Far-Mar-Co.

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 814 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Far-Mar-Co and General Drivers, Warehousemen and
Helpers, Local Union No. 498 affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 17-CA-7205
August 30, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On April 12, 1977, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify his remedy, 2 and to adopt his
recommended Order,3 as modified herein.
Contrary to the Administrative Law Judge, we
conclude that Respondent, through its admitted
supervisor, Johnson, unlawfully interrogated its
employees. According to credited testimony, on
April 27, 1976, Johnson went to the break room
where the employees were gathered and informed
them that he had been contacted by Union Repre-
sentative Mott who had told him that all of the
employees had signed cards on behalf of the Union
and that a representation petition had been filed with
the Board. Johnson then asked the employees why
they had done so and explained that he wanted the
information so that he could call company headquar-
ters and inform higher management of what the
employees had done. Various employees responded
that the reason they had sought union support was
because they "thought it was time for some backing."
Johnson's questioning of employees as to their union
sympathies and the reasons for supporting the Union
was clearly coercive, particularly when viewed in
light of his statement that he would have to inform
higher management what they had done. According-
ly we conclude that Respondent thereby violated
Section 8(a)(1) of the Act and we shall provide an
appropriate remedy therefor. 4
231 NLRB No. 136
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Far-Mar-Co, Lenexa, Kansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Insert the following as paragraph I(b) and
reletter the subsequent paragraph accordingly:
"(b) Interrogating employees about their reasons
for supporting the above-named labor organization
or any other labor organization."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent excepts to the Administrative Law Judge's reliance on James
Hamilton's awareness of Porter's union activities to establish its knowledge
of Porter's union involvements. Respondent contends that Hamilton's
supervisory status was neither alleged nor litigated. We find it unnecessary
to decide Hamilton's supervisory status as there is ample additional
evidence of Respondent's knowledge of Porter's union activities. In this
regard, we particularly note that Plant Manager Johnson, an admitted
supervisor, knew of Porter's previous concerted activities in presenting
employee complaints. At a meeting with employees on April 27, 1976, Porter
was the first employee to respond to Johnson's question as to why the
employees wanted the Union and in addition gave Johnson a union booklet.
Furthermore. Johnson admitted at the hearing that he believed Porter had
signed a card on behalf of the Union because Porter was the most outspoken
union supporter.
2 In accordance with our decision in Florida Steel Corporation, 231
NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior
to August 25, 1977, in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
3 The Administrative Law Judge, although providing in his recommend-
ed Order that Respondent be required to offer reinstatement to discrimina-
tee Porter and to make him whole, inadvertently omitted provisions to that
effect in his notice. Accordingly, we shall include such language in the
notice attached hereto.
4 See. e.g., WI A. Stevens d/b/a W. A. Stevens & Son, 147 NLRB 51
(1964); see also Struksnes Construction Co., Inc., 165 NLRB 1062 (1967).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully discharge or otherwise
discriminate against any employee because of
membership in or activity on behalf of General
Drivers, Warehousemen and Helpers, Local
Union No. 948 affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
814
FAR-MAR-CO
housemen and Helpers of America, or any other
labor organization, or for engaging in protected
union activity or exercising rights guaranteed by
the National Labor Relations Act.
WE WILL NOT interrogate our employees about
the reasons for their support of the above-named
labor organization or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL offer immediate reinstatement to
Scott Porter to his former job or, if it no longer
exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
and privileges, and WE WILL make him whole for
any loss of pay or other benefits he may have
suffered due to our discrimination against him.
All our employees are free to become, remain, or
refuse to become or remain members of the above-
named labor organization or any other labor organi-
zation.
FAR-MAR-CO
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: This
case was heard before me on September 28 and 29, 1976,'
at Kansas City, Kansas. The charge was filed on July 9,
and the complaint issued August 25. The issues concern
whether or not Respondent violated Section 8(a)(l) and (3)
of the Act by discriminatorily discharging Scott Porter and
refusing to reinstate him and whether or not it violated
Section 8(a)(1) 2 by interrogating its employees concerning
their union sympathies and activities.
Upon the entire record, including my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent is a Kansas corporation engaged at
Lenexa, Kansas, in the business of processing and
merchandising grain and in the manufacture and wholesale
of custom blended spices. In the course of its business
operations within the State of Kansas, Respondent annual-
ly purchases goods and services valued in excess of $50,000
directly from sources located outside the State of Kansas
and sells goods and services in excess of $50,000 directly to
customers located outside the State of Kansas. Respondent
admits, and I conclude, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
11. THE LABOR ORGANIZATION INVOLVED
General Drivers, Warehousemen and Helpers, Local
Union No. 498 affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, is and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Far-Mar-Co is engaged, among other things, in provid-
ing services for its customers consisting of mixing and
blending various spices and other food products to their
particular specifications, and thereafter packaging and
shipping them. The plant includes a laboratory for
purposes of quality control which is responsible for
checking the quality of incoming ingredients as well as the
finished product in order to make certain that all meet the
specifications of the customer.
James H. Johnson, the plant manager since March, had
previously been employed at Respondent's plant since
November 1975 as a warehouse supervisor. At the time
Johnson took over as plant manager, Respondent opened
up a new wing which considerably increased the size of the
operation. The expansion of the facility was accompanied
by the purchase of new equipment and in March or April, a
reorganization of lower management. Thus, whereas
previously there had been two supervisors, Johnson and
James Hamilton, under the reorganization, Johnson be-
came the plant manager and Hamilton, Rick Tanner, and
Mark Donahue became leadmen/foremen. Each of the
leadmen was assigned certain employees in specific
departments with whom he was to work. Hamilton became
foreman in the blending room, Tanner in the packaging
room, and Donahue in the warehouse. The new equipment.
purchased just before Johnson became plant manager,
included new mixing, new handling, and new packaging
equipment. The blending operation, in particular, utilized
almost 100 percent new equipment except for a few
reconditioned pieces.
Initially, the blending facility in the new wing was made
use of only 1 day per week. At this time, the job of spice
blender was newly created. The duties of the spice blender
consisted of weighing out the ingredients necessarily to be
included in a particular mix, placing these ingredients in a
hopper, then loading the contents of the hopper into a large
mixing machine. Care had to be taken that the right
ingredients, in proper proportions, were added to the right
mix and not placed in the wrong hopper. The spice blender
worked from worksheets on which the various ingredients
to be used in a particular mix were listed. As each
ingredient was added to the mix, that ingredient was
checked off on the worksheet and the date code of each
ingredient entered on the worksheet behind each item. The
2 A second independent 8(aX 1) allegation was dismissed at the hearing.
815
I All dates are 1976 unless otherwise stated.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date codes were, in most cases, obtained from the drums or
packages from which the ingredients were taken. The
purpose of entering the date codes was for quality control.
Thus, by entering the date code of a particular ingredient
on the worksheet, it could quickly be ascertained, by
checking the worksheets, from which shipment the ingre-
dients in the mix were obtained. This information was
important because it enabled Respondent, in case of
customer complaint, to trace the probable cause of the
problem to its source, and determine thereby, what if
anything, was wrong with the final product.
As the worksheets were completed, they were placed in a
metal box located at the spice blender's work station. From
this collecting point, the worksheets so accumulated, were
brought to the office at the end of the day by the foreman
where an inventory control clerk posted the contents
thereof to a spread sheet and to inventory cards which were
then filed in accordance with assigned formula numbers.
These records are kept at least 5 years.
The creation of the new jobs, including that of spice
blender, the newness of the facility, and the new equipment
gave rise to certain operational problems, involving
engineering, mechanical, and procedural difficulties. These
problems, in turn, made successful performance of as-
signed duties by the spice blender a rather hectic experi-
ence, particularly for anyone new on the job. As a result,
Johnson recognized that with all of the new equipment,
and other attendant difficulties, that it would be better to
have a written job description available to employees to
guide them and insure adequate performance. The drawing
up of a proper job description for the blenders' job was
therefore undertaken in March and was completed by
April 9.3 Johnson, Hamilton, and Porter, all contributed
input to the published spice blenders' job description, with
help from the engineer based on the latters' knowledge of
the machinery. Porter's contribution was based on his on-
the-job experience as a spice blender since the inception of
that job in the new wing, and Hamilton's, on his role as
Porter's leadman. Johnson, noting the failure of Porter on
occasion, to enter the date codes on the worksheets,
recommended that this particular duty be included in the
job description. The new job description accurately
describes the duties of the blender, as noted above,
including the requirement that date codes be noted on the
worksheets by the spice blender. Copies of the spice
blenders' job description were distributed among employ-
ees with Hamilton making a copy available to Porter. The
particular requirement that the spice blender note the date
codes on the worksheets was placed in the spice blenders'
job description only after consultation among Johnson,
Hamilton, and Porter wherein the requirement was deemed
necessary for proper quality control.
B. Porter's Employment History
Scott Porter, the alleged discriminatee herein, was first
employed by Far-Mar-Co in October 1975, initially in the
laboratory as a part-time employee while he attended
school. At the end of his semester, he requested full-time
employment but, inasmuch as there were no part-time jobs
available in the laboratory, he was offered a full-time
position in production as a laborer, which he filled in early
December 1975, working under the supervision of James
Hamilton.
