Party Cookies, Inc.

National Labor Relations Board - Board Decisions

Aug 16, 1978

237 N.L.R.B. 612 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Party Cookies, Inc. and Ron F. Hanell and Penny
Lynne Childers
Allied Workers International Union and Ron F. Ha-
nell
Local 100, Allied Workers Union, a/w Allied Workers
International Union and Ron F. Hanell. Cases 25
CA-8467, 25-CA 8562, 25 CA 8774, 25 CB
2817, and 25-CB 2853
August 16, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS ANI)
PENE .iL)
On March 10, 1978, Administrative Law Judge
Claude R. Wolfe issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and briefs; the General Counsel filed limited cross-
exceptions and a brief; Respondent Party Cookies
filed a reply brief in opposition to the General
Counsel's limited exceptions; Respondent Unions
filed a response to the General Counsel's cross-ex-
ceptions and brief; the General Counsel filed a mo-
tion to strike portions of Respondent Unions' re-
sponse; and Respondent Unions filed a motion to
substitute pleadings by withdrawing the portions of
their response which the General Counsel moved to
strike and filing an amended response in support
thereof.'
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, briefs, op-
position, response, and motions and has decided to
affirm the rulings, findings,2 and conclusions 3 of the
Administrative Law Judge and to adopt his recom-
mended Order.
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 Respondent Party Cookies, Inc., Michi-
gan City, Indiana, its officers, agents, successors, and
assigns, and Respondent Local 100, Allied Workers
Union, a/w Allied Workers International Union,
Hammond, Indiana, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order.
I'l IS Ft R-IH.ER ORDI.RED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations not found herein.
5We herebh r.arit Respondent I nions' nmtion Io substitute pleadings.
which motllion is not opposed hby ns of the parnes. and. therefore, as no
basis now exists for granting the General Counsel's motion to strike. we
herehb deni that moltin.
Respondent Parts ( ok le,. Inc.. contesls the Adniinistratsie Law
Jiide',s finding that it silated Sec 8(a)(1) and (2 of the Act bs requiring
newlI hired emnplo ces to sign. upon hire. unin membership applications
iland checkoff cairds under threat of discharge if they refused It argues that
this finding siolates it, due process rights of notice and opportunity to he
heard because the issue was not specificalls alleged as a violation and be-
cause it did not dispute the issue. despite evidence having been adduced
thereupon. im rehliane on the Administrative L aw Judge's refusal to con-
fornl pleadings Ito proof except as to variations in names and dales. and his
acconipaninmg statements which. according to Respondent Parts Cookies,
Inc., assert thlt he would not make findings on matters not specifically
alleged regardless oif the evidence in the record
While the miatier may not have been alleged with the specificity desired
by Respondent (Company. we find that it clearls falls within the ambit of the
complaint Further, the Administratlve L.aw Judge did not comment on the
issue until after evidence thereon had been fully adduced and after Respon-
dent (Comnpanys chose not to refute that evidence. Accordingly,. we find that
the matter was adequately alleged and fully litigated, that neither the Ad-
minisir;liae I.aw Judge's statements nor his proper ruling could reasonably
halNe misled this Respondent. and thai Respondent Part Ciookies. Inc., was
not deprived of due process
Respondent Parts (Cookies. Inc.. also has excepted to certain credibility
findings made b) the Adilinistratise Law Judge. II is the Board's estab-
lished policy not Ito oerrule an Administrative Law Judge's resolutions with
respect to credibiliht unless the clear preponderance of all of the relevant
evidence convinces us that the resolutions are incorrect. Standard Dry Wall
Prorulis. In 91I NI.RB 544 (19501. enfd. 188 F.2d 362 (( A 3. 1951). We
have calefully examined the record and find no basis for reversing his find-
In'he Administrative law Judge inadvertently failed to include in his
Conclusions of l.aw that Respondent Party Cookies, Inc., violated Sec
8(a)(I) and (2) of the Act by threatening newly hired employees with dis-
charge for refusal or failure to sign, upon their hire, union authorization
and or dues-checkoff cards. We hereby correct said inadvertency
DECISION
S1 A1MFENT OF I HE CASE
CLAUDE R WOL.ii. Administrative Law Judge: This case
was heard before me at Michigan City, Indiana, on August
24 and 25 and September 26, 27, and 28, 1977, pursuant to
complaints issued on January 28 and May 18, 1977, and
charges filed on November 22 and December 30, 1976, and
March 28, 1977. The complaints alleged various violations
of Section 8(a)(1), (2), and (3) of the Act by the Respon-
dent Employer and Section 8(b)(1)(A) and (2) by the Re-
spondent Union. In brief. the General Counsel claims that
the Company recognized the Union and applied its Blue
Island, Illinois. contract with the Union. including union
security and checkoff provisions, to its employees at Michi-
gan City at a time when the Union did not represent an
uncoerced majority of those employees, and that the Union
illegally accepted this recognition and application of the
union-security contract and checkoff agreement to the
Michigan City employees. Additionally, the General Coun-
sel alleges that the Employer discriminatorily discharged
237 NLRB No. 99
612
PARTY COOKIES. INC.
