Fry Foods, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1979

241 N.L.R.B. 76 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fry Foods, Inc. and United Steelworkers of America,
AFL-CIO. Cases 8-CA-10901, 8-CA-11000, 8-
CA-11095, 8-CA-11147. and 8-CA-11477
March 15, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On August 8, 1978, Administrative Law Judge
Walter H. Maloney, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,l and
conclusions of the Administrative Law Judge and to
adopt his remedy 2 and his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Fry Foods, Inc., Tiffin,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. Nor do we find merit in
Respondent's contention that, because the Administrative Law Judge gener-
ally discredited the Employer's witnesses and credited the General Counsel's
witnesses, his credibility resolutions are erroneous or attended by bias or
prejudice. N.L.R.B. v. Pitlsburgh S.S. Co., 337 U.S. 656 (1949). We have
further considered Respondent's contention that the Administrative Law
Judge has evidenced a bias against Respondent's position. We have carefully
considered the record and the attached Decision and reject these charges.
2 Backpay for the 30 unfair labor practice strikers who were found to have
been unlawfully discharged by Respondent on April 20, 1977, will be com-
puted in accordance with our recent decision in Abilities and Goodwill, Inc,
241 NLRB 27 (1979). Thus, they will be entitled to backpay from April 20,
the date of their discharges, rather than June 10, the date the Union made a
unilateral offer to return to work, on behalf of all strikers. For the reasons set
forth in his dissenting opinion in Abilities and Goodwill, Member Penello
would order backpay for the 30 unfair labor practice strikers to commence
on June 10.
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law Judge:
This case came on for hearing before me in Tiffin, Ohio,
upon an amended consolidated complaint, issued by the
Regional Director of Region 8, which alleges that the Re-
spondent, Fry Foods, Inc.. 2 violated every subsection of
Section 8(a) of the Act. More particularly, the amended
consolidated complaint contains about 16 allegations of in-
dependent 8(a)( I) conduct, including interrogations, threats
to discharge and close the plant, assault by automobile
upon a striker, threats of physical injury to strikers, imposi-
tion of more onerous working conditions upon returning
strikers, requests to employees to engage in surveillance of
the union activities of other employees, a wage increase
designed to discourage the union activities on the part of
employees, and the institution and implementation of a sys-
tem of written warnings designed to harass union sympa-
thizers. The 8(a)(2) allegation asserts that Respondent un-
lawfully sponsored an employee committee which discussed
with the Employer certain employee benefits and other
matters pertaining to the wages, hours, and working condi-
tions of bargaining unit members. The 8(a)(3) allegations
include the alleged demotion of Mattie Taylor, the dis-
charge of Rowena Gannon, the terminations of 30 named
unfair labor practice strikers, the suspension of several
union sympathizers for assertedly specious disciplinary rea-
sons, and the discharges of Tina Shetzer, Kay Fortney
Tong, Mary Jane Bodi, Susan Neikirk, and Wanda Depi-
The principal docket entries in this case are as follows:
Charge filed against Respondent by United Steelworkers of America,
AFL CIO (herein called Union or USWA), in Case 8-CA 10901 on March
31, 1977; second amended charge filed in Case 8 CA 10901 on April II.
1977; third amended charge filed in Case 8 ('A 10901 on April 13. 1977:
charge filed by the Union against Respondent in Case 8 CA-I 1000 on May
9, 1977: first amended charge filed on May 16, 1977; second amended charge
filed on May 31, 1977; charge filed by Union against Respondent in Case 8-
CA-11095 on June 14, 1977; charge filed against Respondent by Union in
Case 8-CA- 11147, on July 6; charge filed against Respondent by Union in
Case 8 CA-1147 on October 26, 1977; amended charge filed in Case 8
CA-11147 on November 16, 1977; second amended charge filed in Case 8-
CA-11477 on December 27, 1977; consolidated complaint issued by Re-
gional Director of Region 8, in all of the above cases on December 20, 1977,
and amended on January 12, 1978, and on February 14, 1978; Respondent's
answer to amended consolidated complaint filed on January 12, 1978: hear-
ing held in Tiffin, Ohio, on March 27-30, 1978, and April 18-20, 1978; briefs
filed by the General Counsel and the Respondent with me on June 14, 1978.
In a related. but unconsolidated representation case, the following are
docket entnes of which I take official notice:
Petition for representation election among Respondent's production and
maintenance employees filed by USWA on December 22, 1966 (Case 8-RC-
10738); Regional Director's Decision and Direction of Election issued on
February 9, 1977; election held on March 18, 1977, which Union won by a
vote of 46 to 41; Union certified on March 25, 1977.
Respondent admits, and I find, that it is an Ohio corporation which
maintains its principal place of business at Tiffin, Ohio, where it is engaged
in the processing and nonretail sale of onions and mushrooms. In the course
and conduct of this business, it annually ships goods and merchandise di-
rectly from its Tiffin, Ohio, place of business to points and places located
outside the State of Ohio which are valued in excess of $50,000. Accordingly,
Respondent is an employer engaged in commerce within the meaning of Sec.
2(2), (6), and (7) of the Act. The United Steelworkers of America, AFL-CIO.
is a labor organization within the meaning of Sec. 2(5) of the Act.
241 NLRB No. 42
76
FRY FOODS, INC.
net. The 8(a)(4) allegation is addressed to the discharge of
Rowena Gannon, the discharge and demotion of Mattie
Taylor, and the discharge of Kay Fortney Tong. The
8(a)(5) allegation relates to an alteration of the composition
of the bargaining unit to remove employees from the unit
by promoting them to supervisory positions; a flat refusal
on the part of Respondent to meet and discuss terms and
conditions of employment with the certified bargaining
agent; the unilateral reduction of the wages of employee
Mattie Taylor; a refusal to furnish data relating to wage
rates and employee classifications, insurance coverage, va-
cations, and pregnancy leave until required to do so by the
terms of a district court order in a temporary injunction
proceeding; and the unilateral imposition of new and oner-
ous working conditions without first bargaining about such
changes. These changes include a written warning system
and new time standards for the packing of onions. Respon-
dent denies the allegations of independent 8(a)(l) conduct,
the alleged 8(a)(2) conduct, states that Rowena Gannon
was discharged for various nondiscriminatory causes, that
other discriminatees were likewise terminated for cause.
and that the 30 strikers discharged on or about April 20
were fired for picket line misconduct. Respondent main-
tains that it has no duty to bargain with the Union because
the representation election which the Union won was the
product of unlawful interference in the form of organiza-
tional activity by supervisors. Upon these contentions, the
issues herein were drawn.3
The Unfair Labor Practices Alleged
Respondent is a family owned and operated corporation
which maintains a production plant in an industrial section
of Tiffin, Ohio. The principal officer and director of the firm
is Norman Fry, who takes an active role in the daily man-
agement of the business. He is assisted by his son, Philip,
and his daughter, Beverly. Respondent has about 80-100
employees, mostly women, who manufacture and ship raw
and fried onion rings, mushrooms, and, on occasion, fried
fish. The facility is made up of a number of different pro-
duction lines which operate depending upon whether cus-
tomer orders on file call for raw onion rings, fried onion
rings, raw or fried mushrooms, or fish. The plant also con-
tains a storage and a packing area. Employees are given a
variety of assignments depending upon the item which is
being produced on a particular shift. Respondent normally
operates on a two-shift basis and has, on occasion, em-
ployed a small third shift.
Fry Foods, Inc., has been in business at its present loca-
tion on Maule Road since 1968. Its premises extend about
400 feet along Maule Road and can be entered from the
road at any point, except for a 50-75 foot portion in the
middle of the property line, which is a grassy strip running
from the plant office to the public right of way. The plant
building is about 300-350 feet long. The rest of the premises
consists of parking lots.
Until the events took place which gave rise to his case,
Respondent's production and maintenance employees were
unrepresented. In December 1976, the Steelworkers began
an organizing campaign which has been fiercely resisted.
I The corrections in the transcript are hereby noted and corrected.
The initial general organizing meeting was held by USWA
Sub-District Director, Walter Sledz, on Sunday evening,
December 19, 1976, in a garage on East Davis Street. The
meeting and the meeting place were arranged by Rowena
Gannon, a group leader whose status as a supervisor is in
dispute in this case. Sledz explained to a number of Respon-
dent's employees who attended this meeting the procedure
for organizing a union and the filing of a representation
petition. He also answered questions. A number of employ-
ees signed cards on this occasion. On December 22, the
USWA filed a representation petition. A hearing was held
on this petition in mid-January. A Decision and Direction
of Election was issued by the Regional Director on Febru-
ary 9.
Respondent learned of the December 19 meeting shortly
after it took place. On the morning following the meeting,
Day Shift Superintendent Jacci Franklin, an admitted su-
pervisor, held a meeting with day-shift employees in the
breakroom during the morning break. She told them that
Norman Fry had heard that a union meeting had taken
place and said that Fry would like to know who was for the
Union. She asked everyone who was for the Union to stand
up. Everyone in the breakroom stood up. Among those pre-
sent were Doris Kubis and Rowena Gannon. Franklin then
went on to say that Fry did not care whether or not the
Union came into the plant because he would not negotiate
with it if it did. She also said that Fry had lined up three
potential buyers for the plant and would sell the plant if the
Union did come in. These statements by Franklin are un-
controverted. Later on in December or January, Franklin
told Gannon privately that if Fry ever found out who
brought the Union in, he would fire them.
In January 1977, Gannon had a conversation with Fry
about the organizing campaign. She told Fry that she was
under the impression that Fry had been blaming her for
bringing the Union into the plant. After pressing him for an
answer, Fry said that there was a rumor going around that
Gannon was the one who had been responsible for bringing
the Union into the plant. She denied being the leader of the
union drive. She then told Fry that, during an organizing
campaign that had taken place some years before, she had
been 100 percent against the Union but this time she would
be 100 percent for it. Fry replied, "Blondie, the funny thing
is that nobody is going to win." Gannon then stated, "We
will see." Gannon also attended the R case hearing in Janu-
ary and testified at the request of the USWA.
On or about February 22, Fry and Plant Manager
Wayne H. Fogelman held a meeting with certain employ-
ees. At this meeting Fogelman did most of the talking. He
told the employees that unions might be all right for a large
plant, but Fry Foods was too small for one. He also said
that just because a union came into the plant did not mean
that employees would get a raise because they could not get
blood out of a turnip. Fogelman urged employees to attend
union meetings to get all the pros and cons.
Early in February, Shirley Whipple went to a public ac-
counting office in Tiffin owned by Dominic G. Rainieri to
get her income tax forms prepared. Rainieri is a director of
Respondent's corporation. In addition to discussing her
taxes, she told Rainieri she was looking for a job. He asked
her how she felt about unions and she replied she did not
care one way or the other. He said he would try to help her
77
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get a job at Fry Foods. Whipple told Rainieri she had been
there in January, but they were not accepting applications
until spring. Rainieri informed her that Fry was looking for
workers who were antiunion. When she returned home,
Whipple received a phone call from Norman Fry. They
talked about the possibility of employment. She was invited
to come to the plant to fill out an application blank. She
was also told that she and her friend, Sharon, could also
start work the following Monday. Shortly after this phone
conversation, Whipple received another call, this time from
Rainieri. Rainieri told her that any information she could
supply the Company on the subject of union activity would
be appreciated and it would mean extra money in her pay-
check. She asked Rainieri how she should transmit any
such information and was told that she could just write a
note and drop it in the mail. Rainieri then told her that
there were other employees in the plant who were doing the
same thing.
On February 23, at the request of Kay Fortney Tong,'
five employees received permission from Franklin to take
off work for the express purpose of going to nearby Fre-
mont for the announced purpose of giving affidavits to a
Board agent who was investigating the first of five charges
filed in these consolidated cases. They were Rowena Gan-
non, Doris Kubis, Youlanda Phelps, Mattie Taylor, and
Kay Fortney Tong.
On March 3, 1977, Respondent filed a charge against the
USWA in Case 8-CB 3347, alleging that the Union herein
had restrained and coerced the freedom of choice of Re-
spondent's employees by using company supervisor, Ro-
wena Gannon, to coerce employees into signing designation
cards. The charge was dismissed the day before the election
and did not serve to block the holding of the election.
During March, Fry gave two or three speeches to com-
pany employees concerning the election, which took place
on March 18. In these speeches, Fry spoke from a prepared
text and urged employees to reject the Union. He departed
from the text time to time and answered questions which
employees put to him. I credit the testimony of Kubis, Gan-
non, and others to the effect that, in the course of one of
these massed assembly speeches, Fry told employees that
he did not care whether the Union got in or not because he
would not negotiate with it. He also said that he would be
in charge even if the Union came in, and that if it did come
in he could close the plant doors. At one of Fry's massed
assembly speeches, he also told employees that he had suf-
fered a number of reverses in recent months, including a
death in the family and a fire in June 1976 which destroyed
a substantial portion of his plant. He asked employees to
bear with him one more year and give him a chance to
prove himself. He suggested that if, during that time, he had
not improved working conditions, including more holidays
and better pay, the employees could then vote a union in.
He also asked the employees what it was that they wanted.
Gannon spoke up and said that the employees wanted bet-
ter pay, better working conditions, and wanted to be treated
better than the "scum" that Fry was bringing into the plant
off the street. She complained that Fry was treating new
people better then he was treating the girls who had been
working for him a long time. Gannon also asked Fry if he
' Tong is often referred to under her maiden name, Barbara Kay Fortney.
would fire anyone he found responsible for bringing the
union into the plant. Fry replied by directing his remarks
personally to Gannon. He noted that she had worked at the
plant for 9 years and stated that if she continued to work as
well in the future as she had in the past. she had nothing to
worry about. He added that he had only fired two people in
the history of the Company-one for embezzlement and the
other for stealing.
As indicated before, the representation election was held
on March 18, 1977. Employee Mattie Taylor served as the
Union's observer. The Union won the election by a vote of
46 to 41. No objections to the conduct of the election were
filed so the Regional Director issued a certification of repre-
sentative on March 25, 1977. On April 4, 1977, Bob L.
Kemp, USWA staff representative, sent a letter to fry in
which he notified Fry that a bargaining committee for his
employees had been chosen consisting of Doris Kubis as
chairman and Rowena Gannon and Wilma Hoover as com-
mitteepersons. In the letter, Kemp requested that Fry sup-
ply the union certain specified information, including a se-
niority list, a list of the classifications of employees with
their rates of pay, information relating to coverage of em-
ployees by various insurance policies, and a list of fringe
benefits enjoyed by employees. He also requested a meeting
between the Union and Fry concerning the information re-
quested and stated that "'once we have met and secured this
information, we can properly negotiate a contract. Please
advise of the earliest date that we can meet." No meetings
have ever taken place between Fry and any union represen-
tatives concerning either collective bargaining or the re-
quested information. None of the requested information
was supplied to the Union until July 9, when Respondent
was directed to comply with this request by the terms of a
district court order. In fact, neither Fry nor anyone on his
behalf made any reply to this letter until early in June.
On April 5, Respondent discharged Gannon. On this
date she was called into Fry's office to meet with Fry, Bev-
erly Fry, Fogelman, and Franklin. Fry had a piece of paper
in front of him and appeared to be reading from it to Gan-
non. He told her that, for reasons beyond his control, he
had to dismiss her. He then stated as his reasons that she
left company premises on numerous occasions on union
matters, had been late to work, and had slowed down pro-
duction, whereupon she replied that Fry had not heard the
last of her. Fry then gave Gannon 15 minutes to leave the
premises.
At the representation hearing which took place in Janu-
ary 1977, Respondent contended that several group leaders
then in its employ were supervisors within the meaning of
the Act and should be excluded from voting in the election.
The Regional Director concluded differently and no appeal
to the Board was taken from his decision. The Regional
Director based his decision on the testimony of three group
leaders and one former group leader who appeared at the
hearing to contradict the testimony of Plant Manager
Wayne H. Fogelman. He found that group leaders, as they
were constituted in January 1977, had no power to hire or
fire employees, nor did they play any role in the promotion
of employees. While group leaders sometime reported work
violations to Franklin or Fogelman, it was left to higher
management to institute disciplinary action, when war-
ranted, at its own initiative and based upon its own investi-
78
FRY FOODS, INC.
gation. The role of group leaders in the processing of griev-
ances was merely that of a conduit of complaints from
employees to company management. The Regional Direc-
tor also found that the authority exercised by group leaders
in shifting employees from job to job was minimal and rou-
tine and was accomplished as directed by a production
schedule. Moreover, the Regional Director was impressed
by the fact that group leaders, while receiving a slightly
higher hourly rate and greater life insurance coverage than
regular production and maintenance employees, received
no other fringe benefits setting them apart from rank and
file employees. It also appeared that they spent most of
their working day performing the same production line
tasks which were assigned to admittedly nonsupervisory
workers. The decision, dated February 9, 1977, spelled out
all of these matters and the Regional Director's conclusions
in great detail.