Hamilton testified with regard to Porter's job perfor-
mance, describing it generally as fair. When pressed as to
why he considered Porter's work only fair, Hamilton
testified:
Well, that boy has got a mind of his own and doesn't
like to listen to anybody else. I appreciated that, too, in
a way because he brings out a lot of new ideas, but still,
we have our procedures that we have to follow, you
know. We have to initiate any changes, you know, this
can't be done by him. That is the reason I say it was
fair. He tried to do things that were not procedure. I
can't just really point one right out. I would say it was
fair.
Though still classified as a laborer, Porter, in February,
moved into the new building and began working as a spice
blender, a newly created job supervised by Mark Donahue.
In March, when management underwent reorganization
and Tanner was made a leadman, he was asked by his
supervisor to list three employees whom he preferred to
have working for him. Tanner chose Porter among other
reasons, because he felt that Porter "had the potential to be
a very good worker."
By April, Porter had been working as a spice blender for
2 months and was considered fully qualified to perform the
duties attached to that particular classification. He could,
in fact, make the mixes a lot faster than the other rank-and-
file spice blenders. Porter felt that it was important for him,
in performing his work, to make accurate measurements, to
make certain that the correct ingredients were added to the
proper mix, and to get the mix out as quickly as possible.
Evidently, in these respects there was no criticism of his
work. On the other hand, Porter did not consider the
entering of the date codes on the worksheets as one of the
more important of his duties and sometimes would fail to
make the notation. When Porter was first assigned his spice
blending duties, his failure to note the date codes was
attributable not only to the greater concern he paid to
other facets of his job, but also to the fact that the job was
new and the machinery sometimes faulty.
When Hamilton took over as supervisor in the spice
blending department in April, he discussed with Porter the
general duties connected with the spice blending job,
including the requirement of entering date codes on the
worksheet, but did not at this time criticize him for his
occasional failure to enter the date codes.
C. The Walkout
In the late months of 1975 through February 1976,
Respondent's spice blending operation was new and its
employees were unfamiliar with the recently purchased
machinery. These factors together with breakdowns occa-
sioned by faulty equipment and unexpected increases in
:1 The date which appears on the document.
816
FAR-MAR-CO
orders resulted in Respondent's requiring that its employ-
ees work overtime an inordinate number of hours,
sometimes without notice. The hectic pace, the faulty
equipment, and the mandatory overtime assignments gave
rise to certain dissatisfaction among Respondent's employ-
ees who discussed these problems among themselves.
Complaints to management concerning the excessive
overtime went unresolved. -Although an attempt was made
by management to give the employees 24-hour notice that
they would be required to work overtime, the exigencies of
business considerations apparently made it difficult for
management to comply with the employees' desire for
adequate notice and the excessive overtime hours contin-
ued to be assigned.
In early March, the employees began to discuss their
dissatisfaction during lunch and afternoon breaks. They
discussed equipment failure, excessive overtime, and the
failure of management to listen to their problems. The
possibility of walking out over these problems was brought
up by one of the employees and although all of them gave
consideration to this possibility, Porter and Tanner, both
rank-and-file employees at the time, spoke more about
walking out than any of the others. Finally, during one
such discussion, during an afternoon break in the lunch-
room, at the rear of the plant, the employees determined
that they would walk out.4 It was decided, however, that
rather than simply walking off the premises without
warning, they should first discuss their intentions with
management. They chose Tanner as their spokesman
because of his seniority with the Company and his
apparent rapport with management. When Tanner stated
that he wanted another employee to accompany him when
he spoke with management about the planned walkout, the
employees first talked about Tanner's request among
themselves, and then chose Porter to accompany Tanner.
From 8 to 10 employees attended this prestrike discussion.
The following morning at the beginning of the 10 a.m.
break period, Porter went to the general office and advised
Hamilton and Johnson that the employees would like to
see them in the break room. At that time Johnson was the
warehouse supervisor and Hamilton was the production
supervisor. When Johnson and Hamilton arrived at the
break room, Porter advised them that the employees
intended to walk out at 11:30 a.m. that morning and
explained the reasons for the employees' decision, mention-
ing bad engineering, low wages, and excessive overtime.5
Tanner also talked about the problems he felt the
employees were having with management. Porter was
unable, at this time, to voice specific demands or remedies
which might prevent the walkout because all of the
employees began to voice their own personal complaints
and, thereafter, he never got a chance to sit down and
discuss proposals which might avoid the walkout. As the
situation was becoming more confused, and matters
appeared to be getting out of hand, Porter advised Johnson
that the employees had nothing further to say and that the
walkout would occur at 11:30 a.m. After the meeting,
which lasted half an hour, the employees went back to
work.
Based on the credited testimony of Tanner as supported by that of
Porter
At 11:30 a.m., the employees went to lunch and, at 12:30
p.m., instead of returning to work, they sat down in the
parking lot. During the next 2 to 3 hours, the employees
remained off the job, discussed their position, agreed on
their course of action, and determined to act concertedly.
After the walkout, Porter composed a letter to manage-
ment. In the letter Porter explained the reasons for the
walkout and included a request for a wage increase. The
letter, though composed by Porter, was not signed by him,
but was identified as having come from "The production
employees from Far-Mar-Co." The letter was presented to
Johnson by Porter and Tanner. While the other employees
waited in the parking lot, Porter and Tanner went into the
office to talk with Johnson. Johnson had said that he
intended to call John Jungk, general manager of food
operations for Far-Mar-Co, in order to see if he could work
things out for the employees, and when Porter and Tanner
entered the office, Johnson was talking to Jungk on the
phone.
Porter and Tanner then got on separate lines and all four
discussed the situation. Jungk asked Porter and Tanner
what the specific problems or gripes were that the
employees had and Porter and Tanner explained some of
the problems to him. Jungk advised them that their request
for an across-the-board wage increase was impossible but
promised them that he would set up a review board which
would consider all of the grievances enumerated by Porter
and Tanner. Jungk did agree, however, with regard to
overtime, that employees would receive 24 hours notice
before being required to work overtime. The conversation
ended at this point and Porter and Tanner went out to
discuss Jungk's offer with the employees who were still
gathered outside. Although not in total agreement with
Jungk's offer, the employees, in general, agreed that it was
fair and decided to return to work at that time.
Porter and Tanner then returned to the office once again
to discuss the situation with Jungk. Jungk advised them
that he would send the promised review board down to the
plant from the Hutchinson, Kansas, home office at the end
of the month, but Porter and Tanner insisted that they
wanted the review board at the plant by the following
Friday; that the end of the month was too long to wait.
Jungk agreed to move up the scheduled review as
requested.
As agreed, within the next several days, during the week
of March 20, Jungk visited the plant. Porter spoke with him
and a meeting between management and the other
employees who had participated in the walkout was
scheduled for later in the evening, after work. At the
meeting, various problems were discussed, particularly
problems which the employees were having with faulty
equipment. With regard to the more personal grievances,
Jungk advised the employees that he and Johnson would
interview each employee individually and review each
one's work record. There were 8 to 10 employees involved.
Jungk, in explaining the purposes of the forthcoming
interviews, noted that they would be in the nature of work
performance interviews and would result in wage increases
for certain employees and termination of others. He stated
I Based on the credited testimony of Porter. Tanner's recollection of this
meeting was not as acute as that of Porter.
817
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Tanner and Donahue would be interviewed that
evening and the other employees interviewed the following
day.
Porter's interview took place in Johnson's office with
Porter being interviewed by Jungk in the presence of
Johnson from 30 to 45 minutes. Johnson, at the time, read
to Porter a brief synopsis of Porter's work record. Johnson
described Porter as a "spurty worker," noting that at times
he would run his machine too fast for the boys down the
line to catch up, and would then run off to the bathroom.
Johnson added that Porter, "would be a good employee for
someone, some day." Jungk then stated that up until the
time of the meeting, the Company had intended to
terminate Porter. He said that he had talked to Porter's
supervisor in the laboratory and that she had rated Porter
as an excellent worker. He ilso stated that he had asked the
three foremen whom they wished to have working on their
crews, and all three included Porter among their choices.
Jungk completed the interview by stating that he hoped
Porter's work would improve and that he was henceforth
off probation and would receive a 63-cent-per-hour wage
increase. Johnson also testified concerning Porter's inter-
view to the effect that he told Porter that, if it were up to
him, Porter would be terminated right then.7 Porter was
not terminated at that time, according to Johnson, because
the foreman felt that they could work with Porter, and that
he would be a good worker. Johnson consented to Porter's
remaining because he agreed that Porter had a lot of good
qualities and that if the foremen felt that he would be a
good worker, he should be kept.
Following Porter's interview, Porter told Johnson with
regard to the written critique that Johnson had read
concerning Porter's work record, that if Porter was to go
any place with the Company, the critique remaining in
Porter's personnel file would be a great hindrance to him.
Johnson replied that the critique would not be placed in
Porter's file and, to prove it, he would give Porter the
critique to tear up.8
With regard to the interviews of the other strikers, two
were terminated while others were given wage increases,
some or all in excess of that given to Porter. Neither of the
two dischargees had been warned or in any way advised of
either dissatisfaction with their work or of their impending
discharge prior to the interview which resulted in their
terminations. Tanner was promoted to packaging room
foreman and awarded an increase of 74 cents per hour.
