Crest Mark Packing Co.

National Labor Relations Board - Board Decisions

May 18, 1987

283 N.L.R.B. 999 (N.L.R.B. 1987)

CREST MARK PACKING CO.
Crest Mark Packing Co. and The Beef Boners
Sausage Makers Union Local 100-A of the
United Food and Commercial Workers Interna-
tional Union, AFL-CIO, CLC. Case 13-CA-
22541
18 May 1987
DECISION AND ORDER
By MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 6 August 1984 Administrative Law Judge
Nancy M. Sherman 'issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed a cross-exception
and a supporting brief and a brief in support of the
judge's decision, and the Respondent filed a brief
answer to the General Counsel's cross-exception.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions, as modified, and to adopt the recom-
mended Order.
The General Counsel excepts to the judge's find-
ing that Patricia Gapik was a confidential employ-
ee. The judge found that Gapik was, a confidential
employee based on her having been told she was a
"confidential" employee by the Respondent's vice
president, Halper, and on her conduct in typing
two contract proposals that the Respondent subse-
quently tendered to the Union during contract ne-
gotiations. For the following reasons, we agree
with the General Counsel.
In NLRB v. Hendricks County Rural Electric
Corp., 454 U.S. 170 (1981), the Supreme Court af-
firmed the Board's long-established "labor nexus"
test. Under this test, only those employees who' act
in a confidential capacity to persons exercising
managerial functions in labor relations matters are
confidential employees. 454 U.S. at 188-189. In ad-
dition, the Court, approved the Board's alternative
test that employees who have "regular" access to
confidential information concerning anticipated
changes that may result from ' collective-bargaining
negotiations are confidential employees. Id. The
1 The Respondent has excepted to some of the fudge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
The Respondent has requested oral argument. The request is denied as
the record,, the exceptions, the cross-exception, and the briefs adequately
present the issues and the positions of the parties
999
Court rejected a broader interpretation that would
have found any employee with mere access to con-
fidential business information to be a confidential
employee. Thus, the question, here is whether,
Gapik's duties had a "labor nexus" sufficient to
render her a confidential employee.2
Gapik was hired 'in 1979 as the Respondent's
bookkeeper, a position outside the bargaining unit.
She is married to Ziggy Gapik, a union member. In
1981, when the Respondent learned of her impend-
ing marriage, Gapik was told by Vice President
Halper that she would have to be "let go" because
of her "confidential" status, but no such action was
ever taken. Her duties included taking, care of the
Respondent's accounts receivable and payable and
keeping employees' time and payroll records. She
received deduction authorization forms from the
Union and typed checks for union dues and for the
pension and welfare funds. She typed notices to the
Union regarding employee termination and hires
and filed certain information such as disciplinary
notices and insurance claims in employee personnel
files. She once attended an unemployment compen-
sation hearing on -the Respondent's behalf and re-
peated what Plant Manager Kearney told her to
say. Gapik prepared a seniority list for a layoff of
employees in 1982, but had no ' input concerning
which employees would be laid off. With respect
to labor relations, 'the Respondent's affairs, includ-
ing clerical functions, were handled by outside
counsel. Halper, however, was responsible for the
substance of the Respondent's proposals, and he
represented the Respondent during negotiations.
All related information was kept in Halper's office,
and he specifically did not permit Gapik to see any
"confidential" correspondence, including that con-
cerning labor relations matters. Gapik did not open
Halper's mail and never typed any notes, minutes,
or correspondence dealing with labor relations. She
did, however,, type an initial proposal from
Halper's notes so that he could show it to the Re-
spondent's counsel and once typed a wage proposal
for employees at the Chicago facility where she
worked.3
It is well settled that the party asserting confi-
dential status has the burden of providing evidence
to support its assertion. Intermountain Electric
Assn., 277 NLRB 1 (1985). We find in this case that
the Respondent has not met its burden. Although
Halper was instrumental in formulating, determin-
8 The Respondent does not contend , nor does the evidence establish,
that Gapik had "regular" access to confidential labor relations informa-
tion.
a Gapik also typed two proposals for the Respondent 's Momence
Packing facility in preparation for negotiations with the Union 's sister
local
283 NLRB No. 151
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, and effectuating the Respondent's labor poli-
cies, the record reveals only two minor instances in
which Gapik was involved in the Respondent's
labor relations matters, i.e., her typing of- a wage
proposal and an -initial proposal from Halper's
notes prior to his showing it to counsel.4 The Re-
spondent introduced no evidence indicating that
these incidents are likely to be repeated. Moreover,
the record does establish that the Respondent gen-
erally relied on outside counsel to handle all labor
relations matters, including related clerical func-
tions. Gapik was not involved in typing corre-
spondence or minutes of meetings that may have
concerned labor relations, and she did not have
access to Halper's files. In addition, Gapik's general
bookkeeping duties, described above, do not in any
other respect support a -fording that she is a confi-
dential employee. Given Gapik's lack of other indi-
cia of confidential status, the two isolated occur-
rences of her typing labor-related documents are
insufficient to constitute a "labor nexus." Accord-
ingly, we find that Gapik is not a confidential em-
ployee.
In view of our fording that Gapik is not a confi-
dential employee, we agree with the judge's con-
clusions that the Respondent's statements to her
violated Section 8(a)(1) and that Gapik's discharge
violated Section 8(a)(3) and (1) of the Act. We
therefore find it unnecessary to pass on the judge's
conclusion that -confidential employees are entitled
to_ the protection of, the Act or on her alternative
finding that, even if confidential employees are not
so entitled, Gapik's discharge independently violat-
ed Section 8(a)(1) by analogy to Parker-Robb Chev-
rolet, 262; NLRB 402 (1982).
ORDER
The National Labor Relations Board adopts, the
recommended Order of the administrative law
judge and orders that the Respondent, Crest Mark
Packing Co., Chicago, Illinois, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order.
4 We find that the potential for conflict arising from Gapik's typing the
Momenee documents is not significant.
Ramon Martinez, Jr. Esq., for the General Counsel.
R. Peter Carey, Esq., of ' Chicago, Illinois, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me in Chicago, Illinois, on June
15 and 16, 1983, pursuant to a charge filed on September
10, 1982, and a complaint issued on October 28, 1982,
and amended on June 7, 1983. The complaint as amend-
ed alleges that Respondent Crest Mark Packing Co. vio-
lated Section 8(a)(1) of the National -Labor Relations
Act, by directing an employee to speak to bargaining-
unit employees against the bargaining proposals of the
Beef Boners & Sausage Makers Union Local 100-A of
the United Food and Commercial Workers International
Union, AFL-CIO, CLC (the Union) and in support of
Respondent's bargaining proposals; by threatening to
lock out its employees and close its facility because of
the employees' support for the Union; by threatening
that Respondent's employees would never work again in
the Chicago meat industry if they voted to engage in an
economic strike; by threatening to oppose laid-off em-
ployees' unemployment compensation claims if they
voted to strike in support of the Union; and by stating in
an employee's presence that Respondent had solicited
other businesses not to" hire Respondent's employees if
they decided to engage in an economic strike. Respond-
ent denies having engaged in any of the foregoing con-
duct. The complaint further alleges that, Respondent vio-
lated Section 8(a)(1) and (3) of the Act by discharging
Patricia Gapik, and by failing to reinstate her because
she supported the union activity of other employees and
protested Respondent's efforts to solicit her support in
Respondent's antiunion campaign. Respondent's posth-
earing brief contends that Gapik voluntarily quit, and
that Respondent, for lawful reasons, accepted her resig-
nation 3 days early.' Respondent further contends that
Gapik was not protected by the Act because she was a
confidential employee. The General Counsel contends
that Gapik was not a confidential employee; that in any
event, confidential employees are entitled to the protec-
tion of the Act;- and that even if they are not,' Gapik's
alleged discharge violated Section 8(a)(1) because it was
allegedly motivated by a refusal by her to commit unfair
labor practices.
On the basis of the entire record,2 including, the de-
meanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent,3
I make the following
' At the outset of the hearing, Respondent's counsel stated, "most im-
portantly, we contend she was not in fact discharged at all but voluntari-
ly quit "
2 Certain errors in the transcript have been noted and corrected
Company witness Joseph Halper was properly present in the hearing
room while Patricia Gapik testified as part of the General Counsel's case
in chief. After the issuance of a sequestration order, Halper talked with
company witness Patrick Kearney (who had not been to present) about
Gapik's testimony regarding a telephone call to the state or Federal De-
partment of Labor in the presence of Kearney but not Halper (see infra,
part II,A). The General Counsel's posthearmg brief requests me to recon-
sider my action at the hearing in denying his motion to strike all of Kear-
ney's and Halper's testimony. I adhere to my denial of the motion. U.S. v.
Fike, 538 F 2d 750, 757 (7th Cir 1976), cert denied 429 U S 1064 (1977),
see also US v. Schaefer, 299 F.2d 625, 631 (7th Cir, 1962), cert. denied
370 U S 917 (1962) As found infra fn 30, this incident is immaterial to
the results. Moreover, to the extent that Kearney's testimony differed
from her testimony, I have credited her
S Counsel's briefs state that the court reporter omitted certain exhibits,
and misnumbered certain portions of the transcript, in copies of the
record furnished to counsel These errors do not appear in the copies fur-
nished to me Attached to Respondent's brief is a document that Re-
Continued
CREST MARK PACKING CO. 1001
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation with an office
and place of business in Chicago, -Illinois, where it is en-
gaged in boning pork and in the wholesale sale of pork
and related products. During the calendar and/or fiscal
year preceding the issuance of the complaint, a repre-
sentative period, Respondent purchased and received at
this facility products, goods, and materials valued in
excess of $50,000 directly from points outside Illinois. I
find that, as Respondent admits, it is engaged in com-
merce within the meaning of the Act, and that assertion
of jurisdiction over its operations will effectuate the poli-
cies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In July 1977 Respondent voluntarily , and without an
election, recognized the Union as the exclusive bargain-
ing representative of Respondent's hourly paid produc-
tion workers. Respondent recognized the Union continu-
ously thereafter , and was still doing so at the time of the
June 1983 hearing . During this period , Respondent never
locked out its employees, and the only strike occurred in
March 1983.
In'January 1982 Respondent 's executive vice president,
Joseph Halper, set up ' a new corporation, Momence
Packing Company , in Momence, Illinois, 50 or 60 miles
from Respondent's facility in Chicago, to perform a pork
belly skinning operation . A maintenance staff was hired
about March 1982, and production operations began
about June 1982 . However, at least until the end of
August 1982 , no office employees worked at the Mo-
mence facility , and practically all of its books and
records were prepared and maintained by Respondent's
clerical workers.
Patricia Gapik became employed by Respondent in
1979 as a salaried employee outside the bargaining unit.
In September 1981 she advised Executive Vice President
Halper, Company President John Mazur, General Man-
ager Edward Kramer, and Plant Manager Patrick Kear-
ney that she was getting married to Zbigniew Gapik, a
union member who was working for Respondent as a
butcher in the bargaining unit. About 2 weeks 'later,
Kearney told her that Kramer had said that either she or
her husband would be let go because of their marriage,
Kearney said that it would probably be she, because
Zbigniew Gapik was in the Union and there might be
some problem ' with terminating him. She asked why' she
was being singled out, when Respondent, employed many
other employees who were related . She ' asked Kearney
to tell Halper that she was not going to, leave voluntari-
ly. Later, she went into Halper 's office and told him that
spondent describes as "Administrative Law Judge's Exhibit 1" and as
having been inadvertently omitted by the court reporter from the exhibit
folders. At the hearing, a document was marked as ALJ Exh 1, but was
never offered
Kearney had said that either she or her husband was
going to be discharged because they were getting; mar-
ried. She told him that she would like to know why be-
cause Respondent had other personnel in the plant who
were related. Halper told her that she was a "confiden-
tial" employee. He went on to say that he was con-
cerned that she would tell her husband about matters
"such as our finances, different-things like that," and that
such -information would thereby become "common
knowledge." She promised that she would not take any
information out of the office and would not discuss the
office business with her husband.4
She credibly testified that she never in fact did so.
