Gourmet Foods

National Labor Relations Board - Board Decisions

May 14, 1984

270 N.L.R.B. 578 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gourmet Foods, Inc. and Warehouse Employees of
St. Paul, Minnesota, Local Union No. 503,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 18-CA-6947, 18-CA-7081, 18-CA-
7144, and 18-CA-7251
14 May 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN, HUNTER, AND DENNIS
On 26 April 1982 Administrative Law Judge Mi-
chael 0. Miller issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party filed
cross-exceptions and supporting briefs. The Re-
spondent subsequently filed an answering brief to
their cross-exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision, and to adopt the recommended Order as
modified.
As fully set forth in the attached decision, the
judge found that the Respondent committed nu-
merous 8(a)(3) and (1) violations. We agree with
his findings. 2
We also agree with the judge that the General
Counsel failed to demonstrate the Union's majority
status and hence failed to support its argument for
a remedial bargaining order predicated on majority
status. In so doing, we specifically affirm his find-
ing, for the reasons he stated, that an appropriate
unit including the general warehouse employees
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In specific reference to the judge's findings about the 8(a)(3) allega-
tions involving employee Krenner, we interpret the judge's analysis of
the element of knowledge as a finding that the Respondent acted on the
belief that Krenner had been engaged in union activity when it warned
and discharged him. See, e.g., Riverfront Restaurant, 235 NLRB 319, 320
(1978). While the evidence did not demonstrate the Respondent knew
which particular prounion activities Krenner participated in (for example,
the Respondent was not shown to have known Krenner signed a union
authorization card), there was reliable evidence, described by the judge,
which provides a sound basis for finding that the Respondent believed
Krenner was engaged in union activity. Further, as stated by the judge,
the circumstances surrounding both the warning and the discharge rein-
force this finding. Thus, the Respondent knew about the existence of
union activity before the warning and the discharge, and was found to
have verbalized and unlawfully acted on its union animus both before
and after the warning and discharge. Also, the timing of the warning co-
incided with the Respondent's explicitly antiunion "get tough" policy,
the reason for the warning was appropriately found to be pretextual, and
the reason given by the Respondent for Krenner's discharge was correct-
ly found to evidence disparate treatment.
270 NLRB No. 113
must also have included at least the sewing room
employees. 3 Their inclusion negates the numerical
possibility of the General Counsel's having demon-
strated majority status.4 Therefore, because the in-
3 Our dissenting colleague would reverse the judge, find the sewing
room employees excluded from the appropriate unit, and therefore find
the Union represented a majority of unit employees as of the demand
date. In our view, the exclusion of the sewing room employees would
represent an unjustifiable fragmentation of an appropriate unit for the ap-
parent purpose of limiting the size of the unit to conform to the Union's
organizing efforts and to achieve majority status for the Union. As found
by the judge such exclusion can be justified neither by the number of
hours worked by the sewing room employees nor by the fact that they
are also students. During the relevant period, they were regularly em-
ployed for a sufficient number of hours to warrant their unit inclusion as
regular part-time employees. And the record reflects that several of the
part-time general warehouse employees, indisputably in the unit, were
students from the same school as the sewing room employees. Moreover,
what the dissent attempts to obscure in its detailed description of the
sewing room employees' conditions of employment is that the job of
sewing room employees is to perform warehouse functions under the su-
pervision of the warehouse supervisor. While the sewing room employ-
ees' wage rate is lower than that of the part-time general warehouse em-
ployees, explained at least in part by the lighter, less physically rigorous
work in the sewing room, the record does not demonstrate that either
group of part-time employees has actually received fringe benefits. While
on a different schedule of hours, the sewing room employees perform
their work while general warehouse employees are also working. Their
minimal contact with general warehouse employees is explained by their
separate work area, not closed off by a door from the general warehouse
area, which is, in turn, explained by the location of the units on which
they work in that room. In light of the commonality of function and su-
pervision between the sewing room employees and the general ware-
house employees, the insubstantial distinctions between the two groups of
employees, as well as the fact that the sewing room employees do not
share a community of interest with any other employees at the Respond-
ent's facility, we can see no legitimate justification for excluding the
sewing room employees from the general warehouse unit
4 There were 24 general warehouse employees, 9 sewing room em-
ployees, and 4 sales trainee/cooler employees in the appropriate unit
found by the judge. The judge found there were 16 valid authorization
cards as of the demand date; the 16 card signers were all general ware-
house employees. The General Counsel and the Charging Party both
argue that sewing room employee Herschel Foster should be excluded
from the unit and the Charging Party alone argues that sewing room em-
ployee Debbi Ross should be excluded from the unit; both employees
were included in the judge's count of sewing room employees. They con-
tend that Foster and Ross may be "presumed" to have begun their em-
ployment after the 14 October 1980 demand date because they began
their employment at some time during the 2-week payroll period ending
18 October 1980 and because Foster and Ross respectively worked 15
and 42 hours during that payroll period Their exclusion on this basis was
not raised to the judge; the General Counsel did not raise it in its brief to
the judge and the Charging Party did not file a posthearing brief to the
judge. Further, at the hearing the parties stipulated to the joint introduc-
tion in evidence of the Respondent's payroll records as reflecting the
general warehouse, the sewing room, and the sales trainee/cooler em-
ployees. Also, the General Counsel introduced in evidence a list of ware-
house employees which the Respondent submitted to the Region on 21
October 1980; that list included the names of Foster and Ross There was
no evidence submitted by the General Counsel or the Charging Party
showing that Foster or Ross began working after 14 October 1980. The
only rationale for exclusion now urged on exception is what the General
Counsel and the Charging Party refer to as a "presumption" of ineligibil-
ity. We find this to be an insufficient basis for concluding that Foster and
Ross should be excluded from the unit as of the demand date. It is the
General Counsel's burden to establish the Union's majority status if it
seeks a bargaining order remedy predicated on that status As part of that
burden, the General Counsel must establish the number of employees
within the appropriate unit on the critical date. See, e.g., Sumco Mfg. Co.,
251 NLRB 427 at fn. 2 (1980). Yet here, the General Counsel introduced
evidence indicating Foster and Ross may have been employed on the
critical date Considering the number of hours Foster and Ross worked
Continued
578
GOURMET FOODS
clusion or exclusion of an additional category of
employees in dispute-the sales trainee/cooler em-
ployees-is numerically nondeterminative and be-
cause that category of employees ceased to exist
several months after the Union's demand for recog-
nition, we do not find it necessary to decide here
whether they would have been appropriately in-
cluded in or excluded from the general warehouse
employees unit.
Having determined that the Union was not at
any relevant time the majority representative of the
Respondent's employees in an appropriate unit, the
judge apparently considered the matter of a bar-
gaining order remedy foreclosed. He found it un-
necessary to determine whether the Respondent's
misconduct would have warranted a bargaining
order remedy had majority status been demonstrat-
ed.5 Further, while referring to the Supreme
Court's dictum in NLRB v. Gissel Packing Co.,6
about "imposing a bargaining order, without need
of inquiry into majority status . . . in 'exceptional'
cases marked by 'outrageous' and 'pervasive' unfair
labor practices," the judge refrained from examin-
ing the appropriateness of granting a nonmajority
bargaining order,7 apparently because the General
Counsel did not specifically raise the issue.8
The Charging Party contends that a bargaining
order remedy is warranted here, even absent a
showing of the Union's majority status, because of
what it characterizes as the Respondent's "outra-
geous" and "pervasive" unfair labor practices. Had
majority status been demonstrated we would have
agreed with both the General Counsel and the
Charging Party that a remedial bargaining order
was warranted. The Respondent embarked on an
approximately 5-month campaign of unfair labor
practices almost immediately after it learned of the
likelihood its employees would seek union repre-
sentation. The campaign intensified following the
per payroll period through the end of the year there is a likelihood that
their employment during their first payroll period spanned the entire 2-
week period. In contrast, as emphasized above, the General Counsel and
the Charging Party introduced no evidence to support a presumption of
their nonemployment on the critical date. The General Counsel has thus
not demonstrated that the unit was conclusively limited to 31 employees.
Consequently, it has not shown that the 16 valid cards constitute a major-
ity showing in the unit.
6 Because he found no majority, the judge did not find the Respondent
violated Sec. 8(a)(5) by a refusal to bargain upon demand and by a subse-
quent unilateral change in attendance policies. We affirm the dismissal of
those 8(aX5) allegations.
6 395 U.S. 575, 613-614 (1969)
' Our reference to a nonmajority bargaining order is limited to those
situations in which a union has not been shown to have had majority sup-
port at any relevant time.
I The judge's decision here issued after United Dairy Farmers Coopera-
tive Assn., 257 NLRB 772 (1981) (herein United Dairy 1), in which the
Board, for the first time, imposed a bargaining order in the absence of
any showing of majority support, but before Conair Corp., 261 NLRB
1189 (1982), in which the Board next imposed such a remedy and specifi-
cally asserted the Board's authority to do so.
Union's withdrawal of an election petition and con-
tinued throughout an unfair labor practice strike
and the period of reinstatement. The violations
here include discriminatory discharge; discrimina-
tory discipline; threats of discharge and plant clo-
sure; and the retaliatory imposition of harsher
working conditions. All these violations directly af-
fected a number of employees. The impact of the
violations was likely heightened by the relatively
small size of the unit and by their orchestration and
commission by high-level management officials and
supervisory personnel. The Respondent's presi-
dent's statement early in the campaign that he
"would do anything to keep a union out" coupled
with the continuation and intensification of unfair
labor practices indicates the Respondent's predispo-
sition to engage in unlawful misconduct in response
to union activities. Given the circumstances of this
case, we would in all likelihood have found that
the possibility of erasing its effects and ensuring a
fair election by the use of traditional remedies was
slight and that the sentiment of a majority of the
employees, reflected by valid authorization cards,
would probably have been better protected by a
bargaining order than by an election. We do not,
however, now determine whether we would have
viewed the Respondent's misconduct as an "excep-
tional" case, within the description of the Gissel
category one, that is, "marked by 'outrageous' and
'pervasive' unfair labor practices" and "so coercive
that, even in the absence of an 8(a)(5) violation, a
bargaining order would have been necessary to
repair the unlawful effects" of the misconduct.9
9 Gissel Packing Co., supra at 613-615. In Gissel, the Supreme Court
approved the Board's use of a bargaining order remedy where "the
Board finds that the possibility of erasing the effects of past practices and
of ensuring a fair election (or a fair rerun) by the use of traditional reme-
dies, though present, is slight and that [majority] employee sentiment
once expressed through cards would, on balance, be better protected by a
bargaining order." (395 U.S. at 614.) The Court specifically limited the
effect of its holding to approval of a bargaining order involving "less ex-
traordinary cases marked by less pervasive practices which nonetheless
still have the tendency to undermine majority strength and impede the
election process." However, in its general discussion of possible factual
circumstances meriting the exercise of Board remedial authority, the
Court referred to a "third category of minor or less extensive unfair labor
practices, which, because of their minimal impact on the election machin-
ery, will not sustain a bargaining order." (395 U.S. at 615.) The Court did
not itself similarly define the characteristics of more extraordinary cases
marked by more pervasive practices-what have come to be known, and
will be referred to here, as Gissel category one cases. It instead began its
discussion by noting that, despite its reversal of the Fourth Circuit on all
major issues. the actual area of disagreement was not large since although
the Fourth Circuit did not "validate the general use of a bargaining order
in reliance on cards [it] nevertheless left open the possibility of imposing
a bargaining order, without need of inquiry into majority status on the
basis of cards or otherwise, in 'exceptional' cases marked by 'outrageous'
and 'pervasive' unfair labor practices." (395 U.S. at 613.) The Court fur-
ther continued to quote the Fourth Circuit decision in NVLRB v Logan
Packing Co., 386 F.2d 562, 570 (4th Cir. 1967), as saying that a bargaining
order would be appropriate if the unfair labor practices were of "such a
nature that their coercive effects cannot be eliminated by the application
Continued
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board's post-Gissel cases show an array of fac-
tual circumstances that have been determined to
fall within the Gissel category one, including some
which appear of equivalent or less severity1 ° than
the circumstances involved here and some which
are of clearly greater severity. Under these cir-
cumstances, we are not disposed to decide this case
on the narrower issue of a Gissel category determi-
nation since we have come to the conclusion that
we would, under no circumstances, issue a nonma-
jority bargaining order. 12
I.
The Board and two courts of appeals, the Third
Circuit and the D.C. Circuit, have directed atten-
tion to the nonmajority bargaining order issue on
several occasions within the past several years. 13
of traditional remedies, with the result that a fair and reliable election
cannot be had." (395 U.S. at 614.) The Court then went on to compare
the Fourth Circuit's statements to the established and "similar" Board
policy of issuing bargaining orders "in the absence of a § 8(a)(5) violation
or even a bargaining demand, when that was the only available, effective
remedy for substantial unfair labor practices." (395 U.S. 614.) It is the
Court's statements about the Fourth Circuit's statements that have been a
major element in the controversy over the Board's authority to issue non-
majority bargaining orders.
i' See, e.g., the three cases remanded by the Supreme Court to the
Board pursuant to its decision in Gissel. Heck's Inc., 180 NLRB 530
(1970), and 166 NLRB 674 (1967); General Steel Products, 180 NLRB 56
(1969), and 157 NLRB 636 (1966); Gissel Packing Co., 180 NLRB 54
(1969), and 157 NLRB 1065 (1966). See also Winco Petroleum Co., 241
NLRB 1118 (1979); Curtin Matheson Scientific, 228 NLRB 996 (1977).
"' See, e.g., Conair Corp., 261 NLRB 1189 (1982). But see United Su-
permarkets, 261 NLRB 1291 (1982), wherein the Board found the circum-
stances to "fall short" of the Gissel category one despite 7 discriminatory
discharges and approximately 31 additional independent violations of Sec.
8(aX 1).
12 Were we to determine simply that the Respondent's misconduct did
not fall within the Gissel category one, we would conceivably leave the
misimpression that the issuance of a nonmajority bargaining order was a
future possibility, and thereby engender needless litigation on the issue.
Were we to determine that the Respondent's misconduct did not fall
within Gissel category one and also state that we were not thereby ex-
pressing an opinion on the continued viability of nonmajority bargaining
order remedies, we would conceivably leave the impression that we no
longer adhered to Conair without providing our reasoning. We think the
better practice is to directly reach the issue and to state our position and
supporting rationale.
Is The first extensive examination of the issue was in the 1979 case of
United Dairy Farmers Cooperative Assn., 242 NLRB 1026 (herein United
Dairy I). Further examination, as well as the shift of a United Dairy I dis-
senting position to the majority position, occurred in United Dairy II,
supra, and Conair Corp., 261 NLRB 1189 (1982). Prior to United Dairy 1,
the Board had repeatedly declined to issue bargaining orders absent a
showing of majority support for the union. See, e.g., Fuqua Homes Mis-
souri, Inc., 201 NLRB 130 (1973); GTE Automatic Electric, 196 NLRB
902 (1972); Loray Corp., 184 NLRB 557 (1970); Scott's, Inc., 159 NLRB
1795 (1966), enfd. as modified sub nom. Electrical Workers IUE v. NLRB,
383 F.2d 230 (D.C. Cir. 1967), cert. denied 390 U.S. 904; J. P. Stevens &
Co., 157 NLRB 869 (1966), enfd. as modified 380 F.2d 292 (2d Cir. 1967),
cert. denied 389 U.S. 1005; W. H. Elson Bottling Co., 155 NLRB 714
(1965), enfd. as modified 379 F.2d 223 (6th Cir. 1967). In determining not
to impose bargaining orders in those cases, even in the face of character-
izations of respondents' conduct as "outrageous" and "pervasive," it em-
phasized the absence of showings of the unions' majority status. More-
over, in W. H. Elson, the Board stated: ". . in consideration of the ma-
jority principle in Section 9(a) of the Act, we are not convinced that the
policies of the Act require or even permit the issuance of a bargaining
order where majority status has not been attained." Thereafter, the Board
That attention has by no means led to a sustained
consensus among Board members or the courts.
That lack of consensus together with the compara-
tive recency of Board precedent asserting authority
to issue such orders led us, as a four-member Board
with two new members who had not earlier ad-
dressed the issue, to review the area.
Beginning with United Dairy I, 242 NLRB 1026,
a variety of differing positions have been articulat-
ed concerning whether the Board has the remedial
authority under Section 10(c) of the Act to impose
nonmajority bargaining orders and whether, assum-
ing its authority in that regard is not specifically
limited by statute, it should exercise any such au-
thority in view of the majority rule principle em-
bodied in the Act and of other policy consider-
ations. The following review provides an under-
standing of the parameters of the dispute as well as
of the particular points of contention.
In United Dairy I, a Board majority consisting of
Members Penello, Murphy, and Truesdale agreed
on the result not to impose a nonmajority bargain-
ing order. Members Murphy and Truesdale, based
on the above-quoted language from Gissel and
other Supreme Court comment about the breadth
of the Board's remedial authority under Section
10(c), found that the Board "may" have the statu-
tory authority to issue nonmajority bargaining
orders. However, while finding the respondent's
conduct in that case to fall within the "outrageous"
and "pervasive" category described in Gissel, they
chose not to exercise their "discretion" to grant
such a bargaining order because, under the facts of
the particular case, they deemed it "less destructive
of the Act's purposes" (most importantly the prin-
ciple of majority rule) to provide an election than
"risk negating [employee] choice . . . by imposing
a bargaining representative upon employees with-
out some history of majority support for the
Union." Id. at 1028. They stated that they would
continue to balance the competing interests, leaving
open the possibility they would issue a nonmajority
bargaining order in other circumstances. In con-
trast, Member Penello asserted that the Board
lacked remedial authority to issue a nonmajority
bargaining order. He noted the evolution of Board
precedent eschewing nonmajority bargaining order
remedies. He reviewed the majority rule principle
as a dominant theme in the Act's construction and
subsequent interpretation. He analogized the princi-
ple to another-freedom of contract-which was
found to preclude the Board from ordering a party
to agree to a contract provision. H. K. Porter Co. v.
continued to cite W H. Elson and to specifically refer to that statement
about its remedial authority.
580
GOURMET FOODS
NLRB, 397 U.S. 99 (1970). He concluded that the
principle of majority rule, recognized as a funda-
mental policy of the Act, necessarily limits the
Board's authority under Section 10(c). He inter-
preted Gissel as at most leaving open the issue of
the Board's authority to issue nonmajority bargain-
ing orders. Then Chairman Fanning and Member
Jenkins would have granted a nonmajority bargain-
ing order. They did not perceive any congressional
intent to limit the Board's broad remedial authority
by the principle of majority rule. They looked to
the Gissel language as Supreme Court recognition
of the Board's authority to grant a nonmajority
bargaining order remedy. They also looked to cir-
cuit court references and descriptions of the Gissel
languages as confirmation of that interpretation.
Moreover, they considered it appropriate to ac-
knowledge, consider, and then balance the princi-
ple of majority rule against the objective of fash-
ioning a remedy to best effectuate the policies of
the Act. Their balancing analysis led to their con-
clusion that, when the employer's misconduct has
frustrated employee free choice and prevented the
ascertainment of the majority's wishes, the only ef-
fective remedy is to enable the employees to expe-
rience the fruits of the alternative choice denied to
them so that they may ultimately make a free
choice.
On petition for review and cross-application for
enforcement of United Dairy I, the Third Circuit
announced that the Board had remedial authority
to issue nonmajority bargaining orders. It added
the caveat that in that case there existed a reasona-
ble possibility that the union would have attained
an election majority but for the action of the em-
ployer, and it was not deciding whether "the
Board lacks the authority" when such a reasonable
possibility is absent. ' 5While referring to the Gissel
language as dictum and while also questioning
whether the Supreme Court's purpose in including
such dictum was to guide lower courts or to
simply raise an issue of intellectual interest, the
court determined to follow its own prior descrip-
tions of the Gissel categories as including the requi-
site authority.' 6 The court's further analysis ap-
14 In none of those cases cited was the court involved being called
upon to enforce a nonmajority bargaining order. See NLRB v. Montgom-
ery Ward & Co., 554 F.2d 996, 1002 (10th Cir. 1977); NLRB v. Armcor
Industries, 535 F.2d 239 (3d Cir. 1976); J. P. Stevens & Co., 441 F.2d 514
(5th Cir. 1971).
Ia United Dairy Farmers Cooperative Assn. v. NLRB, 633 F.2d 1054 (3d
Cir. 1980).
't The court acknowledged that its own prior descriptions of the
Board's authority, as derived from Gissel, occurred only in review of
cases in which the Board had found majority status. United Dairy Farm-
ers, supra at 1066.
pears to have focused on the effects of denying the
Board such authority-that is, what it perceived as
the insufficiency of other remedies to redress the
interference with employee free choice and the
concurrent potential incentive for employers to ille-
gally prevent the attainment of majority status. It
maintained that these same concerns motivated the
Court and that the rationale of Gissel "suggests that
the mere absence of such indicia of majority sup-
port does not in itself preclude the issuance of a
bargaining order by the Board." (Id. at 1068.) The
court remanded the case to the Board for findings
as to whether the respondent's misconduct was
"outrageous" and "pervasive" and therefore war-
ranted issuance of a nonmajority bargaining order.
On remand, a three-member Board1 7 focused on
categorizing the misconduct and evaluating its
impact on the possibility of a fair election. On the
issue of the Board's remedial authority, then Chair-
man Fanning and Member Jenkins adhered to their
position in the case's orginal Decision and Order
while Member Zimmerman found it unnecessary to
determine whether the Board had such authority
although he recognized the Third Circuit's decision
as binding on the Board for the purposes of the
case.
The Board next addressed the issue in Conair
Corp., supra, 261 NLRB 1189 (1982). There, for the
first time, a majority of the full five-member
Board'8 asserted the Board's authority to issue a
nonmajority bargaining order. They reiterated ad-
herence to the Fanning-Jenkins position of United
Dairy I. They rearticulated (id. at 1194) their ra-
tionale that "in the exceptional Gissel category I
case, we find that the risk of imposing a minority
union on employees for an interim remedial bar-
gaining period is greatly outweighed by the risk
that, without a bargaining order, all employees
would be indefinitely denied their statutory right to
make a fair determination whether they desire
union representation." They also c"mmented on
the subject which had caused the court in United
Dairy to place a reservation on its holding-the
subject of whether a certain measure of union sup-
port, albeit less than a majority, would have to
exist as a basis for concluding that a respondent's
misconduct precluded, in fact, a union's enjoyment
of majority status. They stated (ibid.) they would
not "necessarily withhold a bargaining order in the
absence of a close election vote, a high majority
percentage card showing, or any other affirmative
17 At that time, the only participating Board members were then
Chairman Fanning and Members Jenkins and Zimmerman.
is Member Zimmerman joined with Members Fanning and Jenkins,
while then Chairman Van de Water and Member Hunter wrote separate
opinions dissenting on the nonmajority bargaining order remedy.
581
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
showing of a reasonable basis for protecting a
union's majority support."' 9 They described the
"critical predicate" of a nonmajority bargaining
order as a finding that an employer's unlawful con-
duct falls within Gissel category one. In his dissent,
then Chairman Van de Water followed the position
of Member Penello in United Dairy I that the
"[h]oldings of the Supreme Court, the plain words
of the statute, and its legislative history . . . estab-
lish that the Board's remedial authority is limited
by the majority rule doctrine." (Id. at 1195.) He
added that "even if the Board did not lack the req-
uisite statutory authority, [he] could not conclude
that employee free choice is best effectuated by im-
posing a labor organization upon employees with-
out their consent." (Ibid.) He also detailed his dis-
agreement with the Third Circuit opinion in United
Dairy. First, to explain what he perceived as an
inapt analogy between United Dairy and Gissel, he
pointed to the "fundamental difference" between
the expressed purpose of bargaining order remedies
in Gissel-to restore the status quo ante-and the
fact that a nonmajority bargaining order in United
Dairy did not reestablish preexisting conditions but
rather, based on speculation, created a bargaining
representative which was not designated or select-
ed by a majority of employees in accord with Sec-
tion 9(a). Second, he considered the court's "rea-
sonable possibility" standard and limitation to have
no support in Gissel and to lack empirical support
in view of the number of elections lost by unions
which have had a preelection 30-percent showing
of interest. Third, he referred to a 1981 opinion of
the Court of Appeals for the District of Colum-
bia,2 0 in which that court, although finding it un-
necessary to decide the nonmajority bargaining
order issue, expressed potential disagreement with
the Third Circuit's United Dairy decision. While
expressing a "deep concern" that the majority's as-
sumption of authority was proscribed by the Act,
Member Hunter focused on "important policy rea-
sons" for declining to issue nonmajority bargaining
orders. (Id. at 1198.) He stated that public confi-
dence in the Board as an impartial agency would
be eroded if the Board were perceived as imposing
a choice on employees instead of protecting the
employees' right to choose. Moreover, he contest-
ed the majority's characterization of the nonmajor-
19 Despite this assertion, the majority first noted (ibid.) that the "risk
of even temporarily contravening the wishes of an employee majority"
was lessened by an authorization card showing from approximately 46
percent of the respondent's employees and an election showing, which
followed the respondent misconduct, of approximately 33 percent of the
participating voters. They then found a reasonable basis existed for con-
cluding that the union would have enjoyed majority support but for the
respondent's unfair labor practices.
20 Teamsters Local 115 (Haddon House Food Products) v. NLRB, 640
F.2d 392 (1981), cert. denied 102 S.Ct. 141 (1981).
ity bargaining order as one which "best vindicates
the employees' right of self-determination."''2 In
his view, the damage to employees'. right of free
choice is exacerbated by the imposition of a choice.
Finally, he raised questions about potential difficul-
ty in applying any consistent standard in assessing
the seriousness of employer misconduct and the
consequent possibility that what would begin as an
exceptional remedy would become a commonplace
remedy.
In the most recent development regarding this
issue, the D.C. Circuit, on 15 November 1983,
issued its opinion based on Conair's petition for
review and the Board's cross-petition for enforce-
ment of its Order. 2 2 The court declined to enforce
the Board's nonmajority bargaining order remedy.
The court described the nonmajority bargaining
order issue as presenting the following dilemma
(721 F.2d at 1378):
. . . if the Board lacks authority to issue them,
employers who offend the law most egregious-
ly will escape the most stringent remedy in the
NLRB's arsenal; if the Board has the authority
and exercises it to sanction patent and inces-
sant unfair labor practices, employees may be
saddled for a prolonged period with a union
not enjoying majority support.
Its response to the dilemma followed along the
lines of Member Penello's opinion in United Dairy I
to the conclusion that "[g]iven the current shape of
the statute, however, we believe Congress has not
placed nonmajority bargaining orders within the
NLRB's remedial discretion."2 3 (Id. at 1384.)
In contrast, noting that Gissel and subsequent ju-
dicial interpretations of that decision were the
mainstay of the Board's claim of statutory author-
ity, the dissenting judge (Wald) agreed that such
precedent supports the Board's authority to issue
nonmajority bargaining orders. She goes on to find
that (1) neither statutory language nor legislative
21 Conair Corp., supra at 1194.
22 Conair Corp. v. NLRB, 721 F.2d 1355 (D.C. Cir. 1983) (Wald, J.,
dissenting).
'a An additional point made by the court in its analysis of the Act and
its legislative history is that Congress has been explicit in the one circum-
stance in which it has authorized a union's selection as exclusive bargain-
ing agent absent advance approval by a majority of employees-Sec. 8(f),
the building and construction industry provision. Further, it was noted
that Congress had expressly limited "prehire" agreements permitted by
that section by negating the agreements' effect as a bar to an election. It
was also noted that both the Board and the Supreme Court had subse-
quently stressed the voluntary, voidable character of 8(f) agreements and
made clear that all the benefits and legal rights attached to exclusive col-
lective-bargaining status only exist for a union party to an 8(f) agreement
when its majority status has been demonstrated. See, e.g., NLRB v. Iron
Workers Local 103, 434 U.S. 335 (1978); Dee Cee Floor Covering, 232
NLRB 421, 422 (1977); R. J. Smith Construction Co., 191 NLRB 693
(1971).