Following completion of the last interview, Jungk,
Johnson, and other members of management met with
seven of the interviewed employees in the lunchroom and
asked if the decision made concerning wage increases and
overtime were to the satisfaction of the employees. Porter
responded affirmatively, stating that the employees were
satisfied and were glad to be back to work. Jungk replied
that he was glad that the employees saw the light and
" Johnson denies that Porter was taken off probation. Jungk was not
called to testify. Inasmuch as Porter subsequently received additional fringe
benefits normally associated with full-time permanent employment. I credit
Porter's testimony.
7 Porter credibly testified that prior to this interview Johnson had never
expressed dissatisfaction with Porter's work.
I This discussion is in accordance with Porter's testimony which Johnson
did not dispute. I find Johnson's willingness to destroy the report critical of
stated that if they had gone ahead and walked out again,
that he had replacements ready to come in from Los
Angeles and Shreveport. Subsequently, Porter composed a
second letter to management voicing his satisfaction with
the outcome of the dispute with the Company. This letter
he delivered to a secretary in the main office. Thereafter,
the record indicates no further comment or action by
management against any of the employees who participat-
ed in the walkout.
In the weeks following the walkout, there was little or no
overtime worked by the employees. In early April,
however, mandatory overtime was reinstituted but with 24
hours' notice. Thereafter, management issued a notice
stating that, due to the increase in business, employees
should expect to work 10 hours per day, 6 days per week,
for the next 90 days. This requirement, of course, affected
certain employees more than others. One employee, Kent
Brower, complained to Porter that the mandatory overtime
which he had been forced to work in March resulted in his
having to quit night school. Porter brought up the subject
with Tanner who, by then, had been appointed packaging
room foreman. Porter told Tanner that he did not think it
was fair for the Company to make Brower quit school by
assigning him mandatory overtime. Tanner defended the
Company, stating that its officers would never force
anyone to quit school who was seeking higher education by
assigning him mandatory overtime. He also defended the
necessity of assigning overtime and stated he, himself,
wanted to work overtime. Within 15 minutes of the
conclusion of this discussion, Tanner reported the sub-
stance thereof to Johnson, including statements which he
attributed to Porter, that Jungk had told Brower that he
was going to have to quit school to work overtime, and that
Johnson had no respect for higher educations According
to Tanner, Johnson made no comment when told of
Porter's alleged remarks.
The following morning, Johnson called Porter into his
office and indicated that he had heard that Porter had
made a statement concerning Brower's having to quit
school because of excess overtime. He then stated that the
Company was not running an institute of higher education;
that people in glass houses shouldn't throw stones; and that
Porter did not know Johnson's views on higher education.
He stated that Porter had a lot of influence on people, that
he had a lot of potential but, then again, so did Bo
Belinski.' 0 During this conversation Johnson advised
Porter that due to the necessity of increased production,
everyone would be expected to work a 10-hour day, 6-day
week, with mandatory overtime to continue indefinitely.
Porter considered the reinstitution of excessive overtime
on a regular basis as a means by which management was
attempting to circumvent the 24-hour notice agreement
reached with employees following the walkout. Thereafter,
during a meeting in the lunchroom, on or about April 25,
Porter's work, supportive of Porter's claim that he was taken out of
probationary status at this time.
9 Though Porter denied making either of these statements, Tanner
testified that he did and that he, Tanner, informed Johnson that Porter had
made these statements.
'0 A major league pitcher who, after pitching a no-hitter in the 1960's,
was subsequently sent down to the minors.
818
FAR-MAR-CO
Porter advised certain other employees about his concern
about the mandatory overtime and told them what
Johnson had said during their discussion concerning
Brower's overtime. Porter also argued to the other
employees that seven people could not stand up against a
large corporation, that the employees needed backing and
that it was time to bring in a union. In response, employee
Jim Phillips stated that he would try to contact Teamsters
Local 498 to see about representation. That evening Porter
called those few employees who had not been present at
the meeting to advise them of what had transpired.
Thereafter, the employees discussed the Union and its
benefits at lunchtime and at other times with Porter being
its most forceful proponent. Phillips meanwhile contacted
the Union and spoke to Business Representative Bob Mott
and requested that a meeting be scheduled for the
forthcoming weekend. Mott advised Phillips that he was
busy that weekend, and suggested that Phillips call back
later to schedule the meeting for the following weekend.
Phillips agreed. When Phillips advised the other employees
the following day of the result of his call to the Union,
however, Porter volunteered to contact Mott, himself.
Porter, that afternoon, called the union hall and made an
appointment with Mott's secretary to meet at the union
hall the following evening after work. The following
morning Porter again contacted the Union in order to
speak to Mott personally, to make certain that the meeting
scheduled for that evening was still on. It was, and that
evening six or seven employees attended the meeting at the
union hall including Porter. Mott was present for the
Union. At the meeting, the employees explained to Mott
about the conditions at the plant and Porter asked him
when the campaign could begin. Mott replied that it could
begin right then and there and distributed union cards to
the employees present. Those present each signed a card
and returned it to Mott. Mott advised the employees that,
the following morning, he would file a petition with the
National Labor Relations Board and, thereafter, that
afternoon, would contact Johnson.
Porter, in addition to signing his own card, obtained
blank cards to be signed by employees who had failed to
attend the union meeting. He took one card to work and
gave it to Brower who signed it in the lunchroom or in the
locker room. Brower then returned the card to Porter who
later dropped it in the mailbox for delivery to the Union.
Employee Bob Castle visited Porter's home specifically to
sign a card. While there, Porter furnished him with union
literature. Porter was the only employee to distribute union
cards. Thereafter, most of the employees, and Porter in
particular, spoke among themselves in and around the
plant in favor of union representation.
The day after the meeting at the union hall, in the
afternoon, during break, Johnson, Hamilton, Tanner, and
Donahue all appeared in the break room. Johnson
addressed the employees and advised them that he had
been on the phone with Bob Mott from the Teamsters
Union and that Mott had told him that some or all of the
employees had gone down and signed union cards and that
he had filed a petition." Johnson then asked the employees
why they had done so, whereupon Porter responded that he
thought it was time for some backing. Other employees
replied in kind, to the effect that they -vere tired of having
the Employer renege on agreements, and felt that they
needed some help. Johnson replied that he just wanted the
information because he had to call the home office and
inform higher management what the employees had done.
Although no company representatives thereafter said
anything to Porter about his union activities, Hamilton
testified that he knew of those activities through rumors
"floating around the plant." Johnson testified that he was
unaware of Porter's role in organizing the employees but
assumed that he had signed a card because, during the
meeting in the lunchroom following Mott's call, Porter
offered Johnson a union booklet. Similarly, Johnson
assumed that Phillips had signed a card because he was
somewhat outspoken during the meeting about the employ-
ees' need for union representation. Johnson denied that
Porter's discharge, however, had anything to do with his
union activity.
Pursuant to the petition filed by the Union, a representa-
tion hearing was held on May 25 during which four
employees testified as witnesses for the Union. Porter,
however, was on the stand for 2-1/2 hours, and testified at
greater length than the others. No one from management
thereafter discussed with Porter his testimony during the
representation case hearing.
On June II or 12 Porter was involved in an accident
away from the plant. When he reported to work the
following Monday, June 14, he showed his foreman,
Hamilton, his bandage. Hamilton stated that the Company
would assign Porter only light duty that day. As they
discussed the problem, however, Johnson came by, stated
that the injury appeared serious, and told Porter to go
home, to keep in touch, and to have a doctor's permit
stating that he could return to work before reporting back.
On July 6, Porter returned to work and once again took
up his duties as spice blender under Jim Hamilton's
supervision. On his first day back at work Porter was
engaged in mixing a product called "Tony's Mix." He was
familiar with this mix, having made it on numerous
occasions before, to the extent that he had memorized
many of the lot numbers of the ingredients used in the mix.
On July 6, however, Porter noticed that some of the lot
numbers of the ingredients to be used in the mix, bore an
earlier date code than he had been using prior to his
accident. Since the usual procedure was for the older
ingredients to be used first, Porter did not enter all of the
date codes but left about 40 percent of them off the
worksheets because of the discrepancy involving the lot
numbers. Porter testified that he feared that he might get
into trouble if he entered the earlier date codes. Nothing
was said to Porter on July 6, by any member of
management concerning his failure to enter the date codes.
On the afternoon of July 7, between 3 p.m. and 4 p.m.,
Johnson called Porter into his office. Hamilton was
present. Johnson said to Porter, "O.K., Scott, you've been
away for a long time, and we need to go over a few things,
I Based on Porter's credited testimony
819
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mainly the lot numbers. I guess you forgot quite a few of
them yesterday." 12 Porter admitted that he had. Johnson
said, "I've got to remind you how imperative it is to get
those lot numbers on there because of quality control."