Fry was disappointed by this decision and, immediately
after the election, took steps to invest group leaders with
greater indicia of supervisor authority. On April 11. Re-
spondent promoted ten group leaders' to become salaried
employees. Respondent also posted a notice to the effect
that group leaders were not officially to be referred to as
supervisors, although they still continued to perform rou-
tine production line tasks as in the past.6 At this time, group
leaders were specifically told that they had the power to
issue written warnings slips, and, as events to be recited
later indicate, they exercised this power with great liberal-
ity. I credit the testimony of Terrie Haman to the effect
that, under the new arrangement, supervisors did not con-
sult quite so often with Jacci Franklin about small produc-
tion-line decision as they previously had done. They also
began to make assignments of employees from line to line
as the need arose, whereas previously group leaders were
limited in the reassignments they made to relocating em-
ployees from place to place on a single line. There is no
dispute in this case that the supervisors, in their newly cre-
ated status, are in fact supervisors within the meaning of
the Act. The dispute is whether Respondent's action on
April 11 constituted an upgrading of positions or whether it
was merely a restatement of existing powers and duties of
group leaders.
On Saturday, April 16, a meeting of Respondent's em-
sThe 10 individuals involved in this wholesale upgrading were Naomi
Hardesty, Nancy Musser, Wilma Hoover, Thelma Puffenberger, Fneda
Beckley, Theresa Warnament, Dorothy Robinson. Terne Haman. and Linda
Nitecki. Sometime thereafter, Glenda Smith was also made a salaned super-
visor.
6 An unsigned memorandum on Fry Foods Stationery, taken from com-
pany files which were subpoenaed at the heanng, contains some insight into
the change which took place from group leader to supervisor that took place
in April 1977. While Fry denied any knowledge of the document. the docu-
ment recites matters concerning a fire in 1976 and tragic events "in my life in
the last year." all of which make in quite clear that the memo originated with
him. Before reciting in the memorandum both a cataolgue of powers on and
duties to be exercised by supervisors and an outline of the organizational
structure of the plant, Fry wrote:
It appears to me that it is economically important for us to restructure
our organization. It has simply grown too fast and we must catch up
with the growth or we simply will not be in business. The organization
plan has been considered and discussed by management over the past
two years. We fully intended to implement such a plan before the fire
but the tragic events in my life the last year made us postpone this
implementation.
ployees took place at the Fireside Restaurant in Tiffin.
About 55 people attended. A discussion of recent events
took place, particularly the failure of Respondent to reply
to Kemp's letter of April 4 and the discharge of Gannon on
April 5. The employees voted to go on strike to protest
these events.
The strike began in the morning of Monday. April 18.
Some employees gathered at the plant around as early as
midnight. At some point early in the morning of April 18,
picket lines were established and picketing commenced
with the use of "Unfair" signs. The strike lasted until June
10. About 4 o'clock' on this morning, two large delivery
trucks arrived at the plant bearing loads of onions. These
loads had been dispatched to Fry Foods from a broker in
Henderson, Texas. Drivers Wilfred A. Burrows and Wil-
liam McCoy, both employees of the East Texas Truck
Rental Company, arrived about the same time and parked
their trucks on Maule Road immediately in front of the
plant, but on the opposite side of the road from the plant.
McCoy's truck was parked in front of Burrows' truck facing
north. A number of unidentified women were milling
around and came up to the truck hollering "you can't un-
load here." Fry came out of the plant, got in the cab of
McCoy's truck, and spoke briefly with McCoy and Bur-
rows. He told the drivers he wanted the onions unloaded
the easiest and best way.
Burrows returned to his truck. He informed one of the
strikers that he had perishables on his truck, that they were
valuable, and that he had to get them unloaded or else he
would be financially responsible for their spoilage. He then
got into his truck and made preparation to back the truck
into the plant premises from the road. He testified that he
looked in his rear-view mirrors and saw about 15 people.
none of whom he could identify, standing along the oppo-
site side of the road between the truck and the plant. They
were holding hands in such a manner as to form a barrier
between Burrows and the plant. Burrows decided that he
would not attempt to back his truck into the plant and did
not do so. McCoy testified that one unidentified striker
threatened to lay down under the wheels of his truck if he
attempted to back into the plant. McCoy and Burrows then
decided to pull away and meet Fry at a location a few
blocks from the plant. They did so. Both of them informed
their principal in Texas by long-distance phone what had
happened. Burrows was instructed to proceed to Cleveland
and to deliver his onions to a different consignee. McCoy
parked his truck temporarily in a municipal parking lot and
returned to the plant later on in the same day, at which
time he unloaded it in the plant storage area without inci-
dent.
The events relating to the attempted delivery of onions by two over-the-
road truckdrivers on the morning of Apnl 18 are the subject of widely ary-
ing accounts which disagree even as to the exact time when the trucks ar-
rived and departed I conclude that the events in dispute tok place between
4 and 5 a.m. and believe that the most reliable testimony concerning certain
matters which are controverted came from officer Denny McCormack of the
Tiffin Police Department. Officer McCormack and another member of the
Tiffin Police force were hired by Fry to work during their off-duty hours to
guard the plant premises. They were present during the onion truck incident.
McCormack's professional training as an observer and his point of view.
being a witness not personally involved in the strike. together with his de-
meanor on the stand impressed me that he was the person most likely to tell
an accurate and unbiased story.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both trucks were in front of Fry's premises for an esti-
mated twenty minutes. Both drivers testified that no striker
made any threats to harm either them or their trucks and
that no one caused any damage to their property. However,
the presence of some strikers shouting and holding hands
along the berm of the road in front of the plant convinced
them not to attempt to unload during the early morning
hours. McCormack testified that he heard people yelling
when the onion trucks arrived and saw them running back
and forth. It was McCormack who asked Fry to have the
trucks moved since they were parked in the middle of
Maule Road and would block other traffic which might
approach. McCormack testified that he did not observe any
human chain or long lines of employees standing shoulder
to shoulder along the entrance to the plant. He further tes-
tified that he did not observe any conduct on the part of
strikers during the time the trucks were in the vicinity
which would warrant the making of an arrest under the
orders which he had been given by the chief of police,
which were to avoid making an arrest unless he observed
someone who threatened physical harm or observed a se-
vere risk to persons or property. Neither during nor after
the incident was he requested to make any arrests of any
strikers and he made none.
Two days later, Fry discharged the 30 discriminatees
named in paragrpah 31 of the amended consolidated com-
plaint for picket line misconduct. Of this number, there is
no eyewitness testimony that 12 of them were at the picket
line during the incident involving the delivery trucks.8
There is testimony that 6 of the 30 discriminatees named in
paragraph 31 were at or near the plant premises during the
incident. However, these six individuals 9 took the stand, de-
nied that they were present at this time, and maintained
that they did not arrive at the plant until later in the morn-
ing after the trucks had driven away. I credit their denials.
Mattie Taylor and Rowena Gannon admit that they were
present when the onion delivery trucks drove up. As to the
other II individuals named in the amended consolidated
complaint, there is testimony that they were present at the
time in question and they did not deny this testimony. Ac-
cordingly, I conclude that they were present at the time of
the incident." However, the testimony is inconclusive as to
which, if any, of these persons was part of a human chain or
line-up which prevented Burrows from backing his truck
into the plant. The only picket identified by these drivers
was Kathy Lawrence, a USWA organizer.
An hour or so after the delivery trucks left the plant area
some employees began arriving for work and other employ-
ees began arriving for picket line duty. Employee Margaret
Kessler drove her pickup truck through the picket line and,
in the course of doing so, struck picket Youlanda Phelps on
the hand and squarely hit picket Hank Conely, throwing
him on the hood of the truck and then to the grond. A
"This category includes Tina Shetzer, Rose Ridner, Mary Bodi, Linda
Runion, Betty Reinhart, Rita Caldwell, Patricia Davis, Timothy Magers,
Carol Lockard, Linda Firestone, Brends Taulbe, and Charlotte Lucius.
9 These individuals are Elizabeth Glick, Dories Kubis, Thelma Cameron,
Barbara Fortney Tong, Mary Elchert, and Youlanda Phelps.
l0 These individuals are Bonnie Schroen, Lynn Burlile, Barbara Bell, Mil-
dred Zallner, Polly Endicott, Deborah Wellborn, Ethel Long, Wanda Depi-
net, Carolyn Bloom, and Hank Conely.
crowd gathered about Conely as he was lying on the
ground. An ambulance was summoned and Conely was
taken to a hospital." One of those who had gathered about
Conely was Tong. She was walking across the parking lot in
front of the plant from the point where Conely was lying to
a point near the edge of the road when she observed a car
approaching driven by Supervisor Nancy Musser. In the
car were other employees and supervisors including Naomi
Hardesty. As the Musser car came into the parking lot,
Musser gave no warning and in fact increased her speed as
she passed through the picket line. She struck Tong just
inside the picket line and caused her to be thrown up on the
hood in spread-eagle fashion. Tong was then thrown to the
ground. Musser continued on without stopping or rendering
assistance and drove her car around to the back of the plant
where she parked. Tong was taken to a hospital and exam-
ined. Apparently she suffered no serious harm, although
this finding should not be taken a determination of the na-
ture and extent of any injuries arising from the collision."
On April 20, Fry also sent a letter to most of his employ-
ees and supervisors in which he stated:
It has come to the company's attention that some
employees feel that Rowena Gannon was discharged
because she engaged in union activities. This is not
true. This company respects the right of our employees
to engage in union activities and if any company offi-
cial interferes with this right, and it is brought to our
attention, that offical will be visited with harsh sanc-
tions.
Rowena Gannon was discharged because she par-
ticipated in a slow down, resulting in a heavy mone-
tary loss to the company. The company had no alter-
native but to discharge her for this act of disloyalty
and subversion
On April 22, Fry sent another letter to employees. It
read:
As you know by this time, the Steelworkers' Union
went out on strike at 10:00 p.m. last Sunday. We ob-
tained an injunction from the Court stopping all vio-
lent activities on the picket line. Also last week the
company continued production and we intend this
week to speed up production to the normal level.
This week we are advertising in the Advertiser Trib-
une for new employees, replacing those who are no
longer with the company. If you are interested in re-
turning to work, please contact this company immedi-
" Respondent contends on its brief that a newspaper photo, taken later on
in the day and depicting a striker using a baseball bat as a stick on which to
carry a picket sign, was of Hank Conely (or Connolly). The picture depicts
the striker, with back or side turned to photographer, in a running position.
There is no evidence in the record identifying the picket in question as Hank
Conely. I grant so much of the General Counsel's post-trial motion which
seek to strike a portion of p. 76 of Respondent's brief relating to Conely,
because the assertion in the brief as to Conely is unsupported by the record.
11 Musser did not testify, although she is still a supervisor at the plant. It
should be noted that Tong has instituted a civil suit against both Respondent
and Musser as a result of this incident. In assessing the attitude of Musser
toward strikers generally, I credit the uncontradicted testimony of employee
Julie Moon that, sometime in July, Musser was heard to say to Naomi
Hardesty and others at the plant that she would like to "knock hell out of all
the union girls and run them down the fryer."
80
FRY FOODS, INC.
ately. If you wish we will pick you up and escort you to
and from work.
If you decide not to contact the company and return
to work, we will have no recourse but to hire new re-
placements.
We ask you to make your own decision and not be
influenced by any threats by the union or third parties.
We guarantee a peaceful atmosphere.
At or about this same time, Respondent instituted an
across-the-board 10-cent-an-hour increase for all produc-
tion and maintenance employees. The exact time this in-
crease took effect is not clear. Two employees testified that
they received it just before the strike began. A stipulation in
the record indicates that the increase was instituted on
April 22, just after the strike began. In any event, it took
place after the Union was certified and did not come about
as the result of collective bargaining between Respondent
and the newly certified bargaining representative.
Beginning late in April, Respondent began to hire new
employees. It also temporarily contracted out some of its
work. On June 10, the Union terminated the strike and
made an unconditional written offer to Respondent on be-
half of all strikers to return to work. On June 13 or 14, 11
strikers were reinstated.' On June 24, the Regional Direc-
tor filed an application in the United States District Court
for the Northern District of Ohio, sitting in Toledo, for a
10(j) injunction to be directed at various allegations of the
amended complaint. A hearing on the petition took place
on 3 days late in June and early in July 1977, before U.S.
District Judge Don J. Young.' In an order dated July 8,
Judge Young ordered Respondent to reinstate Rowena
Gannon and the 30 employees who were discharged on
April 20. Respondent was further ordered to provide the
Union with the information it requested and to cease and
desist from engaging in various activities in violation of Sec-
tion 8(a)(l) of the Act. The district court did not order
Respondent to commence active collective bargaining with
the Union. The findings and opinion of the court, entered
on July 12, contain, inter alia, the following observations:
After offering evidence upon all matters in issue, the
petitioner (the Regional Director) and the union rested
their cases. The respondent and the union rested their
cases. The respondent then moved for judgment in its
favor and declined to go forward with the offering of
any evidence, but rested after making a long argument
which included the claim that it could have produced
thirty witnesses who would have conclusively proven
that there was no substance to any of the claims of the
petitioner or the union with relation to any unfair la-
bor practices on the part of the respondent.
The Court should make it clear at the outset that it
does not accept respondent's interpretation of either
the evidence that was offered or the remarks or rulings
of the Court. The closing argument of respondent's
m3 Those reinstated at this time were Betsy Albaugh, Anita Dickson, Car-
rol Drake, Mary Dyer, Mary McFemn, Nancy Price. Joan Stark. Shirley
Shatzer, Diane Steinmetz, Evelyn Wellman. and Clara Wolfe.
" The case is captioned Levine v. Fry Foods, Inc., Civil No. C-77--304, in
the United States District Court for the Northern Distnct of Ohio. At this
writing, the temporary injunction issued by Judge Young is being appealed
by Respondent to the U.S. Court of Appeals for the Sixth circuit.
counsel is so far from what the record shows that it
almost seems as if he must have been in some other
courtroom during the proceedings. Continuously
throughout the hearing, respondent's counsel, after the
Court had made rulings, would restate the Court's rul-
ings in language that usually bore little resemblance to
what the Court had said. The fact that the Court did
not attempt to resolve these differences is not to be
considered as indicating an agreement with counsel's
statements.
Norman Fry, the President of the respondent com-
pany, was called by the petitioner for examination as a
hostile witness under the Rules of Evidence. He was
examined at considerable length on what formerly
would have been called redirect examination by re-
spondent's counsel. His testimony was so evasive and
so in conflict with all the other evidence in the case as
to be worthy of little or no credence. If the respon-
dent's other thirty witnesses had been no better than
Mr. Fry, their testimony would have been far from
conclusive."
On July 18, Respondent restored to duty pursuant to the
injunction all the discriminatees who desired to return.
About 25 came back to work. Between the time of the in-
junction and the return of these employees, Respondent
held a meeting among its supervisors, company counsel,
and the employees who were working. Fry told these em-
ployees that no union was coming into the plant and that
employees would not have to pay dues. He said that no one
should talk union in the plant and that no one would tell
him how to run his plant. He also informed employees that
they would have no permanent or fixed job assignments.
Respondent's counsel informed employees at this meeting
that the other strikers would be returning to work the fol-
lowing Monday. He urged them to treat them like everyone
else, but stated that as far as he was concerned, there would
be no union at the plant for another 4 years. He added that
he thought that the union had done a dumb thing by going
to the Federal court in Toledo because the district judge at
that court was not an expert in labor matters. He added
that the judge was a liberal and that he was going to appeal
his decision. I credit the testimony of Julie Moon to the
effect that her supervisor, Naomi Hardesty, told her at or
about this point in time to avoid speaking with the union
people who were returning to work.
Just before the strikers returned to work, Fry had an-
other meeting with company supervisors. Two former su-
pervisors, Terrie Haman and Glenda Smith, credibly testi-
fied that Fry told them at this meeting that he wanted to get
rid of the strikers and instructed his supervisors to harass
them. He suggested that supervisors try to get returning
strikers angry, start arguments with them, and incite them
to curse at their supervisors.
Strikers who returned to work on July 18 were, for the
most part put back to work together on the onion line pur-
suant to Fry's instructions. Fry stated that he did not want
them to be mingling with nonstrikers. Those who had
worked elsewhere before the strike did not resume their old
positions. After July 18, all employees were faced with new
m' Fry was no more persuasive his second time on the stand.