582
GOURMET FOODS
history "contains anything to show that Congress
intended to prohibit the Board from issuing a non-
majority bargaining order if it is truly necessary 'to
effectuate the purposes of the Act,"' (2) "the fun-
damental statutory policy of protecting employees'
freedom to choose by majority rule . . . is not un-
dermined but rather is advanced by a temporary
non-majority bargaining order where it is reasona-
ble to conclude that the union would have gained
majority support but for the employer's outrageous
and pervasive unfair labor practices, and where no
other remedial measures available will remove the
taint of those practices so as to permit a fair elec-
tion in the foreseeable future," 2 4 and (3) by deny-
ing the Board such authority, "the Board is de-
prived of its only effective means to remedy and
deter a massive campaign of coercive and illegal
conduct by an employer bent on crushing inchoate
union organization."
As is apparent from this review, the majority
rule principle has been the focus for Board oppo-
nents of nonmajority bargaining orders. In contrast,
the imposition of nonmajority bargaining orders as
the only effective remedy for "pervasive" and
"outrageous" unfair labor practices has been the
focus for Board proponents. Our own review of
the statute, its legislative history, Board and court
precedent, and legal commentary have convinced
us that the majority rule principle is such an inte-
gral part of the Act's current substance and proce-
dure that it must be adhered to in fashioning a
remedy, even in the most "exceptional" cases. We
view the principle as a direct limitation on the
Board's existing statutory remedial authority as
well as a policy that would render improper exer-
cise of any remedial authority to grant nonmajority
bargaining orders which the Board might possess.
We are thereby endorsing Member Penello's con-
curring and dissenting position in United Dairy I, as
expressed in parts I and II of that opinion, and as
further discussed by then Chairman Van de Water
in his Conair opinion, as well as Member Hunter's
position in Conair.2 5 There is substantial similarity
between these two positions in their acknowledge-
ment of the predominance of the majority rule
principle. The latter position may invite broader
examination of whether the remedial authority to
"effectuate the policies of the Act" warrants issu-
" In reaching this position Judge Wald relies on what she regards as a
"critical" finding of the Board: that a reasonable basis existed to conclude
that the union would have enjoyed majority status but for the respond-
ent's unfair labor practices. She appears to consider that such a finding
averts the strict dichotomy of the issue between employee freedom of
choice and majority rule on the one hand and the Board's evaluation of
an effective remedy and deterrent on the other hand.
25 For further explication of Member Hunter's position, see Hunter,
Conair. Minority Bargaining Orders Usher in 1984 at NLRB, 33 Lab. L.J.
571 (1982).
ance of such an order, but it finds its definitive
answer in the majority rule principle.2: According-
ly, we overrule those cases in which the Board has
found that it has statutory remedial authority to
issue nonmajority bargaining orders and in which
the Board has exercised that authority. 27
II.
Although we have stated our conclusions and
general endorsement of certain positions, we con-
sider it incumbent to further explicate the course of
our analysis. We start with the authority Congress
granted the Board to remedy unfair labor pactices
under Section 10(c) "to take such affirmative
action . . . as will effectuate the policies of this
Act." That authority though undeniably "broad"
and "subject to limited judicial review" 28 has been
recognized as limited when its exercise would "vio-
late a fundamental premise on which the Act is
based." 2 9 H. K Porter Co. v. NLRB, supra at 108.
In H. K Porter, the fundamental premise violated
was freedom of contract. There a Board order af-
firmed by the Court of Appeals for the D.C. Cir-
cuit required an employer to grant a union a con-
tractual dues-checkoff provision in response to the
employer's refusal to bargain in good faith about
the provision. As described by Member Penello in
United Dairy I, the Supreme Court "rejected the
court of appeals' approach of balancing conflicting
policy considerations and declined to examine the
merits of the remedy" and found that the Board
lacked the power to impose the remedy in dispute
26 We do not endorse the balance-of-competing-interests test proposed
by Members Murphy and Truesdale in United Dairy I. Adoption of that
test would require a case-by-case determination of whether, in the ab-
sence of a prior showing of majority support, it is less destructive of the
Act's purposes to provide for an election, even in the face of "outra-
geous" and "pervasive" unfair labor practices, than it is to risk negating
employee choice altogether by imposing a bargaining representative on
employees. See United Dairy 1, supra at 1028. We do not think such a
case-by-case balancing could ever be warranted. In our view the balance
is now conclusively weighted against issuing a nonmajority bargaining
order by the majority rule principle.
'I Conair Corp., 261 NLRB 1189 (1982). While we do not agree with
the Board's decision in United Dairy II, we do not expressly overrule it,
as it followed from the remand direction of the Third Circuit; we shall
not however consider it of precedential value.
2z Fibreboard Paper Products v. NLRB, 379 U.S. 203, 216 (1964).
20 Our dissenting colleague argues that the Board's remedial authority
includes the power "to devise remedies which will deter employers and
unions from engaging in unfair labor practices" and suggests that a deter-
rent effect justifies the use of nonmajority bargaining order remedies.
But, as stated in Republic Steel Corp. v. NLRB, 311 U.S. 7, 12 (1940):
". .. it is not enough to justify the Board's requirements to say that they
would have the effect of deterring persons from violating the Act. That
argument proves too much, for if such a deterrent effect is sufficient to
sustain an order of the Board, it would be free to set up any system of
penalties which it would deem adequate to that end." Thus the deter-
rence value alone, a value which remains nonquantifiable, cannot be the
basis for creation of a remedy. Further, because of what we view as the
statutory and policy impediments to the imposition of a nonmajority bar-
gaining order remedy, any potential deterrent value of such a remedy be-
comes an abstract and irrelevant consideration.
583
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as that authority resided solely with Congress.3 0
He drew what we consider to be several convinc-
ing analogies between H. K. Porter and the issue in-
volved here. Thus, in both cases (1) "it is claimed
that the Board can issue a remedial order that con-
flicts with a fundamental principle of the Act," (2)
"it is argued that violation of the basic precept
must be tolerated in order to further the policy of
the Act of securing employees' rights to bargain
collectively," and (3) "support for the extraordi-
nary remedy is allegedly found in the inadequacy
of less dramatic measures and Respondent's prior
violations of the Act."3 1 We agree with Member
Penello that "the policy of majority rule . . .
cannot be seriously contended to be . . . any less
fundamental than freedom of contract" (id.), and
that the rationale of H. K. Porter must be applied
here.
The principle of majority rule is written into
Section 9(a) of the National Labor Relations Act:
"Representatives designated or selected . . . by the
majority of the employees in a unit . . . shall be the
exclusive representatives of all the employees in
such unit for the purposes of collective bargaining
.... " (Emphasis added.) It is this standard of ma-
jority rule that enables the Act's policies of "pro-
tecting the exercise by workers of. . . designation
of representatives of their own choosing" 3 2 and
"encouraging the practice and procedures of col-
lective bargaining"3 3 to be realized. For it is the
culmination of choice by a majority of employees
that leads to the process of collective bargaining;
the choice by a majority gives legitimacy and ef-
fectiveness to a union's role as exclusive bargaining
representative and correlatively gives rise to an
employer's obligation to deal exclusively with that
representative.3 4 As Senator Wagner stated in sup-
port of the bill which became the foundation for
our current Act: "[C]ollective bargaining can be
really effective only when workers are sufficiently
solidified in their interests to make one agreement
covering all. This is possible only by means of ma-
30 United Dairy 1, supra, 242 NLRB at 1041.
3' Id.
32 National Labor Relations Act, 29 U.S.C. § 151.
3S Id.
34 In a discussion of the Wagner Act's legislative history in her dis-
senting opinion in Conair, Circuit Judge Wald asserted that the principle
of majority rule was therein discussed in the context of an employer's
bargaining obligations or the employees' representation choices but not as
a limitation on the Board's powers. She further asserted that "[i]n general
. . . non-majority bargaining orders as remedial measures were not dis-
cussed," and cited to a House report setting forth "examples of remedial
measures within [the] Board's power." Conair Corp. v. NLRB, supra, 721
F.2d at 1395. We note, however, that among the examples given in that
report of affirmative remedial actions to effectuate the policies of the bill
was that of "recognition of the agency chosen by the majority for the pur-
poses of collective bargaining" (emphasis added). H.R. Rept. No. 972,
74th Cong., Ist Sess. 21 (1935), reprinted in 2 Leg. Hist. of the National
Labor Relations Act, 1935, at 2978 (1949).
jority rule."3 5 In Senate debate on the bill, Senator
Wagner further stated:3 6
Collective bargaining is not an artificial pro-
cedure devoted to an unknown end. Its object
is the making of agreements which will stabi-
lize employment conditions and promote fair
working standards. It is well nigh universally
recognized that it is practically impossible to
apply two or more sets of agreements to one
unit of workers at the same time or to apply
the terms of one agreement to only a portion
of the workers in a single unit. For this reason
collective bargaining means majority rule. This
rule is conducive not only to agreements, but
also to friendly relations. Workers find it easier
to approach their employers in a spirit of good
will if they are not torn by internal dissent.
And employers, wherever majority rule has
been given a fair chance, have discovered it
more profitable to deal with a single group
than to be harassed by a constant series of ne-
gotiations with rival factions.
Majority rule makes it clear that the guaran-
ty of the right of employees to bargain collec-
tively through representatives of their own
choosing must not be misapplied so as to
permit employers to interfere with the practi-
cal effectuation of that right by bargaining
with individuals or minority groups in their
own behalf after representatives have been
picked by the majority to represent all. [Empha-
sis added.] 3 7
As pointed out by the court majority in
Conair,38 another aspect of the Act's legislative
history that supports our view relates to the Taft-
Hartley Act's amendment to Section 7 providing
that employees "shall also have the right to refrain
from any or all such [concerted] activities."3 9 The
court quoted a House Report's comments on that
language:
A committee amendment assures that when
the law states that employees are to have the
rights guaranteed in section 7, the Board will be
prevented from compelling employees to exer-
cise such rights against their will .... In
35 Hearings on S. 1958 before the Senate Comm. on Education and
Labor, 74th Cong., Ist Sess. (1935), reprinted in I Leg. Hist. of the Na-
tional Labor Relations Act, 1935, at 1419 (1949).
30 Member Penello excerpted additional statements from the legislative
history to show the centrality of the majority rule principle in collective
bargaining and its derivation from the same principles as democracy in
government. See discussion in United Dairy I, supra at 1040.
37 79 Cong. Rec. 7565 (1935), reprinted in 2 Leg. Hist. of the National
Labor Relations Act, 1935, at 2336 (1949).
a8 Conair Corp. v. NLRB, supra at 721 F.2d at 1382.
39 Labor Management Relations Act, Ch. 120, § 101.61 Stat. 136, 140
(1947).
584
GOURMET FOODS
other words, when Congress grants to employ-
ees the right to engage in specified activities, it
also means to grant them the right to refrain
from engaging therein if they do not wish to
do so. [Emphasis added.] 40
The court gleans from the report a legislative
intent "to preclude the Board from imposing the
agency's choice on the employees." We view this
point as significant since in granting a nonmajority
bargaining order the Board indisputably would be
substituting its own designation and selection of an
exclusive representative for that of the employees.
We agree with Member Penello that the theme
of majority rule and minority rights has been domi-
nant in the legal development of the Act and we
adopt his analysis in that regard. 4 1
We similarly agree with Member Penello that
the Gissel category one dictum does not dispose of
the issue here and we adopt his entire analysis of
the import of that dictum. 4 2 Thus, we agree with
his interpretation4 3 that
[T]he Court's description of category one
cases was limited to approving the Board's
"policy of issuing a bargaining order, in the
40 H.R. Rept. No. 245, 80th Cong., 188 Sess. 27 (1947).
4 United Dairy I, supra, 242 NLRB at 1040-1041.
"4 United Dairy I, supra, 242 NLRB at 1038-1040.
4S Member Penello found support for this interpretation of Gissel, inter
alia, in the Court's holding with regard to Sinclair Ca, 164 NLRB 261
(1967), one of the four cases involved therein. The Court found in Sin-
clair, where the union had a valid card majority, that the Board did not
have to make the determination called for in category two cases because
the Board had already found that the employer's misconduct was "so co-
ercive that, even in the absence of an 8(aXS) violation, a bargaining order
would have been necessary to repair the unlawful effect of those threats."
NLRB P. Gissel Packing Co., supra, 395 U.S. at 615. The majority and
dissenting opinions of the D.C. Circuit in Conair debate the proper inter-
pretation of that Court finding, with the dissent asserting that "the
Court's language may be read to mean that the Court did not feel it nec-
essary to inquire into the majority status of the union in disposing of the
Sinclair case." (Conair Corp. v. NLRB, supra, 721 F.2d at 1392.) Refer-
ence back to the trial examiner's decision in Sinclair, summarily affirmed
by the Board at 164 NLRB 261 (1967), reveals that the dissent's interpre-
tation is not supportable. In his decision, the trial examiner found the re-
spondent violated Sec. 8(aX5) and (1) by its refusal to bargain with the
union, which represented a majority of the respondent's employees, and
recommended a bargaining order issue. He added that even if the record
had warranted the conclusion, contended for by the respondent, that it
relied on a bona fide doubt of the union's majority in refusing to bargain,
he would nonetheless recommend the same bargaining order; in the latter
regard, he reasoned that the union had represented a clear majority when
the respondent began its unlawful campaign directed at destroying the
majority and that any loss of support revealed by the subsequent election
was attributable to the respondent's unfair labor practices. Sinclair Co.,
164 NLRB at 269. At the time of the Board's Sinclair decision, a neces-
sary element of the General Counsel's case in proving an 8(aX5) allega-
tion of refusal to recognize and bargain on the request of a majority-sup-
ported union was the respondent's bad faith in rejecting the union's re-
quest. Sinclair Co., 164 NLRB at 269 fn. 16. By his alternative analysis,
the trial examiner in Sinclair was clearly postulating a failure of proof on
the bad-faith element alone and not on the element of majority status.
Thus, when the Court's discussion of Sinclair is viewed in relation to the
specific Board findings in that case there is no foundation for asserting
that the Court was authorizing bargaining orders without regard to ma-
jority status.
absence of a §8(a)(5) violation or even a bar-
gaining demand, when that was the only avail-
able, effective remedy for substantial unfair
labor practices. .... "44
We further agree that "even under the interpreta-
tion of Gissel most favorable to [Board proponents
of nonmajority bargaining orders], all that can be
fairly said is that the Court left open the issue of
whether the Board has the statutory authority to
issue a bargaining order in the absence of a show-
ing that the union ever enjoyed majority sup-
port." 45
Following from the above discussion we con-
clude that nonmajority bargaining order remedies
are not within our remedial discretion. 46 In reach-
ing this conclusion we are cognizant of the ap-
proaches to the majority rule principle taken by
Board proponents of nonmajority bargaining orders
and the Third Circuit and Judge Wald of the D.C.
Circuit. Neither of these approaches convinces us
that issuance of a nonmajority bargaining order
falls within an application of the majority rule prin-
ciple. Rather, attempts to stretch the majority rule
principle to accommodate an absence of proof of
majority status or speculation about proof of ma-
jority status serves only to reinforce how central
the majority rule concept is in the framework of
the Act.
In United Dairy I, then Chairman Fanning and
Member Jenkins argued that the Board regularly
departs from the majority rule principle. They gen-
erally characterized the departures as the Board's
failure to require conclusive proof of current majori-
ty support when issuing bargaining orders, 4 7 and
sought to classify a nonmajority bargaining order
situation as simply another situation in which con-
clusive proof of current majority status would not
be required. However, the fact that the Board and
the courts have accepted different modes of proof
of majority status under different circumstances 4 8
ii United Dairy I, supra, 242 NLRB at 1039.
': Id. at 1040.
6 See Conair Corp. v. NLRB, supra, 721 F.2d at 1391; Conair Corp.,
261 NLRB at 1198; United Dairy 1, 242 NLRB at 1042.
47 They pointed to the "recognized limitations of authorization cards
as absolute proof of majority support for the union." They pointed to the
fact that a "union may be certified even though less than a majority of
the unit employees cast ballots." They pointed to the issuance of a bar-
gaining order "after a union, which bases its claim . . on signed authori-
zation cards, has lost an election following flagrant unfair labor prac-
tices." United Dairy 1, supra at 1034.
48 See the Court's statement in Gissel (395 U.S. at 603), "that the cards,
though admittedly inferior to the election process, can adequately reflect
employee sentiment when that process has been impeded, needs no ex-
tended discussion." See also Regal 8 Inn, 222 NLRB 1258 (1976); Piper
Industries, 212 NLRB 474 (1974); Stiefel Construction, 65 NLRB 925
(1946), for an explanation that the Board will permit an election to be
decided by a majority of the valid votes cast in an election so long as a
Continued
585
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is not equivalent to and cannot justify dispensing
entirely with reliable proof of some sort that a ma-
jority of employees in a unit, at some relevant time,
in some recognized form, asserted their choice and
selected and designated a union as their respresen-
tative.4 9
The Third Circuit and Judge Wald of the D.C.
Circuit appear to have attempted to satisfy the ma-
jority rule principle when they limited their con-
clusions about the Board's remedial authority to
those situations in which a "reasonable possibility"
or a "reasonable basis" exists for concluding the
union would have enjoyed majority support but for
a respondent's unfair labor practices.5 0 General cri-
teria for determining what evidence would consti-
tute a "reasonable possibility" or "reasonable basis"
were not promulgated. In our view application of
such standards would result in the substitution of
guesswork and speculation for objective evidence,
thereby eroding the majority rule principle. As
stated by the court majority in Conair, absent ob-
jective evidence of majority status "the Board
cannot estimate with any degree of reliability how
the employees would have responded in a free
election." 5 1
We now turn from our position on the scope of
our statutory remedial authority to our position re-
garding those policy considerations which would
compel us to decline to issue a nonmajority bar-
gaining order even if we had the authority to do
so. As described above, Member Hunter has al-
ready forcefully charted out this position in his
Conair opinion. Thus he stated:
representative complement of eligible employees participates in the elec-
tion. These cases indicate that the Board considers assent to abide by the
results of an election implicit in the consent of the parties to the conduct
of the election, and considers that employees who do not vote acquiesce
in the majority choice of those voting, absent interference with the right
to vote or exercise of free choice.
49 We note that then Chairman Fanning and Member Jenkins pointed
to one case in which the Board issued a bargaining order without a dem-
onstration of majority status among the employees affected by the bar-
gaining order. Garwin Corp., 153 NLRB 664 (1965). In that case, an em-
ployer had attempted to avoid its statutory bargaining obligation toward
a union, whose majority status had been long established, by relocating to
a distant site. The Board's bargaining order remedy at the new location
was not enforced precisely because it "depriveld] employees of a basic
right of free choice on the theory that this is the best way-or at least a
permissible way-to deprive the Employer of the fruits of his proscribed
conduct." Garment Workers Local 57 v. NLRB, 374 F.2d 295 (D.C. Cir.
1967). On remand the Board appeared to retreat from its earlier position
by accepting that the Act's objectives could be achieved, consistent with
the Court's decision, without resort to an unconditional bargaining order.
It fashioned a variety of remedies designed to provide employees a free
atmosphere in which to formulate their representational desires but or-
dered bargaining only upon proof that a majority of employees in the unit
affected had designated the union as their representative. Garwin Corp.,
169 NLRB 1030 (1968).
so Conair Corp. v NLRB, supra, 721 F.2d at 1401; United Dairy Farm-
ers Cooperative Assn. v. NLRB, supra, 633 F.2d at 1069 and fn. 16.
1i Conair Corp. v. NLRB, supra, 721 F.2d at 1378.
. . .the principle of majority rule is so much a
part of established Board policy and Board
precedent, and looms so large in the public's
understanding and acceptance of this Board's
function in industrial life, that undercutting
that principle by issuing a nonmajority bar-
gaining order can serve only to diminish the
heretofore widely held public view of the
Board as an impartial agency that protects the
employees' right to choose under Section 7 of
the Act, but does not make that choice for em-
ployees.
When all is said and done, it is the particular
employees involved here who will have to live
with the Board's selection of a bargaining rep-
resentative for them. And this selection has
been accomplished without benefit of an elec-
tion or any other clear and objective manifes-
tation that the selection of that representative
reflects the wishes of a majority of the em-
ployees.5 2
We reiterate simply that the undesirable and unac-
ceptable results of forsaking the majority rule prin-
ciple and granting a nonmajority bargaining order
remedy are governmental imposition of a choice of
representative in lieu of governmental protection of
the right to choose that representative and the neg-
ative impact of such imposition on the public's per-
ception of the Board as an impartial agency. We
have considered the essential policy argument of
Board proponents of nonmajority bargaining
orders, i.e., that "where the employer's misconduct
has prevented the ascertainment of the wishes of
the majority . . . the only effective remedy to
offset this unlawful action is a bargaining order." 5 3
We seriously question however whether a nonma-
jority bargaining order, in practice, is an effective
remedy. The bargaining environment established at
the Board's instigation alone does not replicate that
which arises from employees' impetus. What is
lacking is the leverage normally possessed by ex-
clusive bargaining representatives that derives from
unions' and employers' knowledge that a majority
of employees at one time, in some form, united in
their support for a union and may do so again in
support of bargaining demands. To gain that lever-
age, employees may be called on to demonstrate
active support for a representative in a far more
open way than a secret-ballot election. According-
ly, in imposing a representative on employees, the
Board may be changing only the sphere of employ-
52 Conair Corp., 261 NLRB at 1198.
:' United Dairy 1, supra at 1036 (concurring and dissenting opinion of
then Chairman Fanning and Member Jenkins).
586
GOURMET FOODS
ees' choice. And yet the Board can be no more
certain that, in this new sphere of employee choice,
employees can more freely exercise their choice
without regard to any lingering effects of massive
unfair labor practices5 4 than it can be if a new
election is directed after the Board has applied tra-
ditional as well as appropriate extraordinary reme-
dies. The Board can be certain, however, of the
possibility that it is forcing a majority of employees
who do not have an interest in participating in the
collective-bargaining process into that process and,
potentially and consequently, into undesired terms
and conditions of employment negotiated by an un-
chosen representative. Given these policy consider-
ations we do not believe we would ever be justi-
fied in granting a nonmajority bargaining order
remedy.
While we have determined that nonmajority bar-
gaining orders cannot be considered a remedial
option, we emphasize that in response to flagrant
and repeated violations of the statute we will con-
tinue to impose all appropriate traditional and ex-
traordinary remedies at our disposal. In this case,
for example, in addition to adopting those remedies
recommended by the judge, 55 we shall also require
the Respondent to mail copies of the notice to em-
ployees to all those employees who have been on
the payroll since 10 October 1980. That is the date
when the Respondent began its campaign of unfair
labor practices. Because this case involves exten-
sive violations which, as the judge found, exhibit
"a general disregard for the employees' fundamen-
tal rights," we thereby seek to ensure that all of the
Respondent's employees who may have been di-
rectly affected by the violations or by knowledge
of the violations throughout the long period this
case has been pending are assured that such unlaw-
ful acts are being remedied and will not be repeat-
ed.5 6
AMENDED CONCLUSIONS OF LAW
Delete paragraph 5 of the judge's "Further Con-
clusions of Law" and renumber the subsequent
paragraph.
1' A similar argument is made in a recent law review article in which
it is concluded that the "promise [of Gissel-type bargaining orders in gen-
eral) has proved-and must inevitably prove-illusory." Weiler, Promises
to Keep: Securing Workers' Rights to Self-Organization under the NLRA, 96
Harv. L. Rev. 1769 (1983) We believe, however, that the value of major-
ity bargaining orders lies in restoring employees to their previously dem-
onstrated choice.
5. We modify the judge's recommended order and notice to employees
to conform to his findings and recommended remedy by adding the name
Michael Pettis to the list of those employees to be made whole for the
failure to reinstate them to their former positions and by ordering the
revocation of all warnings given involving the failure to meet the 1200
case production quota. We have also added appropriate expunction lan-
guage. Sterling Sugars, 261 NLRB 472 (1982)
' Eaastern Maine .ledical Center, 253 NLRB 224 (1980).
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Gourmet Foods, Inc., St. Paul, Minneso-
ta, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraphs 2(c),
(e), and (f).
"(c) Make unfair labor practice strikers Michael
Pettis, Wayne Kolberg, James Ricker, and Steven
Schoenecker whole for any loss of earnings they
may have suffered as a result of the Respondent's
failure to reinstate them at the conclusion of the
strike to their former positions, in the manner set
forth in the section of the judge's decision entitled
'The Remedy."'
"(e) Remove from its files any reference to the
unlawful warning and the termination of employee
Richard Krenner; to the warning given to employ-
ee Lloyd Schmotter on or about 12 November
1980 for failure to meet the unlawfully increased
1200 case production quota and to warnings given
to any other employees for failure to meet such
quota; and to fines for misperformance of job
duties in relation to specific employees; and notify
in writing each employee affected by the described
conduct that the Respondent has complied with
this provision and that its unlawful conduct will
not be used as a basis for future personnel action
against such employees.
"(f) Post at its place of business in St. Paul, Min-
nesota, copies of the attached notice marked "Ap-
pendix." 5 5 Copies of said notice, on forms provid-
ed by the Regional Director for Region 18, after
being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consec-
utive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
"Copies of said notice shall also be mailed to the
homes of all present employees and all employees
on the Respondent's payroll since 10 October
1980."
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER DENNIS, concurring.
The Charging Party's exceptions raise the issue
whether the Board possesses the statutory author-
ity to remedy an employer's unfair labor practices
by requiring it to bargain with a union that does
not represent the majority of the employer's work-
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ers. The Third Circuit decided that we do have
such power under the Act.' The District of Co-
lumbia Circuit held to the contrary.2 After consid-
ering the issue in light of these court decisions, as
well as the conflicting opinions expressed in the un-
derlying Board cases,3 I am persuaded that the
Conair court carefully and correctly analyzed the
issue in section V,A of its decision. I therefore rely
on that court's reasoning that the imposition of
nonmajority bargaining orders is inconsistent with
the Act's bedrock principles of employee free
choice and majority rule.4
One supporting argument against granting non-
majority bargaining orders that the Conair court
touched on only briefly deserves elaboration. 5 In
his separate opinion in United Dairy,6 former
Member Penello drew an apt analogy between the
issue presented here and the one the Supreme
Court addressed in H. K. Porter.7 In H. K. Porter,
the Board and the court of appeals ordered an em-
ployer to accept a dues-checkoff provision in its
labor contract to remedy its refusal to bargain in
good faith with the union. The Supreme Court re-
versed, stating: 8
The Board's remedial powers under § 10 of
the Act are broad, but they are limited to car-
rying out the policies of the Act itself. One of
these fundamental policies is freedom of con-
tract. While the parties' freedom of contract is
not absolute under the Act, allowing the
Board to compel agreement when the parties
themselves are unable to agree would violate
the fundamental premise on which the Act is
based-private bargaining under governmental
supervision of the procedure alone, without
any official compulsion over the actual terms
of the contract. [Footnotes omitted.]
United Dairy Farmers Cooperative Assn. v. NLRB, 633 F.2d 1054
(1980).
2 Conair Corp. v. NLRB, 721 F.2d 1355 (1983).
3 United Dairy Farmers Cooperative Assn., 242 NLRB 1026 (1979), re-
manded 633 F.2d 1054 (3d Cir. 1980), supplemental decision 257 NLRB
772 (1981); Conair Corp., 261 NLRB 1189 (1982), enf. denied in pertinent
part 721 F.2d 1355 (D.C. Cir. 1983).
4 I agree with my colleagues' unfair labor practice findings and their
notice-mailing requirement.
I agree with the judge's inclusion of the sewing room employees in the
unit for the reasons he stated, but find it unnecessary to decide whether
he also properly included the sales trainee/cooler employees, because
their exclusion would leave the Union with only 16 valid cards in a 33-
employee unit.
Even if, contrary to my reading of the Act, the Board had the statuto-
ry authority to issue a nonmajority bargaining order, I would decline to
issue one here because, on the facts of this case, I do not believe that
such an order would best effectuate the policies of the Act.
6 721 F.2d at 1381, 1384 fn. 93.
e 242 NLRB 1038, 1041-1042.
