When these employees reported for work, the air-
conditioning on the curing line caused the temperature to be
very cold. After they complained to newly promoted coordi-
nator Griffith, he arranged at their request a meeting with
Bolio. They told Bolio that they had not been permitted their
usual 10-minute break, that the temperature on the line was
too cold, and that the line was being operated faster than
usual. Bolio told them that the blowers could be shut off.
Martin mentioned to Bolio that the employees on the line
were acting rude to the three of them as if they were going
to be fired. Bolio told her that she was not going to be fired
and said ‘‘you girls are good workers’’ (Tr. 814). The em-
ployees then returned to work and the blowers were turned
off.
In the prior week, when the baggers on the curing line,
Toby Kouns, Ramona Martin, Patty Kouns, Sharon
McGinnis, and other employees were sent over to the ‘‘con-
verting line’’ because of a need on the converting line for
further help. They worked under group leader Brenda
Hammons. On one occasion, Brenda Hammons told her that
she thought that Ramona Martin was a good worker; indeed,
she told her that of all the employees sent over on that occa-
sion, she was the best of all of them. Group leader Hammons
asked her if she wanted to be transferred to the converting
line and whether she should ask Supervisor Wenson for the
1309COOK FAMILY FOODS
8 To the extent that Brenda Hammons testified that she made any
such statement sarcastically, and indeed, threatened Martin with the
statement that if she had been working under her (Hammons’) con-
trol, she would get more work out of Ramona Martin, I discredit
Hammons’ testimony. Similarly, I do not credit her testimony that
all four of the employees were worthless. That they may not have
been paragon employees is another matter.
9 Although the matter is not determinative, there is no suggestion
in the record, other than this reference to Plant Administrator Tim
Messick, that Messick was one of the supervisors who observed her
on the line. Either Wennerholt’s recollection is mistaken, Kouns’
recollection is mistaken, or Wennerholt created a gratuitous addition
to the number and identity of the supervisors who had observed the
employees on the curing line, particularly the three alleged
discriminatees herein, do their work on the days before the June 14
termination.
transfer. Martin testified that she merely grinned at
Hammons and said nothing.8
With the blowers turned off, as above noted, the curing
line employees who had spoken to Bolio returned to work
and finished their shift at 8 or 8:30 p.m. that Thursday
evening.
The discharges of Ramona Martin, Toby Kouns, and
Patty Kouns
On Friday, June 14, Ramona Martin came to work at the
starting time of 10 a.m. and together with the other curing
line employees worked until lunchtime. After lunch, at about
1:30 p.m., as she was returning to the curing line, coordi-
nator Griffith told her that she was wanted in the human re-
sources office. Griffith had become a supervisor and a coor-
dinator on June 12. When she entered the office, Supervisor
Wennerholt told her that she was going to be terminated as
of that moment. He told her that she had slowed down pro-
duction to bagging about 2 to 2-1/2 hams per minute. Martin
denied that and asked him who told him that. Wennerholt did
not respond. He then told her he had tried her out on another
line and that she did not work out on that line either. Martin
responded by telling him that group leader Brenda Hammons
had told her that she liked Martin to work on her line.
Wennerholt said that Brenda Hammons had not told him
that, directly implying that Hammons had told her the oppo-
site. Wennerholt told Martin that she should leave the build-
ing immediately. She cleaned out her locker, then returned
to the human resources office and asked Wennerholt for the
MSDS sheets. He gave her some MSDS sheets but Martin
said they were not curing line sheets. Wennerholt told her
that if he got the curing line sheets, he would mail them to
her.
Toby Kouns testified that at about 1:20 p.m. on that same
Friday, June 14, Supervisor Griffith told her to go to the
human resources office. He accompanied her. There, she
found Wennerholt who told her that he was terminating her
and had two major complaints against her. He said that every
time her coordinator left the work floor, she slowed down
her work. When Toby Kouns asked him who had seen her
slowing up on her work, Wennerholt said that he himself had
seen her together with Tim Messick.9
In response to Wennerholt’s identifying the supervisors
who had seen her slow up, Toby Kouns said: ‘‘whoever had
said that, to bring them up to my face and . . . let them tell
me to my face that I didn’t do my work’’ (Tr. 867).
Wennerholt said that he could not do that. Kouns then asked
to keep her job because she liked it and asked for the oppor-
tunity to ‘‘prove myself’’ (Tr. 867). She said that if she
didn’t do what she said she would do, she would quit and
that Respondent would not have to fire her. Wennerholt told
her that he would speak to supervisors and group leaders and
see what they had to say and directed her to call him back
on the following Monday for an answer (Tr. 867).
At this point, Kouns testified that she considered the con-
versation to be at an end and asked Wennerholt whether it
was. He said it was the end, When she stood up to leave,
she remembered that he had never told her what the other
complaint was against her. She testified that he then repeated
a phrase which he had already used in their conversation.
Thus when she told him that he had forgotten to tell her the
second complaint against her, he said: ‘‘Well about all I can
say is we got to watch who we’re with; we got to watch the
company we’re with’’ (Tr. 868). Kouns walked out and Grif-
fith left with her.
During the conversation, however, when Toby Kouns pro-
tested that she bagged more than 7 hams per minute and had
been timed at doing 10 or more hams per minute (Tr. 869),
and that, indeed, she had been timed at that rate only the day
before (June 13) (Tr. 870), Wennerholt asked Griffith if
Kouns’ statement was true and Griffith said: ‘‘Yes, she does
the standard’’ (Tr. 870).
Patty Kouns testified that Ramona Martin hurt her wrist on
June 4, 1991, while shoveling hamhocks. Later, she recalled
seeing Martin’s arm swollen and having a ‘‘green’’ color.
She saw her leave the line and speak to coordinator Wenson.
She further testified, corroborating Martin, that on June 12,
around 10 a.m., before they started work, Martin asked her
to be a witness and go with her to the human resources of-
fice where she would present a written request for the MSDS
sheets. Together with Sharon McGinnis and Ramona Martin,
Patty Kouns went to the office and there saw Martin hand
to the blonde office clerical the written request for the MSDS
sheets.
Patty Kouns also testified that on June 13, the day before
her discharge, at the start of the workday, it was very cold
on the bagging line. She, like Ramona Martin, complained
to various persons on the line including the maintenance man
about the blowers on the air-conditioner, and testified, with-
out contradiction, that the conveyor belt went faster after
lunch than it had ever done, causing the hams to knock into
each other. It was so cold that she got all her clothes on. For
the first time in her working experience, there was no 10-
minute break at 3:30 p.m. She recalled that Griffith told her
that Supervisor Wenson said there would be no breaks until
all the hams had been bagged. At this point, Sharon
McGinnis told Griffith that they needed a break and when
Griffith refused, she asked him to get Supervisor David
Bolio down to the line. Griffith said that he would see about
it and thereafter, at about 5 p.m., told the employees that he
had set up a meeting with Bolio. As with Ramona Martin’s
testimony, she testified that they met with Bolio in the lunch-
room (Sharon McGinnis, Toby Kouns, Ramona Martin, and
Patty Kouns). Bolio came over to their table and they told
them of the cold air-conditioning; the failure to have a break
and the speed of the conveyor belt. Bolio told them that the
air-conditioning could be turned off. They returned to work.
1310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Patty Kouns further testified that on June 14, the day of
the discharge, she saw Griffith get Ramona Martin off the
line and a few minutes later, Ramona Martin ran into the
work area and hollered something that she could not under-
stand. About 20 minutes later, she saw group leader Griffith
call Toby Kouns off the floor and Kouns never returned. At
about 3 p.m., after lunch, Supervisor Wenson told her that
she was wanted in the human resources office by Steve
Wennerholt. She entered the office accompanied by Wenson.
Wennerholt told her that Respondent was having ‘‘a little
problem’’ and that ‘‘you four’’ have been timed at doing two
hams per minute. He did not describe who the ‘‘four’’ were
(Tr. 1001) and told Patty Kouns that she had ‘‘a bad attitude
toward the Company.’’ She told him that whoever told him
that she bagged two hams per minute was a liar. Wennerholt
said that he himself had timed her and she told him that he
was a ‘‘liar’’ (Tr. 1001). She told him that he knew that they
had had a ‘‘problem down there yesterday . . . it was cold
. . . our fingers were numb’’ (Tr. 1001). Wennerholt said
that it wasn’t merely yesterday (June 13) but that she had
been timed on Wednesday, June 12 as well (Tr. 1001). She
then repeated that whoever told him that her work had
slowed down was a liar. He told her that John Wenson had
told him. Wenson was standing beside her at the time (Tr.
1002). Patty Kouns did not inquire of Wennerholt what he
meant when he said that she had a bad attitude. She asked
him if she was being fired and he said that she was termi-
nated. Kouns then said: ‘‘Steve, you know the reason I am
being fired is not because of my work’’ (Tr. 1003).
Wennerholt then shrugged his shoulders. He had her check
waiting for her. She then cleaned out her locker and left.
The testimony of Toby Kouns, Patty Kouns, and Ramona
Martin each specifically contains a denial that any of them
was ever warned or ‘‘counseled’’ concerning the quality or
quantity of their work by any supervisor or group leader.
Respondent’s defenses to the alleged unlawful
discharges of Martin, Patty Kouns, and Toby Kouns
(1) Chris Stone testified that he was first employed by Re-
spondent on June 10, 1991. He worked on the curing line
along with Ramona Martin, Sharon McGinnis, Patty Kouns,
and Toby Kouns. In the first week of employment (the three
alleged discriminatees were thus discharged, on the fifth day
of Stone’s employment), he loaded the Koch machine and
‘‘hung’’ hams already bagged. Of the nine baggers on the
line, he testified that he observed that Martin, McGinnis, and
the two Kounses were poor employees because they were
often giggling and talking with each other and not bagging
hams; and when Bill Griffith walked by, they started to bag
hams. In particular, he observed that, from time-to-time, Ra-
mona Martin was talking and giggling on the line and not
bagging hams, letting hams go by on the line. Patty Kouns
was also talking and looking around sometimes bagging
hams while talking. Toby Kouns, he thought, was a poor per-
former but did better at times. He said he saw Bill Griffith
speak to the four ladies but could not hear them and that
after he spoke to them the unbagged hams decreased. In the
4 days prior to their discharge, he testified that he saw Grif-
fith speak to them six to seven times, more than once a day.
Stone testified that while these employees were giggling,
talking and letting the hams go by, there was only one group
leader at that time, Chris Hale. He said that she was back
and forth on the line but he was not sure if she ever saw
them giggling and talking. He wasn’t paying attention to
Chris Hale. He admitted that he could not see the baggers
at the other end of the line and said it was possible that other
employees further up on the line could have been responsible
for unbagged hams coming down the line (Tr. 1209). I credit
Stone’s testimony insofar as he observed, from time-to-time,
these four employees kept together, giggling and talking
among themselves and occasionally letting hams go by. On
the basis of his testimony, I am unable to conclude that they
were solely responsible for the quantity of hams that went
by unbagged especially in view of his testimony that it might
have been baggers further up the line who were responsible
and that the seriousness of the misconduct of the three al-
leged discriminatees was apparently not so great as to catch
the eye of the group leader Chris Hale, who, according to
Stone, was consistently patrolling the line. As to whether the
employees’ production increased after Griffith spoke to them
on the alleged six to seven occasions, that matter will be
dealt with below.
(2) Tim Dinkens, hired in April 1991, worked on the cur-
ing line in June along with Ramona Martin, Toby Kouns,
and Patty Kouns. He worked 3 to 6 feet from the three of
them and said that all three of them most of the time had
the bagging nets on their hands and were talking to each
other, not bagging hams. Observing them many times in a
day, he, like Stone, saw that they were doing nothing: just
standing there with nets on their hands. He testified that the
four to six baggers other than these three did much better
work.
Unlike the testimony of Chris Stone, Dinkens testified that
group leader Griffith spent 50 percent of his time at the line
next to Dinkens and apparently had the three employees
(Kouns, Martin, and Kouns) under observation but neither
said nor did anything about their work habits. He also testi-
fied that of the 50 percent of his own workday spent bagging
he never saw them bag any hams whatsoever (Tr. 1229). He
testified that the group leader, Bill Griffith, (allegedly spend-
ing 50 percent of his time standing next to Dinkens) spent
more of his time at his desk doing paper work and came
over to the line to bag hams only when they were very busy
(Tr. 1230). He further testified that half the time he was on
the line bagging hams, Griffith was there with him bagging
hams. Finally, Dinkens testified, again, that half of his work-
day was spent bagging: that during half of that time, group
leader Griffith was standing on the line bagging hams; and
that his testimony was that at all times on the line, the three
alleged discriminatees kept talking and did no bagging when-
ever he saw them, even when group leader Griffith was on
the line, standing next to him bagging (Tr. 1239). Griffith
was either standing next to him bagging while the three
women did no bagging (and Dinkens was 3 to 6 feet from
him) or Griffith was standing at the head of the line some
6 or 8 feet from where the three women were working (Tr.
1240). Ultimately, he testified that in the month that the three
alleged discriminatees were employed, Griffith was on the
line with him on many occasions while the three were work-
ing and he might have seen them doing nothing. On the
other hand, he said that although there are a lot of hams
going by on the line, he might not have seen them because
he was busy (Tr. 1242). Neither employee Dinkens nor em-
ployee Stone mentioned to group leader Griffith the fact that
1311COOK FAMILY FOODS
10 Such testimony confirms the testimony of Dinkens and Stone
that the group leaders, and now, Supervisor Wenson, were aware of
a problem on the production line concerning employees not main-
taining production while Wenson was out of the room.