81
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work rules or a more stringent enforcement or implementa- which took place in July 1977. There was considerable un-
tion of old work rules. Prior to the strike, female employees contradicted testimony that, before the posting in July
were required to wear hairnets which were supposed to cov- 1977, employees and supervisors occasionally engaged in
er all of their hair. It frequently occurred that an employee soliciting for a variety of purposes during working time
let her bangs hang out under her hairnet. This was now without incurring any objection from Respondent's man-
strictly forbidden, whereas previously the practice was tol- agement. Before the strike, employees occasionally used
erated. Employees were now required to wear a different working time to take up collections for birthday presents,
pair of shoes inside the plant than the shoes they wore to flowers for funerals, and the Heart Fund. Employees also
work and were required to take off the shoes in which they sold Avon products and homemade stuffed animals. On oc-
worked and put on their street shoes before leaving the casion, an employee would leave the plant to buy lunch for
plant. It frequently occurred that some employees, espe- others and would take up a collection for the food that was
cially the older and heavier ones, either leaned on the con- ordered.
veyor from time to time or rested their feet on a bar be- Late in August, Respondent instituted the practice of giv-
neath the conveyor belt. In fact, the bar in question had ing supervisors small spiral-ring notebooks in which they
become bent, presumably as a result of weight being placed were instructed to jot down any occurrences which took
upon it over time. Such acts were now strictly forbidden as place during the day. They were instructed to turn these
a safety hazard and supervisors gave warning slips to em- books into the office at the end of the week. On the onion
ployees when they observed this practice. Prior to the strike, line, manned largely by returning strikers, a daily report
Respondent observed a rule of reasonableness concerning was made of such occurrences in addition to the notations
talking among employees as they worked at a conveyor made in the supervisor's booklet. A large number of books
belt. They could and did talk while working so long as their were compiled in this fashion. Certain of these notebooks,
talking did not interrupt their work. After the strike, em- represented to contain examples of the kind of notes which
ployees were strictly forbidden from talking to those em- supervisors were keeping, are in evidence. They document
ployees who were standing directly across the conveyor belt the most insignificant trivial occurrences. Great attention is
from them. One supervisor, Thelma Puffenberger, told the devoted in these notebooks to the names of employees who
employees under her supervision that they were not allowed went to the toilet other than at normal breaktime, together
to talk at all. Supervisor Wilma Hoover'6 told employee with the times they went and the number of minutes they
Betsy Albaugh that she was not allowed to talk at all to were absent on such errands. Any conversations between
returning striker Mildred Zallner. employees and supervisors which were other than the most
In July 1977, Respondent requested his attorney to pre- prosaic and routine were recorded, along with bits of con-
pare the text of a no-solicitation rule which was then posted versations which must have been most routine. Breakdowns
in the plant. The rule which was posted read: on the line, transfers of employees from one line to the
other, and similar information were also noted. One super-
visor did some doodling on the front of her booklet and
NO SOL.ICITATION AND NO DISTRIBUTION RULE noted in writing on the booklet that she was doodling just
No employee or any other person shall be permitted to to impress upon the employees under her supervision that
solicit or promote subscriptions, pledges, memberships, she was wasting time while they were working.
or any other types of support or cooperation, individ- Early in the fall, Respondent began to make surreptitious
uals, organizations or to collect money for work pur- time studies of the employees on the onion line who were
poses on their working time. The distribution or circula- assigned to pack onions. At the end of the line, onion rings
tion of leaflets, pamphlets or other literature is roll down the conveyor belt and are taken off in bunches
considered promotion within the meaning of this para- and placed in 2-pound boxes. The boxes are then placed in
graph and is not permitted except in non-working cartons. Supervisors were instructed to record the amount
areas during non-working time. Anybody who does so of time it took employees to pack a 2-pound box of onions.
and thereby interferes with his own work or the work At first, they used the wall clock for such timing. Later,
of others will be discharged. they were issued stopwatches. The times in question were
often entered in the booklets which the supervisors kept,
Norman Fry and, as indicated hereinafter, some employees were given
reprimands for packing too slowly. At first, no specific time
President standard or target existed to measure the proper speed of a
packer. About the middle of December, Fry, after consult-
Fry contends that it always had a no-solicitation rule in ing with his supervisors, determined that 35 seconds was an
effect at the plant and had, in fact, posted such a rule. He appropriate amount of time for packing a 2-pound box.
was unable to produce a copy of the rule. Respondent does Thereafter, employees were notified that they would be
not contend that the former rule had the same text as the held to this standard.' No discussion of the establishment
above-quoted rule. Fry stated that the copy of the former of a packing standard or the appropriate length of time
rule which was posted was burned in the fire of June 1976. which should be allocated to this operation was ever dis-
No rule was posted between June 1976, and the posting cussed with the Union.
16 Hoover, an erstwhile union committee person. apparently suffered a
change of heart. After the strikers returned to work, she told a group of
employees in the lunchroom tha she would like to follow one of the strikers
home, comer her, and run her own car into the side of the employee's car.
17 It should be noted that factors other than an employee's diligence and
dexterity affect her speed in packing a box of onions. When onions run slow
on the conveyor belt, there is not as much to pack so packing time increases.
82
FRY FOODS, INC.
Perhaps the most noticeable change in working condi-
tions which existed after the strike was the frequency with
which supervisors gave out written warnings. Normally a
third written warning resulted in a discharge, although this
rule was not followed inflexibly. It is not disputed that,
before the strike, written warnings were only given out by
the plant superintendent, the assistant superintendent, or
persons above them in Respondent's hierarchy. Group
leaders did not give written warnings. After the strike, su-
pervisors (who formerly were group leaders) issued written
warnings with great frequency. It is also undisputed that
the only infraction which drew reprimands before the strike
was repeated and flagrant absenteeism. Almost without ex-
ception, prestrike reprimands were never handed out for
misconduct on the job. This policy changed radically after
the strikers returned. The General Counsel adduced de-
tailed evidence relating to the issuance of poststrike written
reprimands, many of which formed the predicate for sus-
pensions or discharges which the General Counsel contends
were discriminatory. There is also evidence in the record
that job assignments were made to returning strikers which
were particularly onerous, especially in the case of some
employees who possessed known physical infirmities that
became aggravated by fumes, smoke, or other conditions
existing in certain parts of the onion factory. When illness
arising out of plant conditions was brought to the attention
of management, Respondent was inflexible in accomodat-
ing requests for reassignments, although before the strike it
normally made allowance for allergies, personal reactions
to onion fumes, or similar physical conditions when making
job assignments. It is true that the entire plant smells of
onions, but fumes are more pungent and pronounced in
some sections than in other sections.
The record is replete with specific instances which af-
fected employees looked upon as acts of harassment of dis-
crimination by Respondent. Kubis, the bargaining commit-
tee chairman and a striker who was put back to work as a
result of the district court order, testified that, in January
1978, she received a message at the plant to pick up her
husband at his place of employment because he had be-
come ill with a sudden attack of hypertension. She left the
plant with permission, picked up her husband, and took
him home. The next day she took him to the doctor and
missed work on account of this errand. She phoned Re-
spondent's office to report that she would not be coming in
and asked what she should do to establish the fact that she
was taking her husband to see a physician. She was told by
the receptionist to bring in a doctor's certificate saying that
she was with her husband in his office.
When she returned to work, Kubis presented her supervi-
sor, Glenda Smith, with such a certificate. Smith turned it
over to the assistant superintendent, Franklin. Shortly
thereafter, Franklin gave Kubis a written warning slip for
an unexcused absence, telling her that Fry refused to accept
the doctor's certificate. Kubis, an employee of Respondent
for 7 years, testified that this was the first time Respondent
ever refused to accept a doctor's certificate from her and the
first time she had ever received a warning of any kind, ei-
ther oral or written, for an unexcused absence.
Youlanda Phelps was an active striker and the daughter
of Gannon, whose termination on April 5 is here in issue.
Phelps returned to work on July 18 pursuant to the District
Court order. Shortly after her return to work, she was
caught up in several confrontations with Supervisor Terrie
Haman. On or about July 25, Phelps was accused by Ha-
man of calling employee Margaret Kessler a scab. Haman
gave her a warning slip for making this remark. Phelps de-
nied making it. Haman told her that she really did not un-
derstand what "scab" meant. Phelps replied that the federal
judge (presumably Judge Young) said it referred to anyone
who walked or drove through a picket line. Fry walked up
during the conversation, and Phelps turned to him and
added, "I guess that means you are a scab, too." Shortly
thereafter, on another occasion, Phelps began to cough re-
peatedly. Haman told her to shut up and start working,
adding that if employees did not act like a "bunch of
damned kids," they could get their work done. Phelps re-
plied by calling Haman a "suck ass." For this remark she
received a second warning slip and a 2-day suspension. Ear-
ly in October, Supervisor Hardesty gave Phelps a written
warning slip for working too slow and for letting good on-
ions fall off the conveyor. This slip noted three instances
during which Phelps was timed while packing onions.
In the middle of October, Phelps received a third written
warning slip and a 3-day suspension to go with it. While
Phelps was speaking with Tong concerning a warning slip
that Tong had received. Supervisor Musser came over and
screamed at them to shut their "damned mouths" and work
faster. Phelps told her to "stick it."
One of the least desirable assignments, in the opinion of
some employees, was the batter fried onion line. This line is
located in a recessed or semienclosed section of the plant.
Part of this operation involves frying breaded onions in
deep fat as they come down the conveyor and then remov-
ing them from the fryer to be cooled and packed. For var-
ious reasons including overheating, the fryer often smokes
up the entire area with hot grease fumes which become
mixed with the scent of onions that permeates the entire
plant. Returning striker Mary McFerrin' 8 worked on the so-
called garbage line before the strike and rarely worked the
batter fried line because management knew she could not
stand the smoke. On the garbage line, broken onion rings
and other scraps unsuitable for packing are removed by
hand from the conveyor. When McFerrin returned from
the strike, she was regularly and frequently placed on the
batter fried onion line, a job that was generally reserved for
returning strikers. On several occasions she was overcome
by the smoke on this line and was sent home. She consulted
a doctor about her reaction to the smoke, and he advised
her to quit her job. However, she declined to do so. McFer-
rin also testified that, on one occasion in the middle of July,
Supervisor Puffenberger gave her a written warning slip for
talking with Shirley Shatzer.
Returning striker Tong received several written warnings
during the summer and fall of 1977 and was terminated on
December 5, 1977. On October 6, Tong was given a written
warning by Supervisor Smith for taking too long to pack
onions. She was timed at 60, 52, and 60 seconds, respec-
tively, packing for three different boxes. When asked by
Smith to sign the warning slip, she simply wrote on the slip:
'a McFerrin was one of the strikers who was voluntanly offered reinstate-
ment on or about June 14.
83
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Shove it up your scabby nose." A few minutes later, Smith
gave Tong a second warning slip for calling a supervisor a
scab. Tong wrote on this slip: "You can still stick it up your
scabby nose." On October 10, she was timed at 1 minute, 1-
1/2 minutes, and I minute, respectively, in packing three
boxes of onions and was given another warning slip and a
3-day suspension. On November 22, Puffenberger gave
Tong a warning slip for taking one minute to pack a box of
onions. On this slip Tong wrote, "Cram it, scab." Some
time before Tong was discharged, Smith was heard to say
to a group of employees, "We have Kay down. We have
only a couple of more to go." Hardesty, who was present,
laughed at this statement. On December 5, Tong was given
a final warning slip for taking 59, 60, and 61 seconds, re-
spectively, to pack a box of onions and was told she was
terminated for this reason.
Mattie Taylor, who started working for Respondent in
1970, was promoted to group leader in 1974 in charge of the
mushroom or extruded onion lines. For this promotion she
received a 20-cent or 30-cent-an-hour raise. On one occa-
sion in 1975, Fry saw that she had become very red in the
face while working on the extruded onion line so he took
her off the line and transferred her to the processing room
where onion fumes are at a minimum. While this transfer
meant that she was no longer a group leader, she received
no reduction in pay and continued to work at this location.
Taylor attended the R case hearing in January 1977, and
testified in support of the Union's contention that group
leaders were not supervisors. At the same hearing, Beverly
Fry, testifying in support of the Employer's position that
group leaders were in fact supervisors, stated in the course
of her testimony that Taylor was not a group leader but was
a regular production worker. A week or so later, Taylor
questioned Beverly Fry concerning her statement and was
told that she had been demoted from the position of group
leader to production worker at the request of Union Repre-
sentative Sledz so that she could vote in the forthcoming
election. Sledz credibly denied making this statement and
Beverly Fry did not testify at all. Taylor served as the
Union's observer at the election. Shortly after the election,
but before the strike, she was informed that she was receiv-
ing a belated reduction in pay which went with her demo-
tion from group leader to production worker. As a result,
she lost 35 cents an hour in wages, beginning April 8. The
Union was not consulted about this reduction.
Before the strike, Taylor rarely worked on the so-called
garbage line because the sharp odor of freshly cut onions in
the vicinity of the garbage line made her sick and occasion-
ally made her vomit. After she returned from the strike
under the court order, she was frequently required to work
the garbage line and to bend over the freshly cut onions for
2 hours at a time. Occasionally this assignment caused her
to vomit. On September 20, 1977, she complained to Fry
about the assignment and the effect it had on her. Fry's
reply was that nothing could be done about it, adding that
the girls got themselves into this problem and they would
have to work themselves out of it. He also told her that he
would not accept a doctor's slip which limited her duty to
jobs other than the garbage line, and that if she presented
one to him he would fire her. Her reply was that she would
stand over the conveyor on the garbage line until she fell
over because she would not give him an excuse for firing
her.
Taylor is middle aged and quite heavy. In times past, it
was her practice on occasion to lean on the conveyor to
support her weight or to place one of her feet on the bottom
rung to relieve the weight on her leg. On occasion, when she
was working the mushroom line, she would pack while sit-
ting down. She was not permitted to continue this practice
after returning from the strike. On occasion, supervisors
would follow her and watch her when she went to the bath-
room. On July 26 she received a written warning slip from
Supervisor Haman for packing onions with one hand. On
October 13, she received a second written warning slip for
slowness in packing onions. On February 8, 1978, she re-
ceived another warning slip, this time from Franklin, for
taking too long to pack onions. On this occasion, she also
was given a 3-day suspension.
Gannon returned to work under the district court order
along with most of the 30 employees who were discharged
on April 20. She was offered a salaried position when she
returned on the same level as that of Franklin. She declined
the offer and began to work as a production worker. She
was rotated from job to job. On August 2, she received a
warning from Smith for taking packed boxes of onions off
the end of the conveyor and setting them down, and for
shoving onions off the conveyor. Gannon refused to sign
the warning slip that was presented to her. She denied to
Smith that she had done what was written on the warning
slips. On August 23, she received a second warning slip, this
time from Hardesty, for pulling onions off the line onto
trays when they were coming too fast to be boxed. She
protested this warning slip and complained to Franklin that
it was a frameup. Haman told her to shut her mouth and
Gannon replied in kind. Gannon received a 3-day suspen-
sion as a result of this warning. On October 11, when Ha-
man had given Tong a warning slip, Tong and Gannon
were discussing the matter. Musser arrived on the scene and
told them to shut their "damn mouths" and pack onions.
Gannon replied in kind and was given a written warning
for telling a supervisor to shut up. However, she was not
discharged.
Thelma Cameron had been employed by Respondent for
about 6 years. She worked in the backroom and was mak-
ing $2.85 per hour when she was injured on February 26.19
She did not work between that date and the strike and
participated in the strike. In April, she was notified in writ-
ing that she was being fired for picket line misconduct. She
was restored to duty by the district court order and re-
turned to work on July 18. When she came back, she had a
doctor's slip stating "limited duty" and gave it to Respon-
dent. She was under instructions from her physician not to
lift anything in excess of 25 pounds. In her former position,
she was called upon from time to time to lift 50-pound bags
of onions. When she came back to work, she was placed on
the onion line at a wage of $2.65 per hour. When she ques-
t9 Cameron testified that, in 1974, she was given a 30-cent-per-hour in-
crease and made a group leader on the onion line. About 2 weeks later, she
was asked to return to the backroom as a production worker and she agreed
to do so if she did not receive a cut in pay. From that time until July 18,
1977, she received, for her services as a production worker, a rate which was
the equivalent of what most group leaders were being paid.
84
FRY FOODS, INC.
tioned Fry as to why she received a cut in pay, he said that
it was because she could no longer do the same job for
which she had received a higher rate.
Shortly after she returned to work, Cameron was given a
reprimand by Hardesty for throwing good onions rings on
the floor. On November 9, Supervisor Smith gave her a
written reprimand for taking 51 seconds to pack a box of
onions. On December 17, she was given another written
warning for packing too slowly.
Between July 6 and October 13, Carrol Drake, who re-
turned to work on June 14, received three warning slips.
The infractions noted were a failure to call in when being
absent, taking 52 seconds to pack a box of onions, and
again slowness in packing. She had never received a written
warning before the strike. She testified that, before the
strike, she was assigned to work the batter fried onion line
perhaps twice a week and about 2 hours per assignment.
After the strike, it frequently occurred that she worked that
line 6 consecutive hours without rotation. Other returning
strikers testified without contradiction to the same effect.
She complained that the area where the line was located
was frequently very disagreeable because the onion fumes
became mixed with the smoke from hot grease. Eventually
she quit her job.
Charlotte Lucius began working for Respondent in 1974.
