Haddon House Food Products, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1979

242 N.L.R.B. 1057 (N.L.R.B. 1979)

HADDON HOUSE FOOD PRODUCTS, INC.
Haddon House Food Products, Inc. and Flavor De-
light, Inc. and Teamsters Local 115, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America. Case
4-CA-7700
June 12, 1979
DECISION AND ORDER
On November 1, 1976, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, Respondent, the Charging
Party, and counsel for the General Counsel filed ex-
ceptions and supporting briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, ' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found, and we
agree, that the Company responded to its employees'
organizational activities by engaging in numerous
and egregious violations of Section 8(a)( ) and
8(a)(3). The Administrative Law Judge refused to
find, however, that Respondent acted unlawfully
when it rejected the offers to return to work made by
employees on December 4, 1975. We disagree with
the Administrative Law Judge with respect to this al-
legation of the complaint, and we find that Respon-
dent violated Section 8(a)(3) and (1) of the Act by
refusing the December 4 offers to return to work.
As found by the Administrative Law Judge, the
record shows that Respondent sent literally a barrage
of letters and telegrams to individual discriminatees
and to the employees striking in support of the dis-
criminatees. The record also supports the Administra-
tive Law Judge's characterization of these letters as
calculated to confuse employees and to create dissen-
sion among them. For example, individuals who were
informed at one time that they were or would be sus-
pended were notified later that they were "sus-
pended" only until such time as the chose to return to
work. Finally, on November 24 and 28, 1975, by let-
ter and telegram, Respondent notified discriminatees
I Respondent has excepted to certain credibility findings made b) the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
Respondent moved to disqualify the Administrative Law Judge for bias.
The Administrative Law Judge denied the motion, and, thereafter, in its
exceptions and brief in support thereof Respondent reiterated its contention
with respect to such alleged bias. The Board has carefully considered the
record as a whole and finds no basis for finding bias on the part of the
Administrative Law Judge.
and strikers that their "suspensions" were rescinded
and directed them to report to work by November 28
or, in the case of several employees classified as pack-
ers. by December 1.2 On December I union business
agent Yeoman, seeking to clarify the situation and to
determine Respondent's intentions, contacted Ber-
man, the Company's general manager. The credited
testimony establishes that Yeoman was specifically
told that it was the Company's position that "every-
one" would be taken back.
After meeting with Yeoman on the evening of De-
cember 2, the strikers voted to return to work. Yeo-
man notified Berman on December 3 that the picket
line was down, and people would return to work the
next day. However, when the discriminatees and
strikers sought entry to the plant on the morning of
December 4, they were met by security guards with
dogs who barred their access. When Yeoman arrived
and demanded an explanation from Berman, he was
told that the Company's lawyers had advised against
reinstating anyone who had not returned on the date
specified in the Company's letter.
In concluding that Respondent's conduct on De-
cember 4 did not constitute a violation of Section
8(a)(3), the Administrative Law Judge found that the
14 unfair labor practice strikers had "conditioned
their return upon simultaneous reinstatement of their
unlawfully discharged fellow workers." In support of
this conclusion, the Administrative Law Judge ex-
cerpted parts of Yeoman's testimony and that of sev-
eral strikers which, in the Administrative Law Judge's
view, justified a finding that it was the intention of
strikers to return all together or not at all, and hence
that the offer to return to work was conditional.
We disagree with the Administrative Law Judge's
analysis of the record and with the conclusions he has
drawn therefrom. It is critical in this regard to recall
that Berman, speaking for the Company, took the po-
sition that the Company wanted "everyone" back.
One can hardly doubt that this was, in fact, the Com-
pany's position inasmuch as the Company conceded
sending out letters to each discriminatee, as well as to
those striking in their support, inviting all of them to
return to work. Given these circumstances, it is not
surprising that Yeoman told employees on December
2 "the Company's intentions were that everybody
comes back to work .... " What is surprising, how-
ever, is the Administrative Law Judge's conclusion
that "this statement alone shows the intention of all
[striking employees] was that the dischargees were to
go back to work also" and hence that the offer to
return to work was in some sense "conditional."
I Although the Company maintained that it sent letters to all employees
on the same date, November 24, several stnking employees did not receive
their letters until after November 28, and other strikers apparently never
received their letters.
242 NLRB No. 180
1057
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We note also the absence of any evidence that a
union spokesman or striker made any demand what-
soever on Respondent on December 4 to take back
the discriminatees if it wanted the strikers to return to
work. In fact, neither Yeoman nor any striker had an
opportunity on December 4 to "condition" the appli-
cation to return to work.3 Thus, the Company re-
jected out-of-hand the offer to return, explaining only
that there was no work for any of the 22 individuals
involved because their offer to return was "un-
timely."4 At no time, however, did Respondent allude
to any demand by the unfair labor practice strikers
that the eight discriminatees be reinstated as a "con-
dition" of their offer to return.5 Accordingly, we con-
clude that the offer to return was unconditional, and
that Respondent's rejection of the offer violated Sec-
tion 8(a)(3) and (1) of the Act as alleged in the com-
plaint.6
As the only effective remedy for Respondent's un-
lawful conduct, conduct which he characterized as
"outrageous and pervasive," the Administrative Law
Judge recommended that Respondent be ordered to
bargain with the Union upon request. In so doing, the
Administrative Law Judge found that the Union
could not demonstrate majority status prior to its de-
mand for recognition and Respondent's refusal to rec-
ognize it, 7 but he concluded nonetheless that a bar-
Clearly, the appearance of employees en masse on December 4 could not
be understood to constitute an "everyone or no one" condition on the offer
to return to work. Indeed, the Company. by its letters on November 24, had
invited just such an en masse return.
4 As pointed out by the Administrative Law Judge, any contention that in
the circumstances of this case Respondent was privileged to deny reinstate-
ment to these employees because they failed to report to work on the date
specified by the Company in its letters is clearly without merit.
'The Administrative Law Judge concluded, correctly in our view and in
light of the record evidence, that Respondent's suggestion that strikers condi-
tioned their return to work on the reinstatement of certain supervisory per-
sonnel is totally unfounded.
6 It is instructive to compare the events of' this case with those in issue in
Okla-Inn, d/b/a Holiday Inn of Henrvetta, 198 NLRB 410 (1972). There the
Board adopted an administrative law judge's conclusion that an employer
violated Sec. 8(aX3) when it ignored an offer to return to work made by
striking employees. Although the employer argued that the offer was am-
biguous and conditioned upon reinstatement of an individual who did not
enjoy status as a protected striker, the Administrative Law Judge concluded
that the burden was on the employer to request clarification if it truly
doubted the unconditional nature of the offer. Similarly, in the instant case,
if Respondent suspected that the offer to return was conditional it could
easily have requested clarification from the Union or from the strikers when
they presented themselves at the plant on the morning of December 4. Inas-
much as it failed to do so, it cannot now be heard to complain if any uncer-
tainty is resolved against its interest.
The parties stipulated that an appropriate unit was composed of
truckdrivers, warehousemen, checkers, picktrs, and packers employed at Re-
spondent's Medford, New Jersey, facility, e.cluding all office clerical person-
nel, salesmen, guards, and supervisors, The Administrative Law Judge con-
cluded that 27 employees, less than a majority of those included in the unit,
had evidenced their allegiance to the Union by signing valid authorization
cards. The Charging Part and counsel for the (General Counsel have ex-
cepted to the Administrative Law Judge's approximation of the number of'
individuals included in the unit and to his findings with respect to the place-
ment of certain individuals. We agree that the Administrative Iaw Judge
inadertently counted three employees-liur;but, Evans. and Andrews
twice in arriving at the number of employees in the unit. ence. we agree
gaining order should issue inasmuch as anything
short of such a remedy "assures the Respondent of
continued enjoyment of the fruits of its extreme un-
fair labor practices.'"
For the reasons expressed in the majority and con-
curring opinions in United Dairn Farmers Cooperative
Association, 242 NLRB 1026 (1979), we decline to
adopt the Administrative Law Judge's recommenda-
tion of a bargaining order remedy. However, inas-
much as Respondent's unfair labor practices are such
that they are likely to have a continuing coercive ef-
fect on the free exercise by employees of their Section
7 rights long after the violations have occurred, we
shall require additional remedial action designed to
dissipate as much as possible the lingering atmo-
sphere of fear created by Respondent's unlawful con-
duct and to insure that if the question of union repre-
sentation is placed before employees in the future
they will be able to voice a free choice. To achieve
these ends we shall require Respondent to take the
fbllowing affirmative steps in addition to the nonbar-
gaining Order remedies recommended by the Admin-
istrative Law Judge: (1) in addition to posting copies
of the attached notice marked "Appendix" at its
Medford, New Jersey, facility, include it in the appro-
priate company publications and mail it to each indi-
vidual employee at his or her home address, including
but not limited to all employees on the payroll at the
time the unfair labor practices were committed; all
such notices, both mailed and posted, to be signed
personally by Respondent's owner and manager,
Harold Anderson, who shall also read the notice to
current employees assembled for that purpose. Re-
spondent shall afford the Board a reasonable oppor-
tunity to provide for the attendance of a Board agent
at any assembly of employees called for the purpose
of reading such notice; (2) publish in local newspa-
pers of general circulation a copy of the above notice
two times per week for a period of 4 weeks; (3) upon
request, grant the Union and its representatives rea-
with the Charging Party and with the General Counsel that the maximum
number of employees in the unit at the critical time did not exceed 56. We
find it unnecessary to pass specifically on the Administrative Law Judge's
placement of several other individuals. We conclude that the record supports
the Administrative Law Judge's finding that the Union failed to achieve a
clear majority. Even were we to agree that the Administrative Law Judge
improperly placed I or 2 individuals in the unit of 56 employees, the Union's
claim of majority status on the basis of 27 cards would fail.
s In recommending a bargaining order, the Administrative I.aw Judge re-
lied, in part, on our decision in Steel-Fahb, Inc, 212 NI.RB 363 (19741. The
Administrative Law Judge's reliance on Steel-Fab is misplaced. That case
and its successor, Trading Port, Inc., 219 NLRB 298 11975). deal with the
question of when a bargaining obligation, based on a prior showing of ma-
jorit status, commences.
' Similar remedial measures were ordered in The l rasi Corporation, 184
NLRB 557, 558 (1970), and J P Stevens and (Co., 157 NI.RB 869, 878
(1966). enfd. as modified 380 F.2d 292 (2d (ir. 1967). cert. denied 389 .S.
1005 See also H. W Elon Bottling Cormpamn, 155 NLRB 714 (19651. enfd as
modified 379 F.2d 223 (6th Cir. 1967). cert denied 390 U.S. 904. See also
U'nicud Dairs Farmers (ooperati cil Ivtl iain. vura.
1058
HADDON HOUSE FOOD PRODUCTS,. INC.
sonable access to its bulletin boards and all places
where notices to employees are customarily posted:
(4) upon request, grant the Union reasonable access
to its plant in nonwork areas during employees' non-
work time;' (5) supply the Union, upon request
made within I year of the date of this Decision and
Order, the names and addresses of its current employ-
ees: (6) give notice of, and equal time and facilities
for the Union to respond to, any address made by
Respondent to its employees on the question of union
representation; and (7) afford the Union the right to
deliver a 30-minute speech to employees on working
time prior to any Board election which may be sched-
uled in which the Union is a participant." Provisions
(3), (4), (6), and (7), above, shall apply for a period of
2 years from the date of the posting of the notice
provided by the Order herein or until the Regional
Director has issued an appropriate certification fol-
lowing a fair and free election, whichever comes first.