11 Just how she discovered these rates is hardly clear on the basis
of her testimony or the testimony of other Respondent witnesses.
She testified, for instance, that Wenson did not tell her the bagging
rates of the other employees but she heard it from the employees
themselves. She also testified that she didn’t recall what Griffith said
to the employees but counsel for Respondent objected that that is not
what she said but that she testified that she didn’t hear what he said
to them.
these three women were not doing their share of the work
(Tr. 1242).
From the testimony of employee Dinkens, I conclude that
group leader Griffith had the alleged discriminatees under
observation on many occasions; that assuming that they were
doing nothing from time-to-time except giggling and talking
to each other, he did nothing about it though the condition
was known to him for about a month, according to Dinkens’
testimony.
(3) Employee Brenda Blake testified that she worked as a
bagger on the curing line with Toby Kouns, Ramona Martin,
and Patty Kouns. Brenda Blake’s husband, at the time she
gave testimony, was a supervisor employed by Respondent.
It was Brenda Blake who left the bench table while the al-
leged discriminatees, on June 12, were circulating for signa-
tures the employee petition. She joined the supervisors at
their table.
Brenda Blake testified that in the 1- to 2-week period prior
to the discharge of the alleged discriminatees on June 14, she
worked beside them, no more than 2 to 4 feet from them and
observed their work. She regarded them as poor performers,
continually slowing down and talking, particularly in the ab-
sence of Supervisor John Wenson. She testified that the other
five baggers on the line were up to standard and were bag-
ging eight hams per minute. She observed group leader Grif-
fith in this 2-week period, speak to Patty Kouns and Sharon
McGinnis but not Toby Kouns. When Griffith spoke to them,
their poor work picked up.
Around the first of June, in a meeting devoted to the em-
ployees’ gain sharing pay plan, she recalled that Supervisor
Wenson told the employees, without mentioning names, that
production must be maintained whether he’s in or out of the
room.10 The events of June 7 and thereafter, of course, had
not yet occurred.
Blake testified that before the discharge of the three
discriminatees, she told Supervisor John Wenson that she
wanted to be transferred off the curing line because she had
to do the work of others including Sharon McGinnis, Toby
Kouns, Ramona Martin, and Patty Kouns. Brenda Blake,
who was first employed on May 14, 1991, said that this oc-
curred in the third week of her employment around June 1.
Wenson, according to Blake, told her that he’d take care of
the problem for her. She was never transferred as she re-
quested.
Unlike the testimony of the three discriminatees, Blake
testified that there was no severe air-conditioning problem on
the line in June and nothing was out of the ordinary.
Blake, who was admittedly antiunion, attended the ‘‘cook-
ies and milk’’ meeting with Plant Administrator Messick
(about 2 weeks after she was hired) along with Patty Kouns.
When Patty Kouns raised the question of the presence of the
Union and whether the Respondent would pay employees $7
an hour, Messick said it was only a rumor. He said that with
regard to Patty Kouns’ question of whether joining the union
would cause a loss of a job, Messick said that there was job
security for union supporters and it didn’t matter whether the
employees joined the union or not.
Brenda Blake further testified that in the week ending with
the discharge of the three employees (June 14), she saw Su-
pervisors Bolio, Johnson, and Wennerholt on the mezzanine
observing the curing line on three occasions: Wednesday,
Thursday, and Friday (June 12, 13, and 14) where they stood
for about 15–20 minutes. She had never seen company offi-
cials on the mezzanine before that time.
Blake testified that until Griffith approached the employ-
ees, they were only bagging two to three bags per minute but
after he spoke to them, their production rate went up to
seven to eight bags per minute.11
Blake then testified that she saw Griffith approach and
speak to them on more than one occasion but she was unable
to say how many times he talked to them (Tr. 1290–1291).
She then appeared to testify that she saw him speak to them
once a day and then testified that he spoke to them only on
one occasion (in which she did not hear the conversation)
and that was the only time that he spoke to them in her pres-
ence. She testified that this occurred in the first week of June
and that was the only time that she could recall that Griffith
approached the three of them (Tr. 1292–1293).
(4) Amy Gee, employed by Respondent for about 18
months at the time of her testimony, testified that she worked
on the converting line in May and June; that she knew the
two Kounses and Martin because they had been sent over to
help the employees on the converting line on three or four
occasions (actually it was two occasions).
She regarded the two Kounses and Ramona Martin to be
poor performers letting the hams go by without working on
them. Gee testified that only Sharon McGinnis, Patty Kouns,
Toby Kouns and Ramona Martin were sent over to help out.
Testimony of other witnesses, however, shows that these four
were went over in the company of several other employees.
In any event, they were sent over to do stuffing and tieing
of hams. In particular, she testified that Toby Kouns let the
hams go by without tieing them (Tr. 1301). Her previous tes-
timony, however, was that she couldn’t see what they were
doing on the line and whether they were ‘‘putting forth what
they could have’’ (Tr. 1300). Although Gee claimed to have
misunderstood the question in first denying her ability to ob-
serve the job performance of the four employees (Tr. 1300),
she thereafter testified that she could see only the job per-
formance of Toby Kouns which she said was poor. It is
therefore difficult to understand how she came to the conclu-
sion that all of them performed poorly. Nevertheless, to-
gether with other employees on the line, she discussed their
performance with group leader Brenda Hammons and said
that because of their poor work performance the employers
did not want them to return to work (Tr. 1303). Notwith-
standing that Brenda Hammons, the group leader, told the
employees that she would speak to the converting line coor-
dinator, Fred Fischer, about the poor quality of their work,
and while Gee did not know whether Fischer had been con-
tacted by Brenda Hammons, the four employees nevertheless
1312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Supervisor Wenson testified that he sent the four employees
over to the converting line fewer than five times; that on each occa-
sions, he sent five to seven employees; that these employees were
sent over to the curing line 2 weeks before June 7 which is the first
time that Wenson looked into the problem after Brenda Hammons
complained to him; and Brenda Hammons testified that these em-
ployees did not work for her on her line in the month of June.
13 As above noted, group leader Brenda Hammons testified that
she spoke directly to Wenson concerning the poor quality of the
work of these employees on her line as early as the beginning of
the last week of May, 1991. It was in that conversation that
Hammons said that the girls weren’t worth anything and that
Wenson, according to Hammons, said he would check into the situa-
tion and that he had complaints before hers about them (Tr. 1343–
1344). Wenson ended that conversation by saying: ‘‘I know . . . I’d
like to get rid of them myself’’ (Tr. 1344). Again, the Hammons’
conversations with Fred Fischer and Wenson occurred on the same
day and occurred more than 2 weeks before the June 14 discharges
(Tr. 1344).
returned thereafter on at least 2 occasions to work on the
converting line (Tr. 1305–1306). Lastly, employee Gee testi-
fied that the employees who complained of the quality of the
work of the four employees, including herself, Brenda
Hammons, Elaine Dickerson, and Pam Walker, were all out-
spokenly antiunion (Tr. 1322–1323).
(5) Brenda Hammons testified that she was the group lead-
er on the converting line; that Toby Kouns, Ramona Martin
and Patty Kouns were sent over to work on her line 5 to 10
times in a month (this is clearly exaggerated); that they
worked on the converting line from 1 hour to all day; that
she actively patrolled the converting line and observed the
employees at work, clipping and tieing (Patty Kouns was
doing casing and loading work); that in her opinion the job
performed by the three employees were very poor; that the
job performance of Toby Kouns upset her ‘‘severely’’ be-
cause she let hams go by; that Hammons told her to reach
out and grab the hams but in response, Toby Kouns told her
that other employees tied faster and that she herself did not
need to do it.12
Hammons testified that she spoke to Fred Fischer after she
had spoken to Toby Kouns two to three times and Toby
Kouns merely shrugged at her. She told Fischer that ‘‘those
girls that John Wenson sent over here aren’t worth a shit’’
and Fischer told her to speak directly to Wenson. She did
so. He told her that he had complaints from others and
would check into it. When she told him not to send them
again, he said that he knew about the condition and would
like to get rid of them himself. Hammons places this con-
versation with Wenson about 2 weeks before they were dis-
charged. None of the employees were thereafter sent over to
her line.
In particular, with regard to Ramona Martin, she testified
that Martin’s fingernails cut into casing and although she
eventually clipped her nails, she was not doing one out of
four hams that were presented for her work. The tiers on the
line complained that bags were not being clipped by Ramona
Martin before they were tied. A net was supposed to be
placed over the ham before it was clipped so it could be
hung on a ‘‘tree.’’ Of the 15 to 20 employees on the line,
Hammons said that the 3 employees were the poorest and
that she told Patty Kouns once or twice to speed up in mov-
ing the casings. Hammons testified that after she spoke to
employees, she ordinarily saw improvement but with these
three employees, there was no improvement.
Lastly, Hammons testified that although there was no
‘‘vote no’’ committee against the Union, she was actively
antiunion and that, at a union meeting, she told the Union
to ‘‘get out of town,’’ that she had a job and needed no ag-
gravation from the Union. She also testified that she knew
that Patty Kouns, Toby Kouns and Ramona Martin were ac-
tive union supporters. She nevertheless testified that on her
converting line, there were some good prounion employees
and some bad antiunion employees.
Ramona Martin testified that on two occasions in the week
ending June 7 (Friday) when a half dozen or more employees
were sent over to the converting line to work under Brenda
Hammons, Brenda Hammons, according to Ramona Martin,
told her that she thought she was a good worker and indeed
was the best of all of them that had been sent over. Martin
testified that Hammons told her that if she thought she could
‘‘handle’’ working under Hammons on the converting line,
she would speak to John Wenson and see if she could be
transferred. Brenda Hammons specifically denied Martin’s
testimony that she offered Martin the opportunity to work on
her line. Rather, she testified that she told Martin, sarcasti-
cally, that she could get work out of Martin (who was able
to do the job) if Martin was working under Hammons. In re-
buttal, General Counsel again called Ramona Martin who
testified that in a conversation in the cafeteria one week be-
fore the June 14 discharge, Hammons asked her to consider
transferring to Hammons’ line and offered to talk to Wenson
about it, asserting that Martin was one of the best sent over.
Martin said that she made no reply.
(6) John Wenson, employed 8 years by Respondent and
since August 1990, a coordinator on the curing line, unac-
countably testified that he first became aware of ‘‘problems’’
with Ramona Martin, Patty Kouns and Toby Kouns who
worked on his line on Friday, June 7, 1991.13 It is therefore
difficult to square the timing of when Supervisor Wenson
first became aware of the work problems concerning these
three employees. Whereas Hammons testified that she spoke
to Wenson more than 2 weeks before the discharges (Tr.
1344), and therefore in May 1991; Wenson testified that he
first became aware of a problem concerning their work habits
on Friday, June 7, 1991, when his group leader Billy Griffith
told him that he had a problem with those three employees
not doing proper bagging (Tr. 1430–1431). Yet, as noted
hereafter, group leader Griffith testified that the three em-
ployees performed poorly commencing with their 3-week
training period and thereafter. Whenever he observed their
work, they were performing poorly (Tr. 1567–1570). They
were performing so poorly, he testified, that he three times
stopped production apparently because of them. But he never
reported these interruptions.
Supervisor Wenson testified that his group leader, Bill
Griffith (the other group leader on the line was Christine
Hale), told him that he had a problem with the two Kounses,
Sharon McGinnis, and Ramona Martin in that they were not
bagging. He told Griffith that he would check it out. He then
went up to the mezzanine surrounding the work floor, about
20 feet above the work floor, and observed the employees
on the bagging line. He testified that he saw the four em-
ployees (including Sharon McGinnis) not doing their job and
1313COOK FAMILY FOODS
14 Wenson did not deny General Counsel’s witnesses’ testimony
that the line had speeded up that week. The 900 to 1000 hams which
accumulated in the vats occurred, apparently, because Wenson spec-
ulates that he may have been on duty away from the curing line for
as much as 2 hours (Tr. 1444). He also testified that even patrolling
the line, he might not have noticed the vats at the end of the line
accumulating 1000 hams and that group leader Griffith, whose re-
sponsibility is also to patrol the line, may also have been in a dif-
ferent room and not seen it. He acknowledged, however, that it was
Griffith’s responsibility to see that the hams did not accumulate in
the vats (Tr. 1444).
15 The record, therefore, does not encourage a favorable credibility
evaluation for Wenson. He testified a few minutes earlier that ‘‘ev-
erything went fine after [Griffith] talked to them’’ (Tr. 1440). Here,
Griffith’s counseling brought no response (Tr. 1459–1460).
that the balance of the eight baggers were working a lot
harder because the four employees were not doing their
work. He testified that he then left the mezzanine, proceeded
downstairs and directed group leader Griffith to counsel the
four employees. Wenson did not speak to any of them nor
did he accompany Griffith nor, does the record show, did he
receive a report on the result of the counseling. Wenson ob-
served that on June 7, as a result of these employees’ lack
of attention to their work, there were a thousand unbagged
hams in the vats at the end of the line whereas usually only
about 100 to 200 are unbagged. Wenson particularly testified
that at the same time he told Griffith to counsel the employ-
ees, he told Christine Hale to do the same thing: ‘‘Tell them
they need to be doing their job’’ (Tr. 1496; 1498). Christine
Hale, according to Wenson, had not complained to him con-
cerning their work habits.
