Han-Dee Pak, Inc.

National Labor Relations Board - Board Decisions

May 22, 1980

249 N.L.R.B. 725 (N.L.R.B. 1980)

HAN-DEE PAK, INC. 725
Han-Dee Pak, Inc. and Truckdrivers and Helpers
Local Union No. 728, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America. Cases
10-CA-13005, 10-CA-13233, 10-CA-13292,
10-CA-13441, 10-CA-13606, 10-CA-13638,
10-CA-13721, and 10-RC-11203
May 22, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On January 23, 1980, Administrative Law Judge
Julius Cohn issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, counsel for the Gener-
al Counsel filed cross-exceptions and a supporting
brief, and Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
We find merit in the General Counsel's cross-ex-
ceptions which claim that the Administrative Law
Judge erred in dismissing the allegation that Re-
spondent violated Section 8(a)(5) of the Act when,
subsequent to the election herein, it unilaterally
changed job classifications and rates of pay of bar-
gaining unit employees. The record shows that
such a reclassification did occur in April 1978 and
that, as a result, several employees received raises
and one employee, Wyvonia Dennis, received a
wage reduction. 3 Although Respondent presented
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces 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.
2 Respondent has not excepted to the Administrative Law Judge's con-
clusion that it has committed various independent Sec. 8(a)(1) violations,
and that by such conduct Respondent interfered with the election herein
In its exceptions with respect to the Administrative Law Judge's finding
that it violated Sec. 8(a)(l) and (3) by suspending and terminating em-
ployees Dennis and Stallings, Respondent claims that the Administrative
Law Judge erred in stating that there was no explanation for Supervisor
White's absence at the hearing. While the record shows that White no
longer was employed by Respondent, and that Respondent had subpen-
aed him to testify, the preponderance of the evidence. even absent any
adverse inference drawn from White's failure to testify, shows that Re-
spondent unlawfully suspended and discharged these two employees
I Although the General Counsel primarily addressed the unilateral
wage reduction for employee Dennis, he did present testimony regarding
249 NLRB No. 107
evidence that such unilateral changes were based
on business considerations, the record fails to show
that Respondent acted as a result of compelling
economic considerations. 4 Consequently, Respond-
ent acted at its peril in making such changes after
the election herein, but before the outcome of the
election had been determined.5 However, final dis-
position of this allegation is not yet possible, as de-
terminative challenged ballots remain outstanding.
Accordingly, we shall order that the complaint in
Case 10-CA-13721, alleging that such unilateral
changes are unlawful, be severed from the remain-
der of this proceeding, and that a final decision
thereon be postponed until the outcome of the
election is resolved.
We find merit to Respondent's exception which
contends that the challenge to the ballot of Bobby
Daniels should not be sustained. The record clearly
shows that Daniels had worked at the plant on a
part-time basis for over 3 years preceding the elec-
tion, typically a full day each week, and that his
duties included mowing the grass, cleanup work,
and various duties inside the plant. The record fur-
ther shows that all employees classified as mainte-
nance or cleanup employees are to be included
within the unit herein found appropriate. The Ad-
ministrative Law Judge found that due to addition-
al work performed by Daniels at the homes of Re-
spondent's president and vice president he was a
domestic employee. However, we find that the Ad-
ministrative Law Judge used an incorrect standard
for determining Daniels' eligibility. Where an em-
ployee is engaged in a dual capacity, his eligibility
is not dependent on where he spends the major
portion of his time. Rather, the sole consideration
is whether he works a sufficient amount of time
performing unit work to share a community of in-
terest with other unit employees.6 As the record
shows that Daniels had been performing unit work
on a regular part-time basis for a protracted period
of time prior to the election herein, we find that he
shares a community of interest with the other unit
employees. Therefore, we shall order that the chal-
lenge to his ballot be overruled, and that it be in-
cluded with the other ballots, which pursuant to
our adoption of the Administrative Law Judge's
the more general changes in classifications. In addition, Respondent intro-
duced evidence regarding the raises for the other employees pursuant to
such changes. Accordingly, the Administrative Law Judge was incorrect
in stating that the record presents only a bare complaint allegation.
4 In this regard, Respondent's alleged justification that it changed its
wage rates due to their closeness to the minimum wage rate provides no
support for its decision to reduce Dennis' wage rate
' See Mike O'Connor Chevrolet-Buick-GMC Co., Inc.. and Pat O'Connor
Chevrolet Buick-GMC. Co., Inc., 209 NLRB 701 (1974), enforcement
denied on other grounds 512 F.2d 684 (8th Cir 1975), where, as here,
challenged ballots were sufficient in number to affect the result of the
election
Berea Publishing Company, 140 NLRB 516 (1963).
HAN-DEE PAK. INC. 5
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision are to be opened and counted. 7 Accord-
ingly, we shall order that the representation pro-
ceeding be remanded to the Regional Director for
Region 10 for the preparation of a revised tally
and, depending on the outcome of the revised tally,
the issuance of a certification of representative or
the direction of second election.8 Further, we shall
order that the Regional Director shall notify the
Board of the results of this revised tally of ballots
and the appropriate action following therefrom, so
that the Board may determine the disposition of the
unfair labor practice allegations regarding Re-
spondent's post-election job reclassifications and
wage changes, as discussed above.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Han-Dee Pak,
Inc., Doraville, Georgia, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for the last four para-
graphs of the Administrative Law Judge's recom-
mended Order:
"IT IS FURTHER ORDERED that the complaint in
Case 10-CA-13721 be severed from the remainder
of the present proceeding, and that the National
Labor Relations Board retain jurisdiction over that
complaint, pending notification of the results of the
revised tally of ballots in Case 10-RC-11203, and
appropriate action following therefrom.
"IT IS FURTHER ORDERED that Case 10-RC-
11203 be remanded to the Regional Director for
Region 10 and that the challenges to the ballots of
Ernest Frost, Thomas Morgan, Dennis Larkin, Mi-
chael Rutledge, Marvin Cowart, Morris Sargent,
Dwayne L. Shattuck, and Shirley Wilson be sus-
tained. The Regional Director shall open and count
the ballots of Evelyn Jean Smith, Carol Kopis,
Vickie Middlebrooks, and Bobby Daniels and pre-
pare and cause to be served on the parties a revised
tally of ballots. In the event that the Union re-
ceives a majority of the valid votes cast, according
to the revised tally, the Regional Director shall
issue a certification of representative. Should the
revised tally not result in such certification, the
election in Case 10-RC-11203 shall be set aside
and a second election shall be conducted as early
as possible thereafter.
7 These consist of the ballots of employees Evelyn Jean Smith, Carol
Kopis, and Vickie Middlebrooks.
8 See fn.2, supra.
"IT IS FURTHER ORDERED that the Regional Di-
rector shall notify the Board of the results of the
revised tally of ballots and the appropriate action
following therefrom."
2. Substitute the attached notice for that of the
Administrative Law Judge.
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 sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT coercively interrogate em-
ployees concerning their union activities.