Halper testified that he "accepted her assurance . . . and
just let it pass and she remained our employee and so did
her husband. There was no problem."
The Union's collective-bargaining agreement for the
production and maintenance employees at Respondent's
facility was due to expire at the end of April 1982.
Gapik's desk was located 5 or 6 feet from and outside
Respondent's conference room. In late February 'or
March 1982, as Halper and General Manager Edward
Kramer were, coming out of the conference room,
Halper was in the course of saying that nobody was
going to tell him how to run his business; that -the men
were making too much money; and that he was planning
on locking them out. Then, he turned around and asked
Gapik whether she was planning- on buying "that new
car." She said that she was. He said, "I don't advise you
to, because your husband 'might be out of a job real
soon." He did not mention interest rates. She did in fact
buy the car.5
In March or April 1982 Plant Manager Kearney told
Gapik that he had told his We. that Gapik was being
"harassed," and that Kearney had told him that Gapik
should- call the, "Department of Labor" and see whether
anything could be done about this.6 Gapik, who at that'
time was unaware that there was' both an Illinois'and a
Federal "Department of Labor," asked the, telephone op-
erator for the "Department of Labor" telephone number,
and called the number given to her. Gapik asked the
woman who answered the telephone,, whose identity is
not shown by the record, whether there -were, any em-
4 My findings about this conversation between Halper and Gapik are
based almost entirely on his testimony. Her denial that the question of
confidentiality and discussing business with her prospective husband
came up is difficult to reconcile with her testimony that Halpei said he
had planned on letting her go because of her marriage, but had changed
his mind, to which she replied that if he had let her go, he would have
had to let go other company personnel who were kin to each other.
5 My' findings about this conversation between Halper and Gapik in
Kramer's presence are based on her testimony. 'Halper and Kramer both
testified that Halper advised her against buying a car because interest,
rates were high However, Halper testified that this, conversation took
place in his private office and, when asked whether anyone else was
present, said, "Not that I can recall" Kramer corroborated Gapik's testi-
mony that this conversation occurred in his presence and in the main
office area, and testified that clerical employee.Annette McCCory was
probably present also In view of these inconsistencies, and'for demeanor
reasons, I credit Gapik McClory did not testify. '
s This finding is based on Gapik's testimony. Inferentially, the alleged
harassment consisted of alleged sexual and/or ethnic slurs. I need not de-
termine whether Gapik's testimony is probative of the occurrence or con-
tents of any conversation between the Kearneys.
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee rights concerning
'
"verbal harassment." The
woman asked-what type of harassment . Gapik told heraa
few things that had 'been-said to Gapik. The woman said
that she " was'sending Gapik a booklet concerning "all
employee rights ." Gapik then hung up` the telephone,
and related the conversation to Kearney . Kearney asked
her-to call the "Department of Labor" back and find ,out
the rules or laws concerning lunch and coffeebreaks.
Kearney explained that, he had - been told by ' General
Manager Kramer ,not to permit her to leave the building
for lunch any more, and to require Gapik (who, was paid
for her lunchbreak) to eat at her desk if she ate lunch at
all. Kearney further explained that he was upset because
he himself seldom got to go out , to lunch, but had to
watch the plant while Halper_ and Kramer went out; and
that Kearney thought- there , should be a set rule concern-
ing the hours and length , of lunchbreaks. Gapik palled
the same woman again ., ,She , told Gapik that employees
who worked 8 hours were entitled to a 20-minute lunch
period, but other breaks were up to management. Gapik
reported this conversation to Kearney.? No changes
were thereafter , made in Respondent's lunch practices
with respect to Gapik or anyone else. Kearney and
Halper denied , that Kearney reported to Halper , Gapik's
conversations with the "Department of Labor ." Kearney
testified that , he never reported , them to ' Kramer or
anyone, else , in management.
B: Alleged Unfair Labor Practices
1. Alleged instructions to Gapik to^speak , in favor of
Respondent 's bargaining proposals and against
union bargaining proposals
Before or during the initial bargaining session, which
was held on ' April , 23, 1982 , the Union received from the
Company a copy' of the Company 's initial bargaining
proposals. Regarding the health , welfare, and pension
funds the proposal as typed stated in its-entirety:
Section 19 - DELETE (Insurance) -
Will be provided by- company through a private
insurance- company.
Section 20 -DELETE
Will be provided by company through a financial
institution.
This first bargaining session with respect to a new con-
tract was held at -the union hall. The Union was repre-
sented"by, inter alia, Union President Joseph Piotrowski,
Union Secretary Walter ;Piotrowski , Union Business
agent Walter Dzieronski , and employees John Kopinski
and ,Stanley Lubinski . Respondent was represented by
Haiper. The Union proposed , ' inter alia, inclusion in the
new agreement of the union health , welfare ,:and pension
programs set forth in the expiring agreement. Halper said
that these 'union programs "would no longer be in the
negotiations:" 'Halper said that he would like to get
something in the nature of Blue Cross and Blue Shield,
7 My findings about these calls are based on a composite of Gapik's
testimony and credible parts of Kearney's testimony For demeanor rea-
sons, I do not credit Kearney's testimony that the expressed concern
about lunch periods proceeded entirely from her and not him.
and mentioned that "that they did' have Banker 's Life."
Walter Piotrowski said that if the private insurer's pro-
gram was as good or better than the Union 's, he would
like to listen to it. -
A later negotiating `session - on June 4, 1982, was, held
in Respondent's conference room. The Union was repre-
sented by, inter alia, Joseph , Piotrowski, Walter Pio-
trowski, Dzieronski, and Kopinski . Respondent -was rep-
resented ' by, inter alia , Halper and - Kramer. The Union
described improved health , welfare,' and pension benefits
in a recently, ratified bargaining agreement between the
Union and the American -Meat Association . Respondent
said that it would come up- with a proposal that would
be-commensurate or better. - -
After the union officials had left, Halper came into the
main office : In the presence " of Kramer and Gapik, he re-
marked, "how difficult it was to get anything -across to
these stupid Polacks." Halper said that during the meet-
ing he had been trying to explain his proposal regarding
the health and welfare insurance and the pension fund,
and that he "just didn 't seem to get anything through
John Kopinski 's head." Halper said that Kopinski was so
stupid that Halper could not understand why- Kopinski
was a union' steward. Gapik said that she'knew Kopinski
was,, not stupid, that- she knew he spoke English very
well, that he had studied at the University of Poland,
and that he was far from stupid . Halper said , that if'Ko-
pinski was not stupid , then he' must be afraid to go
against the Union . Halper went on to say that under the
union pension plan, the men -were -"vested for 10 years,"
and that "For 10 years , the Union takes the' money and
puts it in ' their pockets."- He went on to- say that the
Union did not care about the men, that they were so
stupid they did not realize this, and - that he `just didn't
seem to be able to get anything across."
Halper asked Gapik how she knew so much about Ko-
pinski . She said that , the Gapiks were friends of his, that
they visited each ' other's houses, and that she felt- she
knew him very well . Halper said, "[W]hy, don't you talk
to [your husband and] explain all these proposals as far
as the health and welfare ' and the insurance . . . and
have him talk to ' Kop-insk'i about it?" She asked Halper
why he did not call Kopinski to' his office and explain all
this to him . Halper, Who has a background in labor rela-
tions, said that he , could not do this because it would vio-
late the labor laws. However, he' said , nobody could do
anything to her for talking to Kopinski about this. Gapik
said that she would talk to her ''husliand.
On an undiscclosed later date , inferentially a day or two
later, Gapik told her husband ,that Halper wanted one of
the Gapiks to explain the insurance , _ health , and welfare
to Kopinski. Zbigniew Gapik told his wife_ not to get in-
volved with it. On June 19, while the Gapiks and Ko-
pinski were together ,in' a restaurant , Gapik said to Ko-
pinski that Halper was an intelligent man who '-thought
that the Respondent 's pension ' and insurance plan could
be good for the workers , and asked whether Kopinski
understood the proposals . He said yes, in a 'manner
which suggested to Gapik that he felt the question insult-
ed his intelligence. Zbigniew .Gapik became "mad" at his
wife for bringing the matter up, and she never brought it
CREST MARK PACKING CO. 1003
up again. During this conversation , Gapik did not tell
Kopinski why she had chosen to speak to him about
these items. Kopinski testified that he had no idea wheth-
er, in making these remarks , Gapik was speaking her
own mind.
My findings concerning the conversation between
Gapik and Halper are based on her testimony, which is
indirectly corroborated by Respondent's continuous in-
sistence, to the point of eventually taking a losing strike
(see infra, part II ,B,4,a,(5)) on its own . proposals about
pensions and insurance . Although the June 4 negotiating
session likely broke up' about 15 minutes after her normal
quitting hour, during that week she worked several
hours of overtime after her regular working hours. For
demeanor reasons, I do not accept Kramer 's denial that
he was present during such a conversation. Also for de-
meanor reasons, and because Halper's testimony was im-
peached in other respects (see infra, part 11,13,4,b), I do
not accept Halper's denial that he told Gapik to tell her
husband about the Company 's proposals. Respondent's
brief contends (Br. 17-18) that her testimony about this
conversation is unworthy of belief because the health,
welfare, and pension plan proposals as of that date were
not very specific . However, Gapik attributed to Halper
the remark during this conversation that the employees
did not realize that the existing pension plan benefited
union officials at the employees ' expense . Moreover,
Halper may well have been persuaded that the "Polacks"
did not understand that Respondent was intending to
offer plans commensurate with the Union 's plans . Indeed,
Halper testified that in June 1982 , Gapik told Kramer
and he regarding the pension plans and health insurance
that her husband had said, "the people didn't really un-
derstand what [Respondent's representatives] were talk-
ing about," and asked Halper and Kramer to clarify the
matter . Although for demeanor reasons I credit her
denial of this conversation , Halper's testimony does
evince his belief that "the-people" could have been con-
fused about Respondent 's then position as to these bar-
gaining issues.
2. Extension agreement; alleged lockout threat
The Union and the Company had another negotiating
session on June 23 at the union hall. Respondent was
represented by, inter alia , Halper, Kramer, and', an insur-
ance broker whom Respondent brought to the meeting.
The broker said that he could plan both the health and
welfare fund and the pension fund ` to yield better benefits
than the union plans. That day , the parties entered into
an agreement to extend (for employees on the payroll
before May 1) the existing agreement until a new agree-
ment was executed or, if the parties were unable to reach
such an agreement , until either party had given to the
other a 5-day written notice of its desire to terminate the
provisions of the current agreement . Further, "The
Union shall not strike and the Company shall, not lock
out its employees unless either party has provided the
other , with the five -day written notice previously set
forth."
During the first week in June 1982 , Zbigniew Gapik
went on medical leave because he had broken his hand at
work. On July 5, 6, 7, or 8 , Halper came up to Gapik's
desk and asked when she thought her husband would be
released from the doctor. She- said that she was very sure
that he would be released the following Friday, July 9.
Halper said that if her husband was released , to tell him
not to bother to come back to work . She asked ,why,
Halper said , "Because I'm locking the men out Friday."