On Monday, before 10 a.m., Wenson noticed that there
were perhaps 900 unbagged hams in the vats. He then sought
out Processing Manager Dave Bolio and told him of his
problem with employees not doing their job. They went to-
gether to the mezzanine and saw the four subject employees
talking and not doing their jobs while other employees were
doing their jobs. Wenson testified that Bolio directed him to
have his group leaders talk to the four employees. When
Bolio told Wenson to have his group leaders talk to the four
individuals, Wenson did not tell Bolio that he had already
done so (Tr. 1439). Rather, he again instructed Griffith (he
does not mention Chris Hale) to counsel the employees (Tr.
1439). Although he did not hear what Griffith said to the
employees, ‘‘everything went fine after Billy talked to them’’
(Tr. 1440).
Although nothing of consequence happened on June 11
(Tuesday), by June 12, the same problem, according to
Wenson, reoccurred (Tr. 1440). There were about 1000 hams
at the end of the line unbagged.14 He noticed this after lunch
and again sought out Bolio who in turn sought out his supe-
rior, Plant Manager Les Johnson. They then created a plan.
Bolio and Johnson went up to the mezzanine and, according
to the plan, Wenson returned to his downstairs work station
in order to show Johnson and Bolio how the line operated
when he was in the room (Tr. 1441). According to the plan,
Bolio then called down to Wenson to come up to the mez-
zanine to see what happened to the employees on the bag-
ging line. Thus Wenson left his desk near the curing line (60
feet from where the four employees were working) and pro-
ceeded up to the mezzanine.
After Bolio and Johnson called Wenson to return to the
mezzanine, Johnson yelled out: ‘‘they’re only bagging two a
minute’’ (Tr. 1446). Johnson mentioned only Toby Kouns
and Sharon McGinnis (Tr. 1447–1448). Wenson apparently
testified that Johnson yelled it twice: once when Wenson was
up on the mezzanine and again when Wenson had returned
to the floor (Tr. 1448–1449). Whether the employees heard
what Johnson yelled was not established. After Johnson
yelled down, production allegedly went well (Tr. 1451).
Wenson testified that on the next day, Thursday, June 13,
the same production problem arose again. Again, Wenson
sought out Bolio who this time went to see Steve
Wennerholt, the human resources director (Tr. 1452). Bolio
and Wennerholt then performed the same function as Bolio
and Johnson had done the day before: they went to the mez-
zanine to observe the employees while Wenson went to the
work floor. Bolio then again called down to Wenson to come
up to the mezzanine (Tr. 453). Wenson testified that as soon
as he got to the mezzanine, Wennerholt was ‘‘irate’’ and
said: ‘‘who are these people . . . this is bull shit.’’ (Tr.
1453). Wenson and Bolio gave him the names of the four
employees at Wennerholt’s request (Tr. 1456). Wenson testi-
fied that the four employees were easily identifiable as not
doing work: They would each ‘‘half bag’’ a ham and stand
there and hold it and start talking amongst themselves (Tr.
1457). Whenever someone in authority entered the room,
they finished bagging the ham (Tr. 1457). He testified that
they failed to perform the work even though group leader
Griffith was patrolling the line. This also occurred even after
Griffith had at least twice counseled the employees con-
cerning their poor work. Wenson testified that the reason he
sought out Bolio and Johnson was that he was going through
the channels of the chain of command and wanted to get
higher authority involved before he recommended that they
be fired (Tr. 1459). He testified that although Griffith coun-
seled these employees on more than one occasion, urging
them to work harder, it brought no response from these four
employees (Tr. 1459–1460).15
At 4 p.m., Wenson, Bolio, Johnson and Wennerholt held
a meeting. The purpose of the meeting was to decide what
to do about these four employees who slowed production
when the coordinators were not around. The supervisors
voted unanimously to recommend that they be terminated for
failure to do their jobs. Later in the day, Wenson told Plant
Administrator Tim Messick of the recommendation and
Messick said that he would look into the matter.
Tim Messick testified that he alone has the power to au-
thorize the termination of employees; that in the afternoon of
the 13th of June, he met Wennerholt in the hall and found
him highly agitated. Wennerholt told him that he wanted to
terminate ‘‘those people.’’ Messick told Wennerholt to calm
down and to supply the details. Between 5 and 6 p.m.,
Messick held a meeting with Bolio, Les Johnson and
Wennerholt. In the meeting, they told him they investigated
the matter and their unanimous recommendation was for dis-
charge. They told him of several incidents wherein they
themselves had seen the employees slow to a stop and
Messick told him that he would think about it. On the next
morning, he told them that he agreed with their decision and
authorized them to proceed to terminate the employees.
(7) Group leader Bill Griffith testified that he was the
group leader on the bagging line until June 12 when he was
1314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 As with coordinator Wenson’s testimony on the question of
when he first became aware of problems with the three employees,
Griffith’s testimony here on the quality of their work does not allow
a conclusion in favor of his credibility.
promoted to be the coordinator on the line, replacing
Wenson. As the prior group leader on the curing line, he had
an opportunity to witness the production of Toby Kouns, Ra-
mona Martin, and Patty Kouns. He described their perform-
ance as ‘‘very poor’’ (Tr. 1557). In particular, he testified
that their performance was ‘‘very poor’’ the whole time they
were employed by Respondent and whatever job they did
whether 90 percent of the time in bagging or 10 percent of
the time in some other job (Tr. 1566–1567). Thus, he testi-
fied that he observed that they were poor employees even
during the 3-week training period following hiring (Tr. 1567)
and they were poor in every job they did (Tr. 1568). Griffith,
however, testified both that they were capable of doing good
work and did so possibly around 50 percent of the time (Tr.
1568), and that at no time did he observe them ever perform
well (Tr. 1570).16 He then testified that perhaps they worked
3 or 4 hours in the morning on a good basis and regularly
failed to perform thereafter (Tr. 1571).
Griffith testified that on several occasions he spoke to
them about their performance. The first was on June 5, 1991.
He saw them letting hams go by unbagged whenever coordi-
nator Wenson left the room. Although he saw them perform
in this fashion before June 5, he testified that he never spoke
to them about their poor performance. On June 5, he asked
them what their problem was and admonished them to keep
up production. He said they never answered him. They were
together on the line across from each other. He said, how-
ever, that their production improved after he spoke to them.
On the next day, June 6, he saw that when Supervisor
Wenson left the area, the slowdown began again with the
employees not bagging. The employees complained that it
was wet and cold and he told them he would order ‘‘socks’’
to be put over the air-conditioning vents. After that, he testi-
fied that production improved.
On the very next day, Friday, June 7, when Supervisor
Wenson left the area, the three of them stopped bagging en-
tirely. Griffith testified that he told Wenson about the failure
to bag and named the three employees. Griffith, corrobo-
rating Wenson, testified that Wenson directed him to talk to
the employees and he did so. There was no mention in Grif-
fith’s testimony that at this time, or at any other time,
Wenson had instructed group leader Chris Hale, in Griffith’s
presence, to admonish the employees to work harder.
Wenson told Griffith that while Griffith was admonishing the
employees, Wenson would observe what was going on. Grif-
fith said that Wenson then went to the mezzanine and, on
returning, told Griffith to speak to the employees again. He
did so and told the employees to continue to engage in the
bagging operation even when Wenson left the room. He tes-
tified the employees again did not answer him.
The fourth time that Griffith said he warned the employees
was on Monday, June 10. Again, when Wenson left the area,
the work slowed down. He said he then discussed this matter
with Wenson who asked him what was going on. Griffith
told him it was the same three employees who were slowing
down production and Wenson told him to talk to the employ-
ees again. He did so. He observed Wenson was becoming
upset at the fact that the employees continued to slow down.
Griffith said he then admonished the employees and received
no response but noted that production had gone up. Griffith
testified that Tuesday, June 11, showed normal production.
On June 12, when Griffith was promoted to coordinator
over the bagging operation, he heard, about noon, shouting
coming from the mezzanine and saw Les Johnson up there
shouting that the employees were bagging only two hams per
minute. He noticed that all the employees looked up at the
shout.
Whereas on June 13, Griffith was not involved with the
three allegedly bad employees, he knew that on June 14 they
were terminated. Indeed, he was a witness at the Patty
Kouns’ termination. He denied that she accused anyone of
being a liar and said that Kouns said she would avoid the
group of employees if given a second chance.
As previously noted in the margin, the cross-examination
of group leader Bill Griffith was favorable neither to his
credibility nor to Respondent’s defense. He testified that on
June 5, with the three employees not bagging the hams and
letting others go by, the accumulation of hams was so great
that he shut down the production line on hams (but not the
bagging line which accepts the produced hams) for 5 minutes
in order to let the employees catch up with the bagging so
that they could start the ham production line again (Tr.
1598–1600). On June 6, according to Griffith, the same thing
happened when Wenson left. The employees stopped bagging
and he again stopped the Koch injection machines producing
the hams. He kept the bagging line conveyor belt running so
that the existing unbagged hams could be bagged. He testi-
fied that he had no such problems with other employees and
had never shut down the production machines with other em-
ployees (Tr. 1605). Griffith testified that his shutting the pro-
duction line down was a ‘‘serious matter’’ but he did not re-
port either of these two shutdowns to anyone. Finally, Grif-
fith testified that even before Supervisor Wenson left the
bagging line area, hams were backed up and that he could
not be sure that it was not other employees who may have
caused the problem with the backup (Tr. 1615). He then tes-
tified that this was not a correct statement but that the three
employees in question at least contributed to the problem
(Tr. 1617). He then admitted that there was a problem with
backed up hams even before Wenson left the room (Tr.
1617). He then testified that he ‘‘assumed’’ that the three
employees contributed to the problem. He also testified that
they were not bagging hams even before Wenson left the
room (Tr. 1618). When the General Counsel called to his at-
tention the fact that his original testimony was that the prob-
lem of the employees not working did not arise until Wenson
left the room, Griffith said that he did not know what the
General Counsel was driving at (Tr. 1619) but admitted that
there were already an abundance of hams overflowing into
the vats even before Wenson left the room (Tr. 1619). He
lastly testified that on June 7, he actually did not know what
caused the problem with the backed up hams (Tr. 1619–
1620). He testified, however, that he shut the production line
down as soon as Wenson left the room (Tr. 1620). Ulti-
mately, he testified that although they were not fully doing
their jobs even when Wenson was present, as soon as he left
the room, they stopped work completely (Tr. 1620–1621).
Thus, Griffith testified that he counseled the employees three
times (June 5, 6, and 7); that he spoke to Wenson on June
1315COOK FAMILY FOODS
7; and that he shut down the production line a total of three
times; on June 5 (Tr. 1600–1601); on June 6 (Tr. 1603–
1604); and on June 7 (Tr. 1609). But contrary to the testi-
mony of Johnson, Bolio and Wenson, Griffith admitted that
there were production problems on the line with the backing
up of hams even before Wenson left the room (Tr. 1617);
and that Griffith merely assumed that the three recalcitrant
employees were causing the problem (Tr. 1618). He also tes-
tified that other employees who were not bagging might have
caused the problem of backed up hams before Wenson left
the room (Tr. 1627). And that he had closed the line down
for as much as 20 minutes and then spoke to the employees
on June 7.
With regard to his fellow group leader, Christine Hale,
Griffith testified that Hale was on the line with him on June
5, 6, and 7. His testimony in this regard was that she saw
what was going on on the line and she heard Griffith talk
to the employees (Tr. 1635). He then testified (a) that Hale
talked to the employees; (b) that Hale did no talking to the
employees; (c) that Griffith did the talking to the employees;
(d) that Hale and Griffith both did the talking to the employ-
ees with Hale standing immediately next to Griffith; and fi-
nally (e) that Hale told the employees that they had to keep
the production up (Tr. 1636).
(8) Processing Manager David Bolio testified that he did
not become involved in the discharge of the employees until
June 10 when Wenson told him of production difficulties be-
cause of a slowdown with the four employees. Corroborating
Wenson’s testimony, Bolio went to the mezzanine and ob-
served the curing line seeing the three employees were not
working. They were holding the bags and not actually bag-
ging hams. He told Wenson that this was unacceptable and
to have the group leader counsel them. Wenson and Bolio
then left the mezzanine.
The second time he became involved was on Wednesday,
June 12, when Wenson again complained of the same prob-
lem. Bolio then called his superior, Les Johnson. Johnson
and Bolio went to the mezzanine with Wenson. With John-
son timing the operation, Bolio told Wenson to go to the
production floor. He said the would check production both
when Wenson was on the line and when he left. They
checked production and when Wenson was on the line, pro-
duction was good; when he left the line, the employees were
talking amongst themselves, permitting the hams to go by
unbagged. Wenson then returned to the mezzanine and to-
gether with Bolio they then proceeded to the work floor.
While they were on the work floor, Johnson yelled at them:
‘‘Hey, they’re only bagging 2 a minute.’’ He observed the
employees look up at that time.
Bolio testified that the next day, Thursday, June 13,
Wenson came to him with the same problem again. This
time Bolio called Wennerholt and they both went to the mez-
zanine to observe the employees. They directed Wenson to
go to his desk and then motioned for him to come up to the
mezzanine. He did so. Wennerholt asked who the employees
were and noted that it was ‘‘bull shit’’ that the employees
failed to work whenever Wenson left his desk. Wenson then
left to involve Plant Administrator Tim Messick. Wennerholt
told Messick that he was not going to believe it; that he
wanted the employees fired. The Supervisors (Johnson,
Wenson, Wennerholt, and Bolio) then held a meeting in
Wennerholt’s office that afternoon (Thursday, June 13) and
unanimously concluded that the four should be terminated
and so told Messick later in the evening. According to Bolio,
contradicting Messick’s testimony, when they went to
Messick later in the evening to recommend terminating the
four employees, Messick did not ask for details or ask time
to investigate. He already knew the details.