She was discharged on April 20 for alleged picket line mis-
conduct and returned to work on July 18 pursuant to the
district court order. In the next 3 months she received three
written warning slips. Late in August, Hardesty gave her
one for lateness and absenteeism. She asserted that she was
late to work because of difficult driving conditions brought
on by fog. In September, Smith gave her one for 3 days'
absence, and, in October, gave her another warning slip
with a 3-day suspension for not making an attempt to take
onions off the conveyor before they fell on the floor. In
November, she quit.
Shirley Shatzer was a striker who was offered and ac-
cepted reinstatement on June 14. Before the strike, she
worked mostly on the mushroom line and worked only oc-
casionally on the batter fried onion line. She was frequently
assigned to the batter fried line and became bothered by the
smoke and fumes. After suffering a fit of coughing on the
line, she asked Musser why employees on the batter fried
onion line were not allowed to change off with other em-
ployees. Musser's reply was that this was a new rule. Shat-
zer consulted a doctor concerning the smoke fumes and
their effect on her. The doctor gave her a slip indicating
that she should not be assigned to work in the vicinity of
the smoke. When she presented it to Franklin, Franklin
simply told her that there was no way that she could be
transferred to another job. Shatzer stayed on until she got
her vacation and then quit.
Susan Neikirk began working for Respondent in 1972. In
January 1977, she took a leave of absence to undergo sur-
gery. She was under the care of two physicians, Dr. Lahy in
Tiffin and Dr. Schecter in Toledo. On April 11, Dr. Lahy
gave her a release to return to work. On April 13, Dr.
Schecter gave her a similar release, but she did not receive it
in the mail until after the strike began. She did not attempt
to return to work before the strike. She engaged in the strike
and took part in the picket line. just before the strike ended
Neikirk attempted to return to work. Respondent thereafter
sent Neikirk a letter dated June 21 which said that "This is
to inform you that we accept your resignation." In fact,
Neikirk had not resigned. She went to the plant to inquire
about the meaning of the letter. She objected to the lan-
guage in the letter, protesting that she had not resigned.
Beverly Fry told her that she was being treated as if she
resigned because she had not returned to work after receiv-
ing Dr. Lahy's April 11 release. She asked to go to work,
but her request was declined.
Wanda Depinet started to work for Respondent in Janu-
ary 1977, and spent most of her time before the strike cut-
ting mushrooms on the mushroom line. She went on strike,
was discharged on April 20. and returned to work on Jul
18 under the district court order. She was frequently criti-
cized by Supervisor Puffenberger for not cutting mush-
rooms fast enough and in a proper manner. On one such
occasion, Depinet told Puffenberger to shut her '"gd mouth
and get the hell out" of there. On November II11. Puffen-
berger suspended Depinet for 3 days. on which occasion
Depinet told Puffenberger to take her warning slip and
"shove it." On December 22, Smith gave Depinet a third
and final warning slip and terminated her tiar taking 51, 50.
and 57 seconds, respectively, to pack boxes of onions.
Mary Jane Bodi began working for Respondent in 1973.
Before the strike, she packed fish on the fish line. She was
discharged by Respondent on April 20. She was reinstated
pursuant to the district court order. When she returned
from the strike, the Company had discontinued packing fish
so Bodi was put to work on the onion line sorting freshly
cut raw onions. On Tuesday of the week she went back to
work, she had to go home because of illness induced by
onion fumes. Later on that week she went to a doctor and
got a shot for chronic asthma. When she returned to work
she again became sick because of the onion fumes and went
back to the doctor. He said that if she did not improve he
would send her to a specialist. Eventually her physician told
her not to go back to work and referred her to Dr. Hutchin-
son, a specialist. The latter told her she had a growth in her
nose and also said that she was allergic to raw onions. He
wrote this diagnosis on a slip along with a request or sug-
gestion that she be kept away from raw onions while on the
job. Bodi went back to the plant after being off because of
this ailment and presented this slip to Beverly Fry. Fry told
her that she thought she had quit and asked her if she had
received a letter from the Company concerning her status.
Bodi then went to talk with Norman Fry, who asked her
why she let this doctor restrict her so much. Bodi replied
that the doctor simply did not want her to come into con-
tact with onions. Fry replied that everyone in the packing
room comes in contact with onions and told her that he had
no work on the fish line because it was discontinued. Two
days later, Bodi got a letter saying that the Company ac-
cepted her resignation. In fact she had not resigned. The
Company stated that it had a 3-day rule, according to
which a person is deemed to be a quit if she is off for that
period of time without notifying the Company.
Tina Shetzer returned to the plant after the strike. When
she returned, she was pregnant and the smell of the onions
made her dizzy. Moreover, the passing of the conveyor belt
over a shiny backdrop made her ill. She was assigned to
work the garbage line. She consulted a doctor and obtained
a medical slip describing her condition which she presented
85
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Supervisor Carol Handley. The slip stated that there was
a medical basis to explain "a vertigeas functional reaction
in relation to visual stimulus of motion of the garbage line
conveyor belt." It also said that a less exposed and shorter
time on a conveyor line would not have the same effect.
Handley took the slip into the office and, upon her return to
the plant, told Shetzer that she would have to leave the
plant because the medical slip was unacceptable. Shetzer
went to see the doctor a second time and got a second
medical slip dated September I, which is in evidence. The
second slip indicated that Shetzer was "not able for medical
reasons to work on shiny conveyor belt. Only job she is
clearly disabled on." When she brought the second note to
the plant, Handley gave it to Philip Fry. She returned and
told Shetzer that the note was still not acceptable and that,
to be acceptable, it had to have "no restrictions" written on
it. Shetzer testified that she did not know whether she could
have filled any job on the onion line because of the adverse
physical reaction which it brough about.
C. Analysis and Conclusions
1. The relitigation question
A legal question which runs like a common thread
through various aspects of this case is the extent to which I
may or must defer to determinations made in a related, but
unconsolidated representation case, and the extent to which
I may or must preclude Respondent in this case from liti-
gating issues which it either lost or failed to take up at an
earlier stage in this dispute. Two regulations of the Board
are principally at issue, one of which states that an em-
ployer involved in a representation case must file timely
objections to the conduct of an election or be barred there-
after from raising such matters.?0 The other states that an
employer who fails to appeal to the Board from an adverse
determination of the Regional Director in a representation
case is precluded from litigating the same question in a
subsequent unfair labor practice case.?' The two issues are
similar in character, but are not quite the same.
20 Sec. 102.69 of' the Board's Rules and Regulations provides as follows:
Election procedure: tally of ballots; objections; certification by re-
gional director: report on challenged ballots; report on objections; ex-
ceptions: action of the Board; hearing.-(a) ... Within 5 days after the
tally of ballots has been furnished, any party may file with the regional
director an original and three copies of objections to the conduct of the
election or conduct affecting the results of the election, which shall con-
tain a short statement of the reasons therefor. Such filing must be timel3
whether or not the challenged ballots are sufficient in number to affect
the results of the election. copies of such objections shall immediately be
served on the other parties by the party filing them, and a statement of
service shall be made. The party filing objections shall, upon request,
promptly furnish to the regional director the evidence available to it to
support the objections.
(b) If no objections are filed within the time set forth above ... the
regional director shall forthwith issue to the parties a certification of the
results of the election, including certification of representatives where
appropriate with the same force and effect as if issued by the Board, and
the proceeding will thereupon be closed. [Emphasis supplied.l
2 Sec. 102.67(f) of the Board's Rules and Regulations provides as follows:
The parties may, at any time, waive their nght to request review. Fail-
ure to request review shall preclude such parties from relitigating, in any
realted subsequent unfair labor practice proceeding, any issue which
was, or could have been, raised in the representation proceeding. Denial
of a request for review shall constitute an affirmance of the regional
director's action which shall also preclude relitigating any such issues in
any related subsequent unfair labor practice proceeding.
In attacking the Union's status as a bargaining represent-
ative, Respondent has cited a number of cases in which
supervisory solicitation of union cards served to taint the
cards with an element of coercion so as to render them
invalid as a basis for establishing the identity of the bar-
gaining representative. These cases are all wholly inappo-
site to this case because the standing of the Union as bar-
gaining representative herein is not based upon designation
cards, but upon a certification issued by the Regional Di-
rector following the holding of a representation election
among Respondent's employees. Respondent did not chal-
lenge the sufficiency of the 30 percent showing of interest
which the Union filed with the Regional Director in De-
cember 1976 to establish the basis of the Regional Direc-
tor's right to hold the election. Indeed, had the employer
levelled such a challenge at the showing of interest, either
because the solicitation of cards was tainted by supervisory
coercion or for any other reason, the Regional Director's
determination would be unreviewable in subsequent litiga-
tion. N.L.R.B. v. P.A.F. Equipment Co., Inc., 528 F.2d 286
(10th Cir. 1976). In this case, no such complaint was made
when the representation petition was filed or when the elec-
tion was held.
Nor did Respondent file timely objections within 5 days
of the March 18 election, claiming that supervisory coer-
cion affected the outcome of the election. Normally, the
failure to file such objections, as required by the Board's
Rules, precludes a Respondent from litigating the question
in a subsequent proceeding. N.L.R.B. v. Conlon Bros. Mfg.
Co., 187 F.2d. 329 (7th Cir. 1951). In the present case, Re-
spondent filed no such objections so the Regional Director
had no opportunity to pass upon their merits before issuing
a certification. Hence, there was not even sufficient compli-
ance with the Rules to bring into play the rule followed by
the Sixth Circuit in Keco Industries, Inc., v. N.L.R.B., 458
F.2d. 1356 (6th Cir. 1972)., which held that the failure of an
employer to appeal to the Board a Regional Director's ad-
verse determination of objections to the conduct of an elec-
tion precludes a review of those objections in a subsequent
unfair labor practice case. Respondent in this case seeks to
excuse its failure to exhaust these well-recognized and com-
monplace administrative remedies because, in its judgment,
it would have been futile to do so. Indeed, in light of well-
settled law having a contrary import, it is futile for a re-
spondent to fail to do so and then attempt to obtain relief in
some other proceeding. In any event, it had no right to
presume that timely objections would not be properly con-
sidered and no right to foreclose the Regional Director and
the Board from performing the basic functions assigned to
them by statute and regulation in representation cases. Re-
spondent did file against the Union herein an 8(b)(1)(A)
charge, claiming that its own supervisors were intimidating
and coercing employees. The charge was filed about 2
weeks before the date on which the election was scheduled
to take place. Unless quickly resolved, the pendency of this
charge would have had the effect of preventing the election
from taking place. Respondent failed to present to the Di-
rector sufficient evidence to warrant the issuance of a com-
plaint, so the charge was dismissed and the election pro-
ceeded in due course. The charge filed at that time involves
essentially the same allegations which Respondent wished
86
FRY FOODS. INC.
to pursue in this proceeding. Respondent claims that it was
newly discovered evidence, but it makes no showing as to
why such evidence, all of it involving preelection conduct,
was not available when the filing of objections was timely
or why, with due diligence, such evidence could not have
been uncovered. It apparently had evidence to file an
8(b)(I)(A) charge. There is no excuse for not filing it in the
representation case if it was authentic or relevant. The re-
quirement for showing that evidence could not have been
discovered with the exercise of due diligence is the standard
to be applied when a claim of newly discovered evidence is
raised, and it is the standard which Respondent has simply
failed to meet in this case. Dock Builders, Shorers. House
Movers, Pile Drivers and Foundation Workers, Local Union
No. 1456, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO v. N.L.R.B., 505 F.2d. 310 (D.C. Cir.
1974); Heritage Nursing Center, Inc., 207 N.L.R.B. 826
(1973); Union Electric Company, 219 NLRB 1081 (1975):
Knapp-Sherill Company, 201 NLRB 223 (1973). In light of
these omissions, Respondent cannot be heard to say in this
proceeding that the certification of the Union which the
Regional Director made on March 25. 1977. is invalid, and
any evidence proffered for that purpose is immaterial to
any issue properly litigable in this proceeding. Accordingly,
the Union herein must be deemed to be the duly certified
bargaining agent of all of Respondent's production and
maintenance employees on and after March 25. 1977.
The General Counsel objected at the hearing to a rede-
termination of the supervisory status of Rowena Gannon or
any of the group supervisors whose status was in issue in
the representation case. These questions were litigated in
that proceeding and the Regional Director, in his decision
dated February 9, 1977, concluded that group leaders were
not supervisors and permitted them to vote in the March 18
election. While Gannon's status was not individually ad-
dressed in that decision, it was implicitly covered by the
finding as to the group to which she belonged. Respondent
herein did not appeal that determination to the Board in
the course of the representation proceeding. as required by
the Board's Rules and Regulations. so the General Counsel
urges that it is now barred from relitigating supervisory
questions in this case.
Both the Board and some courts have taken a different
position with respect to relitigating matters in a complaint
case which bear upon certification of the bargaining agent
than they follow with respect to relitigating question which
must be resolved in determining violations of other sections
of the Act. The District of Columbia Circuit set forth the
rationale behind permitting relitigation of supervisory is-
sues bearing upon an 8(a)(1) allegation in Amalgamated
Clothing Workers of America,, FL-CIO Sagalmore Shirt
CompanY v. N.L.R.B., 365 F.2d 898, 904 (1966):
In our opinion, the Board's rule against relitigation
"in a subsequent unfair labor practice proceeding"
does not give an employer sufficient notice that his fil-
ure to pursue all of his remedies in the representation
proceeding means he will be disabled, regardless of the
context of the subsequent proceeding, from challeng-
ing each and every issue "which was, or could have
been, raised in the representation proceeding." A more
natural reading of the rule, in the absence of express
provision to the contrary, is one which precludes relit-
igation only in a "related" subsequent unfair labor
practice proceeding, construed in accordance with the
doctrine announced in Niederriter a few months prior
to the new regulation. Where a company is charged
with refusal to bargain with a union certified after elec-
tion, the proceeding is sufficiently "related" to the rep-
resentation proceeding to preclude relitigation of such
common issues as the scope of the appropriate unit
and employees therein. Where. however, as in this
case, the part of the charge involved in the relitigation
issue is not refusal to bargain, but rather interference
with rights of organization, the proceedings are not so
related as to foreclose presentation to the Board of the
underlying issues.
The Board recently followed this rationale in Scrv-l.-Storcls,
Inc., 234 NLRB 1143 (1978), and permitted the relitigation
of a supervisory issue in a subsequent complaint case.
Therefore, I have done so in this case and will proceed to
determine the supervisory issue herein, according the deci-
sion of the Regional irector a "persuasive relevance, a
kind of administrative comity."
2. The supervisory status of group leaders before April I 1
and the status of Rowena Gannon
In the Regional Director's decision in Case 8 R(' 10738,
the Regional Director credited the testimony of three of
Respondent's employees who testified that group leaders
did not exercise the power to discipline employees and to
recommend their discharge or promotion. The credited tes-
timony in the record of this case is to the same effect. T'he
Regional Director further found that group leaders plaxed
no role in the hiring, discharging, or promoting of employ-
ees, and that any complaints voiced by group leaders con-
cerning the violation by employees of the Compan's work
rules were the subject of independent investigation by ad-
mitted supervisors (presumably Franklin). In the matter of
grievances, group leaders acted only as conduits of com-
plaints voiced by employees to Respondent's management.
Until the promotion of group leaders to salaried supervi-
sory status, group leaders could transfer or rotate employ-
ees from one position on the particular assembl 3 line cohere
they worked to another position. After the promotion. thex
transferred employees from line to line as the need arose.
Group leaders were hourly rated and received from 20
cents to 40 cents per hour more than rank-and-file emplo3-
ees. Of great significance is the fact that group leaders did
manual work on the assembly line along with admittedly
unit employees and spent most of their workino daxs in
such effort.
In its brief in this case, Respondent argues that a finding
that group leaders were not supervisors would mean that
Respondent would have been left with a distorted ratio of
supervisors to employees in violation of canons of good
management and a number of Board precedents cited
therein. The record does not contain a precise breakdown
between the day and night shift. It does reflect that. on both
shifts, the daily complement of employees varied widely
with the supply of onions and mushrooms and the number
of orders to be filled. On the night shift Carole H-lndell was
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in charge of the operation. On the day shift, Respondent
had at least four admitted supervisors: Jacci Franklin, Bev-
erly Fry, Wayne Fogelman, and Norman Fry himself. Fry
testified that he was frequently in the plant and had worked
on the assembly line himself on occasion. This number, in
and of itself; was sufficient to avoid the extreme proportions
found in the cases cited in Respondent's brief, especially in
a unit such as this one which is composed of unskilled em-
ployees performing routine assembly-line functions. The
fact that group leaders spent most of their time doing bar-
gaining unit work indicates clearly that there was no lack of
supervisory oversight sufficient to warrant a finding of su-
pervisory status based upon that factor alone. Accordingly,
I conclude that before April II, group leaders were, as
found by the Regional Director. employees within the
meaning of the Act. Westlake United Corporation, 236
NLRB 1114 (1978).