In our view, the above remedies insure that each
employee will be made individually aware of his
statutory rights and will personally be assured by Re-
spondent's highest ranking representative that those
rights will be respected. In addition. the Union will be
afforded a substantial period of time to present its
views to employees off company premises in an atmo-
sphere relatively free of restraint and coercion, and by
requiring that the Union be given access to Respon-
dent's plant in nonwork areas during employees' non-
work time, employees will be further reassured that
Respondent will respect their Section 7 rights. Fi-
nally, by requiring Respondent to furnish the names
and addresses of all current employees, the Union
will be afforded an opportunity to present its view not
only to employees on the payroll at the time the un-
fair labor practices were committed but to reach, in
addition, those employees who have not yet had a
chance to formulate their desires with regard to repre-
sentation but who are nonetheless affected by the lin-
gering effects of Respondent's violations.
In all other respects, we adopt the Administrative
Law Judge's recommended Order as our own except
10 Member Murphy does not agree with her colleagues that equal access is
an appropriate remedy for the Board to provide here Accordingly, she
would not require Respondent to afford the Union with equal access to the
employees on company time. By doing so her colleagues are forcing Respon-
dent not only to support the (harging Part''s campaign but lso are raising
senous questions as to the alidity of an) election hb limiting equal access
only to the (Charging Party.
" It is to be stressed that the access prossions herein are to renied, the
extraordinary violations committed by Respondent against its employees be-
cause they supported the Charging Party. ContrarD to Member Murphy's
assertion, the Board is not thereby "forcing Respondent to support the
Charging Party's campaign" hut is instead permitting the employees It de-
termine whether to support or not to support that inion "in an a;tn,-
sphere free of further restraint and coercion" We find it unnecessar tt
consider at this time Member Murph,'s hypothetical prognosis as to what
might happen if another union inter.enes in an clection pricceding iniolving
Respondent and (Charging Parts
that we shall incorporate the modifications specified
above and modify his remedy so that backpay is to be
computed as prescribed in F. W. Woolworth Com-
pain. 90 NLRB 289 (1950), and interest as set forth in
Florida Steel Corporation, 231 NLRB 651 (1977).12
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Had-
don House Food Products, Inc., and Flavor Delight,
Inc., Medford, New Jersey. its officers, agents. succes-
sors, and assigns. shall:
1. Cease and desist from:
(a) Discharging or in any other manner discrimi-
nating against its employees because of their union
activities.
(b) Threatening to discharge employees in order to
prevent them from engaging in union activities, tell-
ing employees that their fellow workers are being dis-
charged as punishment for union activities, promising
raises to employees to induce them to refrain from
union activities, telling striking employees that they
are being suspended for engaging in protected con-
certed activity, or refusing to reinstate unfair labor
practice strikers upon their unconditional offer to re-
turn to work.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist
Teamsters Local 115, affiliated with International
Brotherhood of Teamsters. Chauffeurs, Warehouse-
men and Helpers of America, or any other labor or-
ganization, to bargain collectively through represen-
tatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection. or to re-
frain from any and all such activities.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Offer Mark Spang, Charles Seppy, Kerrie Hurl-
but, Lois Andrews. Belinda Evans, Daniel McGetti-
gan, Robert Reamer. Gloria Hittner. and 14 other
employees who were unfair labor practice strikers
and who made unconditional application to return to
work immediate and full reinstatement to their for-
mer positions or, if such positions no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges.
(b) Make all of the foregoing employees whole tor
any loss of pas or benefits they may have suffered by
reason of Respondent's discrimination against them,
with interest.
12 See, gencrally. 11o Plumhint & I/iarin, (, 138 N RB 716 (9621
1059
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Mail a copy of the attached notice marked
"Appendix"' 3 to each and every employee at his or
her home address, post copies thereof at its plant in
Medford, New Jersey, and include a copy in appro-
priate company publications. Copies of said notice,
on forms provided by the Regional Director for Re-
gion 4, shall be personally signed by Respondent's
manager and owner, Harold Anderson. Copies of said
notice shall be mailed by Respondent to each and
every employee working at its plant on the date on
which such notice is mailed, as well as to each and
every employee who worked in its plant during the
period of Respondent's unfair labor practices. Addi-
tional copies shall be posted by Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other mate-
rial.
(e) Publish in local newspapers of general circula-
tion copies of the attached notice marked "Appen-
dix." Such notice shall be published twice weekly for
a period of 4 weeks.
(f) Convene during working time all employees at
its Medford, New Jersey, plant, by shifts, depart-
ments, or otherwise, and have Respondent's manager
and owner, Harold Anderson, read to the assembled
employees the contents of the attached notice marked
"Appendix." The Board shall be afforded a reason-
able opportunity to provide for the attendance of a
Board agent at any assembly of employees called for
the purpose of reading such notice.
(g) Upon request of the Union made within I year
of the issuance of the Order herein, make available to
the Union without delay a list of names and addresses
of all employees employed at the time of the request.
(h) Immediately upon request of the Union, for a
period of 2 years from the date on which the afore-
said notice is posted, grant the Union and its repre-
sentatives reasonable access to the plant bulletin
boards and all places where notices to employees are
customarily posted.
13 In the event that this Order is enforced by a Judgment of a United
States court of appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
(i) Immediately upon request of the Union, for a
period of 2 years from the date on which the afore-
said notice is posted, permit a reasonable number of
union representatives access for reasonable periods of
time to nonwork areas, including not limited to can-
teens, cafeterias, rest areas, and parking lots, within
its Medford, New Jersey, plant so that the Union may
present its views on unionization to the employees,
orally and in writing, in such areas during changes of
shift, breaks, mealtimes, or other nonwork periods.
(j) In the event that during a period of 2 years fol-
lowing the date on which the aforesaid notice is
posted, any supervisor or agent of Respondent con-
venes any group of employees at Respondent's Med-
ford, New Jersey, plant and addresses them on the
question of union representation, give the Union rea-
sonable notice thereof and afford two union represen-
tatives a reasonable opportunity to be present at such
speech and, upon request, give one of them equal
time and facilities to address the employees on the
question of union representation.
(k) In any election which the Board may schedule
at Respondent's Medford, New Jersey, plant within a
period of 2 years following the date on which the
aforesaid notice is posted and in which the Union is a
participant, permit, upon request by the Union, at
least two union representatives reasonable access to
the plant and appropriate facilities to deliver a 30-
minute speech to employees on working time, the
date thereof to be not more than 10 working days but
not less than 48 hours prior to any such election."
(I) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
CHAIRMAN FANNING and MEMBER JENKINS, concur-
ring in part and dissenting in part:
We agree with the majority that this Respondent,
in an attempt to thwart its employees' exercise of Sec-
tion 7 rights, engaged in numerous and flagrant viola-
tions of Section 8(a)(l) and (3) of the Act. We are
compelled to dissent, however, from our colleagues'
refusal to grant the bargaining Order remedy which
the Administrative Law Judge recommended and the
facts of this case so plainly require.'5
At the outset we note that under Section 10(c) of
the Act this Board is empowered and directed to take
such remedial actions as will effectuate the policies of
the Act. The Supreme Court has clearly recognized
that the Board, consistent with the statutory scheme,
14 Subpars. (i), ), (k), and () herein shall be applicable only so long as the
Regional Director has not issued an appropriate certification following a fair
and free election.
It Although we hav'* not prevailed upon our colleagues to grant the recom-
mended bargaining order remedy which we believe the facts of this case
warrant, we will grant all the extraordinary remedies, including equal access
to the plant, as described and set forth at the conclusion of the majority's
opinion.
1060
HADDON HOUSE FOOD PRODUC(IS IN(C.
has broad discretion to devise remedies that will undo
the effects of violations of the Act. 6 Furthermore, it is
well settled that "the relationship of remedy to policy
is peculiarly a matter for administrative compe-
tence," 7 limited only by the interdiction against puni-
tive remedies' 8 and remedial measures that constitute
a "patent attempt to achieve ends other than those
which can fairly be said to effectuate the policies of
the Act.""9
In the instant case the Administrative Law Judge
found, and we agree, that the Company's response to
its employees' incipient organizational activities was a
well orchestrated antiunion campaign that featured
repeated and egregious violations of Section 8(a)(3)
and independent violations of Section 8(a)(1) of the
Act. Based on his careful analysis of all the facts and
circumstances of the case, the Administrative Law
Judge concluded-and nowhere do our colleagues
dispute his conclusions-that Respondent's unfair la-
bor practices were undertaken "to kill off the union
campaign with finality" and that Respondent's con-
duct "precludes any rational expectation that a fair
election" is possible in the foreseeable future. Mindful
of the Board's obligation "to undo the effects of the
misconduct to the extent possible" and in light of the
teachings of the Supreme Court in .N.L. RB. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969), the Adminis-
trative Law Judge recommended a bargaining order
even in the absence of a demonstrated card majority.
To do less, in his words, "assures the Respondent of
continued enjoyment of the fruits of its extreme un-
fair labor practices." We agree.
At this point it may be instructive to review briefly
this Respondent's record of unfair labor practices.
Such unlawful conduct included the termination of
eight employees because they were involved in, or
were suspected of being involved in, protected union
activity; advising an employee that he did not have to
fear layoff because the Company was aware that he
had refrained from engaging in union activity but
that other employees who exercised their Section 7
rights by engaging in protected activity would be dis-
charged; threatening an employee with discharge if
he persisted in consorting with employees known to
be union adherents; promising pay raises to employ-
ees during a meeting called to discuss, among other
things, the discharges of union adherents: sending a
series of letters to employees striking in sympathy
with discriminatees and in protest over Respondent's
unlawful conduct which threatened the employees
16 NL.R.B v. Seven-Up Brotling Comnparn, of Miml, In, 344 U.S. 344.
346 (1953); Fibreboard Corp v .L RB.,. 379 S 203, 216 1964).
"Phelps Dodge Corporation v N.L R B, 313 U S 177. 194 (19411
l See, e.g., Republic Steel Corporatlidl X 1..R B. 311 5S 7 (1940)
19 Virginia Electric and Poer (Cumpanml V 1. R B. 319 UIS 533, 540
(1943).
with suspension or suspended them because of their
strike activity: and, finally, as discussed in detail in
the majority opinion, supra, unlawfully rejecting the
unconditional offer of striking employees to return to
work.
Although our colleagues apparently would not
quarrel with the conclusion that Respondent's unlaw-
ful conduct falls within the definition of "outrageous
and pervasive" unfair labor practices20 suggested by
the Gissel decision as the touchstone for a bargaining
order remedy "without need of inquiry into majority
status on the basis of cards or otherwise," 2' they de-
cline-Members Murphy and Truesdale for reasons
of policy and Member Penello because of his reading
of the statute-to grant the bargaining order remedy
recommended by the Administrative Law Judge. We
have recently and at some length discussed in United
Dair- Farmers Cooperative Association, 242 NLRB
1026 (1979), the question whether and when a bar-
gaining order should issue even in the absence of a
proven majority for the union. Without repeating all
the arguments advanced there, we note that the criti-
cal point asserted by our colleagues in the majority
and concurring opinions in that case was that the
principle of majority rule would be violated if a bar-
gaining order issued in the absence of evidence that
the union enjoys majority status. We, on the other
hand, pointed out that: (I) the Board departs from
that principle in various situations, including, for ex-
ample. those cases in which it rejects the results of an
election tainted by employer unfair labor practices
and issues a bargaining order based on a prior card
majority: (2) the Board's obligation to provide a full
and effective remedy for unlawful conduct mandates
a balancing of the Board's concern for proven major-
ity status against the particular facts of the case and
the Board's remedial objectives: and (3) in instances
where, as was true in United Dairy Farmers and is
true here, an employer has engaged in "outrageous
and pervasive" unfair labor practices, denial of a bar-
gaining order "would permit the coercive effects of
Respondent's misconduct to go virtually unremedied
and thereby defeat the statutory policy of giving em-
ployees a free choice in selecting a bargaining repre-
sentative."2 2 In our view the facts of the instant case
demonstrate all too graphically not only the validity
of the last point but also why the reluctance of our
colleagues to issue a remedial bargaining order in
these cases serves only to encourage the determined
lawbreaker and to confirm his success in frustrating
the exercise of employees' protected rights.