WE WILL NOT threaten to close our plant if
employees select Truckdrivers and Helpers
Local Union No. 728, affiliated with the Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as their collective-bargaining representative.
WE WILL NOT threaten employees with loss
of their jobs and discharge if they select said
Union as their collective-bargaining repre-
sentative.
WE WILL NOT warn employees and threaten
them with discharge for discussing wages
among themselves.
WE WILL NOT maintain a rule prohibiting
employees from wearing union buttons and in-
signia while at work.
WE WILL NOT suspend or discharge or oth-
erwise discriminate against any employee be-
cause of that employee's union activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section
7 of the Act.
WE WILL offer Vickie Middlebrooks, Gloria
Layman, Wyvonia Dennis, and Shirlene Stall-
ings immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or other rights and
privileges and WE WILL make them whole for
any loss of earnings with backpay, plus inter-
est.
HAN-DEE PAK, INC.
HAN-DEE PAK, INC. 727
DECISION
STATEMENT OF THE CASE
JULIUS COHN, Administrative Law Judge: This pro-
ceeding was heard at Atlanta, Georgia, during January
8-12, 1979. Commencing on August 15, 1977, and there-
after, Truckdrivers and Helpers Local Union No. 728, af-
filiated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, filed a series of charges upon
which the Regional Director for Region 10 issued com-
plaints which were finally consolidated by order dated
July 5, 1978. The complaints alleged various violations
by Han-Dee Pak, Inc., herein called the Respondent or
the Company, of Section 8(a)(1), (3), and (5) of the Act.
A petition in Case 10-RC-11203 having been filed by
the Union on August 26, 1977, pursuant to a Stipulation
for Certification Upon Consent Election approved Octo-
ber 27, 1977, an election by secret ballot was conducted
November 18, 1977, among the employees in a stipulated
appropriate unit. The tally of ballots revealed that, of ap-
proximately 163 eligible voters, 73 cast votes for, and 74
cast votes against, the Union and 12 ballots were chal-
lenged. The challenged ballots accordingly were suffi-
cient to affect the results of the election. Thereafter, on
November 22, the Union filed timely objections to the
election. The Regional Director, having found that the
issues raised by the objections and challenges may best
be resolved by a hearing, issued an order consolidating
those matters on January 19, 1978, with the then consoli-
dated unfair labor practices complaints.
Respondent filed an answer denying the commission of
unfair labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. The
General Counsel and Respondent submitted briefs which
have been carefully considered. Upon the entire record
in the case and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent, a Georgia corporation, had an office and
place of business at Doraville, Georgia, where it is en-
gaged in the manufacturing, packaging, and sale of food
products. During the calendar year preceding the issu-
ance of the complaints herein, Respondent sold and
shipped food products valued in excess of $50,000 direct-
ly to customers located outside the State of Georgia. The
complaint alleges, Respondent admits, and I find that it is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Is engaged in the manufacture, packaging,
and sale of condiments and food products such as ket-
chup and jelly, which it sells to airlines and fast food es-
tablishments. The packaging is done by special machin-
ery operated by its employees. It has plants in Dallas,
Texas, and Doraville, Georgia, the latter being the only
plant involved herein.
In 1976 the Union conducted an organizational cam-
paign at the Doraville plant which culminated in an elec-
tion. These events gave rise to an unfair labor practice
complaint as well as objections to Respondent's conduct
preceding the election, resulting in findings by the Board
that Respondent had violated Section 8(a)(1) and (3) of
the Act.' Some of the events detailed herein occurred
both before and after the Board's Decision in that case.
The Union continued its campaign and filed the peti-
tion in the instant case on August 26, 1977. Involved
herein are not only objections filed by the Union to the
election which are coextensive with certain alleged vio-
lations of Section 8(a)(1) of the Act, but also other con-
duct of Respondent alleged to be unlawful under Section
8(a)(1), (3), and (5) occurring both before the filling of
the petition, after such filing, and after the election itself,
including interrogation of employees, threats to close and
move the plant, threats of loss of jobs, unlawful rules,
and suspension and discharge of employees, and, finally,
unilateral change in job classifications.
B. The Supervisory Status of Certain Leadmen
During the spring and summer of 1977 Respondent ap-
pointed six of its employees to the position of leadman. 2
The General Counsel urges that Frost and Morgan are
statutory supervisors, as they are involved in a number
of alleged violations of Section 8(a)(1) of the Act.3
Morgan and Frost work in the production area on the
first shift and were appointed leadpersons in May and
July 1977, in fill rooms one and two, respectively. They
had previously been machine operators. As leadpersons
they are responsible for the equipment, including change-
overs on the machines and repairs, and in addition have
responsibility for getting out the work scheduled to be
run on any particular day.
According to Sorita Lackey, supervisor of the first
shift, she was responsible for five fill rooms, each being a
physically separate room involved in production. There
were 14 employees in fill room one where Morgan, her
brother-in-law, was leadman, while fill room two em-
ployed 24 people in which Frost was the leadman.
Lackey stated that she spent her time going from room
to room and was responsible for overall production as
well as 50 employees. Indeed, she stated that the lead-
232 NLRB 454 (1977).
2 They are Ernest Frost, Tommy Morgan, Dennis Larkin, Mike Rut-
ledge, Marvin Cowart, and Morris Sargent, all of whom were challenged
by the Union at the election in November 1977 as being supervisors
within the meaning of the Act.
3 James Coulter and John Gentry are admitted supervisors, as is Susan
Porter, personnel director.
HAN-DEE PAK, INC. 727
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men were necessary because there was too much work
for I supervisor over 50 people.
The record reveals that a production scheduler pre-
pares and posts a daily production schedule for each ma-
chine on each shift. The production supervisor, Lackey,
in the case of Morgan and Frost, would in turn draw up
schedules for the shift indicating machine assignments for
the employees. These are given to the leadmen who see
to it that the employees operate the machines or perform
whatever other job they have been assigned. In the event
of a stoppage, the leadmen will adjust or repair the ma-
chine if possible. In the interim, if a machine is down,
the leadmen assigns other work, if available, to the em-
ployee. As leadmen are responsible to keep production
flowing, they regulate employee breaks, and provide for
their relief to keep the machine operating either with
other employees or by filling in themselves as needed.
Leadmen are responsible for reporting rule infractions to
the supervisor such as refusal to perform work, or re-
turning late from breaks. In the latter connection, al-
though Lackey stated that the Leadmen are required to
report a person returning later from a break in all cases,
it is clear that they exercise some discretion in doing so
in the event that the employee is only slightly late.
Leadmen are hourly paid, receiving of course a higher
rate than production employees. Leadmen receive the
same benefits as other employees, while supervisors are
salaried and entitled to additional fringe benefits. In the
event of any argument or work problems with an em-
ployee, the leadmen report the incident to the supervisor,
who will take over and make an investigation and deter-
mination of the dispute or problem. Leadmen have and
have not been present when employees are disciplined by
supervisors.