On April 11, Respondent posted a notice to the effect
that several named individuals were being made supervi-
sors. In the notice, they were held out to other employees as
being supervisors. This promotion resulted in changing
them from hourly rated to salaried employees who were
then entitled to enjoy some additional insurance benefits.
The individuals in question began to attend supervisory
meetings and were given the right to issue written repri-
mands to employees for job infractions, something which
group leaders never did. Respondent's President Fry testi-
fied that he made these changes in order to insure that the
class of persons in question were supervisors and not unit
employees, as found by the Regional Director. Accordingly,
I conclude that the persons so designated by Respondent as
supervisors do in fact meet the statutory criteria set forth in
Section 2(1 1) of the Act.
Before her discharge on April 5, Rowena Gannon served
as a group leader on the onion line. Two other group lead-
ers were in some respects subordinate to her. Gannon re-
ported directly to Franklin. Gannon was essentially a
"pusher" who worked on the onion line as well as giving
routine directions to others concerning its operation. With
scant exception. her duties fell within the description of a
group leader's duties as set forth above. On one occasion,
when Jacci Franklin was forced to be absent because of her
father's death, Gannon filled in for Franklin and, during
that period of time, exercised plainly supervisory functions.
When Flanklin returned to work, Gannon resumed her for-
mer duties and functions. The record is unclear as to when
this took place or the length of time she substituted for
Franklin. It is apparent that Franklin was off for a rela-
tively short period on this occasion and that the assumption
of her duties by Gannon took place only once. It was dur-
ing this period that Gannon initialed timecards of tardy
employees and then only for the purpose of verifying their
presence in the plant, not for the purpose of excusing their
lateness. While, under some circumstances, a recurring
practice of elevating a unit employee to a supervisory post
when the supervisor is absent has been held to vest the
employee with indicia of supervisory authority which per-
sists when he or she returns to the bargaining unit, a single
instance of exercising supervisory responsibility during an
absence for a reason not likely to occur again is normally
not sufficient to warrant the conclusion that the employee
in question is a supervisor. Olka-lnn d/bla Holiday Inn of
Henryetta, 198 NLRB 410 (1972). In light of these consider-
ations, I conclude that Rowena Gannon was not a supervi-
sor and was entitled to the protection of the Act prior to
and at the time of her discharge on April 5,22
3. The mass upgrading of unit employees on April 11
It has long been held that the subcontracting of bargain-
ing unit work to persons or concerns outside the bargaining
unit, without notification to the bargaining agent and af-
fording the bargaining agent an opportunity to negotiate
concerning this decision is a violation of the Act because it
amounts to unilateral action, taken in derrogation of the
Union's status as bargaining agent, which adversely affects
the availability of work and the bargaining position of rep-
resented employees. Fibreboard Paper Products Corp. v.
N.L.R.B., 379 U.S. 203 (1964). One refinement growing out
of the Fibreboard decision is that a unilateral promotion of
bargaining unit employees to supervisory positions, without
bargaining with the Union concerning the change, has been
held to violate Section 8(a)(5) of the Act even though sub-
contracting is not involved where newly created supervisors
continue to perform unit work because such a change also
has the effect of eliminating bargaining unit positions and
transferring unit work to nonunit employees. Oil, Chemical,
and Atomic Workers International Union, AFL-CIO [Kan-
sas Refined Helium Company] v. N.L.R.B., 547 F.2d 575
(C.A.D.C. 1977); Tesoro Petroleum Corporation, 192 NLRB
354 (1971); Kendall College, 228 NLRB 1083 (1977). This is
not to say that an employer is inhibited by the Act in his
selection of individuals for supervisory positions. It is to say
that the reclassification of a position from a bargaining unit
job to a nonunit job is a mandatory subject of collective
bargaining if the reclassification has an impact on bargain-
ing unit work. Here the impact is quite clear because the
new supervisors in question continued to do assembly-line
work.
In the instant case the mass promotions which took place
on April II (and thereafter in the case of Glenda Smith)
transformed 10 bargaining-unit jobs into nonunit jobs by
investing the incumbents in those positions with sufficient
status to make them supervisors. Fry candidly testified that
he invested them with supervisory authority to insure that
they would not be unit employees, as the Regional Director
had found them to be in his Decision and Direction of
Election. In a memo contained in Respondent's file, Fry
wrote that it is "economically important for us to restruc-
ture our organization." There is no suggestion that Respon-
dent bargained, or even offered to bargain, about this or
any other change which it effected in the plant after the
Union was certified. Accordingly, I conclude that, by uni-
laterally promoting a class of group leaders to the positions
of supervisor, thereby transferring unit work from repre-
sented employees to nonunit employees, Respondent herein
violated Section 8(a)(l) and (5) of the Act.
12 When Gannon returned to work on July 18 pursuant to an order of the
district court, she accepted a bargaining unit position and has retained a unit
position since that time.
88
FRY FOODS, INC.
4. The discharge of Rowena Gannon
There is little doubt that Rowena Gannon was one of the
Union's principal in-house proponents and that Respon-
dent knew it. It so stated in the 8(b)(1)(A) charge which
Respondent filed against the Union on or about March 4.
She arranged for the first union meeting which took place
December 19. When, on the following day. Franklin asked
day-shift employees to indicate their union sentiments by
standing up, Gannon was among those who stood up.
Franklin later told Gannon that if Fry ever found out who
brought the union into the plant, he would fire the individ-
ual. In a conversation with Fry which took place about a
month later, Fry admitted to her that she was rumored to
be the one who brought the Union into the plant. At this
time she told Fry that she was 100 percent for the Union
even though she opposed an organizing campaign which
had taken place at a previous time. Fry told her, "Blondie,
the funny thing is that nobody is going to win." Gannon
attended the representation case hearing on behalf of the
Union. It also came to Respondent's attention early in Feb-
ruary that Gannon was going to Fremont to give a state-
ment to a Board agent.
During the couse of a preelection speech which Fry gave
to employees in early or mid-March. Gannon again exhib-
ited her union sentiments by answering a question Fry
posed to employees asking what they wanted that prompted
them to seek union support. Her reply was that employees
were tired of being treated worse than the "scum" that Fry
was hiring off the street. During another massed assembly
speech, Gannon asked Fry if he would fire anyone he found
responsible for bringing the Union into the plant. While the
question was a general one, the answer was not. Fry told
her in front of all of the employees who had gathered to
listen to him that Gannon had worked at the plant for 9
years, had worked well, and if she continued to work as
well as she had in the past, she had nothing to worry about.
The election took place on March 18 and the Union was
certified on March 25. As noted above, the Union wrote to
Respondent on April 4 a preliminary letter requesting infor-
mation designed to assist it in the preparation of bargaining
demands. In this letter, Gannon was named as one of three
employees who had been selected to serve on the in-plant
bargaining committee. On April 5, Gannon was discharged.
Her discharge was personally accomplished by Fry who
called her into a meeting in his office with three other super-
visors. Reading from a paper which he had prepared, Fry
told Gannon she was being discharged "for reasons beyond
his control." The reasons asserted were the fact she left
company premises on numerous occasions on union busi-
ness, had been late to work, and had slowed production. At
the conclusion of his remarks, Gannon replied that Fry had
not heard the last of her.
There were only two occasions in the record when Gan-
non ever left the company premises on union business. In
January 1977, she attended the R case hearing. In Febru-
ary, she sought and obtained permission to leave in order to
meet with a Board agent who was taking statements in a C
case investigation. The record is silent as to whether she
was formally excused from work to attend the R case hear-
ing. In any event, she had a right under the Act to attend
and to testify at this hearing, and Respondent is forbidden
by law from preventing her from attending. There is no
substantial evidence in the record that she had been coming
late to work. Respondent's main thrust in this proceeding
was to contend that she was in fact discharged for partici-
pating in and directing a production slowdown during the
first 3 months of 1977. I regard the reasons asserted as pre-
textual.
Respondent introduced into evidence a prodigious
amount of company records in support of its contention
that there was a slowdown, and sifted the facts in those
documents into the record in this case through the testi-
mony of a hired witness who had prepared some misleading
graphs. In fact, production varies from day to day and, on
the onion line in early 1977 where Gannon was work
leader, production followed such fluctuations. Overall, it
was slightly lower per person during this period than other
periods and markedly lower in total volume. We have no
evidence as to whether the night-shift onion line and the
other product lines suffered a similar decline in per capita
productivity. Gannon complained that the more experi-
enced employees were constantly being transferred to other
lines during this period of time by Franklin and that her
line was operating with less competent employees than at
other times. There was also a seasonal shortage of raw on-
ions at this time. There is testimony that Gannon did not
holler at employees during this period as much as she usu-
ally did although, with a shortage of available onions, there
was little to holler about. From these facts, Respondent
seeks to have an inference drawn that there was a deliberate
slowdown on the onion line and that Gannon organized it.
I decline to do so. Fry told Gannon late in the course of the
so-called slowdown, and within a few weeks of her dis-
charge, that if she kept on working the way she had been
working, she would have no problem. This statement is a
far cry from the conclusion which Respondent seeks to
have the Board draw concerning a discharge that took
place two or three weeks thereafter. This flimsy excuse is
proffered against a background of intense antiunion ani-
mus, 8(a)(l) conduct directed at the discriminatee. a threat
to discharge the leader of the organizing campaign, and
company knowledge that the discriminatee was the leader
of the in-house campaign. It is also proffered to explain an
action which occurred coincidentally with receipt of infor-
mation by Respondent that the discriminatee, who had suc-
ceeded in bringing the Union in, had just become a member
of the bargaining commmittee. Moreover, one of the as-
serted reasons offered by Fry was a reference to the fact
that the discriminatee participated in a Board investigation
of the Union's petition and charge. In light of these factors,
I conclude that Respondent discharged Rowena Gannon
on April 5 because of her union activities and because she
gave testimony under the Act, all in violation of' Section
8(a)( 1), (3), and (4) of the Act.
5. Other pre-strike violations
In December 1976, Respondent's day-shift superinten-
dent, Jacci Franklin, held a meeting with Respondent's em-
ployees in order to find out who was supporting the union
drive. She did so at the request of Fry, who had learned
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from his son that a union was beginning to organize. Dur-
ing the talk, Franklin unlawfully interrogated employees by
asking them to stand up if they supported the Union. She
also violated the law on this occasion by voicing a threat
that the plant would be closed and sold by Fry if the Union
came in. She also unlawfully created an impression among
employees that their union activities were under surveil-
lance by informing them that Fry had learned of the union
meeting which took place the night before the meeting. A
few days or weeks later, she uttered an unlawful threat to
Gannon by telling the latter that Fry would fire the leader
of the organizing campaign if ever he found out who it was.
All of the uncontroverted statements violated Section
8(a)(1) of the Act.
Dominic Rainieri is a member of Respondent's board of
directors and, as such, is an agent for whose words and
deeds Respondent is vicariously responsible. Early in Feb-
ruary, he unlawfully requested job applicant Shirley Whip-
ple to spy on the union activities of other employees and
created an impression that union activities in the plant were
under company surveillance by telling her that others work-
ing in the plant were making reports to the Company con-
cerning union activities which were taking place. These
statements violated Section 8(a)(l) of the Act.
I have credited testimony to the effect that Fry told em-
ployees in the course of a massed assembly speech that he
would never bargain with the Union. A statement such as
this violates Section 8(a)(l) of the Act and is evidence of
overall subjective bad faith in determining the existence of
an 8(a)(5) violation. Fry also solicited grievances from em-
ployees in the course of this speech and promised to better
their lot in the near future if only they would reject the
Union and give him a year to extricate himself from a fi-
nancial and personal predicament in which he presently
found himself. Such a statement, made as an inducement to
employees to vote against representation, constitutes an un-
lawful promise of benefit and an unlawful solicitation of
grievances which violated Section 8(a)(1) of the Act.
Mattie Taylor had worked for Respondent for a number
of years and was promoted to the position of group leader.
Her hourly rate was increased at the same time. About
1975, it became apparent that Taylor was experiencing
great physical difficulty in performing the tasks in the area
to which she and her group were assigned, so Respondent
offered to place her in another location, but where the plant
atmosphere would not cause her so much personal physical
discomfort. Taylor accepted the transfer on the condition
that she receive no cut in wages, and she worked at the new
assignment for a period of nearly 2 years. Shortly after she
testified for the Union at the R case hearing, she was told
by Beverly Fry that she was no longer a group supervisor
and had been demoted to the position of a rank-and-file
employee because Sledz, the union representative, had re-
quested Respondent to do so in order that Taylor might
vote in the election. The reason offered was patently absurd
and was denied by Sledz in his testimony. I conclude that
the reason asserted was merely an arch way of telling Tay-
lor that the demotion was the price she paid for testifying
on the Union's behalf. At this time, Taylor suffered no re-
duction in pay. On March 18, she served as union observer.
Shortly thereafter, she was given a reduction in wages to
correspond with the reduction in status about which she
had been informed in January. It is obvious that both the
reduction in status and the reduction in wages were
prompted by Taylor's union activities and because she gave
testimony under the Act. Accordingly, both actions by Re-
spondent violated Section 8(aX1), (3), and (4) of the Act.
Since the reduction in wages was carried out unilaterally, it
also violated Section 8(a)(5) of the Act.
As noted above, the Union wrote to Respondent on April
4, asking for information concerning classifications, wages,
and benfits of unit employees. It also asked for a meeting to
discuss this information. Respondent, whose president
shortly before this time had told the employees that he
would never bargain with the Union, did not respond to
this letter or supply any information requested until months
later when he was ordered to do so by the district court in
the 10(j) proceeding. The refusal to furnish information re-
lating to the compensation of employees in a bargaining
unit so as to permit a union to formulate proposals is a
classic violation of Section 8(a)(5) of the Act. N.L.R.B. v.
Truitt Mfg. Co., 351 U.S. 149, (1956); N.L.R.B. v. Acme
Industrial Co., 385 U.S. 432 (1967). By failing to meet with
the Union and to supply requested information in a timely
fashion, Respondent herein violated Section 8(a)(5) of the
Act. The same finding applies to later requests for informa-
tion which the Union made to Respondent.
6. The character of the strike
As outlined above, the strike which began early in the
morning of April 18 was preceeded by an assortment of
serious and repeated unfair labor practices which were
committed by a respondent which knew no bounds in the
means it selected to defeat the unionization of its employ-
ees. On April 16, about 55 employees met at a restaurant to
consider the events which had transpired and to determine
what action should be taken. They were particularly con-
cerned about the discharge of Gannon and about the fail-
ure of Respondent to supply the Union with the informa-
tion it requested or to meet with it. After some discussion,
they voted to strike in order to protest these actions. In light
of the fact that the employer acts which were protested
constitute unfair labor practices, there can be no doubt that
the strike called in response to these violations of law was
an unfair labor practice strike. Four days after the strike
began, Fry sent letters to several striking employees, asking
them to come back to work and telling them that the Em-
ployer would provide transportation across the picket line
to those requesting it. Fry stated further, "If you decide not
to contact the Company and return to work, we will have
no recourse but to hire new replacements." Because the
employees to whom the letter was sent were unfair labor
practice strikers, Respondent had no legal right to replace
them. By threatening to replace unfair labor practice strik-
ers, as it did in the April 22 letter, Respondent herein com-
mitted a violation of Section 8(a)(1) of the Act. Cal-Pacific
Furniture Mfg. Co., 228 NLRB 1337 (1977).
7. Picket line activity on April 18 and the discharge of 30
strikers
The events which took place in front of the plant early in
the morning of April 18 take on considerable significance
90
FRY FOODS, INC.
because 30 employees were discharged shortly thereafter
because of asserted misconduct which took place on the
line. Picketing is protected concerted activity. However,
when one engages in concerted activity in such a manner as
to cause or threaten serious injury to persons or property,
the activity loses its protected character and becomes
grounds for discharge. Whether particular actions fall into
one or the other category often poses nice questions ofjudg-
ment. In addressing this question, it is always well to re-
member that the burden of proving that concerted activity
has lost its protected character is upon the party making
that contention.
Thus, sprinkling nails on the driveways of a struck plant,
smashing plant windows, and damaging light poles has
been deemed to be conduct disqualifying strikers from the
protection of the law. Advance Industries Division-Overhead
Door Corporation v. N.L.R.B., 540 F.2d 878 (7th Cir. 1976).
Mass picketing, coupled with the prevention of cars and
trucks from entering and leaving a plant, hitting the side of
an auto with a sign, and throwing rocks at nonstrikers re-
moves from a picket the protections of the Act. Hartmann
Luggage Company v. N.L.R.B., 447 F.2d. 396 at 400 (6th
Cir. 1971). However, in the course of a labor dispute, cer-
tain amount of "picket-line rhetoric" is to be expected.
Hartmann Luggage Co. v. N.L.R.B., supra at 185.