:o Gissel, supra at 613 614.
2 Indeed, only with some difficult) could one imagine a more extreme or
serious campaign of unlawful conduct short ofphssical siolence--than the
one undertaken h this Respondent in repl) to its emloyees' nitiation of
organizational acti it.
22 nited Dair Farrners (,operative A.4 vsoiaion, supra. 1037
1061
D1lCISIONS OF NATIONAL LABOR RELATIONS BOARD
In the first place, we note that an inference should
be drawn that the seriousness of this Respondent's
unlawful practices has been magnified by the fact
that we are dealing here with a relatively small em-
ployee complement. Thus, the Administrative Law
Judge found that the appropriate unit stipulated by
the parties contained approximately 56 employees at
the time of the Union's demand for recognition and
Respondent's refusal. Of this number, no less than 22
employees were directly and almost immediately the
victims of Respondent's decision to trample on the
Section 7 rights of its employees. Thus, in addition to
8 employees who were terminated outright, 14 other
employees who demonstrated their support for their
fellows by striking were promptly threatened with
suspension or were actually suspended and subse-
quently saw their unconditional offers to return to
work unlawfully rejected.
In assessing the seriousness of Respondent's unlaw-
ful conduct and in seeking to gauge its likely impact
on employees, one must also consider the rapidity
with which the Company struck after the first stirring
of union activity on its premises, coupled with the
fact that the Company's most serious violations of the
Act were consummated in such a brief timespan.23
Thus, within I day of employee activity on behalf of
the Union in the parking lot adjacent to the plant, the
Company discharged or laid off seven employees. In-
cluded among these seven, each of whom had signed
an authorization card in favor of the Union, were
warehousemen Spang and McGettigan, both of
whom were prominent in soliciting employee support
for the Union.2 4 Thereafter, on November 24, Re-
spondent went so far in its effort to underline its in-
transigent opposition to the Union as to discharge
Gloria Hittner, a clerical employee whose only of-
fense was that she was observed by management in
conversation with striking employees. If any employ-
ees doubted the depth and intensity of Respondent's
animus to the Union and the danger to those in the
excercise of employee Section 7 rights, that doubt
could hardly have survived the Hittner discharge.
In addition to violating Section 8(a)(3) by these dis-
charges and by unlawfully rejecting its striking em-
ployees' offers to return to work as discussed, supra,
Respondent engaged in the numerous independent
acts of interference, restraint, and coercion found by
21 See L'ernon Devices, Inc.. 215 NL RB 425 (1974).
24 The Board and the courts have long recognized that no employer con-
duct is more inimical to the purposes of the Act than is the discharge of
emploees because of their union affiliation or activities. Such conduct "goes
to the very heart of the Act." I..R B v. Eniwisrlte tmnu/curing (o . 120
F.2d 532, 536 (4th Cir. 1941), and its effect is particularly pronounced and
lingering when, as is true of the instant case, the discriminatees include those
who are well known as union activists. See. in this regard, Armcor Indurrice,
Inc., 227 NLRB 1543 (1977); Superior Miucro Film Svrtems, Inc., et a,. 201
NLRB 555 (1973)1, enf'd. 485 F.2d 681 (3d ('ir. 1973).
the Administrative Law Judge to have violated Sec-
tion 8(a)(l) of the Act. Based on these findings, it is
safe to say that not a single employee in the unit
could have been unaware of or untouched by Re-
spondent's unlawful conduct.
In view of the foregoing and in light of the record
as a whole, we agree with the Administrative Law
Judge that Respondent's extreme unfair labor prac-
tices are of a nature to preclude for all practical pur-
poses the possibility of dissipating or eliminating their
coercive effects by the application of our traditional
remedies. This is not to say that we are unmindful or
unconcerned about the possibility of imposing on em-
ployees a bargaining representative that has not dem-
onstrated in some appropriate way its majority status.
However, in our view when, as here, an employer's
flagrant violations have so polluted the environment
that the wishes of a majority cannot be determined,
we prefer to run the risk of a minority union than to
run the opposite and more probable risk that a major-
ity union will be shut out be reason of an employer's
extreme misconduct.25 Moreover, in the instant case
the first possibility is greatly lessened by the fact that
the Union had made significant progress toward or-
ganizing a majority of the employees in the unit prior
to the Company's unlawful conduct. Thus, as found
by the Administrative Law Judge, the Union held
valid authorization cards from 27 employees in a unit
that contained approximately 56 individuals. Al-
though we cannot say with absolute certainty that
absent the Company's unfair labor practices the
Union would have achieved clear majority status, it
cannot be said that the Company's gross misconduct
made it impossible to resolve fairly the issue one way
or the other. In these circumstances, we see no reason
to withhold a bargaining order. As we have pointed
out previously herein, to do so serves only to reward
this Respondent for its serious and extensive flouting
of the Act, to encourage others to engage in similar
pervasive and egregious unfair labor practices, and
thus ultimately to undermine and frustrate the poli-
cies and purposes of the Act.
In this case Respondent, by its unlawful actions
effectively and quickly rid itself of practically all the
union supporters, who constituted nearly a majority
of the unit. A greater, more sweeping invasion of em-
ployee rights can hardly be achieved, short of firing a
majority of the unit. If a majority of the unit support
the Union and are fired for that reason, the issue does
not arise because the Union has enjoyed majority
support. Thus the violations here present the outer
limit of misconduct which the Gissel principles can
reach: if not here, where?
Accordingly, we could adopt the Administrative
2" See, generally. L n'd Dair Farmers C(ooperarrte. 242 NL.RB 1036 38
1062
HADDON HOUSE FOOD PRODUCTS, INC.
Law Judge's recommended Order and require Re-
spondent to bargain with the Union.
MEMBER PENELLO, concurring in part and dissenting
in part:
I fully agree with the unfair labor practice findings
of my colleagues. With regard to the remedial issues
raised herein, however, my colleagues and I part
company. Thus, as I stated in my separate opinion in
United Dairy Farmers Cooperative Association, 242
NLRB 1026 (1979), my colleagues err in failing to
recognize that "[h]oldings of the Supreme Court, the
plain words of the statute, and its legislative history"
preclude the issuance of a bargaining order where, as
here, the union never enjoyed majority status. The
reasons underlying my position are fully set forth in
my United Dairy Farmers opinion, and there is no
need to repeat them here.2 6
X' For the reasons stated in fn. 54 of that opinion, I do not agree with the
full extent of the extraordinary remedies ordered by Chairman Fanning and
Members Jenkins and Truesdale.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all the parties participated,
the National Labor Relations Board has found that
we have violated the National Labor Relations Act.
We have been ordered to post this notice and to abide
by its terms.
WE WILL NOT discharge or in any other man-
ner discriminate against employees because of
their union activities.
WE WILL NOT threaten to discharge employees
in order to prevent them from engaging in union
activities.
WE WILL NOT tell employees their fellow work-
ers are being discharged in punishment for their
union activities.
WE WILL NOT promise raises to employees in
order to induce them to refrain from union ac-
tivities.
WE WILL NOT tell striking employees they are
being suspended for engaging in protected con-
certed activity.
WE WILL NOT refuse to reinstate striking em-
ployees upon their unconditional application to
return to work.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their right to self-organization, to join or
assist Teamsters Local 115, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America, or any
other labor organization, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
WE WILL offer Mark Spang, Charles Seppy,
Kerrie Hurlbut, Lois Andrews, Belinda Evans,
Daniel McGettigan, Robert Reamer, Gloria
Hittner, and the 14 unfair labor practice strikers
who made unconditional application to return to
work immediate and full reinstatement to their
former positions or, if such positions no longer
exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights
and privileges.
WE WILL pay each of these 8 named employ-
ees and the 14 unfair labor practice strikers for
any earnings they lost as a result of our discrimi-
nation against them, plus interest.
WE WILL send to all our employees copies of
this notice; WE WILL read this notice to all our
employees; and WE WILL publish copies of this
notice in local newspapers.
WE WILL, upon request of the Union made
within I year of issuance of the Board's Decision
and Order, make available to the Union a list of
names and addresses of all our employees cur-
rently employed.
WE WILL. immediately upon request of the
Union, grant the Union and its representatives
reasonable access to our bulletin boards and all
places where notices to employees are customar-
ily posted.
WE Wll., immediately upon request of the
Union, grant the Union and its representatives
reasonable access to our plant in nonwork areas
during employees' nonworktime in order that the
Union may present its views on unionization to
employees, orally and in writing, in such areas
during changes of shift, breaks, mealtimes, or
other nonwork periods.
WE WIl.L, if we gather together any group of
our employees on worktime at our plant and
speak to them on the question of union represen-
tation, give the Union reasonable notice and give
two union representatives a reasonable opportu-
nity to be present at such speech and, on request,
give one of them equal time and facilities also to
speak to you on the question of union represen-
tation.
WE wI.l., in any election which the Board
may schedule at out plant and in which the
Union is a participant, permit. upon request by
the Union, at least two union representatives rea-
sonable access to the plant and appropriate fa-
1063
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cilities to speak to you for 30 minutes on working
time, not more than 10 working days, but not
less than 48 hours, prior to the election.
WE WILL apply the four paragraphs immedi-
ately preceding this one for a period of 2 years
from the date of posting of this notice, or until
the Regional Director of the National Labor Re-
lations Board certifies the results of a fair and
free election, whichever comes first.
Our employees have the right to join Teamsters Lo-
cal 115, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, or to
refrain from doing so.
HADDON HOUSE FOOD PRODUCTS, INC. AND
FLAVOR DELIGHT, INC.
DECISION
STATEMENT OF THE CASE
THOMAS A. RIcci, Administrative Law Judge: A hearing
in this proceeding was held at Philadelphia, Pennsylvania,
on July 20, 21, 22, and 23 and on August 2, 3, and 4, 1976,
on complaint of the General Counsel against Haddon
House Food Products, Inc., and Flavor Delight, Inc., to-
gether here called Respondent. The complaint issued on
February 27, 1976, on a charge filed on November 21, 1975,
by Teamsters Local 115, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, here called the Union. The principal
issues of the case are whether Respondent unlawfully dis-
charged a number of employees because of their union ac-
tivities in violation of Section 8(a)(3) of the Act, and
whether in refusing to bargain with the Union on request it
violated Section 8(a)(5). Briefs were filed after the close of
the hearing by all three parties.
Upon the entire record and from my observation of the
witnesses, I make the following:'
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Haddon House and Flavor Delight are New Jersey cor-
porations engaged in the distribution, manufacture, and
sale of food products. They are affiliated businesses, located
and doing business at the same premises in Medford, New
Jersey, and have a common management and labor policy.
I find that they together constitute a single employer for
purposes of this proceeding. During the past year Respon-
dent sold and shipped goods valued in excess of $50,000 to
points outside the State of New Jersey. I find that Respon-
dent is engaged in commerce within the meaning of the Act.