7 H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).
8 Id. at 108.
Put differently, the Court concluded that the
Board's remedial authority extends only to the
extent that it does not impinge on principles Con-
gress embodied elsewhere in the Act. Nor was the
Court swayed by the possibility that such a limita-
tion left the Board with inadequate authority to
deal with significant labor problems, stating:9
[I]t is the job of Congress, not the Board or
the courts, to decide when and if it is neces-
sary to allow governmental review of propos-
als for collective-bargaining agreements and
compulsory submission to one side's demands.
The present Act does not envision such a
process.
In language echoing that of the Supreme Court
in H. K. Porter, the court of appeals in Conair iden-
tified the fundamental statutory principles at stake
here and noted their incompatibility with nonma-
jority bargaining orders, as follows:' 0
Our national labor relations policy is de-
signed to "effectuat[e] ascertainable employee
free choice" and "expressed" majority senti-
ment. NLRB v. Gissel, 395 U.S. 575 at 614. A
nonmajority bargaining order departs from this
design. Absent a union election victory or
some other concrete manifestation of majority
assent to union representation, it is impossible
to project the employees' choice reliably; im-
position of a bargaining order in these circum-
stances runs a high risk of opposing the major-
ity's will.... Without a clear direction from
Congress, we are not prepared to recognize
administrative authority, or arrogate power to
ourselves, to remedy one possible injustice by
taking the substantial chance of imposing an-
other.
MEMBER ZIMMERMAN, dissenting.
My colleagues in the majority have erred twice
in one decision. First, they have determined that
for statutory and policy reasons the Board lacks
the authority to remedy an employer's egregious
unlawful conduct with a bargaining order unless
the union involved has at some relevant time
achieved a showing of majority status in an appro-
priate employee bargaining unit. Second, they have
held that the Union here never achieved a majority
showing in an appropriate unit. I dissent on both
counts.
On the paramount issue of the remedial nonma-
jority bargaining order, for reasons discussed in
sections I through III of this opinion, I adhere to
9 Id. at 109.
i0 721 F.2d at 1383.
588
GOURMET FOODS
the view expressed by the majority in Conair Corp.,
261 NLRB 1189 (1982), and shared by several
courts of appeals,' that the Board has the authority
under Section 10(c) of the Act to impose such an
order in exceptional unfair labor practice cases, de-
scribed by the Supreme Court in NLRB v. Gissel
Packing Co., 395 U.S. 575, 613-617 (1969). Not
only does the Board have such authority, it should
exercise that authority in cases of the most flagrant
and egregious unfair labor practices. Otherwise, the
Board will fail to fulfill its statutory mandate to
prevent unfair labor practices and its obligation to
preserve employee rights to self-organization and
free choice of a collective-bargaining representa-
tive. Those rights cannot be adequately protected
if, in exceptional cases, employers are permitted by
the Board to engage in unlawful acts that are so
coercive as to prevent majority support from ever
developing. The contrary view of the majority in
overruling Conair rests on a questionable interpre-
tation of the Court's famous dictum in Gissel, on a
distortion of the principle of majority rule, and on
an inappropriate disclaimer of restitutional and de-
terrent powers vested in the Board through the
Act.
On the issue of the Union's majority status at
some relevant time in this case, I would reverse the
judge's unit findings, exclude sewing employees
and sales trainee/cooler employees from the gener-
al warehouse employee unit that the Union sought
to represent, and find that the Union achieved an
authorization card showing of majority support
within the described appropriate unit. Based on this
showing, I would issue a bargaining order to
remedy the Respondent's 6-month campaign of
unfair labor practices which followed the Union's
achievement of majority status and its demand to
the Respondent for recognition. On this issue,
Chairman Dotson and Member Hunter do not find
that a majority-based bargaining order would be in-
appropriate. They disagree with me only as to the
appropriate unit for measuring the Union's majority
claim.2
i United Dairy Farmers Cooperative Assn. v NLRB, 633 F.2d 1054 (3d
Cir. 1980); NLRB v. S. S. Logan Packing Co., 386 F.2d 562 (4th Cir.
1967); J. P Stevens Co. v. NLRB, 441 F.2d 514 (5th Cir. 1971); N.LRB v
Montgomery Ward & Co., 554 F.2d 996 (10th Cir. 1977); Ona Corp. v.
NLRB., 729 F.2d 713, 714 fn. 4 (11th Cir. 1984). Contra Conair Corp. v.
NLRB, 721 F.2d 1355 (D.C. Cir. 1983) (Wald, J., dissenting).
2 Because I would find that the Union did in fact have majority sup-
port at the onset of the Respondent's unfair labor practices. I find no
need to decide whether those unfair labor practices were of such severity
as would justify issuance of a remedial nonmajority bargaining order Ac-
cordingly, I will focus only on the authority and, in appropriate circum-
stances, necessity for such an order.
I.
Fifteen years ago, the Supreme Court identified
in Gissel a class of "outrageous" and "pervasive"
unfair labor practices of "such a nature that their
coercive effects cannot be eliminated by the appli-
cation of traditional remedies, with the result that a
fair and reliable election cannot be had." In "ex-
ceptional" cases involving such unfair labor prac-
tices, now often denominated Gissel category one
cases, the Court agreed with the Fourth Circuit in
NLRB v. S. S. Logan Packing Co., supra, 386 F.2d
at 570 (1967), about "the possibility of imposing a
bargaining order, without need of inquiry into ma-
jority status on the basis of cards or otherwise."'
The Gissel Court's direct ruling on remedial bar-
gaining orders was limited to holding that the
Board had the authority to issue bargaining orders
based on a prior showing of the union's majority
status in "less extraordinary cases marked by less
pervasive practices which nonetheless still have the
tendency to undermine majority strength and
impede the election processes." 4 Although I appre-
ciate the cautionary wisdom of Judge Wald that
"as always with Supreme Court dictum and even
with Supreme Court holdings, what the Court
giveth it can as easily taketh away," 5 both the con-
text and source material of the Gissel dictum
strongly suggest the Court's endorsement of a re-
medial nonmajority bargaining order in Gissel cate-
gory one cases.
The argument that the Gissel language is of little
or no precedential value is based on the view that
the Court did not need to say what it did. That ar-
gument rejects dicta by definition, yet lower courts
and administrative tribunals constantly refer to the
Court's dicta for guidance. Moreover, I find re-
markable my colleagues' apparent agreement with
precisely the proposition which the Third Circuit
in United Dairy posed and rejected: that the Gissel
Court's statements about issuing bargaining orders
in exceptional cases "without need of inquiry into
majority status" were merely an "intellectual ex-
cursion not intended as a sign post giving direc-
tions which lower courts should follow in the
future." 6 The Court had no apparent need for "in-
tellectual excursion" when faced in the consolidat-
ed Gissel proceedings with directly ruling on:
whether a union can establish a bargaining obliga-
tion by means other than a Board election; whether
union authorization cards can be reliable indicators
395 U.S. at 613-614.
395 U.S at 614.
Conair Corp. v. NLRB, supra, 721 F.2d at 1391.
United Dairy Farmers Cooperative Assn. v. .LRB. supra. 633 F.2d at
1065, et seq.
589
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employee sentiment; whether the Board can
issue a remedial bargaining order where there is a
showing that the union once had majority support;
and whether the first amendment precluded finding
certain employer speech to be violative of the Act.
My colleagues in this case have adopted in full
the analysis of the Gissel dictum contained in the
partial dissent in United Dairy J,7 contending that
the Court meant something quite different from
what it said. This analysis focuses on two passages
in Gissel that followed the Court's discussion about
the appropriate circumstances for imposing a reme-
dial bargaining order "without need of inquiry into
majority status." In the first passage, the Court
said:
The Board itself, we should add, has long had
a similar policy of issuing a bargaining order,
in the absence of a § 8(a)(5) violation or even
a bargaining demand, when that was the only
available, effective remedy for substantial
unfair labor practices. See, e.g., United Steel-
workers of America v. N.L.R.B., 376 F.2d 770
(C.A.D.C. 1967); J.C. Penney Co., Inc. v.
N.L.R.B., 384 F.2d 479, 485-486 (C.A. 10th
Cir. 1967). [395 U.S. at 614.]
Later, the Court applied its analytical framework
to the facts in Sinclair, one of four cases consolidat-
ed for decision in Gissel, and stated:
In Sinclair, No. 585, the Board made a finding,
left undisturbed by the First Circuit, that the
employer's threats of reprisal were so coercive
that, even in the absence of a § 8(a)(5) viola-
tion, a bargaining order would have been nec-
essary to repair the unlawful effects of those
threats. The Board therefore did not have to
make the determination called for in the inter-
mediate situation above that the risks that a
fair rerun election might not be possible were
too great to disregard the desires of the em-
ployees already expressed through the cards.
[395 U.S. at 615, footnote omitted.]
The foregoing language and a union's achieve-
ment of majority status in each of the three cases
cited demonstrated that the Court did not really
ictend any waiver of the requirement of majority
showing, argue my colleagues. Instead, they main-
tain, the Court's description of category one bar-
gaining order cases was limited to approving exist-
ing Board policy. This interpretation, however,
I United Dairy Farmers Cooperative Assn., 242 NLRB 1026, 1039-1040
(1979). The D.C. Circuit panel majority echoed this analysis in denying
enforcement of the Board's bargaining order in Conair Corp. v. NLRB,
supra, 721 F.2d 1355. See also Platt, The Supreme Court Looks at Bargain-
ing Orders Based on Authorization Cards, 4 Ga. L. Rev. 779, 793-797
(1970).
does not square with the precise words of the
Court.
In the first quoted passage, the Court said that
the Board had a "similar" remedial policy, not an
identical one. If the Court were simply approving
majority-based bargaining orders in the absence of
an 8(a)(5) violation, why did it expressly refer to
the possibility of issuing category one bargaining
orders "without need of inquiry into majority
status or otherwise"? The more logical interpreta-
tion is that the Court was emphasizing the similari-
ty between its authorization of nonmajority bar-
gaining orders in category one cases and existing
Board policy with respect to the propriety of issu-
ing majority-based bargaining orders when they are
"the only available, effective remedy for substantial
unfair labor practices." The Court's identification
of Sinclair as a category one case is also consistent
with the view that because of the severity of the
employer's threats not only an 8(aX5) finding but
also a prior majority showing was expendable as
predicate to issuing a bargaining order.
Were there any doubt about interpreting Gissel
as meaning what it says-and I have no such
doubt-reference to the ideological source of the
dictum should dispel the doubt. This source is no
mystery. Both the Gissel and Logan Packing opin-
ions cite Professor Bok's article on The Regulation
of Campaign Tactics in Representation Elections
Under the National Labor Relations Act.8
In this article, Professor Bok addressed, among
other things, the need for more effective remedies
to deter employers from engaging in unfair labor
practices to nullify employees' rights to free choice
of a bargaining representative in Board elections.
Focusing on the bargaining remedy, he advocated
expansion of this remedy based on its approval in
the Supreme Court's decision in Franks Bros. v.
NLRB.9 In particular, he advocated the use of bar-
gaining orders, subject to certain limitations, "in
cases where the union cannot demonstrate that it
was ever supported by a majority of the employ-
ees." 1 0 Among the specific limitations proposed
was that the nonmajority bargaining order not be
issued "unless the unfair labor practices involved
were serious and deliberate.... As a general rule,
therefore, the order to bargain might well be re-
stricted to cases involving discriminatory dis-
charges or clear threats of retaliation." 1I
The similarity between the language of the Bok
article and the judicial language in Gissel and
Logan Packing transcends coincidence. It further
8 78 Harv. L. Rev. 38 (1964).
9 321 U.S. 702 (1944).
10 78 Harv. L. Rev. at 133.
Id. at 137-138 (citation omitted).
590
GOURMET FOODS
underscores what the Third, Fourth, Fifth, Tenth,
and Eleventh Circuits have believed about the
Gissel dictum: it stands as both a definition and im-
plicit endorsement of remedial nonmajority bar-
gaining orders.
II.
The plurality opinion summarizes its entire ra-
tionale in these sentences:
Our own review of the statute, its legislative
history, Board and court precedent, and legal
commentary have convinced us that the ma-
jority rule principle is such an integral part of
the Act's current substance and procedure that
it must be adhered to in fashioning a remedy,
even in the most "exceptional" cases. We view
the principle as a direct limitation on the
Board's existing statutory remedial authority as
well as a policy that would render improper
exercise of any remedial authority to grant
nonmajority bargaining orders which the
Board might possess.
My rebuttal can as briefly be summarized: (1)
Nothing in the Act or its legislative history sub-
stantiates interpreting the majority rule principle as
a bar to the remedial nonmajority bargaining order.
(2) A review of precedent makes clear that the ma-
jority rule principle is not absolute and must be
balanced against other principles and policies of the
Act. (3) The nonmajority bargaining order entails
only a minimal interim encroachment, if at all, on
the majority rule principle. Ultimately, the order is
the best available Board remedy to serve un-
coerced majority rule.' 2
Clearly, the principle of majority rule is an im-
portant feature of the Act. Section 9(a) states:
"Representatives designated or selected for the
purpose of collective bargaining by the majority of
the employees in a unit appropriate for such pur-
poses shall be the exclusive representative of all the
employees in such unit for the purposes of collec-
tive bargaining ... ." Section 8(a)(5) defines when
an employer's refusal to bargain with the majority's
choice is an unfair labor practice. Section 8(a)(2)
proscribes an employer's recognition of a union
supported by only a minority of unit employees.
Section 8(f) details a construction industry excep-
tion to the 8(a)(2) proscription. Finally, Section 7
states that employees have the "right to self-organi-
zation" and the right "to bargain collectively
through representatives of their own choosing," as
well as the "right to refrain from any or all such
activities."
12 I endorse Judge Wald's detailed analysis of the majority rule issue in
her dissenting opinion in Conair Corp. v. NLRB, supra, 721 F 2d at 1400.
None of these sections of the Act makes explicit
reference to the Board's remedial powers under
Section 10(c); in particular, they do not expressly
limit those powers. As Judge Wald wrote: "Con-
gress most assuredly knew how to limit the Board's
authority. For example, section 9(b), following di-
rectly after section 9(a) and dealing with determi-
nation of bargaining units, clearly limits the
Board's power."' 3 Similarly, Section 10(c) itself
contains the express limitation against reinstatement
or backpay orders for employees "suspended or
discharged for cause."
Although not an express limitation, the majority
rule principle might still warrant implying a limita-
tion on the Board's bargaining order authority. The
legislative history, however, contradicts such an
implication. 4 Extensive remarks by Senator
Wagner defended majority rule in the original Act
against employer critics who wanted to weaken or
avoid collective bargaining altogether by bargain-
ing with individuals, with dominated company
unions, or with unions only on the basis of propor-
tional representation. 5 The Taft-Hartley Act's
amendment to Section 7, making express an em-
ployee's "right to refrain" from protected concert-
ed activities, must be read in conjunction with its
new Section 8(b)(1)(A) and was added to prevent
the Board from condoning "closed shops" and var-
ious forms of union coercion of employees into
joining in concerted activities.' 6 Finally, Section
8(f) was clearly designed as an exception to the
8(a)(2) violation when an employer, not the Board,
has recognized a union which has not demonstrat-
ed majority support.
It requires a remarkable distortion of context to
use this legislative history as proof of Congress'
intent to bar the Board from ordering to bargain an
employer which has violated the Act in order to
avoid collective bargaining by preventing majority
support for union representation from ever devel-
oping. The principle of majority rule has been im-
'' Conair Corp. v. NLRB, supra, 721 F.2d 1394.
14 The plurality opinion correctly states that there is brief specific
mention of Board remedial powers in the legislative history. In the House
report on the original Act, among the examples given of affirmative rem-
edies was "recognition of the agency chosen by the majority for the pur-
poses of collective bargaining." 2 Leg. Hist. at 3074. It is clear, however,
that specific references to remedies in the Act and in its legislative histo-
ry are merely illustrative, not exclusive of other remedies. See Phelps
Dodge Corp v. NLRB, 313 U.S. 177, 187-189 (1941).
"5 E.g., Hearings on S. 1958 before the Senate Comm. on Education
and Labor, 74th Cong Ist Sess. (1935), reprinted in I Leg. Hist. at 1419-
20 (NLRA 1935); Hearings on H.R. 6288 before the House Comm. on
Labor, 74th Cong. Ist Sess. (1935), 2 Leg. Hist. at 2490-92; Debates on S.
1958 in Senate, 79 Cong. Rec. 7565 (1935), 2 Leg. Hist. at 2336-37. See
also House Report No. 1147 on S. 1958, Comm. on Labor, 2 Leg. Hist. at
3071.
'1 House Conf Rept. No. 510 on H.R. 3020, 80th Cong, Ist Sess.
(1947), I Leg. Hist. at 543-544.
591
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed on the Act as a limitation on coercion by
employers and unions of employee rights to free
choice and self-organization, not as an absolute lim-
itation on the Board's ability to remedy such coer-
cion when it occurs.
Judicial and Board precedent have been consist-
ent with the view that majority rule is not an abso-
lute all-encompassing principle in the Act. "That
principle is, unquestionably, an important feature of
the Act, but it has never been interpreted as stand-
ing in supreme isolation from the Board's other
statutory policies and purposes."17 For example,
rather than requiring the existence of actual and
absolute majority support of a collective-bargaining
representative at all times, the Board has, with ju-
dicial support: adopted irrebutable presumptions
about majority status during the union representa-
tive's certification year,'s or after voluntary recog-
nition;' 9 ordered an employer to bargain after a
union's actual loss of majority status in the wake of
unfair labor practices;2 0 certified a union after an
election in which less than 50 percent eligible unit
employees voted; 2 ' and revoked the certification
of a union as a remedy for the union's discriminato-
ry practices without any inquiry into majority
status. 22
The question really presented then is what
weight the Board should give the majority rule
principle in assessing the remedial worth of a non-
majority bargaining order. The plurality opinion's
assessment begins with a fallacious characterization
of the employees' situation prior to an employer's
outrageous and pervasive unfair labor practices. It
concludes without considering the several factors
that safeguard majority rule in the use of the dis-
puted bargaining order. In reality, it is they and not
the proponents of a Gissel category one remedial
order who are obstructing employee free choice
and indefinitely postponing the determination of an
uncoerced employee majority preference for or
against collective-bargaining representation.
Confronted with Gissel category one violations
and the absence of an affirmative showing of ma-
jority preference, the Board cannot know for cer-
tain what was in the hearts and minds of employees
prior to the unfair labor practices. It is equally pos-
sible that a majority of employees desired union
representation or that a majority opposed it. The
union's failure at the time to have garnered an au-
thorization card majority is not conclusive.
I" Conair Corp., supra, 261 NLRB at 1193.
18 Brooks v. NLRB, 348 U.S. 96 (1954).
19 Keller Plastics Eastern, 157 NLRB 583 (1966).
20 NLRB v. Gissel Packing, supra; Franks Bros v. NLRB, supra.
21 Piper Industries, 212 NLRB 474 (1974); and see NLRB v. A. J. Tower
Co., 329 U.S. 324 (1946).
21 Metal Workers Local I (Hughes Tool Co.), 147 NLRB 1573 (1964).
Of paramount significance, however, is the
fact that, but for Respondent's unlawful con-
duct, its employees would have had the oppor-
tunity to express openly their opinions about
unionism and to resolve the representation
debate by making a free and uncoerced majori-
ty choice in a Board-conducted election. Re-
spondent, by the massive and numerous viola-
tions discussed above, has destroyed any op-
portunity for free and open debate of the rep-
resentation question.2 3
Under these circumstances, "the risk of imposing
a minority union on employees for an interim re-
medial bargaining period is greatly outweighed by
the risk that, without a bargaining order, all em-
ployees would be indefinitely denied their statutory
right to make a fair determination whether they
desire union representation." 2 4 Moreover, several
factors minimize the risk of even an interim imposi-
tion of a minority union. First, the nonmajority
bargaining order is an extraordinary remedy re-
served for use in only a few exceptional cases
where the Board's review of various factors leads
to the conclusion that an employer's violations fall
within Gissel category one.2 5 Second, most propo-
nents of the remedy agree that at least a significant
factor in deciding whether to issue an order is the
degree to which it can be shown likely that the
union would have enjoyed majority support, but
for unfair labor practices. 2 6 Third, the wishes of an
employee unit majority will likely be a critical de-
terminant in framing bargaining demands, in decid-
ing whether to resort to strike action, and in ac-
cepting a contract. Finally, as the Gissel Court
itself stressed, 2 7 the bargaining order is temporary,
designed to insure only a reasonable period of
good-faith bargaining and to dissipate the lingering
effects of the employer's unfair labor practices. 28 It
is not intended to guarantee a prolonged collective-
bargaining relationship, only the right of employees
freely to choose or reject this relationship.
23 Conair Corp., supra, 261 NLRB at 1193-1194.
24 Ibid. at 1194.
25 Compare Conair Corp., supra, with United Supermarkets, 261 NLRB
1291 (1982), where the Board found a nonmajority order inappropriate.
26 E.g., Conair Corp. v. NLRB, supra, 721 F.2d at 1400 (Wald, J., dis-
senting); United Dairy Farmers Cooperative Assn. v. NLRB, supra, 633
F.2d at 1060; Conair, supra, 261 NLRB at 1194; Bok, supra at 138.
27 "There is, after all, nothing permanent in a bargaining order, and if,
after the effects of the employer's acts have worn off, the employees
clearly desire to disavow the union, they can do so by filing a representa-
tion petition." NLRB v. Gissel Packing Co., supra, 395 U.S. at 613.
28 The Board has found that a "reasonable period of time" to bargain
may be as little as 3 months. "[T]he issue turns on what transpired during
[negotiations] and what was accomplished therein." Brennan's Cadillac,
231 NLRB 225, 226 (1977). In addition, it does not necessarily follow
that a contract executed in the aftermath of a nonmajority bargaining
order will have the same contract bar effect as contracts executed after
recognition, certification, or a majority-based bargaining order.
592
GOURMET FOODS
Based on the foregoing, I remain convinced that
the principle of majority rule presents neither statu-
tory nor policy bar to the issuance of a remedial
nonmajority bargaining order. In truth, such an
order represents the "most effective application of
majority principles" in Gissel category one cases. 2 9
III.
Section 10(c) of the Act empowers the Board
"to take such affirmative action . . . as will effectu-
ate the policies of the Act." Included among those
policies are the prevention of unfair labor practices
and the protection of employees' rights to self-or-
ganization and to free choice of a bargaining repre-
sentative. By renouncing the use of Gissel category
one bargaining orders, my colleagues render the
Board powerless to provide full deterrence of
unfair labor practices and full restitution of em-
ployee rights in cases of the most egregious mis-
conduct, if an employer acts before an organizing
union can achieve majority status. The employer
then is left with the fruits of its lawlessness, defeat
of the employees' self-organization; the employees
are left with no redress for their rights. This is an
impermissible emasculation of the Board's remedial
mandate under Section 10(c).
The Board's statutory remedial authority is "a
broad discretionary one, subject to limited judicial
review."3 0 It includes the power to devise reme-
dies which will deter employers and unions from
engaging in unfair labor practices. 31 This policy of
deterrence accords with the general principle that
a wrongdoer should not be allowed to benefit from
misconduct.
The Supreme Court has repeatedly emphasized
that this deterrent principle applies under the Act.
29 The much-bruited analogy drawn between the remedial nonmajority
bargaining order and the remedy at issue in H. K. Porter v. NLRB, 397
U.S. 99 (1970), is inappropriate. In H. K. Porter, the Court denied en-
forcement of a Board order to an employer to accept a dues-checkoff
provision in a collective-bargaining agreement as a remedy for a bad-faith
refusal to bargain. The Court held that the Board lacked the statutory
authority for this remedy because it directly contravened a fundamental
policy of the Act, freedom of contract. The Court emphasized that the
Act itself contained express language in Sec. 8(d) stating that the bargain-
ing "obligation does not compel either party to agree to a proposal or
require the making of a concession." Explicit legislative history further
supported the Court's view that Sec. 8(d) precluded the Board from set-
ting the terms of a collective-bargaining contract. In the case of nonma-
jority bargaining orders, however, there is no comparable express restric-
tion in the Act, no comparable legislative history, and ultimately no inter-
ference with the fundamental policy of majority rule.
so Fibreboard Paper Products v. NLRB, 379 U.S. 203, 216 (1964).
Sa The Board may not, of course, prescribe remedies that are purely
punitive in nature. E.g., Republic Steel Corp. v. NLRB, 311 U.S. 7 (1940).
The clearest definition of the distinction between proscribed punishment
and permissible deterrence appears in the concurring opinion of Justices
Harlan and Stewart in Carpenters Local 60 v. NLRB, 365 U.S. 651, 658
(1961). The Board "must show more than that the remedy will tend to
deter unfair labor practices. The Board must establish that the remedy is
a reasonable attempt to put aright matters the unfair labor practice set
awry." The nonmajority bargaining order meets this standard.
In National Licorice Co. v. NLRB, 309 U.S. 350,
364 (1940), the Court explained that the Board's re-
medial duty extends not merely to the prevention
of violations by the employer in the future but also
"to the prevention of his enjoyment of any advan-
tage which he has gained by violation of the Act
. . .as the means of defeating the statutory policy
and purpose." The same remedial deterrent empha-
sis appeared in Franks Bros., supra, 321 U.S. at
704-705, in which the Court affirmed an order re-
quiring an employer to bargain with a union that
had lost its majority support after an unlawful re-
fusal to bargain. The Court said that in the absence
of bargaining order authority there would be "re-
peated requests for elections, thus providing em-
ployers a chance to profit from a stubborn refusal
to abide by the law. That the Board was within its
statutory authority in adopting the remedy which it
has adopted to foreclose a probability of such frus-
trations of the Act seems too plain for anything but
statement." Finally, in Gissel, the Court stated that
denying a bargaining order would "in effect be re-
warding the employer" for its own wrongdoing. s 2
The majority in this case has ignored the ramifi-
cations of its decision for the Board's remedial de-
terrent policy. As summarized quite accurately by
Judge Wald in her Conair dissent:
The deterrent value of a bargaining order
against an employer who has engaged in egre-
gious illegal behavior is apparent. The pros-
pect of a remedial bargaining order should
create a strong incentive for the anti-union em-
ployer to keep its campaign within legal limits.
For even if the company wins the organiza-
tional battle, it may lose the collective bargain-
ing war. On the other hand, today's decision
that no bargaining order can ever issue unless
the union has gained the support of more than
half the unit employees at some point in the
process creates reverse and indeed perverse in-
centives. The anti-union employer can avoid
ever dealing with a union by rushing in at the
first sign of union sentiment, before employees
have begun to experience the collective
strength of numbers, with threats of plant clos-
ings, mass discharges and close surveillance,
thereby creating an atmosphere of coercion
that outlasts the tenure of current employees
and outdistances the remedial policies of the
Board. 3 3
Apart from the question of deterrence, the repu-
diation of nonmajority bargaining orders contra-
32 395 U.S. at 610.
33 Conair Corp. v. NLRB, supra, 721 F.2d at 1400.
593
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
venes the Board's mandate to make whole the em-
ployee victims of an employer's outrageous and
pervasive unfair labor practices. By definition,
Gissel category one cases are those in which the
unlawful conduct has been so severe as to foreclose
any possibility of holding a fair representation elec-
tion. In Conair, supra, 261 NLRB at 1193, I joined
the Board majority in stating:
Under these exceptional circumstances, we
find that a remedial bargaining order is the
only way to restore to employees their statuto-
ry right to make a free and uncoerced determi-
nation whether they wish to be represented in
collective bargaining by a labor organization.
Anything short of a bargaining order would
deny employees that right which has been the
hallmark of national labor policy for nearly
five decades.
A nonmajority bargaining order is the only po-
tentially effective remedy currently available for
the Board to restore to employees in category one
cases the uncoerced right ultimately to decide for
themselves whether they desire collective-bargain-
ing representation. The majority does not profess a
belief that any alternative remedies could be effec-
tive. It simply denies our authority to provide the
bargaining order because it would allegedly violate
the majority rule principle.