(9) Stephen Wennerholt, director of human resources, testi-
fied that he first became involved in the matter on Thursday,
June 13, the day before the discharges. That morning Bolio
told him that he had a problem with employees on the floor
who would not work if the coordinator was not present in
their presence. Wennerholt and Bolio went to the mezzanine,
watched the curing line while Wenson was present. Bolio
then called Wenson off the floor to come to the mezzanine.
Wenson came to the mezzanine and Wennerholt said that he
saw the four front employees on the line literally stop work-
ing: laughing and joking. When Wenson returned to the mez-
zanine, Wennerholt asked who the four employees were and
he told him. Wennerholt said he remarked to Bolio that it
was unbelievable; that Respondent could not have this and
that the employees should be fired. Wennerholt then left the
mezzanine and sought out Plant Administrator Messick. He
told Messick what was happening; that he was upset and that
they should be fired. Unlike Bolio, Wennerholt testified that
Messick told him to ‘‘hold on,’’ to investigate, and get the
facts straight. Wennerholt said he then spoke to Griffith,
Wenson, Bolio, Johnson and group leader Chris Hale in
order to evaluate the four individuals and to gain her opinion
(Tr. 1746). Chris Hale told him that all three were capable;
that Ramona Martin just did not do the work at times; that
Toby Kouns was normally ‘‘pretty good’’ (Tr. 1765) and that
Patty Kouns was getting good, was capable most of the time
(Tr. 1762), and did not ‘‘slip’’ [in production] in the absence
of supervision (Tr. 1766–1767).
In the meeting on June 13, wherein Wennerholt was
present with Bolio, Johnson, and Wenson, there was the
unanimous recommendation that they be discharged. Later,
Wennerholt met with Messick; told him that they had inves-
tigated; that all four employees were capable; that they had
been previously warned and were not performing. Messick
told Wennerholt that he wanted to think about it, but on Fri-
day morning, told Wennerholt he should fire them.
(10) In rebuttal, group leader Christine Hale testified that
David Bolio never directed her to counsel the employees;
that Wenson never directed her to counsel the employees;
and that she was not present with group leader Bill Griffith
when Wenson allegedly told them to counsel the employees.
Hale was an admitted prominent union supporter who en-
gaged in handbilling. I nevertheless credit her testimony re-
lating to her overhearing Wenson’s antiunion ‘‘bitch fit’’
statement against Patty Kouns, Ramona Martin, and Toby
Kouns particularly because (a) neither Wenson nor Griffith
ever denied it and because (b) it was clearly confirmed and
corroborated by the credible testimony of witness Betty Jo
McHenry. I further credit her testimony, contrary to Wenson
and Bolio’s testimony, that she was never directed to counsel
employees by Wenson or Bolio; nor was she present with
Griffith when Wenson allegedly told her to counsel the three
employees. I necessarily discredit Wenson’s testimony that,
on June 7, when Griffith told him before lunch that he was
‘‘having a problem’’ with the production employees, he told
1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 There is no other evidence to support any such timing of the
employees’ production on the converting line. Neither coordinator
Fred Fischer nor group leader Hammons (who had an extremely low
opinion of the three curing line employees) ever mentioned it. I re-
gard Wennerholt’s testimony as an invention.
both Griffith and Hale, at the same time, at his desk, to
counsel the employees.
(11) Plant Superintendent Les Johnson testified that he
was involved in the terminations of the two Kounses and Ra-
mona Martin.
Johnson testified that on June 12 Wenson told him that
there were a few employees who stopped work when he left
the room. Johnson told Wenson that he would observe them
from the mezzanine. In the company of Bolio, and having di-
rected Wenson to remain on the floor, Johnson says he ob-
served that the curing line ran like a ‘‘machine.’’ When
Wenson left the area, however, and joined Bolio and Johnson
on the mezzanine, Johnson testified that he saw the four indi-
viduals ‘‘almost stop working.’’ He then timed them on their
bagging of hams. He testified that he saw them looking
around the room, trying to observe whether Wenson was
going to return. At that point he yelled down to Wenson that
the four employees were only bagging two to four hams per
minute. He testified that he timed them each for 2 minutes
for a total of about 10 minutes.
On the next day, Thursday, June 13, Johnson testified he
was paged by Wennerholt. He told Wennerholt he had ob-
served the same thing the day before. He discussed their op-
tions and at the afternoon meeting (Bolio, Johnson,
Wennerholt, and Wenson) decided on termination. They rec-
ommended it to Messick and Johnson was not further in-
volved in the terminations.
June 14; the terminations of Ramona Martin, Toby
Kouns, and Patty Kouns
Director of Human Resources Wennerholt testified that on
Friday morning, June 14, Messick gave him his decision au-
thorizing the termination of the employees. Wennerholt, as
the director of human relations, was the Respondent’s prin-
cipal involved in the discharges.
Ramona Martin was called in on the morning of June 14.
Wennerholt told her that he was discharging her for failing
to perform her job. Martin responded by saying: ‘‘this is bull
shit . . . you’re firing me because I am for the Union’’ (Tr.
1750). Wennerholt denied this saying that Respondent does
not fire employees because they support the union and in fact
they had recently promoted employees who had supported
the union; that it was the work of the employees that made
the difference. Wennerholt did not mention the names of the
prounion employees who had been just promoted (Tr. 1750).
Wennerholt testified that Martin’s response to his statement
was a mumbled answer that he did not really know what she
said. He did recall that Martin asked for the MSDS sheets
for the curing mix and Wennerholt told her that he would
provide them to her.
Ramona Martin testified that about 1 to 1:30 p.m. after
lunch, Griffith told her that she was wanted in the human re-
sources office where Wennerholt told her that Respondent
was going to have to discharge her immediately because she
had slowed down production to 2 to 2-1/2 hams per minute.
Martin told him that this was untrue and asked who had told
him about the slowdown. Martin said that Wennerholt would
not say who had told him but she asked that they be brought
up there to confront her. Wennerholt told her that the coordi-
nators had timed her and that they had even timed her on
another line the week before17 but she did not work out ei-
ther on the converting line or on her regular bagging line.
She testified that he gave her the wrong MSDS sheets but
told her that if he got the right ones he would mail them to
her. When he told her that she did not work out on the other
line either, Martin asked him if he meant Brenda Hammons’
line but Wennerholt did not answer. She asked him to get
Brenda Hammons because Hammons told her that she’d like
her to transfer over to her line. Wennerholt then told her to
leave the building. Martin’s testimony was that she told
Wennerholt that he knew that she was not being discharged
because of her work. Wennerholt, as above noted, recalled
that she said she was being fired because of the Union.
The discharge of Toby Kouns
Although Wennerholt testified that the next individual with
whom he had had a termination interview was Patty Kouns
(Tr. 1752), he appears that he was mistaken; and that it was
actually Toby Kouns (Tr. 998). Patty Kouns testified that
about 20 minutes after group leader Griffith took Ramona
Martin off the line, after lunch, he came for Toby Kouns
about 20 minutes later (Tr. 997–998).
In response to Toby Kouns’ testimony, above, Wennerholt
testified that he terminated Toby Kouns because of her fail-
ure to perform her job. Toby Kouns responded, according to
Wennerholt, with the same epithet as Martin’s: that ‘‘it was
bull shit and it was because she was for the union.’’ (Tr.
1754.) Wennerholt testified that he responded by saying that
Respondent did not fire people for supporting the union and
Toby Kouns’ response was only to ask ‘‘for a second
chance’’ (Tr. 1754). Wennerholt told her he would not offer
her a second chance. Wennerholt testified that he could not
recall Toby Kouns answering his response.
The discharge of Patty Kouns
Bill Griffith took Patty Kouns off the production line after
he had taken Toby Kouns (Tr. 998–999). Patty Kouns
worked until about 3 o’clock, and started to go to the
breakroom for the afternoon break. John Wenson motioned
to her with his finger while she was on the steps going to
the breakroom (Tr. 999). He told her that she was wanted
in the office and she proceeded to the Wennerholt office (Tr.
1000). Whereas Patty Kouns incorrectly testified she was
alone in the office with Wennerholt during her discharge
interview (Tr. 1000), Wennerholt testified that it was either
John Wenson or Bill Griffith in the office during the inter-
view with Patty Kouns (Tr. 1752). Griffith testified that he
was in the office during the termination interview with Patty
Kouns. I credit Griffith.
Wennerholt testified that he told Patty Kouns that she was
being discharged for failure to perform her job; that Patty
Kouns responded that she was very sorry; that she would like
a second chance; and if given a second chance, ‘‘would stay
away from those people’’ (Tr. 1753). Wennerholt testified
that he did not inquire who ‘‘those people’’ were. Indeed,
Wennerholt testified that he told her that her discharge had
1317COOK FAMILY FOODS
18 The first charge in the consolidated matter, filed June 17, 1991
(G.C. Exh. 1(a)), alleges the unlawful discharge on June 14 of Ra-
mona Martin, Patty Kouns, Toby Kouns and Sharon McGinnis be-
cause they engaged in protected and union activity. In a sworn state-
ment dated July 16, 1991 (R. Exh. 8), submitted to Respondent,
Christine Hale swore, inter alia, that she at no time informed any
of the above four employees that they ‘‘should stop distributing
union authorization cards because John Wenson disapproved of the
distribution of such cards.’’ She also swore that she made ‘‘no state-
ment similar to the statement attributed to me and described in the
preceding paragraph.’’ In view of Respondent’s failure to have its
Supervisors Wenson and Griffith deny any of Christine Hale’s cred-
ited and corroborated testimony, it would seem to me to be question-
able, perhaps coercive, to have her swear to an arguably false denial
of conduct ‘‘similar’’ to that appearing in the prior text of her affi-
davit.
19 I sustained General Counsel’s repeated objections to Respond-
ent’s attempt, on cross-examination, to secure, inter alia, Christine
Hale’s opinion, as group leader over the three employees, concerning
the quality of their work. The subject matter of such cross-examina-
tion was clearly outside the scope of the direct examination and it
seemed to me to be improvident to open that door to prove Respond-
ent’s defense on the redirect examination of a witness whose testi-
mony was extremely limited. In any event, Director of Human Re-
sources Stephen Wennerholt testified at length concerning his eval-
uation, use and the weight given to group leader Christine’s Hale’s
investigative report concerning the quality of the work of the three
employees. I did not restrict opinion testimony from group leader
Griffith and other nonsupervisory personnel called as Respondent’s
witnesses.
20 Although Ramona Martin testified that this event occurred 2
weeks before her June 14 discharge, I find that it occurred on June
12, 1991. In this regard, I rely on the date appearing on the face
of the circulated petition (G.C. Exh. 4) which Ramona Martin said
was signed by Gloria Mauro on the day of the circulation of the pe-
tition.
nothing to do with anyone else; that ‘‘hanging around with
people, whoever they are, had nothing to do with her dis-
charge.’’ Her discharge was because she failed to perform
her job. Wennerholt said that Patty Kouns merely repeated
she was sorry. He did not deny her testimony that he told
her that she had a ‘‘bad attitude’’ toward the Company. He
denied that she accused him of being liar or accused anyone
else of being a liar.
Corroborating Wennerholt, Griffith testified that he accom-
panied Patty Kouns to, and was present in the office and,
after Wennerholt told her that Respondent was going to ter-
minate her employment, Kouns asked for a reason. He told
her that he had observed her production and she wasn’t
doing anything. When she asked who here accuser was,
Wennerholt told her that one of them was Bill Griffith who
was sitting next to her. Griffith testified that Kouns said
nothing, merely lowering her head during the interview. He
denied her testimony that she called Wennerholt a liar or said
anything else during the interview other than asking for a
second chance (Tr. 1591). Wennerholt told her that he would
have to speak to Messick and that she should call his office
on the following Monday. Griffith also testified that Martin
said that if she were given a chance, she wouldn’t hang
around with same group (Tr. 1591–1592).
Discussion and conclusions regarding the discharges of
Patty Kouns, Ramona Martin, and Toby Kouns
1. John Wenson’s ‘‘bitch fit’’
Respondent apparently recognized the gravity of the cor-
roborative testimony of Betty Jo McHenry (Tr. 1149–1153).
Ultimately, McHenry, without any apparent interest in the
outcome of this litigation, a former Respondent employee,
corroborated the testimony of group leader Christine Hale:
that on May 23, 1991, while the three above-named alleged
discriminatees were working on the bagging line under John
Wenson’s supervision, group leader Christine Hale overheard
Supervisor Wenson tell Christine Hale’s co-group leader, Bill
Griffith, that he would throw a ‘‘bitch fit’’ concerning the
girls on the line who were out handbilling (Tr. 502–505).