There is no evidence in this record that Leadmen have
hired or fired employees or disciplined them in any
manner. However, a number of employees testified that,
at the times of the appointments of Morgan and Frost,
they were called to meetings by Supervisor Lackey who
told them in effect that Morgan and Frost had the au-
thority to fire. Thus, Linda Posey testified that she was
called to a meeting in April at which Lackey told the
employees that she wanted to make it clear what Mor-
gan's duties were, that he has the authority to fire them
and tell them to hit the clock if they did not do what he
said. Lackey said that she wanted their cooperation
with him because he worked under her direct orders.
Employee Winnie Bodine testified to the same effect.
Joan Morgan, another employee, related that Leadman
Morgan called Lackey after she had refused a job assign-
ment from him and Lackey reprimanded her, threatened
her with discharge, and said that Tommy Morgan was in
charge and he could tell employees what to do and that
he was the boss. Vickie Upkins testified that, at a meet-
ing in August, Lackey told the employees that Morgan
was their leadman and that he had the right to fire.
Thereafter, about 2 weeks before the election, Upkins
missed a day's work and Morgan told, her that if she
stayed out again within the next 6 months he was going
to fire her.
Finally, employee Katy Brinson stated that Lackey
told the employees at a meeting that they had to do
whatever Morgan told them to do so he had the right to
fire them. Brinson also said that, on occasions when em-
ployees would protest taking a break at times other than
their regular breaktime, Morgan would tell them either
to take a break now or "hit the clock." At another time
when Brinson had words with Morgan over a gesture he
made and told him to stop, Morgan retorted that if he
could not play with her like some of the other employ-
ees, she could hit the clock.
As to Frost, Posey testified that a few weeks before
the election she was discussing union with Frost and
asked if he would vote. He said no because he had been
told he had the right to fire. Posey also stated that, al-
though Frost and Morgan continued to work on ma-
chines after becoming leadmen, they stood around a cer-
tain amount of time and would tell someone else what to
do. Gloria Layman, one of the alleged discriminatees
herein, testified that Lackey introduced Frost as the
leadman and told the employees that he had as much au-
thority as she had and that they should do as he told
them. Layman overheard Frost telling another employee,
Rutledge, that he could not vote for a union because he
was a leadman but, if he could vote, he would vote no.
Carol Kopis, one of the employees found to have been
discriminatorily discharged by the Board in the prior
case, had a conversation with Frost a few weeks before
the election. She called Frost to ask for his support in
the upcoming election and he told her that he would not
be allowed to vote because he had been placed in charge
of fill room two and had been given authority to fire.
Frost also told her that he was not supposed to have
voted in the previous 1976 election, that he had been sal-
aried then, but immediately afterwards had been put on
the clock. On cross-examination, Kopis credibly testified
that she pressed Frost on the question as to whether he
would be able to vote. He said that he was positive and,
although he did not practice it, he had been given the
authority to fire employees. Employee Phyllis Brown
also testified that, at a meeting of employees, Lackey
told them that Frost had been appointed a leadman and
he had the right to hire and fire.
In resolving the issue of the supervisory status of
Morgan and Frost, I credit the testimony of the employ-
ee witnesses wherever there may be any conflict be-
tween their statements and those of Frost, Morgan, or
Lackey. The employees testified in a serious, forthright
manner while on the other hand, Morgan and Frost were
less than candid. For example, while Morgan, did not
deny the testimony of employees that he often told them
to hit the clock, he said if he did say something to that
effect, it was merely in jest. He also stated he may have
told somebody he would fire them, but it was a joke.
Frost does not deny specifically the testimony of Kopis
concerning his voting eligibility since becoming a lead-
man, he merely admits having the conversation with
Kopis, but does not recall what was said.
I find, on the basis of all the evidence, that Morgan
and Frost were supervisors within the meaning of the
Act. While it is undoubtedly true that they had little op-
portunity to hire, fire, or even discipline employees, it is
sufficient that they possessed the necessary authority
even though they were not called upon to exercise it.
HAN-DEE PAK, INC. 729
This indeed is the significance of Kopis' credited testimo-
ny concerning her telephone conversation with Frost.
The conclusion from his statement is that he had been in-
formed by Lackey or management that he was indeed a
supervisor. Further, reliance is also placed on the testi-
mony of Lackey, the supervisor of the entire first shift,
who acknowledge that the leadmen were appointed be-
cause 50 people divided in different rooms were too
large a number for her to supervise effectively. In addi-
tion, there is evidence that Frost nd Morgan exercised
independence of judgment particularly in connection
with the deployment of personnel in the event of a
breakdown or a stoppage of a machine, not an infrequent
occurrence. The leadmen reported infractions of rules
which often led to discipline and I do not credit the tes-
timony of Lackey and other supervisors who infer these
determinations were made without reliance upon their
recommendations. Finally, the leadmen were responsible
for the flow of production and directed the employees
for that purpose. Accordingly, I find that both Frost and
Morgan are supervisors within the meaning of the Act.
Assuming, however, that Morgan and Frost are not
supervisors within the meaning of the Act, it is neverthe-
less clear that Respondent has placed them in a strategic
position where employees could reasonable believe that
they speak on its behalf. By virtue of the testimony of its
own witnesses, particularly Lackey, the leadmen have
been made a conduit for the passage of orders from
higher supervision to the employees. Their duties, which
involve reporting rule infractions to the supervisors,
changing work assignments when required, calling for
replacements as needed, and generally transmitted infor-
mation from and to the supervisors, lead me to conclude
that the leadmen have close ties with mangement. From
this and noting the activities in which they engaged
during the union campaign which will be detailed later,
the employees could reasonably believe that the leadmen
were acting upon instructions from Respondent. I find,
therefore, Frost and Morgan are agents of Respondent
and it is responsible for their actions in their capacity as
leadmen. 4
C. The Alleged 8(a)(1) Violations
Vickie Middlebrooks, an alleged discriminatee, testi-
fied that she had signed a union authorization card in
1976 before the first election and thereafter signed an-
other one in the spring of 1977. About 2 weeks before
she was discharged in April 1977, James Coulter, a su-
pervisor, asked her in the warehouse whether she had at-
tended any meetings. She replied that she had, and he
then asked if she signed a card for the Union to which
she again said she did. Coulter proceeded to ask her how
she was going to vote and she told him she would vote
yes. Coulter denied having talked to Middlebrooks about
the Union in April. In this respect, I credit Middlebrooks
who testified in a forthright manner and particularly note
that, in the prior case, Respondent had been found to
have violated the Act as a result of Coulter's conduct in
4 Broyhill Company, 210 NLRB 288, 294 (1974): N.LR.B v. Dayton
Motels, Inc., d/b/a Holiday Inn of Dayton, 474 F.2d 328. 330 (6th Cir.
1973).
a similar manner. I find no merit to Respondent's conten-
tion that this was an unlikely incident because the elec-
tion herein did not take place until November. It is clear
that the campaign was an ongoing proceeding as the case
arising from the earlier part of the union campaign and
1976 election had not been finally determined by the
Board at the time of the interrogation. Accordingly I
find that, by virtue of Coulter's conduct in coercively in-
terrogating Middlebrooks in April 1977, Respondent vio-
lated Section 8(a)(1) of the Act.