The plurality opinion presents only one other
possible reason for not issuing nonmajority bargain-
ing orders in Gissel category one cases. It suggests
that the orders will not be effective in restoring
free choice. How do my colleagues know this? The
Board has issued only two nonmajority bargaining
orders in its history, in United Dairy and Conair,
and the latter order was denied enforcement by the
D.C. Circuit panel majority. This fleeting experi-
ence with an extraordinary remedy hardly seems
sufficient basis for an informed opinion. 3 4 Nonma-
jority bargaining orders may have the desired resti-
tutional value, and surely will have an extra deter-
rent value, where other remedies surely will not.
3, Chairman Dotson and Member Hunter refer to Weiler, Promises to
Keep: Securing Workers' Rights to Self-Organization Under the ,NLRA, 96
Harv. L. Rev. 1769, 1793-1795 (1983). In this article, Professor Weiler
argues the inadequacy of majority-based Gissel remedial orders. For em-
pirical substantiation he relies on a study of 38 Gissel cases in which few
bargaining orders ever led to the execution of a contract and even fewer
led to second contracts. Initially, I note that the study did not attempt to
measure the deterrent effect of the orders in abating unfair labor practices
by the employers involved or by other antiunion employers. Second, a
nonmajority bargaining order, like a majority bargaining order, does not
seek the execution as such of a contract but rather the vindication of em-
ployee rights of unimpeded choice. I therefore question whether the
"success" of a nonmajority or majority bargaining order can be measured
in terms of contracts executed. Finally, I do not read Professor Weiler's
article as an argument for the abandonment of the Gissel remedy; he
argues that it is ineffective as compared to the reforms he advocates as
greater safeguards for rights to self-organization.
The progenitor of the nonmajority bargaining
order concept expressed a similar view:
In the last analysis, however, those who
would resist this remedy in the name of the
employees must answer for the employees
whose free choice is currently impaired by the
lack of adequate remedies. As matters now
stand, there are many workers whose appre-
hensions cannot be allayed by notices posted
in the plant or by the possibility of reinstate-
ment and backpay at some future date. Be-
cause of these fears, some elections are lost
while others must be abandoned for long peri-
ods of time. If an order to bargain could help
deter the commission of flagrant unfair labor
practices, there is good reason to believe that
the net effect would be to promote, and not
impair, the legitimate interests of employees as
a whole. 3 5
The choice to me is clear. The Board has the au-
thority to issue remedial nonmajority bargaining
orders in Gissel category one cases, and the Board
must exercise that authority to effectuate the poli-
cies and purposes of the Act.
IV.
I turn now to the question whether the Union
here actually did achieve majority support in an
appropriate unit, entitling it to a Gissel category
two bargaining order.3 6 My colleagues have adopt-
ed as much of the judge's bargaining unit findings
as permits them to agree with the judge that the
Union did not ever have majority support in an ap-
propriate unit. The plurality opinion states, howev-
er, that "[h]ad majority status been demonstrated
we would have agreed with both the General
Counsel and the Charging Party that a [Gissel cate-
gory two] remedial bargaining order was warrant-
ed." I would reverse the judge's findings which
expand the unit alleged to be appropriate by the
General Counsel and the Union. Changing the con-
text from hypothetical to factual, I also agree with
Chairman Dotson and Member Hunter that a ma-
jority-based bargaining order is warranted.
a" Bok, supra at 135-136.
36 In Gissel, the Court sanctioned the Board's use of a remedial bar-
gaining order in "less extraordinary cases marked by less pervasive prac-
tices which nonetheless still have the tendency to undermine majority
strength and impede the election process ... where there is also a
showing that at one point the union had a majority." A bargaining order
is appropriate in this class of cases-commonly referred to as Gissel cate-
gory two cases-when "the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair election (or a fair rerun) by
the use of traditional remedies, though present, is slight and that employ-
ee sentiment once expressed through cards would, on balance, be better
protected by a bargaining order . ." 395 U.S. at 614 615.
594
GOURMET FOODS
The judge found appropriate a larger warehouse
bargaining unit than the unit alleged because of the
inclusion of the sewing room and sales
trainee/cooler employees. Since the judge found 37
employees to be in the unit and only 16 valid au-
thorization cards from unit employees as of the 14
October 1980 date of the Union's demand for rec-
ognition, he found that the Union lacked majority
status and denied the General Counsel's request for
a bargaining order. He found no need to reach the
issue of whether the Respondent's conduct war-
rants a bargaining order remedy under the balanc-
ing test for Gissel category two cases.
Both the General Counsel and the Charging
Party contend that the judge erred by including
the sewing room and sales trainee/cooler employ-
ees in an otherwise appropriate warehouse unit.
They state that, with the exclusion of those em-
ployees from the appropriate unit, the Union did
represent a majority of unit employees on the
demand date and further contend that a bargaining
order remedy is warranted because of the Re-
spondent's numerous unfair labor practices. As in-
dicated, I agree with these contentions.
As found by the judge, the Respondent has a
total work force-including sales, office, and ware-
house-of approximately 125 employees. Its St.
Paul, Minnesota warehouse operates on three
shifts. Goods are received on the first shift, stocked
on the second shift, and pulled from stock and
loaded onto trucks on the third shift.
Those employees whose placement within the
unit is not in dispute are those who perform the
normal warehouse functions on a full- or part-time
basis within the general warehouse area. Such em-
ployees are assigned to one of the three shifts; the
part-time general warehouse employees have regu-
lar scheduled starting times. General warehouse
employees are directly supervised by the respective
foremen on each shift, who are in turn supervised
by the warehouse supervisor.
The pay rate for all full-time general warehouse
employees as of the demand date was between
$10.28 and $10.43 per hour, with a differential for
third-shift employees; the pay rate for the part-time
general warehouse employees varied from $4.50 to
$8.50 per hour with the average wage among the
part-timers at approximately $5.80 per hour. Fur-
ther, order fillers received incentive pay of ap-
proximately $.04 per case for all cases picked over
1100 per shift. The full-time employees received a
variety of benefits, including hospitalization, dental,
disability and life insurance, profit sharing, funeral
leave, and paid holidays and vacation. While there
was testimony that part-timers received no fringe
benefits, the Respondent's employee manual
showed that part-timers who worked a minimum of
1400 hours per year were entitled to the same va-
cation benefits, prorated to hours worked, as full-
time employees, and those who worked a minimum
of 1000 hours per fiscal year were eligible for par-
ticipation in the profit-sharing plan.
Wages, benefits, and other conditions of employ-
ment of the full-time general warehouse employees
were set forth in the 26 May 1976 "Articles of
Agreement" between the Respondent and the gen-
eral warehouse employees. The Respondent had re-
quired a majority of the full-time general ware-
house employees to sign a memo approving that
agreement before it went into effect. The 1976
agreement arose in the wake of a union organizing
attempt when the Respondent met with general
warehouse employee representatives and "set up"
the agreement. In May 1980 the Respondent again
met with representatives of the general warehouse
employees to discuss terms and conditions of em-
ployment. The Respondent and the employees
reached agreement on several items that were im-
mediately implemented but no overall agreement
was ever reached. In October 1980, when the Re-
spondent held a meeting with general warehouse
employees and sought their agreement on a new
"Working Agreement," neither the sales trainee/-
cooler employees nor the sewing room employees
were present.
The judge's finding that the sales trainee/cooler
employees' "basic duties and functions are within
the warehouse" is the primary basis for their inclu-
sion in the unit. An examination of the overall cir-
cumstances of their employment leads to a con-
trary result.
The distinct circumstances of employment of
these employees began with their hire. When the
Respondent advertised for sales trainee/cooler em-
ployees, it explicitly sought sales trainees and of-
fered sales training and future assignment to a sales
route, salary, and use of a car. Employees hired
into the position had been interviewed exclusively
by the sales manager or by the sales manager and
the head of the sales trainee program. During job
interviews, sales trainee/cooler employees were
told about the duties of salespersons; they were
also told they would be in training for approxi-
mately 6 months, they would work in the cooler
initially to learn the business and also go out on
sales routes with salespersons, and they would
eventually be offered a sales route.3 7 On their hire,
a" While the Respondent's president testified that sales jobs were
posted and might be filled by anyone from within or without the Compa-
ny, the evidence did not show that any nonsales trainee employees actu-
ally had an opportunity to bid on or were offered sales positions
-
595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the sales trainee/cooler employees were required to
sign individual employment contracts. The form
contract stated, among other things, that the "sales
trainee" (or "cooler employee") was being em-
ployed "to work in various capacities which will
serve the purpose of training . . . to be a sales
person with the company"; it also stated that the
employee was not permitted to engage in any busi-
ness other than employment for the Company and
that the employee would "travel in sales territories
as required and perform duties related to training
for a sales position with the company in accord-
ance with instructions of the sales manager." Other
contract provisions set forth terms and conditions
of employment covering salary, expenses, vacation
and insurance benefits, personal use of a car, and
termination.
The sales trainee/cooler employees3 8 began
work in the cooler. The approximately 8000 or
9000 square foot cooler is enclosed within the gen-
eral warehouse area, which is approximately 95,000
square feet. Gradually, sales trainee/cooler employ-
ees were assigned to accompany salespersons on
their routes. Estimates of the time sales trainees
spent out of the cooler on sales routes varied from
8 to 16 hours a month (by the Respondent) to 5 to
10 days a month (by the employees); the amount of
time spent accompanying salespersons increased
with seniority.
In the cooler, the sales trainee/cooler employees
received and weighed refrigerated products, stored
products, and filled orders. They worked day
hours and had varied starting times from 7 to 9
a.m. so that their hours either overlapped the mid-
night and first shifts or the first and second shifts.
While working in the cooler, the sales train-
ee/cooler employees were supervised by the first-
shift warehouse foreman. Occasionally, when there
was insufficient cooler work, the sales trainee/-
cooler employees worked in the warehouse. The
record does not reflect that there were transfers be-
tween the sales trainee/cooler and the general
warehouse employee positions at any material
time. 39
When the sales trainee/cooler employees accom-
panied the salespersons on sales routes, they were
under the supervision of the salesperson. They
physically arranged the products on customers'
shelves, and occasionally took sales orders and re-
3S The Respondent also employed sales trainees who worked in the
office taking phone orders and dealing with customer complaints during
their training period.
39 About September 1981, the Respondent eliminated the sales trainee
program and thereafter assigned the cooler work to general warehouse
employees. By August 1981, all sales trainee/cooler employees employed
on the demand date, and one hired thereafter, had left the Respondent's
employ.
layed orders to the Respondent. All sales trainees
attended monthly sales meetings together with all
salespersons in the Twin City area. They also at-
tended training meetings, held at least twice a
month. At the training meetings, sales trainee/-
cooler employees were instructed about company
policies and salespersons' duties. They reviewed a
training manual given to all sales trainees; the
manual was specifically addressed to the Respond-
ent's sales trainees and described the Respondent's
organization, the Respondent's expectations about
salespersons, selling skills and selling procedures,
paperwork, and selling tools furnished by the Re-
spondent. The sales trainee/cooler employees were
also given the Respondent's sales manual and per-
sonalized business cards.
The sales trainee/cooler employees were paid a
starting rate of $5 per hour for time worked in the
cooler; for those days spent on sales routes, the em-
ployees were paid for 9 hours work at their hourly
rate. Under the "sales trainee" employment agree-
ment, sales trainee/cooler employees were also
granted lump-sum "adjustments" ranging from $90
to $265 depending on the number of periods
worked. It appears from the payroll records in evi-
dence that they received such adjustments at the
end of December 1980. They were also reimbursed
for travel expenses, food, and lodging when they
accompanied salespersons on sales routes. They re-
ceived the same fringe benefits as the Respondent's
other full-time employees.
There were four sales trainee/cooler employees
employed as of 14 October 1980. Of those four,
one received a sales job in March 1981, after
having been a sales trainee/cooler employee since
April of the prior year; and one who was em-
ployed from October 1980 to May 1981 turned
down a particular sales job offer at some point
during his employment. Another of the four stated
that during his employment from July 1980 to May
1981 he knew of two additional sales trainees who
received sales jobs-one a sales trainee/cooler em-
ployee and the other a sales trainee/office employ-
ee. 40
I would find that the sales trainee/cooler em-
ployees did not share a community of interest with
the general warehouse employees. Their hire as
40 In view of the history of sales trainees being offered sales jobs, I do
not agree with the judge that their prospect of promotion to sales posi-
tions was "at best, speculative." In the case he cited, Cumberland Shoe
Corp., 144 NLRB 1268 (1963), the trainee in issue was not told he was in
training for any particular supervisory position and his duties were not
otherwise distinguishable from other unit employees.
I further place little reliance on the Respondent's characterization of
the sales trainee program as merely an inducement to secure employees
for "low paying, generally undesirable work" in view of the Respond-
ent's creation of a full-blown program complete with manuals, training
sessions, and eventual assignment to sales jobs.
596
GOURMET FOODS
sales trainees, their individual employment con-
tracts setting forth particular terms of employment,
their training, work schedule, pay rate substantially
lower than full-time warehouse employees, wage
adjustments, and expense benefits all distinguished
them from general warehouse employees. 41 While
they did spend a substantial amount of time work-
ing in the cooler, they were told that this work
was merely for interim training.4 2 Moreover, they
spent a significant amount of their worktime ac-
copanying salespersons on sales routes and being
trained in the process. Further, their workplace
was separate from the general warehouse employ-
ees, they were not always under warehouse super-
vision, and at all material times there were no
transfers between the sales trainee/cooler employee
and the general warehouse employee positions. Ac-
cordingly, I would exclude them from the unit of
warehouse employees.
I would also find that the sewing room employ-
ees do not share a sufficient community of interest
with the general warehouse employees to warrant
their inclusion in the warehouse unit. These em-
ployees were all students at a local college and all
worked on a part-time basis. The judge found that
all nine of those employed as of the demand date
averaged five or more hours per week during cer-
tain periods of their employment that included the
demand date. Only two of those sewing room em-
ployees who worked during the 1979-1980 school
term also worked during the 1980-1981 school
term, and only one of those two, referred to here
as the leadperson, worked during the summer be-
tween the school terms. Most of the sewing room
employees who worked during the 1980-1981
school term began their employment in September
or October 1980. The judge focused on their hours
through December 1980 only. Some of the sewing
room employees no longer worked thereafter,
however, and some did not work during every 2-
week pay period.4 3 Further, only one of the
sewing room employees employed during the
1980-1981 school term was still on the payroll after
September 1981.
The sewing room employees do not have a set
schedule of hours each week; they usually work
hours between 2 and 10 p.m. Individual sewing
room employees work different numbers of hours
within each week and each employee's total hours
41 See, e.g., Wisconsin Bearing Co., 193 NLRB 249, 261 (1971); Garrett
Supply Co., 165 NLRB 561 (1967).
42 See Garrett Supply Co., supra.
14 Looking at the Respondent's payroll records from the beginning of
1980, it appears that while there were a few part-time employees paid at
sewing room wage rates who consistently worked during each 2-week
pay period for at least a 4-month period, many such employees worked
for short periods and/or did not consistently work during each payroll
period.
vary from week to week. Some of the sewing em-
ployees work only on an as-needed basis; for all
sewing room employees, the number of hours
worked depends on the amount of available work
as well as the desire of the employees to work.4 4
The primary workplace of the sewing room em-
ployees is a separate room, known as the sewing
room, in the same building as the general ware-
house area. The sewing room employees spend
most of their time in that room filling orders for a
sewing product; that work involves stringing to-
gether individual items that make up an order,
price marking the order, and individually boxing
each order for shipment. They also work in the
general warehouse area when date-stamping one
particular product and repacking certain other
products. Finally, some sewing room employees
frequently do filing work in the office.
The sewing room employees are directly super-
vised by the warehouse supervisor. For the most
part, however, the sewing room employees work
independently. The order sheets, on which they are
to work, are simply left for them in the sewing
room. It appears that the Respondent communi-
cates with the sewing room employees primarily
through the sewing leadperson. For example, when
the sewing room employees were laid off in March
1981, they were notified of the layoff by the lead-
person whereas the part-time general warehouse
employees were notified of changes in their status
by formal letters from the warehouse supervisor.
The sewing room employees are hourly paid and
punch the same timeclock as the general ware-
house employees. As of the demand date, the
hourly wage rate of all sewing room employees,
except the leadperson, was $3.50; hers was $4.11.
Sewing room employees receive no fringe benefits.
There was scant support in the record of inter-
change of job duties between the sewing room em-
ployees and the general warehouse employees. The
date-stamping and repacking work performed by
the sewing room employees in the general ware-
house area was not shown to be work that general
warehouse employees also perform. Further, while
there is some evidence that during the strike in
January 1981 and thereafter the sewing room em-
ployees occasionally pulled orders in the general
warehouse area, it is clear that such work is not
their normal assignment. The duties of the general
warehouse employees do not include sewing room
work. With respect to ordinary contact between
the two groups of employees, while the evidence
reflects that warehouse employees must walk
44 Sewing room employees were not penalized for absences and no ab-
sence policy applied to them prior to May 1981
597
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through the sewing room to get to the lunchroom,
the warehouse supervisor acknowledged that the
sewing room employees had little contact with the
other employees.
There is no evidence of substantial transfers be-
tween the two groups of employees. There was tes-
timony that one sewing room employee became a
full-time general warehouse employee after the
strike and after both an interim 6-month absence
from the payroll and a brief tenure as a part-time
general warehouse employee. Otherwise, the
record fails to show that any other sewing room
employee became a full-time or part-time ware-
house employee. There also were several poststrike
temporary transfers of part-time general ware-
housemen into the sewing room. In March 1981, all
the sewing room employees except the leadperson
were laid off and part-time general warehouse em-
ployees were given the option of a layoff or taking
those jobs in the sewing room at reduced wage
rates. A few initially chose the sewing room
option. In July 1981, these part-time general ware-
house employees were either recalled or returned
to their general warehouse duties and their wage
rates were adjusted to previous levels. This was the
only period when general warehouse employees
worked in the sewing room and it occurred some 6
months after the demand date.
In analyzing the unit placement of sewing room
employees, I have, as with the sales trainee/cooler
employees, examined the overall circumstances of
their employment. I have not focused simply on
the issues of the regular basis of their employment
or their student status. I emphasize that these em-
ployees work primarily in a separate room, per-
form job functions different from those of the gen-
eral warehouse employees at a significantly lower
wage rate, work during a different schedule of
hours, have minimal contact with the general ware-
house employees, and have virtually no inter-
change. In view of all of the above, I would ex-
clude the sewing room employees from the unit of
warehouse employees. 45
Based on the foregoing, I would find that the ap-
propriate unit consists of all full-time and regular
part-time warehouse employees, but excluding
truckdrivers, sewing room employees, sales train-
ee/cooler employees, office clerical employees and
guards and supervisors as defined in the Act.46
"4 See Institutional Food Services, 258 NLRB 650 (1981) (in reference
to the doughnut maker).
46 This warehouse unit comports with traditional appropriate ware-
house units. C. P. Clare & Co., 191 NLRB 589 (1971); Pacific Abrasive
Supply Co., 182 NLRB 329 (1970); Garrett Supply Co., 165 NLRB 561
(1967).
The record and the judge's findings demonstrate
that by 10 October 1980 the Union had obtained
valid cards from 16 unit employees. On that date,
and on the date the Union first requested recogni-
tion, 14 October 1980, there were 24 full-time and
regular part-time warehouse employees. Accord-
ingly, by 10 October 1980, the Union represented a
majority of employees in the appropriate bargain-
ing unit.47
The Respondent's campaign of unfair labor prac-
tices-which began on the date of the Union's bar-
gaining demand and continued for over half a year
until the unlawful failure to give proper reinstate-
ment to certain unfair labor practice strikers-is
fully detailed in the judge's decision and summa-
rized in the plurality opinion. I agree with my col-
leagues that, for the reasons fully and fairly stated
by them, the possibility of erasing the effects of the
Respondent's serious misconduct and of ensuring a
fair election is slight. Because I would also find
that the Union had achieved a majority card show-
ing in an appropriate unit when the Respondent
launched its lawless attack, I believe that "employ-
ee sentiment once expressed through cards would,
on balance, be better protected" by a Gissel catego-
ry two bargaining order.
47 Even if the four sales trainee/cooler employees were included in an
appropriate unit, the Union had majority support on the demand date.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten to take any measures
necessary to prevent our employees from becoming
represented by a union.
WE WILL NOT falsify payroll records in an effort
to prevent our employees from voting in favor of
union representation.
598
GOURMET FOODS
WE WILL NOT threaten our employees with loss
of their profit sharing if they join a union.
WE WILL NOT threaten to impose or impose
stricter working conditions, higher production
quotas, fines for production errors, or to reduce
working hours in order to discourage our employ-
ees from seeking union representation.
WE WILL NOT threaten to discharge employees
who refuse to agree to the unlawfully increased
production quotas; WE WILL NOT issue disciplinary
warnings to employees who fail to meet the unlaw-
fully increased production quotas; and WE WILL
remove any and all such disciplinary warnings pre-
viously given to employees from their personnel
files.
WE WILL NOT threaten our employees with plant
closure because they engage in union activities or
to discourage them from seeking to be represented
by a union.
WE WILL NOT threaten unfair labor practice
strikers with loss of their jobs if they fail to return
to work.
WE WILL NOT interrogate prospective employees
as to their union sympathies and activities.
WE WILL NOT discontinue benefits previously
given to our warehouse employees because they
engage in union activities and WE WILL reinstitute
the floating holiday benefit which was revoked in
December 1980 and make whole our employees for
any moneys deducted from their pay for previously
granted floating holidays.
WE WILL NOT discharge or issue written discipli-
nary warnings to our employees because they have
joined or supported Warehouse Employees of St.
Paul, Minnesota, Local Union No. 503, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
union, or because they have engaged in any other
protected concerted activity.
WE WILL NOT discontinue such job practices as
the third-shift job rotation system because our em-
ployees engage in union or other protected con-
certed activity and WE WILL reinstitute the job ro-
tation system previously followed on the third
shift.
WE WILL NOT fail to reinstate unfair labor prac-
tice strikers to the positions they held prior to the
strike and WE WILL make Michael Pettis, Wayne
Kolberg, James Ricker, and Steven Schoenecker
whole for any loss of wages or other benefits they
may have suffered as a result of our discrimination
against them.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL revoke the increase in the production
quotas and the policy of fining employees for mis-
picks.
WE WILL make whole those third-shift employ-
ees who lost incentive earnings because of the
elimination of the job rotation system.
WE WILL offer Richard Krenner immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE
WILL make him whole for any loss of earnings and
other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL remove from our files any references
to the unlawful warning and the termination of em-
ployee Richard Krenner; to the warning given to
employee Lloyd Schmotter on or about 12 Novem-
ber 1980 for failure to meet the unlawfully in-
creased 1200 case production quota and to warn-
ings given to any other employees for failure to
meet such quota; and to fines for misperformance
of job duties in relation to specific employees; and
WE WILL notify in writing each employee affected
by the described conduct that we have complied
with this provision and that the unlawful conduct
will not be used as a basis for future personnel
action against such employees.
GOURMET FOODS, INC.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge.
These consolidated cases were heared in Minneapolis,
Minnesota, on 11 days between September 21 and No-
vember 17, 1981, based on unfair labor practice charges
filed by Warehouse Employees of St. Paul, Minnesota,
Local Union No. 503, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union)' and complaints issued on behalf of
the General Counsel of the National Labor Relations
Board (the Board), by the Regional Director and Acting
Regional Director of Region 18.2 The complaints allege
l The charge in Case 18-CA-6947 was filed on November 12, 1980,
and was amended on December 22, 1980. and January 2, 1981. The
charge in Case 18-CA-7081 was filed on February 10, 1980, and amend-
ed on February 20 and March 24, 1981. The charge in Case 18-CA-7144
was filed on March 24, 1981, and the charge in Case 18-CA-7251 was
filed on May 18, 1981. All charges were duly served on or about the
dates of their filing.
2 The consolidated complaint in Cases 18-CA-6947 and 18-CA-7081
issued on March 26, 1981. That complaint was amended and consolidated
with the complaint issued in Case 18-CA-7144 on May 8, 1981. An order
consolidating those cases with Case 18-CA-7251 and further amending
the complaints issued on July 28, 1981. The complaints were amended
further at hearing.
599
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Gourmet Foods, Inc. (the Respondent) violated Sec-
tion 8(a)(1), (3), and (5) of the National Labor Relations
Act (the Act). The Respondent filed timely answers de-
nying the substantive allegations of the complaint.
All parties were afforded full opportunity to appear, to
examine and to cross-examine witnesses, and to argue
orally. The General Counsel and the Respondent had
filed briefs which have been carefully considered.
Based on the entire record, including my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS AND THE UNION'S
LABOR ORGANIZATION STATUS-PRELIMINARY
CONCLUSIONS OF LAW
The Respondent is a Minnesota corporation engaged
in St. Paul, Minnesota, in the wholesale sale and distribu-
tion of specialty food products. Jurisdiction is not in dis-
pute. The complaint alleges, the Respondent admits, and
I find and conclude that the Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), (7) of the Act.
The complaint alleges, the Respondent admits, and I
find and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
The complaint alleges, the Respondent admits, and I
find and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background-The Respondent's Knowledge of
Employee Union Activity and Evidence of its Attitude
Thereto
Arthur Stone, the Respondent's president, started
Gourmet Foods, Inc. about 1963. It now sells and dis-
tributes ethnic foods and other specialty items in the
Minneapolis-St. Paul, Minnesota area and throughout a
six-or seven-state area. It has a total work force, includ-
ing sales, office, and warehouse employees, of about 125.
Its warehouse, the aspect of its business principally in-
volved herein, occupies approximately 100,000 square
feet and is operated on a three-shift basis. Essentially,
goods are received on the first shift, stocked on the
second, and pulled from stock for shipping on the third.
There is, of course, some overlap in duties between
shifts. The Respondent has also employed truckdrivers
for in-town delivery work and has utilized both common
and contract carriers for city and over-the-road driving.
The Respondent's general attitude toward the union-
ization of its employees is candidly set forth in the em-
ployee manual handed out to new employees, including
those hired in the warehouse.3 In a section of the manual
a Stone's attempt to establish that the employee manual was not appli-
cable to the warehouse employees was unconvincing. That manual was
handed out to those employees, as even he acknowledged, describes the
benefits applicable to all full-time employees, and makes reference to the
warehouse workweek in describing the hours of employment.
entitled "Non-Union Status Policy" the Respondent's
policy of treating each employee fairly and individually
is described. The following is then stated:
It is our policy to deal directly with each employee
without interference from outsiders who do not
know our Company, our industry, our employees,
or have any stake in your individual success.
Therefore, we have remained non-union since the
inception of the Company, and it is our policy to
remain non-union in the future.
There have been at least two attempts, including the
instant situation, to organize the Respondent's warehouse
employees. The first, for which the record does not indi-
cate a date, was unsuccessful.
As discussed in somewhat greater detail, infra, the Re-
spondent had a practice of signing individual or group
agreements concerning terms and conditions of employ-
ment with the full-time warehouse employees. A meeting
to discuss such an agreement for the period beginning in
May 1980 was held in that month. In the course of that
meeting a third-shift warehouse employee, Richard
Krenner, told Stone, "You know, there is talk of union
in the warehouse." Stone replied that he had no such
knowledge; Krenner reiterated his assertion.4
Stone's May 1980 meetings with the warehouse em-
ployees resulted in an agreement for a new wage rate for
the coming year (10 cents per hour more than the rate
being paid at a nearby unionized warehouse) and two ad-
ditional floating holidays (to be taken as "sick days" so
that the office employees would not learn of this addi-
tional benefit). Stone agreed to have the understanding
drafted for signing. However, throughout the summer
there were delays or other unexplained problems in its
presentation. This failure to produce a written agreement
contributed to dissension and morale problems among
the warehouse employees. Also contributing to these
problems was the employees' concern over the treatment
being accorded Jack Rohde, an employee who had been
injured in December 1979 while working in the ware-
house. Pursuant to the procedures of Minnesota's work-
men's compensation agency, Rohde was undergoing re-
habilitation and was working in the Respondent's office.
The warehouse employees questioned whether he was
being treated fairly. While there was no overt union or-
ganizational activity underway in the warehouse during
the summer of 1980 there was, to some unspecified
extent, union talk among the employees.