A motion by Respondent to disqualify the Administrative Law Judge is
denied. I find no persuasion in the assertion that when a hearing examiner
functioning pursuant to the Administrative Procedures Act, after attentively
listening to 7 days of testimony and after carefully reading and analyzing the
record transcript forms a mental judgment of the ultimate truth, he thereby
reveals bias.
1. THE LABOR ORGANIZATION INVOLVED
I find that Teamsters Local 115, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
Ill1. HE UNFAIR ABOR PRACTICES
A. A Picture of the Case
A sudden signing of membership and authorization cards
in favor of Teamsters Local 115 occurred on November 13,
1975, among the approximately 60 warehousemen and
truckdrivers employed by Respondent. The activity took
place largely on the parking lot adjacent to the plant prem-
ises where, as usual, employees were having lunch. Among
the principal solicitors in the union campaign were Mark
Spang and Daniel McGettigan, warehousemen. At 6
o'clock the following morning as the men reported to work,
Spang and McGettigan with Charles Seppy and Robert
Reamer, two other warehousemen who had also signed
union cards in the parking lot the day before, were summa-
rily discharged without a word of advance notice or warn-
ing. Early in the afternoon of the same day three other
warehouse employees-Lois Andrews, Belinda Evans, and
Kerrie Hurlbut-- each of whom had also signed union cards
the day before-were dismissed in the middle of their work
shifts, again summarily and with no advance warning of
any kind. The complaint alleges that all of these discharges
were Respondent's retaliatory reaction to the employees'
union activity and were violations of Section 8(a)(3) of the
Act.
On November 17 Joseph Yeoman, business agent of the
Union, showed Harold Anderson, the owner and top man-
ager of the business, a number of Local 115 authorization
cards and demanded exclusive recognition as the bargain-
ing agent. The Company rejected the demand. The next
day a number of employees ceased work and started picket-
ing. They joined the discharged employees who had already
been picketing the premises. The pickets carried signs read-
ing "Haddon House on Strike; Unfair Discharge." The
Complaint also alleges that the refusal to recognize the
Union as bargaining agent that day constituted a violation
of Section 8(a)(5).
Late in the afternoon of November 24 Gloria Hittner, a
clerical employee, chatted with the pickets on the sidewalk.
The next morning when she arrived for work she too was
discharged without notice. This discharge is also called a
violation of Section 8(a)(3) in the complaint.
Between November 17 and the end of the month Respon-
dent sent a number of letters to individual employees at
their homes; letters went to some of the discharged persons
and letters went to some of the strikers. Some letters said
that individuals were being suspended-including some of
the strikers--and some letters invited individuals to return
to their jobs, again including some of the strikers. On De-
cember 4 the entire group discharged employees and
strikers-came to the plant en masse and offered to go to
work. Respondent refused to take back any of them. The
complaint alleges that by thus refusing to permit the strik-
ers to return to their jobs-identified as 14 persons by name
1064
HADDON HOUSE FOOD PRODUCTS, INC.
in the complaint-Respondent violated Section 8(a)(3) as to
each of them-i.e., discriminated against them because of
their statutory protected concerted activities.
There are also several separate allegations of indepen-
dent violations of Section 8(a)(l) of the Act involving pro-
hibited restraint and coercion in statements of management
representatives.
Respondent denies the commission of any unfair labor
practices. As to the eight dischargees-seven warehouse
persons and one clerical-it defends on the affirmative
ground of discharge for cause. Exactly what Respondent's
explanation is for its refusal to accept for work a number of
strikers and dischargees after inviting them almost all, if not
all, to return, the record is not clear. Inconsistent statements
were made by company agents at the time, and multiple
assertions were advanced at the hearing.
B. Violations of Section 8(a)(3)
The question-did the direct dismissal of the eight em-
ployees constitute violations of Section 8(a)(3)-is the cen-
tral issue of the case. If, in fact, this Company discharged
all these people so summarily and highhandly to put an
immediate stop to the self-organizational campaign, it was
clearly the kind of "flagrant," "egregious" unfair labor
practice that can only be remedied by an affirmative order
to bargain with the Union now-majority or no majority
evidence (N.L.R.B. v. Gissell Packing Co., Inc., 395 U.S.
575 (1969)). And the question of the true motivation in the
mass dismissals in turn involves a pervasive issue of credi-
bility. Can Harold Anderson, the owner and top manager,
his son and comanager David Anderson, and the subordi-
nate manager Jack Berman, be believed in their testimonies
of what was said at the time of the events and as to what
the reasons for the dismissals were? Or, on the total record,
must the testimonies of the discharged employees be cred-
ited instead?
By the end of the day on November 13, 21 employees
had signed union cards; this was a substantial portion of
the persons in the bargaining unit. It is a small plant, and so
large a number of employees signing cards in such con-
certed action could hardly have escaped the notice of man-
agement. Spang said that he distributed cards even inside
the warehouse that day. Moreover, Robert Atkinson, a su-
pervisor, was eating his lunch in his car on the plant lot
while the flurry of card signing was taking place. Surely he
was aware of the activity, and it has long been held that the
knowledge of the supervisor is the knowledge of the com-
pany.2
Be that as it may, six of the discharged employees testi-
fied about the termination conversations. Five of them-the
men and one woman-were released by David Anderson,
the son, and the rest were sent home by Berman. Their very
pertinent testimony follows:
t
In its answer to the complaint Respondent denies that Atkinson; the
owner of the business; the owner's son, the vice president and pnncipal
manager; and Berman, director of labor relations, are supervisors within the
meaning of the Act. It does not pursue this negative in its brief. The repeated
references by a number of employees to Atkinson as their supervisor stands
uncontradicted in the record.
McGettigan. "He [David Anderson] asked me how come
I wasn't working overtime. I told him because I had to go
to school. Then he said that he was going to have to let me
go because I wasn't working enough overtime and a few
other reasons, but he didn't want to discuss them at this
time.... He said he wanted me to leave right away and he
would pay me for the rest of the day."
Spang: "He told me that there was a lack of money and
that he couldn't have me working the long hours that I was
working-and he was going to lay people off according to
seniority-and that's about it.... He said that he didn't
want me going back into work and that he was going to pay
me for 8 hours for that day, for a full day. And that-well
he just said that he don't want me to go back in there." "I
didn't have a ride-I said that I didn't have a ride home
and he said that he would get me Buzzy, the janitor, to give
me a ride home."
Reamer. "Dave told me, he says, 'I hate to do this but we
are very slow on work, we have lack of funds, and we have
to lay you off.' . . . He said, 'You can go home now. We
want you to leave the place now and we'll pay you to six
p.m. "
Seppy: "David Anderson told me he wanted to see me in
his office and he called me in and he said I was being laid
off for lack of work and lack of money and the layoff was
by seniority.... He told me he would pay me for the rest of
the day. It was all overtime until 5:00 o'clock I think it was,
and he did."
The work in the warehouse consists of stocking merchan-
dise in bins and on shelves. It is performed by stockmen
and pickers who stock and fill specified order lists, go along
the aisles picking up cartons and containers, and move the
orders along in carriages of one kind or another. In the
course of this work there have always been accidental
breakages of merchandise. Things fall down and are inad-
vertently broken. Every one of the discharged warehouse-
men admitted to have made such errors on occasion, but
each denied ever having damaged materials deliberately;
and each one also testified, without contradiction, that he
was never personally warned for such errors, much less ever
threatened with discipline or discharge. Less than I month
before the union activity there had been a meeting called by
management for the very purpose of alerting the employees
to be more careful, to make a better effort to avoid break-
age because of the losses thereby falling upon the Com-
pany.
It is this long accepted aspect of its business, repeatedly
called "destruction" by company counsel and by both the
Andersons at the hearing, that then became the basis for
the asserted affirmative defense of discharge for cause. Both
Andersons talked at length as witnesses about the terrible
and extensive "destruction" deliberately committed by the
four warehousemen discharged; but the testimony of Da-
vid, the son, adds nothing to the defense, for he admitted
that he saw none of it, and that all he was graphically pic-
turing was what his father told him that he saw. We come
to the testimony of the father. Harold Anderson:
"Q. Wh) was Sepp) discharged? A. I saA Mr. Seppy
doing damage to merchandise . .. On the afternoon of the
13th of November 1975 I saw Mr. Seppy. personally, doing
damage. serious damage, to merchandise in our warehouse.
... I saw him with a forklift run into a pallet of merchan-
1065
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dise, canned goods. He hit it, he backed off, and he hit it
again.... He was doing it deliberately, sir. That is how it
appeared to me." "I saw Mark Spang hit one of these pal-
lets of merchandise, with a good shot-there was no reason
to- and he hit it again."
Reamer. "e pulled merchandise off of a pallet, that was
on the bottom, and as a result of it the pallet on the top
collapsed, spilling merchandise all over the place. He
kicked a carton in rage and threw a carton against the
wall." "Q. Did seeing this upset you? A. Absolutely. Abso-
lutely it upset me ... How could I not be angry?"
Spang: "The same day I saw Mr. Spang, with his hand-
cart that he normally assembles orders, go down an aisle in
what we call brakes, and he ran this handcart into a pallet
of merchandise, destroying merchandise, some of it, on that
pallet. He then gave it another hit.... He then gave it
another hit. hit it the second time, to make sure that he did
some damage to it." Anderson's testimony continues, "A
short time after that I saw Mr. Spang in an aisle where we
kept canned fish. And he cut a case of merchandise in half,
which the order called for a half of case apparently. I didn't
see the order. The remaining part of this stock, he threw it
back, resulting in a lot of the merchandise spilling out of the
carton and falling to the floor. He made no effort to pick it
up.
Anderson's story is that he saw Seppy do the damage he
described at 2 p.m. on November 13, Spang destroying
property at 4 o'clock, and Reamer doing damage at 4 or 5
o'clock. He continued to testify that, "That night I worked
all night," and that, while he was still at work when McGet-
tigan arrived at 6 a.m., he saw McGettigan also misbehave.
"He was bringing down freight from the top of these shelves
and dropping it onto the floor. Instead of getting it down
the way it should be, he was just dropping it down. When I
saw this, he was also on the list."
One asks: What are the probabilities that a mature busi-
ness man, as successful as Mr. Anderson, would stand by
watching such wanton destruction of his property without
saying a word of criticism to his employees? Asked why he
did not discharge these men then and there, the witness said
that he leaves dismissals to his son. But there is clear evi-
dcnce that only a few months earlier he had summarily
dismissed another employee for only smoking in the ware-
house, contrary to the rules. This time he did not even tell
the men to please stop what they were doing. Anderson
closed with saying that at 9:30 p.m. on November 13 he
asked his son to dismiss the first three men, and that the
next day at 6 or 7 o'clock he told him to release McGetti-
gan.
David Anderson's version of what he told the men when
he dismissed them is no less relevant to the credibility of the
contention of discharge for cause.
Seppy: "I told him of the events that had taken place on
November the 13th, what he had been seen doing as far as
destruction in our warehouse, I asked him if he had any
comments, he said that he did. I said 'What is that?' He told
me that he was sorry, that he would like a second chance.
Reamer: "I said, 'Bob, I don't like to do, I don't like to
say what I have to say to you ... You were seen on Novem-
ber the 13th in our bulk storage room destroying merchan-
dise intentionally.' I asked him if he had any comments. He
said to me 'Elaborate on it.' I said 'Bob, you were seen in
the bulk room pulling merchandise from bulk storage un-
dermining one pallet which caused the pallet to collapse
and fall to the floor. You were then seen picking up one
carton and throwing it and you were then seen kicking a
third carton. Do you have any comments?' He looked at me
and said 'I have absolutely no comments at all.' I said 'Bob,
check out, we'll pay you fbr the remainder of the day. and
you are permanently terminated.'"