Penny Lynne Childers. discriminatorily refused to give
Ron F. Hanell a letter of recommendation. required newly
hired employees to execute union membership applications
and dues checkoff authorizations. unlawfully checked off
union dues and initiation fees, attended and participated in
union meetings, and engaged in certain other independent
violations of Section 8(a)(1) of the Act. The complaints
further allege that the Union failed in its duty of fair repre-
sentation to properly press Ron F. Hanell's grievance.
failed to provide the necessary union representatives to ad-
minister the contract and represent the employees, and
failed to advise the employees of the Union's identity or
office location. The Company and the Union filed timely
answers denying the commission of any unfair labor prac-
tices, and affirmatively contend that they lawfully extend-
ed a collective-bargaining agreement from their Blue Is-
land, Illinois facility to cover the employees at the
Michigan City facility pursuant to an "after-acquired
plant" clause in their contract consistent with the princi-
ples of accretion.
Upon the entire record, including my observation of the
demeanor of the witnesses as they testified, and after care-
ful consideration of the post-trial briefs of the parties. I
make the following:
FINDINGS AND CONC[ ':SIONS
I. THE RESPONDENT EMPIOY ER'S BI SINESS
The Respondents admit the jurisdictional allegations of
the complaint. I therefore find the Employer is an Illinois
corporation with its principal office and place of business
at Blue Island, Illinois, and a plant at Michigan City. Indi-
ana, where it is engaged in the business of baking and dis-
tributing cookies and related products. During the 12
months preceding the issuance of the complaint, a repre-
sentative period, the Respondent Employer produced. sold
and distributed products at its Michigan City facility val-
ued in excess of $50.000 which were shipped from said
facility directly to States other than Indiana. During the
same period of time, the Company purchased. transferred.
and delivered to its Michigan City plant. goods and mate-
rials valued in excess of $50,000 which were transported to
that facility directly from States other than the State of
Indiana. The Respondent Employer is now. and has been
at all times material herein. an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II THE LABOR ORG,,NIZAi'oN
The Allied Workers International Union and Local 100.
Allied Workers Union, a/w Allied Workers International
Union are. and have been at all times material herein, la-
bor organizations within the meaning of Section 2(5) of the
Act.
The facts set forth herein are In large part uncontradicied, and the re-
maining findings of fact are hased in a santhesis (if the credited testimonN
of all wiinesses, the exhibits. silpulations of fact, and careful consideration
III 1HF ail I I ) i N1i AIR I ,BOR PRACTICES
A. The .4pplication and the Enforcement of the Collective-
Bargaining .Agreemnenr at Mhichigan City, Indiana
Local 100 and the Company have had a collective-bar-
gaining agreement covering Blue Island employees for
years. In 1974 the Company and Local 100 2 entered into a
new collective-bargaining agreement covering the employ-
ees at the Blue Island. Illinois plant, with an effective date
of April I. 1974. and an expiration date of April I. 1977.
L ocal 100's President George Dorsey credibly testified that
he had been hearing rumors for quite some time that the
Company was going to open another plant at another loca-
tion, and that he therefore requested an amendment to the
April 1, 1974. agreement. Accordingly, the Company and
Local 100 executed an amendment to the collective-bar-
gaining agreement on September 6, 1975, whereby the fol-
lowing clause was inserted into the contract.
This Agreement applies to all Employees of the Com-
pany who are employed in or about the premises of
the Employer's plant located in Blue Island, Illinois,
or in any other plant(s) owned or leased by the Com-
pany in the States of Illinois. Indiana or Wisconsin,
and who are included in the contract unit. The term
"contract unit" includes only those categories and
classifications of employees. departments and jobs set
forth in Schedule A attached hereto and excludes all
categories in classifications of employees, departments
and jobs not expressly enumerated in Schedule A at-
tached hereto.