Concerning the 30 discharges made by Fry on April 20
for picket line misconduct in the attempted delivery of on-
ions during the early morning hours of April 18, I have
concluded that 18 individuals who were discharged were
not at or near the plant when the incident in question took
place. As to them, there is no basis for a claim that they
engaged in unprotected activity and the defense asserted
herein is not only pretextual but simply false. Moreover, the
use of such a groundless and fabricated reason to fire more
than half of the group that were discharged casts serious
doubt on the validity of Respondent's action concerning
others who were at or near the plant at the time in question.
As to them, Respondent must present particularized proof
that each discriminatee was personally guilty of serious mis-
conduct before the individual in question loses the protec-
tion of the Act. A shotgun approach in justifying the dis-
charge of union adherents who are engaging in protected
activity is wholly inconsistent with protections afforded
them under the Act. Advance Industries Division v.
N.L.R.B., supra at 883.
There is no suggestion in this case that any of Respon-
dent's employees or supervisory force was personally
harmed or threatened with harm by an identified striker.
Furthermore, there is no proof that the property of Respon-
dent or any other persons were vandalized or threatened
with damage or destruction by an identified striker, despite
the fact that two off-duty policemen guarded the premises
and were paid by Respondent to be on the lookout for such
activity. If any of the 12 discriminatees present at the onion
truck incident lost the protection of the Act by virtue of
picket line misconduct, it occurred because of failure or
inability of the two trucks to unload onions due to a block-
ing of the ingress to the plant. Gannon asked a truckdriver
if he would back into the plant is she were to lay down in
the path of the truck. This suggestion or threat of self-im-
molation is not a threat to the person or property of anyone
and falls into the category of picket line rhetoric. No one,
including Gannon, did in fact lay down in the path of any
truck which was seeking to back in. In fact, neither of the
onion delivery trucks made any physical overt act to back
into the plant on the morning in question.
A difficult factual question arises concerning whether
named strikers lined up along the side of the road between
the public right of way and the plant in such a menacing
manner as to prevent the trucks from coming into the plant.
One truckdriver said they did for a brief interval. Three
company witnesses, including the unbelievable Fry, also
said they did and for varying periods of time. One company
witness said that he could not testify that strikers either
held hands or locked arms along the side of the road in such
a manner as to prevent the entry of the truck. Officer Mc-
Cormack, whom I regard as the most reliable witness, said
he did not see anyone linking arms and hands to prevent
the trucks from coming into the plant and did not see any
conduct on the part of the strikers which warranted an ar-
rest. Moreover, he was not requested to make any arrests.
As he was being paid by Fry to maintain the security of the
premises at the time, I feel that his account of the situation
was the most reliable of the ones offered and that Respon-
dent simply seized upon this noisy but essentially harmless
incident to rid itself of strikers whom it did not want in the
plant, using a broad brush to gather into one careless stroke
people who were present at the time along with others who
were home in bed when the incident occurred. Accordingly,
I conclude that the 30 employees named in the amended
consolidated complaint who were discharged on April 20
were discharged for union activities, namely engaging in an
unfair labor practice strike, in violation of Section 8(a)(3) of
the Act.
8. The Nancy Musser incident
Not long after the union delivery trucks departed, non-
striking employees and supervisors began coming to work.
In order to reach the parking area provided on Respon-
dent's premises, employees had to drive from Maule Road
across the picket line into plant property. One employee,
Margaret Kessler, drove into picket Hank Conely while
driving across the picket line and, under circumstances not
fully described in the record, knocked him down with her
pickup truck. A few minutes later, Supervisor Nancy Mus-
ser and three other employees or supervisors arrived in
Musser's car. Musser, who is now the defendant in a suit for
civil damages, did not testify in this case. The pendency of
a civil action against her is not a justification for declining
to draw the normal inference relative to evidence which
could be provided by witnesses who are available, but are
not called to testify. According to credited testimony in the
record, Musser drove her car across the picket line, acceler-
ated when she got inside the line, gave no warning to on-
coming pedestrians when she was on company premises.
and drove the car into Tong. After the collision, when Tong
laid on the ground to the side of the car, Musser did not
stop to render assistance but drove on. She parked the car
behind the plant and did not return to the scene of the
collision even to inquire as to the condition of the victim.
Musser's comment about what she would like to do to
union girls, uttered some months later, gives some insight
91
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into the vicious attitude she harbored and lends support to
the conclusion that she deliberately drove her automobile
into a striking employee when the employee was engaging
in concerted, protected activities. Whatever may be the civil
or criminal consequences of these actions under state law,
this assault clearly invades the employee's Section 7 rights
and is a violation of Section 8(a)(1) of the Act. When Mus-
ser told a group of employees sometime in July that she
would like to "knock hell out of the Union girls and run
them down the fryer," her statement also violated Section
8(a)(1) of the Act.
9. The April 22 wage increase
It is undisputed that in April 1977, Respondent granted
to all of its employees a 10-cent-an-hour across-the-board
wage increase. There is some question in the record as to
the exact date on which the increase took effect, but the
parties stipulated that it occurred on April 22, so I will
abide by the stipulation. The increase was granted 4 days
after the strike began and at a time Respondent was solicit-
ing strikers to return to work. The decision to grant this
wage increase was not negotiated by Respondent with the
certified bargaining agent. Respondent attempts to justify
the wage increase on the basis that, in previous years, it had
given 10-cent hourly increases across the board to its em-
ployees. It is true that employees in previous years received
blanket wage increases, usually in that amount. However,
the regularity, the timing, and the amount of prior increases
had not been so automatic or so predictable that it could
constitute the basis for a finding that a pattern existed in
this regard. Even if a prior pattern of wage increases could
be established, the existence of such a labor relations his-
tory could not justify the failure of Respondent to notit' the
bargaining agent in advance of this proposal and its failure
to negotiate the timing and the amount of the increase.
Accordingly, by granting a wage increase of 10-cents per
hour to employees on April 22 without notifying and bar-
gaining with the duly certified bargaining agent, Respon-
dent herein violated Section 8(a)(l) and (5) of the Act.
10. Post-strike changes in working conditions
It is apparent from this record that, before the April 18
strike, Respondent herein ran a rather "loose ship." It is
equally clear that after the first strikers returned on June 14
and particularly after the remainder were ordered back to
work on July 18, Respondent began to run a "taut ship" in
the enforcement of its work rules and in administering com-
pany discipline. This change in the vigor of its discipline
was never negotiated. Before the strike, written warning
slips were never issued for work deficiencies and were re-
served exclusively and sporadically for absenteeism. Since
July 1977, over 100 written warning slips have been issued
to employees for job-related infractions. At a prestrike
speech Fry told employees that he had only fired employees
for two reasons, stealing and embezzlement. After the strike
began, employees came to be fired for a variety of reasons.
It is clear that, whatever were the work rules which existed
before the strike, they were frequently honored in the
breach rather than in the observance and the infraction of
these rules was a matter that was lightly regarded. This
attitude changed suddenly and radically in the summer of
1977.
One area in which rules were clearly changed related to
the matter of talking with other employees who were work-
ing on the same conveyor. Before the strike, Respondent
permitted such talking among employees according to what
might be called a rule of reasonableness. They were permit-
ted to talk during working time with others who were lo-
cated at or near their work stations so long as the talking
did not hamper production. If and when it did, a supervisor
would verbally caution the person or persons who were
talking too much. After the strike, there was a clamp down
on employee talking. Some supervisors told employees they
could not talk with returning union supporters. Other su-
pervisors told employees that they could not talk at all dur-
ing working time. Some told employees they could speak to
the employee next to them on the conveyor line, but could
not speak to employees working directly across the con-
veyor. After the strike, excessive talking, whether or not it
violated a stated rule, was not met simply with verabl cau-
tions, but with written disciplinary slips. Some of these slips
played a part in layoffs or discharge which were later justi-
fied or supported by warnings which had been issued for
talking. Respondent attempts to justify the imposition of
new talking rules (or the stricter enforcement of old rules)
on the basis that it was faced with a business emergency
which necessitated these and other stern measures. The na-
ture of this emergency and the casual connection between it
and the rules in question was never quite spelled out. It was
clear that Fry was miffed that he had to take back into his
plant, under penalty of contempt of court, strikers whom he
disliked and had discharged. It takes little imagination to
conclude that the rule or rules against talking, as well as the
other changes in working conditions which were imposed
when strikers returned, were generated in retaliation for
union activity and as a means of goading returning strikers
into leaving the plant of their own accord. Fry frankly con-
fessed this desire to his supervisors. Hence, the imposition
of new rules respecting talking and disciplining of employ-
ees for excessive talking during worktime violated Section
8(a)(1) of the Act. This change in conditions of employ-
ment, both as to the substance of the rules and in their
enforcement, without first bargaining with the certified bar-
gaining agent about the changes, violated Section 8(a)(5) of
the Act.
I have credited the testimony of two former supervisors
who took the stand and testified that, shortly after the strik-
ers returned, Fry instructed them to harass the returning
strikers and goad them into cursing back at their supervi-
sors. This instruction indelibly colors many events which
took place in the plant after the strikers returned concering
employer actions which might, in some other context, be
regarded as a legitimate exercise of business judgment in
the running of a plant and the disciplining of employees.
Regardless of the theoretical existence of a rule requiring
employees to wear hair nets in such a manner as to cover all
of their hair, employees were in fact permitted to let their
hair hand out beneath the hair nets rather than place the
hair nets far down on their foreheads. After the strike, hair
nets had in fact to be worn strictly in accordance with this
92
FRY FOODS, INC.
rule. Beginning in the summer of 1977. employees were re-
quired to change shoes before coming to work and were
required to wear in the plant any shoes which had not been
worn on the street. The practice before the strike was quite
to the contrary. Previously employees had frequently
leaned on the conveyor or rested their feet on a bar under
the conveyor prior to the strike. They were disciplined for
doing so after the strike. The use of profanity and obscenity
was not infrequent before the strike. After the strike, the use
of such language often resulted in written disciplinary slips
when it was used in remarks to supervisors. I conclude that
these changes in rule enforcement were part of'a picky atti-
tude adopted by supervisors toward employees. and espe-
cially returning strikers, in response to Fry's instruction to
crack down. Such harassment violates Section 8(a)( ) of the
Act.
After the conclusion of the strike. Respondent also insti-
tuted a policy of requiring its supervisors to make written
accounts of minor, inconsequential actions and statements
of employees which took place in the course of the work-
day. These notebooks included the most trivial items, in-
cluding the length of time it took certain employees to go to
the toilet. The accounts were turned into the office at the
end of the week, although reports of activities on the onion
line, where the bulk of the returning strikers were assigned
to work, were turned in to the office on a daily basis. Such
pettiness, when viewed in light of Fry's instructions to ha-
rass returning strikers, clearly forms an element employer
harassment of employees in reprisal for engaging in union
activities, all in violation of Section 8(a)( ) of the Act.
11. The institution of production standards for packing
onion boxes
Toward the end of the summer, Fry instructed some of
the supervisors to begin timing employees to determine how
long it took them to remove breaded onion rings from the
conveyor and pack them in 2-pound boxes. For the most
part the timing was done without the employee's knowledge
that her work was under surveillance. A number of employ-
ees received disciplinary warning slips for packing boxes at
too slow a pace, altough no standard for box packing had
been established and announced until mid-December. At
that time, Fry informed employees that 35 seconds was the
time standard for the packing of a box of onions. Respon-
dent did not notify the Union that it was seeking to impose
a job standard relating to the packing of boxes, nor did it
negotiate with the Union either the decision to impose a
standard or how much time should properly constitute the
standard for the operation in question. Such unilateral ac-
tion was taken in derogation of the Union's status as bar-
gaining representative and constitutes a violation of Section
8(a)(l) and (5) of the Act.
12. The no-solicitation rule
Respondent insists that it has always maintained and en-
forced a no-solicitation rule which forbids employees from
soliciting at the plant except during nonworking time and in
nonworking areas. Fry also insisted that such a rule had
been posted on the bulletin board for all to see. No one else
remembers seeing the posting of such a rule. and no copy of'
the rule was produced during the hearing. Fry justifies the
nonproduction of the written rule on the basis that his files
were destroyed, along with the bulletin board and the post-
ings thereon, during a fire which took place in June 1976.
No such rule was posted between the time of the fire in
June 1976 and July 1977, when the rule here in controversy
was established and posted. Various employees testified
that it was commonplace before the strike to see employees
selling items, collecting money for the "sunshine fund," or
engaging in similar nonworking activities during working
hours. From the testimony, from the lack of an) corrobora-
tion of Fry's testimony, and from the collective testimony
that Respondent had a relaxed view ot' discipline beftre the
strike began. I conclude that. before the stike. Respondent
had no rule against soliciting during working time. It fol-
lows from this conclusion that the rule which the attorney
drew up and which Fry promulgated in July 1977. was a
new rule which altered terms and conditions of employ-
ment that previously existed in the bargaining unit. Since
the promulgation of the new rule was not negotiated with
the certified bargaining agent, the unilateral action of Re-
spondent is imposing it violates Section 8(a)(1) and (5) of
the Act.
13. The 3-day rule
In the past Respondent had a rule which stated that if an
employee was absent for 3 consecutive days without calling
in, she would be discharged. In Respondent's lexicon, the
rule was so phrased that she would be deemed to have quit.
However, before the strike, this rule was never enforced.
There is credited and uncontradicted testimony in the rec-
ord from employees of instances in which they were absent
for more than 3 consecutive days without notifying Respon-
dent but were not discharged. There is also Fry's statement,
noted above, that he never discharged anyone except for
embezzlement and stealing. However., after the strike be-
gan, the employer began to enforce this rule with a heavy
hand. The change in enforcement policy constitutes, in ef-
fect. a different term or condition of employment. Since it
was instituted without negotiation with the bargaining
agent, the change amounts to a violation of Section 8(a)(l)
and (5) of the Act.
14. Oppressive assignments to returning strikers
Fry told his supervisors to segregate returning strikers
from other employees by assigning them to the onion line
and by keeping them away from jobs in the packing room,
although some of these employees had worked in the pack-
ing room before the strike. Respondent also assigned re-
turning strikers in disproportionate numbers to the batter
fried onion line whenever the "batter fried" line operated.
This line is one of the most onerous positions in the plant
because working on this line subjects an employee to large
amounts of intense onion fumes mixed with the fumes of
hot grease. Moreover, it was the custom previous to the
strike to rotate employees into this position for short peri-
ods of time. It was also customary to permit employees to
avoid entirely those jobs which produced in them a unique
93
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or particularly strong physical reaction. No such latitude
was granted after the strike. There is little doubt that the
change of heart was dictated by union considerations. Fry
admitted as much, sometime in September, when he told
Taylor, in response to a request for a transfer from the
garbage line, that "the girls got themselves into the prob-
lem" and they would have to work it out the best they
could. The type of harassment described above, namely,
imposing onerous tasks on union supporters in retaliation
for their union activities, violates Section 8(a)(1) of the Act.
15. Other independent violations of Section 8(a)(l)
of the Act
Just before the discharged strikers came back to the plant
under the terms of a district court order, Respondent held a
meeting with employees to inform them of this forthcoming
event. During this meeting, Respondent's attorney, Affeldt,
spoke to the assembled employees, who included both re-
placements and strikers who were offered reinstatement on
June 14. He attempted to convey to them the futility of the
union effort by telling them that it would be at least 4 years
before the Union came into the plant. Such a statement
violates Section 8(a)(1) of the Act.
During this same time, Supervisor Wilma Hoover was
heard to say to a number of employees that she would like
to follow a striker home and ram her automobile into a
striker's car. This statement displayed deep hostility on the
part of a supervisor who had originally been selected as a
member of the plant bargaining committee and is a clear
violation of Section 8(a)(l) of the Act.
16. The second refusal to furnish information
As noted above, Respondent unlawfully refused to fur-
nish information to the Union relating to classifications,
wages, and certain fringe benefits of unit employees which
was requested in the Union's April 4 Letter. On June 17,
Union Attorney Lackey wrote to Company Attorney
Affeldt to inquire as to the status of health insurance cover-
age to employees who had been discharged. He also asked
about a request by unit employee Nancy Hill for pregnancy
leave and sought additional information relating to a griev-
ance being pressed by unit employee Bonnie Schroen for
vacation pay which she had not received.
On July 12, Union Representative Sledz wrote to Beverly
Fry to inquire about the discontinuance of health insurance
benefits for seven strikers. He also asked Respondent to
justify or explain the action it had taken on June I in dis-
continuing the payment of health insurance premiums. On
July 11, the Union wrote Fry asking for the same informa-
tion it had requested in the April 4 letter. On July 26, after
the issuance of the district court order, Fry wrote to Union
Representative Kemp, supplying him with certain general
information concerning existing wages and benefits which
Kemp had asked about in a letter dated July 18. Fry's re-
sponse did not contain a list of employees with their wages
and job classifications. This information was not furnished
to the Union until November 14. Some of the above infor-
mation was furnished in a desultory manner and some of
the requested information apparently was never furnished.
All of it related to matters well within a bargaining agent's
legitimate scope of inquiry. The failure to furnish such in-
formation and the failure to furnish other information with
reasonable promptness and without the interposition of a
district court order amounts to a violation by this Respon-
dent of Section 8(a)(l) and (5) of the Act.