At some point during that summer, a group of the em-
ployees, including Krenner, Pettis, Hansen, and O'Brien,
went to the home of Warehouse Superintendent Leroy
Fonteyn and discussed the warehouse problems, particu-
larly their inability to get a signed contract from Stone.
4 Stone initially testified that he had no recollection of Krenner making
any such statement and said that while he was not sure, he did not be-
lieve that this statement had been made. He subsequently denied that
there had been any such statement. Krenner's testimony was credibly of-
fered and was corroborated by at least two other employees who were
present, Pettis and Hansen. Noting Stone's initial uncertainty and the cor-
roboration of Krenner's testimony by other credible witnesses, I credit
Krenner.
600
GOURMET FOODS
Fonteyn told them that he had taken the contract to
Stone for signature and, in the course of his conversation
with the employees, intimated that he was in favor of
having the employees represented by a union. While
Pettis testified generally that the Respondent, and par-
ticularly Fonteyn, knew that the employees were talking
union and that the employees were aware of the Re-
spondent's knowledge, neither his testimony nor Kren-
ner's was any more specific than the above. Fonteyn of-
fered no testimony about this meeting and did not specif-
ically deny the statement attributed to him. He did
admit, however, that during the summer and fall of 1980
he observed that the employees were very quiet, not
talking. He concluded that there was dissension in the
warehouse but claims that he did not ask any of the em-
ployees what the problems were. Fonteyn reported his
observations to Stone.
About mid-August 1980, Ben Marz, an industrial and
organizational consultant who had been retained to pro-
vide consulting services to the Respondent since 1978,
met individually with the third-shift warehouse employ-
ees, at Stone's request, in order to identify what was
causing morale problems and to determine what could be
done to improve the organization of the warehouse. In
commissioning these interviews, Stone did not mention
any union activity. Marz, the Respondent's admitted
agent, questioned the employees individually, asking
them where they felt improvements could be made. He
did not question them about their union interest or activi-
ties.
The General Counsel alleges that the Marz interviews
were an attempt to solicit "employee opinions and griev-
ances in order to discover employee attitudes and isolate
those employees with union sympathies" which, in the
context of "the totality of Respondent's course of con-
duct . .. constituted impermissible interrogation." I
cannot agree. Such union activity as may have existed
during the summer of 1980 was at a low level and the
remark attributed to Fonteyn by both Krenner and Pettis
is insufficient to establish any significant knowledge that
the employees were seriously considering unionization.
There were other factors contributing to a decay in em-
ployee morale such as might warrant the Respondent's
concern and Respondent's reliance on its consultant to
look into such matters was not inconsistent with its gen-
eral practice. Moreover, there was no mention of union
activity either by Stone to Marz or by Marz to the em-
ployees and there were no promises, express or implied,
made to the employees in regard to the problems they
related. While it is not inconceivable that a perceptive
interviewer could have determined from such interviews
which employees were the most disgruntled and the
most likely to seek the help of a collective-bargaining
representative, this record is insufficient to establish that
such was the Respondent's purpose. I shall therefore rec-
ommend that this allegation be dismissed.
About October 9, 1980,5 Fonteyn called first-shift em-
ployee Mike Pettis into his office to discuss warehouse
s Virtually all of the events herein occurred from the fall of 1980 until
the spring of 1981. Therefore, all references hereinafter to October. No-
morale. Pettis confirmed that there was dissension and
attributed it to the employees' concern regarding the
treatment of Jack Rohde. There was no mention of
union activity in either Pettis' or Fonteyn's testimony
concerning this meeting. Fonteyn related this conversa-
tion to Stone and Stone asked to meet with both of
them. As they proceeded to Stone's office, Pettis asked
what Fonteyn had told Stone. Fonteyn replied, "I told
him that there was talk of union in the warehouse." In
Stone's office, the three discussed the Rohde situation,
Stone's failure to sign the contract with the warehouse
employees, and what Pettis described as "the feelings of
everybody in the warehouse and stuff like that." Stone
asked Pettis if anything could be done concerning the
problems in the warehouse and whether a meeting with
the employees might help. Pettis told Stone and Fonteyn
that he could see no problem in the holding of such a
meeting but thought it was "too late." Pettis' testimony
contains no specific reference to the employees' interest
in unionizing and Fonteyn, while corroborating that
Pettis told them that it was too late to do anything,
claimed that the Union was not mentioned. Stone, how-
ever, claimed that this meeting was his first knowledge
of the employees' union activity, that Pettis had stated
that the warehouse employees believed that Rohde had
been mistreated and would, in all probability, go union.
Noting that Pettis' "too late" remark makes little sense in
the absence of some reference to union activity and
noting further that the October 10 meeting, discussed
infra, which was called in response to this conversation,
dealt in part with the Respondent's opposition to union-
ization, I must conclude that there was in fact some dis-
cussion of the possibility of unionization when Pettis met
with Stone and Fonteyn about October 9.
B. The October 10 Meeting
Stone called a meeting of the warehouse employees,
excluding the sewing room employees and sales trainees,
on October 10. 7
Stone distributed copies of the agreement purportedly
reached with the employees in May 1980. It covered the
full-time warehouse employees and those of the Re-
spondent's drivers who were not already members of a
labor organization and set forth, inter alia, the new wage
rate and the two additional floating holidays, referred to
as "paid days sick leave." Additionally, the agreement
set 1200 cases per night as the minimum required of
order fillers, an increase from the earlier minimum 1100.
Stone went on to explain the Respondent's position in
regard to Jack Rohde who was, at that time, working in
the company offices. He described Rohde as a malinger-
er or worse. The employees suggested that Rohde be
vember, and December refer to 1980 and all references to January, Feb-
ruary, March, and April refer to 1981, unless otherwise specified.
6 Fonteyn did not specifically deny this statement.
7 In view of Stone's admission that he acquired knowledge of the em-
ployees' interest in union organization from his October 9 conversation
with Pettis, and in view of the topics discussed in the October 10 meet-
ing, I deem Stone's assertions that this meeting was called to explain the
Respondent's position regarding Rohde and was not intended to persuade
the employees not to select a union representative to be self-serving and
implausible.
601
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permitted to work in the warehouse as a permanent
order checker. According to Stone's testimony, as cor-
roborated by at least some of the employees who were
present, Stone made reference to the current practice of
rotating the various warehouse jobs and said that it
would not be fair to future warehouse employees for him
to agree with the current employees to give up that rota-
tion.
The discussion, all agreed, turned to the subject of
unions. Virtually all of the employees recalled Stone stat-
ing that if they joined the Union they would lose their
profit sharing. Stone denied making that outright threat.
He told them, he testified, that if the employees were
represented and had a third party pension plan they
would not qualify for distribution of benefits under the
Respondent's profit-sharing plan. However, he said, "if
they joined an outside bargaining agent while they were
. . .employees of Gourmet Foods, they would be vested
at that point. They would not lose what they had invest-
ed in the plan." T'here was, he claimed, no room for mis-
understanding. His statement was "You can't have both
. . .that the profit sharing fund would be vested at the
point people joined a union, and at that point they would
have either ours or theirs." Additionally, Stone told the
employees that if they were members of a union they
would be fined for not attending union meetings, that
union dues were not tax deductible, and that Gourmet
Foods would not be able to survive if a union came in.
There was discussion of the Company's open door policy
and an invitation to employees to freely discuss their
problems with their supervisors.
The General Counsel contends that Stone's October 10
statements about the profit-sharing plan constituted a
threat, in violation of Section 8(a)(1) of the Act. The Re-
spondent, however, argues that Stone's statements were
not threatening but were merely accurate statements that
the employees could not have both a union pension plan
and the Respondent's profit-sharing plan. I find, in agree-
ment with the General Counsel, that Stone's statements
concerning profit sharing were violative of Section
8(a)(l). Clearly, the statement heard and credibly testi-
fied to by so many employees was such a threat. More-
over, even if Stone's version were to be credited, I
would find a violation. That statement, by referring to
the vesting of the profit-sharing plan at the point when
employees join a union, clearly implied that it was their
selection of a union and not subsequent negotiations over
the alternatives of a profit-sharing plan or a union spon-
sored pension plan which would determine whether or
not they were covered by the Respondent's profit-shar-
ing plan. Included under a union pension plan, however,
is a product of collective bargaining, at least to the
extent that employer contributions are required, and not
an automatic consequence of union membership. Thus,
while an employer may lawfully tell employees that col-
lective bargaining might result in the substitution of a
union's pension plan for their profit-sharing plan, it nei-
ther states nor implies "that unionization would ipso facto
result in loss of the profit-sharing plan, or . . . that union
members would be ineligible to participate in the plan."
See Pressure Science, 227 NLRB 844, 846 (1977). See also
NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969),
wherein the Supreme court stated:
Any assessment of the precise scope of employer
expression, of course, must be made in the context
of its labor relations setting. Thus, an employer's
rights cannot outweigh the equal rights of the em-
ployees to associate freely, as those rights are em-
bodied in § 7 and protected by § 8(a)(1) and the
proviso to § 8(c). And any balancing of those rights
must take into account the economic dependence of
the employees on their employers, and the neces-
sary tendency of the former, because of that rela-
tionship, to pick up intended implications that might
be more readily dismissed by a more disinterested
ear.
Stone left the meeting while the employees considered
whether they would sign his proffered working agree-
ment. After some discussion they decided not to sign.
Rather, they decided to go to the Union and sign cards
authorizing union representation. Approximately 12 em-
ployees left the Respondent's premises, went to the
Union's office, and did, in fact, sign cards that day. Ap-
proximately five other employees signed cards within the
same week.
Mike Pettis testified that later that same day, after the
employees had gone to the union hall, second-shift Su-
pervisor Ken Reno walked by him and asked, "Did you
guys go down there?" Pettis answered "Yes." Reno
denied asking Pettis that specific question on October 20
and testified that he had asked it months later. However,
the remainder of Reno's testimony on this question was
incomprehensible or nonresponsive. On balance, consid-
ering the nature of Reno's answer and my impression of
Pettis as a candid and straightforward witness, and not-
withstanding that the statement attributed to Reno by
Pettis was not included in Pettis' investigative affidavit, I
credit Pettis.8 The Respondent knew of its employees'
visit to the Union's office.
On Saturday, October 11, the Respondent's supervi-
sors, including Michael Still, the third-shift foreman, met
with Stone, Marz, and an attorney. Stone described his
October 10 meeting with the employees and stated that
he did not think that the employees had believed what
he had told them. He told of his anticipation that a rep-
resentation petition would be filed that week and asked
counsel whether he could require the employees to sign
the contract he had presented them. In regard to the
warehouse, Stone stated, "We were going to have to get
tough. There was to be no laxity in the warehouse." He
also stated that a number of the least senior employees of
the third shift were going to be reassigned from a
Sunday night through Friday morning shift to a Monday
night through Saturday morning shift. Still had not par-
ticipated in that decision. There was no discussion of re-
s While the General Counsel amended the complaints at hearing to
allege various statements by Reno as violations of Sec. 8(a)(1), no amend-
ment alleging this question to be unlawful interrogation was offered. Ac-
cordingly, I reach no conclusion on that issue
602
GOURMET FOODS
ducing those employees' hours.9 Still was discharged the
following evening. t 0
Stone had correctly anticipated the filing of a petition.
On October 14 the Union demanded recognition. On Oc-
tober 15, it filed a representation petition, Case 18-RC-
12796, seeking an election in a unit of the Respondent's
full-time and regular part-time employees excluding
truckdrivers, office clerical, salesmen, sales trainees,
casual employees, and supervisors as defined in the Act.
C. Shift Changes and Reduced Hours
The orders taken by the Respondent's salespersons
were generally filled by the Respondent's third-shift
warehouse employees. Their workweek commenced at
midnight on Sunday and concluded at 8 a.m. on Friday.
During the first week in October, Stone and Fonteyn de-
cided to institute a new order filling shift to accommo-
date a large and regularly scheduled shipment which was
shipped from the Respondent's dock on Monday morn-
ings. That new shift, made up of the four least senior
third-shift employees, Groves, Beckjorden, Schmotter,
and Schwerha, was to work from midnight on Monday
through 8 a.m. on Saturday, thus permitting order pull-
ing for Monday shipments to be done after midnight on
Fridays. Fonteyn told payroll clerk Toni Malik of the
schedule change on October 9 and the affected employ-
ees on the morning of October 10, prior to their meeting
with Stone. Groves, the most senior of the four and the
only one of them who had not signed a union authoriza-
tion card, remained on the newly instituted shift for
about 1 week and was returned to his original shift.
Beckjorden, Schmotter, and Schwerha continued to
work on the new Monday through Friday shift for about
3 or 4 weeks. During at least 2 weeks, the weeks ending
October 18 and October 25, they were laid off for I or
more days and worked less than a full workweek. The
Respondent submits that there was a slowdown in busi-
ness resulting in the short workweeks for these employ-
ees and finally resulting in the termination of the new
shift experiment. The employees were then transferred
back to their original schedule.
The General Counsel contends that the assignment of
these individuals to the new shift and their layoff for one
or more days during some weeks was discriminatorily
motivated. However, the General Counsel was in error
when he contended that Stone's testimony established
that these people were laid off as the Respondent entered
its busiest season and while all other third-shift employ-
ees, including part-time employees, were working 40 or
more hours per week. The busy season, as previously
noted, occurs in November, by which time these em-
ployees had apparently returned to their regular shift.
Stone similarly testified that it was in November that all
of the third-shift employees were working 40 or more
hours per week. Taking note of the fact that the Re-
9 Still's testimony concerning the October 11 meeting is uncontradict-
ed.
'° Based on his specific recollection of the date of his discharge and
his uncontradicted description of the October II meeting (which he
would not have attended had he been discharged earlier), I credit Still's
recollection that his discharge occurred on October 12 over Stone's testi-
mony that the discharge took place on October 10.
spondent offered a plausible explanation for the shift
change, and further noting that the employees selected
were the least senior employees on the third shift, I
cannot accept the General Counsel's contention that the
creation of the new shift or the short term reduction in
hours of the selected employees was discriminatorily mo-
tivated."t Accordingly, I shall recommend that these al-
legations of discrimination against Beckjorden,
Schwerha, and Schmotter by changing their shift and re-
ducing their hours be dismissed.
D. Falsification of Payroll Records
About October 17, controller Hagen told payroll clerk
Toni Malik that Stone needed a list of all the warehouse
employees. She asked Stone specifically what he wanted.
Stone told her, "They have petitioned for a union in the
warehouse and I'11 be damned if the union is going to get
in. I don't need a union. I don't want a union." When
questioned further by the General Counsel about any-
thing else Stone said he might do, Malik recalled Stone
stating, "I would do anything to keep a union out."t 2
The Respondent contends that even if Malik's testimo-
ny is credited, Stone's remark to her may not be found
violative inasmuch as she was a confidential employee
excluded from the Act's protection. The record estab-
lishes that Malik was the payroll clerk and personnel sec-
retary, supervised by the controller and Office Manager
Mayberry and she performed secretarial work for both
of them. According to her job description, she main-
tained the personnel files; Stone testified that those files
contained confidential records regarding personnel.
The Board has long and consistently adhered to the
standard establishing as confidential employees only
those who "assist and act in a confidential capacity to
persons who formulate, determine, and effectuate man-
agement policies in the field of labor relations." Klein-
berg, Kaplan, Wolff, Cohen & Burrows, P.C., 253 NLRB
450, 451 (1980); B.F. Goodrich Co., 115 NLRB 722, 724
(1956). The record in this case does not establish that
either Hagen or Mayberry formulated, determined, and
effectuated management labor relations policies. Malik,
therefore, is not a confidential employee notwithstanding
that she maintained personnel files containing what the
Respondent deemed to be confidential material or han-
dled insurance claims and paper work required by state
agencies and insurance carriers in regard to terminated
1t In reaching this conclusion I have considered as essentially irrele-
vant the testimony of Toni Malik concerning Stone and Fonteyn's state-
ments. Neither Stone's query as to why she had questioned Fonteyn
about the timecards nor Fonteyn's response of "Don't ask" when she
asked him why all the changes had been made, established discriminatory
intent. Moreover, it cannot be determined from the testimony whether
she had asked Fonteyn if the union activity was the reason or whether it
was Fonteyn who told her that it was. In any event, I would deem it
implausible that Fonteyn would have made such a remark.
12 This testimony was credibly offered and is uncontradicted. I must
reject the Respondent's contention that it is not worthy of belief because
of Malik's alleged bias and hostility or because of the somewhat leading
manner in which part of her answer was elicited. Malik was not an en-
tirely disinterested witness, but her limited interest, stemming from the
reasons for her voluntary termination and litigation between her hus-
band's company and the Respondent, is not sufficient to render Malik in-
herently incredible.
603
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. See Greyhound Lines, 257 NLRB 477, 479
(1981), and cases cited therein. See also Clinton Corn
Processing Co., 253 NLRB 622 (1980). As Malik is an em-
ployee entitled to the Act's protection, Stone's threat to
her to take any action necessary to avoid unionization
clearly violates Section 8(a)(1). I so find.
Malik prepared a handwritten list of the warehouse
employees, as directed. A few days later, Hagen gave
her a sheet of paper containing three names to be added,
Gary and Steven Lowenthal, who were not currently
employed by the Respondent, and Joel Stone, who was
employed elsewhere in the Company. He told her to see
Arthur Stone for their social security numbers, addresses,
and rates of pay. When she asked Stone for this informa-
tion, he asked what date she had put on the payroll
records. She said that she had inserted the prior day's
date and Stone told her that he wanted the records and
their paychecks backdated 6 weeks. Malik went back to
Hagen and refused to change the dates. He instructed
her to white out the dates of hire on the forms and said
that he would fill them in. When the forms were subse-
quently returned to her, they bore at the top the date of
October 20, 1980. In the spaces provided for date of hire,
the date had been whited out and September 8, 1980, had
been inserted with what appears to be a different pen,
and in handwriting which differs from Malik's handwrit-
ing on the remainder of the form. The forms, as so com-
pleted, were sent to the bank and paychecks were pre-
pared. 13 Beginning with the payroll period ending Octo-
ber 18 and continuing until after the end of the year, the
names of these three individuals were listed in the Re-
spondent's payroll register as being employed in the
warehouse. The designation "S," the salary rather than
an hourly wage, and the omission of any total of hours
worked, all in the manner that acknowledged supervisors
were listed, indicates that Joel Stone was considered to
be a supervisor.
A list of 44 purported warehouse employees, including
Joel Stone and the two Lowenthals, was mailed to the
Board on October 21, 1980. On October 23, 1980, a
second letter was addressed to the Board requesting that
a 45th name be added. That second letter contained no
reference to striking the three extra names from the first
list. However, according to Stone's testimony, he had
met with company counsel on either October 18 or 20 to
discuss the list requested by the Board and discovered
the three improperly added names. His counsel immedi-
ately called the Board and directed that those names be
struck.14 A request that these names be deleted was ulti-
I' Stone admitted giving Malik these instructions but testified that he
had done so on October 10, immediately after Fonteyn had reported a
"leak of information" about the shift change, as discussed infra. Stone's
testimony, however, does not square with the payroll records which
show preparation of the employee forms on October 20. For that reason,
and because I consider Stone's explanation of this entire incident implau-
sible, as also discussed infra, I do not credit his testimony as to when
these instructions were given to Malik.
t4 The Respondent's attorney corroborated Stone's testimony about
this meeting. However, he did not state when it had been held. Inasmuch
as the initial list of 44 names was not mailed until October 21, and the
amendment, adding one name but making no reference to the three to be
deleted, was dated October 23, Stone could not have met with counsel
and requested the elimination of those names from the payroll list on Oc-
tober 18 or 20.
mately received by the Board and the names were delet-
ed.
Stone denied that he directed the inclusion of the three
names to the payroll list in order to "pad" the unit. His
instructions to Malik, he testified, were intended as a test
to determine whether she was the source of leaks of in-
formation from the office to warehouse. He had been im-
pelled to conduct this test, he claimed, by information
from Fonteyn to the effect that when Fonteyn told
Beckjorden, Schmotter, and Schwerha of the change in
their shift assignment, they already knew of it. Fonteyn,
who claimed to be "stunned" by this information, had
called Stone from his home to tell him (having forgotten
to do so while he was in the warehouse). According to
Fonteyn, only Stone, Malik, and he had known of the
proposed change. The Respondent also claimed that
there had been other incidents causing them to be suspi-
cious of Malik as a source of "leaks." Thus, Stone and
his secretary described an incident occurring during the
summer of 1980 when, in a lunchroom conversation,
Malik had mentioned that a fellow-employee, Roger
Carp, did not have to punch the timeclock and could
take longer lunchbreaks than the hourly rated employees.
This allegedly upset Carp and he complained to Stone.
Carp did not testify.
The information concerning Stone's addition of three
names to the payroll rapidly reached the unit employees
and Malik did not deny that she was the source of their
knowledge. Stone learned of their acquisition of this in-
formation almost immediately. However, he did not con-
front Malik for almost 3 weeks. When he did, he only
asked her who else she had told about what was going
on in payroll.
The General Counsel contends that the Respondent's
efforts to falsify payroll records in order to expand the
number of warehouse employees and to include in the
unit persons who might be expected to hold antiunion
sympathies violates Section 8(a)(1) of the Act. I agree.
The Respondent's explanation is simply beyond belief
and its effort to subvert the Board's processes, even
though corrected before any harm was done, cannot be
condoned. Such an attempt to interfere with the employ-
ees' organizational activities and the electoral process
must be restrained by an appropriate order. See for ex-
ample St. Francis Hosptial, 249 NLRB 180 (1980); Garry
Mfg. Co., 242 NLRB 539 (1979); and Florida Power &
Light Credit Union, 238 NLRB 937 (1978).
Moreover, even if the Respondent's intention were
only to plumb leaks of confidential information, I would
be required to find a violation herein. The Respondent
directed Malik to pad the payroll list. By the testimony
of both Fonteyn and Stone, it is clear that if their intent
was to find the source of leaks, they fully expected her
to tell the unit employees. (Indeed, an employer should
expect that such patently illegal conduct would be
brought to the attention of the affected employees by a
conscientious whistle-blower.) The employees were in
fact informed of the unit-padding attempt by Malik,
acting, in essence, as a conduit of the information from
Stone. There is clear interference with the free exercise
of statutory rights when an employer causes its employ-
604
GOURMET FOODS
ees to learn that it is willing to engage in unlawful con-
duct in order to defeat their efforts toward unionization.
The Employer's intent is immaterial. See Florida Steel
Corp., 224 NLRB 45 (1976), where the Board pointed
out that the "test of interference, restraint, and coercion
under Section 8(aX1) of the Act does not turn on a re-
spondent's motive .... "
E. The Meetings of November 10 and 11, 1980
On November 6, the Union filed a request to with-
draw its petition. That request was approved on Novem-
ber 10. Upon its withdrawal, Stone directed his ware-
house superintendent Fonteyn to speak to the warehouse
employees. According to Stone, Fonteyn was directed to
give a speech which would pull the Company together,
to tell the employees that there would be no reprisals or
retribution. Fonteyn, however, recalled that he was in-
structed to tell the employees how he felt about the
union activity. An outline was prepared. Fonteyn testi-
fied that he prepared that outline pursuant to Stone's di-
rection to let the employees know his own, rather than
Stone's, feelings about the union activity. His testimony
in this regard is contradicted by both Stone's testimony
and the wording of the purported outline, which sounds
as if it were voicing the views of Stone and Fonteyn.
Fonteyn conducted two meetings so as to encompass
the employees of all three shifts. In these meetings, he
testified, he used the outline as a guide; he denied vary-
ing from it significantly. The outline states, inter alia, as
follows:
I don't know who signed the cards; and who didn't;
and I really don't want to know; I am not going to
ask you, but I want you to know that I don't think
we need a union here; and I am very much against
having one.
We feel that whatever problems we might have, we
can handle them better on our own. We don't need
an outside third party coming in here. As far as
what a union could do, your wage rates are very
competitive; your fringes are very good. We would
like to think that this is a pleasant place to work
and that the work environment is good. So we
don't think there is really much a union could do
for you anyway. You have to remember, if a union
does come in here, it would only have the right to
collect dues, and bargain with me....
Fonteyn testified:
I started out with the meeting telling them that the
union had withdrawn, and I told them that I didn't
think we needed a union shop here, and I told them
that if they wanted it run as a union shop I would
run it as a union shop, but I felt that they didn't
need a union shop because I had given them 40
hours before; as an union shop, if they were order
fillers they would strictly fill orders; and if they
were forklift operators, they would strictly be fork-
lift operators; and as order fillers before we always
gave them 40 hours. If their work ran out for filling
orders, we found work for them to do and gave
them 40 hours; and with the union .... we
wouldn't be able to do that because they would be
considered strictly order fillers.
The employees remember Fonteyn's statements similarly.
Thus, virtually all of them recall Fonteyn indicating his
displeasure at their having sought union representation
and stating that if they wanted the warehouse run as a
union shop, that is they way it would be run. Third-shift
employees Wangsness and O'Brien recalled Fonteyn stat-
ing that with the warehouse run as an union shop, em-
ployees would only do one job, order filling or forklift
driving, for example, and when that work ran out they
would be sent home rather than being used to complete
other work. Their testimony, mutually corroborative, is
further corroborated by the testimony of Schumacher.' 5
I cannot find, as argued by the Respondent, that Fon-
teyn's statements in these two meetings were merely a
comparison of the relative advantages and disadvantages
of working in a union or nonunion shop. Fonteyn's state-
ments, and whether as phrased in his own testimony, that
Shcumacher, or as credibly described by employees, at
the very least implies that the warehouse would now be
run as Fonteyn believed that unionized warehouses were
run. Such a change, Fonteyn threatened, would inure to
the employees' detriment in that they would no longer
switch from one job to another when their primary
duties were completed and would no longer be permitted
to complete their 8-hour shifts when their assigned duties
were concluded earlier. As such, he was clearly threat-
ening them with retribution for their having engaged in
the union activity which had displeased him so much.
Such threats violate Section 8(a)(l) of the Act and I so
find.'
Shortly after these meetings with the entire warehouse
crew, Fonteyn held a separate meeting with the employ-
ees on the third shift, and the shift where the order fill-
ing was primarily performed. In this meeting, pursuant to
Stone's instructions, Fonteyn announced that henceforth
the order fillers would be required to fill a minimum of
1200 cases per night, an increase from the earlier require-
ment of 1100. Their incentive pay, 4 cents per case over
1100 per shift would, however, remain the same.' 7 Fon-
" As described by Schumacher, Fonteyn said:
If you want to run it like a union shop, in a union shop, if you
were an order filler and there were not any orders to fill, that you
would be sent home and that had never been done in the past and he
[Fonteyn] did not feel that we needed a union to start telling us how
to run it now.
ie Notwithstanding Fonteyn's threat, there is no evidence that, follow-
ing the meeting of November 10, the employees were ever required to
leave work before the completion of their 8-hour shift.
I7 Stone testified that he directed this increase in the quota because
productivity in the warehouse under Still's supervision had dropped to an
average of 1100 of 1150 cases per night notwithstanding that at least two
employees, Gorr and Millerin, demonstrated an ability to average 1400 or
more cases per night. Fonteyn contradicted Stone's testimony as to both
where the new quota originated and why the quota was raised. Fonteyn
claimed responsibility for raising the quota after discussing it with Stone
only that day, and attributed the increase in the quota to the existence of
a large number of seasonable holiday orders containing multiple case re-
quirements thus making it easier for employees to fill the new quota. The
record reflects that the new quota was not lifted at the conclusion of the
holiday season.
605
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
teyn also required the third-shift employees to sign a
letter acknowledging the increase in their quota, and
Mark Wangsness repeatedly objected, Fonteyn stated
that the employees did not want to work for him if they
did not want to meet the new quota. If they did not
want to work for the Respondent, he said, the door was
open. The employees were told that warning letters
would be issued to employees who failed to achieve the
quota. The employees were also told that the order
fillers would be fined 50 cents for each mispicked case.
The record establishes that the fining of order fillers for
mispicks is not a new regulation in the Respondent's
warehouse; for many years there had been a procedure
whereby order fillers would lose 50 cents of incentive
earnings for each mispick caught and the order checker
would, in his place, receive that 50 cents. The fines-for-
mispicks rule, however, had been enforced only sporadi-
cally.