She asked if he was "kidding ." He said, "No, I'm not.
I'm going to lock them out and I 'll run this operation out
of Momence ... I'm going to see how long those men
can go without getting a paycheck ." Halper went on to
say that he and other company officers could get along
for a long time , or indefinitely,, without getting a pay-
check, and asked her how long she could go without
one. She said that if her husband was released that
Friday, he would report to work Monday ; and that if he
was locked out, somebody from the Company would
have to tell him that he was locked out . She repeated
Halper's remarks to her husband before he returned to
work on July 12.
My findings concerning this conversation between
Halper and Gapik are based on her testimony. She testi-
fied that Kramer and (probably) Kearney were present,
but they were not asked about the matter . Halper testi-
fied that, during a conversation when nobody else (so far
as he knew) was present, she asked him why her hus-
band had not received his workmen's compensation
checks and why his doctors had not been paid. Gapik
credibly, testified without contradiction that her hus-
band's Workmen 's compensation checks were duly re-
ceived at Respondent's office . She •further credibly testi-
fied without contradiction that his medical claims were
sent ' to the insurance company, that ' her husband never
received at his home any bills for medical treatment for
his injury, and that regarding such injuries at Respond-
ent's plant, the procedure was for the insuran ce company
to pay the providers directly . Halper testified that any
problems with Zbigniew Gapik's workmen's compensa-
tion claim should have been noted in his personnel file;
but o such notations were produced . I infer that the
medical bills were paid in the usual course . Moreover,
Halper sought to improve his denial that he mentioned a
lockout jby testifying that Gapik knew there would be a
layoff, because she had been asked to prepare a seniority
list. However, she dated that seniority , list July 9, 1982;
and Plant Manager Kearney testified that the decision to
effect a layoff was not made until about 11 a.m ., on July
9, several days after the July 5 date that Halper attached
to his conversation with Gapik . For the foregoing and
demeanor reasons, and because Halper 's testimony was
impeached in other respects' (see infra, part 11,13,4,b), as
to this conversation I credit her over Halper . The fact
that' ' Respondent was still bound by a no-lockout agree-
ment terminable on 5 days' notice is not inconsistent
with testimony that Halper threatened a lockout in 4 to 7
days fort the purpose of frightening his subordinates.
3.'July, 112 layoff; August 5 strike-vote and contract
termination notices
On Thursday, July 8 , the parties'i conducted another
bargaining session . The Union was represented by
Walter and Joseph Piotrowski, Dzieronski, and Kopinski.
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent was represented by Halper and Kramer.
Health, welfare, and pension issues were discussed. The
Union asked Respondent to show a "formula" that
would show its proposed -plans were as good as or better
than the union plans. Halper said that if the administrator
of the union 'plans could show Respondent a better
"evaluation" of those plans, Respondent could formulate
something more definite. -
After the decision about 11 a.m., on Friday, July 9, to
effect a layoff, and after Gapik had finished preparing
the seniority list bearing that date, Halper conferred with
the foremen about whom to lay off in view of the em-
ployees' jobs and seniority and the Company's produc-
tion needs. After 4 hours' work on Monday, July 12,
about half , of Respondent's 40-unit employees were -laid
off. Among those laid off was Zbigniew Gapik. Ordinari-
ly, after deciding to effect a layoff, Respondent would
direct Gapik to prepare a typewritten list of who was to
be laid off, and would post it immediately after it was
prepared. The record fails specifically to show whether
this was done in connection with the July 12 layoff. I
infer that if such a typewritten list was prepared and
posted at all, this was not done until the morning of that
day.
On Thursday, August 5, the parties conducted another
negotiating- session in Respondent's conference room.
The Union was, represented by Walter and Joseph Pio-
trowski, Dzierouski, and Kopinski. Respondent was rep-
resented by Halper and Kramer. Respondent presented
its proposal as to the health, welfare, and pension funds.
The Union stated- that it would not agree to these pro-
posed plans because it was not sure whether they were
at least as good as those called for in its recently execut-
ed contract with the American Meat Association. The
insurance broker brought to the meeting by Respondent
said that if the Union would just explain the current
status of its health, welfare, and pension plan, she could
use an experience factor in it and could get a formula for
such plans. Union Secretary Walter Piotrowski told Re-
spondent that at the next union meeting, he would report
the status of negotiations to the membership and take a
strike vote. That same day, Halper gave the Union, a
written notice of termination of the collective-bargaining
agreement, "effective at the end of the shift, at approxi-
mately 2:30 p.m. on Friday, August 13, 1982.
4. Alleged August 9-10, 1982 threats of reprisal for
strike; alleged August 10, 1982 discharge of Patricia
Gapik; the March-April 1983 strike and bargaining
agreement
a. Credited evidence about those events
(1) Events on August 9-11, 1982
After a 1-week vacation during, the first week in
August, Gapik returned to work on Monday, August 9.
About 8 or 8:30 that morning, Halper called her into his
office. In Kramer's, presence, Halper asked her if her
husband had started to receive his unemployment checks.
She said that he had not, but should be getting them
shortly. Halper told her not to count on it. She asked
why. He said that there was going to be a strike vote,
and that if any of the active employees struck, Halper
was going to see to it that the employees on layoff status
would stop receiving unemployment compensation.
Gapik said that she did not think' he could do that to the
employees who had been laid off, "They didn't go on
strike, you laid them off."' Halper said that he could do
it, that he'would do it,'that they were all union members
whether they were on strike or laid off, and that that
was the price that they were going to have to pay for
being union members. Halper went on to say that if she
cared- anything about her husband's receiving his checks,
she should tell him to contact ' the men that were on
layoff and the ones who were still working and tell them
to vote not to 'strike. Halper said that if they did strike,
he would see to it that "none of those [obscenity] Po-
lacks ever work in the Chicago meat industry again."
Halper said that he could do this by merely making a
few phone calls. She-said, "I know you can." I have seen
you do it before." She said that she would not tell her
husband, anything, and that if there was a union meeting,
the Union or the union steward would contact him.
However, she did tell her husband about this,conversa-
tion with Halper.
During Gapik's August 2-6 vacation, her job had been
performed by Pat Dale (also referred to in the record as
Pat Gail), who had been, Respondent's first bookkeeper
and who came in to help out when extra bookkeeping
help,was needed. About 8 a.m., on August 10, the morn-
ing after Gapik's conversation with Halper about her
husband's unemployment compensation, Plant Manager
Kearney told Gapik that Dale had taken home more
money for the week than Kearney had, and said that, he
was going to talk to Halper about the matter.9 Gapik
said that she had-- had her own problems with Halper.
Kearney asked what the matter was. She went through
her whole August 9 conversation with Halper. In addi-
tion, according to her credible testimony, she told Kear-
ney of "other things that had been said" to her and how
she "had been asked to relay certain things, about the
Union to the men." I infer from this testimony that she
described her conversation with Halper about March
1982 when he advised her not to buy, a new car because
her husband, might be locked out of his job "real soon";
8 Regarding' the incident she was referring to, a composite of credible
parts of the testimony of Gapik, Halper, and Joseph Piotrowski shows as
follows: In late ,August 1981 (the 1982 date testified to by Piotrowski was
obviously in error), employee Stanislaw Golan walked off the production
line and was discharged. At his behest, the Union filed an unsuccessful
grievance alleging that his departure was due to, illness- caused by a new
production line system. The Union also filed a charge about hiss discharge
with the NLRB, which dismissed the charge When he filed an unem-
ployment, compensation claim, he was found disqualified for 6 weeks.
During a November 1981 telephone conversation in Gapik's presence,
Halper told Ed O'Hilski, a representative of another meat company
whose employees were also represented by the Union, not to accept
Golan's application for employment. Halper said that Golan had been dis-
charged,for walking off the production lines and refusing to work, that
Respondent had had problems with him in the past, that O'Hilski had po-
tential for future problems with Golan, and that if O'Hilski had such
problems, "he would have the Union on his back "
The parties stipulated that during that week Kearney's gross pay ex-
ceeded $500, his take-home pay was about $385, and Dale's take-home
pay was $400. No deductions were made from her pay because she was a
part-time employee.
CREST MARK PACKING CO. 1005
about her June 4 conversation with Halper regarding ex-
planations to Kopinski of Respondent's bargaining, pro-
posals; and about Halper's early July comments regard-
ing alleged lockout plans that included her husband. She
said to Kearney that she was disgusted about the whole
situation., that she felt she was being put in the middle of
the problems between the Union, and Respondent, that
these problems were none of ' her business, that she' was
tired of being harassed verbally and of being insulted and
degraded, that she could no longer concentrate on her
work, that she was constantly being pulled away from
her work and being told different things, and that "it was
going to have to stop." She said that if it did not stop,
the following Friday was going to be, her last day. Kear-
ney asked if site wanted him to talk to Halper for her.
She said, "no," that she would talk to Halper herself.
About 3 p.m. that afternoon, Gapik's normal quitting
time, Kramer received a telephone call from Timothy G.
Lowry, a meat broker with whom Respondent regularly
'does business. In Gapik's presence, Kramer told Lowry
that there was a pending union meeting- for a strike vote
and that he had spoken to a couple of other meat compa-
' nies regarding not hiring these men if they went out on
strike.Kramer said that he had talked to Thomas Smith
from R and S Meats, to O'Hilski from Illinois Meat, and
to someone from Ampack. Kramer said that he was
pretty sure that Ampack would not hire strikers -against
Respondent, and that all of these firms seemed to be in
sympathy with Respondent. Kramer asked Lowry, ' who
acts as meat broker for a number of meat packers in ad-
dition to Respondent, if he would ask other meat compa-
nies not to hire any of these men. Kratner spoke in a
loud, angry, boisterous, and theatrical tone.
At this point, Gapik approached Kearney and told him
about Kramer's conversation with Lowry. She said that
she had decided not to wait around for Halper and that
she was going -home. She asked Kearney to talk to
Halper for her. Kearney said that he would `see what he
could do, that she should go home, and that he would
see her in the morning. Halper's daughter Kim (who did
not testify) was present at the beginning of this conversa-
tion, but Kearney and Gapik concluded it in the shipping
dock because Kearney told 'Gapik that he did not ,want'
their conversation to be overheard by Halper.
About, 5:151hat evening, Kearney telephoned Gapik at
her home,' He told her that he had spoken with Joseph
Halper and that Halper had told him to tell her that her
services were no longer needed. She said that he was
"kidding." He said, "[No], really, I spoke with Mr.
Halper and he said to tell you that your services are no
longer needed." She said, "That is it? Just get rid of me?
That is it?" He said, "That is it." She-said that she would
be in on Friday to get her paycheck.
On Wednesday, August 11, Oapik telephoned Kearney
and told him that on August 13, the next payday, her
husband would pick up her final paycheck and some per-
sonal effects that she had kept at the office. On Friday,
August 13, Kearney gave these items to Zbigniew Gapik
in the plant parking lot. Kearney, told him in English that
Gapik had been fired,'and said in English "Everybody in
this company is crazy."
My findings about the conversation between Kearney
and Zbigniew Gapik are based on Gapik's testimony.
Kearney testified that the conversation occurred in the
office downstairs, and that all he said to Gapik was,
"Ziggy, I'm sorry, [Mrs. Gapik's] not working here no
more.' Gapik impressed me as an honest witness, -where-
as Kearney was impeached in several respects (see infra,
part II,B,4,b). Although Gapik's native language is
Polish and his ability to understand English is very limit-
ed, Kearney's version of what he said includes nothing
'that would be capable of being misunderstood as an as-
sertion that everyone in the Company was crazy. More-
over, although Kearney testified-that Halper's' daughter,
Kim, was present during this conversation, she was not
called as a witness. Accordingly, and after considering
the witnesses' demeanor and respective interests, I credit
Gapik.