Johnson then asked Porter why he had missed so many lot
numbers and Porter explained about the discrepancy in the
date codes, that is, that the current date codes were older
than the ones he had recorded before his accident. s3
Johnson rejoined that Porter was to enter all of the date
codes, regardless of such discrepancies, from then on,
because the Company had to have them. He also reminded
Porter that he had failed to enter date codes on the
worksheets on previous occasions.
In addition to criticizing Porter's failure to enter the date
codes, Johnson, during this discussion, endeavored to
remind Porter that he was still on probation. As he did so,
he showed Porter two memos 14 which had been exchanged
between Johnson and Jungk, one concerning a box of basil
which purportedly had been left unattended, presumably in
contravention of some rule, and the other concerning a
drum of dextrose which had been mistakenly taken down
to the trash. Porter denied to Johnson that he knew
anything about the box of basil. The memo involving the
basil made reference to employee Ken Brower who had left
Respondent's employ the previous May. The incident
apparently did not involve Porter and, in any event,
concerned an incident which had occurred months before.
The dextrose memo likewise had to do with an incident
which occurred the previous February and which appar-
ently occurred as a result of confusion at a time when
employees were dumping large amounts of dextrose into
drums. Porter commented that he was under the impres-
sion that the dextrose incident had been cleared up.15 With
regard to Johnson's statement that Porter was still on
probation, Porter took immediate exception, stating that
Jungk had taken him off probation back in March at the
time of the interview, when he received his 63-cent-per-
hour wage increase. He argued that he was then receiving
the same fringe benefits including insurance and paid
vacations and holidays just as were received by other
regular employees. Johnson replied that there was appar-
ently some misunderstanding and stated that he would
send a letter to Jungk concerning their discussion and the
disagreement between Johnson and Porter, and, until he
received a reply from Jungk, he was going to place Porter
on another 90-day probation. After objecting to Johnson's
12 Johnson testified that Porter missed 42 percent of the date codes, both
Jul) 6 and 7. and that he cited this figure during their July 7 discussion.
':' Johnson testified that the date codes were, in fact different as Porter
had stated because the Company had reblended 20 drums of ingredients and
assigned new date codes, but that this fact would only have accounted for 2
percent of the 42 percent of omissions.
14 Johnson was not called on to testify concerning the discussion about
these two memos. Jungk, as noted, did not testify at all.
1, In the absence of testimony by Johnson on the subject of the two
memoranda. Porter's testimony is credited.
18 As noted supra, I have found that as of the time of Porter's interview in
March. he became a regular employee, no longer in probationary status. I
make this finding on the basis of Porter's credited testimony that Jungk told
him he was no longer on probation, plus the fact that he later began
receiving fringe benefits which were being received only by full-time
permanent regular employees. Johnson's explanation concerning this matter
is rejected as palpably absurd.
statement about extending his probation, Porter promised
to try to improve his work.
With regard to the discussion concerning Porter's
probationary period, Johnson conceded that he did discuss
the matter with Porter on July 7. He testified, however, that
Respondent had no set probationary period, as such,
although the company handbook states that for purposes
of vesting rights to insurance and vacation benefits, the
probationary period is considered to be 90 days. Johnson
further testified that the probationary period for job
performance can be any amount of time. 16
Johnson admitted that at no time during his July 7
discussion with Porter did he inform him that his failure to
enter the date codes was a serious transgression of
company policy or rules or that continuance or repetition
thereof would result in any kind of discipline. The
discussion ended with Porter's agreeing to fill in the
missing date codes.
According to Johnson, on the following day, July 8,
about noon, he decided to check out the worksheets for
that morning in order "to see what kind of reaction there
was to our discussion of the night before." Ordinarily, the
worksheets are not collected or checked until the end of the
day or the following morning. When Johnson discovered
that Porter had omitted one date code from the first mix
which he made that morning, Johnson called company
headquarters in Hutchinson about I or 1:30 p.m. and
spoke with his superior, John Hollinger, about Porter's
omissions of the previous 2 days and the single omission of
July 8. According to Johnson the discussion between
himself and his supervisor went as follows:
I presented the information, the facts that we had, and
it was decided that there was sufficient grounds for
release.
Q. Did you make the initial decision to discharge
him?
A. I made the call, yes
Q. When did you do that?
A. I did it on Thursday morning, 7/8/76, after I
had had the results of 7/6 and 7/7 work analyzed and
saw how many date codes were missing and had
discussed with Scott the happenings of the day. I talked
to John Hollinger and he said that it looked like there
was adequate documentation for release. He said to check
him tomorrow. The first worksheet that Scott worked on
the next day, a date code was left off.?I
i Although Johnson testified here and elsewhere that he made just one
phone call to Hutchinson and that this call was made between 11:30 a.m.
and 12:30 p.m. on July 8, the tenor of the testimony quoted herein indicates
that a telephone call took place on July 7 and that it was decided at that
time that Respondent had gathered enough evidence against Porter by that
time to be able to safely discharge him. Hollinger's admonition to Johnson
to "check him tomorrow," when considered in light of subsequent events,
permits the inference to be drawn that Hollinger meant that Johnson, after
"checking him" should either get back to Hollinger, or terminate Porter,
depending on what occurred on July 8. When Johnson found that Porter
had missed one entry on the morning of July 8, he either made a second call
to Hollinger in order to obtain permission to terminate him, or terminated
him on the strength of the telephone call to Hollinger made on July 7. The
significance of all of this is that Hollinger and Johnson together made the
determination on July 7 that they could and would terminate Porter
820
FAR-MAR-CO
According to Johnson, although the omission of one
code during a whole day's production would not ordinarily
be considered justification for discharge (130-150 such
entries being the norm for a day), the fact that one
omission occurred during the first mix of the day, on the
day following a 15- to 20-minute discussion between
Johnson and Porter on the subject of date codes and their
importance, was sufficient, when considered in light of
Porter's previous record of omissions, to justify discharge.
Based on this thinking, Johnson told Hollinger, again
according to the testimony of Johnson, that he did not
think that Porter was going to change and recommended
his discharge. Neither Johnson nor Hollinger discussed the
possibility of inflicting some less drastic discipline on
Porter other than outright discharge, without warning.
When questioned as to why he had not considered a lesser
discipline rather than immediate discharge without warn-
ing, Johnson gave no satisfactory answer but simply stated
that he based his decision on the history of what had gone
on before. When General Counsel pursued this line of
questioning by asking Johnson whether he had ever
advised Porter of the possibility that he might be discip-
lined for failure to enter the date codes, Johnson pointedly
avoided answering the question directly and stated, "I had
told him hundreds of times to put the date codes on and to
follow his job description." I infer from this answer that no
such warning was ever issued.
Porter, on July 8, was unaware of the decision made
earlier in the day to terminate him until about 4 p.m., when
he visited Johnson's office in order to see what mixes were
scheduled for production the following day. When he
entered Johnson's office, Johnson told him to get Hamilton
and to come back with him. When he did so, all three sat
down and Johnson initiated the brief conversation which
followed by stating, as he had the day before, that Porter
was still a probationary employee. He told Porter that he
had missed 42 percent of the date code entries the previous
day, that he had numerous similar omissions on previous
occasions, that he had missed a date code on the worksheet
that day, and that, he, Johnson, was going to terminate
him. Johnson then had Hamilton escort Porter from the
plant. According to the credited testimony of Porter, on the
way to the locker room, Hamilton said to Porter, "There's
nothing I can do. I'm sorry. I thought you did a good job
today, and I wish they would leave well enough alone."
Hamilton testified that he knew that Porter was going to
be discharged at 4 p.m., on July 8, because he had been
told this by Johnson late that afternoon. He testified that
Johnson instructed him to get Porter and bring him to
Johnson's office just before the shift ended and that it was
at this time he learned of Johnson's intention to terminate
Porter.'8 Although Hamilton testified that prior to this
moment he did not know that Porter would be terminated,
he testified that he "just had a feeling" that he would be
fired, a feeling which he testified was due to previous
discussions about the date codes. Contrary to this "feel-
ing," however, Hamilton testified that he did not really
depending on what happened the following day. and never said a word to
him that his job was in danger. In the parlance of the streets. Porter was
being set up for a sandbagging.
at Inasmuch as Porter credibly testified that he was told by Johnson to
get Hamilton. rather than the other way around, I do not credit Hamilton's
think it would ever happen because he thought that Porter
would straighten out."
Hamilton testified that he could not recall whether or not
he was present during Porter's exit interview after bringing
Porter to Johnson's office. He did, however, recall that on
July 8 Porter had missed only entering one date code, and
that missing only one date code was considered a good
record. When questioned by General Counsel as to why
Porter was terminated at the end of the workday on July 8
after performing so well, Hamilton replied: "I don't believe
that was the reason, just that one day. It was the past
record." When General Counsel persisted: "If he was
terminated for his past record, why wasn't he terminated
on July 6th or July 7th," Hamilton replied, "I couldn't
answer that." Following Porter's exit interview, Hamilton
was asked by Johnson to escort Porter from the building.
While in the dressing room Hamilton commented to Porter
that he was glad to have worked with him and that he
thought that Porter had done a good job that day.