17. Post-strike disciplinary suspensions
Youlanda Phelps, the daughter of Gannon and a striker
who was ordered back to work by the district court, re-
ceived three written warnings during the late summer of
1977. One was issued for calling a fellow employee a scab,
one for calling her supervisor a "suck ass," and one for
letting good onions fall on the floor from the conveyor.
Under the new policy of giving a suspension after three
written warnings, Phelps was suspended for 3 days. This
suspension took place pursuant to a change in disciplinary
policy which was unilaterally instituted or implemented. It
was imposed upon a known union activist for activities
which, before the strike, would not have drawn any written
warnings, and was imposed following Fry's instruction to
supervisors to crack down on union adherents. Accord-
ingly, I conclude that the reasons advanced to justify the
suspension were pretextual and that it was effectuated be-
cause of Phelp's union sentiments and activities. Accord-
ingly, the suspension violated Section 8(a)(l) and (3) of the
Act.
Returning striker Kay Fortney Tong was given a written
warning by Supervisor Smith in October for failing to pack
onions as fast as required under an illegally adopted and as
yet unannounced work standard. She was given a second
written warning for writing "shove it up your scabby nose"
on the warning slip which she just received for packing
onions too slowly. Three days later she was given a third
warning slip for packing onions too slowly and along with it
received a 3-day suspension. It is clear these slips and the
resulting suspension fitted the pattern of behavior by Re-
spondent's supervisors which was prompted by the instruc-
tions they had received to harass returning strikers. Hence
the reasons given for suspending Tong were pretextual. Ac-
cordingly, I find that the suspension violated Section 8(a)(l)
and (3) of the Act.
On August 2, Gannon was given a warning slip for taking
packed boxes of onions off the conveyor and for shoving
onions off the conveyor. She denied the truth of the asser-
tions on the warning slip. On August 23, she received a
second written warning for pulling onions off the line onto
trays when they were coming down the conveyor belt too
fast to be boxed. In so doing, she was following a practice
which had been regularly employed during the prestrike
period. She protested the issuance of this slip and got into a
verbal tiff with the supervisor who issued it. Under these
circumstances, she was suspended for 3 days. Gannon was
the acknowledged in-house leader of the organizing effort.
The suspension was accomplished in pursuance of an ille-
gally imposed warning system and followed the Fry instruc-
tion to crack down on strikers. I conclude that the reasons
offered for the suspensions were pretextual and that Gan-
non was suspended for union activities in violation of Sec-
tion 8(a)(1) and (3) of the Act.
94
FRY FOODS, INC.
Returning striker Wanda Depinet was frequently criti-
cized by her supervisor for not cutting mushrooms fast
enough and for not cutting them in a proper manner. On
one occasion in November 1977, when a supervisor criti-
cized Depinet for the manner in which she was preparing
mushrooms, Depinet told her to shut her "gd mouth and
get the hell out of there." Upon receiving a warning slip for
using such language, Depinet told her supervisor to "shove
it," whereupon she was suspended for 3 days. Normally a
response such as the one Depinet made to supervisory cor-
rection would amply justify the issuance of a disciplinary
suspension. However, as frequently noted before, Respon-
dent had adopted a policy of goading union employees into
cursing supervisors in order to acquire a basis for disciplin-
ing or discharging them. Accordingly, it cannot now be
heard to complain about management prerogatives and
company discipline when the policy it was following
brought about the results it was designed to accomplish,
namely obscene or insubordinate language uttered in angry
reply to calculated employee-baiting. Accordingly, I con-
clude that the suspension of Depinet violated Section
8(aXl) and (3) of the Act.
In January 1978, Doris Kubis, the chairman of the bar-
gaining committee, had to leave work suddenly in response
to a message she received. Her husband had suddenly be-
come seriously ill. The following day, she took him to the
doctor and missed a day's work in the process. However,
she notified Respondent of her intended absence and the
reason for it and presented a written doctor's verification of
the reason for her absence when she returned to the plant.
Upon tendering the excuse, she was told that her absence
was unexcused and that she would receive a temporary sus-
pension for missing work. I conclude that the reason prof-
fered for imposing this suspension was specious and that
kubis was suspended in order to punish a leading union
adherent, all in violation of Section 8(a)(1) and (3) of the
Act.
18. Post-strike individual discharges
a. Susan Neikirk
Susan Neikirk had been employed by Respondent since
1972. In January 1977, she took an extended leave of ab-
sence to undergo surgery and was under the care and treat-
ment of two physicians, one located in Tiffin and the other
in Toledo. Her Tiffin physician, Dr. Lahy, gave her a writ-
ten release dated April II1, a week before the strike. How-
ever, she did not receive a release from Dr. Schecter in
Toledo, which was dated April 13, until after the strike
began. She did not return to work, but actively participated
in the picketing effort. She tried to return to work in June,
but was met with a so-called "letter of resignation" in
which Respondent asserted that, by failing to come back to
work when released by a physician or within 3 days there-
after, Neikirk was deemed to have resigned. In fact, Neikirk
did not resign and Respondent's letter of June 21 amounted
to a discharge notice. Until the strike began, Respondent
made no effort to insist that employees, as the price of re-
turning from sick leave, report for work within 3 days from
the date of the doctor's release. If Neikirk had returned
within the 3-day grace period after receiving Dr. Schecter's
release, she would have had to cross the picket line which
she helped to support. In fact, as so often noted above, Fry
said just before the strike that he never fired anyone except
for embezzlement or stealing. In this case, the record pres-
ents a situation where an employer, who was exhibited col-
lateral evidence of animus in a high degree, discharged a
known union adherent and striker for a reason never before
used to discharge any employee. I conclude that the reason
proffered was specious and that Neikirk was in fact dis-
charged for union activities in violation of Section 8(a)(I)
and (3) of the Act.
b. Mary Jane Bodi
Striker Mary Jane Bodi was reinstated on July 18 pursu-
ant to the district court order. She was placed on the onion
line sorting freshly cut raw onions, a position she had occu-
pied either rarely or not at all before the strike. Bodi suf-
fered from asthma and the fumes of freshly cut onions were
particularly noxious to her, requiring her to seek medical
attention and an asthma shot. She missed work for a few
days because of this ailment. When she returned, she pre-
sented a medical slip containing a doctor's request that she
be assigned to work which did not involve immediate con-
tact with raw onions. Respondent refused to accept this
excuse, saying that everyone in the plant had to come into
contact with raw onions. Shortly thereafter, Bodi received a
letter stating that she had resigned. In fact, she had not
resigned. As in the case of Neikirk, the letter was in effect a
discharge notice. This reason asserted for the discharge was
that she had been absent from work for 3 consecutive days
without notifying the Company.
The reason asserted for Bodi's discharge was a reason
based upon Respondent's newly adopted policy of enforc-
ing a 3-day rule, a rule which was not used before the strike
to cause the termination of an employee. As found above,
the change of policy which was used as the justification for
Bodi's discharge amounted to a violation of the Act be-
cause it had not been negotiated with the bargaining agent.
Hence, Bodi was discharged for a reason which Respondent
was not free to use. Moreover, the reason which was prof-
fered was wholly pretextual. Bodi was a striker and an ac-
tive union adherent whose presence in the plant Fry was
ordered to accept by the district court. Fry was looking for
any excuse available to discharge these returnees and, in the
case of Bodi, found one in the matter of her illness and the
resulting absence. Accordingly, I conclude that, by dis-
charging Bodi, Respondent herein violated Section 8(a)(l)
and (3) of the Act.
c. Tina Shetzer
Tina Shetzer began working for Respondent in February
1977. She started working on the fish line on the third shift.
She went on strike on April 18. During the strike, the fish
line was discontinued. When she returned to work in July
pursuant to the district court order, she was assigned to the
garbage line. During or shortly before the strike she became
pregnant. After working a short time on the garbage line,
she complained that the shiny material under the conveyor
belt made her dizzy so she sought medical attention. She
obtained a doctor's slip stating that there was a medical
95
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis to her complaint of dizziness brought on by the move-
ment of the conveyor over a shiny backdrop. When she
presented the slip to Respondent, she was told that it was
not acceptable and that she would not be allowed to work
unless there were no restrictions on work assignments. In
the past, as in the case of Taylor and others, Respondent
normally honored requests for transfers to other positions
when they were prompted by particular physical discomfort
resulting from a particular assignment. Most positions in
the plant on the production lines are unskilled and were,
until the strike, frequently interchanged. The refusal of Re-
spondent to apply its past practice in the face of Shetzer's
request, as well as its treatment of the second medical ex-
cuse limiting her activities in the plant as tantamount to
resignation, was simply another ploy to remove union ad-
herents who returned to the plant under a court order.
Whether this action constitutes bad faith on the part of
Respondent in complying with the terms of the district
court order is a matter for determination in another forum.
Within the parameters of this case, it is clear that the reason
offered in the Shetzer discharge was pretextual and that
Shetzer was fired for union activities in violation of Section
8(a)(l) and (3) of the Act.
d. Barbara Kay Fortney Tong
After Tong returned to work from the suspension dis-
cussed above, she was given another written warning on
November 22 for taking I minute to pack a box of onions.
Tong wrote on a slip, "Cram it, scab." On December 5, her
packing efforts were timed again and she was recorded as
taking 59, 60, and 61 seconds, respectively, for packing
three boxes of onions. For this deficiency she was dis-
charged. At the time Tong was terminated, no employees
had been notified by Respondent how long they were ex-
pected to take packing onions. Moreover, the standard had
not been negotiated with the bargaining agent, either at
that time or at any subsequent time, so Respondent was not
free to impose any set standard upon its employees. As in
the other discharge cases, it is clear that Respondent was
looking for excuses to get rid of returning strikers, espe-
cially one like Tong who was most vocal in her support of
the Union, who gave an affidavit in the investigation of a
charge, and who is now maintaining a civil suit against
Respondent for injuries which she received while engaging
in union activities in front of Respondent's plant. Accord-
ingly, I conclude that Tong was discharged for her union
activities in violation of Section 8(a)(1), (3), and (4) of the
Act.
e. Wanda Depinet
About a month after Depinet returned to work from the
suspension she received in early November, she was dis-
charged. This event occurred on December 22 and asserted-
ly resulted from the fact that she was timed packing onions
at 51, 50, and 57 seconds, respectively. Her discharge was
effectuated pursuant to an illegally imposed work standard
and, as in the case of Tong and other strikers, was pre-
textual in nature. Accordingly, I find that Depinet was dis-
charged for engaging in union activities in violation of Sec-
tion 8(a)(l) and (3) of the Act.
19. The alleged domination of an employee committee
While not discussed above, the General Counsel alleges
that Respondent assisted and dominated an employee com-
mittee which acted in the capacity of a labor organization
purporting to represent the employees in the bargaining
unit. To establish this charge, he must present evidence of
assistance or domination occurring after September 29,
1976, when the period of limitations began. Local Lodge
No. 1424, International Association of Machinists [Bryan
Manufacturing Company] v. N.L.R.B., 362 U.S. 411 (1960).
Events which transpired before that date may only be relied
upon insofar as they illuminate or lay bare unfair labor
practices arising out of operative facts occurring after that
date.
There is no dispute that there existed for several years at
Respondent's plant an employee committee, known simply
as the Committee, which was composed for the most part of
employees elected each September for terms of one year. As
far as the record in this case discloses, the committee had
no written constitution, by-laws, or rules of procedure. It
simply met from time to time. One of its principal functions
was to plan and carry out social events for employees, in-
cluding summer picnics, Halloween and Christmas parties,
and similar events. From time to time the Committee also
considered and made recommendations to management
concerning matters which can properly be described as em-
ployee grievances.
Elections of employees to the Committee took place un-
der direct company supervision. Employees would gather in
the breakroom in the presence of either Beverly Fry or
Jacci Franklin and cast written ballots. Apparently 10 em-
ployees would be verbally nominated and nominees would
then be selected by written ballot. The last of these elections
occurred in September 1976, at a time which I conclude
was outside the 10(b) period. In October 1976, the Commit-
tee met to plan a Halloween party and in December 1976, it
met to plan a Christmas party.
At a meeting in December 1976, within the 10(b) period,
the Committee discussed a grievance of part-time employ-
ees Melinda Hardesty and Florence Bayliss. Respondent
had a rule that, to be eligible to receive holiday pay for
those holidays for which benefits were granted, an em-
ployee was required to work both the day before and the
day following the holiday. Respondent refused to pay holi-
day to Bayliss and Hardesty. While the record is somewhat
confused, it appears that both employees normally worked
4-hour shifts, so to apply a strict requirement of working,
full 8-hour shift both before and after a holiday would not,
in each instance, permit them to qualify for holiday pay,
even though they were present for work for the entire time
they were scheduled to work. The Committee voted to rec-
ommend granting Hardesty the requested holiday pay and
told Beverly Fry, who was present during the meeting, of
this decision. It is unclear what happened to Bayliss' griev-
ance.
On another occasion within the 10(b) period, the Com-
mittee voted to recommend holiday pay for Charlotte Lu-
cius, who had been denied this benefit on one occasion. It
appeared that Lucius suffered a leg burn and had a medical
appointment the day before the holiday. She was told either
96
FRY FOODS, INC.
to reschedule her appointment or to forfeit holiday pay un-
der the terms of the rule described above. The Committee
took a vote recommending action in Lucius' case. Phelps
was later told that the Committee had been discontinued
and that employees who desired to hold the picnic Phelps
was promoting would have to do so on their own, without
any assistance from Respondent.
There is no question that the Committee functioned, in
part, as a labor organization within the meaning of the Act
because it processed and pressed grievances on behalf of
employees relating to wages and fringe benefits. It is also
clear that the Committee functioned in this capacity within
6 months prior to the filing of the first charge in this con-
solidated case. The clear domination of the Committee by
Respondent in supervising the semisecret balloting for com-
mittee members took place before the commencement of
the 10(b) period. The statement of Franklin to Phelps in
September 1977 that the Committee had been discontinued
evidenced, as nothing else could, how completely the Com-
mittee was a creature of Respondent's undertaking and ini-
tiative. Within the 10(b) period, the Committee considered
and processed grievances at meetings chaired by supervi-
sory personnel. Such interferences amounts to domination
within the meaning of the Act. Fremont Manufacturing
Company, Inc., 224 NLRB 597 (1976). The fact that the
Committee had gone out of existence and Respondent has
ostensibly ceased to commit this violation is no defense to a
remedial order. Mexia Textile Mills, Inc. v. N.L.R.B., 339
U.S. 567 (1950). Accordingly, I conclude that, by dominat-
ing the operations of an employee committee, which consti-
tutes a labor organization, Respondent herein violated Sec-
tion 8(a)(2) of the Act.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, and pursuant to Sec-
tion 10(b) of the Act, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Fry Foods, Inc., is now, and at all
times material herein has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. United Steelworkers of America, AFL-CIO, and an
employee group known as the Committee are, respectively,
labor organizations within the meaning of Section 2(5) of
the Act.
3. All full-time and part-time production and mainte-
nance employees, including group leaders, dock employees,
and truckdrivers employed by Respondent at its Tiffin,
Ohio, plant, excluding office clerical employees, profes-
sional employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for collective bargaining
within the meaning of Section 9(a) of the Act.
4. Since March 25, 1977, the United Steelworkers of
America, AFL-CIO, has been the exclusive representative
of all employees in the unit set forth above in Conclusion of
Law 3 for purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By failing and refusing to meet and bargain with the
United Steelworkers of America, AFL-CIO; by unilater-
ally instituting or enforcing new terms and conditions of
employment in the bargaining unit set forth in Conclusion
of Law 3, including a newly enforced policy of discharging
employees who had been absent on sick leave for more than
3 days without notifying Respondent, establishing job stan-
dard for packing onions, instituting a program of progres-
sive discipline including written warnings forjob-related in-
fractions, refusing to grant in-plant transfers to employees
whose health required such transfers, unilaterally institut-
ing a new rule prohibiting talking, and unilaterally impos-
ing a no-solicitation rule: by refusing to furnish the United
Steelworkers of America, AFL-CIO, requested data relat-
ing to grievances and to wages, hours, and terms and condi-
tions of employment in the bargaining unit, and by refusing
to furnish such data in a timely manner; by altering the
composition of the bargaining unit and diminishing job op-
portunities within the unit by promoting unit employees to
supervisory positions while continuing to allow them to do
bargaining unit work; and by unilaterally granting a wage
increase to bargaining unit personnel without notifying and
bargaining with the Union, Respondent herein violated
Section 8(a)(5) of the Act.
6. By discharging and suspending Rowena Gannon, by
suspending and later discharging Barbara Kay Fortney
Tong, and by suspending Mattie Taylor and reducing her
status and her wages because said employees gave testi-
mony under the Act, Respondent herein violated Section
8(a)(4) of the Act.