One or two nights following this meeting, Wangsness
failed to meet his 1200-case quota; his failure was orally
brought to his attention by supervision. About the same
time, Schmotter, who had received a written warning on
October 7 for failure to fill the 1100 case quota then ap-
plicable, received a written warning for his failure to
achieve the new level of production. 18 Mike Hansen was
subsequently warned, orally, for failing to achieve the
1200 case minimum.
The General Counsel contends and I agree that the
Respondent increased the quota to 1200 cases per night
and reasserted its sometimes applied mispick-fine policy
in retaliation for the employees having engaged in union
activity. This conclusion flows from Stone's October 11,
1980 statement encouraging warehouse supervision "to
get tough" and eliminate laxity in the warehouse. It fur-
ther flows from Fonteyn's threat, uttered only a day or
two earlier, to run the warehouse like a union organized
warehouse and from the Respondent's shifting justifica-
tion for the new quota. In reaching this conclusion I
have noted that the 1200-case quota had been proposed
and discussed, but not imposed, earlier in the year, prior
to the advent of overt union activity. Similarly, I find es-
sentially irrelevant the fact that there had been a long-
standing policy concerning fines for mispicks; the threat
of fines is made no less threatening by reference back to
an earlier and inconsistently enforced rule. Accordingly,
I find that by increasing the daily quota for cases to be
picked, by threatening employees with discharge unless
they agreed to the new quota, by issuing warnings to
employees for failing to meet the new quota, and by
threatening to impose and imposing fines for mispicks in
retaliation for the employees having engaged in union ac-
tivity, the Respondent has violated Section 8(a)(3) and
(1) of the Act.'I
1s While the Respondent's policy permitted discharge upon the receipt
of a second written warning, Schmotter was not discharged at this time.
s9 The General Counsel's complaint also alleges that the Respondent
violated Sec. 8(aXI) by Fonteyn's November 10 statements to the effect
that the employees would have no chance to be represented by the
Union even if its organizing efforts were renewed because the Respond-
ent would inflate the unit by adding students, trainees, truckdrivers, and
foremen. I find no evidence in the record to support this allegation. Ac-
cordingly I shall recommend that it be dismissed. Additionally, the Gen-
eral Counsel contended at the hearing that after the quota was raised to
F. Loss of the Floating Holidays
In May 1980, as previously noted, the Respondent
continued its practice of negotiating working agreements
with its full-time warehouse employees. In a short series
of meetings, the employees sought and the Respondent
ultimately agreed to a wage increase which maintained a
differential over the wages paid at a nearby unionized
warehouse and two additional floating holidays. 2 0 The
pay raise went into effect immediately and the employees
began to take their floating holidays. Fonteyn authorized
Louis Berkovitz to take floating holidays in the pay peri-
ods ending July 19, September 13, and October 11.21
The wage increase and the two new floating holidays
were contained in the working agreement presented by
Stone on October 10, 1980. The employees did not sign
that agreement.
Eleven employees had taken one or both of the new
floating holidays by December 1980. However, when
these employees 2 2 received their paychecks in the week
preceding Christmas, they discovered that the pay they
had received for those floating holidays, approximately
$82 per day, had been deducted. Those who asked were
told by Fonteyn that the payments had been made in
error, that inasmuch as the employees had not signed the
working agreements they were not entitled to the float-
ing holidays. It was Stone's testimony that the alleged
error had been made by payroll clerk Toni Malik and
had been discovered "when Mark Wangsness resigned
from the company and Toni Malik had left shortly
before ... ." Malik had left the Respondent's payroll on
November 4, 1980, and Wangsness' last day was Decem-
ber 23 or 24, 1980.
The General Counsel, pointing to the timing of this
deduction from the employees' pay, the Respondent's ap-
parent knowledge that the employees were taking the
floating holidays, the fact that the contemporaneously
agreed to wage increase was never revoked, and what he
deems to be an inadequate explanation for the revocation
of the floating holidays, asserts that the Respondent de-
ducted the floating holiday pay from its employees'
checks in retaliation for their union activity. The Re-
spondent, noting that the employees had not signed the
1200, the Respondent's foreman Schumacher instituted new procedures in
the warehouse and permitted an increase in the amount of overstock ma-
terial stored in the aisles so as to purposely interfere with the employees
attaining the new minimum. The Respondent offered credible testimony
explaining the new procedures (such as, preventing the crushing of more
delicate products by requiring that they be picked last) and the overstock
(the elimination of the expense of leasing outside warehouse space and
the influx of imported product in large quantities at certain times of the
year). The General Counsel did not allege this conduct as specifically
violative in its oft-amended complaints and did not reassert its arguments
on brief In view of all the above and because I find it difficult to believe
that the Respondent would be so willing to "cut off its nose to spite its
face" as to interfere with its own production, I shall henceforth disregard
these unpleaded contentions.
10 The Respondent had previously granted one floating holiday.
21 The Respondent, however, contends that Fonteyn did not keep
track of the number of floating holidays taken by any single emplcyee
and thus argues that one should not conclude that he knowingly or inten-
tionally authorized more than one floating holiday for this individual.
22 Harold Beckjorden, Louis Berkovitz, Bill Bickel, Alan Gorr, Mike
Hansen, Richard Krenner, Jeff Kuehn, Tom O'Brien, Gene Pelshaw,
Mike Pettis, and Mark Wangsness.
606
GOURMET FOODS
agreement which provided for the floating holidays, that
the revocation affected those who had not signed author-
ization cards as well as those who had23 and that there
was no mention by either Stone or Fonteyn of the union
activity as the reason for the revocation, asserts that its
actions were nondiscriminatory and were not intended to
interfere with employees' union activities. While the
issue is less than free from doubt, I find in agreement
with the General Counsel that retaliation was the moti-
vation for the revocation of the floating holidays and the
deduction of the moneys previously paid. In reaching
this conclusion, I have considered the factors referred to
above, particularly the continuation of the wage increase,
in light of the Respondent's strong opposition to its em-
ployees' union activities and the animus reflected in the
threats and other unlawful conduct engaged in both
before and after this particular act. The Respondent's
motivation and the extent of its animus, I believe, is re-
flected in the timing of the payroll deductions to fall just
before Christmas, a clear effectuation of the Respond-
ent's intention to get tough with the warehouse employ-
ees. Accordingly, I find that by deducting the previously
paid floating holidays from their wages, the Respondent
has discriminated against its employees because of their
union activities in violation of Section 8(aX3) and (1) of
the Act.24
G. Discrimination Against Richard Krenner
Richard Krenner was hired by the Respondent as a
full-time warehouse employee on the third shift follow-
ing a request made to Stone by Sidney Applebaum, the
employer of Krenner's wife, Geraldine. Applebaum was
both a friend and customer of Stone. When Applebaum
asked whether Stone might have a warehouse position
for Krenner, Stone said that Gourmet was "a non-union
shop and hoped to stay that way .... " But so stating,
Stone testified, he intended that Applebaum would tell
Krenner, through Krenner's wife, "that if he wanted to
work in a union shop, that we were not at that time."
Geraldine Krenner testified, without contradiction, that
in her conversations with Stone prior to the time that her
husband was hired by Gourmet, Stone told her that
Richard Krenner's employment would be conditioned on
his understanding that he was not to organize a union.
She assured Stone that such a condition would present
no problem as Richard Krenner had been "unhappy with
the union he had been in in his former employ-
ment.. . .,5a
2' Of the 11 employees who suffered the deduction from their wages,
2 were not card signers.
"4 It is irrelevant that two of those who suffered this discrimination
may not have been card signers. The discrimination was directed against
the employee group as a whole.
25 Stone denied that he had been concerned about the possibility that
Krenner might start a union at Gourmet at the time of his hire. He did
not, however, deny or contradict the testimony of Geraldine Krenner
concerning conversations between them. Given the nature of Geraldine's
assurances to Stone, Stone's testimony that he was not concerned about
Richard Krenner starting a union at the time he was hired is not necessari-
ly in conflict with Geraldine's. Her assurances may have relieved his con-
cerns.
As previously noted, it was Richard Krenner who
brought the existence of union talk among the warehouse
employees to Stone's attention in May 1980.
In early October, before Mike Still was discharged,
Fonteyn called on Krenner at his home to find out
whether Krenner might be interested in the foreman's
job. Krenner was not and that matter was not further
pursued. In the course of their conversation, according
to Krenner, there was discussion about the union organi-
zation and Fonteyn asked whether "there is anything we
can do to end this stuff." Krenner told him, "No, it's
gone too far. You know what it is like there. You know
our demands."2 6
Several days after Stone's October 10 meeting with
the warehouse employees, Geraldine Krenner had an-
other conversation with her employer, Applebaum. Ap-
plebaum related Stone's request that he tell her that "if
Rick continued with the Union, it was possible that he
would lose $1500 to $1600 in his profit sharing."2 7
On November 10 Fonteyn gave Krenner a written
warning, which stated:
Work Attitude. Your work attitude is so poor that
you are upsetting your fellow employees constantly.
You are forever complaining without suggesting im-
provement, causing other employees to stop work-
ing, or slow down to such an extent that they can
not do their job properly. This constant complain-
ing and badgering of other employees who you
work with has been going on long enough so that it
must stop.
The warning threatened suspension or discharge for any
further conduct contrary to the Respondent's "estab-
lished rules and regulations, or .... detrimental to the
best interest of the company or its employees .. ."
According to Stone, this warning was issued immedi-
ately after Schumacher and Fonteyn had reported to him
that Krenner "was carrying on in the warehouse in a
manner that he was yelling, shouting, interrupting
people, causing them to be demoralized." Stone testified
that from the way these facts were presented to him, and
from the nature of the conduct described, he believed
that Schumacher, who had only started working a week
2" Stone acknowledged that Fonteyn had inquired into Krenner's pos-
sible interest in a supervisory position; Fonteyn did not testify concerning
this meeting. Fonteyn did deny knowledge that any particular individual
supported the Union; he did not deny knowing that there was union re-
lated discussion among the warehouse employees. His conversations with
a group of employees at his own home earlier in the summer and his
statement to Pettis on the way into Stone's office on October 9 establish
that he was aware, at least generally, of the union activity. The Respond-
ent contends, on brief, that "it is unlikely that Respondent would have
considered Krenner for the foreman's job at this time if it were aware of
his union activities." This interesting contention is an implicit admission
of hostile intent toward those who might engage in union activities. See
St. Anne's Hospital, 245 NLRB 1009 (1979); Little Lake Industries, 233
NLRB 1049 (1977).
s2 The Respondent objected to the receipt of this evidence as hearsay
but offered no testimony to contradict it. Stone's prior use of Applebaum
as a conduit to Geraldine and thus to Richard Krenner, the absence of
any contradictory testimony, and the similarity of this testimony with
that offered concerning the October 10 meeting all tend to establish its
reliability and probative worth. See RJR Communications, 248 NLRB
920 (1980).
607
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earlier, would leave if the situation were not corrected.
Schumacher, he said, told him that he did not know how
much longer he could take "this constant harassment."
Schumacher testified that he had observed Krenner
making loud and obsene comments and accusations to
other employees each time he would draw an order to
be filled, accusing other employees of speeding up or
slowing down so as to get the better orders. Schumacher
told Fonteyn that Krenner's behavior was disrupting the
work; his testimony does not indicate that he personally
discussed this alleged problem with Stone or that he
threatened or implied that he might leave if it were not
corrected. Fonteyn testified that he observed Krenner
for one evening after Schumacher had told him that
Krenner's "constantly bitching everytime he picked up
an order . . . was driving him crazy." Fonteyn acknowl-
edged that other employees also complained about the
orders they drew but, he said, they did not behave as
badly as did Krenner or direct their complaints to their
fellow employees in the same manner as did Krenner.
Fonteyn made the decision to issue the warning. Except
for Fonteyn's telling Krenner that the orders were "not
that bad," neither Fonteyn nor Schumacher spoke to
Krenner or attempted to determine what, if anything,
was bothering him. Krenner had received no prior warn-
ings, oral or written.
Krenner did not deny engaging in the behavior de-
scribed by Fonteyn and Schumacher. Thomas O'Brien,
the only employee named by either Fonteyn or Schu-
macher as being disturbed by Krenner's conduct, denied
that this behavior had particularly bothered him. Em-
ployees testified that all of the employees made similar
accusations, in similar vulgar terms, concerning their
fellow employees getting better orders. According to
O'Brien, there were some employees who complained
less than Krenner but Krenner's complaints were at the
level of the average employee working there. Alan Gorr
similarly testified that he was unaffected by Krenner's at-
titude, that the language Krenner used was used by ev-
eryone in the warehouse, and that everyone complained
about the orders.
The General Counsel contends, and I agree, that the
disciplinary notice issued to Krenner on November 10
was discriminatorily motivated. In reaching this conclu-
sion, I find it unnecessary to determine whether the Re-
spondent knew, to a certainty, that Krenner was engaged
in union activities. The employees had, in fact, engaged
in union activity which led to the filing of a petition, the
Respondent knew that Krenner had previously been em-
ployed in a union environment, Stone had expressed con-
cern that he might attempt to unionize the Gourmet em-
ployees, and Krenner had openly referred to the union
activity in both May and during the summer. Thus, there
existed ample grounds for any reasonably perceptive em-
ployer to suspect Krenner's likely involvement in the
current union activity. That suspicion, if not actual
knowledge, is reflected in Stone's message to Krenner,
related through Applebaum and Geraldine Krenner.
Such a suspicion is sufficient predicate on which to con-
clude discriminatory motivation where, as here, the
other elements are present. Those other elements include
union animus demonstrated throughout this record and
not really concealed by the Respondent and timing. This
disciplinary warning followed development of the Re-
spondent's "get tough" policy and occurred on the same
day that the Union's petition was withdrawn. Finally,
while Krenner did not dispute the testimony concerning
his behavior in the warehouse, I must conclude that that
behavior was only a pretext for giving him the warning.
In reaching this conclusion, I note the following: (a) nei-
ther Fonteyn nor Schumacher corroborated Stone's testi-
mony concerning their having brought this conduct to
Stone's attention; (b) Stone's alleged concern that Schu-
macher would quit is unsupported by Schumacher or
Fonteyn and appears to be an exaggeration; (c) neither
Fonteyn nor Schumacher was sufficiently concerned
with Krenner's behavior to verbally admonish him about
it or to try to determine whether he had some particular
problem causing the alleged outbursts; (d) the language
of the notice, including "forever complaining" "constant-
ly," "constant complaining," and "going on long
enough," appears to exaggerate the length of time the
conduct had been going on; and (e) the conduct attrib-
uted to Krenner was similar to conduct engaged in,
without discipline, by other employees and did not, con-
trary to Schumacher and Fonteyn's testimony, disturb
Krenner's fellow employees. I note, too, that the broad
language of the warning, threatening Krenner with sus-
pension or discharge for conduct "detrimental to the best
interest of the company or its employees . . ." could be
construed by employees, particularly in light of the Re-
spondent's announced policy of remaining nonunion, as a
warning to refrain from any union activity.
Accordingly, I find that the Respondent was discri-
minatorily motivated when it issued this warning to
Richard Krenner and that the Respondent has thus vio-
lated Section 8(a)(3) and (1) of the Act.
On Friday, December 19, Fonteyn and Schumacher
concluded that overtime would be needed on Saturday
to fill orders to be shipped prior to the Christmas holi-
day. Schumacher asked all of the third-shift employees;
only Milleren volunteered. When he was asked, Krenner
refused and explained why he was unavailable.2 8
At the conclusion of his shift at 8 a.m. on December
19, Krenner went home. About noon, he received a tele-
phone call from Fonteyn, who asked whether he was
working on Saturday morning. Krenner said that he had
already explained to Schumacher that he could not come
in. Fonteyn said that he was making the overtime man-
datory; Krenner explained that he needed the time to
make arrangements for the baptism of his youngest child
on the following day. According to Krenner's testimony,
disputed by Fonteyn, Krenner also stated, in this first
telephone conversation, that he would have to find a
babysitter for his children. Fonteyn called back an hour
or so later and asked Krenner whether he had made the
necessary arrangements and would be coming in. Kren-
ner told him that he had been unable to find a babysitter
and did not think he would be able to come in. Fonteyn
inquired as to whether or not Krenner's wife was work-
2' Schumacher did not specifically deny that Krenner had explained
why he could not work on that Saturday other than to say, "I asked each
one individually, and there was just a flat no." I credit Krenner.
608
GOURMET FOODS
ing, Krenner said that she was, and Fonteyn told him to
have her take the day off. Krenner said that he would
continue trying to find a babysitter and Fonteyn replied
that he would call back later. Fonteyn then called a third
time and again asked whether Krenner had made ar-
rangements for a babysitter. Krenner said that he had
not. He was told to be at work at 8 a.m. and Fonteyn
hung up. In at least one of these conversations, when
Krenner asked what would happen to him if he failed to
come in, Fonteyn replied that he would be written up
for insubordination. Notwithstanding Krenner's persistent
refusal to agree to work on Saturday, Fonteyn put Kren-
ner's name on a list of employees who would be working
that morning. He left the list for Schumacher, who su-
pervised the Saturday work. Krenner did not work on
Saturday.
Fonteyn had also asked the other third-shift order
fillers (except, apparently, Mark Wangsness) and several
of the day-shift employees to work overtime on Decem-
ber 20, 1980. It was made mandatory, however, only for
the third-shift employees.29
On Friday the employees were also told to report 2
hours early on Sunday evening for overtime hours prior
to the start of their regular shift. Krenner reported to
work at 10 p.m. on Sunday and asked whether he still
had his job. He was told that he did not and was handed
his termination papers.30 The decision to discharge
Krenner was made by Fonteyn.
Alan Gorr did not report to work on December 21
until midnight. He received a written warning for tardi-
ness. The record reveals that Gorr had received prior
written warnings for failing to show up for work on July
13, 1977, November 21, 1977, and December 28, 1978.
While it might be argued that the Respondent's reli-
ance on Krenner's failure to work mandatory overtime
was a pretext, I believe it more appropriate to treat this
case as one involving dual motivation. In Wright Line,
251 NLRB 1083, 1089 (1980), the Board stated, in regard
to 8(a)(3) cases turning on employer motivation, that it
would first require the General Counsel to "make a
prima facie showing sufficient to support the inference
that protected conduct was a motivating factor in the
employer's decision." Upon the satisfaction of this
burden, "the burden will shift to the employer to demon-
strate that the same action would have taken place even
in the absence of the protected conduct." Here, the Gen-
eral Counsel's prima facie case has been established by
the evidence of the Respondent's union animus, its suspi-
cion or knowledge of Krenner's union activity, and the
"0 Alan Gorr, like Krenner, was threatened with a disciplinary writeup
if he did not work. He complied. Schmotter agreed to work. Beckjorden
was excused upon his explanation that he wished to spend time with a
terminally ill brother. Mike Pettis and Mike Hansen, both tinrst-shift em-
ployees who were experienced order fillers, rejected Fonteyn's offer of
Saturday overtime and were neither threatened with discipline nor disci-
plined for their refusal. At least one part-time employee, John Roesler,
who was not an order filler, was requested to work and did work on that
day.
30 As it had turned out, Krenner's Saturday morning babysitter predic-
ament had been resolved by the expected arrival of Krenner's wife, from
whom he was separated. Krenner's failure to report to work that morn-
ing was the result of his oversleeping. However, at the point in time at
which Krenner was discharged the Respondent did not know of the
change in Krenner's circumstances.
earlier discriminatory warning given Krenner. The Re-
spondent, however, has failed to establish that Krenner
would have been discharged even absent his union ac-
tivities. Thus, while production on that Saturday was im-
portant to the Respondent, it was not so important that
the Respondent insisted on the attendance of experienced
order fillers who were then employed on the first shift.
It would seem, from the Respondent's failure to require
Pettis or Hansen to work after Fonteyn knew that it was
likely that Krenner would not, that the Respondent was
more interested in disciplining Krenner than in securing
his productive labors. That conclusion also stems from
the Respondent's less onerous discipline of Gorr for fail-
ing to comply with the Respondent's order to report to
work 2 hours early on Sunday night and from its dis-
charge of Krenner notwithstanding Fonteyn's statement
to him to the effect that he would be written up for in-
subordination if he did not comply. Finally, I note that
the Respondent's discharge of Krenner on the first in-
stance on which he failed to report to work as required
is inconsistent with the Respondent's own rule providing
for two warnings, discussed infra, and its earlier disci-
pline consisting of only written warnings, of Alan Gorr
who had on three occasions failed to show up for work
on scheduled work days, including two such instances
within the same year. There is no logical distinction be-
tween failing to show up for a regularly scheduled shift
assignment and failing to show up for a "mandatory"
overtime shift assignment. In reaching my conclusion, I
have rejected Fonteyn's contention that Krenner had
given him inconsistent and untrue reasons for not coming
to work; Krenner's explanations concerning the planning
for the scheduled baptismal ceremony and his need to
find a babysitter are complementary, not contradictory.
He told both Schumacher and Fonteyn of both rea-
sons. a3
Accordingly, I must conclude that the Respondent's
discharge of Richard Krenner was motivated by his
union activities, would not have taken place but for
those union activities, and was thus violative of Section
8(a)(3) and (1) of the Act.
H. The Strike and Related 8(a)(1) Allegations
The Respondent's warehouse employees began discuss-
ing the possibility of going out on strike even before
Krenner was discharged. With his discharge those dis-
cussions, held essentially spontaneously in small groups,
became more serious. The employees discussed all of the
things that had been happening in the warehouse: Fon-
teyn's statement of November 10, the increased quota,
the mispick fines, the deductions from their pre-Christ-
mas paychecks, and Krenner's discharge which, as
Schmotter stated, was "the last straw." The employees
discussed their belief that all that had taken place ren-
dered a free election impossible and decided to seek the
Union's recognition through their picketing activities.
They went to the Union's office shortly after Krenner's
s1 It may also be questioned whether a parent's need to secure a baby-
sitter so as not to leave a child unattended is not as reasonable an excuse
as that given by Beckjorden, i.e., his desire to visit a terminally ill broth-
er, which excuse was accepted by Fonteyn.
609
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge and discussed the mechanics of striking with
union representatives.
About December 29 the strike began. The Respond-
ent's premises were picketed with signs indicating that
the Union was on strike for recognition. The Union pro-
vided the pickets with a letter to explain to those who
might be inconvenienced why they were picketing. The
letter stated, inter alia:
Our employer left us no other course of action than
to go on strike, by his refusal to be fair in this
matter.
Only after the discharge of some of our fellow em-
ployees, an increase of our daily work requirements
to an unreasonable level, the arbitrary withholding
of monies from our paycheck right before Xmas
without right and without any signed authorization
to do so; and other unfair labor practices which we
have filed with the National Labor Relations Board.
Only after all of the above did we take the extreme
action that we have taken.
On the day the strike began the Respondent delivered
letters to its employees, including those on strike, which
related that the Union had filed and withdrawn a repre-
sentation petition. It assured them that they had a right
to come to work if they wanted to and would be wel-
come to do so if they so chose. The letter went on to
state:
You also know that if you decide not to come to
work we have the right to hire a permanent re-
placement for your position. Any employee who
does not report for work on their assigned shift by
Wednesday, December 31, beginning with the 7:30
a.m. shift will be replaced.
The letter informed striking employees that Minnesota
law precluded their receipt of unemployment compensa-
tion benefits while on strike and reiterated both the avail-
ability of jobs and the eventuality of replacement if they
did not return to work.
The General Counsel contends that the strike was an
unfair labor practice strike from its inception and that
the Respondent's letter unlawfully threatened the unfair
labor practice strikers with loss of their jobs. The Re-
spondent argues that, even assuming the Respondent had
engaged in unfair labor practices, the employees struck
for recognition and not as a protest against such unfair
labor practices. Board law is clear; a strike will be
deemed an unfair labor practice strike where it may rea-
sonably be determined "from the record as a whole that
an employer's unlawful conduct played a part in the de-
cision of employees to strike...." That there may have
been additional motivations, such as a desire for union
representation or an intention to protest additional con-
duct not found to be violative, is irrelevant. Larand Lei-
surelies, Inc., 213 NLRB 197 fn. 4 (1974); Climate Control
Corp., 251 NLRB 751 (1980); Colonial Haven Nursing
Home, 218 NLRB 1007 (1975). I would note that it is
clear from the record herein that the employees saw
union recognition as the only means to remedy the unfair
labor practices and in view of those unfair labor prac-
tices, they feared that further efforts toward recognition
through the election procedures would be futile. Accord-
ingly, I find that the strike which commenced on De-
cember 29 was caused and prolonged, at least in substan-
tial part, by the Respondent's unfair labor practices.
The employees engaged in an unfair labor practice
strike are entitled to be reinstated upon application not-
withstanding that replacements may have been hired for
them. See for example Larand Leisurelies, supra. In light
of the special rights which unfair labor practice strikers
possess, the Respondent's statements in the December 29
letter, threatening to permanently replace them if they
did not report back to work by a specific date, constitut-
ed an unlawful threat of job loss in violation of Section
8(a)(1) of the Act. I so find.
Two or three days after the strike began, a group of
the striking employees had a conversation with second-
shift Foreman Kenneth Reno in a van parked at the
picket line. Reno, who came out to the van to answer
the employees' questions concerning their paychecks,
told the employees that they could lose their jobs if they
did not come back to work. "Mr. Stone [he said] could
lock the place up anytime he wanted to and move to
Iowa."32 Reno's statements are clear threats in violation
of Section 8(a)(l) of the Act and I so find.
Shortly after the start of the strike, Ben Marz, the Re-
spondent's industrial relations consultant, received in-
structions from the Respondent's counsel to conduct pre-
hiring screening interviews. Marz assigned an assistant,
Greg Weiler, to this task. According to Marz, Weiler
was not given any specific instructions concerning the
interviews; Marz denied instructing Weiler to ask appli-
cants about their attitudes toward unions.33 An adver-
tisement was placed in the newspaper and it appears
from the interview worksheets in evidence that approxi-
mately 17 applicants were interviewed. Some of the
interviews were conducted on the premises of Gourmet
Foods; others were held at Marz' office. Each applicant
was asked how he felt about unions and whether he
would object to replacing "an activist." Their answers,
in some cases reflecting strong antiunion feelings, were
recorded on the interviewer's worksheets and Weiler
made some additional comments thereon concerning the
extent of their union animosity. Four of the successful
applicants testified; at least three had been hired by the
interviewer without further interview or interrogation by
the Respondent's supervision. The fourth did not recall
whether the supervisor asked him any additional ques-
tions before he started to work. The interviewer's work-
S2 Testimony of James Ricker as corroborated by John Roesler and
Alan Gorr, Reno described the conversation without specifically denying
the statements attributed to him. His general denial that he had "ever told
an employee that the plant was going to close" avoids the issue of wheth-
er he said that Stone could close and move or that the employees would
lose their jobs if they did not return to work. Accordingly, I accept the
credibly offered testimony of the employees as accurate. I also credit the
testimony of employees Jeff Kuehn and Allen Beach, both of whom testi-
fied to similar threats being uttered by Reno in October, after they had
signed union authorization cards.
sS Marz' testimony that no specific instructions were given is inconsist-
ent with his statement that Weiler was "probably" instructed not to ask
questions about union attitudes Weiler did not testify.
610
GOURMET FOODS
sheets were on the Respondent's letterhead and became
part of the Respondent's personnel files.
The Respondent, citing Westward Ho Hotel, 251
NLRB 1199 (1980), argues that "the unlawful interroga-
tions can not be attributed to Respondent because Mr.