On August 11, 1982, Respondent's employees voted to
give the Union authority to strike. On or before August
18, the Union notified Respondent of this strike authori-
zation. However, the union negotiators had not really
wanted to strike at this time, and no strike was called.
(2) Gapik's unemployment compensation claim
On an undisclosed date before August 18, 1982, Gapik
filed an application for unemployment compensation.
Thereafter, the Gibbens Company, which represents Re-
spondent in contested unemployment compensation
claims, requested Respondent to fill out a blank form,
printed up by Gibbens, headed "Notice of Termination
of Employment." The form as filled out by Kearney on
August 18 states that she quit and that Respondent
would not rehire her. In a portion of the form stating
"Reason in detail required," he inserted the following
entry:
When she returned to work after vacation and
found out her replacement was paid more than she
was, she said she was insulted by this and had no
other recourse than to quit. In the past she has men-
tioned that she would like to collect compensa-
tion. 10
On August 24, a claims adjudicator of the State of Illi-
nois Department of Labor, Bureau Employment Securi-
ty, Division of Unemployment Insurance, denied her
claim on the ground that she had left work because of
"Job dissatisfaction." Pursuant to her appeal dated
August 27, 1982, a hearing on her claim was held on Oc-
tober 21, 1982, by a hearings referee. Regarding the, cir-
cumstances of her separation, she gave the same testimo-
ny to the referee that she gave before me and that is
summarized above. At the conclusion of her testimony,
the referee asked her, "Do you mean that you were fired
for union activities?" She replied, "I guess that is what
you can call it." Kearney testified before the referee that
Gapik quit because Dale made more money than Gapik
did. The referee's decision, dated October 29, 1982, states
in part:
10 The General Counsel's objection to the receipt of this document
into evidence is discussed infra, part II,B,4,b
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
-FINDING OF FACTS:
The claimant was a bookkeeper. She left work
because of dissatisfaction with employment. Her
husband had been previously laid off for lack of
work by the employer. Thereafter, a strike vote was
to be taken She objected to being asked to speak to
her husband about the matter. The claimant felt as
though she was in the middle of something that was
of no concern to her. Thereafter, the claimant ad-
vised the employer she was leaving work the fol-
lowing Friday. Her resignation was immediately ac-
cepted. The claimant denied that she was going to
stay at home and "draw compensation."
CONCLUSION:
The evidence established the claimant voluntarily
left work without good cause attributable to the
employing unit. It was not established the claimant's
work was unsuitable per se. The claimant is dis-
qualified under the provisions of Section 601A of
the Act. I I
DECISION:
The determination of the Claims Adjudicator is
affirmed. The Claimant is disqualified for benefits
under Section 601 of the Illinois Unemployment In-
surance Act from August 08, 1982, and for each
week thereafter until the Claimant had had employ-
ment in at least four calendar weeks and has had
earnings in each of the weeks that equal or exceed
$148, which is the Claimant's current weekly benefit
amount.
On' April 29, 1983, the board of review of the State of
Illinois Department of Labor issued a decision fording
that "the Referee's findings of fact and conclusions are
fully supported by the record, and no errors of fact or
law appear to have been made. Accordingly, the deci-
sion of the referee is affirmed."
(3) Gapik's knowledge of the instant charge
The charge that gave rise to the instant proceeding
was executed by the Union on September 9, 1982. In the
blank space after "Basis of the charge (be specific as to
facts, names, addresses, plants involved, dates, places,
etc.)," the charge states, "On or about August 10, 1982,
the Company terminated Pat Gapic [sic] because of her
activities on behalf of the Union." The charge does not
specify her address or telephone number. The evidence
that Gapik gave a statement to a Board agent on Sep-
tember 17, 1982, shows that at least by that date, Gapik
had learned about the Union's,charge.
11 "An individual shall be ineligible for benefits for the week in which
he left work voluntarily without good cause attributable to the employ-
ing unit and thereafter, until he has become reemployed and has had
earnings equal to or in excess of his current weekly benefit amount in
each of four calendar weeks ...." 48 Smith Hurd Illinois Annot. Stat-
utes Para. 431
(4) Gapik's EEOC charges
Meanwhile, on September 13, 1982, Gapik went down
to the office of the Equal Employment Opportunity
Commission and spoke to an EEOC agent. Gapik told
the EEOC agent that she had been subjected to "verbal"
"sexual harassment" and insults of,a sexual nature, and
that she had been paid less than a male bookkeeper (who
left in May 1982, more than 2 months before Gapik's ter-
mination), who performed the same duties and whom she
had been required to train. Gapik did not mention her
union complaints , because the EEOC agent said that she
was only concerned with the sexual harassment and the
pay differential. The EEOC "Charge of Discrimination"
that Gapik signed on that day states that she had been
discharged on August 11, 1982, and further states:
I was subjected to harassment- by the male book-
keeper and even though management was'aware of
the harassment, no action was taken. -
... In August 1981, I married an employee who
was a member of the union. . . . My husband is
Polish and I was continually subjected to ethnic
slurs by Joseph Halper.
... On August 11, 1982 I informed Patrick
Kearney, that if the harassment did not cease, I
would be quitting by August 14, 1982 [which was a
Saturday]. I -was called by Kearney and told not to
return to work because my services were no longer
needed.
Thereafter, another EEOC agent, Wagner, telephoned
Gapik and asked her to come down to the EEOC office
again to give further information. On January 6, 1983,
she met with him in his office. On that date, she signed
an amended charge. The first - page of the amended
charge consists , of a photocopy of the September 13
charge with certain changes made by her., In material
part, these consisted of a change in her alleged discharge
date to August 10, 1982; and a change in the penultimate
sentence so as to assert that on August 10 she told Kear-
ney that if the harassment did not cease, she "would be
quitting, by following Friday."12 As, signed by her on
January 6, 1983, the amended EEOC charge also con-
tains two newly- typed pages. These pages allege that
Halper told her that he could not "get these [obscenity]
polacks" to understand his contract proposals; that he
had told her on August 9, 1982, that" If these [obscenity]
polacks strike I'll make sure they never work in the Chi-
cago meat industry again"; and that on August 10, 1982,
Kramer had asked Lowry to pass the word not to hire
any of the "[obscenity] polacks that Respondent was
locking out. The charge alleges that Halper, Kramer, and
Kearney made additional anti-Polish remarks and that
"these constant ethnic slurs made my work environment
unbearable." The charge goes on to allege that Halper,
Kramer, and Respondent's bookkeeper had made sexual-
ly offensive-remarks; that she had been paid less than the
male bookkeeper for' equal work; and that Halper had at-
12 The date of her marriage was also changed The January 1983
charge, like the September 1982 charge, alleges that the most recent act
of discrimination occurred on August It, 1982
CREST MARK PACKING CO.
tributed the salary differential to the fact that the other
bookkeeper "was a man and would not work for any less
money." The charge as amended concludes:
On August 10, 1982, I told Patrick Kearney that I
was tired of being insulted and degraded and that I
wanted the harassment to stop . I said that if the har-
assment did not stop by the following Friday I
would be forced to quit . Patrick Kearney said that
he would talk to Halper about it. At 5:15 PM on
August 10, 1982 Pat Kearney called me and told me
that I was fired . I have been retaliated against.
At the time of the June 1983 hearing before me, this
EEOC'charge was still pending.
(5) Events surrounding the strike in March and
April 1983
Until March 28, 1983, the health , welfare, and pension
plans were continuous subjects of negotiations , but the
Union and Respondent had still failed to reach an agree-
ment. On Friday , March 25, Respondent 's employees
voted to - go out on strike ^ on Monday, March 28., The
evening of March , 25 or early in the morning of March
26, Respondent received unofficial word of the strike
vote. On the morning of March 26 , Respondent called a
meeting , of its employees , most of whom were Polish-
speaking and some of whom were Spanish-speaking. In.
rather poor Polish, Company President -Mazur tried to
explain to the employees Respondent's`stand in the nego-
tiations. He -told the employees that they should not go
on strike, that anybody who did strike should not go
back to work, that the shop would be open on Monday,
and that those who came in to work on Monday would
get a company insurance and pension plan and the wages
would be the same. He said ' that he could not, give the
employees any guarantee, but that they should believe
his word. He said that he did not want the Union to rep-
resent the employees, and did not want them to pay-
union dues.' a Then , Halper told the employees, in Eng-
lish, that the Union had not officially notified Respond-
ent of the_ strike, that the shop would be open on
Monday if anyone chose to, come . to work, and that
wages would be the same as ' before. An employee asked
in English what would happen if the Union took their in-
surance away if they came to work. Halper said in Eng-
lish that he would give the employees "the private insur-
ance and the pension plan .and that negotiations are not
over, so we can still discuss some things.." Kearney, who-
understands practically no Polish , testified without objec-
tion that Mazur also answered the question in Polish.
Halper instructed employee George Negrete , who could
speak both Spanish and English, to translate Halper's re-
marks for the , benefit of employees who spoke only
Spanish. Inferentially, Negrete told them something in
'Spanish . No witness who can understand Spanish testi-
fied'about this meeting.
is My findings as to Mazur's remarks are based , on the uncontradicted
testimony of Kopinski, the only witness regarding this meeting who is
able to understand Polish Mazur did not testify.
1007
The Union began to strike and picket the plant on
March 28-19S3 . The strike continued until April 8, 1983.
On the following day, the employees ratified a new con-
tract that included Respondent 's health, welfare, and
pension proposals.
b. Reasons for credibility findings
My findings in the preceding part ,II,B,4,a about man-
agement's remarks on August 9 and 10 are based almost
entirely on Gapik's testimony , which I credit for de-
meanor reasons and the following considerations:
-1. Regarding Gapik 's testimony that about 8 a.m., on
August 9, she and Halper conversed about unemploy-
ment insurance in Kramer's presence , both Kramer and
Halper denied that Halper had any conversation what-
ever with her on the date and at the hour she gave,
Kramer testified on direct examination that "I think"
Halper was in Momence on August 9. On cross-examina-
tion, Kramer initially responded , "Right" to the inquiry,
"So, Mr . Halper wasnt at the [Chicago ] plant all day,
right?" Then, when asked how Halper's daughter Kim
(Respondent's receptionist) got to work that day,
Kramer testified that he "would imagine" that Halper
dropped her , off at the plant on August 9, and that he
would "not necessarily" stop to talk to Kramer before
leaving for Momence . Company witnesses Kearney and
Halper were evasive and untruthful about where Halper
was on August 9 and 10 . Kearney initially testified that
Halper was at Respondent's plant, in Chicago , on August
9.. Then, Kearney testified that Halper was not at Re-
spondent 's plant that day, that he was at-the Momence
plant on that, day, and (in effect) that Kearney did not
see Halper at all on = August 9. After that, Kearney testi-
fied that Halper dropped off his daughter at Respond-
ent's .Chicago plant on both August 9 and 10; that Halper
was not otherwise at Respondent 's Chicago plant on
either day, but was at the Momence Packing plant; and
that Kearney drove Miss Halper home on the evening of
both August 9 and 10 . Halper testified that she and Kear-
ney were still, at the , Chicago plant when Halper returned
there late in the afternoon of August 10 . He also testified
that .he came to the Chicago plant about 7:45 a.m. on
Aug" 9 to drop off his daughter, and that at this time,
he had a brief conversation with Kearney (who, as
noted, in effect denied that this conversation occurred).