The Company purchased the Michigan City plant in
February 1976. It had been built as a bakery and was pre-
viously owned by a competitor. The Company and the
Union entered into a new agreement on April 1. 1976, with
an expiration date of April 1. 1982, which contains the
following definition of the contract unit:
This Agreement applies to all Employees of the
Company who are employed in or about the premises
of the Employer's plant located in Blue Island, Illi-
nois, or in any other plant(s) owned or leased by the
Company in the states of Illinois, Indiana or Wiscon-
sin, and who are included in the contract unit. The
term "contract unit" includes only those categaries
Isic] and classifications of employees, departments,
and jobs not expressly enumerated in Schedule A at-
tached hereto.
All other terms, conditions and covenants con-
tained in the Agreement dated April 1, 1974 shall re-
main in full force and effect.
oif the logical consistencs and inherent probability of the facts found. Al-
though I naxl- not. In the course of this Decision. refer to all of the record
testimon! or documentar) ecsidence. I have carefully weighed and consid-
ered it. ind to the extent that ans testimony or other evidence not men-
tioned ilmLht appear to cointriadict mr findings of fact. I hake not disregard-
ed that esidence hut haxe rejected it .ts incredible. lacking in probatlse
Aoirh, rs rplutls age or irreles anlt
Herein sometimes referred it as the t nmon or the Respondent L nion
613
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Schedule A attached to each contract contains the
following categories of employees: machine operators,
helper machine operators, sanitation, delivery, mainte-
nance, general warehouse help, and packers. Schedule A
contains a notation that the classifications of foremen and
foreladies are to be negotiated individually by manage-
ment and the individual.
The contract unit definition set forth in the April 1. 1976,
agreement would, on its face, exclude all categories of em-
ployees enumerated on Schedule A. However, this is totally
lacking in logic inasmuch as both the old and the new
contracts contain identical job classifications and appro-
priate salary schedules for them. I am persuaded that the
omission of some three lines in the midst of the definition
of the contract unit in the April 1976 agreement was clearly
an oversight, and that it should be read as identical to the
clause in the September 1975 amendment.
The Company started hiring employees about the first of
July 1976 at its Michigan City plant, and started produc-
tion on July 5 or 12, 1976. Dennis Babb was promoted to
plant manager of the Michigan City plant from Blue Is-
land, where he had been a first shift foreman, about the
time the Michigan City plant was purchased and, together
with the Company's director of manufacturing from Blue
Island, William Pieper, did the first hiring at Michigan
City. Since his appointment as plant manager, Babb has
been and continues to be directly responsible for the total
plant operation at Michigan City. He moved to Michigan
City in April 1976. The driving distance between the two
plants is from 50 to 55 miles.
In May or June 1976, four employees were sent to Mich-
igan City from Blue Island to clean up the plant and to
renovate and help install equipment. After working there
for 3 or 4 months, one was terminated and the other three
returned to the Blue Island plant. These four employees
were classified as warehousemen, and with the exception of
these four, the Michigan City plant was staffed with new
production people hired at Michigan City. Babb and Piep-
er hired approximately 20 employees in July 1976. Thereaf-
ter the work force rose to about 50, with the additional
employees being hired by Babb and Supervisor Linda Pow-
alski. All parties stipulated that all employees were given,
at the time of their hire, membership and checkoff authori-
zation forms, and that commencing on or about July 5 and
continuing to date the Respondent Employer has checked
off dues and initiation fees from the pay of these employ-
ees and transmitted it to the Respondent Union. It appears
from the testimony of the various employee witnesses that
these cards were signed by them at the time they first came
to work. Neither Babb nor Powalski 3proffered any evi-
dence that they told employees of the statutory and con-
tractual 30-day grace period before they signed the union
application and checkoff. However, employee Ron Hanell
testified that when Babb gave him the union application
and checkoff authorization, Babb told him that it was just
a pledge to go into the Union after 30 days. I am inclined
to believe, in spite of Hanell's rather vague memory on
some other points, that Babb did tell him, when he was
3 Powalski did not testify.
hired on July 6, of his right not to join the Union until 30
days had expired. On the other hand, Penny Childers credi-
bly testified that the first day she reported to work, Linda
Powalski gave her the union membership application and
checkoff authorization, whereupon she asked Powalski if
she had to fill out those cards. Powalski answered that she
did, and Childers asked what would happen if she didn't.