Weiler was, at best, a special agent who had exceeded
the bounds of his delegated authority." Westward Ho is
distinguishable from the instant situation. In that case,
the alleged agent was a commercial employment agency
interviewing at its premises without disclosing to the ap-
plicants the identity of the employer or employers for
whose job openings they were being interviewed. In the
instant case, the applicants were interviewed pursuant to
an adverstisement seeking employees for Gourmet
Foods, at least some of them were interviewed on the
Respondent's premises and the interview worksheets
wherein their answers were recorded bore the Respond-
ent's name. In Westward Ho, the applicants were referred
by the employment agency for selection or rejection by
the employer. Here, successful applicants proceeded
from Weiler's interview to the start of their employment
without further review. In Westward Ho, it was noted
that there was no continuity of employment between the
Respondent and Prestige, the employment agency. In the
instant case, Marz regularly and continually provided
consulting services to the Respondent. In Westward Ho,
the record contained no evidence that the employer
maintained any records revealing the union membership
of its employees. In the instant case, the record of the
job applicants' union sympathies was entered on the Re-
spondent's own forms and became part of the Respond-
ent's files. And, while the administrative law judge and
the Board found that Prestige was a "special rather than
a general agent" for Westward Ho, I note that Prestige
derived its fees from those job applicants whom it suc-
cessfully referred rather than from the employers to
whom they were referred. It may be argued that Prestige
was the agent of the job applicants in that case, further
distinguishing Prestige from Marz. I therefore conclude
that Ben Marz and his employee, Greg Weiler, were
agents of the Respondent for the purpose of interviewing
job applicants, or at least were held out by the Respond-
ent as possessing apparent authority to act on its behalf,
and find the Respondent responsible for the patently un-
lawful interrogation conducted by Weiler. See Montgom-
ery Ward & Co., 228 NLRB 750 (1977); Sterling Faucet
Co., 203 NLRB 1031 (1973).
On February 2, the Union, on behalf of the 17 listed
employees (including Krenner), unconditionally offered
to return to work. On February 4, the Respondent invit-
ed the striking employees to return to work about Febru-
ary 8.
I. Reinstatement of the Strikers
The General Counsel contends that the Respondent
failed to properly reinstate striking employees Hansen,
Pettis, Schoenecker, Kolberg, Ricker, and Gorr to their
former positions, work assignments, or shifts, and has
thereby violated Section 8(a)(3) and (1) of the Act.
Mike Pettis and Mike Hansen were both day-shift em-
ployees prior to the strike. They were reinstated on Feb-
ruary 8 to positions on the third shift. Working on the
first shift as of that date were Dennis Paskett and Allen
Beach, neither of whom had participated in the strike.
Paskett, who had more overall company seniority than
either Hansen or Pettis, had been employed by the Re-
spondent as a truckdriver until mid-January. In this ca-
pacity, he had been a member of Teamsters Local 792
and was covered under the collective-bargaining agree-
ment between that union and the Respondent. Paskett
ceased driving on the Respondent's behalf in mid-Janu-
ary as a result of actions taken against him by the Local
to which he belonged and certain other incidents, all of
which appeared to be related to his continued driving
during the strike. As of January 15, Paskett began work-
ing on the Respondent's first shift in the warehouse, es-
sentially taking care of the shipping department but oc-
casionally doing other warehouse work including order
filling and the unloading of trucks. The Respondent con-
tends that Paskett, having greater seniority than either
Pettis or Hansen, was entitled to the first-shift position
upon his request under the Respondent's practice of
companywide seniority as the basis for shift assign-
ments. 3 4
Allen Beach, who had less seniority than either
Hansen or Pettis, had been a second-shift employee prior
to the strike. He possessed a class A (truck driving) li-
cense and, in the period before the strike, had occasional-
ly driven trucks for the Respondent, making special trips
during his second-shift hours. During the strike, Beach
continued to perform his regular job functions and drove
the Respondent's truck "occasionally, a couple of times."
At the conclusion of the strike, Fonteyn assigned Beach
to full-time driving duties and he worked in that capacity
for approximately 1 week. Then, when he complained to
the first-shift foreman that he expected driver's wages if
he was going to drive, he was told that the truck would
be driven by an employee of the contract carrier. At that
point, about I week after the strike ended, he was as-
signed to work in the warehouse on the first shift. In the
next 2 or 3 weeks, according to Beach's recollection, he
only drove on one occasion. In the beginning of March,
the Respondent subcontracted its driving to Merchant's
Cartage. At that point, Beach was notified that because
of his seniority he was being transferred back to his pre-
strike assignment on the second shift. Pettis was returned
to his first-shift assignment.3s
The Respondent defends its assignment of Paskett to
the first shift on the basis of Paskett's greater seniority
and its assignment of Beach on the basis of its need for
his ability to occasionally drive trucks during that shift.
In the absence of any evidence establishing a seniority
policy contrary to that claimed by the Respondent, I
must conclude that Paskett's assignment to the first shift
nondiscriminatorily reduced by one the number of job
openings on the first shift. However, as of the end of the
as The record does not contain any contradiction of the Respondent's
claims regarding its seniority practices.
a5 At least one other driver, Mike Anderson, also transferred back into
the warehouse at that time. It appears, although the record is not entirely
clear, that he was assigned to the first shift. His seniority status is not
disclosed. Another driver, Russell Erickson, similarly transferred into the
warehouse on the second shift in the beginning of March 1981.
-
611
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike, Beach was not working in the warehouse; he was
a full-time truckdriver. He did not return to the ware-
house until a week after the strike ended. Thus, the Re-
spondent cannot be heard to argue that its need for
Beach on the first shift because he was a licensed truck-
driver made a position for one of the returning unfair
labor practice strikers unvailable. Indeed, even after that
week, the Respondent is hard pressed to argue that
Beach's presence was needed on the first shift. In the
period prior to the strike, Beach performed occasional
driving duties and was able to do so while working on
the second shift. The Respondent did not explain why he
could not have continued to do so after the strike. More-
over, I note that Beach was called on to drive on only
one occasion after he returned to the warehouse follow-
ing the strike; the Respondent's need for his driving skills
was, at best, minimal. Accordingly, I must conclude that
by failing to reinstate Mike Pettis (Pettis being more
senior than Hansen) to his former position on the first
shift, the Respondent has violated Section 8(a)(3) of the
Act.3 6
The General Counsel's complaint alleges that the Re-
spondent refused to reinstate unfair labor practice striker
Alan Gorr of his former position of employment. It also
alleges that at the conclusion of the strike the Respond-
ent discontinued the prior practice of rotating the vari-
ous warehouse jobs among the third-shift employees. It
appears that these allegations are interrelated. The evi-
dence reflects that Gorr was reinstated to the third shift
at the conclusion of the strike. Prior to the strike, he had
been one of the best, if not the best, order filler. He was
also an excellent truckloader. Pursuant to the job rota-
tion system which the Respondent admits was in effect
until the strike, Gorr and his fellow third-shift workers
generally rotated among the various jobs on that shift.
When the third-shift employees returned to work after
the strike, Schumacher, pursuant to discussions with
Fonteyn, eliminated the rotation system and assigned the
employees to the jobs he felt they could do best. Gorr
was assigned to truckloading.
Job rotation had long been a part of the Respondent's
third-shift operation. It enabled all employees to earn a
share in the order filling incentive pay and it further en-
abled them to achieve some variety in the tasks they
were required to perform. The value of the rotation
system to the employees was recognized by the Re-
spondent's president Stone when he negotiated the rota-
tion system with the warehouse employees in 1976 and
when he rejected a suggestion that the employees waive
the rotation system in regard to the order checker's job
for Jack Rohde's benefit. Thus, job rotation was part and
parcel of the third-shift warehouse operation; the return-
68 The General Counsel's contention that the Respondent "require"
non-striking truckdrivers Erickson, Anderson, and Paskett, "to work in
warehouse . . . as part of its scheme to reward those who refused to
honor the strike and penalize those who did," must be rejected. Erickson
and Anderson were offered warehouse jobs on the Respondent's subcon-
tracting of the driving work in the first week in March, a month after the
strike ended. Erickson was assigned to the second shift and there is no
contention that any striking second-shift employee had been denied
proper reinstatement. The record does not reveal Anderson's seniority or
the shift to which he was assigned when his truckdriving job was subcon-
tracted.
ing unfair labor practice strikers were entitled to rein-
statement to their former positions and the failure to re-
instate them to warehouse positions which included job
rotation was a breach of the Respondent's obligation to-
wards them. Accordingly, I find that by eliminating the
job rotation system after the strike, the Respondent has
failed to reinstate Alan Gorr and other third-shift em-
ployees to their former positions, in violation of Section
8(a)(3) of the Act.
The complaint alleges that the Respondent failed to re-
instate Wayne Kolberg, James Ricker, and Steve
Schoenecker to their former positions at the conclusion
of the strike; in a separate subparagraph it also alleges
that their hours of employment had been reduced upon
their return to work. The General Counsel's brief does
not otherwise describe the manner in which he contends
that the reinstatement of these three falls short of meet-
ing the Respondent's legal obligations. I conclude that
the two complaint references to these three employees
are merely redundant.
The record reflects that Kolberg, Ricker, and Schoen-
ecker were employed on the first shift. Although they
were considered to be part-time employees (and thus re-
ceived a lower rate of pay and no fringe benefits), they
had been working between 35 and 40 hours per week
prior to the strike. Upon their return to work at 8 a.m.
on February 8, they were told that their hours were
being reduced and that thereafter they would only work
until 12:30 p.m. However, from the following day until
notified of their layoff on March 12 (discussed infra)
they generally worked from 8 a.m. until 2:30 p.m. Occa-
sionally they worked less, occasionally they worked
more. For at least some period of time following the end
of the strike, persons who had been hired during the
strike continued to work on a part-time basis on both the
second and third shifts. However, it appears from the
record herein that the work they were doing, item
checking, truckloading, truckdriving, and price code
checking, was not work which any of these three em-
ployees had previously done for the Respondent or were
capable of doing on the first shift.
The Respondent argues that even if these three em-
ployees are deemed to be unfair labor practice strikers,
the admitted reduction in their hours would not violate
the Act because the Respondent reduced the hours of all
of its part-time employees to around 24 hours per week
so as to avoid having to consider them full time and pay
them wages and benefits as full-time employees and be-
cause a decline in inventory reduced the need for their
services. As to the former, Stone testified that the Re-
spondent had tried, unsuccessfully, to limit part-time em-
ployees to 24 hours per week prior to the strike and has
attempted to do so since the end of the strike so as to
preclude part-time employees from working so many
hours that the Respondent would be required to treat
them as full-timers for fringe benefits purposes, particu-
larly the profit-sharing plan.
It is unclear whether the Respondent is arguing that
the ERISA (Employment Retirement Income Security
Program, 29 U.S.C. Sec. 1001 et seq.) regulations or only
the Respondent's "policies" as described in conclusionary
612
GOURMET FOODS
terms by Stone would have required that the part-timers
be so treated. The Respondent does not argue in its brief
that there was any statutory mandate requiring the grant-
ing of fringe benefits to "part-time" employees once they
averaged more than a set number of hours per week.
The Respondent's employee manual provides that part-
time employees working a minimum of 1400 hours per
year are entitled to pro rata vacation benefits. The same
paragraph further provides that "only full-time employ-
ees, those working a minimum of 2000 hours a year, are
entitled to company paid hospitalization." The profit-
sharing plan, according to the employee manual, includes
all full-time employees and all part-time employees who
work a minimum of 1000 hours. Employees earn a share
in the amount contributed by the Respondent to the
profit-sharing fund in the proportion that that employee's
salary bears to the overall payroll. The manual thus con-
tradicts Stone's testimony to the effect that the Respond-
ent would be obligated to make additional profit-sharing
contributions for part-time employees who averaged 35
or more hours per week.
As noted, the Respondent also contends that the re-
duction of inventory reduced the need for the part-time
employees' services. The record establishes that the Re-
spondent had an inventory consisting of approximately
670,000 cases of merchandise as of December 24, 1980,
which inventory was reduced by slightly more than
100,000 cases, between 15 and 20 percent, by February 6.
This reduction in inventory would correspondingly
reduce the amount of work available for warehouse em-
ployees.
Ricker and Kolberg both testified that when they first
returned to work after the strike there were still some
employees working who had been hired during the
strike. They were not sure how long these employees
continued to work. The Respondent acknowledged that
some strike replacements were retained following the
strike but denied that they were doing any work which
had normally been performed by Ricker, Kolberg, or
Schoenecker. Two were retained for about 2 weeks to
work on the third shift doing item checking and truck
loading, a third worked as a full-time truckdriver and a
fourth worked part time for several weeks checking the
unit pricing codes. That work entailed opening each
case, reading the UPC numbers off the product and re-
cording them next to the Respondent's code number,
reinserting the item back in the case and reshelving it.
According to Fonteyn, there was a certain way this
work had to be done and difficulties might be caused for
the keypunch employees if there was a change in the
manner it was being done resulting from a change in the
person doing it.
As unfair labor practice strikers who had made an un-
conditional offer to return to work, Ricker, Kolberg, and
Schoenecker were "entitled to immediate reinstatement
to their former jobs or, if such jobs no longer existled],
to substantially equivalent positions .... [T]he burden
is upon the employer to offer immediate and uncondi-
tional reinstatement, even if striker replacement must be
terminated to make room for the returning strikers."
Atlas Metal Parts Co., 252 NLRB 205 (1980). The Re-
spondent's reinstatement of these three employees falls
short of meeting that burden. Each of these employees
was working a 35-to-40-hour week prior to the strike;
that was the job to which they were entitled to return.
The Respondent's explanation, that it reduced the hours
of all of the part-time employees in order to avoid
having to pay them fringe benefits as full-timers, is un-
convincing. Even as part-time employees working only
1000 hours per year, they were entitled to profit sharing
and their participation in the profit-sharing plan would
not cost the Respondent anything additional as the Re-
spondent's contribution to that plan was based on its
earnings, not on the number of employees participating.
Similarly, these employees would not receive hospitaliza-
tion benefits unless they were considered full time,
reaching a minimum of 2000 hours per year. It is only
the vacation benefits, which become applicable for em-
ployees working over 1400 hours per year, that these
employees might receive if they continue to work more
than 24 hours per week.
The Respondent's evidence of diminution of inventory
in the warehouse might establish that there was a less-
ened need for the services of these three employees on
the first shift since prior to the strike. However, if in fact
their former jobs no longer existed, the Respondent was
obligated to offer them substantially equivalent employ-
ment, terminating if necessary any strike replacements.
The Respondent, at least, was obligated to offer them the
jobs of the two strike replacements who were working
on item checking and truck loading on the third shift
and, I believe, the job of the strike replacement who was
checking unit pricing codes on the first shift. Fonteyn's
description of that job fails to convince me that another
employee could not have been substituted for the one
who began that work. And, considering the recollections
of these three employees concerning strike replacements
who were working with them on the first shift when
they returned, I am not convinced that there were not
other strike replacements who had been retained at least
for some period of time.
Accordingly, I find that the Respondent has failed to
properly reinstate unfair labor practice strikers Ricker,
Kolberg, and Schoenecker and has thus violated Section
8(aX3) of the Act.37
J. The March 13 Layoffs and Reductwl., of Hours
The complaint alleges that about March 13 the Re-
spondent laid off James Ricker and Wayne Kolberg and
reduced the hours and rates of pay of Steve Schoen-
ecker, Alan Raush, John Roesler, and Jasper Messina
"notwithstanding that the employees ... were unfair
labor practice strikers . . . and because said employees
had engaged in activities for and on behalf of the
Union." The General Counsel's brief, which treats these
issues in essentially conclusionary terms, does not further
explain whether it is the government's contention that
these actions constituted a failure to properly reinstate
a3 The cases cited by the Respondent, Jack LaLanne Management
Corp., 218 NLRB 900 (1975), and P.Q. Beef Processors, 231 NLRB 1076
(1977), did not involve the reinstatement of unfair labor practice strikers
and are inapposite.
613
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these employees (who had returned to work more than a
month earlier) or were independently discriminatory.
The record establishes that between March 10 and 13,
part-time employees Raush, Kolberg, Ricker, and
Roesler received letters from the Respondent stating that
they were being laid off as of March 13 because of eco-
nomic considerations. Each was offered a part-time posi-
tion in the nonfood area (the sewing room) at $4 per
hour, $1 or $2 per hour less than they had been making,
beginning on March 16. They were also told that they
would be eligible to bid on Saturday maintenance shifts
at their original rate of pay. Kolberg rejected the offer of
the lower paying job and was laid off. Thereafter, until
July 1, he worked only an occasional Saturday. On July
1, the Respondent offered, and Kolberg accepted, a part-
time job in the warehouse. Ricker initially accepted the
Respondent's offer of the sewing room job and then,
after a few days, took the layoff instead. Thereafter, he
worked on a couple of Saturdays. The Respondent of-
fered, and Ricker accepted, a part-time warehouse job
beginning July 13. On his return, Fonteyn told Ricker
that as a part-timer he would be limited to 24 hours per
week. However, he worked as much as 42 hours per
week thereafter. The 24-hour limit was reasserted, he tes-
tified, a week prior to his testimony herein. John Roesler
and Alfred Rausch accepted the offers of employment in
the sewing room. Rausch quit in June but returned in
mid-July to his former job. On his return, Reno informed
him that he would be limited to 24 hours per week.
Roesler worked in the sewing room until the beginning
of the summer when he was similarly returned to his ear-
lier warehouse position and original rate of pay. For
some period of time he worked 40 hours per week; sub-
sequently his hours, too, were reduced to 24 hours per
week. 38
Part-time employees Steven Schoenecker and Jasper
Messina, it appears, were laid off on March 13. Messina
was the only one among these six part-time employees
who had not participated in the strike.
The Respondent contends, and I agree, that the layoffs
and transfers to lower paying jobs were economically
and not discriminatorily motivated. At the time that
these actions were being taken, the Respondent had sub-
contracted its driving work to an outside contractor.
Two of the Respondent's full-time drivers, Anderson and
Erickson, assumed full-time positions in the warehouse
(as they had done on one prior occasion, in preference to
assuming union membership as truckdrivers), thus reduc-
ing the need for part-time warehouse employees Re-
spondent also adduced evidence indicating that it was
losing money during the period of time encompassed by
a8 According to Rausch, Reno explained that the part-time employees
were being limited to 24 hours per week because the Respondent was
running the warehouse as it would a unionized operation and said that
the employees should consider themselves fortunate because in some
union shops there were no part-time employees at all. Reno testified that
Rausch raised the question of whether the 24-hour limitation was being
imposed because of the union activity. He denied acknowledging that
such was the motivation and denied saying that the warehouse would be
run as a union shop. Noting that Reno's testimony is consistent with the
answer attributed to him in response to a similar question by Roesler, and
further noting that there had been no mention of the union activity for 3
or 4 months prior to this alleged statement, I credit Reno.
these personnel actions. That evidence, while not conclu-
sive, provides some justification for the Respondent's ac-
tions. Most significant, however, was the fact that the al-
leged discriminatory motivation is essentially negated by
the fact that the Respondent offered these part-time em-
ployees employment in the nonfoods or sewing room
section of its warehouse, a section staffed to that time by
employees who did not participate in the strike. Accept-
ance of those offers by the part-time employees who had
participated in the strike would have necessitated the
layoff of employees who did not participate.
The General Counsel also contends that the Respond-
ent's use of temporary employees from various labor
service agencies to unload railroad cars during the
period following March 13 established that there was
work available for the laid-off part-time warehouse
workers. The Respondent credibly explained that such
temporary employees had been used routinely since the
beginning of 1980 to unload incoming containers quickly
and on short notice so as to avoid demurrage. The Re-
spondent did not increase its use of these temporary em-
ployees to any noticeable extent from March 13 through
the end of June.
Accordingly, I find that the General Counsel has
failed to sustain his burden of establishing that the layoffs
or the reductions in hours and rates of pay of the six
named part-time employees were discriminatorily moti-
vated. Accordingly, I shall recommend that these allega-
tions be dismissed.
K. Suspension and Discharge of Schmotter
Lloyd Schmotter began working for the Respondent
as a third-shift order filler in July 1980. He signed a
union authorization card and participated in the strike.39
His shift and job assignment were unchanged upon his
poststrike reinstatement.
Orders are filled in the Respondent's warehouse by
following computer produced sheets bearing a sticker for
each case ordered and a final sticker which identifies the
customer, the date the order was received, and the total
number of cases in the order. The order fillers place
stickers on each case as it is pulled from stock and put
the final sticker on their sticker sheets, which are turned
in at the end of each shift.
According to the Respondent, the order fillers' sticker
sheets are used to determine each employees' production
per shift. It is also used, they testified, as a means of final
control to determine that an order has been pulled and
shipped in the event that a truckdriver, in picking up an
order, inadvertently removes all copies of the invoice
and bill of lading. This, Stone testified, happens as many
as 15 to 25 times per month and can result in the Re-
spondent having to reship an entire order, at its own ex-
pense, in the event that a customer claims that no deliv-
ery was made. According to Stone and Fonteyn, the Re-
spondent can determine, by reference to the final sticker
39 While Schmotter's support for the Union was clear, the record con-
tains no warrant for the General Counsel's claims, on brief, that Schmot-
ter "was an outspoken advocate of the Union . . a vocal union adher-
ent."
614
GOURMET FOODS
and its computerized records, which shipper received an
order and recover the shipping documents in that way.
Former employee Jack Rohde testified without contra-
diction that a master file containing copies of all invoices
is retained in the office where it is not subject to inad-
vertent removal by a truckdriver. From the file copy of
the invoice, one could similarly determine which shipper
handled the freight and recover the shipping documents.
That file copy, however, would not, of itself, necessarily
indicate that the goods had been pulled from stock.
On February 27, Schmotter turned in a sticker sheet
indicating that he had pulled somewhat in excess of 1200
cases. All of the stickers but one were for orders re-
ceived on and after February 23; one was for an 89 case
order received on February 18. Schmotter did not deny
that he had retained that sticker from an earlier time and
has used it on February 27; he did not deny that he en-
gaged in the practice of "banking" stickers. He testified
that he saved stickers to be used by himself and others in
the event that they had difficulty in making the 1200
case quota.
On March 3, Fonteyn and Schumacher gave Schmot-
ter a letter stating that he was being suspended for 2
days for his failure to hand in stickers on the night that
an order was filled and for his "persistent failure to meet
production standards." His suspension was timed to coin-
cide with a 2-day leave of absence which he had previ-
ously requested and been granted. The letter contained a
warning that similar conduct in the future would result
in further discipline, possibly discharge.
Schmotter recalled that in this meeting he accused
Fonteyn and Schumacher of taking this disciplinary
action because of his union activities and received no re-
sponse. Both Fonteyn and Schumacher denied that
Schmotter made any such accusation.40
While Schmotter denied having been told that the
banking of stickers was contrary to the Respondent's
policy, and none of the employees recalled being in-
structed not to bank their stickers, several employees did
acknowledge an awareness that the banking of stickers
would be considered contrary to company policy and
frowned upon. Others testified that on Saturday order
filling, they observed supervisors sometimes throwing
away completed stickers sheets or otherwise not enforc-
ing the policy regarding retention of stickers. The record
reflects that as early as January 29, 1979, Mike Pettis had
received a written warning for failing to meet his quota
and for "taking and using someone else's incentive total
sticker for an order filled by another employee."
About May 13, Schmotter was again called into the
office. Schumacher showed Schmotter his sticker sheet
from May 11; contained thereon were 16 stickers, each
one placed immediately below another. All of the stick-
ers were for orders received on May 8 or 10 except the
fifth sticker, which was for a 44-case order received on
May 7. According to the Respondent, all orders through
May 7 had been picked and shipped prior to May 11 be-
cause of the Respondent's inventory procedures; this par-
40 Even assuming that Schmotter so accused them, I would not, under
all the circumstances, find that their failure to deny the accusation estab-
lishes, without more, that they were so motivated.
ticular sticker represented an order which had been
picked on the day shifty by Russell Erickson. Schmotter
was accused of using someone else's sticker and, not-
withstanding his denials, was discharged.
Schmotter marked his sticker sheets so as to indicate
his production prior to the lunch hour. The disputed
order was the fifth sticker, of nine, placed on the sheet
prior to lunch. In all, the sticker sheet showed a total of
1340 cases. There was no evidence to indicate that the
order fillers did not retain the sticker sheets in their own
possession throughout the course of their shift; neither
was there any evidence to demonstrate that, once stuck
on the sheet, a sticker could be removed and another
substituted without damaging the underlying sheet of
paper.
Fonteyn testified, without contradiction, to the exist-
ence of a policy whereby employees receiving a second
written warning within a year for any offense other than
tardiness would be discharged. An exception, he testi-
fied, was made for Schmotter when Schmotter received
the March 3 written warning because his November
warning had followed the institution of the new and in-
creased quota.41
The General Counsel contends that Schmotter's
March 3 suspension and his May 13 discharge "were oc-
casioned by his continuing outspokeness in his favor of
the Union and his susceptibility to not making quota,
which made him easier prey than the more experienced
employees." The Respondent, on the other hand, argues
that Schmotter was validly disciplined for breach of a
known company policy regarding the banking of stickers
and was discharged for his second similar violation
within a relatively short period of time. While these
issues are somewhat beclouded, I am inclined, under all
the circumstances herein, to agree with the Respondent.
In reaching this conclusion, I have noted that the March
3 warning was, in part, occasioned by Schmotter's failure
to meet the unlawfully imposed 1200 case quota and to
that extent was invalid. However, it was also partly mo-
tivated by Schmotter's admitted banking of stickers, an
act generally known to be contrary to company policy
and one which warranted disciplinary action. I note, too,
that the Respondent did not discharge Schmotter on re-
ceipt of what it deemed to be a second valid warning in
March, and while it suspended him for 2 days, it tem-
pered that penalty by allowing his 2-day suspension to
coincide with a 2-day leave of absence already sched-
uled. In regard to the discharge, I find it difficult to be-
lieve that Schmotter did not place the disputed sticker
upon his sheet; the order and placement of those stickers
makes it highly unlikely that anyone else could have
done so. Therefore, while I have some question as to
how that sticker could have fallen into Schmotter's pos-
session when it should have been turned in by Erickson
upon completion of his order filling duties prior to the
" The Respondent's employee manual provides, under "Termination,"
that an employee "will receive at least one notice in writing, advising of
the specific complaint, before termination will be considered." The work-
ing agreement proposed by Stone to the warehouse employees in Octo-
ber 1980 provided for written warning notices and for dismissal upon "a
second violation within 90 days ...
615
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inventory, I must conclude that Respondent had reason
to believe that Schmotter had engaged in a second, albeit
slightly different, violation of its sticker practices. 42
Accordingly, I must conclude that the General Coun-
sel has failed to sustain its burden of proving that the Re-
spondent warned, suspended, and discharged Lloyd
Schmotter in March and May 1981 because of his union
activities. I shall recommend that these allegations be dis-
missed.
L. A Bargaining Order Remedy
The General Counsel argues that the Respondent's
"pervasive and numerous unfair labor practices . . . ren-
dered slight the possibility of erasing [their] effect and
decreased the chances of a fair election." Therefore, the
General Counsel asserts, a bargaining order remedy is
warranted, citing NLRB v. Gissel Packing Co., 395 U.S.
575, 614-615 (1969). In so arguing, the General Counsel
does not assert that the Respondent's conduct would
bring it within what is generally known as the first cate-
gory of Gissel, where a bargaining order remedy might
be warranted on the basis of "outrageous" and "perva-
sive" unfair labor practices "without need of inquiring
into majority status on the basis of cards or otherwise.
. ." Rather, the General Counsel asserts that the Union
has demonstrated its majority support in an appropriate
unit. I turn to those questions.
1. The appropriate unit
The General Counsel contends that "all full-time and
regular part-time warehouse employees, excluding the
sales trainees/cooler employees, sewing room employees,
and drivers constitute an appropriate collective-bargain-
ing unit." The Respondent, agreeing that a warehouse
unit is appropriate, submitted a list of 44 alleged ware-
house employees to the Board on October 21 for use in
the representation case. Subsequently, four names were
removed. 43 One, Paul Cain, described as a warehouse-
man, was added at the Respondent's request. From the
41 names remaining on the employer's payroll list, the
General Counsel would exclude five sales trainees, nine
sewing room employees, and two drivers. The General
Counsel would also exclude two individual as casuals.
The unit as thus envisioned by the General Counsel
would include on 23 employees, 24 if Rohde were in-
cluded .4 4
The sales trainee/cooler employees -Within the Re-
spondent's warehouse is an 8000 or 9000 square foot
cooler where perishable food items are stocked. The Re-
42 While the Respondent's explanation of why the stickers had to be
properly maintained and recorded raises some doubts in my mind in view
of the evidence of duplicate copies of the invoices, I cannot say, based on
this record, that its explanation is so unreasonable or patently false as to
demonstrate pretextual motivation.
o' Joel Stone, Gary Lowenthal, Steven Lowenthal, and Dan Honoroff.