Halper further testified that he then drove to the Mo-
mence ,Packing plant, which is 50 'or 60 miles from Re-
spondent's Chicago plant. -In an effort to procure cor-
roboration for his testimony about , these events, he testi-
fied that, he was the person who made two August 9
telephone calls that are listed on the Momenee Packing
telephone bill with Respondent 's Chicago fac}ility tele-
phone number listed as the recipient , and that both these
calls were made to Kearney; the bill shows that these
calls were made at 9:52 a.m. , and 12:52 p.m. However,
Halper further testified that the August 10 telephone
calls that are listed on the Momence Packing ' telephone
bill, all nine of which were allegedly made by him, in-
eluded acall made from the Momence Packing facility at
3:59 p:m.; and that he was in his car , driving , from the
Momenee to the Chicago plant, when he made telephone
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
calls on his mobile telephone that (as shown by his tele-
phone bill) were made at 3:46, 3:57, and 4 p.m. on
August 10. Moreover, he admitted that Momence Pro-
duction Supervisor Dick Backhard had occasion to call
the Chicago facility. Gapik credibly testified that she re-'
ceived a telephone call from Momence Packing every
morning, usually placed by Backhard, about the previous
day's receipts and shipments so that she could do the
billing; and that she believed the August 9 morning call
about this matter was made by him. I conclude that he,
not Halper, made the 9:52 a.m. telephone call to Re-
spondent's Chicago facility from the Momence Packing
facility on the morning of August 9. Further, I conclude
that Halper's, misrepresentations about the August 10
telephone calls cast doubt on his credibility generally, in-
cluding his veracity in denying the August 9 remarks
that Gapik attributed to him. For this reason, and be-
cause of deficiencies, discussed infra, in Kramer's testi-
mony about another matter, I do not credit their denials
of Halper's August 9 remarks to Gapik, in Kramer's pres-
ence. Further, I find that the above-described inconsist-
encies in Kearney's testimony about the foregoing
August 9-10 events reflect on his credibility generally.
2. Kramer and Lowry both denied engaging in any
conversation, as described by Gapik in her testimony
about the August 10 events, about the possibility of a
strike among Respondent's employees. However, it is un-
denied that on August 5 the Union, in Kramer's pres-
ence, said that it was planning to take a strike vote.
Moreover, Kramer and Lowry admittedly have frequent
occasion to engage in telephone conversations with each
other.' Furthermore, although on direct examination both
of them testified that a possible strike among Respond-
ent's employees was of no concern to -Lowry, on cross-
examination Lowry testified that reports regarding work
stoppages involving his customers were of substantial
concern to his meat-brokerage business because, "when
the contracts are up . . . you don't buy or sell meat for
them"; and that "Oh, sure," he talks with his customers
about strikes as- long as 1 month in advance. Moreover,
Kearney did not deny Gapik's testimony that she de-
scribed such a Kramer-Lowry conversation a few min-
utes after the time that- she testimonially attached thereto.
3. Amongg the remarks to Lowry that Gapik attributed
to Kramer during' this' conversation was the assertion
that R & S General Manager Smith was sympathetic to
Kramer's requests not to hire employees who struck Re-
spondent. Although denying that Kramer made any such
requests to him, Smith testified that when Respondent's
employees struck'in March and April 1983, he personally
drove a truck across,the picket line at Respondent's facil-
ity to pick up or deliver goods, even though the Union,
which also represents R & S employees, had asked him
in advance not to do so.14 Moreover, Kramer's use of
loud and boisterous tones during this converation indi-
cates that much -of his message- was not really intended
for Lowry's benefit, but rather was really directed at
Gapik and (through her) her husband in the bargaining
unit. For this purpose, the effectiveness of these remarks
about Smith would have little or no relationship to their
accuracy.
4. The undisputed evidence establishes that during the
period when Gapik acted as Respondent's regular book-
keeper, Dale had worked for Respondent as a bookkeep-
er for 1 week in April 1982 while Gapik was on vaca-
tion, for an undisclosed period in May 1982 - after the
male bookkeeper quit, and in July 1982 during a state
audit. Because Gapik maintained the payroll records, she
was at all times well aware that on each of these occa-
sions Dale was receiving higher direct wages than
Gapik. Moreover, Gapik received various fringe benefits
not enjoyed by Dale, and received a pay increase about
early June 1982. Such evidence renders unlikely Kear-
ney's discredited testimony that on Tuesday, August 10,
Gapik said that she was quitting at the close of business
on Friday, August 13, because, when substituting for
Gapik the preceding week, Dale had been paid more
than she. Moreover, the stipulation that Dale's take-home
pay for that ',week had also been higher than Kearney's,
his testimony that he had not learned this until August
10, and the absence of evidence or claim that he had
known Dale's pay rate during her previous sporadic em-
ployment with Respondent, tend to corroborate Gapik's
credited testimony that it was he who on August 10 ex-
pressed resentment at Dale's pay in comparison to his.1 s
Although I have discredited Kearney's testimony
about this August 10 conversation with Gapik, I adhere
to my action at the hearing in receiving, over the Gener-
al Counsel's objection, the Gibbens-provided form that
Kearney filled out and sent to Gibbens about the circum-
stances of Gapik's separation. The document is not hear-
say to the extent that it shows Respondent's representa-
tions to Gibbens, which opposed, on Respondent's
behalf, Gapik's unemployment compensation claim. In
contending' that the document is not receivable under
rule 803(6) of the Federal Rules of Evidence to show the
truth of the contents, the General Counsel's- posthearing
brief- seems to rely solely on the contention that the
source of information-indicates "lack of trustworthiness."
Particularly because Kearney himself testified about the
events that the document purports to describe, the cir-
cumstances on which the General Counsel bases his
"lack of trustworthiness" claim go to the weight of the
document and not - to its admissibility. See American
International Pictures v. Price Enterprises, 636 F,2d 933,
935 (4th Cir. 1980), cert. denied 451 U.S. 1010 (1981);
Crompton-Richmond Co. Y. Briggs, 560 F.2d 1195, 1201-
1202 fn. 12 (5th Cir. 1977). Because I' do not read Kear-
14 There is no evidence that R & S ever hired any of Respondent's
employees during the March-April 1983 strike In contending that
Kramer did not ask R"& S Representative Smith-about August 1982 not
to hire Respondent's employees if they., went on strike, Respondent's brief
(Br 27) refers to R & S' conduct in hiring several of Respondent's ex-
employees in 1982, beginning in early 1982 and up to 14 months before
the strike.
`5 1 do not credit Gapik's testimony that when stating on Tuesday,
August 10, that the following Friday would be her last day if manage-
ment's harassment did not stop, she meant Friday, August 20, and not
Friday, August 13. Her testimony in this respect is inconsistent with her
initial EEOC charge and with the natural reading of her amended EEOC
charge. In any event, management had no reason'to suppose that she
meant August 20
CREST MARK PACKING CO. 1009
ney's testimony as representing that Respondent fills out
such a form only after the applicant's unemployment
compensation claim is initially denied, I do not regard as
reflecting on the document's trustworthiness the fact that
it is dated before Gapik's claim was initially denied.
However, I attach no evidentiary weight to the represen-
tations in this document, for the reasons set forth in con-
nection with Kearney's testimony and because the docu-
ment was prepared in anticipation of the litigation of
Gapik's unemployment compensation claim. I note,
moreover, that the document, unlike Kearney's testimo-
ny, does not allege that Gapik said that she was not quit-,
ting until the end of the week, or that Halper thereupon
told him to accept her resignation immediately.
5. Kearney and Halper both testified that on Tuesday,
August 10, Kearney told Halper that Gapik had said that
Friday was her last day, and that she was quitting be-
cause she felt insulted by reason of Dale's pay while
Gapik was on vacation. Halper, but not Kearney, further
testified that Kearney said that Gapik did not want to'
talk about a raise; and that Halper replied,". . . if she is'
that unhappy to the point she doesn't want to talk about
a raise or anything else, and 'she is quitting Friday, we
better accept her resignation immediately, because if we
don't, we have the potential of her goofing up our ac-
counts receivable and accounts payables, because her at-
titude is so bad." Kearney's testimony nowhere refers to
any unwillingness by Gapik to talk about a raise, or to
any explanation by Halper for telling Kearney to accept
her resignation immediately. I do not credit either
Halper's or Kearney's testimony about this conversation
between them. Rather, and because I see no reason why
Kearney would have given Halper an inaccurate report
of what Gapik had told Kearney, I infer that Halper re-
ceived an accurate report from Kearney and that Halper
told him (as-Kearney promptly did) to tell her immedi-
ately that her services were no longer required. Further,
in the absence of corroboration from Kearney, I do not
credit Halper's testimony about the reasons Halper gave
for his instructions to Kearney.
6. Kearney testified that after this conversation with
Halper, Kearney telephoned Gapik and told her that Re-
spondent was accepting 'her resignation. Kearney went
on to testify that she said, "Oh, as of Friday," and he
said, "No, as _ of today." Kearney further testified that
about August 18, Gapik telephoned him and told him
that if Respondent opposed her claim for unemployment
compensation, she was going to file "all kinds of
charges." As previously shown, Kearney's testimony in
other respects is unreliable. Moreover, although Re-
sponden't's counsel stipulated that a document drawn up
by Gapik on the Friday before a Monday layoff was in
fact a seniority list of all the employees working in the
plant that Friday, Kearney testified (in connection with
Respondent's efforts to show that she was a confidential
employee) that the document listed only those employees
who were to be laid off. Accordingly, and for demeanor
reasons, I credit Gapik's version of the discharge conver-
sation, and her denial of the August 18 conversation. In
connection with the alleged August 18 conversation, I
note that she later filed a total of one charge (with
EEOC), and that she filed this charge almost a month
after this- alleged conversation and while her unemploy-
ment compensation claim was pending before the referee.
I further note that when testifying before the unemploy-
ment compensation referee, Kearney admittedly did not
refer to this alleged conversation. Although he was not
asked during that hearing about an event that happened
after Gapik's discharge, I think it likely that he would
have volunteered testimony about this conversation if it
had really occurred.
C. Analysis and Conclusions
1. Whether'Gapik was a confidential employee
a. Facts
Most of Respondent 's eight-floor building is occupied
by production operations . The fourth floor of the build-
ing contains the private office of Executive Vice Presi-
dent Halper and an undivided office area . During 1982
and until Gapik's separation in mid-August 1982 , the un-
divided office area contained desks occupied by General
Manager Kramer , Gapik, and McClory . Until May 1982,
when the male bookkeeper quit, he also had a desk in
that area. Dale also worked in that office from time to
time between April 1982 and the end of the first week in
August 1982 . So far as the record shows, during the first
8 months of 1982 Respondent 's only clerical personnel
were Gapik , McClory, Dale, the male bookkeeper, and
receptionist .Kim Halper, whose office was on the first
floor and who, inferentially , was a student who intended
to return to school at the end of the summer . 16 During
part of this period , Dale was acting as a fill-in for the
male bookkeeper after he quit . Gapik and McClory, each
had a typewriter at their desk ; Dale also had access to a
typewriter. At the time of Gapik's separation, she was
keeping the books for both Respondent and Momence
Packing, and was training McClory to do the payroll.
Halper testified that McClory was supposed to be learn-
ing to take over Momence Packing 's "paper work," was
performing general office work , and performed duties for
Respondent "Just to give her whatever extra time to fill
out her eight hours ." The duties of the clerical employ-
ees in the undivided office area included answering the
telephone and connecting the caller with the person
called.