According to the employee handbook, "employees who
have served their probationary period and are released for
lack of work or ability shall be given two weeks notice with
pay." 9 As noted above, I have found that Porter was
taken off probation as of the date of his interview with
Jungk. At that time he had been employed in excess of 3
months by Respondent, the ordinary probationary period,
and thereafter began to receive the fringe benefits usually
associated with full-time permanent employment. Despite
Porter's position as a full-time permanent employee,
Respondent did not give Porter the 2-week notice as
required by the handbook. Johnson explained that he did
not specifically consult the handbook with regard to notice
when Porter was terminated because he felt that he was
operating under the direction of the personnel director and
that both he and the personnel director were in agreement
that Porter should be terminated. He denied familiarity
with the handbook. Johnson also testified that Respon-
dent's contention that Porter was on probation had nothing
to do with his discharge.
Following Porter's termination, his job was assigned to
James Kelly, the employee who had filled in for Porter
during his accident. Johnson then called a meeting of all
affected employees at which Johnson went over the job
description for spice blender and explained to them why
Porter had been terminated. He showed these employees
the worksheets and cited Porter's failure to enter date codes
as the reason for his termination.
D. The Date Codes
Respondent takes the position that Porter was terminat-
ed for failure over a long period of time, and more
immediately on July 6, 7, and 8, to enter date codes on the
worksheets. General Counsel posits the argument that
Porter's termination for failure to enter the date codes was
pretextual in nature and that he was, in fact, discharged
because of his union activity.
description of how he learned of Porter's impending termination. I do.
however, credit Hamilton's testimony that he did know in advance that
Porter was going to be discharged.
i9 Employee handbook.
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In February, shortly after Porter became a full-time spice
blender, when the job was still new to him and problems
with the machinery were still causing difficulties, Porter as
well as the other employees blending ingredients failed on
occasions to enter the date codes on the worksheets. Both
Hamilton and Johnson2 0 reminded Porter of this require-
ment, but neither advised him at the time that his failure to
enter the date codes might result in his being disciplined.
As noted above, Porter did not consider the entering of the
date codes particularly important because, when he was
working in the laboratory during the previous several
months, date codes were not considered important and
were not later entered on bulk items sent up for blending.
Failure to enter date codes was not made an issue at that
time. When Porter moved from the laboratory into full-
time blending, he continued to consider the entering of
date codes a relatively minor part of his duties, recording
the dates when he had time to do so, neglecting to enter
them when busy with his other duties. No one, according to
Porter, explained to him the reasons why it was important
to enter the date codes, although he was aware that it was
part of his duties to enter them on the worksheets and he
assumed it was important because of Johnson's emphasiz-
ing that it should be done. After Johnson discussed the
matter with him in February, Porter made an effort to
comply with the requirement. Inasmuch as he was still
having trouble with the machinery and was under great
pressure to get the products out on schedule, Porter was
unable to make the date code notations as he worked. He
therefore waited until the end of the day to fill out the
worksheets, thus enabling him to spend all of his regular
worktime with the machinery. Johnson, however, found
this method unacceptable and ordered Porter to enter the
date codes immediately after adding each product to the
mix. According to Porter, with the situation the way it was
at the time, he simply did not have time to note the date
codes as he added ingredients.21 If he were to enter all of
the date codes each day, Porter testified, it would have
meant the noting of between 130 and 150 date codes,
depending on the number of mixes required. Management
witnesses testified that the entering of a date code
amounted to a 5-second operation.
In March, Porter was the only full-time spice blender
employed by the Company although other employees
performed the duties of spice blender where smaller mixes
were being blended. Management witnesses testified that
these other employees omitted far fewer date codes than
Porter but also produced far less work, and that this
pattern continued throughout the 4-month period, March
through June.
During this period, March through June, according to
Johnson, he had, at a bare minimum, five conversations
per month with Porter, in Hamilton's presence, about
20 Both Porter and Johnson testified that the discussions concerning the
necessity of entering date codes may have occurred in March rather than, or
in addition to. those which occurred in February.
2I Employee Phillips, who mixed liquids for Respondent, credibly
testified that, although he was required to enter date codes, he would fail to
enter on the average one date code per mix, or in every other mix, and was
never reprimanded because of these omissions.
2' According to Johnson the omissions were first called to his attention
in late February or early March by Joe Maggio his office manager. Maggio
vwas not called to testify. Johnson's conversations with Hamilton occurred,
Porter's date code omissions and had, in addition, several
conversations with Hamilton alone regarding Porter's
failure to enter the date codes. 22 Throughout March and
April, Johnson found out from Hamilton that when Porter
neglected to enter a date code through the day, Hamilton
would frequently make the notation for Porter, when he
had time. Hamilton had the responsibility of seeing to it
that the worksheets were completed when turned in to the
office and found it easier to complete the worksheets
himself, on some occasions, rather than remind Porter of
his omissions and have him do it. Again, according to
Johnson, in March, through these many discussions with
Hamilton and from his own observations of the work-
sheets, he became aware of the large number of omissions
left by Porter. He also knew which employee was
responsible for which worksheet and therefore knew that
Porter was omitting more date codes than were the other
employees. Though aware of Porter's failings in this regard,
Johnson, during March, did not put aside Porter's
worksheets so as to later be in a position to identify them as
Porter's. Rather, as each was completed, he just filed them
away without taking any special action.
In early April, soon after Hamilton once again became
Porter's leadman, Hamilton drew Porter's attention to the
fact that he had been omitting date codes. According to
Porter, Hamilton did this just once and Porter, in rejoinder,
promised that he would try to do better in the future. The
incident in question arose, according to Porter, one
afternoon when Porter gave Hamilton the worksheets for
the day to take to the office. When Hamilton noticed that
Porter had omitted some of the code numbers, he brought
the worksheets back for Porter to fill in and took him off
cleanup detail in order to have him complete the work-
sheets. Porter filled in the omissions as requested on the
three or four worksheets containing omissions and prom-
ised Hamilton to try to do better in the future. According
to Porter, this was the only time that Hamilton requested
him to fill in omissions on the same day that they had been
omitted. On all other occasions where Porter had left
omissions, he never saw them again and could not testify as
to whether or not they were filled in by someone else.
Porter also recalled Johnson mentioning to him, some time
in April, his failure to enter date codes but insisted that this
occurred on only one occasion.
Hamilton testified substantially in accordance with the
testimony of Porter that he discussed the importance of
entering date codes with Porter shortly after he became
leadman in April but did not inform Porter as to their
purpose. Thereafter, however, Hamilton noticed that every
so often a date code would be missing from a worksheet. If
there were not too many, Hamilton would take care of the
matter himself by filling them in at day's end. If, however,
there were as many as three or four date codes missing on
at least in part, before Hamilton began to supervise Porter, while Donahue
was leadman in the blending department. Johnson testified that Porter's
omissions were discussed at this time with Hamilton in preparation for
synthesizing a job description for the spice blender portion, and preparatory
to Hamilton taking over as leadman. There was no testimony from Donahue
concerning Porter's failure to enter date codes in March while working for
him and, although Johnson mentioned that he had discussed with Donahue,
Porter's failure to enter the date codes, it appears that he did so along with
Hamilton and Porter, himself, in an effort to put together the job description
rather than for the purpose of disparaging Porter's work.
822
FAR-MAR-CO
each of 10 worksheets in a single day's production,
according to Hamilton, this would require too much effort
and he would wait till the following day and remind Porter
that the date codes had to be on the worksheets. On these
occasions, Porter promised to do his best to improve.
Hamilton recalled that such a discussion between Porter
and himself occurred in April and further testified that
Porter's date code omissions were discussed with Johnson
more than once in April.
During the last week of April, as noted above, Porter,
together with other employees to a lesser extent, began
discussing the need for union representation. Thereafter
the Union was contacted first by another employee, then
later by Porter, who scheduled a meeting for Respondent's
employees at the union hall. The employees signed cards
and Porter himself obtained the signatures of two employ-
ees who had not attended the meeting. When the Union
contacted Respondent concerning the employees choosing
it as their representative, Porter acknowledged to Johnson
that the employees had contacted the Union and, acting as
a primary spokesman for them, stated in reply to Johnson's
questioning as to why they had done so, that he thought it
was time for some backing.
With these incidents as immediate background, subse-
quent developments involving Respondent's concern over
date codes in May and June are hereinafter described:
According to Hamilton, Porter continued in May, his
practice of failing to enter certain date codes. In early May
Hamilton continued to fill in the date codes left blank by
Porter23 or would take the worksheet back to Porter and
have him fill in the date codes himself, either at the end of
the day or the following day. But then, still in early May,
Johnson instructed Hamilton to stop filling in the missing
date codes for Porter because he wanted a record kept of
what had been omitted. Johnson further informed Hamil-
ton that the Company was keeping a folder on Porter, 24
that the Company felt that Porter wasn't doing his job.
Johnson further advised Hamilton that "he wanted a
record kept of things that were brought up to him [Porter]
and when." Despite the fact that Hamilton was told by
Johnson that the Company was keeping a folder on Porter,
neither Hamilton nor Johnson warned Porter about the
folder or that his failure to enter date codes could possibly
subject him to discipline.