In August 1977, Shirley Wilson signed a union card.
Two days later Frost asked her if she had signed a card
and she replied yes. He then told her that, if the employ-
ees had anything to do with the cards, they were going
to be in trouble about it. Wilson testified credibly while
Frost did not allude to this incident in his testimony.
Indeed, Respondent's position concerning the alleged
violations of Section 8(a)(l) by leadpersons was merely
that they are nonsupervisory employees and their acts
are not imputable to Respondent. Having found that
Frost was a supervisor and an agent, I further find that
Respondent additionally violated Section 8(a)(1) of the
Act by his unlawful interrogation of Wilson and by his
threatening trouble to employees who signed union
cards.
Vickie Upkins testified that about a week before the
election Morgan asked her how she would vote. She re-
fused to tell him. Morgan then said if the Union came in
the plant would be closed and shipped back to Texas.
Upkins' testimony is uncontroverted in the record and I
find that Respondent further violated Section 8(a)(1) by
virtue of Morgan's coercive interrogations and threat of
plant closure.
About 3 weeks before the election, according to em-
ployee Joan Morgan, Leadman Morgan, in the presence
of several employees, said that, if the Union got in, the
plant would close and move to Texas and people would
be laid off and fired. These threats of plant closure,
layoff, and discharge further violated Section 8(a)(1) of
the Act.
About a week before the November 18 election,
Morgan told Winnie Bodine that, if they voted in the
Union, none of the girls would have a job the next
Monday. Similarly, Morgan told Gloria Layman during
that week that there was not going to be anybody left on
Monday morning but him, this being in connection with
the employees talking about voting in the Union on
Friday. Employee Brinson also testified that, during the
second week in November, Morgan was talking to a
group of employees and told them, if the Union came in,
they would all be fired Monday after the election. Again,
these statements of Morgan to employees convey threats
of discharge in violation of Section 8(a)(l).
Frost was involved in similar type threats and state-
ments, and was responsible for most of the statements re-
garding going to Texas. Of course this was in context of
Respondent closing the Georgia plant if the Union won
the election and moving it to Texas where it owned an-
other plant. Frost would come into the plant wearing a
cowboy hat to symbolize the move to Texas after the
plant in Georgia closed. Incidentally, there is no dispute
concerning this as Frost admitted wearing a cowboy hat
HAN-DEE PAK, INC.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the plant. Frost's remarks concerning removal to
Texas were repeated by him during the weeks preceding
the election to a number of employees and I find that
they relate to plant shutdown, loss of jobs, and removal
to Texas, all being threats in violation of Section 8(a)(1)
of the Act. Finally, around November 10, Frost spoke
with Gloria Layman in fill room 2, and asked her how
she liked the "vote no" sign in the warehouse. Layman
replied that she guessed it was all right but she was
going to vote yes. Frost then told her that people who
are pushing the Union are going to be on a sliding board
to the slaughter house. In this conversation Frost not
only engaged in coercive interrogation but also threat-
ened discharge of employees if the Union were success-
ful. 5
On or about November 28, Gloria Layman had a con-
versation with an employee, Chris Roach, in which she
repeated a statement made by Upkins to the effect that
she received a raise giving her more money than Roach
for the same job. The next day Lackey told Layman to
see Susan Porter, director of personnel. According to
Layman, Porter said Roach had been upset to hear from
Layman that Upkins was making more money than she.
Porter told Layman she was giving her a letter for ha-
rassment and directed her not to discuss wages or this
conversation or the letter itself with anyone. She further
said that Layman would be fired if she did so. Actually,
on November 30, Porter gave Layman a letter of warn-
ing in the presence of Lackey, Finkle, Layman's supervi-
sor, and Darrell Shattuck, vice president. Layman pro-
tested to Shattuck that, while she may have been guilty
of gossip, she was not involved in harassing anyone.
Shattuck replied he could not afford such gossip and,
when Layman requested that he bring in Brinson and
Upkins to see if this were true, he refused to do so. The
letter of November 30 handed to Layman which is
signed by Porter and Shattuck confirms the above facts.
While Respondent contends that its discipline of
Layman was caused by the latter having unduly harassed
a fellow employee, Roach, a review of the testimony of
Porter herself indicates that this is not entirely free from
doubt. Whether Roach felt harassed is of course a sub-
jective conclusion. Based upon my observation of Roach
and her demeanor, and noting that Porter actually
showed Roach the payroll records which revealed her
rate of pay was indeed the same as Upkins, it is difficult
to believe that she really felt harassed by Layman's ap-
proach to her, particularly as they were longtime friends.
However, the fault in Porter's conduct toward Layman
is that it mixed the concept of harassment with interfer-
ence with Layman's right to engage in concerted activi-
ty. Porter testified she told Layman is that it mixed the
concept of harassment with interference with Layman's
right to engage in concerted activity. Porter testified she
told Layman not to get into a conversation with Roach
about her wages, that it would be okay if somebody
came up to Layman and wanted to talk about her rate of
wages, but Roach had not approached her and therefore
I As in the instance of Morgan, Frost testified but did not refer to
these statements found to be in violation of Sec. 8(a)(I). Respondent's
only contention in this regard is that Frost and the other leadmen are not
supervisors and therefore it was not responsible for their conduct.
she should not approach Roach. In addition, the written
warning to Layman stated, "other persons' wages are
none of your business, and are not to be discussed by
you with them." It is also noted that two other employ-
ees were involved with Layman in the so-called harass-
ment of Roach and they received no discipline. In this
connection Porter testified at one point that Roach told
her that two other girls had asked her why she had not
gotten her pay rate straightened out. When Layman pro-
tested that some of the others should get warnings
Porter told her that Roach said that no one directly ap-
proached her except Layman. I find in all the circum-
stances that Respondent violated Section 8(a)(1) of the
Act by warning Layman against discussing wages with
other employees, a protected concerted activity, by issu-
ing a warning of discharge to Layman because of her
action, and by seemingly promulgating a rule prohibiting
such discussions.8
The General Counsel has alleged that Respondent vio-
lated Section 8(a)(l) of the Act by maintaining a rule in
its handbook as follows: "Employees are not permitted
to wear signs, stickers, buttons, or any other form of
adornment on clothing or hats while on company prem-
ises other than official company emblems or logos." Per-
sonnel Director Porter testified that the rule was main-
tained for quality control purposes, the company being
concerned that some one of these items might drop off
into the food. Porter also stated that she was not aware
of anyone ever being disciplined under the rule. As to
the latter, the General Counsel has not urged any viola-
tion with regard to enforcement of the rule. I find that
the rule is overly broad and Respondent has not estab-
lished that all the specific items mentioned and prohibit-
ed by the rule, as well as "other adornment on clothing
or hats," would actually result in quality control prob-
lems as contended. In any case the record is clear in con-
nection with other matters that the leadmen, for exam-
ple, wore cowboy hats while working despite the fact
the employees were required to wear special hats pro-
vided by the Company. Employees have the right to
wear insignia on behalf of the Union unless the Company
establishes special circumstances which Respondent has
not done in this instance. Accordingly, by maintaining
this overly broad rule, I find Respondent violated Sec-
tion 8(a)(l) of the Act.7
Finally, the General Counsel has alleged violation by
Respondent of Section 8(a)(l) of the Act by reason of
Supervisor John Gentry telling employees of the futility
of selecting a union. One of the alleged discriminatees
herein, Stallings, testified Gentry told her he had been in
a union before and the union did not do anything but
take dues and it was up to the Company to negotiate
changes. Gentry then spoke to the same effect at a meet-
ing a half hour later.