As of early July 1982, Respondent 's active work force
numbered about 40 people.,Gapik's job title was book-
keeper . She took care ' of accounts receivable and ac-
counts payable. She never saw Respondent's profit and
loss statements . She kept a record of each employee's
hours of work , figured out the gross and take-home pay
of each, and made the data entry sheets for the payroll.
After the payroll readout and the checks had been print-
ed, she balanced them against , her own records. She re-
ceived checkoff and welfare deduction authorization
slips from the Union , made appropriate data entries,
typed up the checks to'the Union for checked -off union
dues, typed up the checks for the pension and for the
16 Halper was then 16 years old and was just learning to type. Her
fathers Executive Vice President Joseph Halper, usually drove her to and
from work.
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
health and welfare funds, and typed notices to the Union
that employees had been added to- or removed (by termi-
nation or otherwise) from the deductions lists . She main-
tained individual personnel files, and she put into or took
out of these files such information as injuries or changes
in deductions . She inserted into the files of office person-
nel certain information regarding vacation , sick, and off
days. When Plant Manager Kearney wrote up a discipli-
nary action , she would insert a copy into the employee's
file and send a copy to the Union . When Respondent
was presented with an employee 's health insurance claim
(on a form prepared by the Union), she would determine
from the employee 's personnel file (or, perhaps, from the
payroll records) whether he had been working for Re-
spondent on the critical dates , sign the form , and (with-
out keeping a copy) return - it to the employee , who sent
it to the Union.
When an employee was injured on the job, Gapik
would fill out and mail to the insurance companies
claims made by employees or by the clinic Respondent
was associated with ,- and put a copy of the clinic 's report
in -the employee 's personnel file. About June 1982, the
Occupational Safety and Health Administration asked
Respondent 'for a record of how many injuries there had
been in the plant . The testimony suggests that a file of
records of such injuries was supposed to be , but had not
been,- 'kept. Gapik asked ' Respondent's workmen's com-
pensation insurance company for a printout of how many
claims it had paid, and sent the printout to OSHA. Y 7
When Respondent received an unemployment com-
pensation claim, whether to contest it was usually dis-
cussed between Halper , Kramer,' and Kearney . On occa-
sion; Respondent would merely forward the claim notice
to the Gibbens Company , a professional organization
hired by Respondent to handle unemployment compensa-
tion claims , and' leave the matter up to it . Halpef would
either tell Gapik to put a particular unemployment com-
pensation claim notice into the personnel file, or (if Re-
spondent was responding to the notice ) tell her how to
respond . On an undisclosed date after November 1981,
after both Kearney and Kramer refused to attend a hear-
ing on a particular employee's unemployment compensa-
tion claim,' Halper said to Gapik, "You-are the bookkeep-
er, take care of this." Kearney told her how the employ-
ee had been terminated and what to say. At the hearing,
Gapik - appeared ' as Respondent's representative and re-
peated what Kearney had told her-namely, that the em-
ployee -had been -`fired for refusing to work on some new
equipment . His claim was denied for '6 weeks. This was
the only occasion on which Gapik ever performed such
an unemployment compensation function.
In June 1982 an auditor from the wage and hour divi-
sion of the United States Department of Labor came to
Respondent's plant. After going through the payroll
records, he asked her whether anyone was being paid
cash and how hourly paid employees were paid for Sat-
urday work . No other clerical personnel were involved
in this audit . Her participation took about 20 minutes.
17 Halper testified that OSHA had made such reviews a total of twice
between about 1977 and 1983 Gapik began to work for Respondent in
1979.
This audit did not result in any charges against Respond-
ent.
On an undisclosed -1982 date before Gapik's separation
in mid-August, Respondent underwent a sales tak' audit
by the Illinois Department of Revenue. At the request of
Respondent 's accountant, Gapik pulled from Respond-
ent's files some invoices for a 3 -year period . When the
state auditor came in, Respondent 's accountant worked
with him, inferentially with the assistance of the re-
trieved invoices.
As previously noted, after 11 a.m. on Friday , July 9,
1982 , Gapik was asked to prepare a seniority list to be
used in determining which employees were to be includ-
ed in a layoff announced about noon on Monday, -July
12. This was the only occasion on which a 'seniority list
was ever prepared for this purpose . When layoffs were
effected , she typed up, "whenever she could get to it," a
list of employees to be laid off. The layoff list was posted
immediately- after she typed it. She had nothing to do
with choosing which employees would be selected for
layoff.
Gapik occasionally picked up mail from Respondent's
post office box. Halper credibly testified that she gave
the mail to him unopened; and that he returned it to her
after he had removed "confidential" letters, which he did
not show her . He went on to testify that by "confiden-
tial" letters , he meant "Correspondence between our cor-
porate attorneys and myself that were of a private
nature , concerning labor negotiations , things like that
that [Kramer] was working on immediately or financial
statements due, to the commodities and trade , I would
keep that all myself."
Halper testified that current labor relations files that he
was working on "right away," were kept in his desk, and
that files that he did not need immediately or on "some-
thing which is done",are kept in the "general file" in the
main office. He went on to testify that when a new file
was to be set up , - he asked , "The bookkeeper , whoever
was in charge" to set it up . His testimony is somewhat
vague about who inserted material into the labor rela-
tions files , but he testified , in effect, that he-,did not do
this himself because he did not know exactly where in
the main office these files were kept. Gapik testified that
Halper maintained the labor relations files and kept them
in his office , that she had nothing to do with them, and
that she never saw the correspondence , file concerning
negotiations . In view of her uncontradicted testimony
that when Halper sent materials to Respondent 's labor
counsel , Halper inserted the material into the envelopes
that she addressed; in view of-Halper's,testimony that he
did not permit her to see "confidential" incoming corre-
spondence; and for demeanor reasons, I credit Gapik.
Halper decided on the substance of Respondent's bar-
gaining proposals and represented Respondent during
bargaining negotiations . Gapik never sat in on negotia-
tions. Laying to one side Halper 's comments when leav-
ing the conference -room in February or March '1982 and
his June 1982 remarks about the Union 's allegedly stupid
representatives , she was never (so far as- the record
shows) in hearing distance of intramanagement discus-
sions about negotiating strategy. The record suggests
CREST MARK PACKING CO. loll
that most of the typing in connection with Respondent's
1982 negotiations was performed by secretaries em-
ployed by Respondent's counsel. Gapik never typed any
notes, minutes, or correspondence in connection with
bargaining negotiations. However, Halper testified that
in February 1982, Gapik typed Respondent's initial pro-
posal to the Union (headed "Crest Mark Packing Co.")
from his handwritten notes so that he could show the
proposal to Respondent's counsel before giving it to the
Union. Halper further testified that Gapik typed a wage
proposal (R. Exh. 8) that Respondent submitted to the
Union in July 1982; but that she typed no other propos-
als that Respondent used during the negotiations. So far
as relevant here, Respondent's initial proposal consists of
Respondent's Exhibit 2 and Respondent's Exhibit 4.11,
On rebuttal, when the General Counsel showed her these
three exhibits and asked her whether she had typed
"any" of them, she said yes, I accept Halper's testimony
that she typed these two proposals by Respondent not-
withstanding her testimony elsewhere that she typed
only Momence Packing bargaining proposals. An-exhibit-
folder copy of Respondent's initial proposal consists of
material typed by Gapik plus various notations written
by Halper during negotiations. At least two of these no-
tations might suggest, to someone acquainted with prior
negotiations, what positions Respondent planned to take
during future negotiations.19 Halper testified that it was
his practice to take to each bargaining session a xerox, of
such an annotated copy of Respondent's proposal, and
that the xerox was made either by him or by "the book-
keeper or the other secretary."
As previously noted, while Gapik was in " Respondent's
employ, no clerical personnel were working in Momence
Packing Company's office in Momence, and she was
training McClory to perform these functions. Gapik set
up and maintained the books, and did the billing, for Mo-
mence Packing. She, typed up two proposals made by
Momence Packing to the labor organizations (the Union
and a sister local) which represented the.Momence Pack-
ing employees. The record suggests that Momence Pack-
ing did not reach a final agreement until about January
1983, after Gapik's separation. Gapik did, not maintain
the labor negotiation files from Momence Packing; they
were kept by Halper in his office.20 lialper, asked her to
keep Momence Packing business confidential. There is
no evidence or claim that she failed to do so.
b. Analysis
I agree with Respondent that Gapik was a confidential
employee. In so finding, I solely rely (1) on the fact that
on learning of her betrothal to a unit employee, Halper
told her that she was "confidential" (although without
any reference or, at least, specific reference, to the duties
that afforded her that status under the Act),21 and (2) on
18 The typewritten portions of G.C. Erb. 4 and of the first page of R
Exh. 2 are identical.
19 "OT over 40 hours onlyi!" and "4 yr K."
20 This finding is based on her testimony For the reasons set forth in
connection with the labor negotiation files for Respondent, I do not
accept Halper's testimony otherwise
21 Cf. Ohio State Legal Services Assn, 239 NLRB 594, 599 (1978)
Indeed, all the duties on which I rely in finding that she occupied that
her conduct in typing contract proposals, which Re-
spondent thereafter tendered to the Union during collec-
tive-bargaining negotiations. Reymond Baking Co., 249
NLRB 1100 ( 1980); see also Associated Day Care Services,
269 NLRB 178 (1984). No different result is suggested
by Postal Service, 232 NLRB 556, 558 (1977), cited by the
General Counsel; that case does -not indicate that the
"merit evaluations and other personnel documents"
typed by the employees in question were in other than
their final form. See Associated Day Care Services, supra.
Although there is no evidence that Gapik typed up any
contract proposals for Respondent at any other time, nei-
ther is there any evidence that Respondent engaged in
contract negotiations at any other time while she was
working for it.22
I need not and do not determine whether Gapik's con-
duct in typing employer contract proposals with respect
to the Momence facility, which is owned an d operated
by a corporation other than Respondent, is relevant to
determining whether she was a confidential ',employee
with respect to Respondent, her own employer. Cf.
Kleinberg, Kaplan, Wolff, Cohen & Burrows PC., 253
NLRB 450, 457 (1980). In this connection, I note that
she was performing this function merely until Momence
Packing acquired a trained clerical force of its own. Cf.
Swift' & Co., 129 NLRB 1391, 1393 (11961); 1VLRB v.
Allied Products Corp.; 545 F.2d' 644, 650 (6th Cir. 1977).
2. Whether Gapik was an employee within the
meaning of Section 2(3) of the Act
Respondent contends that confidential employees are
not employees within the meaning of Section 2(3) of the
Act for any purpose. Respondent cites Peerless
^
of Amer-
ica v. NLRB., 484 F.2d 1108, 1112 (7th Cir., 1973);23
NLRB v. Wheeling Electric Co., 444 F.2d 783, 788 (4th
Cir. 1971); and the dissenting opinion , in NLRB v. Hen-
dricks County Rural Electric Corp., 454 U.S. 170, 197-198
(1981). However, the Hendricks County majority declined
to rule on this issue (454 U.S. at 186-187 fn. 19). Nor has
the Board abandoned its position that confidential em-
ployees are employees within the meaning of Section
2(3). See, e.g., Intermountain Rural Electric Assn., 253
NLRB 1153, 1165-1166 fn, 20 (1981'), remanded 732 F.2d
754 (10th Cir. 1984); see also NLRB v. Greyhound Lines,
426 F.2d 1299, 1301 (5th Cir. 1970); NLRB v. Poultry-
men's Service Corp., 138 F.2d 204, 210 (3d Cir. 1943);
Sure-Tan, Inc v. NLRB, 467, U.S. 883 (1984). According-
ly, I am bound by the Board's view of the law. Ford
Motor Co., 230 NLRB 716; 717-718 (1977), enfd. 571
F.2d 993, 996-997 (7th Cir. 1978), affil. 441 U.S. 488
(1979).
status were not performed until several months later, and about 3 years
after her hire.