On May 7, shortly after Johnson told Hamilton to cease
filling in the date codes for Porter, he, Johnson, had his
office manager, Joe Maggio, gather Porter's worksheets for
May 6 and analyze them for the purpose of determining the
percentage of omissions appearing thereon. By Maggio's
calculation, Porter had missed 42 percent of the code dates
on May 6. As a result of this discovery, according to
Johnson, he wrote out a memorandum on May 10 and had
it typed and sent to John Jungk, his superior, on May 17.
Meanwhile, on May 7,25 he called Hamilton into his office,
showed him the worksheets for May 6 and instructed him
to have Porter fill in the omitted date codes. Hamilton did
2:: Hamilton. on occasion, would do the same for other employees.
Sometimes he would mention the omissions to them but not always.
24 Although Ha;milton testified that he was told by Johnson to stop filling
in the sorksheets of all of the employees in the blending department.
nothing was said about keeping folders on other employees.
2: Hamilton testified that this occurred on May 17. This is probably an
so,26 once again mentioning that the date codes had to be
entered, but again saying absolutely nothing about the
possibility of Porter being disciplined or about the fact that
the Company was keeping a folder on Porter.
To support its contention that Porter omitted 42 percent
of the date codes on May 6, Respondent offered into
evidence the worksheets for that date. Johnson testified
that Office Manager Maggio made the calculations upon
which Respondent's contention is based, but Maggio was
not called to testify by Respondent. Rather, Respondent
called Hamilton to testify with regard to the exhibit.
According to Hamilton, Porter initially noted the date
codes with a ballpoint pen, but when instructed later by
Hamilton to fill in the omitted date codes, did so with a
pencil. Hamilton then read into the record the number of
ingredients added to each mix and the number of date
codes missed. By his calculations, there were 47 ingredients
added to mixes on May 6 with 11 date codes omitted. This
is approximately an omission percentage of 23 percent, far
less than the 42 percent arrived at by Maggio and accepted
by Johnson. Moreover, an analysis of these worksheets
indicates that although there were II initial omissions
when Hamilton told Porter to complete the worksheets,
there were still six omissions remaining after Porter
penciled in five of them. Those six omissions still remained
on the worksheets at the time of the hearing. Clearly,
Hamilton made no effort to make certain that all of the
date codes were entered. This leads me to conclude that
entering of date codes in general was not nearly as
important as Respondent contends or that the six remain-
ing omissions were not really omissions at all, that only the
five date codes penciled in were considered serious
omissions. In the latter case, Porter would have missed
only approximately 10 percent of the date codes on May 6.
Assuming that Respondent, in attempting to prove the
justification of its case, placed in evidence Porter's worst
performance; i.e., that of May 6. That evidence indicates
that Porter's work record was not nearly as bad as
Respondent contends. Moreover, Respondent's attempt to
picture Porter's work record as far worse than it actually
was, indicates a motivation other than legitimate and
supports the inference that the reasons proffered by
Respondent for Porter's termination were pretextual.
The memorandum, which Johnson testified to having
sent to Jungk on May 17 was seen for the first time by
Hamilton on that date. The letter reads as follows:
Confidential
May 17, 1976
MEMO TO: John Jungk
FROM: Jim Johnson
SUBJECT: Production worksheets for 5-6-76.
error since it is more likely that Porter would be requested to correct the
omissions the following day after making them, rather than I I days later.
'. As noted earlier. Porter testified that he was required on one occasion
to fill in several date codes which he had missed. Despite the somewhat
different description of the incident by Porter. it ma) be the same one
described here by Hamilton.
823
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Friday 5-7-76 I asked Joe Maggio to run a check
for me on the formula sheets used in production 5-6-
76. Specifically I was interested in seeing if date codes
were being put on the worksheets as outlined in our
Blender's job description.
Joe reported the following:
1. Seventy-six ingredients were used in production
5-6-76.
2. Thirty-two of these ingredients did not have date
codes affixed to the worksheets.
3. Consequently, 42% of the ingredients lacked date
codes.
As you are well aware John, our whole Quality Control
system is based on applying date codes to our
worksheets and without proper coding, we have no
method of assuring our customers a quality product.
I called Jim Hamilton into my office and instructed Jim
to take the worksheets back to the production area. Jim
was told to stop all production and get his blender, Scott
Porter and review Scott'sjob description. After doing this
Jim was to have Scott apply date codes to all the
missing ingredients.
Because of the seriousness of this omission by Scott, I
would request that a copy of this memo be put in Scott's
permanent file.
Despite the fact that the tenor of the letter clearly
indicates serious displeasure with Porter's work, and
Johnson's request that a copy of the memo be placed in
Porter's permanent file just as clearly indicates disciplinary
action was seriously being considered, and a case being
made against Porter, neither Hamilton nor Johnson
showed this memorandum to Porter, nor even mentioned
its existence to him, nor in any fashion apprised him of the
possibility of discipline. When Hamilton was asked by
General Counsel why, after seeing the memorandum of
May 17, he did not apprise Porter that he was in serious
danger of being disciplined, Hamilton replied that Porter
must have been aware of the seriousness of the problem
because he had helped make out the job description in
which the date code requirements were spelled out and
must also have realized that entering the date codes was
part of the procedure. I consider Hamilton's reply to
General Counsel's question to be evasive. General Counsel
then asked, "Was the reason that you didn't mention
anything specifically to Scott Porter about the possibility of
disciplinary action because you didn't know that it was
possible that the employees would be disciplined for failure
to record the date lot number?" To this question Hamilton
replied, "I didn't think it would go that far, you know."
This testimony, the questions and answers, indicates to me
one of two things. Either as Hamilton implied, the omission
of date codes was so insignificant a matter as to not
warrant a warning about possible discipline, much less
27 Hamilton testified to the contrary. I credit Kelly, however, based both
discharge, or it was, in fact, a legitimate basis for eventual
discharge, in which case, I can find no possible reason why
neither Hamilton nor Johnson would warn Porter of this,
unless, of course, they wanted Porter to continue to make
the same errors, thus enabling them to build a case against
him which would eventually cause him his job.
Johnson testified that the reason he sent the May 17
memorandum to Jungk at that particular time was because
the necessity of entering the date codes had been discussed
at great length in March and April and "here came May
and I felt I had better start getting some stuff written down
. . .because if he kept going on as in March and April, if
he wouldn't follow procedure, I felt that we were going to
have to release him." General Counsel then, to clarify,
asked, "Discharge him? and Johnson replied, "yes, sir. I
hoped not." General Counsel then asked, "Did you ever
mention that to Mr. Porter?" and Johnson replied "No ...
I didn't threaten anybody or anything. I just wanted him to
do his job."
By his testimony, Johnson would have it believed that he
had a serious concern for Porter's welfare, that he hoped it
would not be necessary to discharge him, but that he did
not mention to him the possibility that he might be
discharged for failing to enter code dates because he did
not like to threaten anyone. I could be more convinced of
Johnson's sincerity concerning his reluctance to threaten
valued employees with discharge if, in fact, he were not
busily engaged at the same time, in providing evidence for
Porter's folder, to be used for his eventual discharge.
Porter testified incidentally that the 42 percent date code
omissions figure was never mentioned to him until the day
of his discharge at which time Johnson, for the first time,
advised him that on one occasion his worksheet reflected
that particular number of date code omissions. I credit
Porter to this effect.
Respondent's witnesses testified that, in early June,
Porter continued to fail to enter date codes on some
worksheets. Porter admitted this was so, after being shown
worksheets for June 7. He denied that these specific
omissions had been brought to his attention before. No
credible testimony was received from Respondent's wit-
nesses which would serve to effectively discredit Porter's
testimony with regard to the June omissions and he is
credited.
On June 11, as noted above, Porter had the accident
which resulted in his being away from his job from June 14
until July 6. During his absence his job was performed by
employee James Kelly, under the direction of Hamilton.
Though instructed on how the job should be done, Kelly,
like Porter, neglected, at times, to fill in all of the date
codes on the worksheets. Kelly testified, as had Porter, that
the job was hectic and for this reason, among others, he
sometimes forgot to fill in the date codes and found it
difficult to complete the work in the time alotted. Kelly
testified that, during the early period when he first took
over the spice blender's job and failed to enter the date
codes, these omissions were not called to his attention by
Hamilton. 27 When Kelly fell behind in entering the date
codes, he would try later to go back and enter them but
sometimes would forget to do so.
on his demeanor and on the fact that he was still, at the time of the hearing,
824
FAR-MAR-CO
Kelly went on vacation on July 3 and did not return to
work until July I 1. In the meantime, of course, Porter had
been terminated and the charge in the instant case filed.
When Kelly returned he was permanently placed in
Porter's position as spice blender. Kelly was called into a
meeting, 3 days after his return, with Johnson and one
other individual, not otherwise involved. At this meeting
Johnson brought up the subject of the omissions of the
previous few days and Kelly was, for the first time, advised
of the importance of entering the date codes.