7. By discharging 30 employees named in Paragraph 31
of the amended order consolidating cases, amended consoli-
dated complaint and notice of consolidated hearing, on
April 20, 1977, because said employees engaged in an un-
fair labor practice strike; by discharging on other dates Ro-
wena Gannon, Barbara Kay Fortney Tong, Mary Jane
Bodi, Tina Shetzer, Wanda Depinet, and Susan Neikirk be-
cause they engaged in union activities; and by demoting
Mattie Taylor because she engaged in union activities; and
by suspending Rowena Gannon, Wanda Depinet, Barbara
Kay Fortney Tong, Youlanda Phelps, and Doris Kubis be-
cause they engaged in union activities, Respondent violated
Section 8(a)(3) of the Act.
8. By dominating an employee group known as the
Committee, Respondent violated Section 8(a)(2) of the Act.
9. By the acts and conduct set forth above in Conclu-
sions of Law 5, 6, 7, and 9: by coercively interrogating
employees concerning their union sentiments; by creating
among employees the impression that their union activities
were subject to company surveillance; by threatening to
close the plant and threatening to fire employees if the
union won the election: by soliciting employee grievances
and promising to grant wage increases and improvements
in fringe benefits if the employees rejected the union; by
stating that Respondent would not bargain with the Union
even if it won the election; by telling employees that it
would be 4 years before a union which was already certified
would come into the plant; by threatening to replace unfair
labor practice strikers if they did not return to work; by
stating that they would like to do physical harm to union
supporters or threatening such harm; by assaulting an em-
ployee by automobile while said employee was engaging in
union activities; by harassing employees through instituting
new work rules relating to dress, talking, resting while
working, intensified surveillance and written reports of mi-
97
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor on-the-job activities of employees, refusing to rotate job
assignments, and selecting union supporters for the most
onerous tasks in the plant; by requesting supervisors to ha-
rass employees and to goad them into cursing them; by
issuing large numbers of disciplinary warnings by telling
employees not to speak to returning strikers; by requesting
a job applicant to engage in surveillance of the union activi-
ties of the employees, Respondent herein violated Section
8(a)(1) of the Act.
10. The aforesaid unfair labor practices have a close, in-
timate, and adverse effect on the free flow of commerce
within the meaning of Sections 2(6) and (7) of the Act.
REMEDY
Having found that Respondent herein has adopted a cal-
culated, long-term policy of committing serious and re-
peated unfair labor practices, I will recommend to the
Board an Order requiring that Respondent cease and desist
therefrom and that it take certain affirmative actions de-
signed to effectuate the purposes and policies of the Act. I
will recommend that the Board issue against Respondent a
so-called broad 8(a)(1) order designed to suppress any and
all violations of that section of the Act. I will further recom-
mend that Respondent be required to grant full and imme-
diate reinstatement to their former or substantially equiv-
alent positions to all of the discriminatees found in this
case, and that it make them whole for any loss of pay or
benefits which they have suffered by reason of the discrimi-
nations practiced against them, whether by way of dis-
charge, demotion, or suspension, in accordance with the
Woolworth formula,23 with interest thereon in accordance
with the adjusted prime rate used by the U.S. Internal Rev-
enue Service for computing interest on tax payments. Flor-
ida Steel Corporation, 231 NLRB 651 (1977); Isis Plumbing
& Heating Co., 138 NLRB 716 (1962). I will also recom-
mend that Respondent be required to post the usual notice,
notifying its employees of their rights and the results of this
case.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole,
and pursuant to Section 10(c) of the Act, I make the follow-
ing recommended:
ORDER2 4
The Respondent, Fry Foods, Inc., Tiffin, Ohio, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with the United
Steelworkers of America, AFL-CIO, as the exclusive col-
lective-bargaining representative of its full-time and part-
time production and maintenance employees, including
23 F W Woolworth Company, 90 NLRB 289 (1
9
50).
14 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.
group leaders, dock employees, and truckdrivers employed
at Respondent's Tiffin, Ohio, plant, excluding office clerical
employees, professional employees, guards, and supervisors
as defined in the Act.
(b) Dominating or assisting in the administration of the
Committee or with the formation or administration of any
other labor organization of its employees, and contributing
support to the Committee or to any other labor organiza-
tion of its employees.
(c) Coercively interrogating employees concerning their
union sentiments and activities.
(d) Creating among employees the impression that their
union activities are the subject of company surveillance.
(e) Threatening to close the plant or threatening to fire
employees because of their union activities or in the event
the Union should win a representation election.
(f) Telling employees that it will not bargain with the
Union even if it becomes the certified bargaining represent-
ative.
(g) Telling employees that an excessive and extended pe-
riod of time will elapse before the certified bargaining agent
is able to gain recognition.
(h) Asking employees not to speak with other employees
who are union sympathizers.
(i) Stating to employees that it would like to do physical
harm to union supporters or threatening to do physical
harm to union supporters.
(j) Committing physical assaults upon union sympathiz-
ers.
(k) Harassing union supporters on the job or instituting
new work rules by stepping up the enforcement of old rules,
by engaging in excessive surveillance, prohibiting employ-
ees from talking, assigning union sympathizers to more
onerous tasks, refusing to rotate them into other jobs, or by
any other means or method.
(1) Requesting supervisors to harass union sympathizers
and to goad such employees into cursing supervisors or
doing other insubordinate acts.
(m) Requesting job applicants or employees to engage in
surveillance of the union activities of employees.
(n) Instituting or effectuating a policy of written disci-
plinary warnings designed to harass or intimidate union
supporters.
(o) Altering the composition of the bargaining unit by
reclassifying positions from bargaining unit positions to su-
pervisory positions and promoting bargaining unit mem-
bers to such positions, while permitting them to continue to
do bargaining unit work, without first negotiating with the
Union.
(p) Refusing to provide the Union in a timely manner
with any information it requests which is relevant to the
exercise by the Union of its responsibilities as the certified
bargaining agent.
(q) Unilaterally granting wage increases, instituting a
new policy on sick excuses, enforcing a rule making 3 days
absence without notification a basis for discharge, changing
work rules or changing the lack of enforcement of old work
rules so to prohibit employees from talking to other em-
ployees or resting, imposing no-solicitation rule, instituting
job standards for the tasks, granting wage increases to or
reducing the wages of any employee, utilizing a practice of
98
FRY FOODS, INC.
issuing written disciplinary warnings for violation of work
rules, or otherwise unilaterally changing the wages. hours.
or terms and conditions of employment of any bargaining
unit employee without first notifying the Union and bar-
gaining collectively with it in good faith concerning such
proposed changes provided that nothing herein shall re-
quire Respondent to rescind any wage increase which it has
previously granted.
(r) Discouraging membership in or activities on behalf of
United Steelworkers of America, AFL CIO, or any other
labor organization, by suspending demotions. discharging
employees, or otherwise discriminating against them in
their hire or tenure.
(s) Discharging, suspending, or otherwise interfering
with, restraining, or coercing employees because they have
given testimony under the Act.
(t) Imposing or enforcing any job standard for the pack-
ing of onions or any other operation unless and until said
standard has been negotiated in good faith with the Union.
(u) Causing, requiring, or permitting its supervisors to
make detailed written notes of acts done and words uttered
by employees in the course of their employment.
(v) Threatening to replace unfair labor practice strikers
if they do not abandon their strike and return to work.
(w) Soliciting employee grievances and promising to im-
prove wages and benefits if employees reject union repre-
sentation.
(x) By any other means interfering with, restraining. or
coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the purposes and policies of the Act:
(a) Offer to Rowena Gannon, Mattie Taylor, Wanda
Depinet, Doris Kubis, Barbara Kay Fortney Tong, Susan
Neikirk, Tina Shetzer, Mary Jane Bodi, Bonnie Schroen.
Rose Ridner, Lynn Burlile, Elizabeth Glick, Barbara Bell,
Lina Runion, Betty Reinhart, Rita Caldwell, Patricia Da-
vis, Timothy Magers. Carol Lockard, Thelma Cameron,
Linda Firestone, Mildred Zallner, Polly Endicott, Deborah
Willborn, Ethel Long, Youlanda Phelps, Carolyn Bloom.
Brenda Taulbee, Fay Clinard, Charlotte Lucius, Mary
Elchert, Hank Conely, and to any other employee who was
suspended after July 18, 1977, pursuant to the policy or
practice of issuing written reprimands for violations of work
rules, full and immediate reinstatement to their former posi-
tions or, in the event that their former positions no longer
exist, to substantially equivalent employment, without
prejudice to their seniority or to other rights which they
formerly enjoyed.
(b) Make whole all of the employees and classes of em-
ployees named or designated in paragraph 2(a) of this Or-
der for any loss of pay and benefits which they may have
suffered by reason of the discrimination found herein. in the
manner described above in the section entitled "Remedy."
(c) Withdraw all recognition from the Committee as a
representative of any of its employees for the purposes of
dealing with Fry Foods, Inc., concerning grievances, labor
disputes, wages, rates of pay. hours of employment, or other
conditions of work and completely disestablish the Com-
mittee as such representative, provided that nothing herein
shall be construed as prohibiting its employees from form-
ing. joining, or assisting any labor organization.
(d) Expunge from the personnel records of all of its em-
ployees any written disciplinary warnings given to employ-
ees after July 18, 1977.
(e) Destroy all of the notebooks and other written re-
ports prepared by supervisors since July 18, 1977. in which
detailed daily accounts of minor words and deeds of em-
ployees have been reported.
(f) Provide to the Union all of the information requested
in its letters to Respondent on April 4. June 17. and Jul 12
and 18, 1977: and any other information which the Union
requests from Respondent which is relevant to the perform-
ance by the Union of its responsibilities as certified bargain-
ing agent.
(g) Recognize and, upon request, bargain collectively in
good faith with the United Steelworkers of America, AFL
CIO, as the exclusive collective-bargaining representative of
all of Respondent's employees in the unit set forth in para-
graph I(a) of this Order.
(h) Instruct its supervisors in writing to cease and desist
from harassing employees and goading them into acts and
words of insubordination, and post a signed copy of said
notice for a period of 60 days on company bulletin boards
and all places where notices to employees are customarily
posted.
(i) Cease giving effect to any and all changes in work
rules and changes in enforcement and implementation of
work rules which took place after March 25, 1977. unless
and until Respondent has bargained collectively in good
faith with the Union concerning the changes in said rules
and the implementation and enforcement thereof.
() Preserve and, upon request, make available to the
Board or its agents for examination and copying all pay roll
and other records necessary to analyze the amounts of
backpay due under the terms of this Order.
(k) Post at its Tiffin. Ohio, plant copies of the attached
notice marked "Appendix."2' Copies of the Appendix, to be
furnished to Respondent by the Regional Director for Re-
gion 8, after being duly signed by a representative of Re-
spondent, shall be posted by Respondent immediately upon
receipt thereof, and shall be maintained by it for a period of
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken to insure that
such notices are not altered, defaced, or covered bh any
other material.
(1) Notify the Regional Director for Region 8. in writing.
within 20 days from the date of this Order, what steps it has
taken to comply herewith.
2f In the event that this Order is enforced bh a judgment of the Uinled
States Court of Appeals., the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to Judg-
ment of the LUnited States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board"
APPENDIX
NOli(t: To EMPI.oYIt:S
POSTEI) B ORI)ER OF 1IE
NATIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
Fry Foods. Inc.. is posting this notice to comply with an
order of the National Labor Relations Board. This order
99
I)E(CISIONS OF NATIONAL LABOR RELATIONS BOARD
was issued after a hearing before an Administrative Law
Judge, iollowing which we were found to have violated sev-
eral provisions of the National l.abor Relations Act.
Wl wll.l NI() coercively interrogate employees con-
cerning their union sentiments and activities.
Wl WIl. N() create among employees the impres-
sion that their union activities are subject to company
surveillance.
Wt wl I[ Not threaten to close the plant or to dis-
charge employees because of their union activities or
because they select a union as their bargaining agent.
Wt xv i NoI tell employees that it will take a
lengthy and excessive period of time befire the certi-
fied bargaining agent is granted recognition.
WI witl. NOI threaten or state that we would like to
do physical harm to union sympathizers.
Wi lWI.I. NI commit assaults upon union sympa-
thizers.
Wt WIl.I Noi harass employees for union activities
by changing working rules or by enforcing work rules
which were previously not enforced, including chang-
ing dress requirements. prohibiting resting while work-
ing which does not interfere with production, prohibit-
ing reasonable amounts of talking while working,
engaging in intensive surveillance and reporting of mi-
nor acts and words of employees, refusing to rotate
employees into and out of onerous jobs, requesting su-
pervisors to goad employees into cursing them or en-
gaging in other insubordinate acts, or by any other
similar acts and conduct.
WI Will NoI foillow a policy or practice of assigning
union sympathizers to the most onerous jobs in the
plant.
WIE Wl.i. NOT threaten to replace unfair labor prac-
tice strikers if thev do not abandon their strike and
return to work.
WE Wl.l NOI promise improved wage benefits to
employees fir rejecting union representation.
W wlVi.l. NOI ask employees not to speak to other
employees who are union sympathizers.
WE WiLL N)I issue written disciplinary warnings in
order to harass union sympathizers.
WE Will. NO request job applicants to engage in
surveillance of union activities of other employees.
WE Will. Nol dominate a labor organization known
as the Committee, and WE NvIi.. withdraw and with-
hold recognition of the Committee as a representative
or spokesman for employees in grievances, labor dis-
putes, and other matters relating to wages, hours, and
terms and conditions of employment.
Wv wltl N(l discharge, suspend. or otherwise inter-
fere with. restrain, or coerce employees because they
have given testimon under the National Labor Rela-
tions Act.
WI Wii.. NoI discourage membership in or activities
on behalf of the United Steelworkers of America,
A:.I, (10. or any other labor organization, by sus-
pending. demoting, or discharging employees or other-
wise discriminating against them in their hire or ten-
ure.
WE Will.. NOT by any other means interfere with,
restrain, or coerce employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
WE WILL offer full and immediate reinstatement to
their former positions, or in the event that their former
positions no longer exist, to substantially equivalent
employment, without prejudice to their seniority or to
other rights which they formerly enjoyed to:
Rowena Gannon
Mattie Taylor
Wanda Depinet
Doris Kubis
Barbara Kay
Fortney Tong
Susan Neikirk
Tina Shetzer
Mary Jane Bodi
Bonnie Schroen
Rose Ridner
Mary Elchert
Lynn Burlile
Elizabeth Glick
Barbara Bell
Linda Runion
Betty Reinhart
Charlotte Lucius
Rita Caldwell
Patricia Davis
Timothy Magers
Carol Lockard
Thelma Cameron
Hank Conely
Linda Firestone
Mildred Zallner
Polly Endicott
Deborah Willborn
Ethel Long
Youlanda Phelps
Carolyn Bloom
Brenda Taulbee
Fay Clinard
and to any other employee who was suspended after
July 18, 1977. pursuant to the policy or practice of
issuing written reprimands for violation of work rules.
WE WILL make whole all of the employees and
classes of employees noted above for any loss of pay
and benefits which they may have suffered by reason
of the discrimination practices against them, with in-
terest.
WE w.l. recognize and bargain collectively in good
faith with United Steelworkers of America, AFL-CIO,
as the exclusive collective bargaining representative of
all of our full-time and part-time production and main-
tenance employees, including group leaders, dock em-
ployees, and truckdrivers employed at our Tiffin, Ohio,
plant, exclusive of office clerical employees, profes-
sional employees, guards, and supervisors as defined in
the Act.
WE WILL furnish to the United Steelworkers of
America, AFL-CIO, all of the information previously
requested from us concerning individual grievances,
wages, hours, and terms and conditions of employees
employed in the bargaining unit, WE WILL, in the fu-
ture, furnish to the United Steelworkers of America,
AFL CIO, in a timely manner any information which
it requests from us which is relevant to the perform-
ance by that Union of its function as bargaining agent.
WE WILL NOT make unilateral changes in wages,
hours, and terms and conditions of employment, and
wE wi.li notify the Union in advance of any good pro-
posed changes in wages, hours, and terms and condi-
tions of employment, and will bargain collectively in
10
FRY FOODS, INC.
good faith with the Union concerning such proposed
changes.
WE WILL discontinue to follow practices previously
followed which were unilaterally changed without no-
tification and bargain with the Union. These practices
include giving of written disciplinary warnings for vio-
lation of work rules, a work standard for the packing
of onions, the enforcement of newly-enforced dress
code, rules concerning talking and resting while work-
ing, a no-solicitation rule, and other newly-imposed or
newly-enforced rules.
WE WILL notify our supervisors in writing to cease
and desist from goading employees into cursing them
or engaging in other insubordinate acts.
WE WILL cease making and compiling notebooks
and detailed written reports concerning minor words
and deeds of employees while working, and WE WILL
destroy such books and reports which have previously
been made.
WE expunge from all personnel records all written
disciplinary warnings which were issued after July 18,
1977.
FRY FOODS, INC.
101