More important, Wenson was overhead specifying the female
employees against whom he was going to throw his ‘‘bitch
fit’’: Ramona Martin, Patty Kouns, Sharon McGinnis and
Toby Kouns (Tr. 505). Within 2 hours of Christine Hale’s
overhearing Wenson make these remarks, she repeated them
to the four employees who were the subject of those remarks
(Tr. 506). She also told other employees. Betty Jo McHenry
testified that Christine Hale told her that Wenson’s ‘‘fit’’
would not be directed at ‘‘Melissa’’ and herself, both em-
ployees on the bagging line, and that these two employees
should not pay any attention to Wenson’s conduct (Tr. 1149–
1150) because it was not directed at the two latter employees
(Tr. 1150). She told told McHenry that Wenson was ‘‘really
upset’’ because the girls were out on the street handing out
union literature (Tr. 1151–1153). As above noted, McHenry
herself observed that Wenson appeared to be upset on that
day, May 23, 1991 (Tr. 1152, 1147).
After strenuously resisting the receipt of the testimony of
its own group leader, Christine Hale, on the substance of
what she overheard Supervisor Wenson say, and further re-
sisting corroboration by Betty Jo McHenry, Respondent, for
whatever reason, failed to have Supervisor Wenson or group
leader (supervisor) Bill Griffith deny any of Hale’s or
McHenry’s testimony.
Moreover, after questioning the credibility and veracity of
Christine Hale by noting that her pretrial affidavit given to
the Labor Board contained no reference to her having over-
head Wenson nor did her affidavit given to Respondent men-
tion such conversations, Respondent nevertheless, as above
noted, failed to have either Wenson or Griffith deny Chris-
tine Hale’s testimony, especially as expanded on and cor-
roborated by former employee Betty Jo McHenry.18
In short, there is no question that as early as May 23,
1991, Respondent singled out the three employees because of
their distributing union literature and manifested considerable
antagonism against such activity. Given the June 14 dis-
charge of the three employees, group leader Christine Hale’s
testimony, directly in the presence of Plant Administrator
Tim Messick, alone, creates a prima facie case of unlawful
discharge of the three named employees; prior knowledge of
the their union activities, animus directed specifically against
such activity, and specialized identification of the three of
them.19
2. The June 12 circulation of the union petition
I find that on June 12, 1991, Patty Kouns, Sharon
McGinnis, Ramona Martin, and Toby Kouns were in the
company of two other employees seated at a table in the
lunchroom.20
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 Griffith told Patty Kouns (Tr. 1052) that there would be no
work break until all the hams were bagged. Wenson apologized to
bagging line employee Betty Jo McHenry over his failure to permit
a break for the bagging line employees that day. He said that he
‘‘needed to prove a point to the women on the bagging line’’ (Tr.
1146). Wenson did not say he had to prove a point to ‘‘some’’
women. Ramona Martin testified that Toby Kouns was present only
at the very beginning of their June 13 afternoon meeting with Dave
Bolio. To that extent it explains Toby Kouns denying participation
in complaints about the cold on June 13. Toby Kouns credibly testi-
fied that many employees on the line or near the line complained
of the cold, including group leaders Hammons and Hale, Patty
Kouns, Sharon McGinnis, and Ramona Martin. Toby Kouns’ further
uncontradicted and credited testimony, corroborating Betty Jo
McHenry’s testimony (that Wenson told McHenry that the lack of
the work break was to teach the bagging employees a lesson), was
that the conveyor belt was set very fast both on June 13 and 14,
1991.
22 Although Ramona Martin’s repeated requests irritated Respond-
ent and may well have also contributed to Respondent’s motivation
in the discharges, I have not included Ramona Martin’s activities to
gain the MSDS sheets as part of the prima facie case which exists
apart from the MSDS sheet issue. Even if Respondent had knowl-
edge of the two employees acting as witnesses to Martin’s serving
a written request for the MSDS sheets on the office clerical, there
is no suggestion that the witnesses (Sharon McGinnis and Patricia
Kouns) in any way supported Ramona Martin’s request. The most
Seated at a nearby table, perhaps 9 or 10 feet away, star-
ing at the employees at the table who were attempting to
have Gloria Mauro and Gretta Bradford, newly hired em-
ployees, sign a petition in support of the Union, were Super-
visors John Wenson, Dave Bolio, Les Johnson, and group
leader (now coordinator) Bill Griffith. They sat there staring
at the table while Patty Kouns and Sharon McGinnis were
attempting to influence Gloria Mauro and Gretta Bradford to
sign the petition in favor of the Union. Gloria Mauro did
sign and date the petition. I therefore conclude that on
Wednesday, June 12, 1991, 2 days before the three employ-
ees were discharged, Respondent was reminded of the union
loyalty and support of the three employees and of their ef-
forts to communicate that loyalty and support to newly hired
employees. Supervisor Wenson, of course, was one of the
on-lookers. Two members of the superior supervisory hier-
archy were also present. All of them then participated in the
meeting and voted (June 13) for the recommended discharges
(the next day, June 13).
3. Ramona Martin and coemployees in the protected
activity of demanding MSDS sheets
There is no dispute that Ramona Martin hurt her hand and
arm on Tuesday, June 4 and again on Friday, June 7, 1991.
While it is not entirely clear from her telephone request of
7:30 p.m. on Friday, June 7, for the composition of the mate-
rials in the curing juice, whether Respondent knew of the re-
quest, there is no question that on Monday, June 10, and on
Tuesday, June 11, she asked Wenson for the MSDS sheets.
There was no denial that Wenson told her that there was
nothing in the curing juice except salt and water (‘‘damn it’’)
and that on Ramona Martin’s request for the MSDS sheets,
for her doctor, Wennerholt told her that he did not have them
at the time.
Early in the morning of the same day (June 12) on which
Ramona Martin and the other alleged discriminatees later
sought to have employees Gloria Mauro and Gretta Bradford
sign the petition in favor the Union at lunchtime, Ramona
Martin, accompanied by Sharon McGinnis and Patty Kouns,
served a written request for MSDS sheets in the human re-
sources office. In the absence of Director Stephen
Wennerholt, she gave the written request to the office cler-
ical and told the clerical that she wanted the MSDS sheets
by that evening.
Again, in the afternoon of June 12, about 1:30 p.m., she
went to Wennerholt’s office and asked Wennerholt himself
for the sheets and Wennerholt told her that he did not have
them at the time. In short, Ramona Martin credibly testified
that she first asked for the MSDS sheets on Monday, June
10 and asked for them again on June 11 and 12.
On the morning of Thursday, June 13, she went to the
human resources office and asked for the MSDS sheets
again. Wennerholt was present at this time and Ramona Mar-
tin testified that she asked for the sheets. On Friday, June 14,
she was unlawfully discharged.
4. Thursday, June 13; air-conditioning on the
bagging line
As above noted, on the morning of Thursday, June 13, Ra-
mona Martin asked Wennerholt, in his office, for the MSDS
sheets.
At breaktime, about 3 p.m., Ramona Martin, Patty Kouns,
and Sharon McGinnis had complained to coordinator Bill
Griffith over the allegedly frigid nature of the temperature on
the bagging line. Griffith set up an appointment for them
later in the day with Processing Manager Bolio whom the
employees originally demanded be sent down to the produc-
tion (line to observe the actual working conditions). At 4
p.m., Toby Kouns, Patty Kouns, and Ramona Martin spoke
to Bolio in the cafeteria where Griffith had set up the meet-
ing. They told him that the covers were off the air-condi-
tioning blowers and it was very cold; and that they had no
work break that day which they had expected earlier in the
day.21
Wennerholt’s remarks during the discharge interviews
of June 14, 1991
I conclude on the basis of the above testimony, alone, that
General Counsel has proved a prima facie case that Respond-
ent, in violation of Section 8(a)(3) and (1) of the Act termi-
nated the employment of Toby Kouns, Ramona Martin, and
Patty Kouns. This flows from the fact that the above para-
graphs (Wenson’s May 23 ‘‘bitch fit’’ remarks) demonstrate
Respondent’s union animus, its identification of the three
employees as being union activists; its resentment against the
three of them for their particular union activities (distribution
of handbills); Respondent’s June 12 knowledge of these em-
ployees’ continued support and participation in union activi-
ties (at the lunch table under the observation of Respondent’s
supervisors); and, on June 13, the day before the discharge,
these same employees demanding a special meeting with a
superior supervisor in order to change the air-conditioning
system in Respondent’s plant because of bad working condi-
tions (too cold). The discharges the next day, Friday, June
14, I conclude, presents a prima facie case of unlawful dis-
crimination within the meaning of Section 8(a)(3) and (1) of
the Act in the discharge of the three employees.22 Under
1319COOK FAMILY FOODS
that can be said is that Respondent might be bound by knowledge
that Ramona Martin brought along two employee witnesses—not
that they joined in or supported her written request. Even then, their
actions would be to gain the MSDS sheets solely for Martin rather
than to have the sheets generally available. The witnesses were en-
gaged in lawful ‘‘protected’’ but not ‘‘concerted activity.’’ It is
clear, nevertheless, that the three alleged discriminatees’ other union
and concerted activities render academic the discussion of this issue.
Lastly, the evidence does not show that the three employees were
discharged solely because of Martin’s demands for the MSDS sheets
and her coemployees’ supporting roles.
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982), Respond-
ent may then attempt to rebut the General Counsel’s prima
facie case by showing that the alleged discriminatees’ pro-
tected activity played no part in its allegedly discriminatory
activity or it may attempt to establish that it would have
taken the same action regardless of any protected concerted
activity or union activity engaged in by the alleged
discriminatees. NLRB v. Transportation Management Corp.,
462 U.S. 393, 400–401 (1983); NKC of America, 291 NLRB
683 fn. 4 (1988).
I find, further, contrary to Wennerholt’s denials (though
corroborated, in part, by Bill Griffith and John Wenson) that
in the discharge interviews, as follows, Wennerholt made the
following remarks:
(a) Whether Wennerholt said it on one, or more than one,
occasion, I credit Toby Kouns’ testimony that Wennerholt
told her, in the June 14 discharge interview: ‘‘We’ve got to
watch who we’re with; we’ve got to watch the company we
keep.’’
To the extent Griffith was present at any of the termi-
nation interviews, he testified he was present at the termi-
nation of Patty Kouns rather than Toby Kouns. Thus group
leader (then supervisor) Bill Griffith did not testify, much
less contradict, Toby Kouns’ testimony that he was present
when Wennerholt made the above remarks.
The above remarks, innocent in themselves, could have re-
lated to Wennerholt accusing Toby Kouns of associating
with employees who, as a group, were engaged in poor pro-
duction and had demonstrated such poor production over a
period of time. Instead, without specifically denying Kouns’
testimony concerning her failure to be careful of the com-
pany she keeps, Wennerholt denied Kouns’ alleged assertion
that she was being fired for union activity. I conclude that
Wennerholt’s admonition to Toby Kouns, that the second
reason she was being fired was because she failed to be care-
ful of the ‘‘company she keeps’’ has an ominous, rather than
an innocent, implication in view of Wenson’s identification
of the four employees as being the object of his unhappiness
because of their distribution of union handbills.
(b) Whereas Wennerholt testified that Patty Kouns apolo-
gized and said she was sorry, requesting a second chance to
work for Respondent after he notified her that she was being
terminated for failure to perform, Wennerholt also testified
that Kouns said that she would ‘‘stay away from those peo-
ple’’ if given another chance. He further testified that he told
her that her discharge did not have to do with other people
but only because of her failure to do her job. He and Griffith
specifically denied any accusation by Patty Kouns that she
accused him of being a liar. Wennerholt did not deny telling
Patty Kouns that she had a ‘‘bad attitude towards the com-
pany.’’ Contrary to the testimony of Griffith and Wennerholt,
I credit the testimony of Patty Kouns. She testified that in
the presence of John Wenson (Tr. 1002; actually, it was Grif-
fith) who followed her into the room, Wennerholt told her
that Respondent had a ‘‘little problem:’’ ‘‘You 4 have been
timed at doing 2 bags per minute.’’ Patty Kouns testified that
Wennerholt did not indicate which four he was talking about
(Tr. 1001). It was at that point that she accused him of being
a liar and accused anyone who said that she bagged only two
bags per minute as being a liar. When she asked who told
him that, he said it was John Wenson (i.e., Griffith) who was
standing there beside her (Tr. 1002). She reiterated that there
was no way that she could bag only two hams per minute.
She told Wennerholt that Wenson (Griffith) was lying as
well. Wenson (Griffith) never said a word (Tr. 1002).
Aside from the accusation of a ‘‘bad attitude,’’ which
under the circumstances of Patty Kouns being identified as
one of the four against whom Supervisor Wenson harbored
animus because of union activities, there is the further identi-
fication that the ‘‘four of them’’ had been timed at only 2
bags per minute production. This impliedly corroborates
Toby Kouns’ testimony concerning Wennerholt complaining,
in her discharge interview, over ‘‘the company she keeps’’
and Respondent zeroing in on the four employees.