Spang. "I told him of the events that he had been seen
doing on November 13th, and I asked him if he had any
questions.... He then told me he had no way to get home
and I said to him 'I will get someone to drive you home.
You're terminated, you're fired, and I'll pay you for the
remainder of the day.'"
MVcGettigan. "I said to him he was well aware of the
problems that we were having with him. One problem was
tardiness: the second problem was damaging merchandise
which had been discussed with him previously: and the
third was his intentional destruction of merchandise that
morning. I said 'Do you have any comments?' And he
seemed to be-he didn't care one bit. He just said to me
'Does that mean I'm fired now?' I said 'Dan, we'll pay you
for the remainder of the day, you can punch out and go
home.' "
Again questions arise. Why should David Anderson
speak so gently when terminating employees for having
committed unpardonable offensives only the day before, as
so vividly described at the hearing? Why was he almost
apologetic towards Reamer? More damning to the defense.
would an employer getting rid of four men who had "delib-
erately" destroyed company property- almost enjoying the
practice, according to Harold Anderson make them the
gift of I day's pay, to say nothing of obliging one of them
by having the janitor cease work and driving the discharged
culprit to his home? Why the great urgency of getting them
out of the building before they could exchange one word
with the remaining employees?
Lois Andrews was one of five women packers in the
warehouse. At lunch on November 14 she solicited union
card signatures in the ladies' room. Shortly thereafter Da-
vid Anderson called her, her sister-in-law Belinda Evans,
and a third woman packer named Kerrie Hurlbut to his
office and fired each one-again without notice or warning.
From Andrews' testimony: "... he told me that I must
know by now that there's been people laid off due to the
lack of work. I got upset and started crying because he told
me I was going to be laid off. Then he said 'I know your
husband's out of work and you have three children.' I said
'Yes. I need this job very much.' Then I told him 'Just
because I talk to the people and hang around with them
doesn't mean that I'm doing the same thing they are.' And
that's when he told me to call him the next morning about
my job." Andrews added that she and the other women
discharged that day had once been told not to talk too
much at work and to work faster, but that she had never
been warned or disciplined because of her work perform-
ance. As to this girl, David Anderson said only that he told
her she was being laid off temporarily, and that she would
be recalled when the pickers again became busy. Concern-
ing the other two Evans and Hurlbut Anderson told
1066
HADDON HOUSE FOOD PRODUCTS. INC.
them, as he testified, that each was being laid off that day
because there was not enough work for them to do-a "lack
of order production" and that they would be recalled
when necessary.
Hittner, the clerical employee, testified that at 5:15 p.m.
on November 24 she went outside and "talked to the guys
and they said later that evening that Joe Yeoman would be
there if we wanted to talk to him about anything. So at
work the three of us went out and were talking with Joe
Yeoman, and the rest of the guys that were out there, about
different things for the Union." The next morning, when
she arrived, still according to her testimony: "Mr. Berman
came across the hall and asked to see me in his office. It was
him and myself in the office. And he was saying that he
wanted to start benefits for the people inside of Haddon
House and not outside. And he said that he noticed that me
and a few other girls had been agitating with the men out-
side. He said if that's the way they' wanted it, he said that I
could leave; he said goodbye, and he said that I could have
an escort to the door.... and he said to Dorothea, the lady
that was in the office with me. to escort me to the door
because they wanted to make sure that I was out of the
building."
Jack Berman, who called himself "general manager" of
the business--"I interface between the office and the ware-
house" spoke of the departure of Hittner on November
25. He started by relating how she had been suspected of
eavesdropping over private conversations at the phones.
how he had heard suspicious "clicking" on his phone after
the "labor difficulties occurred," and how he had therefore
transfered her upstairs to the purchasing department. After
saying Hittner had always been "a good worker," he then
said that the purchasing clerk complained "that Gloria was
not attentive, there were too many errors being made, that
she doesn't seem to have her mind on her work. there's too
much walking around, she's not at her job enough although
she's present. But mainly because she was not doing her
job." With this, Berman continued, he called her to his of-
fice for a talk, where he told her "You have sort of lost your
dedication. I don't know what is bugging you. I hope it is
not the labor problems out there." At this point in his testi-
mony Berman took off on a general discourse about the
employee's emotionalism and a general tendency to get ex-
cited. He spoke of her having seen disturbing events on the
picket line and generally discoursed upon the correctness of
his final action. When he finally got back to the termination
interview he stated: "So I told her-this is coming back to
the interview in my office-that if she is being affected with
what's going on out there, she shouldn't be during the
time-or try not to have it affect her work during the time
that Haddon House is paying for. No matter where how
sympathies laid, I really didn't care: all I was interested in
was that her time belonged to me during the time she was
getting her paycheck. And I asked her if she could see her-
self in such a position, like she was before, to do her work
and be a dedicated employee again . . . She became very
upset . . . and she sort of half screamed. 'I can't work here
any more.' and got up and walked out of my office. And at
that point I called to the first person I saw, who was across
the hall, a woman by the name of D,)rothea Mathews. and
asked her to escort Gloria downstairs because I didn't know
where she was going. She could have fallen down the stairs
for all I know." No witness was called to substantiate or
give objective reliance to any of Berman's conclusionary
statements.
On this entire subject of the discharge of these eight em-
ployees I do not credit the testimony of Harold Anderson.
David Anderson, or Jack Berman. I find incredible Harold
Anderson's story of the misconduct of the first four men.
Wherever the testimonies of all three of these company wit-
nesses conflict with that of the six employees who appeared
as witnesses, I credit the employees against the company
agents. And I do not believe-with respect to any of these
eight employees--that Respondent in fact released them for
the reasons advanced at the hearing or as assertedly stated
to them at the time of release. The inherent incredibility of
Harold Anderson's story-outrageous and deliberate de-
struction of company property in plain sight of the owner
but totally ignored by him at the moment of its repeated
occurrence-is only one reason for this broad credibility
resolution. The very high improbability that David Ander-
son would speak the way he said he did, while firing the
four men and graciously pay them for an extra day. is also
but one other reason. There are a number of additional
factors, chief among them the demeanor of all three com-
pany witnesses at the hearing.
Harold Anderson refused to produce his Company's hir-
ing and employee status records in defiance of a ruling de-
nying his motion to quash the Government's subpena.
Twice during the next several days of the hearing he re-
versed his position, saying that he would and would not
bring them to the court. Company records are best evidence
because theN are objective and presumptively tell the truth.
Why was he trying to hide the truth? He finally said that he
would produce the records and brought records to court for
that purpose. After saying that these were the records show-
ing just who was at work at the time of the events, from the
stand, as a sworn witness, he then blandly said that he did
not know whether they were in fact the records he had just
said-from off the stand-that they were. To the extent of
his participation in the hearing on this complaint, this man
cannot be believed.
Both Anderson's son and Berman mixed virtually all of
their answers to critical factual questions with extended ar-
guments of why what they were about to say they did had
justification in other events which were not then at issue.
Their testimonies are more argument, evasion of direct an-
swers, and coloration, then they are plain speaking. A num-
ber of times company counsel interjected in the course of
cross-examination of these witnesses with comments such
as "If you know," whereupon the witnesses claimed to have
no recollection. At one point Berman said that certain let-
ters- received in evidence and dated November 24 were
mailed that day. But some envelopes in which the letters
were mailed are stamped November 25 as the day when, in
the Company's office, they were processed through the
Company's stamp machine. Of no less significance are both
Berman's and David Anderson's responses, a number of
times to purely actual inquiries, with virtual legal conclu-
sions such as "they' were regular part-time employees."
These are legal words and indicate a planned intent to
avoid giving true testimony. If total demeanor means ans,-
1067
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thing, these three witnesses gave every evidence of being
untruthful as I looked at them.
I credit the testimonies of Seppy, Spang, McGettigan,
Reamer, Andrews, and Hittner as to their discharge conver-
sations.
In the case of Hittner, the manager told her, when she
first returned to work after mixing with the pickets on
strike, that he disapproved of her "agitation" with the unio-
neers and fired her on the spot. The proof is direct, and the
discharge is therefore clearly unlawful.
The other five who testified were told something else. The
four men denied having destroyed or damaged any prop-
erty the day before, and I believe them. Anderson told An-
drews that there was "a lack of production orders." The
Charging Party subpenaed company records relating to the
volume of business done from November 13 forward. Re-
spondent refused to produce such records. Apart from the
fact that Anderson's conclusionary statement stands barren
of objective support, the law has long been that in these
circumstances an adverse inference is warranted. I deem
this equally true with respect to Evans and Hurlbut, who
were also told the same thing when discharged without no-
tice that day, according to Anderson. The payroll records
show that up to the day before these three women were told
that there was a lack of work for them, a great majority of
the warehouse employees had for weeks been working 50,
60, and even 70 hours weekly. So sudden a reduction in
orders (during the admitted peak season!), even had it
really occurred (which I do not believe), could easily have
been taken care of by eliminating the then unnecessary ex-
pense, the time-and-a-half overtime payment.
The four men and Andrews were not fired for the reasons
advanced by Respondent then and now, but there had to be
a reason. Why were they discharged that day? It is an infer-
ence case and rational inferences are inescapable. The rea-
sons advanced at the hearing are false. The reasons that
David Anderson stated at the time of discharges-as shown
in the credited testimony of the employees-are also not
true. Respondent admits that the last 3 months of the year
are its peak volume period. The record proof of the incredi-
ble amount of overtime work performed by most of the
warehouse employees for weeks before November 14 is so
cumulative that there is no point in detailing it here. Such a
drastic reduction in the volume of business could not have
been noticed so unexpectedly as to demand dismissal of so
many employees at one fell swoop.
Harold Anderson normally comes to work at about 11
a.m. This time he was at work at 6 a.m. on November 14
and had been on the job-if he is to be believed-continu-
ously from at least 2 p.m. the day before. His son normally
comes at 8 a.m., but this day he was in the office at 6 a.m.
What can explain all of these extraordinary occurrences?
When unusual things happen and the rational mind knows
that there must be some reason for them, the element of
3 From the Board's decision W T Grant Company, d/b/a Grant City, 210
NLRB 622, 626 (1974):
"Illegal motive has been held supported by a combination of factors,
such as 'coincidences in union activity and discharge' . . . 'general bias
or hostility toward the union' ... 'variance from the employer's normal
employment routine' ., . and an inplausible explanation b the em-
ployer for its action...."
timing of necessity comes into play. Actually, it requires
very little inference to connect the card signing at midday
with the unannounced dismissals the next morning at 6
o'clock. The conclusion that Supervisor Atkinson, who was
nearby having his lunch while all the card signing was
going on in the parking lot, knew what was going on is fully
warranted. In 1974 an older and more experienced em-
ployee, Schaefer, had been active in a prior union cam-
paign, and, according to his credited testimony-because I
do not credit the denials of either of the Andersons in this
case-was first told that he was being dismissed because of
his such activities, but he was reinstated with a warning not
to do it again. Early in the morning of November 14, 1975,
still according to Schaefer's credited testimony, before dis-
charging anyone David Anderson said to him in the pri-
vacy of his office "that he knew that I didn't have anything
to do with it, that the previous year he waited all day before
he laid me off because of union activity, but this year he
wasn't-that I had nothing to worry about, that all I had to
do was my job during the day and not worry about any-
thing no matter what was going to happen." "He told me
that there would be some guys leaving the plant that day
and not to worry about it that it didn't involve me.... he
said that he would cut it off short, he would nip it in the
bud." I think, on this particular record, and considering all
the related factors-including additional aspects that do
not need repetition here-the logical inference of knowl-
edge in the Andersons is fully warranted from the timing of
the events alone.