Gentry testified that at a meeting he told employees he
had been in a union, and it did not help him, that when
the Union was voted in, they would have to have a ne-
gotiated contract. There appears to be no basic conflict
6 See Richard M. Brown, D. O and Donald R. Janower. D. O.. a Co-
Partnership d/b/a Park General Clinic, 218 NLRB 540 (1975).
Davison-Paxon, Company. a Division of R. H. Macy and Company,
Inc., 191 NLRB 58 (1971).
HAN-DEE PAK, INC. 731
between the testimony of Stallings and Gentry. I find in
these circumstances Gentry has merely expressed his
own opinion and his statements were protected by his
right of free speech under Section 8(c) of the Act. I
therefore dismiss the allegation in the consolidated com-
plaint with respect to the above-noted remarks of John
Gentry.
D. The Alleged 8(a)(3) Violations
1. Vickie Middlebrooks
Middlebrooks was employed by Respondent from
March 1976 until April 22, 1977, when she was terminat-
ed.8 She had signed union cards before the first election
and shortly before she was terminated. It will be recalled
that she was the subject of interrogation by Supervisor
Coulter approximately 2 weeks prior to her discharge.
Middlebrooks had injured her back about 2 days before
her termination and was under the care of the company
doctor. Because of this she was given light duty. On
April 22, she was working in the warehouse going
through a box of ketchup packages looking for leakers.
Before going on her lunch break she told Coulter she
needed some help in this work and he said he would get
it for her after lunch. That day Middlebrooks went to
lunch with her sister who was employed in fill room
two. She stated that she only stayed 15 minutes on her
break but was met by Coulter as she was returning down
the stairs who told her to clock out and go home. At
that, she asked him if she was being fired and he said, "I
guess so." Coulter told her that she had been on break
for 45 minutes and she insisted it was only 15 because
she had checked the clock. Middlebrooks said that on
the day of her discharge she had no arguments or words
with her supervisor nor did she refuse to perform any
work assignments.
Coulter testified that Middlebrooks was not a good
employee during the year she worked under his supervi-
sion. He stated that, no matter what they gave her to do,
they could not please her, that she would frequently
walk off to the bathroom for a lengthy period of time.
He said on the day of her discharge he returned from
lunch and found she was not working. About 5 minutes
later he returned and she was not there and he could not
find her until about 20 minutes after her lunch break,
when he saw her sitting in the lunchroom and asked
what she was doing. She retorted with a smart remark.
He said he told her she was expected back on the job
and this was now 20 minutes past that time.
Middlebrooks had received three warnings for absen-
teeism and tardiness prior to the discharge, one as recent
as April 13. But Respondent's report to the State of
Georgia, pursuant to the Employment Security Law,
states that Middlebrooks was terminated "due to insubor-
dination and refusal to perform duties assigned."
I find under all the circumstances that Middlebrooks
was terminated because of her union activities. Respond-
ent was aware of her sympathy as a result of the interro-
gation by Coulter 2 weeks before her discharge. While
Middlebrooks' record as an employee may have not been
8 At the time of the hearing Middlebrooks was known as Washington.
exemplary, I am persuaded that Respondent's reasons for
terminating her were pretextual. Middlebrooks credibly
testified that Coulter informed her she was being dis-
charged because of her lateness in returning from the
lunchroom break. Nevertheless Respondent stated in
writing to the State of Georgia that she was terminated
for insubordination and refusal to perform duties. There
is nothing in the testimony of Coulter to reflect that
Middlebrooks had refused any orders or would not per-
form the job to which she had been assigned. Other than
her lateness, the only thing referred to by Coulter was
that she retorted with a smart remark when he called her
for being late.
With regard to the lateness, there is no evidence to in-
dicate that any action was taken toward Middlebrooks'
sister who was with her at the luncheon break and pre-
sumably was just as late in returning as Middlebrooks.
Respondent also relies, as it did in discussing the unlaw-
ful interrogation of her by Coulter, on the fact that no
particular election was scheduled in April. I find this to
be without merit for the reasons stated above. At this
point, the first election had not been definitely decided
and in any case this situation presents an ongoing matter
from the time of the 1976 campaign through the election
in that year and the one in 1977 and thereafter. Accord-
ingly, I find that, by its discharge of Middlebrooks, Re-
spondent violated Section 8(a)(1) and (3) of the Act.
2. Gloria Layman
Layman was employed in mid-1976 and terminated on
January 31, 1978. As noted above, she had been the sub-
ject of coercive interrogation by Frost just prior to the
election in November 1977 and had informed him she
was going to vote yes for the Union. She was also in-
volved, as detailed at length above, in the wage rate inci-
dent regarding Roach, an activity which I found to have
been protected.
On January 12, 1978, Layman became ill while at
work. She went home, saw her doctor, and the following
day required hospitalization. She remained in the hospital
until January 20, and during that period either her
mother or sister called in to the plant. She herself called
her supervisor, Finkle, on January 25 telling her that she
was still sick but could return to work the following
Monday. Layman obtained certificates from her doctor
for the period from January 13 to January 23 when she
was in the hospital and her continuing illness from Janu-
ary 23 to January 30 when she was at her mother's
house. On January 25 when she called, Finkle asked her
for the doctor's certificates stating that she had to re-
ceive them by the next morning or Layman would be
terminated because of the rule in the employee's hand-
book. Layman protested that she was unable to bring
them in because she could not drive and was staying
with her mother 20 miles away from the plant. Layman
states that Finkle did not tell her to put it in the mail but
rather said she could not walk in on Monday, hand over
the doctor's certificates, and then everthing would be all
right. Finkle told her if she read her handbook, she
would know the doctor's excuse had to be in by 10 days
and that was the rule. Layman said she would be in on
Monday with the excuses but Finkle told her if she did
HAN-DEE PAK, INC.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not have them there by the following day, Thursday
morning, she was fired. As a result, Layman stated that
she believed she had been terminated and did not go in
the following Monday.
Respondent wrote to Layman on January 31, detailing
in length what had occurred during the period of her ill-
ness and informing her that she was terminated because
of her failure to report to work or comply with the rules
regarding extended sick leave. Respondent annexed a
copy of the extended sick leave rule to the letter. This
rule constituted an amendment to the handbook by re-
quiring that notice of extended illness be received by the
Company within 10 work days of the employee's last
day of work. This request must be in the form of a cer-
tificate from the doctor.