In short, I regard Wennerholt’s statements to Patty Kouns
and Toby Kouns concerning ‘‘bad attitude’’ and ‘‘be careful
of the company you keep,’’ and ‘‘you 4 were timed at 2
bags per minute’’ as particularized identification of employ-
ees concerning their union activities and other protected con-
certed activities. These otherwise ambiguous remarks must
be measured against the activities of these employees which
create the prima facie case. Wennerholt’s statement of these
other reasons for the discharge (‘‘company you keep,’’ ‘‘bad
attitude toward the company,’’ ‘‘you 4 employees’’), dem-
onstrates, I conclude, that in the termination interviews them-
selves, Respondent had in mind the employees’ union activi-
ties and other protected concerted activities whatever else
Wennerholt mentioned (concerning poor productivity) in the
discharge interviews. Such remarks in the discharge inter-
views, implicating union and concerted protected activities as
a motivating factor in the discharge alone create ‘‘especially
persuasive evidence that a subsequent discharge of the em-
ployee is unlawfully motivated,’’ Turnbull Cone Baking Co.
v. NLRB, 778 F.2d 292, 297 (6th Cir. 1985), cert. denied 476
U.S. 1159 (1986). While such Wennerholt remarks, the re-
marks of a high Respondent supervisor, director of human
resources for the plant, do not necessarily eliminate the abil-
ity of Respondent to prove, under its Wright Line and Trans-
portation Management Corp. obligations that Respondent
would have terminated these employees even in the absence
of their protected and union activities, such statements in the
discharge interviews themselves, tend to undermine otherwise
lawful reasons for the discharges. Turnbull Cone Baking Co.
v. NLRB, supra.
Respondent’s defense to the three discharges
Respondent defends the discharge of the three employees
on the ground that they regularly failed to perform their pro-
duction function of bagging hams (90 percent of their work)
whenever Supervisor John Wenson left their presence at or
near the bagging line. In this regard, as above recounted,
group leader Bill Griffith reported these matters to John
1320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 McGinnis, on Respondent’s motion, was struck from the case as
an alleged discriminatee, as above noted.
Wenson who, after himself observing the phenomenon, re-
ported the matter to his superiors who thereafter observed
and timed the employees.
There is also evidence of group leader Hammons and em-
ployees Blake and Stone concerning the lack of dedication
and slothfulness of the four employees, particularly Sharon
McGinnis.23
Group leader Bill Griffith, testified that he found these
three employees (Patty Kouns, Toby Kouns, and Ramona
Martin) to be very poor employees since the first day of their
employment. Such was his testimony. It was he, according
to coordinator Wenson, who had a particular responsibility to
observe and monitor their work on the bagging line. While
his testimony is that he counseled the employees concerning
their poor production commencing the week of Friday, June
7, 1 week before their discharge, the employees particularly
denied that they were ever counseled. In view of their deni-
als, together with the denial of group leader Christine Hale
(who, directly contradicting Wenson and Bolio, denied being
directed by Wenson or anybody else to counsel the employ-
ees at any time), I conclude that contrary to Griffith’s testi-
mony, he never counseled them concerning their poor work.
Many employees, and indeed Supervisor Wenson, had the
opportunity to directly participate in or at least to overhear
such counseling. There is not a word in the record, even
from employees openly antagonistic to the Union and an-
tagonistic to the three employees, who worked right next to
them on the line, who ever heard—actually heard— Griffith
counsel the employees concerning their poor work habits in
general, or their lack of production in particular. Yet he testi-
fied that he repeatedly counseled them on the production
line.
Consistent with the testimony of Respondent’s witnesses,
however, I do not doubt that the three employees, like other
employees, from time-to-time failed to produce adequately.
Furthermore, I am willing to conclude, as Respondent’s wit-
nesses testified, that from time-to-time, the three employees
engaged in extensive giggling and conversation which pre-
vented their producing up to the seven or eight hams per
minute standard that they were capable of doing. On the
other hand, I was influenced by the openly antagonistic,
antiunion positions of Respondent’s witnesses (group leader
Hammons, Blake, Stone, and others) in evaluating such con-
duct. Consistent with the testimony of Betty Jo McHenry and
Patty Kouns concerning Wenson’s punishing the entire bag-
ging line by not granting them a work break on June 13 and
Griffith telling Patty Kouns that there would be no work
breaks until all the hams were bagged, the evidence failed
to demonstrate that Respondent’s punitive conduct, at least in
this regard, was directed against the three employees because
of their peculiar failure to perform their jobs. Rather it was
directed against employees on the entire bagging line. In
short, these three employees, while not production paragons,
were not ne’er-do-wells. Certainly the chief of production,
David Bolio, did not think they were particularly poor em-
ployees. He told the employees, according to Martin’s
uncontradicted testimony (Tr. 814), that they were ‘‘good
employees’’ and would not be fired. Indeed Bolio made this
statement on Thursday, June 13. This is not only the day be-
fore the discharges; it is a day after (he testified) he and
other supervisors twice saw them failing to work (Tr. 1671–
1673).
In addition, I note that Griffith testified that on three occa-
sions during the week commencing June 5, 1991, he actually
cut off production of hams which permitted the bagging of
hams on the conveyor belt. He testified, however, that he
never reported his actions in stopping the production of hams
to any higher authority notwithstanding that he regarded such
actions as a serious matter. His original testimony, it seemed
to me, was focused on the inability of the three employees
to perform their jobs which caused the overflow of hams and
his stopping of the production line. His later testimony dem-
onstrated, however, that it might have been not the particular
fault of these three employees; rather, it might have been
from a cause unknown to him or because of the lack of pro-
duction of other employees on the line whom he could not
observe. Such testimony undermines Respondent’s theory
that it was these employees who were responsible for all
bagging misfortunes.
Lastly, and most significantly, it could not escape my ob-
servation that notwithstanding that group leader Griffith had
observed these employees to be poor employees from the
very date of their employment in mid-May 1991, and not-
withstanding that their poor performances never ceased in the
period from the date of their employment and training
through early June 1991, a period of 3 or 4 weeks, nothing
of consequence concerning their continued employment oc-
curred until the week immediately preceding the discharge,
i.e., June 7, 1991. Commencing with that date, these three
employees, already known to be union activists and the ob-
ject of Supervisor Wenson’s animus because of such union
activities, became the object of supervisory attention. It is in
that week, June 7 through 13, 2 days before the discharges,
that Ramona Martin, Toby Kouns, Brenda Blake, Patty
Kouns, and Sharon McGinnis were the subject of observation
of their circulating a union petition in the breakroom. Brenda
Blake found her position sufficiently uncomfortable that she
switched over to the supervisors’ table. The next day about
4 p.m., the three employees were engaged in further con-
certed protected activities, demanding of Supervisor Bolio
that the alleged frigid nature of the air-conditioning on the
production line be remedied. Thus the original (May 23) and
continued (June 12) identification of these three employees
engaging in union activities which antagonized their Super-
visor Wenson (who, with his superior supervisors, observed
the employees engaging in the signing up of new employees
on the union petition) was joined with their organizing into
a group, protesting adverse working conditions on the bag-
ging line (June 13). These activities, concentrated in the last
week of their employment, it seemed to me, led inexorably
to their discharge on Friday, June 14, 1991.
The alleged poor production by these employees over an
extended period of time prior to June 7 did not escape the
notice of group leader Griffith. His failure to report his re-
peated stopping of the production line, apparently because of
the production failures of these employees, demonstrates an
awareness of their allegedly inadequate production and a fail-
ure to take action. I conclude, that whatever the production
1321COOK FAMILY FOODS
24 Again, Supervisor Bolio never denied characterizing them as
‘‘good employees’’ on June 13, 1 day before the discharge (Tr. 814).
I have found that Griffith never ‘‘counseled’’ or warned the. I have
also discredited Wenson and Bolio to the extent they testified that
they instructed Christine Hale to counsel them. I regard Griffith’s
self-contradictory testimony (Tr. 1635–1636), on whether he and
Christine Hale counseled the employees, to be unintelligible where
decipherable. Although Wenson placed the date of Griffith’s com-
plaint to him as June 7, Hammons testified she complained of the
three employees to Wenson (and Fischer) 2 weeks earlier.
25 I find, in particular, Griffith’s earlier three-time halting ham pro-
duction, if indeed it even happened (it is nowhere corroborated), al-
legedly because of the poor production of these four employees, an
admittedly serious matter, to be significant. Not only were these em-
ployees not immediately and severely disciplined, but Griffith never
even reported the incidents. Employee misconduct causing a halt in
production, according to ordinary industrial usage, customarily is
viewed in the harshest terms. In the instant case, poor production led
merely to the sequential mustering of the entire Respondent super-
visory hierarchy.
The hundred or more pages of testimony devoted to Respondent’s
chief supervisors engaging in the mid-June surveillance of the pro-
duction failures of the four employees was not impressive. While
group leader Christine Hale’s moderate evaluation of the employees
was essentially ignored, Respondent’s chief supervisors were as-
tounded (‘‘irate’’) to learn of—and observe—the employees’ poor
production habits. I do not accept these high-level dumb-shows.
Rather, these mezzanine observations by Respondent’s entire super-
visory hierarchy, together with meetings, covert plans to withdraw
Wenson from the work floor, investigations, unanimous vote to ter-
minate, etc. demonstrate that Respondent was building a record.
Building a record against what? Four giggling, talkative employees
whose alleged production failures were known in late May and
caused repeated stoppages in the production line? Instead of firing
them on the spot, Respondent erected an elaborate and wholly un-
convincing camouflage for its actual motive: to get rid of four em-
ployees whose persistent union and protected concerted activities
showed them to be troublemakers who could no longer be tolerated.
Further, I regard employee complaints against the three employ-
ees’ work habits to be consistent with my finding that the work of
three employees was not of the highest caliber. But this was long
known to Respondent and was not the reason Respondent discharged
them.
26 Respondent left wholly undenied testimony that Supervisor
Bolio described the discriminatees as ‘‘good employees’’ but also
the credible testimony of Lauretta Holbrook (Tr. 127): that during
preelection unlawful interrogation by her supervisor, Barry Forbes,
concerning how three coemployees would vote, he told her that he
‘‘needed to know . . . because he was getting so much pressure
from upstairs, [that] if he didn’t find out something, he was going
to lose his job.’’ Was ‘‘upstairs’’ directing the unlawful interroga-
tion?
Such testimony should not have gone unchallenged if Respondent
seriously sought to maintain its posture of protecting employees
rights regardless of their union sympathies and being an implacable
opponent of violations of the Act (Messick: Tr. 1848–1850).
shortcomings of these employees,24 it was known to Re-
spondent well before the week commencing June 7. It was
in that week in which they engaged in the union and con-
certed activities which evidently provoked Respondent.
Wenson’s and Griffith’s June 13 statements to McHenry and
Patty Kouns show that the omission of the 10-minute break
period and the speed up were designed to punish employees
on the bagging line. Respondent, I find, chose for discharge
the three union advocates to demonstrate its opposition to the
Union and to employees engaged in activities potentially
interfering with management of the business. I therefore con-
clude, whatever the production shortcomings of these em-
ployees, Respondent failed to carry its burden under the
Wright Line equation, as noted in NLRB v. Transportation
Management Corp., supra, to prove either a rebuttal of the
General Counsel’s prima facie case or, alternatively, that the
three employees would have been discharged regardless of
their union activities. NKC of America, 291 NLRB 683 fn.
4 (1988).
Respondent defends, at least in part, on the further ground
that the union activities of employees throughout the plant
were well known and that Respondent cannot be called to ac-
count for its otherwise lawful discharge of these three em-
ployees for poor production. The Board rule, however, is that
the fact that an employer takes action against only some of
the union adherents does not necessarily show that an em-
ployer’s action was lawful. The failure to include all known
union supporters in adverse action does not preclude a find-
ing that unlawful motivation was behind the action with re-
gard to particular employees. Langston Co., 304 NLRB 1022
(1991).
In this case, however, Supervisor Wenson particularized
his animus against four employees because they were distrib-
uting handbills. The record is barren of any other instance
of employer animus directed against particular employees.
Moreover, he was not content merely to harbor such animus;
he manufactured a ‘‘bitch fit’’ against only those four em-
ployees, meanwhile advising other employees that his dem-
onstration of antagonism was directed only at those four em-
ployees (for union activities) and not against the other em-
ployees whom he regarded as innocent. The undenied, cor-
roborated and credited testimony of Christine Hale and Betty
Jo McHenry leaves no other inference possible. Thus, al-
though Respondent’s burden under the Wright Line defense
is only measured by a mere preponderance of the evidence,
Merillat Industries, 307 NLRB 197 (1992), I find the prima
facie case to be not only persuasive; but in view of Super-
visor Wennerholt’s remarks to Toby Kouns (you’ve got to
watch the company you keep) and Patty Kouns (a ‘‘bad atti-
tude’’ toward the Company and ‘‘you four’’ were timed at
two bags per minute) further demonstrates that the allegedly
poor production capacity of these four employees, long ob-
served by Bill Griffith, was hardly a substantial reason for
the discharges.25 In short, in the presence of violations of
Section 8(a)(1) of the Act demonstrating animus flowing
from the highest supervisor in the plant (Messick), and other
violations of Section 8(a)(1) of the Act, above-detailed, to-
gether with particularized union animus against these three
employees (including statements in their discharge interview)
and their engaging in concerted protected activities (com-
plaints about working conditions), I find that Respondent has
not carried its burden to prove by a preponderance of the
evidence either that it rebutted the prima facie case26 or that
it would have discharged these employees for reasons other
than their engaging in union and protected concerted activi-
ties.
I therefore find that Respondent, in violation of Section
8(a)(3) and (1) of the Act, on June 14, 1991, unlawfully dis-
charged Patty Kouns, Toby Kouns, and Ramona Martin.
1322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The alleged unlawful discharge of Carl Frank Hale on
December 11, 1991
A. Background
Stephen Smith, hired by Respondent in July 1991, quit in
March 1992. He was employed on the packaging line whose
supervisor was Jeff Salyers. In or about the end of August
1991, during the 5th or 6th week of his employment, he left
work because of illness without permission of his coordi-
nator. He told his group leader, Pam Caraway, about 20 min-
utes before his 7 p.m. work break that if he felt no better
by breaktime he would leave. He told no supervisors of his
decision. In fact, he did leave early on that Friday.