I find that Respondent discharged Seppy, Spang,
Reamer, McGettigan, Andrews, Evans, Hurlbut, and Hitt-
ner because of their union activities and thereby violated
Section 8(a)(3) of the Act eight times.
C. Independent Violations of Section 8(a)(l)
I. I find that David Anderson's statement to Schaefer
early on November 14 that this employee would not be laid
off while others were going to be released to curb their
current union activities constituted a violation of Section
8(a)(1) of the Act. Cf. New Castle Lumber and Supply Co.,
Division of Peter Kurtz Co., 203 NLRB 937 (1973).
2. Employee Dennis Wuest, later a striker, testified with-
out contradiction that on November 21 when he went home
for lunch he took Reamer from the picket line with him and
later brought him back. Reamer, discharged illegally on
November 13, had been picketing for several days. When
Wuest returned to work, Robert Atkinson, the supervisor,
said to him: "'I know you're with those guys and I think
that you're a two-face so-and-so' and he said that those
guys gave me a lot of mouth too but I ain't worried about it,
and he says-I told him, I says 'Why, just because I picked
up Reamer?' And he said 'Yes.' And then he told me, he
says, that if you don't watch it, you'll get yours one of these
days." I find that the supervisor threatened Wuest with dis-
charge if he should decide to act in favor of the Union and
thereby violated Section 8(a)(1).
3. After the seven employees had been discharged on
November 14, the rest of the warehousemen were called to
a special meeting at about 4 p.m. where Harold Anderson
spoke to them. According to the employee witnesses who
testified about the meeting, Anderson spoke of damage to
1068
HADDON HOUSE FOOD PRODUCTS, INC.
property, the fact that the employees were now fewer, and
that all of them would now have to work longer as a result.
The question of raises was brought up; whether it was An-
derson who brought up the subject or the employees is not
clear on the record. Be that as it may, with almost all the
employees working overtime and being told that they
would have to work still longer hours, the subject of money
was a natural. According to employee Wuest, Anderson
said "that we'd get a raise, but he didn't know how much,
and he said it would probably be effective on Monday the
following week." "He said he really couldn't afford it, but
he said we would get a raise." "He said he'd think about
how much money he would give us about a raise." From
the testimony of Paul Masi: "He proceeded to say that he
couldn't afford it but everybody would get a raise, and he
said that it would be retroactive Monday morning." The
other witness, Schaefer said: "And then he said-he
brought out that he would check with his auditors over the
weekend and although he couldn't afford it, we would get a
raise, and the raise probably wouldn't start for two or three
weeks, but they would be retroactive back to November the
17th."
Harold Anderson, who was doing the talking that day,
said that the employees asked about a raise, and that after
explaining the "rut," or "hole," or "near disaster" the Com-
pany was in "I said ... I am going to review this whole
thing and if I can possibly afford anything you'll get a pay
raise and it would be retroactive to the following Monday."
I am convinced that the employees gave the more reliable
version of Anderson's words-an ambiguous promise, al-
beit conditioned, of a future raise but with assurance that
when it came it would start the following Monday retroac-
tively. Anderson was talking on a Friday afternoon. He had
just discharged seven employees he could ill afford to lose
when the amount of overtime performed by everyone was
immense. He wanted to separate the remaining employees
from the discharged ones, a technique which would both
assure work performance and weaken the movement to-
wards united action by the entire complement. Anderson
violated Section 8(a)(l) of the Act by this promise of a raise
in the teeth of the employees' union activities, almost simul-
taneously with his illegal discharge of others, the leading
activists among them.
D. Return of the Strikers
As stated above, from November 18 on there was a
strike. On the picket line there were the eight illegally dis-
charged employees and a number of others. Fourteen em-
ployees who were not discharged but chose to strike are
named in the complaint.' There were other strikers who
were not identified on the record.
On December 4 the 14 named strikers and the 8 discharg-
ees appeared together at the plant and offered to go to
work. Respondent refused to let anyone in, and the employ-
4 In its brief the Union charges that one of the pure strikers-Mcintosh-
was out on the picket line because he was discharged in violation of the Act.
The complaint does not so allege, and the General Counsel does not so
contend. A charging party has no standing to add allegations of 8(aX3)
violations to the Regional Director's complaint.
ees simply resumed their picketing, which was still going on
at the time of the hearing.
A major allegation of the complaint is that on December
4 the 14 strikers, not to be confused with the 8 dischargees,
"made unconditional offers to return to their" jobs, and
that because Respondent refused to reinstate them, it vio-
lated Section 8(a)(3) of the Act. That section of the statute.
of course, deals with unlawful discrimination in employ-
ment, or, in plain language, denial of employment-
whether it takes the form of discharge from the job, refusal
to hire in the first instance, or telling a striker who wants to
come back to work "I will not take you." There is reason
here for so plainly stating the true meaning of the language
of the complaint because a very plain fact about the offers
to return to work is ignored by all the parties, including the
General Counsel in his post-hearing brief.
These were unfair labor practice strikers. They left work
to join their fellow employees who had been fired on the
sidewalk; the eight in question had suffered unlawful dis-
crimination at the hands of Respondent; the signs all the
strikers carried read "Discharges Unfair"; and when the
strikers offered to quit their strike and return, they were
accompanied by the dischargees. On the evening of Decem-
ber 2, 2 days before the attempted mass return to work,
there was a meeting at the house of one of the strikers,
Ritchie. Present were all 14 strikers and the 8 dischargees.
Present also was Yeoman, the union representative. All
these people discussed the situation and decided what to do.
It is the nature of the decision reached there by the group
and the attempted implementation of that decision 2 days
later by the strikers that is determinative of the complaint
allegation of illegal discrimination against the 14, and that
mandates dismissal of that allegation. The truth of the mat-
ter is that all 14 strikers decided that they would abandon
the strike and go to work only on an "all or none" basis;
i.e., on condition that Respondent would restore all 22 of
the employees to their old jobs. Where the complaint reads
that the strikers "made unconditional offer" it is wrong;
where the General Counsel in its brief contends that Re-
spondent rejected this "unconditional offer" he ignores the
clearest facts of record.
The extended transcript is interspersed with references to
unrelated facts, occasioned by collateral defenses argued by
Respondent. It asserts that the offer was conditioned on
reinstatement of supervisors, a condition which strikers
have no right to impose. It also argues that the returning
employees-both dischargees and strikers!--came too late,
they should have arrived by November 28 because the
Company had so invited each of them individually. Were
Masi and Schelhause supervisors in fact? Were the letters of
recall received on this or that date? These questions confuse
the record. But the following testimony stands clear.
Yeoman, the first to testify, stated: He said that at the
meeting at Ritchie's house he told the assembled group "the
company's intentions were that everybody comes back to
work ... that our position would be better if we'd go back
to work and take up the matter through the National Labor
Relations Board as far as the discharge or laid off employ-
ees .... " This statement alone shows that the intention of
all was that the dischargees were to go back to work also.
Yeoman continued that it was then decided not to go back
on December 3, but to wait for December 4 because there
1069
Dt7.ECISIONS OF NATIONAL LABOR RELATIONS BOARD
were three women who first had to arrange for babysitters
before they could work. These were the three--Evans,
Hurlbut, and Andrews-who had been discharged. Again
Yeoman was actually saying that the agreement among the
strikers was that the discharged persons also had to be
taken back by Respondent. Asked bluntly on cross-exami-
nation had he not told Berman (of the Company), that he
wanted "everybody" back as a condition of anyone return-
ing, again and again Yeoman avoided answering.
From Spang's testimony: "Q. And you wanted-when I
say you you and the other strikers decided that all would
have to go back, including Masi and Schelhause, at once,
together, or else nobody was going to go back, is that true?
A. Yes." From the testimony of Gillespie, a striker: "Q. At
the meeting at Ritchie's house, everybody was there de-
cided that everybody that was fired had to go back or no-
body, right? A. Right." McGettigan, a dischargee, stated:
"We decided that if everybody wasn't going back, nobody
was going back. We had no particular names: we didn't
point anybody out, individually."
There were two other union agents at the December 2
meeting Sheahan, coordinator of Local 115, and Jimmy
Smith, a staff member. From Sheahan's testimony about
what was decided that night: "It was the position of the
union that everybody should go back to work and we
should hope to work out an earlier settlement of our prob-
lems . . . As far as we knew, all seven of those people had
been offered reinstatement by the Company. Other people
who had honored the picket line had received similar letters
suspending them-not suspending them, ultimately offering
them their jobs back were also willing to go back.... The
major conversation during that meeting was not whether or
not everybody was going to go back because we assumed
that everybody was going to go back."
The rationale of decision here simply starts with the plain
fact that these people were strikers on December 2 and
were still strikers on the morning of December 4 when all of
them arrived at the plant. Some had received suspension
notices-starting after they started striking. The question
now must not be befuddled by that matter. No one sug-
gested at the hearing that in December any of the 14 strik-
ers listed in the complaint was not on the sidewalk because
he or she chose to be there. They were protesting the dis-
charge of the eight; the General Counsel calls them strikers
in the complaint, and he now argues that the Company was
obligated to take them back that day because they were
unfair labor practice strikers.
Nothing could be clearer than the fact that they condi-
tioned their return upon simultaneous reinstatement of
their unlawfully discharged fellow workers. The Employer
refused to take back the eight, and the strikers continued
their protest striking and picketing. The law is clear. People
may strike because the employer has committed unfair la-
bor practices; they are protected when in such strike status.
The employer must take them back when they change their
minds and no longer care to withhold their services in pro-
test, and the employer must even remove any employees he
has hired to replace the unfair labor practice strikers when
they want to come back. These people chose to continue
their strike on December 4. They are still out on the street;
the unfair labor practices committed have not been reme-
died because the eight are still out against their will.
When any of the 14 do come, without conditions imposed,
and ask for their jobs back, should Respondent reject them
it will be committing a direct violation of Section 8(a)(3).
Both the company agents-managers and lawyer-and
the union man Yeoman used ambiguous and deliberately
confusing language at the hearing in describing the Decem-
ber incident. They merged reasons with plain statements of
fact of what was said. This is because both sides were seek-
ing to inject other elements. The Union was trying to create
the impression that each striker was acting independently of
all the others and never mind the contrary proof. The
Company kept talking about letters deliberately confusing
and self-serving--sent to the four discharged warehouse-
men, thereby attempting to avoid backpay liability to them
from that day forward. But the question of whether the
unfair labor practices against the eight were totally cured
that day stands apart from the entirely separate allegation
that the 14 were wronged. Plainly put, on November 18,
when the 14 first struck, they were telling Respondent that
"we will stand on the sidewalk until you take back the
eight." When they came on December 4 they were again
telling the Company that "we will come to work if you put
the eight back to work." The two objectives are exactly
alike. I shall therefore recommend dismissal of the com-
plaint as to the 14.
This complaint allegation disposed of on this basis, all
other contentions advanced with respect to the same issue
are mooted. Were it necessary to decide, I would find with-
out merit any of the defenses advanced by Respondent. The
idea that it had a right to deny employment to the 14 strik-
ers because, told to report to work by November 28 they
delayed until December 4, is absolutely pointless and merits
no discussion at all.
The contention that the 14 insisted as a condition of re-
turning that a man named Schelhause also be taken back is
not proved on the record. Schelhause was an employee dis-
charged before the strike started who at times joined the
pickets. The Company says that he was a supervisor, and
there is no evidence he was not. But Schelhause was not at
the December 2 meeting and was not at the plant when the
group offered to return on December 4. Use of the word
"everybody" by Yeoman and the employees therefore is by
no means proof that Schelhause was involved in the offer.