Finkle testified at some length regarding this matter
and her version of the January 25 telephone call varies in
that Finkle states that she read portions of the extended
leave policy to Layman over the telephone, but never-
theless told Layman she could mail in the doctor's
excuse. Layman replied she had no way of getting a
stamp or of having any other person deliver it for her at
that time. Finkle further stated she then suggested it
would be acceptable if Layman brought the excuse with
her on Monday when she returned to work and then
Layman said that she would do so. Finkle denied saying
anything about firing Layman or in any way talking
about a possibility of her termination.
Susan Porter, the personnel manager, testified that the
extended leave policy referred to in these conversations
represented an amendment to the handbook distributed
to employees when they were hired. She states that this
amendment was put through in the spring of 1977,
posted on the bulletin board, and delivered to each em-
ployee with their paycheck at the time. Layman and
other employees testified at the hearing that they were
unaware of this and did not recall receiving a copy of
the amendment.
I credit the version of Layman with regard to the tele-
phone call of January 25 with Finkle. Both agreed that
Layman called to say she would be in on Monday. If
Finkle had told Layman, as she contended, that it would
be all right to bring the doctor's certificate on Monday
when she reported to work, there would have been no
need for the extended conversation concerning the re-
quirement of Layman promptly delivering them in ac-
cordance with the amended leave policy. Moreover, the
very fact that Layman was calling to say she would be
in Monday negates the impression, as Respondent set
forth in its letter of January 31, that it appeared Layman
did not want the job. Finally I note that, unlike the work
records of other employees involved herein, Finkle
stated Layman was indeed a very good employee. Al-
though Finkle said she was aware of Layman's previous
discipline arising out of the alleged harassment of Roach,
but it was not a consideration in her decision to dis-
charge Layman, I find this to be incredible in view of its
recency and apparent importance to Respondent. In all
the circumstances, I find that Layman had been informed
by Finkle she should consider herself terminated if her
doctor's excuses were not in by the day after the phone
call, a condition with which Layman was physically
unable to comply. In view of her previous protected ac-
tivity, and the Company's knowledge of her union activi-
ty as a result of her being interrogated by Frost, I find
Respondent terminated her for those reasons rather than
because of the failure to comply with the leave policy.
In this latter connection it is also noted that Porter ad-
mitted that the leave policy, which was presumably to be
strictly construed, was not applied in the case of another
employee, indicating that Layman had been treated dis-
parately. Accordingly, I find that Respondent violated
Section 8(a)(1) and (3) by virtue of its discharge of
Layman.
3. The discharges of Wyvonia Dennis and Shirlene
Stallings
Dennis was employed by Respondent in November
1975 as a jelly packer and eventually became the ma-
chine operator in the towelette department.9
During the union campaign in 1977, Dennis distributed
authorization cards to employees, informed them about
the union meetings, and eventually was a union observer
at the election. She also testified, without contradiction,
that she had told a leadman, Davis, that it would be a
good idea if the Union came in because the employees
would have more rights. This occurred after the elec-
tion.
Dennis testified that on April 24, 1978, she was making
boxes with Stallings. They went to the breakroom about
8:45 p.m. and at 8:50 p.m., White, a supervisor, came to
the area and said he wanted to see them in Jim Cham-
bers' office. He told them he had heard they had been on
a previous break for 1 hour and already were out for
their second break 45 minutes. Dennis told him they had
not been out those amounts of time on either the first or
the second break. White then said he was going to lay
them off 3 days. She attempted to tell him that he should
not do that because other boxmakers had longer breaks.
White replied he was not concerned about other people
and she should not be getting smart with him. He then
told them that since they were refusing to work, they
were terminated.
Dennis said, when they work as boxmakers, they also
have to relieve other people for their breaks. On this par-
ticular night, they had relieved employees and had also
caught up with their work as boxmakers. She stated that,
while working in this capacity, it is common for the em-
ployees to take longer breaks while they are waiting.
Dennis said she had gone for the first break at 6:45 p.m.
and stayed for 30 minutes. On the second break at 8:45
p.m. White came for them after only 5 minutes. Dennis
insisted she had not told White she was refusing to go
back to work but merely said she thought they should
not have to finish the rest of the shift because of the 3-
day layoff.
9 The General Counsel has alleged that Respondent violated Sec.
8(a)(3) of the Act by abolishing the towelette operator position on about
April 6, 1978, thereby causing Dennis to suffer a reduction in wages.
Since this change in classification is also the subject of a subsequent
8(a)(5} complaint involving the towelette operator job and others, I shall
discuss Dennis' change in classification in connection with the (a)(5) al-
legation.
_ ._
HAN-DEE PAK, INC. 733
Stallings had been employed since March 1977 as a
machine operator. On the day of her discharge she was
making boxes with Dennis. During the union campaign
she wore a union pin and distributed authorization cards
and booklets in the parking lot. Stallings testified to a
similar effect as Dennis. She stated that, on the first
break at or about 6:45 p.m., they stayed out until 7:15
p.m. because they were caught up making their boxes
and nobody said anything to them about it. The next
break was 8:45 p.m. and 5 minutes later White came in.
In the office he said he was going to lay them off for 3
days and Stallings said that they had only been there for
5 minutes but White said that he heard that they were
there for 15 minutes. Dennis asked if he meant that they
should go home that night. White then replied that they
were refusing to work and were terminated; he did not
give them a chance to say anything else.
White, who did the talking during the incident and
discharge of Dennis and Stallings, did not appear and
testify at the hearing. However, Morris Sargent, previ-
ously a leadman but then a supervisor, was present with
White and he testified. He said that, on the date of the
discharge, his leadman, Cowart, told White and him that
the two had stayed too long on their first break, having
returned approximately 30 or 40 minutes late. They de-
cided not to do anything about it but to watch them on
the next break. He and White saw them going on break
at 8:15 p.m. and they waited until 9:05 p.m. but Dennis
and Stallings had not yet returned. White went up and
asked the two employees to come to the office where he
explained to both what had been observed. White told
them they had received formal warnings and verbal
warnings and now he was going to discipline them by
giving them a 2-day layoff beginning the next day; and
they should finish their work for the night. Dennis said
that, since she was going to be laid off, she should not
have to go back to work that night. White then asked if
they were refusing to go back to work and Dennis said
yes. White also asked Stallings and she replied yes.
White said if they refused to go back to their jobs there
was no choice but to terminate them. The employees
then left. Sargent maintained that they were discharged
for their refusal to return to work and that otherwise
there would have only been a 2-day layoff.