Childers asserts that Powalski said that if Childers didn't
sign the union cards she would lose her job, and that she
had to join the Union. Childers' starting date, which would
have been the day that she talked to Powalski, was Septem-
ber 2, 1976. In my opinion, Childers' concession that she
made no reference to this incident with Powalski in her
pretrial affidavit given to the National Labor Relations
Board is insufficient reason to warrant discrediting her un-
controverted testimony on the matter. Additionally, I
credit the testimony of employee William McCormick that
when he was hired on June 30, 1976, Dennis Babb gave
him applications for union membership and a checkoff au-
thorization and told him to fill them out, whereupon he
signed them and returned them to Babb.
Sometime about the end of July, or early August 1976,
Union President Dorsey posted a copy of the contract on
the bulletin board, and thereafter posted other copies
which were removed by persons unknown. He later distrib-
uted copies to employees in the fall. The collective-bargain-
ing agreement contains a union-shop clause providing for
30 days employment before being required to join the
Union, and a checkoff clause. After employees were hired,
the Company distributed to them a two-page document
entitled "Welcome to Party Cookies Company" which set
forth various workrules and other information about the
job, including a notice that employees were required to join
Local 100 after 30 days of employment and setting out the
amount of initiation fee and dues that would be required. I
conclude from an examination of the testimony of various
witnesses referring to this document 4 that it was not uni-
formly handed out to employees at the time of their em-
ployment. but was received by them after periods of em-
ployment ranging from a week or two to a few months.
All corporate offices and officers are located at the Blue
Island facility. The sales force is located at Blue Island and
takes orders for both plants. Similarly, the corporate pur-
chasing agent located at Blue Island does all the purchas-
ing of goods and materials for both the Blue Island and the
Michigan City plants. All orders are received at Blue Is-
land, run through a computer, and then reduced to a pro-
duction order which is assigned to either of the plants de-
pending on plant capability and workload at the time. This
assignment is made by the corporate director of manufac-
turing who is responsible for the manufacturing operations
at both plants. After the orders have been completed, all
bills of lading and invoices are prepared at Blue Island and
they carry the Blue Island address. Although material is
4 the first such document passed out had the Blue Island. Illinois. address
on it, and the second. which followed it. had the Michigan City address, but
thes were other ise similar In content. The only difference between the two
documents haming any significance to the case before me are certain under-
lined phrases set forth in the absentee polic) under the Michigan City.
Indiana. head that were not present in the absentee policy under the docu-
ment headed Blue Island. Illinois
614
PARTY COOKIES. INC
shipped from both plants directly to customers, all F.O.B.
shipments are F.O.B. Blue Island, Illinois. The Respondent
Employer employs 10 truckdrivers. all of whom are based
at Blue Island and do the hauling for both plants. The
dispatcher is located at Blue Island, and there is none at
Michigan City. Of these trucks, one makes daily trips back
and forth between the plants transporting raw materials,
packaging materials, and unfinished goods from one to the
other as needed. Each plant has a warehouse where goods
are stored. In addition to its own warehouse, the Blue Is-
land facility leases a public freezer in which it stores only
items produced at Blue Island. The Employer constructed
a freezer at the Michigan City plant with five times the
capacity of that at Blue Island. Products of both facilities
are stored in that freezer. In terms of overall warehousing
on the premises and in leased warehouses, more than one-
half of the cookies stored are stored at Michigan City and
the remainder at Blue Island. As a result of its purchase
and development of the Michigan City plant, the Company
reduced its leased warehouse space at Blue Island. The
Blue Island facility has six maintenance men, and the
Michigan City plant has two. Both groups maintain the
equipment at the respective plants where they are located,
but all major maintenance, such as rebuilding or building
new parts or conveyors for both plants, is performed at the
Blue Island facility.
When the Michigan City plant was first purchased, the
Company moved packaging and other equipment at that
location to Blue Island. The freezer line, which produces a
frozen dough product, was moved from Blue Island in the
fall of 1976 after production had started at Michigan City.