When he returned to work on the following Monday, his
supervisor, coordinator Salyers, stopped him and directed
him to the office of Human Resources Director Wennerholt.
In the office, Wennerholt suspended him for 3 days and told
him that he would investigate the matter, particularly if
Smith had ‘‘cause to leave.’’ Wennerholt directed Smith to
telephone him on Thursday with regard to the results of the
investigation. Smith did so and Wennerholt told him to re-
turn to work but first stop into Wennerholt’s office. Smith
did so. Wennerholt told him to return to work because Re-
spondent could not prove that he didn’t have good cause to
leave and that Respondent would thereafter notify all em-
ployees that if they left without the permission of the super-
visor, they would be discharged. Smith testified that he had
believed that his advising the group leader that he was going
to leave because of illness was a sufficient communication
to Respondent; and that the group leader’s failure to direct
him not to leave constituted permission of Respondent for
him to leave. Upon reinstatement, Smith was paid backpay
for the 3 days of his suspension. Smith was a prominent sup-
porter of the Union and known to Respondent to be a promi-
nent union supporter (the unfair labor practice charge in Case
9–CA–28666 was served on June 17, 1991).
Consistent with Respondent’s experience with Smith,
about a week or two after that incident, Supervisor
Wennerholt, on or about September 3, 1991, posted a notice
to all employees entitled ‘‘Clarification of Leaving Work
Early Policy’’ (R. Exh. 2). The memorandum, explaining that
an employee’s leaving the work line interferes with produc-
tion, states that employees must receive authorization from
‘‘your coordinator’’ before leaving the work line (emphasis
in the original posted notice). The notice continued:
In all future cases, any associate who leaves work with-
out proper authorization from the Coordinator will be
considered as having voluntarily quit.
B. The Employment and Discharge of Carl Frank Hale
Frank Hale, hired February 1991, was discharged on De-
cember 11, 1991. He was a ham trimmer on the converting
line whose supervisor (coordinator) was Fred Fischer. The
group leader was Elaine Dickerson.
A month before his discharge, on or about November 11,
1991, he left work because he had injured his tailbone. He
told coordinator Fred Fischer that he was going to the doctor
because of a broken tailbone and Fischer gave him permis-
sion to leave. His family doctor told him to take 6 to 8
weeks off; Hale refused, and returned to work on or about
November 18, 1991.
Hale and coordinator Fischer were friendly on a social
basis, with Hale visiting Fischer’s home two to three times
per week for a period commencing 9 months before his dis-
charge (and therefore both before and after the union elec-
tion).
As a matter of coincidence, on November 9, 1991, Hale’s
wife, Christine Hale, left her workplace without the permis-
sion of then coordinator Bill Griffith. She told him that she
had to leave early in order to pick up her daughter who was
at the baby sitter’s. Griffith refused to grant her permission
to leave. When she returned to work on November 11 (Mon-
day), she had no conversation with Griffith and resumed
work.
Christine Hale, a strong and open union supporter, having
failed to receive Griffith’s consent, upon her return home,
told her husband, that she thought she would be fired for
leaving work without permission. She told him that Griffith
had warned her that she would be fired if she did not remain
at work. She nevertheless left work early. Before returning
to work, however, she telephoned Processing Manager Bolio
with regard to her future return to work and he told her that
as far as he knew she had not been fired. As above noted,
she returned to work on November 11, without incident.
The events of Saturday, December 7, 1991
Respondent conceded and stipulated that Respondent had
knowledge of Hale as an outspoken union supporter. Indeed,
at a preelection September 18, 1991 company-sponsored
antiunion meeting, when Hale arose to question Respondent’s
supervisors and agents concerning their statements, he was
told to sit down and shut up. There were no questions being
taken at that time. It is undisputed that Hale was a good
worker.
Christine Hale testified that on the morning of December
7, before her husband left for work, he complained of pain
in his shoulder, his tailbone, and that he was coming down
with the flu. She testified that she told him not to go to
work. According to Christine Hale, her husband told her that
he would go to work and try to ‘‘tough it out.’’
The evidence is in dispute concerning whether and to what
extent Frank Hale, on the morning and afternoon of Decem-
ber 7, complained to coemployees concerning the poorness
of his physical condition and, more important, whether and
to what extent he complained to coordinator Fischer. Frank
Hale testified that at a 9 a.m. break, at lunchtime (11:15 to
12:15) and again at the 3 p.m. break, he told coordinator
Fischer that he was feeling unwell; that he was aching all
over and that he was thinking of going home. In this third
conversation at 3 p.m., Hale testified that Fischer told him
that he should not go home and that he had only 45 more
minutes of work and that he should remain at work. Fischer
testified that the first he heard about Hale’s poor physical
condition was at 3 p.m. at breaktime, when he saw Hale
cleaning his equipment, a clear indication that Hale was fin-
ished with work for the day and was not going to continue
on the production line.
There is no dispute however, that a few minutes before the
3 p.m. work break, the group leader on the line, Elaine
Dickerson, announced to the line employees that they would
be taking the break in a few minutes, about 3 p.m. Hale did
not deny her testimony that he told her at that time that his
shoulder was killing him and that he was going home (Tr.
1323COOK FAMILY FOODS
27 Dickerson, an openly antiunion witness, admitted that her pre-
trial statement to the Labor Board asserted that she did not hear the
conversation between Fischer and Hale at that time. She testified,
and I credit her testimony, that she did not hear Hale ask for an op-
portunity to leave but heard only what Fischer said to Hale. I credit
this explanation of her pretrial statement (‘‘I did not hear that con-
versation’’) by her testimony that she did not hear what Hale said
to Fischer (G.C. Exh. 5).
1373). There was also no dispute that she told him to tell
this to coordinator Fred Fischer (Tr. 1373). In response, Hale
told her: ‘‘No, I’m telling you, I’m going home’’ (Tr. 1374).
A moment later, when Dickerson called the work break, she
saw Hale removing his work gear, walking to the water hose
to clean up his equipment. She thereafter heard Fischer tell
Hale: ‘‘Don’t go, Frank’’ (Tr. 1376).27
It is unnecessary to resolve the testimony of various Gen-
eral Counsel and Respondent witnesses whether Hale told
them of his poor physical condition (tailbone, shoulder, flu-
like symptoms) because coordinator Fischer testified that on
December 7, with a full complement of 45 employees on the
converting line, when the employees went on work break, he
saw Hale starting to wash his equipment. Washing equipment
signifies the end of work. Fischer admittedly asked him what
he was doing. There is no dispute, as Fischer admits, that
Hale told him that his shoulder hurt and that he was going
home. Fischer told him that there was only 45 minutes of
further work left and that he should go on break and then
return to work. Fischer credibly testified that Hale continued
to wash his equipment. Fischer walked away but then saw
Hale walk by him with his newly cleaned equipment. Fischer
told him to go on break and not to go home. Hale kept walk-
ing. As Hale was walking away, he turned around, smiled at
Fischer and, on Fischer’s uncontradicted testimony, wiggled
his fingers, waving good-bye (Tr. 1834). Fischer told him to
come back and said that if he kept going he would be con-
sidered a voluntary quit. Hale kept moving, climbed the
stairs and merged with a group of 20 or more employees
commencing their work break. Fischer followed him up the
steps but could not reach Hale. He then found Supervisor
Bolio in Supervisor Johnson’s office and told them what had
happened. Johnson told Bolio to go out and search for Hale
but, upon Bolio’s return, he notified them that he couldn’t
find him. Thereafter Johnson told Bolio to make sure that
Hale did not return to work without seeing Wennerholt.
The discharge of Monday, December 9, 1991
When Hale came to work on the morning of December 9,
Fischer told him to go to Wennerholt’s office. Wennerholt
asked him what happened and why Hale left employment.
Wennerholt prepared a written statement from what Hale told
him (R. Exh. 5). In the statement, which Hale at the hearing,
admitted was correct, he told Wennerholt that he had in-
formed Fischer that his shoulder was killing him and that he
was going to leave; that Fischer said that he should not leave
and that Hale nevertheless punched out and left any way. He
also admitted having seen the posting, knowing the work rule
about leaving early, and the requirement of coordinator per-
mission.
Wennerholt testified that he became involved in the Frank
Hale matter on December 9, when Fischer told him what
happened. He then called in Frank Hale and got his version
of the incident after which he asked Fischer to prepare a
statement of what happened. While Hale was in his office,
he suspended Hale until he could inquire into the matter.
After speaking to and suspending Hale (after first speaking
to Fischer), Wennerholt spoke with group leader Elaine
Dickerson and Tim Messick.
When, before suspending Hale, Wennerholt asked Hale
why he left, he told Wennerholt that he left because his arm
was hurting and that he had told Fischer at 3 p.m. he was
leaving because his arm was hurting. He also admitted to
Wennerholt that Fischer had refused permission but that he
had gone anyway (Tr. 1733). Previous to his, when Fischer
first told Wennerholt of Hale’s leaving the workplace with-
out permission, Fischer allegedly did not tell Wennerholt that
Hale had given a reason for his leaving the workplace (Tr.
1734). Specifically, Wennerholt said that Fischer did not tell
him that Hale had informed Fischer that he was leaving be-
cause of sickness or anything resembling sickness; in sub-
stance, Wennerholt said that Fischer told him that Hale ‘‘just
took off’’ (Tr. 1735). I find his testimony to be incredible.
Fischer himself testified that at 3 p.m., Hale told him that
he was leaving because his shoulder hurt.
On December 11, before terminating him, Wennerholt
again questioned Hale and asked him if he had gone to the
doctor over his illness. Hale told him that he had not but had
gone straight home to take his medicine (R. Exh. 6).
Wennerholt records Hale as saying that he refused Fischer’s
offer of light duty ‘‘because he did not want to be a
‘wimp’’’ (R. Exh. 6). Actually, Hale told him that the offer
of light duty (working on ‘‘super trim’’) was actually no dif-
ferent than that on which he was working but actually re-
jected the job because it would require him to stand around
in 30 degree temperature when he was already freezing. He
told Wennerholt ‘‘I ain’t no wimp but I wasn’t going to hurt
myself.’’ It was at that point that Wennerholt suspended him
for 2 days pending the investigation. At this time, Fischer
told Wennerholt that Hale was a good worker (G.C. Exh. 4,
p. 10).
On December 11, after Hale told Wennerholt that he had
not gone to the doctor, Wennerholt terminated him for viola-
tion of Respondent’s rule concerning leaving the workplace
without the permission of the supervisor.
Discussion and conclusions
General Counsel argues (Br. p. 14) that Frank Hale, an
outspoken supporter of the Union, was refused a simple re-
quest to leave work at the end of his regularly scheduled
workday, for no apparent reason. General Counsel argues
that the reason was actually Hale’s union outspokenness and
suggests that Respondent seized upon this opportunity to rid
itself of a thorn in its side despite the fact that Respondent
regularly allowed employees to leave work on request.
Respondent argues that the Respondent had a published
rule which was posted, providing for the discharge of em-
ployees leaving work without the approval of the supervisors
(R. Exh. 2); that Hale was not only aware of the rule but
aware of the consequences of violating the rule; that Hale,
disregarding the rule, left without permission in defiance of
the rule; and that there was no evidence that the rule was
applied inconsistently to Hale, leaving the inference that the
motive for such disparate treatment was Hale’s union activi-
ties.
1324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 Her opinion, however, was not ‘‘valued’’ in the discharge of
Martin, and the two Kounses, above.
Contrary to Respondent’s argument (R. Br. p. 27), there
was clear proof of a prima facie case that Respondent knew
of Frank Hale’s open support of the Union; and I have al-
ready found that Respondent not only violated Section
8(a)(1) of the act by various undenied coercive interrogation,
threats and other conduct, but also discharged three employ-
ees because of their union and concerted activities in viola-
tion of Section 8(a)(3) and (1) of the Act, supra.
On the other hand, as Respondent argues, I find the fol-
lowing factors dispositive on the question of actual motiva-
tion and the lawfulness of Respondent’s discharge of Frank
Hale on December 11, 1991.
(a) If Fred Fischer harbored substantial union animus
against Frank Hale and was awaiting an opportunity to
‘‘get’’ him, it is difficult to explain why, on November 11,
3 weeks before the events leading to the discharge, Fischer
gave Hale, at Hale’s request, express permission to leave
work for alleged illness within minutes of the start of his
work shift (Tr. 314, 394). That November 11 event would
have offered Fred Fischer earlier opportunity, under similar
circumstances, for unlawful mischief.
(b) Both Frank Hale and his wife, group leader Christine
Hale, were outspoken, known union supporters and advo-
cates. Fischer granted Frank Hale time off to see the doctor
on November 11, 1991. Two days before, on or about No-
vember 9, 1991, Supervisor Bill Griffith refused Christine
Hale’s request to leave the production line in order to pick
up her daughter from her babysitter. When Christine Hale
nevertheless left without permission, she reported for work
on November 11 without suffering any adverse con-
sequences. Christine Hale’s conduct of November 9 offered
to Respondent, and particularly Supervisor Bill Griffith (who
was intimately engaged in unlawful activities with then— co-
ordinator of the curing line, John Wenson) an opportunity to
retaliate against a known, open union sympathizer. No retal-
iatory action by Respondent was taken against Christine
Hale. If this constitutes disparate treatment, the disparity was
not derived from discrimination between employees based on
their union activities or sympathies.