Following his discussion with Johnson, despite Kelly's
efforts, he nevertheless failed, on occasions thereafter, to
enter the date codes. According to both Kelly and
Hamilton, during the period following the meeting with
Johnson, right up to the time of the hearing, Hamilton
would check the worksheets and, if only one or so were
missing, he would fill in the date code for Kelly but, if there
were more, he would bring the worksheet back and have
Kelly fill in the omissions. As late as a week before the
hearing Kelly recalls missing a date code and, since he
heard nothing about it, assumed that Hamilton filled it in
for him. Thus, it would appear that Respondent reverted to
the same system of date code entering that it had used prior
to the time it began keeping a folder on Porter, i.e., the
spice blender would fill in the date codes as he made his
mixes whenever possible, but, if he should omit a date
code, then Hamilton would either fill it in for him or would
return the worksheet to him later for completion. Addition-
ally, since having his discussion with Johnson, Kelly would
make certain to enter "no lot number" on the worksheet, or
mark it with a question mark if no date code was available.
He did this, however, only after learning that Porter had
been fired, allegedly, for omitting date codes. I, therefore,
conclude, as Kelly testified, that he, Kelly, began to take
greater care in entering the date codes, following Porter's
termination because he did not wish to meet the same fate.
As a result of this greater care, Kelly missed, according to
Hamilton, probably only one date code per day, which
Hamilton agreed was a "good track record."
Significant also, for several reasons, is the fact that
immediately after Porter's termination and the return of
Kelly, his replacement, from vacation, Johnson, called a
meeting of the production department employees and told
them that Porter had been terminated. Johnson testified as
follows:
I went over the job description with them again and
pointed out some things. I said that I wanted to say that
this was why Scott was terminated. I showed them the
worksheets, gave them the figures, and said that was the
reason for Scott's termination.
The significance of this meeting lies in the fact that
implicit in Johnson's statement to the gathered employees
employed by Respondent in Porter's old position and despite his apparent
vulnerability, testified credibly and honestly in complete disregard of his
own interests. I have no doubt however that, after Porter's termination,
Hamilton did explain to Kell) the importance of the date codes.
'-' Kelly testified during the hearing that he had received no explicit
threats of discharge for failure to enter date codes.
'1' Respondent placed in the record summaries of worksheets for the
months preceding and following Porter's termination in order to show that
Kelly had a better record of entering dates codes than did Porter. But
is a warning that failure to enter the date codes would
result in termination. 28 This is the first time any employee
was given such a warning, and the time of this initial
warning is significant because it came after, rather than
before, Porter's termination. From the record testimony it
is clear that Respondent studiously refrained from warning
Porter of the possibility of discharge if he continued to
omit the date codes, all the while taking affirmative action
to effectively build a case against him based on said
omissions, beginning about the time of his union activity.
Then, immediately after discharging Porter, Respondent
advised all other employees engaged in the spice blending
operation that they, like Porter, could be fired for omitting
the date codes. Not surprisingly, the number of date code
omissions drastically decreased thereafter2 and Respon-
dent argues that these reductions are due to better work
performance by Kelly as opposed to that of Porter. I find,
however, that any improvement in the work of the spice
blenders following the discharge of Porter was the direct
result of Johnson's warning that they too were subject to
discharge if they failed to enter the date codes as required.
Conversely, since the record indicates that Porter was the
best spice blender the Company had, other than Hamilton,
the same improvement could have been accomplished by
issuing the same warning to Porter and the other employees
before taking the most drastic step it possibly could take
against Porter; namely, terminating him. This probability
is clearly supported by the fact that after Johnson
discussed with Porter, on July 7, his omissions of the
previous 2 days, and evidenced great concern about the
omissions, Porter the following day omitted only one date
code throughout the entire day, "a good track record," by
Respondent's own standards. Despite Porter's satisfactory
work record on July 8, he was summarily discharged
which, among other reasons, leads me to conclude that
Respondent was far more interested in discharging Porter
than it was inobtaining conformance with its date code
entry requirements.
Position of the Parties and Analysis and
Conclusion
General Counsel contends that Scott Porter was termi-
nated in violation of Section 8(a)3) of the Act because of
his activities on behalf of the Union. Respondent takes the
position that Porter was terminated for cause, in particular
because he failed on numerous occasions, most recently on
July 6, 7, and 8 to enter date codes on his worksheets.
I find that a preponderance of the evidence in the record,
as reflected by the sequence of events described above,
fully supports General Counsel's case and that Respondent
has, as charged, violated Section 8(aX)(1) and (3) of the Act
by discharging Porter because of his activities on behalf of
the Union. I find contrary to General Counsel's conten-
inasmuch as these summaries include in addition to Porter's and Kelly's
entries, date codes entered by Hamilton and other employees both before
and after Porter's discharge, I consider them inconclusive as evidence to
show that Kelly's record for entering date codes was superior to that of
Porter. Moreover, as found infra, any later improvement in the date code
entry records is clearly attributable to the effect of the implicit warning
contained in Johnson's announcement that Porter had been terminated for
failure to enter date codes rather than to any superior ability or
conscientiousness on the part of Kelly as compared to Porter.
825
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, however, that Respondent did not violate Section
8(a)(l) by interrogating its employees with regard to their
union sympathies and activities.
Thus, to summarize, Porter early emerged from among
the other rank-and-file employees as a leader when, at the
time of the March walkout, he became one of the two
spokesmen for the others in placing before management
the workers' grievances concerning conditions at the plant.
Following the walkout, Porter again acted as spokesman,
composing a demand letter for the strikers which he
delivered to management and, along with Tanner, orally
making the demands of the strikers known to management,
including demands for wage increases, and for notice
before being required to work overtime. As a result of the
demands presented by Porter and Tanner, Jungk agreed to
review the job performance of all employees with the
understanding that the interviews would result in wage
increases for certain employees and discharges for others.
The performance reviews resulted in the termination of two
unsatisfactory employees with the remainder, including
Porter, being granted substantial wage increases. Though
Porter's performance interview was not entirely free of
criticism, I find the fact that he was, at that time, taken off
probation, made a permanent employee, and granted
substantial wage increase, indicative of management's
satisfaction with his work. Following the interviews Porter
composed and delivered to management a second letter
voicing his satisfaction with the outcome of the dispute.
In April when mandatory overtime was instituted, it was
again Porter who emerged as spokesman for the employees
by championing the cause of a fellow employee who he
believed was unable to attend night school because of the
mandatory overtime. His criticism of management was
brought to the attention of Johnson who thereupon
summoned Porter to his office where, after acknowledging
Porter's potential and influence among the other employ-
ees, thereafter, through somewhat esoteric references to
glass houses and an ex-major league baseball star,
obliquely advised Porter of his vulnerability and the
possibility of his losing his job. The conversation, when
considered in the context of the subject matter being
discussed, was clearly meant as a warning to Porter to stop
stirring up trouble among the other employees.3 0 Johnson's
capping off the conversation with the statement that the
employees would thereafter be expected to work a 60-hour
week appears to have been a direct challenge to Porter,
albeit perhaps well founded on the exigencies of Respon-
dent's production requirements.
Despite Johnson's warning, Porter met with certain other
employees, discussed his and their dissatisfaction with the
overtime situation, and recommended contacting a union
in order to obtain backing for their cause. After several
such discussions during which Porter was the most forceful
union proponent, Porter contacted the Union, scheduled a
meeting at the union hall, and telephoned other employees
to advise them of the forthcoming meeting. At the meeting,
he and others presented signed union cards, and Porter
later supplied cards to and obtained signatures from two
:"' Date codes were never mentioned during this conversation.
: Flinr Provision Co., 219 NLRB 523 (1975). Similarly, I find Johnson's
employees who had not been present at the meeting.
Subsequently, Porter distributed union literature.
From these facts, it is clear that Porter was the primary
union proponent and organizer and that this fact was well
known among the employees in Respondent's production
department. When the business agent from the Union
contacted the Company the day following the meeting at
the union hall and advised management that all of the
employees had signed union cards and that he had filed a
petition, Johnson and the other members of management
went to the break room where the employees had gathered
for their break. Once there, Johnson advised those present
that a call had been received from Bob Mott, the Teamsters
business agent, who told him that some or all of
Respondent's employees had gone down and signed union
cards and that Mott had filed a petition for an election with
the National Labor Relations Board. Johnson then asked
the employees why they had done so, explaining that he
just wanted the information because he had to call the
home office and inform higher management what the
employees had done. Johnson's question appears to have
been merely an attempt to ascertain the reasons for the
employees' interest in the Union, so that he might relay to
his superiors the reasons which may have led them to seek
union representation. There were no threats accompanying
the request for information and the question, being
unaccompanied by promises of benefit, appears to be
lawful. I therefore find that Johnson's questioning of the
employees, under the circumstances, in the relatively
neutral atmosphere of the lunchroom, unaccompanied by
either promises of benefits or threats, coercion, or intimida-
tion, is not violative of the Act.31 However, when Johnson
asked why the employees had gone to the union hall and
signed cards, Porter responded that he thought it was time
for some backing, thus once again placing himself squarely
in the vanguard of employee dissidence. Porter also offered
Johnson a union pamphlet which led Johnson to assume,
as he admitted in his testimony, that Porter, at the very
least, had signed a union card. But from Porter's role in
organizing the strike, his constant voicing of displeasure
with the overtime assignments, and his leadership role
during this meeting convinces me that management, and
Johnson in particular, was well aware that Porter was
primarily responsible for the Union's organizing Respon-
dent's employees. Moreover, when Porter appeared at the
representation case hearing on behalf of the Union on May
25 and testified for 2-1/2 hours, any mere suspicion as to
Porter's role most certainly must have been confirmed in
the minds of management.