There is no longer a freezer line at Blue Island, and this
resulted in the loss of some 18 jobs at Blue Island. Insofar
as the record shows, none of these 18 employees transfer-
red to Michigan City. About 60 to 65 percent of the pro-
duction at Michigan City is a result of the operation of the
freezer line. Employer's President Hoch estimates that
there are 165 employees at Blue Island and 50 at Michigan
City. About 65 percent of the cookies produced by the
Employer are produced at Blue Island. The remainder are
produced at Michigan City. The same production classifi-
cations and duties exist at both plants, except for the freez-
er line at Michigan City and some specialty workers in
chocolate at Blue Island. Essentially. the Employer pro-
duces the same products at both plants in the sense that
both are involved in the same cookie business.
All payroll and accounting functions are carried on at
the Blue Island offices, and all paychecks are signed bN
Company President Charles Hoch, although the Blue Is-
land employees receive checks drawn on a bank in that
locality and the Michigan City employees receive checks
drawn on an account in a Michigan City bank.
The plants are approximately 50 miles apart and Dennis
Babb, the plant manager at Michigan City, is directly re-
sponsible for all production at Michigan City and hires the
rank-and-file employees at that location without consulta-
tion with anyone from Blue Island. Michigan City employ-
ees are hired locally, by Babb, and it is clear from the rec-
ord that he issues reprimands and has discharged
employees without consulting with Blue Island. There is no
one at the Michigan City facility who is superior to Babb in
authority. Supervisory jobs are filled by joint discussion
between Babb and officials at Blue Island. All personnel
records are maintained at Blue Island. with the exception
that Babb keeps a copy of the employees' applications in
the Michigan City file. The employees at both locations
have the same group insurance and company retirement
plans and other fringe benefits, which are administered
from the Blue Island office. All insurance claims are pro-
cessed through Blue Island.
Although lacking in specificity. President Hoch general-
ly testified that both plants conducted separate meetings of
supervisors, but there have been occasional joint meetings
of supervisors from both plants. Similarly, Hoch testified
that there were some joint meetings of shipping and receiv-
ing employees and other classifications of employees in the
summer of 1977 which were conducted at Blue Island, as
well as a series of safety meetings with employees from
both plants which were conducted in the spring of 1977 in
Illinois. In the absence of any evidence to the contrary, I
credit Hoch's assertions with regard to these meetings.
With respect to the interplant transfer of employees,
maintenance man Marciniak was originally hired at Michi-
gan City and later transferred to the Blue Island facility on
a permanent basis in October 1976. Maintenance Supervi-
sor Nessler and Supervisor Powalski worked for some unspec-
ified period of time at the Blue Island facility between Juls
and October in 1976, even though they were employees of
the Michigan City facility. With respect to continuing inter-
change of employees, Hoch testifies that Blue Island employ -
ees go to Michigan City as needed for a couple of davs at
a time, primarily for the production of cookies for holidas
periods, and that the number of employees so doing range
from about I to 16 or 18, excluding maintenance men. A
maintenance man from Blue Island will go to Michigan City
on an as needed basis to build and repair equipment. Compa-
ny President Hoch is somewhat vague in his testimony. to
the extent that he classifies the temporary work of employees
from Blue Island at the Michigan City plant as frequent but
with no particular pattern. He estimates that there were
employees at the Michigan City plant from the Blue Island
plant about 75 times between September and March. In view
of the fact that this is a pure estimate, without benefit of
supporting records, I do not rely heavily on Hoch's testimony
in this regard. Hoch also testified that Michigan City emplo' -
ees were on occasion sent to work at Blue Island on a
temporary basis.
Discussion
The General Counsel urges that the Michigan City plant
is an appropriate unit and therefore should not be added to
the larger unit at Blue Island as an accretion, even though
a unit consisting of both plants might be appropriate. The
Respondents argue that the Michigan City and Blue Island
plants are functionally and administratively integrated,
and that the two are interdependent and together comprise
an appropriate unit embracing both facilities. Accordingly,
the5 contend that the extension of the existing agreement
to cover the Michigan City employees was a lawful accre-
tion. The Respondent Ulnion further contends that the
Michigan ('it plant is not a separate appropriate unit, and
615
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it would appear from the Respondent Employer's brief that
it is in agreement with this latter contention. In examining
accretion defenses, the Board has narrowly construed the
accretion principle because of the overriding importance of
not subordinating employees' rights to self-organization
under Section 7 of the Act to the appropriate unit concept
of Section 9(b), and thereby abrogating those rights. The
Board has made it clear that it will not compel a group of
employees who may constitute a separate appropriate unit
to be subject to a contract between their employer and a
union covering later acquired facilities, and thus be includ-
ed in a overall unit under the guise of accretion, without
affording them the opportunity of expressing their prefer-
ence in a secret election or by some other evidence that
they wish to authorize the union to represent them. Smith's
Management Corporation d/b/a Frazier's Market, 197
NLRB 1156 (1972); Melbet Jewelry Co., Inc., and I.D.S.-
Orchard Park, Inc., 180 NLRB 107, 109-110 (1969); Meijer,
Inc., d/b/a Meijer's Thrifty Acres, 222 NLRB 18, 25 (1976);
The Wackenhut Corporation, 226 NLRB 1085, 1089 (1976).