22 The bargaining agreement which expired in 1982 became effective
in April 1979 She started working for Respondent m October 1979.
2s Although the instant case will probably be presented to that court
of appeals if the case goes beyond the Board level, this is by no means
certain. See J P. Stevens & Co v. NLRB, 388 F 2d 892 (4th Cir 1967);
NLRB v. General Electric Corp., 418 F.2d 736, 739 (2d Cir 1969), cert
denied 397 U.S 965 (1970); NLRB v. B.Y.D. Co, 225 F.2d 923 (D C Cir.
1955)
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find that although Gapik was a confidential employ-
ee, `she was,•an employee within the meaning of Section
2(3) of the Act. In this connection; it might be appropri-
ate to :point out that the General Counsel contends in
substance that Gapik's discharge stemmed from her
desire to remain neutral in °the labor dispute between Re-
spondent and the Union. This case does not present the
question of whether -she could have been lawfully dis-
charged for making common cause with the Union (cf.
Wheeling, supra) or with an admitted employee (cf. Hen-
dricks County, supra), Further, because the allegedly un-
lawful remarks shown by the credible evidence, constitut-
ed deliberate efforts by Respondent to enlist her aid in its
dispute with the Union, this case does not present the
question of whether her ability to overhear intramanage-
ment discussions about the Union rendered them unlaw-
ful (cf. Peerless, supra). Nor, of course, does this case
present the question of whether she could properly have
been included in a bargaining unit,(cf. Hendricks County,
supra; Kleinberg,-supra, 253 NLRB at 450-451).
3. Whether Respondent's statements' to or through
Gapik violated Section 8(a)(1)
I, disagree with the General Counsel's contention that
Respondent violated the Act when Executive Vice Presi-
dent Halper told Gapik that he was locking the men out
the following, Monday, and when she told this to her
husband, pursuant to Halper's instructions . I so find be-
cause the record fails'to, show that such a lockout, if ef-
fected, would have violated the Act. See Darling & Co.,
171 NLRB 801 (1968), affd. 418 F.2d 1208 (D.C. Cir.
1969).24 .
However, and in view of my finding that Gapik was
an employee within the meaning- of Section 2(3) of the
Act; I conclude that Respondent-violated Section 8(a)(1)
of the Act when (1) Halper told her that if any of the
active employees struck, he would see to it that the em-
on' layoff status (who included her ' husband)ployees'
would stop receiving unemployment compensation;25 (2)
he told'her that if the employees struck, he would see to
it that none of the employees (or, at least, none of the
Polish, employees, who included her husband) ' ever
worked in the meat industry again ; and (3) General Man-
ager Kramer` said to Meat Broker Lowry, under circum-
stances when Kramer must have' known that Gapik
could overhear him and likely intended her to do so, that
Respondent had solicited other` businesses not to hire Re-
spondent's employees'if they went on strike. While it is
true that the laid-off employees were receiving unem-
ployment compensation from the State of Illinois rather
than from Respondent, Respondent has made no show-
ing that a genuine material issue of fact or law would, be
presented by a claim that employees on layoff status lost
24 The complaint does not allege that Respondent violated the Act by
instructing Mrs.-Gapik to convey this message to her husband. Cf Texaco
Oil Co. V. NLRB, 700 F 2'd 1039, 1043 (5th Cir. 1983)
25 See Texaco Oil Co,'259 NLRB 408 (1981), enfd. 700 F 2d 1039 (5th
Cir.11983). The complaint does not 'allege that Respondent violated the
Act by telling her, expressly or impliedly, to tell employees; directly or
indirectly, about part or all of what Halper_ told her on this occasion Cf.
Texaco, supra, 700 F 2d at 1043; Enterprise Products Co., 2651 NLRB 544,
548 (1982)
their right to continued unemployment 'compensation
payments by virtue of a_ strike subsequent to their layoff.
Cf. Bill Johnson's Restaurants v. NLRB, 461 U.S. 731
(1983). Moreover, because Halper instructed Gapik to
tell her husband (admittedly an employee) about Halper's
remarks, Respondent violated Section 8(a)(1) when she
complied with these instructions, whether or not she was
herself an employee. Indian Head Lubricants, 261 NLRB
12, 18 (1982).26 -
In addition, and regardless of whether Gapik was a
statutory employee, I find, that Respondent violated -Sec-
tion 8(a)(1) when,' pursuant to instructions issued by
Halper for the purpose of procuring unit employees' re-
ceptivity to Respondent's proposals, she told employee
Kopinski that Halper was an intelligent man who'
thought that Respondent's pension and insurance plan
could be good for the workers, and asked whether Ko-
pinski understood the proposals. From the fact that Re-
spondent and the Union had at all relevant times-been
either parties-to or negotiating for a bargaining agree-
ment, I conclude that the Union was the employees' stat-
utory bargaining ' representative. The Union's status as
such exacted from Respondent the negative duty to re-
frain from dealing with unit employees. Medo Photo
Corp. v. NLRB, 321 U.S. 678, 683-695-(1944); General
Electric, supra,' 418 F.2d at 755; Ross Crane Rental Corp.,
267 NLRB 415, (1983). Although Union Steward Ko-
pinski was one 'of the Union's employee bargaining rep-
resentatives, Halper's, comment that Kopinski must be
afraid to go against the Union 'shows that' Mrs. Gapik
was being directed to (as she did) address him as a unit
employee and a friend, rather than in his official capac-
ity; `and in the absence of the Union's professional and
other employee negotiators . Although Kopinski testified
that he had no ' idea whether she was then speaking her
own mind, Respondent's conduct was unlawful even as-
suming that Kopinski believed Gapik had approached
him entirely 'of her own volition, and that he had no sus
picion she was acting on the instructions of Halper, who
was her immediate supervisor and one of Respondent's
bargaining representatives. Whether employee Kopinski
knew it or not, Respondent was in fact trying to under-
mine employee support for the Union's present bargain-
ing position about pensions and insurance. Such employ-
er efforts might even be more successful if they seeming-
ly proceeded solely from another employee's friendship
and from a wife's natural concern about her husband's
fringe benefits. Moreover, in view of my finding that
Gapik was a statutory employee, I find that Respondent
violated the Act when Halper told her to make such
statements 'to her husband (a unit employee) and Ko-
pinski. Enterprise Products, supra, 265 NLRB at 548;
Texaco, supra, 700 F.2d at 1043.27
26 The General Counsel stated at the outset of the hearing that he was
proceeding on the 'theory that the Respondent was answerable for
Gapik's remarks because it had directed her to convey these messages to
admitted statutory employees
27 The complaint , alleges that Respondent "acting through Joseph
Halper, directed an employee to speak to bargaining unit employees
against the Union's bargaining proposals and in support of Respondent's
bargaining proposals," in violation of Sec. 8(a)(1) (pars. V,(a),VII). Both
Continued
CREST MARK PACKING CO.
4. Whether Gapik's discharge violated the Act
During Gapik's last day of active employment, she
told Plant Manager Kearney about Halper's unlawful
June 4 instructions to talk to unit personnel about Re-
spondent's insurance and pension proposals; about
Halper's early July instructions to her to tell her husband
about Halper's alleged lockout plans; about Halper's un-
lawful August 9' statements that if the active employees
struck, he would see to it that the employees on layoff
status would stop receiving unemployment compensation
and that none of the employees (or, at least, none of the
Polish employees)- would ever work in the meat industry
again; and about Halper's concomitant efforts to induce
her to, get her husband' to campaign against a strike. She
went on to tell Kearney that she had been asked to relay
to the men certain things about the Union, that she was
disgusted about the whole situation, that she was being
put in the middle of the problems between the Union and
Respondent, that these problems were none of her busi-
ness, that she was tired of being harassed verbally, that
she had been insulted and degraded, that she could no
longer concentrate on her work, that she was constantly
being pulled away from her work and told "different
things," and that if this conduct did not stop, the follow-
ing Friday was going to be her last day. At this time, she
said that she would wait for Halper's return in order to
talk to him about the matter. However, later that day,
General Manager Kramer told Meat Broker Lowry, in a
conversation that was unlawful because Kramer knew
Gapik could overhear him, that Respondent was trying
to induce other employers not to hire Respondent's em-
ployees if they went out on strike. Inferentially, she con-
cluded from Kramer's loud and boisterous tones that he
intended her to overhear this conversation and to relay it
to her employee husband, at least, and perhaps to other
employees as well. At this point, Mrs. Gapik told Kear-
ney about Kramer's remarks, said that she was going
home, and asked Kearney to speak to Halper about the
matter, Later that day, Kearney reported Gapik's state-
ments to Halper, who instructed Kearney to tell -her im-
mediately that her services were no longer needed. Kear-
ney promptly conveyed this message to Gapik. Three
days later, he told her husband that she had been fired.
I agree with the General Counsel that Gapik's termi-
nation violated Section 8(a)(1) and ,(3) of the Act. Her
Section 7 rights as an employee included the right to
remain neutral in the dispute between Respondent and
the ' Union over the terms to be included in the bargain-
ing agreement under negotiation and, a fortiori, to refrain
from unfair labor practices in connection with that dis-
pute. 28 The foregoing -sequence of events shows that
Halper discharged her because he had learned from
Kearney that she intended to exercise these rights.
Moreover, I agree with the General Counsel that
Gapik's termination violated Section 8(a)(1) of the Act
even assuming that her status as a confidential employee
briefs treat this allegation as including an allegation that Gapik's com-
ments to Kopinski constituted an 8(a)(1) violation -by Respondent (G.C.
Br. 33, R Br. 24). -
2$ Texaco, supra, 700 F.2d at 1043, Longshoremen ILA Local 31 (U.S.
Borax); 223 NLRB 1257, 1261 (1976), enfd. 549 F.2d 698 (9th Cir. 1977).
1013
wholly removed her from the protection of the Act. Al-
though supervisors are specifically excluded - from the
protection of the statute (see Secs. 2(3) and 14(a)), the-
statute nonetheless forbids their discharge for refusing to
commit unfair labor practices. Such a prohibition stems
from the need to vindicate the employees' exercise of
their Section 7 rights. Parker-Robb Chevrolet, 262 NLRB
402, 402-403 (1982), affd. sub nom. Food & Commercial
Workers Local 1095 v. NLRB, 711 F.2d 383 (D.C. Cir.
1983), and `cases cited. I perceive no reason why exclud-
ing confidential employees from the protection of the
statute would call for a different rule with respect to
them. I infer that the reasons for Gapik's discharge were
known to her employee husband, at the very leaSt.29 In
any event, under the circumstances of this case, I con-
clude that such employee knowledge would not be an es-
sential element of the offense. The principle that an em-
ployer may not lawfully discharge a supervisor for refus-
ing to commit unfair labor practices protects rank-and-
file employees by permitting their supervisors to respect
the employees' statutory rights without fear of reprisal.