The General Counsel contends Respondent violated
Section 8(a)(3) by suspending these two employees on
April 24 and then further violated the Act by discharg-
ing them the same day when allegedly they refused to
finish the shift. Respondent on the other hand contends
that the employees were suspended because they had
overstayed two breaks on that particular night and had
prior records of returning late from breaks, and ultimate-
ly they were discharged because of their refusal to finish
the shift. It is clear that Dennis was one of the most
active employees involved in the union campaign, as evi-
denced by her having engaged in card distribution and
her showcase position as observer during the election in
November 1977. I found both Dennis and Stallings to be
credible witnesses who in general corroborate each
other's testimony. On the other hand Sargent, a silent ob-
server of the proceedings conducted by White, was the
sole witness for Respondent. There was no explanation
for White having not appeared despite his role as princi-
pal protagonist for Respondent. Moreover, based upon
my observation of her demeanor, I do not believe it
credible that Dennis outright refused to continue the 2 or
3 hours left on the evening shift of April 24. This would
be in sharp contrast to her behavior several weeks before
her discharge, when she was informed of her reclassifica-
tion which resulted in a wage cut, an act she accepted
without defiance. On the other hand, if White and Sar-
gent were bent on disciplining these two employees for
overstaying two consecutive breaks, and presumably
having information that they were late 30 or 40 minutes
returning from the earlier break, it seems inconceivable
that they would wait a full 50 minutes before confront-
ing the two employees after the second break. Finally,
the employees freely admitted taking about a half hour
on their first break, a not uncommon practice when one
is assigned to the job of making boxes and relieving
other employees who are on break. There is other testi-
mony in the record reflecting that boxmakers have a cer-
tain amount of downtime when caught up making boxes
and it is not time for them to relieve others for breaks.
Based on the foregoing, I find that Respondent violated
Section 8(a)(l) and (3) of the Act by suspending Dennis
and Stallings for 2 days, and further violated the Act by
terminating them the same day because of their union ac-
tivities rather than their lengthy breaks and their refusal
to continue working their shift.
E. The Alleged 8(a)(5) Violation
In Case 10-CA-13721, the General Counsel alleged
that Respondent violated Section 8(a)(5) of the Act by
unlawfully and unilaterally changing certain job classifi-
cations and rates of pay. Respondent acknowledges that
on April 6, 1978, it combined some eight job classifica-
tions including that of towelette operator into one wage
and job classification to be called "operator A." It then
changed the rate structure for the new "operator A" so
that all employees in the former classifications received
some slight increase in pay except the towelette operator
who substained a wage reduction.
In Mike O'Connor Chevrolet-Buick-GMC Co., Inc., and
Pat O'Connor Chevrolet-Buick-GMC Co., Inc., 209 NLRB
701, 703 (1974), the Board stated that it has long held,
"absent compelling economic considerations for doing
so, an employer acts at its peril in making changes in
terms and conditions of employment during the period
that objections to an election are pending and the final
determination has not yet been made." Clearly these
changes were made during the course of the pendency of
objections to the November 1977 election. However, Re-
spondent urges that there were economic considerations
for its decision to make the above-noted changes. Actual-
ly Respondent did submit evidence and testimony to the
effect that its wage scale for the classifications involved
was very close to the minimum wage, especially the
starting rates. As a result, Respondent states it was diffi-
cult for it to hire new employees and retain new employ-
ees, particularly because the structure, as it previously
existed, required a longer waiting period before increases
were granted. The General Counsel submitted no evi-
dence on this issue, leaving us with the bare complaint
HAN-DEE PAK, INC.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegation. Moreover, General Counsel did not allude to
this matter or make any contention regarding it in his
brief. In these circumstances, as Respondent did go for-
ward with evidence concerning the economic necessity
for the changes, and as Respondent's economic argu-
ments in support of the change were not unreasonable,
and, further, since no employee except the former towe-
lette operator was adversely affected, I find that the
General Counsel has not by a preponderance of evidence
supported its allegation of violation of Section 8(a)(5) in
this matter, I shall dismiss the complaint in Case 10-CA-
13721, in its entirety.' °
As previously noted, General Counsel has alleged in
another complaint (Cases 10-CA-13606 and 10-CA-
13638) that Respondent reduced the wages of Wyvonia
Dennis in violation of Section 8(a)(l) and (3) of the Act.
Dennis was the towelette operator whose classification
was eliminated and she was reclassified on April 6, 1978,
as an operator A. Apparently this was the only incident
of an employee sustaining any loss of pay. Although I
have found that Dennis was discharged 3 weeks thereaf-
ter in violation of Section 8(a)(3) of the Act, there is no
evidence connecting this wage reduction with her pro-
tected or union activities, and it does not appear that the
action on April 6 was other than a part of the general
reclassification of the operators as described above, nor
is there evidence that it was discriminatorily motivated.
Accordingly, I shall also dismiss so much of the allega-
tion in the complaint in Case 10-CA-13606 and 10-CA-
13638 as alleged an unlawful reduction in the pay of
Dennis.
IV. THE OBJECTIONS AND CHALLENGED BALLOTS IN
THE REPRESENTATION CASE
A. The Challenges
1. The leadmen
Ernest Frost, Thomas Morgan, Dennis Larkin, Mi-
chael Rutledge, Marvin Cowart, and Morris Sargent
were challenged by the Union as being supervisors
within the meaning of the Act. I have already deter-
mined above that Frost and Morgan were supervisors in
connection with resolution of the unfair labor practice
issues. Respondent's position of course was that they are
merely leadpersons with no supervisory duties. Howev-
er, Respondent has also indicated that all the leadmen
challenges performed more or less similar duties, had
similar job descriptions, and exercised the same authori-
ty. Rutledge, who was leadperson in the warehouse, ap-
parently had many duties in connection therewith and in
addition the record reveals that he filled in on a regular
basis in the absence of the acknowledge supervisor in
that area. Cowart and Sargent were production leadmen
who had the same duties as Frost and Morgan, while
Larkin was employed in the maintenance department. I
find, for the reasons stated here as well as those in con-
nection with my findings as to Frost and Morgan, that
all six of the challenged leadmen are supervisors within
'o Anchortank. Inc., 239 NLRB 430 (1978).
the meaning of the Act and I shall recommend that the
challenges to their ballots be sustained.
2. Bobby Daniels
Daniels was challenged by the Union as a domestic
worker not within the composition of the unit. Individ-
uals who are in the domestic service of any family or
person at his home are excluded from the coverage of
the Act. (See Sec. 2(3) of the Act.) Daniels has been on
Respondent's payroll since September 1974. Acccording
to the testimony of Shattuck, vice president, secretary-
treasurer, and chairman of the Board of Respondent, and
Daniels, the latter reports each morning to the Shattuck
house, using a company car. When he arrives, he re-
ceives his orders from Mrs. Shattuck or else from a
worksheet that is left for him. He does work around
Shattuck's house including cleaning and gardening.
While Shattuck testified that Daniels works at his house
I or 2 days a week, he also stated that they tried to bring
Daniels in, meaning the plant, on Wednesdays. In addi-
tion, it is clear that Daniels worked at the home of Her-
bert Sodel, the president of the Company and also a 50-
percent owner. Besides doing yardwork for Sodel, he
does other work such as serving at parties at his home.
At the plant, Daniels does the yardwork and, in the win-
tertime, some work on the inside. On the basis of the
above, I find that Daniels spends a major portion of his
time at the homes of the two owners of Respondent,
doing mostly chores around the house and grounds, and
therefore I find he is a domestic employee excluded from
coverage of the Act. I shall therefore recommend that
the challenge to his ballot be sustained.