The record shows that there is centralized handling of
administrative and labor relations matters, an integration
of production facilities, similarity of working conditions,
skills and functions, and some interchange of employees on
a temporary basis. Further, it is apparent that the employ-
ees at both facilities receive the same wages, and insurance,
pension and other benefits. It also appears, however, that
these wages and benefits flow from the very fact that the
contract at the Blue Island plant was applied to the Michi-
gan City employees. On the basis of the record before me,
there is sufficient evidence to suggest that a multiplant unit
consisting of the Michigan City and Blue Island employees
might be appropriate for purposes of collective bargaining
under Section 9 of the Act. This does not, however, con-
clude the matter.
Plant Manager Babb is the highest ranking company of-
ficial regularly present exercising meaningful day-to-day
control of the Michigan City plant, as well as the signifi-
cant authority with respect to the employees there. In addi-
tion to the fact that he personally hired many of the initial
group of employees to staff the Michigan City plant, all of
whom were hired locally rather than transferring from the
other plant, the record shows that he can discharge em-
ployees for cause,5 issue written reprimands,6 and is direct-
ly in charge of the day-to-day work performance of the
employees under him. Another factor to be considered is
the 50 to 55 miles separation between the plants,7 as well as
the fact that the Employer maintains a separate account on
the Michigan City bank upon which to draw paychecks for
its Michigan City employees. Whether Hoch's estimate
that there are 50 employees at Michigan City or Babb's
estimate that there are about 40 employees located there is
more accurate, either figure represents a substantial num-
ber of employees whose rights are here to be determined.
He effectuated the discharge of Ron F. Hanell without prior consulta-
tion with higher authority.
6 See the reprimands issued to Penny Childers hereinafter discussed, as
well as written reprimands issued to other employees by him herein referred
to.
Sunset House, 167 NLRB 870 (1967)
The importance of the Michigan City operation and the
extent of its size may be more truly reflected by the fact
that it produces 35 percent of the Respondent Employer's
total production with less than one-third of the number of
employees at the Blue Island facility.
Upon consideration of all the foregoing factors I am per-
suaded that, notwithstanding the considerable evidence of
production integration and centeralized handling of ad-
ministrative and labor relations matters, and the presence
of some temporary interchange of employees between the
plants as production needs require, that the Michigan City
plant may constitute a single appropriate unit standing
alone. 8
Accordingly, I find that, commencing on or about July
5, by applying and enforcing their collective-bargaining
agreement and its provisions regarding union security and
dues checkoff to the Michigan City employees at a time
said employees had been afforded no opportunity to ex-
press their preference in a secret election and had not
otherwise indicated any desire to be represented by Local
100, the Respondent Company violated Section 8(a)(1), (2)
and (3) of the Act, and the Respondent Union Local 100
violated Section 8(b)(1)(A) and (2) of the Act.