Frenchy's K & T, 263 NLRB 45, 47 (1982). If employers
are allowed to force supervisors to engage in unfair labor
practices, this necessarily results in direct interference
with the affected rank-and-file employees in the exercise
of their Section 7 rights. Howard Johnson Co. v. NLRB,
702 F.2d 1, 4 (1st Cir. 1983), and cases cited; Gerry's
LG.A., 238 NLRB 1141, 1151 (1978), enfd. 602 F.2d
1021, 1023 (1st Cir. 1979). I perceive no reason for a dif-
ferent rule with respect to persons held unprotected by
the Act on the ground that they are confidential employ-
ees. Employee ignorance of the reason for Gapik's dis-
charge could not affect either Respondent's ability to
resume unfair labor practices through a more tractable
replacement, the willingness of that replacement (lest she
suffer Gapik's fate) to engage in the unlawful 'conduct
that Gapik had eventually' abjured,- or the likely, impact
of her successor's unlawful conduct on employees. A re-
quirement that rank-and-file employees know the reasons
for such an unlawful discharge would be particularly in-
appropriate where, as here, the employer's unfair labor
practices sought to be committed through the confiden-
tial employee may have been rendered more-effective by
concealment from admitted rank-and-file employees of
the fact that such conduct had proceeded from the em-
ployer's instructions. See Belcher Towing Co. v. NLRB,
614 F.2d 88, 91-92 fn. 4 (5th Cir. 1980); Elder••Beerman
Stores Corp., 173 NLRB 566 (1968), enfd. 415 F.2d 1375
(6th Cir. 1969), cert. denied 397 U.S. 1009 (1970); GTE
Automatic Electric, 204 NLRB 716, 722, 738-739 (1973).
Contra: Florida Steel Corp. V. NLRB, 551 F.2d 306 (4th
Cir, 1977), relied on by Respondent.
I am aware that Gapik's complaints to Kearney, who
(inferentially) relayed, them to Halper, included com-
plaints that - likely did not constitute Section 7 activity,
about alleged employer conduct that, likely would not
have constituted violations of the National Labor Rela-
29 She credibly testified that she would talk to him about "something
bothering me with my job," and that she discussed with him "the prob-
lems that I was having as far as being put in the middle of the union
negotiations between Crest Mark and the Union."
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tions Act.30 However, Respondent has failed to show
that its treatment of Gapik would have been the same if
hex statements to Kearney had been limited to such mat-
ters. See- NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
I find without merit Respondent's contention that even
assuming (as I have found) that Gapik's August 10 dis-
charge was an unfair labor practice, she should not be af-
forded a reinstatement remedy, or any backpay after
Friday, August 13, because she told 'Kearney on the
morning of August 10 that the following Friday would
be her last day if Respondent did not stop its unfair labor
practices. In the first place, by discharging her immedi-
ately, Respondent deprived her of the opportunity to
change her mind. Because her immediate discharge was
unlawful, doubts about whether she would have adhered
to her decision should be resolved against Respondent.
Transportation Management, supra.31 Moreover, if she
had changed her mind before actually quitting, Respond-
ent could not lawfully have refused to let her rescind,
because of her refusal to continue enduring or engaging
in unfair labor practices, any quit notice which she may
have given. See Sycor, Inc., 223 NLRB 1091, 1092
(1976); DeQueen General Hospital, 264 NLRB 480,490-
491 (1981). Furthermore, because Gapik told Kearney on
August 10 that she would not quit at all if Respondent
stopped its unlawful conduct, Respondent is in a singu-
larly poor position to contend that on August 11-13 it
would have continued its unlawful conduct and, there-
fore,, that it is now entitled to the financial benefits of a
determination that she would have quit on August 13.
See Remodeling by Oltmanns, 263 NLRB 1152, 1161-
1162 (1982), enfd. 719 F.2d 1420 (8th Cir. 1983).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
30 Gapik testified without contradiction that Halper had rejected her
prior complaints about the male bookkeeper's remarks to her of a sexual
nature, and (with some corroboration from Halper) about a salary differ-
ential between her and the male bookkeeper allegedly based on sex In
addition, her EEOC charges contain certain allegations, regarding man-
agement's ethnic and sexual slurs, as to which there is no other evidence
in the instant record.
Notwithstanding Halper's and Kearney's denials that Kearney reported
to Halper Gapik's March or April 1982 contacts with a 'Government
"labor department" about breaks and "verbal harassment," and Halper's
credible testimony that it was he alone who decided on Gapik's dis-
charge, Respondent's beef states (Br 29) that "Crest Mark knew of Mrs.
Gapik's inquiries to the Department of Labor." Cf. Jackson Sportswear
Corp., 211 NLRB 891, 902 and cases cited in fn. 47(1974). Because I see
no reason to suppose that such inquiries had anything to do with her dis-
charge, I need not and do not,determine whether they were protected by
Section 7 Citing, inter alia, Meyers Industries, 268 NLRB 493 (1984), Re-
spondent alleges that they were not. Respondent has not addressed the
question of whether her inquiries about breaks were afforded statutory,
protection, even though Kearney was not an employee within the mean-
ing of Sec. 2(3), because he asked her to make such inquiries in order to
obtain a lunchbreak for himself as well as her
s' Indeed, her testimony suggests that because she was the only full-
time employee who knew how to close the July books for Respondent
and Momence Packing, she would have remained on the job until she
completed that task, which would have taken her until at least August
20
3. Patricia Gapik was a confidential employee at all
relevant times.
4. Patricia Gapik was at all relevant times an employee
within the meaning of Section 2(3) of the Act.
5. Respondent violated Section 8(a)(1) of the Act:
a. When Supervisor Joseph Halper told employee Pa-
tricia Gapik that if any of the active employees struck,
he would see to it that the employees on layoff status
(who included her husband, employee Zbigniew Gapik)
would stop receiving unemployment compensation.
b. When Patricia Gapik so advised employee Zbigniew
Gapik, pursuant to Supervisor Halper's instructions.
c. When Supervisor Halper told employee Patricia
Gapik that if the employees struck, he would see to it
that none of the employees (or, at least, none of the
Polish employees, who included her husband, employee
Zbigniew Gapik) ever worked in the meat industry
again.
d. When Patricia Gapik so advised employee Zbigniew
Gapik, pursuant to Supervisor Halper's instructions.
e. When Supervisor Edward Kramer told Meat Broker
Timothy Lowry, under circumstances when Kramer
knew that employee Patricia Gapik could overhear him,
that Respondent had solicited other businesses not to hire
Respondent's employees if they went on strike.
f. When Patricia Gapik, pursuant to' instructions issued
by Supervisor Halper for the purpose of procuring unit
employees' receptivity to Respondent's bargaining posi-
tion, told employee John Kopinski that Halper was an
intelligent man who thought that Respondent's pension
and insurance proposals would be good for the workers,
and asked whether Kopinski understood these proposals.
g. When Supervisor Halper instructed -employee Patri-
cia Gapik to make such statements to employees John
Kopinski and Zbigniew Gapik.
6. Respondent violated Section 8(a)(1) of the Act by
discharging Patricia Gapik.
7. Respondent violated Section 8(a)(3) of the Act by
discharging employee Patricia Gapik.
8. The unfair labor practices set forth in Conclusions
of Law 5-7 affect commerce within the meaning of the
Act.
9. Respondent has not violated the Act by threatening
to lock out employees. -
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom and from like or
related conduct, and to take certain affirmative action to
effectuate the policies, of the Act.
Affirmatively, Respondent will be required to offer
Patricia Gapik immediate reinstatement to the job of
which she was unlawfully deprived or, if such a job no
longer exists, a substantially equivalent job, and make her
whole for any loss of earnings she may have suffered by
reason of her discharge, to be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1959),
with interest as prescribed in Florida Steel Corp., 231
CREST MARK PACKING CO.
NLRB 651 (1977).32 I find 'that such relief would be ap-
propriate if her discharge violated only Section 8(a)(1) of
the Act. See the cases cited in Parker-Rabb, supra, 262
NLRB at 403 fn. 7. Also, Respondent will be required to
remove from its files any reference to Patricia Gapik's
discharge, and, notify her in writing that this has been
done and that evidence of her unlawful, discharge will
not be used as a basis for future personnel action against
her. Sterling Sugars, 261 NLRB 472 (1982). %
In addition, Respondent will be required to post ap-
propriate notices. Because some of Respondent's employ-
ees speak Spanish or Polish as a native language and un-
derstand little or no English, notices will be required in
all three languages.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed33
ORDER
The Respondent, Crest Mark Packing Co., Chicago,
Illinois, its officers , agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that if any of the active employ-
ees struck, Respondent would see to it that the employ-
ees on layoff status would stop receiving unemployment
compensation.
(b) Telling employees that if the employees struck, Re-
spondent would see to it that none of them ever worked
in the meat industry again.
(c) Telling employees that Respondent has solicited
other businesses not to hire Respondent's employees if
they went on strike.
(d) Seeking to bargain directly with employees, at a
time when Respondent is under a duty to bargain with a
labor organization as the exclusive bargaining representa-
tive of such employees.
(e) Telling employees to engage, on Respondent's
behalf, in the kind of conduct described in paragraph
1(d). '
(f) Discharging personnel for refusing to commit unfair
labor practices against employees.
(g) Discharging any employee, or otherwise discrimi-
nating against any employee with regard to his hire or
tenure of employment or any other term or condition of
employment , to discourage membership in the Beef &
Sausage Makers Union Local 100-A of the United Food
and Commercial Workers International Union, AFL-
CIO, CLC, or any other labor organization.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed ;them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Patricia Gapik reinstatement to the job that
she was unlawfully deprived or, if such a job no longer
exists, a substantially equivalent job, without prejudice to
sa See generally Isis Plumbing Co, 138 NLRB 716 (1962).
33 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1015
her seniority or other rights and privileges previously en-
joyed, and make her whole for any loss of pay she may
have suffered by reason of her unlawful discharge, in
conformity with the remedy section of this decision. -
(b) Remove from its files any reference to Patricia
Gapik's' unlawful discharge, and notify her in writing
that this has been done and that evidence of that dis-
charge will not be used as a basis for future personnel
actions against her.
(c) Preserve and; on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms. of this Order.
(d) Post at its Chicago, Illinois facility copies in Eng-
lish, Polish, and Spanish of the attached notice marked
"Appendix."34 Copies of the notice, on forms provided
by the Regional Director for Region 13, after being
signed by the Respondent's authorized representative,
shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspic-
uous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by' any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that paragraph V(b) of
the complaint be dismissed.
34 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS ]BOARD
An Agency of the United States Government
The National Labor Relations Board has found 'that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT seek to bargain directly with employ-
ees, at a time when we are under a duty to bargain with
a union as the exclusive bargaining representative of such
employees.
WE WILL NOT tell employees to engage in such con-
duct on our behalf.
We will not tell employees that if any of the active
employees strike, we will see to it that the employees on
layoff status will stop receiving unemployment compen-
sation.
WE WILL NOT tell employees that if the employees
strike, we will see to it that none of them ever work in
the meat industry again.
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT tell employees that we have solicited
other businesses not to hire our-employees if they go on
strike.
WE WILL NOT discharge personnel for refusing to
commit unfair labor practices against employees.
WE WILL NOT discharge any employee, or otherwise
discriminate against any employee with regard to his hire
or- tenure of employment or any other term or condition
of employment, to discourage membership in the Beef
Boners & Sausage Makers Union Local 100-A of the
United Food and Commercial Workers International
Union, AFL-CIO, CLC, or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Patricia Gapik reinstatement to the job
of which she was unlawfully deprived or, if such a job
no longer exists, a substantially equivalent job, without
prejudice to her seniority or other rights and privileges
previously enjoyed; and make her whole, with interest,
for any loss of pay she may have suffered by reason of
her unlawful discharge.
WE WILL remove from our files any reference to her
unlawful discharge, and notify her that -this- has been
done and that evidence of that discharge will not be
made a basis for future personnel actions against her.
CREST MARK PACKING CO.