3. Dwayne Shattuck
Dwayne Shattuck is the son of Darrell Shattuck, who
is as noted vice president and 50-percent stockholder of
Respondent. Dwayne worked at the plant during four
summers. After graduation from high school in the
summer of 1977, he began working as a forklift driver in
the warehouse and thereafter in the quality control labo-
ratory helping with testing under the supervision of
Finkle. In Foam Rubber City #2 of Florida, Inc. doing
business as Seandia, 167 NLRB 623 (1967), the Board
held that the son of one of two owners of a corporation
is an individual employed by his parent and should there-
fore be excluded from an employee unit because of his
relationship to a substantial owner. Accordingly, I shall
recommend that the challenges to the ballot of Dwayne
Shattuck be sustained.
4. Shirley Wilson
Wilson was challenged because she was not an em-
ployee of Respondent. Wilson testified at the hearing and
it appears that she was employed on April 20, 1977, and
discharged in September 1977. As she was not employed
on the date of the election, and she has not been found
to have been unlawfully discriminatorily terminated, I
recommend that the challenge to Wilson's ballot be sus-
tained.
HAN-DEE PAK, INC. 735
5. Evelyn Jean Smith, Carol Kopis, and Vickie
Middlebrooks
These three individuals were challenged because their
names did not appear on the eligibility list. Smith and
Kopis were found by the Board to have been discharged
by the Company in violation of Section 8(a)(3) of the
Act," and were therefore entitled to reinstatement. I
find that they were eligible to vote in the election con-
ducted in November 1977, and recommend that the chal-
lenges to their ballots be overruled.
Having found that Vickie Middlebrooks was discrimin-
atorily discharged by Respondent on April 22, 1977, and
thereby entitled to reinstatement, I further find that she
was eligible to vote in the election conducted on No-
vember 18, 1977, and therefore recommend that the chal-
lenge to her ballot be overruled.
B. The Objections
The Union timely filed objections to conduct allegedly
affecting the outcome of the election. After investigation,
the Regional Director ordered a hearing on objections
concerning the activities of the leadmen in interrogating
employees, threatening employees with plant removal
and discharge, and similar activities. I have found exten-
sive violations of Section 8(a)(I) of the Act, with partic-
ular reference to the conduct of Frost and Morgan,
which are coextensive with the objections consolidated
herein. The Board has stated that "conduct of this nature
which is violative of Section 8(a)(1) is, afortiori, conduct
which interferes with the exercise of a free and untram-
meled choice in an election." Playskool Manufacturing
Company, 140 NLRB 1417, 1419 (1963). This is so "be-
cause the test of conduct which may interfere with the
'laboratory conditions' for an election is considerably
more restrictive than the test of conduct which amounts
to interference, restraint, or coercion which violates Sec-
tion 8(a)(1)." Dal-Tex Optical Company, Inc., 137 NLRB
1782 (1962). 1 find therefore that Respondent did engage
in conduct interfering with the election and that the
Union's objections thereto are sustained.
Having sustained the challenges to the ballots of Frost,
Morgan, Larkin, Rutledge, Cowart, Sargent, Daniels,
Shattuck, and Wilson, and having overruled the chal-
lenges to the ballots of Smith, Middlebrooks, and Kopis,
I shall recommend that the representation proceedings be
remanded to the Regional Director with the direction to
open and count those three ballots, and prepare a revised
tally. Should the tally of ballots which results from such
action reveal that the Union has won a majority of the
votes cast, then certification should issue. In the event
that the Union does not receive a majority of the votes
cast, consistent with the Decision herein, I recommend
that the election of November 18, 1977, be set aside and
the Regional Director hold a second election as early as
possible thereafter.
l Handee-Pok, Inc., 232 NLRB 454 (1977).
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
VI. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent discharged Vickie
Middlebrooks, Gloria Layman, Wyvonia Dennis, and
Shirlene Stallings, in violation of Section 8(a)(l) and (3)
of the Act, I recommend that Respondent be ordered to
offer them reinstatement and to make them whole for
any loss of earnings and other benefits resulting from
their discharge by payment to them of a sum of money
equal to the amount they normally would have earned as
wages and other benefits from the dates of their dis-
charges to the date on which reinstatement is offered,
less net earnings during that period. The amount of back-
pay shall be computed in the manner ser forth in F W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977).12
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(aX)(1) of the Act by:
(a) Coercively interrogating employees concerning
their union and other protected activities.
(b) Threatening to close its plant should the employees
select the Union as their collective-bargaining representa-
tive.
(c) Threatening employees with loss of their jobs and
discharge should the employees select the Union as their
representative.
(d) Warning employees and threatening them with dis-
charge for discussing wages with other employees.
(e) Maintaining a rule prohibiting employee from
wearing union buttons and insignia while at work.
4. Respondent violated Section 8(a)(3) and (1) of the
Act by suspending Wyvonia Dennis and Shirlene Stall-
ings because of their union activities.
5. Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Vickie Middlebrooks, Gloria
Layman, Wyvonia Dennis, and Shirlene Stallings be-
cause of their union activities.
12 See, generally, Isis Plumbing & Hearing Co.. 138 NLRB 716 (1962)
HANDEE PAK, INC
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER' 3
The Respondent, Han-Dee Pak, Inc., Doraville, Geor-
gia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union activities.
(b) Threatening to close its Doraville, Georgia, plant
should the employees select the Union as their collec-
tive-bargaining representative.
(c) Threatening employees with loss of jobs and dis-
charge if they select the Union as their collective-bar-
gaining representative.
(d) Warning employees and threatening them with dis-
charge should they discuss wages with other employees.
(e) Maintaining a rule prohibiting employees from
wearing union buttons and insignia while at work.
(f) Suspending employees because of their union activi-
ties.
(g) Discharging or otherwise discriminating against
employees because of their union activities.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Vickie Middlebrooks, Gloria Layman, Wy-
vonia Dennis, and Shirlene Stallings immediate and full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges
and make them whole for any loss of earnings in the
manner set forth in the section of this Decision entitled
"The Remedy."
13 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 10248 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its Doraville, Georgia, plant copies of the
attached notice marked "Appendix."14 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by its authorized rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case
10-CA-13721 be dismissed in its entirety.
IT IS FURTHER ORDERED that the consolidated com-
plaint be dismissed with respect to allegations not specifi-
cally found to be violative of the Act.
IT IS FURTHER ORDERED that Case 10-RC-11203 be
remanded to the Regional Director with a direction to
sustain the challenges to the ballots of Ernest Frost,
Thomas Morgan, Dennis Larkin, Michael Rutledge,
Marvin Cowart, Morris Sargent, Bobby Daniels,
Dwayne L. Shattuck, and Shirley Wilson; and to open
and count the ballots of Evelyn Jean Smith, Carol Kopis,
and Vickie Middlebrooks; to prepare and cause to be
served on the parties a revised tally of ballots, including
therein the count of said ballots upon the basis of which
he shall then issue the appropriate certification.
IT IS FURTHER ORDERED that, in the event the revised
tally of ballots does not result in the certification of the
Union as collective-bargaining representative of Re-
spondent's employees, then the election in Case 10-RC-
11203 be set aside and a second election be conducted as
early as possible thereafter.
'4 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."