He simply had nothing to do with this case.
Paul Masi, a warehouseman, was a striker who was
among the returning strikers. The Company says that he is
a supervisor, and as the group wanted "everybody" to come
back, the offer imposed an unwarranted demand upon the
Company to hire a supervisor. I find, on the total record,
that Masi-whatever his functions--was not a supervisor
within the meaning of the Act. He went to some manage-
ment meetings but so did a number of conceded rank-and-
file employees, as the record amply shows. Much was made
over the assignment of overtime work, and the Company
tried again and again to have witnesses admit that Masi
arranged the overtime. The fact of the matter is that this
warehouse operates very loosely; everyone works so long as
there is work to be done, until orders are completed, and
everyone performs unskilled work, with the Company per-
mitting people to decide, by simply seeing what others are
doing, to work as long as it is necessary. There are regular
1070
HADDON HOUSE FOOD PRODUCTS, INC.
supervisors in the warehouse anyway. It must also be noted
that while contending that Masi was a supervisor, Respon-
dent insists that Angelo Patelo, also a disputed employee.
must be deemed a rank-and-file employee. The record
shows that two men have virtually parallel authority. TheN
were working, nonsupervisory employees. and therefore
both are included in the warehousemen bargaining unit.
A final argument made by the General Counsel in his
brief deserves comment. He says that even assuming that
the returning strikers had decided it was to be "all or none,"
and in fact would not have returned had the Company de-
nied a job to any one of them, the Company never knew
this, and therefore that fact cannot be deemed pertinent
now. The idea gives rise to interesting speculation. Yeoman,
of the Union, had called Manager Berman the day before
to check whether the letters of recall had been sent to "ev-
erybody," and I believe his testimony that the manager said
"yes." Could it be that, on thinking it over, when manage-
ment saw itself faced that morning with all the employees
acting in concert, it saw in the mass movement that same
"union" activity which it had so violently tried to choke off
only a few weeks earlier and decided it would have none of
it? In that event, the position might be viewed as illegal
motivation in denying employment. The complaint does
not allege this.
But if this coin is turned around- again as pure specula-
tion-could it be that the Union, acting through Yeoman
and his partners the night earlier, seized upon the fortuitous
sending of the individual letters, to turn the situation to its
advantage by "concertedly" moving to end the strike and in
a substantial sense establish its right to speak on behalf of
all the employees-a right it had asked for but been denied
in November? This entire case-from the start with all the
double talk by the Company and the Union in November
and continuing even after the hearing closed with motions
and briefs submitted by the Company and the Union--is
replete with trickery and deception. Whatever speculation
may be provoked by the whole story, the Decision must rest
upon the objective facts.
E. Violation of Section 8(a)(5)
On November 17 Yeoman went to Respondent's office
together with two other union agents and two of the dis-
charged men and demanded recognition on behalf of the
Union. He placed a number of authorization cards in Har-
old Anderson's hands; the owner looked at them, handed
them to his assistant, Jack Berman, and then told the union
agents that they could go to the Board instead, he would
not grant recognition. There is no need to discuss what was
said there that day. Anderson at one point testified that he
had the signed cards in his hands "two or three seconds.
four seconds," and returned them. His manager, Berman.
also looked at the cards: "... He [Yeoman] asked me if I
wanted to see the cards. I said yes. He handed me the
cards."
Majority status, as alleged in the complaint, can only be
tested against the total in the bargaining unit, and, largely
because of Respondent's deliberate refusal at the hearing to
produce its true records pursuant to subpena, there is con-
siderable confusion as to just what employees were at work
then. After every attempt to frustrate the orderly course of
the hearing, Respondent produced what was ostensibl a
complete roster of employees at work during November of
1975- 94 cards bearing limited information about its em-
ployees, and they were received in evidence. TheN are not
complete records, for the testimony shows that others were
at work also. Why the General Counsel elected not to com-
pel full compliance with the Government's subpoena I do
not know.
In any event, after much vacillation by both sides as to
who should be included in the 100-percent total (the shifts
of position even continuing in the briefs), the conflicting
contentions, I think, emerge as reported here.
The appropriate bargaining unit is described in the com-
plaint as follows:
All truckdrivers. warehousemen, checkers, pickers. and
packers but excluding all other employees, guards. and su-
pervisors as defined in the Act.
The parties stipulated to inclusion of 40 named employ-
ees. To these the General Counsel correctly contends that
there should be added the seven employees who were dis-
charged illegally before November 14, 3 days before the
demand and refusal. The total thus becomes 47.
The parties disagree as to the following persons:
Paul Berman. son of Jack Berman the manager (who
owns no stock in the Compan) ) drives a truck and works in
the warehouse. There is no evidence of special status en-
joyed by this man on the job except the fact that he has a
key to one of the sections of the building. As one employee
testified, he is not "treated any differently than any other
employee." I do not think that this one fact plus the fact
Paul lives with his father who charges him no rent suffice to
remove him from the unit. He is therefore included as a
regular employee.
Dennis Atkinson and Michael Walson. At the hearing the
General Counsel urged exclusion of these two men as casu-
als. He abandoned the contention in his brief. I find that
they were regular part-time employees ftbr several weeks
before November 17 and are therefore to be included.
Gar' C(lapool was hired in September, worked full
time-including much overtime in the weeks before No-
vember 17- and joined the strikers. The Company would
exclude him on the asserted ground that its original inten-
tion was that he be only temporary. Aside from the Em-
ployer's conclusionary statement, there is no supporting
evidence to substantiate the assertion. The record does not
prove that the man intended to work only briefly, and case
precedent involving school boys who work summers and
then go back to school is inapposite. Merely because Clay-
pool had "educational aspirations" in November of 1975
and did go to college almost I year later does not mean that
he was not a regular employee in November. He is included
in the unit count.
Charles KnauJ; for some time a clerical employee in the
computer room, was assigned to do regular warehouse work
3 weeks before November 17 and worked there full time
until he joined the strike. During that 3 week period he
worked about 3 hours of overtime daily in the computer
room. He was shifted away from computer work because a
new system was installed which eliminated the need for
him. I do not credit the testimony of Harold Anderson,
contradicted by the employee, that he told Knauf before
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the change of job that it was intended as only "temporary"
or his testimony that he, Anderson, intended it to be tempo-
rary. I believe instead that Knaufs testimony that he was
given a choice when his limited skills in computer work
became determinative, and that he was told that he could
have a job in the warehouse. Knauf is included in the unit.
Paul Masi has already been found not to have been a
supervisor, as contended by Respondent, and is therefore
included in the unit count.
Barbara Bowker and Catherine Smith worked primarily
in the flavor delight section of Respondent's unified opera-
tion. The parties kept changing position during the hearing
on whether flavor delight employees should be included. It
seems that they are now in agreement that all should be
joined. Bowker and Smith are therefore to be included.
At the hearing Respondent contended, but offered no
evidence in support, that seven employees who started work
late in 1975 be included. The employment record cards of
these men show that each was hired for the first time after
the demand and refusal. Accordingly, Menei, Irvin, Helsm,
L. Ferguson, T. Ferguson, J. R. Atkinson, and J. H. Atkin-
son are excluded.
Angelo Patelo has been found not to be a supervisor. He
is included in the count.
Carmine Sorino worked 4-1/2 hours during the week end-
ing November 1, 3-1/2 hours during the week ending No-
vember 8, 3-1/4 hours during the week ending November
15, and no hours during the following 2 weeks. At the hear-
ing Respondent argued for his inclusion. The evidence as to
what this man does is utterly confusing. One man, Masi, a
real full-time employee in the warehouse, said quite cred-
ibly that he had not seen Sorino in the warehouse for a long
time before the strike. Whatever he does for the Company,
I find that Sorino was truly a casual employee and therefore
exclude him from the unit.
Michael Diamond was a regular truckdriver, sometimes
away from the plant for more than 2 weeks at a time mak-
ing long distance deliveries. The payroll records show that
he was a regular full-time employee at the time of the
events. The General Counsel's assertion he was a supervisor
is not supported by the evidence. Diamond is included in
the unit.
John Morrow worked for the Company since 1960. He
was one of the oldest employees in service. He was out on
sick leave from September 1975 to January 1976 because of
a broken hip. He testified that his duties on receiving and
stocking were passed on to Masi in August of 1975, and
that even prior to that day he exercised very limited if any
supervisory authority. The General Counsel would exclude
him from the count on the ground that he was a supervisor
even in September when he fell sick, but the only evidence
in support of the contention are conclusionary statements
by two employees, Schaefer and Masi. Schaefer said that
Morrow used to "straighten out stock." Masi said that he
was the "Lead Honcho." As best I can understand the total
evidence, Morrow used to do what Masi later did, and if
Masi, according to the General Counsel, was not a supervi-
sor, I do not understand how he could make a contrary
contention with respect to Morrow. I do not think that the
probative evidence, considering the entire record, warrants
excluding Morrow from the unit.
Albert Romano, whom the General Counsel would ex-
clude as a casual employee, worked 13 hours during the
week ending November 1, and 20, 23, 32, and 31 hours
during each of the subsequent weeks. The record otherwise
contains no substantive evidence upon which to justify his
exclusion. Romano is included in the unit.
To this point we have it that the count shows 59 rank-
and-file employees to be counted as included in the bar-
gaining unit on November 17. There is dispute, seemingly,
as to a few others, but it is not really necessary to resolve it
now. Respondent wanted to include Steven Moir, but his
card shows that he was terminated on November 12, 1975.
There is a card for Lorraine Bleckley, which shows only a
question mark as to when she left. Neither of these two can
be counted. A woman named Paula Papp, formerly a secre-
tary, appears to have been, according to the company card,
placed in the warehouse as a picker on November 17. This
may well be so, because by that date three pickers had been
discharged only a few days earlier. As to the remaining few,
the record is too confused to justify useless discussion.
On the basis of the unit thus far determined, it would
appear that there were at least 59 employees in the unit at
the time of demand and refusal. The General Counsel
placed into evidence 27 authorization cards signed by some
of these persons, five dated November 17, and 21 dated
November 13, and , by Ritchie-is dated November 18.
Eighteen of the 27 persons testified and personally authenti-
cated the signatures on the cards. Seven cards-those of
Wayne, Grass, Haynes, Rehman, Simkins, Hill, and
Smith-were authenticated by witnesses who actually saw
the employees sign the cards. And two-those of Evans and
Hurlbut-were offered into evidence by Spang, who said
that the two women personally returned them to him with
their signatures written 30 minutes after he handed them to
the employees. I find all 27 of the cards to be valid and
reliable for the purpose of testing majority in this proceed-
ing.
Arguments are made in defense that some of these cards
are not valid now. Rehman, a striker who returned to work
alone, unassociated with the rest, said that he signed his
card on November 17 and not on November 14. Another,
Grass, said that he signed "before the picketing started"
(this had to be by November 17). The card is dated Novem-
ber 17! Were I to detail the testimonies of these witnesses it
would clearly show why their attempts to retract their ear-
lier authorizations of the Union must be rejected.
Smith testified that he was forced by threat of a physical
violence to sign his card. He said that Masi and another
unidentified employee followed his car late one night after
he left the plant, forced him to the curb, told him that the
same thing would happen to him as had happened to his
brother earlier, and that he must "put a specific date" on
the card-November 13. Smith said that he did that while
the threatening employee "was standing next to my car
looking down." Masi denied the entire incident, and I be-
lieve him. If, in fact, the intimidating person were watching
so closely to be sure that Smith put the desired date on the
card, he would hardly have overlooked the fact that Smith
mistakenly wrote 10 (October) in place of the II (Novem-
ber) on the card.