The inclusion of the first three-named employees on the list submitted on
October 21 has previously been discussed. The fourth, Honoroff, was re-
moved at the request of the Respondent's counsel. The payroll record es-
tablishes that he worked 12 hours in the period ending October 4, 1980,
had not worked prior to that date, and did not work thereafter.
44 The General Counsel inadvertently failed to include Rohde as one
of the unit employees although he argued that Rohde's card should be
counted for majority purposes.
spondent staffed this area with full-time employees who
carried the title "sales trainees." They worked in the
cooler and performed functions essentially equivalent to
those performed by the Respondent's other warehouse
employees. That is, they received, stocked, and removed
merchandise from stock for shipping. They were super-
vised in these tasks by the warehouse foremen. They
sometimes worked in the warehouse, outside the cooler,
when work in the cooler was slack, doing the same work
as other warehouse employees. Order fillers went into
the coolers as part of their regular duties to pick up
items for virtually every order that was filled. The
cooler employees received, pursuant to their individual
contracts, discussed infra, the same fringe benefits includ-
ing vacations and health insurance, as the Respondent's
other employees but their rate of pay was approximately
half that paid to the other full-time warehouse employ-
ees. They were hourly paid, and they punched the same
timeclock and used the same lunchroom facilities as the
other warehouse employees.
The sales trainee/cooler employees were hired when
they responded to advertisements offering sales trainee
positions. In the course of their interviews with the Re-
spondent's sales manager they were told that they would
have to work for 3 to 6 months in the cooler to learn the
business, after which sales routes would be assigned to
them on the basis of seniority. They signed detailed con-
tracts entitled "Employment Agreement Sales Trainee"
which provided, inter alia, that they were being em-
ployed "to work in various capacities which will serve
the purpose of training you to be a salesperson with the
company." In addition to working in the cooler, the sales
trainees attended monthly sales meetings and weekly or
biweekly sales training meetings. Occasionally, depend-
ing on how long they had been employed, these employ-
ees would travel to the retail stores with a salesperson
and/or would go to the stores to reset merchandise on
the shelves. They did no selling and were not exposed to
other aspects of the Respondent's business. The Re-
spondent gave them business cards identifying them as
employees of Gourmet; other employees in the ware-
house received no such cards.
Stone denied that the sales trainees' contract gave
them any rights to sales positions; such positions, he tes-
tified, were posted and might be filled by anyone from
within or without the Company. Stone admitted that the
sales trainee agreement was used as a inducement to
secure employees for low paying, generally undesirable
work by holding out a little hope of careeer advance-
ment. Two of the sales trainees testified. Both had termi-
nated their employment as result of their dissatisfaction
with the job and with the probability that they would
become salesmen. One, however, had been offered a
sales route but had turned it down because it would have
required that he move.4
4. The Respondent's payroll record, J. Exh. 8, beginning with the pay-
roll period ending October 18, 1980, listed the sales trainees among the
warehouse employees, department 600. They were not so listed prior to
that payroll period and it is not possible, from this exhibit, to determine
under what other department they may have been listed. J. Exh. 8 was
Continued
616
GOURMET FOODS
Contrary to the contentions of the General Counsel, I
would include the category of employees known as
"sales trainees" or "cooler employees" within the ware-
house unit. It is the present duties and interests of the
employees which are determinative of their unit place-
ment, not whatever future assignments they may hope or
expect to receive. Heckett Engineering Co., 117 NLRB
1395, 1398 (1957). Here, while these employees had some
modicum of connection to the sales department, their
basic duties and functions were within the warehouse.
They performed the same work, albeit generally with
other lines of merchandise, as other warehouse employ-
ees, and they worked under the same immediate supervi-
sion as the other warehouse employees. They were
hourly paid, though at a rate substantially below that of
those employees whom all parties agree to be within the
warehouse unit but above those wages paid to the
sewing room employees, discussed infra. They worked
on a full-time basis and received the same fringe benefits,
including vacations and health insurance, as Respond-
ent's other full-time employees. The area in which they
worked was encompassed within the warehouse and
other warehouse employees regularly entered that area
in the normal course of their duties. Finally, I note that
the prospect of promotion of these employees to sales
positions was, at best, speculative. See Cumberland Shoe
Corp., 144 NLRB 1268 (1963).
Accordingly, I find that William Bickel, Jeffrey
Brower, Peter Johnson, and Dean Swanson, all of whom
were sales trainee/cooler employees as of October 14,
1980, must be included within the warehouse unit.4 6
The sewing room employees-Within the Respondent's
warehouse is another area, partially walled off, known as
the sewing room where non-food items, including sewing
supplies, are stocked. Working within this area, as part-
time employees, are a number of students from a local
college. The General Counsel would exclude the sewing
room employees from the warehouse unit, contending
that they share no community of interest with the other
warehouse employees and are casual, oncall employees
with no reasonable expectation of continued employment
beyond completion of their schooling.
The record establishes that the sewing room employ-
ees work under the same immediate supervision as the
offered as the computerized payroll record for the warehouse employees
and drivers; the Respondent did not represent it to be a complete payroll.
The agreements executed by the sales trainee/cooler employees upon
their initial hiring were, as noted above, entitled "Employment
Agreement/Sales Trainees." Sometime subsequent to December 29, 1980,
each of these employees executed a new contract, dated and purportedly
effective on December 29, 1980, wherein the caption was changed to
read "Employment Agreement Cooler Employee" and the title of the po-
sition was changed from "sales trainee" to "cooler employee." There was
also a change in the method of compensation for these employees. The
new agreements, notwithstanding their December 29 effective dates,
were executed by the employees between late January and April 1981.
The Respondent's counsel did not rely on either J. Exh. 8 or on the
newly entitled agreements in arguing for the inclusion of these employees
in the warehouse unit. I similarly find reliance on these exhibits unwar-
ranted.
46 The employment agreement and the payroll records establish that
Paul Cain was not hired until on or after October 20, 1980. He would,
therefore, be excluded as he was not an employee on October 14, 1980,
the date of the Union's demand for recognition. Motz Poultry Co., 244
NLRB 573, 578 (1979).
rest of the warehouse. Their pay, at $3.50 per hour
(except for Sue Ann Maim, discussed infra, who received
approximately 50 cents per hour more), is approximately
one-third of the rate paid the full-time warehouse em-
ployees, is somewhat more than one-half the rate of the
acknowledged regular part-time warehouse employees,
and is $1.50 per hour less than that paid to the cooler
employees. In the sewing room they stock, mark, pull
from stock, and pack merchandise for shipping. On occa-
sion, when there is not sufficient work in the sewing
room, they work in other areas of the warehouse, re-
packaging merchandise. Some of them also work occa-
sionally in the Respondent's office, filing.
The General Counsel pointed out that the sewing
room employees (and those working in the cooler) did
not participate in the contractual arrangements which the
Respondent had with its full-time warehouse employees.
I note, however, that those working agreements had not
been extended to the part-time warehouse employees
whom the General Counsel would include within the
unit and therefore deem this factor to be immaterial.
There are nine sewing room employees whom the Re-
spondent would include within the unit. All are listed in
the Respondent's payroll records as being within depart-
ment 600, the warehouse, from the commencement of
their employment. The payroll records and the Respond-
ent's compilation thereof establishes the following: Sue
Ann Maim has been working for the Respondent since
October 1978. She worked throughout the year 1980 and
averaged nearly 30 hours per week. She was still em-
ployed by the Respondent in September 1981. Melanye
Stookesbury worked for the Respondent throughout
1980, except during the summer months, and averaged
for the entire year 10 or more hours per week. From
September through the end of October 1980 she aver-
aged more than 18 hours per week and she still was em-
ployed as of August 1981. Mary Booker began working
for the Respondent in the pay period ending September
29, 1980, and averaged 16 or more hours per week
through the end of the year. Debbie Hieronymous simi-
larly began on September 20; she was still employed by
the Respondent in July 1981, and averaged 23 or more
hours per week through the end of 1980. Herschel
Foster began working for the Respondent in the pay
period ending October 18, 1980, worked 15 hours in that
pay period and averaged 5 or more hours per week
through the end of the year. He continued working for
the Respondent thereafter. Debbi Ross was also hired in
the payroll period ending October 18, 1980; she worked
42 hours in that payroll period and averaged 22 hours
per week through the end of the year. Heather Schnei-
der, Margayla Smith, and Janet Walker similarly com-
menced their employment in the payroll period ending
September 20, 1980. Schneider averaged more than 10
hours, while Walker and Smith averaged more than 20
hours per week through the end of the year. Schneider
was still employed by the Respondent in September
1981.
From the foregoing it is clear that while the sewing
room employees might not work the same hours every
week, they work a substantial number of hours on a reg-
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ular basis in virtually each and every payroll period, and
average 5 or more hours per week. And, while some of
them only work during the school year, others continue
to work throughout the year and from one year through
the next. This record does not support a conclusion that
they were casual or oncall employees such as might war-
rant their exclusion from the collective-bargaining unit.
Even assuming that they were "oncall" employees, the
Board includes within collective-bargaining units and
deems eligible to vote those "oncall" employees who
averaged 4 or more hours of work per week. See River-
side Community Memorial Hospital, 250 NLRB 1355,
1356 (1980), and cases cited therein. Neither may the
sewing room employees be excluded on the basis that
they were students or possibly scheduled their work
around their class schedules. The record establishes that
at least some of them continued to work for the Re-
spondent when school was not in session, others worked
for the Respondent during succeeding school years, and
no evidence was offered to establish that these employ-
ees were told that they were only being hired for the
school year. See Leaders-Nameoki, Inc., 237 NLRB 1269
(1978); Medline Industries, 233 NLRB 627, 655 (1977).
Even if, as I have found, the sewing room employees
are included within the unit, the General Counsel would
exclude Sue Ann Maim as their supervisor. Fonteyn tes-
tified that he had hired Malm and considered her the
lead person in the sewing room. He testified that he
interviewed and hired the sewing room employees and
denied that Maim had the authority to hire or fire em-
ployees or to recommend or grant wage increases. Maim
testified that, as additional employees were needed,
either Fonteyn would tell her or she would suggest to
him that more were needed. She would then bring in
fellow students or others. She claimed that she had ter-
minated some employees, only notifying Fonteyn after
the fact. To grant raises, she testified, she first had to go
to Fonteyn. She did not identify anyone whom she had
discharged and the record establishes that all of the
sewing room employees except for Malm received an
identical wage. I therefore find her rather general testi-
mony insufficient to rebut Fonteyn's denials that she pos-
sessed the authority to hire, fire, or recommend wage in-
creases. 4 7
Maim was hourly paid, punched the timeclock, did not
attend supervisory meetings, and spent virtually all of
her time in production work. Accordingly, I find that as
of October 14, 1980, Sue Ann Maim was no more than a
lead person, did not exercise or possess the indicia of su-
pervisory status, and was, like the other sewing room
employees, an employee within the warehouse unit.
The truckdrivers-As of October 14, 1980, the Re-
spondent employed four local truckdrivers. Two, Dennis
47 1 also note that Maim's testimony concerning the number of hours
and lengths of time that her fellow students worked in the sewing room
is contradicted by the payroll records. Particularly, Maim testified that
Booker and Schneider only worked when she called them in and that
Walker had only worked a couple of days before she secured other em-
ployment. The payroll records, as previously discussed, establish a pat-
tern of regular and substantial employment by all three of these individ-
uals; they further establish that Walker continued in the Respondent's
employ until the beginning of February 1981. Thus, the accuracy of
Maim's recollections is placed in question.
Paskett and Herb Birdsall, were members of different
Teamsters locals, Local 792 and Local 120 respectively,
and the Respondent had collective-bargaining agree-
ments with each of these unions. The agreement with
Local 120, at least, provided for recognition of that
union as the representative of the Respondent's drivers,
driver-helpers, and helpers. It also contained a 30-day
union-security clause.4 8 Although they were covered by
one or both of the drivers' collective-bargaining agree-
ments, neither of the Respondent's two other local truck-
drivers, Russell Erickson and Mike Anderson, were
members of either of those local unions.
The Respondent had received a letter from Local 120,
dated October 23, 1980, demanding that all of the Re-
spondent's drivers become members pursuant to that
contract's union-security clause, except for the one em-
ployee who was a member of Local 792. In November,
the Respondent offered Erickson and Anderson the op-
portunity to work in the warehouse, which they accept-
ed, and their driving duties were contracted out. Howev-
er, Anderson and Erickson returned to their driving
duties within about 2 weeks.
The record establishes that Erickson and Anderson re-
ceived the wages and other benefits as provided in the
union agreements except for the union pension plans.
Their work essentially consisted of making deliveries
from the warehouse to grocery stores in the Twin Cities
area. They picked up their trucks, already loaded, at the
warehouse and made their deliveries along a fixed route,
unloading merchandise at each stop. Occasionally, if they
completed their routes prior to their 3:30 p.m. quitting
time, they would complete their day by helping out in
the warehouse. According to Erickson, this was not a
common occurrence after August 1980.
The General Counsel would exclude the drivers from
the warehouse unit on the basis of their lack of a com-
munity of interest with the warehouse employees and
their representation by another labor organization. The
Respondent would include the two drivers who were not
union members, contending that no union had sought
their inclusion within the unit as of October 14, 1980,
and that they shared a community of interest with the
other warehouse employees. The Respondent's conten-
tions must be rejected. The Respondent recognized two
local unions as the collective-bargaining representatives
of its local drivers. Michael Anderson and Russell Erick-
son were unquestionably within that separate unit and
the Union herein did not seek the inclusion of truckdriv-
ers in the warehouse unit. Accordingly, as the truckdriv-
ers were already represented by other collective-bargain-
ing agents, were not sought for inclusion in the ware-
house unit by the Union when it demanded recognition
and petitioned for representation, and as the evidence in-
dicates that the drivers had little community of interest
with the warehouse workers, I must conclude that they
are properly excluded from the warehouse unit. See
*8 That contract was executed by the St. Paul Employers Association
and the Union and was effective from September 1, 1979, until August
31, 1982. The record does not contain any contract between or on behalf
of the Respondent and Local 792.
618
GOURMET FOODS
Nuturn Corp., 235 NLRB 1139 (1978); E.H. Koester
Bakery Co., 136 NLRB 1006 (1962).
Other alleged casual employees-The General Counsel
would exclude John Mansun and Michael Sain, whose
names appear on the Respondent's October 21, 1980 list
of warehouse employees, on the basis that Mansun was a
student who had essentially terminated his employment
prior to the critical date and Sain worked only sporadi-
cally. The issue was not addressed at hearing and the Re-
spondent asserts no positions specifically in regard to
these employees.
The payroll record carries Mansun's name as a ware-
house employee at $6 per hour, the rate paid other part-
time warehouse employees, throughout 1980. However,
his first hours worked and earnings came in the payroll
period ending June 14, 1980. Between that period and
the payroll period ending September 6, he worked in
each payroll period, a total of approximately 433 hours.
Mike Pettis recalled that Mansun returned to school at
the end of the summer. Mansun apparently worked
slightly over 1 hour sometime during the October 18 pay
period and 6 more hours during the pay period which
ended November 1, 1980, and that was his last employ-
ment by the Respondent. It thus appears that Mansun
was a summer employee who worked, at most, sporadi-
cally as an oncall employee thereafter, averaging less
than 4 hours per pay period in the periods preceding and
following the Union's demand for recognition.
In Shady Oaks, 229 NLRB 54, 55 (1977), the Board
stated the following:
· .. In determining whether students have the req-
uisite community of interest with other unit employ-
ees, the Board conducts an analysis along the same
lines that it normally employs when determining
"regular part-time" status. Under this analysis, the
Board takes into consideration such things as: (1)
regularity and continuity of employment; (2) tenure
of employment; (3) similarity of work duties; and
(4) similarity of wages, benefits, and other working
conditions.
Where students' employment is shown to be spo-
radic, temporary, or seasonal in nature . . . the
Board excludes them from the regular full-time unit.
See also Crest Wine & Spirits, Ltd., 168 NLRB 754
(1967). Applying these tests, it is clear that Mansun had
no community of interest with the full-time and regular
part-time warehouse employees. He was a summer em-
ployee whose employment thereafter was both sporadic
and minimal. I shall therefore exclude him from the unit.
The payroll records show that Michael Sain began
working for the Respondent in the payroll period ending
September 6, 1980. He is listed among the warehouse
employees at an hourly rate of $4.50. There is no expla-
nation of what his duties were, when he worked, or why
he was receiving a rate different from all other ware-
house employees. He worked between 40 and 68 hours
in each pay period between September 6 and October 4,
1980, 15 hours in the pay period of October 20, 1980,
and only 6 and 4 hours respectively in the November 1
and 15, 1980 pay periods. He did not work thereafter.
While the General Counsel contends that Sain only
worked on an erratic and casual basis during the critical
period, the payroll record would seem to establish that
he was a regular part-time employee at least through the
payroll period wherein the Union made its demand. I
can find no basis, upon the limited evidence in the
record, to exclude him from the collective-bargaining
unit.
Based on the foregoing, I conclude that the following
is an appropriate unit for the purposes of collective bar-
gaining.
All full-time and regular part-time warehouse em-
ployees employed by Gourmet Foods, Inc., at its
St. Paul, Minnesota facility, including sewing room
employees and cooler employees, but excluding
truck drivers, office clerical employees, sales em-
ployees, guards and supervisors as defined in the
Act.
As of October 14, 1980, there were 37 employees in this
unit.
2. The Union's evidence of majority support
The General Counsel submitted 17 signed authoriza-
tion cards. The Respondent concedes the validity of 14
and contests only 3, those signed by John Rohde, Harold
Beckjorden, and Duane Schwerha.
The record establishes that Rohde sustained a work-re-
lated injury in December 1979, after which a special
warehouse job, order and item checking, was created for
him as part of a rehabilitation program managed (and
partly compensated) by the Respondent's workmen's
compensation insurance carrier. Rohde occupied that po-
sition from April until July 3, 1980, when, pursuant to
medical documentation establishing that he was physical-
ly unable to continue in the warehouse, he was given an
office job. Rohde continued to work in the office until
November 10, 1980, when the job he had been perform-
ing was abolished and he was terminated.49
The Respondent would exclude Rohde from the unit
and would discount his card on the basis that he was an
office clerical employee possessing no community of in-
terest with the warehouse employees. The issue is wheth-
er he had a reasonable expectancy of returning to a
warehouse job from his clerical position. See American
Motors Corp., 206 NLRB 287 (1973); Components, Inc.,
197 NLRB 163 (1972). Based on this record, including
Rohde's testimony to the effect that his own doctor had
certified that he was "disabled and unable to do item
checking because of the stooping required," and the ab-
sence of any evidence that his disability was a temporary
condition, I must conclude that there is insufficient evi-
dence to establish that John Rodhe had a reasonable ex-
pectancy that he would ever return as an employee to
49 It appears that Rohde was taken off compensation sometime in
August There continues to be litigation concerning his compensation
claims. There is, however, no support in this record for the General
Counsel's contention in brief that Rohde's "termination and his right to
return to a form of warehouse work is still being contested through
workmen's compensation proceedings."
619
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's warehouse. Accordingly, he was not a
unit employee and his authorization card may not be
counted in determination of the Union's majority status.
The General Counsel introduced an authorization card
signed by Harold Beckjorden. His card is dated October
9, 1980, but, unlike the other cards introduced into evi-
dence, is not stamped as received by the Board on Octo-
ber 15, 1980. Moreover, his signature was written in a
different pen from the remainder of the card. Beckjorden
testified that he went to the union hall on October 10
with the other employees intending to join the Union,
sign an authorization card, and secure job protection. He
filled out the body of the card, including that portion
showing his name, but apparently forgot to sign it. He
signed it sometime later in the week. Union business
agent Darby Peterson testified that Beckjorden's card
was misfiled and for that reason had not been submitted
along with the other 16 filed as the showing of interest
in support for the October 15 representation petition.
The Respondent's contention that Beckjorden's card
should not be counted because there was no evidence es-
tablishing that it was signed prior to the date on which
recognition was demanded is rejected. The evidence re-
veals that Beckjorden went to the Union's office on Oc-
tober 10 with his fellow employees and filled out his
card, including his name, with the intention of authoriz-
ing the Union to be his representative.5 0 I deem it to be
irrelevant that Beckjorden placed his name on the card
with printed rather cursive lettering or that he placed his
name in the descriptive portion of the card and not on
the signature line. His intent was clear and his card is
valid. Skyline Transport, 228 NLRB 352, 356 fn. II
(1977).
The General Counsel introduced an authorization card
purportedly signed by Duane Schwerha. Schwerha did
not testify5 but other employees testified that he had ac-
companied them to the union hall on October 10 when
the cards were signed. His card bears the date of Octo-
ber 10. No employees testified to seeing Schwerha sign
his card and none authenticated his signature. No em-
ployee signed any other employees' card. Peterson testi-
fied that he distributed the cards at the meeting and col-
lected the signed cards at its conclusion. These facts are
sufficient to establish the validity of Schwerha's card. It
was convincingly established that Schwerha was at the
meeting where the cards were signed; a card was turned
in bearing his name and signature and there was no evi-
dence that anyone else signed that card for him. The
Board accepts as authentic authorization cards which are
returned by the signatory to the solicitor without requir-
ing evidence that the solicitor witnessed the actual act of
signing. Stride Rite Corp., 228 NLRB 224, 234-235
(1977), and cases cited therein.
Accordingly, I conclude that the Union possessed
valid authorization cards from 16 employees in the ware-
house unit as of the time it presented its demand for rec-
ognition.
50 Several employees recorded the date as October 9 rather than Octo-
ber 10, a simple mistake.
51' His absence was unexplained.
As I have found that there were 37 employees in the
appropriate collective-bargaining unit, the Union was
not, at any relevant time, a majority representative and
the General Counsel's request for a bargaining order
remedy must fall. No resolution is thus required of the
merits of the General Counsel's argument that the Re-
spondent's misconduct rendered slight the possibility of
erasing the effect of its unfair labor practices and de-
creased the opportunities for a free and fair election."
FURTHER CONCLUSIONS OF LAW
1. By interrogating prospective employees as to their
union sympathies and activities, by falsifying payroll
records so as to prevent its employees from voting for a
collective-bargaining representative, by threatening to
take any measures necessary to prevent its employees
from becoming represented by a union, by threatening
employees with loss of profit sharing, stricter work con-
ditions, higher quotas, fines for misperformance of their
duties and with shorter working hours, by threatening to
discharge employees who did not agree to abide by or
failed to comply with increased production quotas, by
threatening employees with plant closure and by threat-
ening unfair labor practice strikers with replacement if
they failed to return to work, the Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
2. The strike which commenced about December 29,
1980, was caused or prolonged by the Respondent's
unfair labor practices.
3. By increasing production quotas and instituting and
imposing monetary fines for misperformance of job
duties, by issuing written warnings for failure to meet the
unlawfully increased production quotas, by issuing writ-
ten warnings to and discharging Richard Krenner, by
discontinuing its sick pay/floating holiday benefit previ-
ously instituted and deducting previously paid benefits
from its employees' paychecks, by discontinuing the job
rotation system previously followed on the third shift
and by failing to reinstate unfair labor practice strikers to
their former positions of employment, Respondent has
discriminated against employees on the basis of their
union activities and has thus violated Section 8(a)(3) and
(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The following is a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part-time warehouse em-
ployees employed by Gourmet Foods, Inc., at its
St. Paul, Minnesota facility, including sewing room
employees and cooler employees, but excluding
truck drivers, office clerical employees, sales em-
ployees, guards and supervisors as defined in the
Act.
52 Having rejected the General Counsel's request for a bargaining
order remedy, it follows that the complaint allegation asserting that the
Respondent violated Sec. 8(a)(5) of the Act by unilaterally changing at-
tendance policies about May 29, 1981, must similarly be dismissed.
620
GOURMET FOODS
6. The Respondent did not engage in any unfair labor
practices not specifically found herein.
THE REMEDY
It having been found that the Respondent has engaged
in unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, my recommended order will require
that it cease and desist therefrom and take certain affirm-
ative action necessary to effectuate the policies of the
Act. Having found that the Respondent discriminatorily
increased production quotas, issued written warnings,
and discontinued previously granted benefits and job
practices, I shall recommend that the Respondent be re-
quired to reestablish the status quo ante in all these re-
gards. Having found that the Respondent discriminatori-
ly discharged Richard Krenner, imposed fines, prevented
employees from earning incentive by eliminating the job
rotation system and deducted previously granted pay
from employees' wages, the Respondent shall be required
to offer Richard Krenner immediate and full reinstate-
ment to his former or a substantially equivalent position
without prejudice to his seniority or other rights and
privileges and shall make him and all of the other em-
ployees whole for any loss of pay or other earnings that
they may have suffered as a result of the discrimination
against them. Any backpay found to be due shall be
computed in accordance with the formula set forth in F.
W. Woolworth Co., 90 NLRB 289 (1950); and Florida
Steel Corp., 231 NLRB 651 (1977).53
The Respondent's unfair labor practices were wide-
spread, touched all of the employees, and spanned virtu-
ally the entire period from the commencement of the
union activity until after the conclusion of the unfair
labor practice strike. They demonstrate a general disre-
gard for the employees' fundamental statutory rights and
therefore warrant the imposition of a broad injunctive
order precluding the Respondent, its officers, agents, suc-
cessors, and assigns from engaging in unfair labor prac-
tices "in any other manner." See Mid-Continent Refriger-
ated Service Co., 228 NLRB 917 (1977); Federal Alarm,
230 NLRB 518 (1977).
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended 54
ORDER
The Respondent, Gourmet Foods, Inc., St. Paul, Min-
nesota, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening to take any measures necessary to pre-
vent its employees from becoming represented by a
union.
(b) Falsifying payroll records so as to prevent employ-
ees from voting for a collective-bargaining representa-
tive.
ss See generally Isis Plumbing Co.. 138 NLRB 716 (1962)
s4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions. and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(c) Threatening employees with loss of their profit
sharing, stricter working conditions, higher production
quotas, the imposition of fines for misperformance of job
duties and with shorter working hours, threatening to
discharge employees who do not agree to comply with
increased production quotas, threatening employees with
plant closure, all in order to discourage employees from
engaging in union activities, and threatening unfair labor
practice strikers with replacement if they fail to return to
work.
(d) Interrogating prospective employees as to their
union sympathies and activities.
(e) Discriminatorily increasing production quotas, insti-
tuting and imposing monetary fines for misperformance
of job duties, issuing written warnings for failure to meet
unlawfully increased production quotas or because em-
ployees had engaged in union activities, discontinuing es-
tablished job practices and benefits and deducting previ-
ously paid earnings from employees' wages, discrimina-
torily discharging employees and failing to properly rein-
state unfair labor practice strikers to their former posi-
tions.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Offer Richard Krenner immediate and full rein-
statement to his former job or, if that is not possible, to a
substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him, in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Make employees whole for any loss of earnings
they may have suffered as a result of the elimination of
the floating holiday benefits, the imposition of fines for
mispicks, and the loss of incentive earnings resulting
from the elimination of job rotation on the third shift, in
the manner set forth in the section of this Decision enti-
tled "The Remedy."
(c) Make unfair labor practice strikers Wayne Kolberg,
James Ricker, and Steven Schoencker whole for any loss
of earnings they may have suffered as a result of the Re-
spondent's failure to reinstate them at the conclusion of
the strike to their former positions, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(d) Reestablish the job rotation system, the 1100 case
quota for order fillers on the third shift, and the two
floating holidays previously granted warehouse employ-
ees, and revoke and cease enforcing the policy of fining
employees for mispicks.
(e) Revoke and remove the warning given to Lloyd
Schmotter and Richard Krenner about November 10 or
12, 1980, from their personnel files.
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(f) Post at its place of business in St. Paul, Minnesota,
copies of the attached notice marked "Appendix."5 5
Copies of the notice, on forms provided by the Regional
Director for Region 18, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
s6 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to determine the amount of backpay due under
the terms of this Order.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
622