(c) When, at 3, on December 7, Frank Hale told Super-
visor Fischer that he was leaving, he testified that he told
Fischer that he was aching, coming down with something
and could hold up no longer (Tr. 429–430). Fischer re-
sponded: ‘‘No’’; Hale said, ‘‘I’m leaving’’; Fischer re-
sponded, ‘‘No’’; Hale again responded ‘‘I’m leaving’’; and
Fischer answered again: ‘‘No.’’ Thus, after Fischer had three
times told him not to leave, Hale testified that he went over
to the timeclock, punched out and left the plant (Tr. 430).
I have found particularly significant, among the undisputed
facts in this confrontation, Fischer’s testimony with regard to
what occurred immediately subsequent to his repeated refusal
to give Hale permission to leave.
Fischer told Hale to stick it out for 45 minutes and that
they would be finished work for the day. Hale said nothing
but continued washing his equipment at which point Fischer
returned to his desk. It is undenied that Hale then passed
Fischer at the desk, Fischer again told him not to leave and
that, if he left, it would be considered a voluntary quit. It
was at this point that Hale passed Fisher’s desk. He then
turned around, smiled and wiggled his fingers waving good-
bye (Tr. 1834). Such testimony, it seems to me, dem-
onstrates, as sometimes words fail to demonstrate, that
Hale’s action was not only deliberately contrary to the rule
requiring the supervisor’s permission to leave, but was an at-
tempt to flaunt and dramatize Hale’s contempt for Fischer’s
supervisory authority. In this regard, it renders irrelevant the
actions of other supervisors in granting or refusing permis-
sion to leave.
Here, Hale was taunting his supervisor and his super-
visor’s authority in refusing to grant permission to leave. Re-
spondent speculates that Hale might have thought that he
would get away with this behavior because of his close ties
to his wife, Christine Hale, a ‘‘valued group leader’’ (R. Br.
p. 24)28 and because he was an admitted ‘‘drinking buddy’’
of his Supervisor, Fred Fischer. In this same regard, Hale’s
conduct, at least in part, colors the issue of whether Fischer’s
failure to grant Hale permission to leave was so inexplicable
and unduly harsh as to implicate a possible other motive for
such inexplicable and harsh refusal. While it is true that
Fischer had already refused to grant Hale the sought permis-
sion to leave the workplace at the time that Hale wiggled his
fingers, an insubordinate gesture of farewell, it would dem-
onstrate, contrary to Respondent’s argument of Fischer’s
drinking-buddy friendship with Hale, a motive by which
Fischer would pursue Hale’s taunting farewell by seeing to
it that Hale would be discharged.
(d) In addition, Respondent argues that the lengthy time
delay between Respondent’s September 18 direction to Hale
to sit down and shut up at its antiunion meeting, to the al-
leged discriminatory December 11 discharge, militates
against an inference of unlawful motive. Respondent argues
that its September 18 impatient demonstration against Hale’s
union activity was not implicated in its December 11 dis-
charge, 2 months later. The longer the delay between dem-
onstrations of unlawful conduct and the alleged discrimina-
tion, the weaker the inference that union or protected activity
lay at the heart of the later alleged unlawful action. Com-
pare: Salvation Army Residence, 293 NLRB 944, 982 (1989),
with Inner City Broadcasting Corp., 281 NLRB 1210, 1223
(1986). In those cases, delays of 1 and 3 months, respec-
tively, tended to indicate an absence of unlawful motivation.
To be sure, I was not satisfied with the accuracy, and in-
deed the veracity, of much of Wennerholt’s testimony with
regard to the discharge of Frank Hale. His report of Fisher’s
testimony—that Hale just ‘‘took off’’ was incredible. On the
other hand, although the matter was not dispositive, I believe
that Frank Hale’s inability to recall certain circumstances and
many of the persons to whom he complained of illness that
day, militates against his credibility, suggesting a lack of se-
rious impairment. In sum, however, I believe that notwith-
standing the existence of a technical prima facie case, yet,
the timing and other circumstances surrounding the discharge
demonstrates that Respondent has supported its burden of
proof under Wright Line, supra, that it suspended and there-
after discharged Frank Hale regardless of his union activities.
I make this finding notwithstanding Respondent’s demonstra-
tion, in other circumstances, of antipathy against employees
for engaging in such activities. Respondent’s Wright Line de-
fense is established merely on proof of a preponderance of
the evidence. Merillat Industries, 307 NLRB 1301 (1992).
Under these circumstances, I am unable to draw an inference
1325COOK FAMILY FOODS
29 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
that the actual motivation for the discharge of Frank Hale on
December 11 was discriminatory, based on his union activi-
ties. I therefore recommend to the Board that the allegations
of the December 9 suspension and the December 11, 1991
discharge of Frank Hale be dismissed.
General Counsel’s evidence of disparate treatment by Fred
Fischer is not persuasive. Michael Holbrook, for instance, a
known union supporter and solicitor of signatures, was twice
given permission to leave by Fischer in November due to ill-
ness. On December 7, the same day Fischer refused Hale, he
gave Holbrook permission to leave early to transport his wife
by car. But Holbrook had received Fischer’s permission the
day before (December 6) to leave early on December 7.
Whether Holbrook’s departure left Fischer short-handed on
December 7 was not mentioned. If Fischer discriminated be-
tween Holbrook and Hale on December 7, however, it was
not shown to be based on disparate union sympathy. They
were both known to be prounion.
CONCLUSIONS OF LAW
1. Cook Family Foods, Ltd. (Respondent) is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. International Brotherhood of Firemen and Oilers, AFL–
CIO (the union) has been and is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discharging, on June 14, 1991, its employees Ra-
mona Martin, Toby Kouns, and Patty Kouns because they,
and each of them, engaged in union and other protected con-
certed activities, and in order to discourage employees from
engaging in such activities, Respondent has unlawfully dis-
criminated against each of the and has engaged in and is en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and (1) of the Act.
4. In the period commencing on or after June 17, 1991,
Respondent, by requiring employees to wear insignia to dem-
onstrate their loyalty to Respondent against the Union, by en-
gaging in unlawful surveillance of its employees’ union ac-
tivities; by physically accosting an employee because of the
employee’s union sympathies; by coercively interrogating
employees concerning their union activities, support and sen-
timents; by recording the names of union supporters; by
impliedly threatening employees with unspecified retaliation
because of their engaging in union activities; and by threat-
ening employees that it would relocate its facilities if the em-
ployees selected the Union as their bargaining representative,
Respondent thereby violated Section 8(a)(1) of the Act.
5. Respondent has not committed any other unfair
labor practices.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act,
I shall recommend to the Board that it order Respondent to
cease and desist therefrom and to take certain affirmative ac-
tion to effectuate the policies of the Act. In addition to post-
ing notices which will prohibit repetition of Respondent’s
independent violations of Section 8(a)(1) and (3) of the Act,
I shall recommend that Respondent expunge from its files the
discharge memoranda supporting the discharges of Ramona
Martin, Patty Kouns, and Toby Kouns and all reports and
other documents concerning such discharges of June 14,
1991. I shall also recommend that Respondent notify them,
in writing, of this action and that these documents will not
support any further discipline against any of them. Further-
more, I shall recommend that Respondent be obliged to offer
reinstatement to each of the three named discriminatees to
their former jobs or, if those jobs no longer exists, to sub-
stantially equivalent positions without prejudice to their se-
niority and any other rights and privileges previously enjoyed
and to make each of them whole for any loss of earnings and
benefits suffered because of the unlawful June 14, 1991 dis-
charges less any net interim earnings, to be computed in the
manner established by the Board in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as computed in New Ho-
rizons for the Retarded, 233 NLRB 1173 (1987).
I shall also recommend to the Board, since the three
named discriminatees were also the subject of Respondent’s
voting challenges in the September 20, 1991 Board-con-
ducted election, that those challenges be overruled; that the
ballots of these employees be opened and counted; and a
new and amended corrected tally of ballots be drafted and
served on all parties to this proceeding. Furthermore, I shall
recommend to the Board that, in view of the finding of inde-
pendent violations of Section 8(a)(1) of the Act which, as the
parties stipulated at the hearing, track the election objections
filed by the Union in Case 9–RC–15900, that such objections
be sustained. In the event that the new and amended tally of
ballots demonstrates that a majority of the valid votes cast
were cast in favor of the union, I recommend that the Re-
gional Director, Region 9, upon the Board’s approval of the
enclosed recommended Decision and Order, relating to the
three discharges and resulting challenges, issue forthwith his
Certification of Representative of the Union. Moreover, in
view of my sustaining the objections to the election, I shall
additionally recommend to the Board that, in the event that
the new and amended tally of ballots demonstrates that a ma-
jority of the valid votes cast has not been cast in favor of
the union, the election in Case 9–RC–15900 be set aside and
that a new election be held whenever the Regional Director
finds that the circumstances for such new election are just
and proper.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended29
ORDER
The Respondent, Cook Family Foods, Ltd., Grayson, Ken-
tucky, its officers, agents, successors, and assigns, shall
1326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
30 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1. Cease and desist from
(a) Discharging or otherwise discriminating against its em-
ployees in order to discourage them from supporting Inter-
national Brotherhood of Firemen and Oilers, AFL–CIO (the
Union) or any other labor organization, or because its em-
ployees engage in activities protected by Section 7 of the
Act.
(b) Threatening employees that it will relocate its Grayson,
Kentucky facility if the employees select the Union, or any
other labor organization, as their bargaining representative;
requiring employees to demonstrate, by the wearing of insig-
nia, their loyalty to Respondent and against the Union;
impliedly threatening the employees with unspecified retalia-
tion for engaging in union activities; recording the names of
union supporters; coercively interrogating employees regard-
ing their union sentiments and activities; physically accosting
employees because of the employees’ union activities; and
engaging in unlawful surveillance or the employees’ union
activities.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to Toby Kouns, Patty Kouns, and Ramona Mar-
tin immediate and full reinstatement to their former positions,
or if those positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make each of
them whole, with interest, for any loss of earnings and bene-
fits each of them may have suffered as a result of Respond-
ent’s unlawful discharge of these employees on June 14,
1991, as set forth in the remedy section of this decision.
(b) Expunge and remove from its files any memoranda,
records, or other references to the unlawful discharges of
Patty Kouns, Toby Kouns and Ramona Martin of June 14,
1991, and notify each of them, in writing, that this has been
done and that these disciplinary actions will not be used
against them in any way.
(c) Preserve and, on 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.
(d) Post at its facility in Grayson, Kentucky, copies of the
attached notice marked ‘‘Appendix.’’30 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 immediately upon re-
ceipt 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, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS ORDERED that Respondent’s challenges to the ballots
of Toby Kouns, Patty Kouns, and Ramona Martin in Case
9–RC–15900 be, and hereby are, overruled; that the Union’s
objections to the election are sustained.
IT IS FURTHER ORDERED that Case 9–RC–15900 be sev-
ered and remanded to the Regional Director for Region 9;
that the ballots of Toby Kouns, Patty Kouns, and Ramona
Martin be counted and that the Regional Director, Region 9,
shall issue a further amended corrected revised tally of bal-
lots in Case 9–RC–15900, with service thereof on all parties.
IT IS FURTHER ORDERED that if the further amended cor-
rected revised tally of ballots shall demonstrate that a major-
ity of such valid votes, including the votes in the erstwhile
challenged ballots, shall be cast for International Brotherhood
of Firemen and Oilers, AFL–CIO (the Union), the Regional
Director shall, upon adoption by the National Labor Rela-
tions Board of this recommended Order relating to such chal-
lenged ballots, forthwith issue a Certification and Representa-
tive in favor of International Brotherhood of Firemen and
Oilers in the unit specified in the aforesaid representation
case.
IT IS FURTHER ORDERED that if the number of valid votes
cast does not then demonstrate a majority for the Union, then
the election in Case 9–RC–15900 be set aside; and that the
aforesaid Regional Director conduct a second election at such
time and place as he deems circumstances afford a free
choice of a bargaining representative in the appropriate unit.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge or otherwise discipline employees
because they engage in union or protected concerted activi-
ties for the purposes of collective bargaining or other mutual
aid or protection in the exercise of their rights guaranteed
under the National Labor Relations Act.
WE WILL NOT engage in unlawful surveillance of our em-
ployees’ union activities or physically accost employees be-
cause of their union activities or sympathies; coercively in-
terrogate employees concerning their union sentiments or the
sentiments of other employees or record the names of union
supporters; nor will we require employees to wear insignia
showing support of an antiunion position; nor impliedly
threaten employees with unspecified retaliation for their en-
gaging in union activities; nor will we threaten employees
that we will relocate our facility in Grayson, Kentucky if the
employees select International Brotherhood of Firemen and
Oilers, AFL–CIO or any other labor organization, as their
collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer to Toby Kouns, Patty Kouns, and Ramona
Martin immediate, full and unconditional reinstatement of
their former positions of employment or, if those jobs no
1327COOK FAMILY FOODS
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights or privileges; and
WE WILL make each of them whole, with interest, for any
wages or other benefits each of them may have lost as a con-
sequence of our unlawful June 14, 1991 discharge of these
employees.
WE WILL notify each of the employees that we have re-
moved and expunged from our files any references to their
unlawful discharges on June 14, 1991, and that these memo-
randa of discipline will not be used against them in any way.
COOK FAMILY FOODS, INC.