As noted above, whereas initially any date codes omitted
by Porter during the day, had been filled in for him by
Hamilton at the end of the day, or the worksheets returned
to Porter for entry the following day, in May, immediately
following Porter's involvement with the Union, Johnson
instructed Hamilton to stop filling in the missing date
codes for Porter because he wanted to keep a record of
Porter's omissions. Significantly Johnson informed Hamil-
ton that the Company was keeping a folder on Porter but
neither Hamilton nor Johnson neither informed Porter of
question sufficiently removed in time and context from the violation found
infra, to permit its consideration in isolation.
826
FAR-MAR-CO
the folder nor advised him that his failure to enter the date
codes could result in his termination. I conclude from this
unusual procedure that Respondent sought to build a case
against Porter to use against him at a later time as a pretext
for his termination. Thus, prior to Porter's involvement
with the Union, Respondent was basically satisfied with
the system whereby, if Porter omitted date codes, Hamilton
would fill in the omission or have Porter do it at a later
time. At least the date codes eventually were entered albeit
with some reminder. In late April and early May, after it
became apparent to Johnson that Porter was the leading
union proponent, he ordered Hamilton to stop entering the
date codes and to keep track of Porter's omissions, all the
while studiously keeping from Porter the fact that a folder
was being kept for the purpose of discharging him. If
Johnson was really concerned with getting the worksheets
properly filled out, he would have told Porter about the
fact that Respondent was keeping track of his date code
omissions in a folder and that this record would or could
be used as the basis for his discharge. Inasmuch as neither
Johnson nor Hamilton warned Porter about the existence
of the folder or the possibility of his discharge, I conclude
that Respondent was not nearly as concerned with date
code omissions as it was with building a case which would
eventually enable it to rid itself of Porter. Since Porter had
just recently been given a substantial wage increase and
placed in permanent status, Respondent must have
considered him a valuable employee, and there can be no
other reason for Respondent's sudden decision to rid itself
of Porter, other than his union involvement which
immediately preceded Respondent's decision to start
keeping a secret folder on him. I find that the decision to
keep the folder on Porter without warning him of its
existence or of his impending termination, was unlawfully
motivated. This conclusion is additionally supported by
Respondent's efforts to support its case by overstating the
extent of Porter's job failings, as noted above, and by its
failure once again to advise Porter about Johnson's May 17
letter to Jungk.
When Porter returned to work after his accident, and
Johnson on July 7 discussed with him the date code
omissions of July 6 and 7, he attempted to convince Porter
that he was still on probation, although the record
evidence, as noted above, clearly indicates otherwise. He
also brought to Porter's attention two memoranda from
Johnson to Jungk concerning two incidents which had
occurred several months before, one in which Porter had in
no way been involved. I consider Johnson's attempt to
have Porter revert to probationary status at this late date
and his dredging up of incidents long past and irrelevant as
further evidence of Respondent's determination to pad its
case against Porter and thus more easily enable it to rid
itself of him.
When Johnson contacted Hollinger on July 8 and
probably, as noted above, on July 7, the entire tenor of
their conversation seemed to indicate that a long sought
after goal had been achieved. In Johnson's words, "it was
decided that there was sufficient grounds for release" and
elsewhere: "it looked like there was adequate documenta-
tion for release." Clearly such testimony further supports
the conclusion that Respondent had been building its case
against Porter and now felt that the case was strong enough
to safely discharge him. But even at that point Johnson
pointedly avoided informing Porter that he and Hollinger
had decided that there was "adequate documentation for
release" or that Hollinger had said, "Check him [Porter]
tomorrow." I cannot conceive of this being a mere
oversight.
On July 8, despite the fact that Porter omitted just one
date code, "a good track record" by Respondent's own
standards, Johnson terminated Porter. It seems patently
clear that Johnson's decision to ignore Porter's excellent
work record on July 8, and terminate him despite this work
record indicates that the decision to terminate Porter had
already been made and whatever Porter did on that day
would have had no effect on Respondent's decision to
terminate him, since it had already achieved its goal,
"sufficient documentation for release." In any normal
employer-employee relationship, sans union activity and
discriminatory motivation, the employee would have
received a warning about his impending termination, and
even then would have received no more than a mild
reprimand for failing to enter the single date code on July
8.
As noted above, after Porter was discharged, and after
Kelly returned from vacation, Johnson gathered together
the spice blending employees at a meeting. He carefully
went over the job description for the spice blender's
position and painstakingly explained to them that Porter
had been terminated for failure to enter the date codes.
This painstaking effort to explain to the other spice
blenders how Porter could be terminated for failure to
enter date codes is utterly incongruous when considered in
light of Respondent's equally painstaking effort to avoid
warning Porter that he could be terminated for said
omissions, prior to his discharge, unless, of course,
Respondent intended that Porter should continue to fail to
enter date codes, while it kept a record of such omissions to
be used as a pretext for discharge at a later date. I conclude
that this is the only explanation for Respondent's conduct
and since the building of Respondent's case against Porter
began immediately after Respondent became aware of his
involvement with the Union, that the pretextual discharge
in which its case against Porter culminated was discrimina-
torily motivated.
Finally, following the termination of Porter and Kelly,
the other spice blenders continued to occasionally omit
date codes albeit infrequently since learning of Porter's
termination. Though date codes were omitted, no one was
reprimanded, much less terminated. In fact, rather than
keep a folder on any of these other employees as it had
with Porter, Respondent simply reverted to the system used
with Porter prior to his involvement with the Union. That
is, where Kelly or the others omitted an occasional date
code, Hamilton would fill it in for him or have him do it
later, himself. Johnson's insistence that the spice blenders
fill in the date codes themselves rather than have Hamilton
help them seems to have lost its urgency since the
termination of Porter, and the record does not reveal that
folders are any longer kept on employees for failure to
enter date codes. I find this difference in attitude toward
the other spice blenders and their omissions of date codes
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also supportive of General Counsel's case since the
disparate treatment toward Porter as opposed to the others
began at the time of his involvement with the Union and
supports the conclusion that said disparate treatment and
eventual termination was the direct result of discriminatory
motivation. One final footnote to the entire sequence of
events, I find interesting. Though I do not doubt that
Respondent considers the entry of date codes important,
the fact remains that the record contains nothing to
indicate that the Respondent ever suffered any loss or even
inconvenience as a result of a date code omission by Porter
or anyone else. Moreover, the record indicates that if a
customer should require that a product be traced back to
determine the ingredients used to manufacture it, and a
date code is missing, there exists alternate means to obtain
the necessary information, though, admittedly, it would be
more time consuming to obtain the information through
these alternate means than through the properly entered
worksheets. These factors, though not controlling as to the
decision rendered herein, do seem to detract somewhat
from the credibility of the expressed imperativeness of
Respondent's case. After all, no calamity or disaster, large
or small, occurred as a result of these omissions and
Porter's discharge for the cause cited by Respondent
appears, in the absence of any demonstrable injury to
Respondent, to be a rather extraordinarily excessive
reaction to what had long been regarded as a somewhat
minor breach of the work rules.
In summary, I conclude that the above sequence of
events clearly indicates that Porter was the most active
union adherent in Respondent's employ and was primarily
responsible for the organizational activity at Respondent's
plant; that Respondent became aware of this fact and
immediately thereafter began to collect data concerning his
failure to enter date codes on his worksheets; that this data
was collected solely for the purpose of creating a folder
later to be utilized as a pretext on which to base Porter's
termination; that, on July 8, Respondent terminated Porter
in accordance with its pretextual plan ostensibly because of
his failure to enter the date codes but in reality because of
his union activity; and that consequently said termination
was in violation of Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. Far-Mar-Co is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging employee Scott Porter and refusing
thereafter to reinstate him because he engaged in union
activities, Respondent has engaged in unfair labor practic-
es within the meaning of Section 8(a)(3) and (I) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
:12 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
5. Respondent did not violate the Act under the
circumstances described herein by questioning its employ-
ees as to why they visited the union hall and signed union
cards.
REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(3) and (I) of the
Act, I shall recommend that it be ordered to cease and
desist therefrom, and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Scott Porter was discriminatorily
discharged, I shall recommend that Respondent be
required to offer him full and immediate reinstatement,
with backpay, to be computed in accordance with the
F. W. Woolworth Company, 90 NLRB 289 (1950), with 6
percent interest per annum in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 32
The Respondent, Far-Mar-Co, Lenexa, Kansas, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting General Drivers, Warehousemen
and Helpers, Local Union No. 498, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
union.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Scott Porter immediate and full reinstatement
to his former job or, if his job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of pay or other benefits in the manner
set forth in the section of this Decision entitled "Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records, social security payment records, timecards, per-
sonnel records, and reports, and all records necessary to
analyze the amount of backpay due under the terms of this
Order.
(c) Post at its plant in Lenexa, Kansas, copies of the
attached notice marked "Appendix." 33 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof, and be maintained
33 In the event that this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
828
FAR-MAR-CO
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
829
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.