It thus appears that at best the Union was authorized by
27 out of the 59 employees, and therefore had not been
1072
HADDON HOUSE FOOD PRODUCTS, INC.
authorized by a majority in the bargaining unit at the time
of demand and refusal.
F. Did the LUnlawfully Discharged Employees Lose
Reinstaetenr Rights
Between the day of the mass discharge on November
14-starting on about November 18 and continuing
through as late as November 28-Respondent wrote a
number of letters addressed to the homes of both discharg-
ees and strikers. Appraisal of all the testimony and docu-
ments about this continuing campaign of letter writing
shows convincingly that it was aimed at confusing the en-
tire group, creating uncertainties in their minds as to what
the Company intended to do about them, and totally dis-
rupting the cohesive feeling that caused the union move-
ment to start in the first place and to progress into the
sympathetic strike action in protest against the illegal dis-
charges. Among these letters there was one sent to each of
the four warehousemen-Seppy, Spang, Reamer, and
McGettigan-dated November 24, saying, among other
things, "Your suspension is hereby rescinded," the "action"
would be removed from their "personnel file," and that
they were invited to return to work no later than 8 a.m. on
November 28. But with both the Andersons testifying so
clearly how the men had been discharged because of the
most offensive misbehavior possible on the job, the Compa-
ny's statements later that only "suspensions" were involved
immediately shows an absolute dishonesty in the writing of
the letters, and a picture of intended deception begins to
emerge. Removal of an entry from a man's personnel file
suggests clearing his record of disciplinary notices. But the
men were told that they were fired for lack of work or lack
of money. What were they to think when later told that
there had been something wrong in their conduct?
Two of the discharged women-Hurlbut and Andrews -
were sent written messages on November 28, saying now
that there was work available for them, and they should
return by 9 a.m. on December 1. November 28 was a Fri-
day, the women had to have babysitters before they could
go to work, and December I was Monday. On the face of
the thing, these were hardly what the Board deems proper
offers of reinstatement to employees who have been ille-
gally discharged. While Respondent asserts that it sent like
messages to the two other discharged women-Evans and
Hittner-it produced no evidence to prove what messages it
did send.
None of these eight ever appeared at the plant before
December 4, when the strikers also returned to work. Re-
spondent now argues that because they failed to make
timely offer of return-the four by early morning on No-
vember 28 and the women (only two of whom are shown to
have received any communication) by December 1, all
eight forfeited any right to reinstatement and all claims for
backpay, even assuming that they were victims of unfair
labor practices. On the total record I find no merit in this
contention.
In addition to its letters to six dischargees, Respondent
was sending multiple letters to many of the strikers. In evi-
dence there are copies of letters sent to nine of these, also
dated November 24. In each of them the man was told that
his "suspension" letters of November 18 and 20 were being
rescinded, and that they would be permitted to return to
work by 8 a.m. on November 28. Entirely apart from the
fact that a letter from an employer to a striker that he has
permission to abandon the strike by a day certainly carries
very confusing and coercive implications, this means that
the Company did write separate letters to at least nine strik-
ers, each time removing him from the payroll for being
engaged in a strike. There are other letters, also received in
evidence, sent to three additional strikers-Masi., McIntosh,
and Ritchie. Masi was told on November 20 that he was
suspended only while he refused to work; McIntosh was
told the same thing on November 18; and Ritchie, after a
November 18 letter saying that he was suspended, was told
by separate letter on November 20 that his suspension ap-
plied only while he refused to work and while he could be
replaced.'
With letters reflecting such shifting and conflicting posi-
tions on the part of the Employer, the strikers, as well as the
dischargees, were placed in the impossible position of not
being sure what Respondent was up to. It was to be ex-
pected, therefore, that Yeoman, looking after the strike on
behalf of the Union and believing that the Company was
thinking of restoring normalcy to the work operation and
maybe resolving all differences without further economic
conflict, would talk with Berman, the manager, to inquire if
it the intention of the Company to take everyone back to
work. He did that, and as he testified quite credibly, on
December I asked Berman why had some employees not
received letters, was it the intention of Respondent to take
"everybody" back, and Berman said yes. But on December
4, when the employees did try to go to work and were re-
fused admission, Yeoman asked Berman why this was hap-
pening, and, still according to his testimony, Berman said:
"I can only do what my lawyers told me and they told me
that we're not to allow the people to return to work because
they didn't return on the date the letter said they should
of." Yeoman even testified that he spoke to the company
lawyer that day, who told him: "They didn't show up on
the day that was on the letter and therefore we're not taking
them back." Yeoman denied any statement by the lawyer
about strikers wanting supervisors to be reinstated.
Berman gave differing versions of his talks with Yeoman
during those critical days. He said that on December 2,
when Yeoman said some "people" had not received letters,
he responded "everybody was supposed to get it," but
"with the exception of people called supervisors." Berman
continued that when Yeoman started talking about people
coming back to work, he told the union agent the lawyer
had advised the "people" had not returned on time, had
been replaced, and that he, Berman, would do only what
"I'm legally obligated to do." Berman continued that later
that day he called the lawyer and overheard the conversa-
tion between Yeoman and the lawyer, and that the lawyer
' An amendment to the complaint calls all of these suspensions violations
of Sec. 8(aX3) of the Act, and in a technical sense they were. But nothing of
significance would be added to the case were such precise findings made,
because as already explained, the strikers never ceased withholding their
services of their own ree will, but simply continued their strike. It is true that
the letters were at least violations of Sec. 8(aXl)-restraint and coercion
upon employees engaged in perfectly protected union and concerted activity.
I find that each of the letters telling a stinker he was suspended from work
was a separate violation of Sec. 8(al I).
1073
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said "there are some supervisors, and there may be some
problems with that."
Still according to the manager, Yeoman was back on De-
cember 3 to say "picket lines are down" and the people
would be back tomorrow, and that he answered "I am only
going to do what I am legally obligated to do at this point."
On December 4, when the Company refused to take anyone
back, if Berman is to be believed, he told Yeoman simply
that there was no available work for them.
But however vacillating the barrage of letters may have
been, most of them did end with clear invitations to come to
work. How did all this talk about "legal obligations" be-
come a part of Respondent's intentions if the letters were
meant to have any honest meaning? Berman did not say, on
December 4, even according to his story, that it was the "all
or none" attitude that foreclosed reinstatement of anyone.
Maybe some had been replaced, but there is no evidence all
had been replaced. His changing statements even those
days show once again that the Company never really in-
tended the clear language of its letters. I do not believe
Berman where his testimony conflicts with that of Yeo-
man.6
What this total picture proves to me is that Respondent
never intended to reinstate any of the eight persons who
had been illegally discharged, whatever its purpose may
have been in sending invitations to the strikers. The dis-
chargees stood in a different posture than did the strikers;
they were out on the sidewalk against their will. To them
Respondent owed clear and unequivocal reinstatement and
backpay as well. If some of them become confused after
seeing so many identical recall letters to the sympathy strik-
ers and formed the impression that the latter group was
going back to work, it was Respondent who deliberately
planted the idea in their minds. The technique also appears
clearly, considering all the evidence, as a device calculated
to create uncertainty in them, to scatter their brains so that
in some fashion a colorable defense might later be made to
the continuing liability for backpay damages. In such a
situation, no single phrase out of a single letter can be taken
out of context and given exclusively determinative weight.
In the turmoil thus engendered by the successive letters, it
cannot be said that the Company truly offered to undo the
injury it had caused. If Berman or the Andersons meant at
all to restore the status quo-with respect to the discharged
eight, all they had to do on the morning of December 4 was
come out to the sidewalk and tell each of the illegally dis-
charged persons that he or she would be put back to work
then and there regardless of what problems, legal or other-
wise, might be created by the mass return of the collective
strikers. Indeed, Berman, according to his story, only spoke
that day of there being no work for anyone. But an em-
ployee discharged in violation of Section 8(a)(3) of this Act
is entitled to reinstatement no matter how many persons
were later given his job.
6 During the first day of the hearing the lawyer, who spoke to Yeoman on
the telephone, tried to draw on cross-examination of the witness an admis-
sion that he was told by the lawyer that supervisors were involved; he failed.
On the seventh day of the hearing the same lawyer took the stand as Respon-
dent's witness. Shown what he then said was his contemporaneous office
memorandum of the critical telephone conversation and then asked what
had the conversation been, he said he could not remember! I credit Yeoman,
of course.
There was no true offer of reinstatement to the dis-
charged employees in this case; there was no refusal by any
of them to accept coherent offers of reinstatement; and Re-
spondent must be ordered to reinstate them unequivocally
now.
THE REMEDY
Having found that Respondent committed a variety of
unfair labor practices, it must be ordered to cease and desist
from such practices and to take necessary corrective mea-
sures to undo the effects of the misconduct to the extent
possible. It must stop threatening to discharge people; it
must stop telling people that their fellow workers are being
sent home only because of the union activities: it must stop
promising raises as inducement to prevent union activities;
and, of course, it must stop such multiple outright discharge
of prounion employees in the plant. Also, in keeping with
established practice, the Company must offer reinstatement
to all eight of the persons who were illegally discharged and
make them whole for any loss of earnings incurred in conse-
quence.
I think that the Charging Party is right in contending that
the unfair labor practices to which this Respondent resorted
to kill off the union campaign with finality-violent and
outright discharge of seven persons within hours of the
birth of the union campaign-were "so outrageous and per-
vasive" that an essential element of the remedial order must
include an affirmative order directing Respondent to bar-
gain with the Union now. I think that Respondent's reac-
tion to the union campaign and its total conduct as revealed
by the events of the time and the behavior of its representa-
tives at this hearing preclude any rational expectation that
a fair election among the employees can possibly take place
in the foreseeable future. It is now an accepted legal princi-
ple, as expressed by the Supreme Court in N.L.R.B. v. Gis-
sel Packing Co., supra, that when the unfair labor practices
committed by an employer are of "such a nature their coer-
cive effects cannot be eliminated by the application of tradi-
tional remedies, with the result that a fair and reliable elec-
tion cannot be had," an affirmative bargaining order is
appropriate "without need of inquiry into the majority sta-
tus." See also N.L.R.B. v. S. S. Logan Packing Company,
386 F.2d 562 (4th Cir. 1967), enfg. 152 NLRB 421.
I am convinced that anything short of a bargaining order
here assures Respondent of continued enjoyment of the
fruits of its extreme unfair labor practices. Extraordinary
cases justify extraordinary remedies. And as I read the
Board's recent decision in Steel-Fab, Inc., 212 NLRB 363
(1974), where the unfair labor practices found are so perva-
sive and outrageous as to demand a bargaining order, viola-
tion or no violation of Section 8(a)(5) is irrelevant. If the
refusal to bargain unfair labor practice is irrelevant there,
logically, it is irrelevant here.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section 11I.
above, occurring in connection with the operations of Re-
spondent described in section I, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
1074
HADDON HOUSE FOOD PRODUCTS, INC.
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CON(CLUSIONS OF LAW
1. By discharging Mark Spang. Charles Seppy, Kerrie
Hurlbut, Lois Andrews, Belinda Evans, Daniel McGetti-
gan, Robert Reamer, and Gloria Hittner for engaging in
union activities, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
2. By the foregoing conduct, by threatening to discharge
employees in order to prevent them from engaging in union
activities, by telling employees that their fellow workers
were being discharged in punishment for their union activi-
ties, by promising raises to induce employees to abandon
their union activities, and by telling striking employees that
they were being suspended for engaging in protected con-
certed activities, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)( 1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.[
1075