Additionally, I find that by (I) the conduct of its super-
visor, Linda Powalski, telling employee Childers that she
would be fired if she did not sign the union application and
checkoff, (2) the instructions of Dennis Babb to employee
William McCormick when he was hired that he was to fill
out and return the union membership application and
checkoff authorizations which Babb then gave him, (3) to-
gether with a fair implication from the parties' stipulation
that since on or about July 5, 1976, that the Respondent
Employer checked off and trasmitted dues moneys to the
Respondent Union, and that the Company gave each new
employee on hire union membership applications and a
checkoff authorization to sign, and that newly hired em-
ployees were not advised of the statutory 30-day grace pe-
nod and uniformly executed the forms handed to them as
they were hired; and that the Respondent Employer com-
mitted additional and independent violations of Section
8(a)X I) and (2) of the Act by requiring, soliciting, and urg-
ing its Michigan City employees, immediately upon their
hire, to sign membership applications and checkoff cards
authorizing the deduction of dues and other moneys from
their wages to be paid over to the Respondent Union Local
100 and threatened employees with discharge if they did
not do so.9 Apart from the testimony of employee Hanell
that he was advised of the 30-day grace period, the Em-
ployer proffered no other evidence that it advised any
other employees to the same effect, and the inclusion of the
membership and checkoff forms with the other documents
handed to employees to complete on hire could not help
but leave them with the impression that the immediate
completion and signing of these forms was a necessary
condition of employment.i° That the subsequent distribu-
8 TRT Telecommunications Corporation, 230 NLRB 139 (1977): Razco,
Inc., dhb/a Hit 'N' Run Food Stores, 227 NLRB 1186 (1977).
9 The Wackenhut Corporation, supra.
10 I find it difficult to believe that new hires would uniformly and immedi-
atel) sign the forms without taking advantage of the 30-day grace period if
it were not made clear to them. expressly or impliedly, that immediate exe-
cution was a condition of employment.
616
PARTY COOKIES. INC
tion of the collective-bargaining agreement and the
Company's workrules contained the proper information re-
garding the 30-day period does not alter my conclusion.
inasmuch as it appears from the record that they were dis-
tributed after many, if not all. of the employees had al-
ready executed the membership application and dues-
checkoff forms.
B. Ron F. Hanell and Other Miatters
Ron Hanell was discharged by the Company on Septem-
ber 17, 1976, on grounds of incompetence. His discharge is
not alleged as a violation of the National Labor Relations
Act, nor is there any evidence in the record to so suggest.
About 10 o'clock on the morning of September 17. Ship-
ping Foreman Mark Drew told Hanell that he was termi-
nated, and that the culminating incident that caused his
discharge was the fact that a stack of boxes that he had
erected the day before had fallen, and further explained
that Plant Manager Babb did not think that Hanell worked
fast enough." Within a few minutes after Drew told Hanell
that he was discharged, Drew also told Hanell that he
would give him a letter of recommendation.
Shortly thereafter, before lunch. Hanell talked to Babb
in Babb's office. 2 Babb reiterated to Hanell that his job
performance had not improved, was substandard, and that
he was therefore terminated for incompetence, but could
finish out the day. According to Hanell, he asked Babb if
there was anyway he could get in touch with the union
representative, and Babb replied that he did not see how
Hanell needed that information. Babb testifies that after he
was told that he could finish out the day, Hanell asked if he
should have a union steward present, to which Babb re-
plied "No, not to my knowledge." Babb also states that
Hanell did not ask him for the name of the steward, or who
the steward was, or asked him to get a steward. On the
basis of comparative demeanor and consistency of testi-
mony, I credit Babb's version of the discussion with respect
to the Union. Hanell then left Babb's office. At or about 8
a.m. on Monday, September 20, Babb saw Hanell in the
plant and asked what he was doing. Hanell replied that he
was not fired. Babb asked why he thought that, and Hanell
said he thought so because he had not had a hearing with
the Union before he was fired. Babb told him there was no
need for a hearing with the Union before terminating an
employee, and Hanell left.
The next day, September 21, Hanell met with Mark
Drew at a bowling alley and reminded him of the offer to
" I do not credit Drew's testimony that Plant Manager Bahbb .is present
when he discharged Hanell because such testimony is contrary to the testi-
mony of both Babb and Hanell, and because I)rew Impressed me as a most
inconsistent. vague, circuitous. evasive. and totally unreihahle witness in all
instances where his testimony is not corroborated bs other credible esl-
dence.
12 Babb states that he called Hanell into his office, whereas Htanell states
that he went of his own volition to speak to Babh I credit Bahb becaluse
Hanell gave the impression, and the record of his testimons reflects. that he
was easily confused and most indefinite about certain facts to , hl.ch he
testified. On the other hand, Babb was definite and credible on this point In
any event, whether Hanell was called to the office or whether he went of hi,
own volition does not affect the resolution of this case
ssrite him a letter of recommendation, and asked if Drew
had it with him. Drew told him to stop bx the plant and see
him on Thursda,. Some time after Hanell's discharge and
prior to his subsequent meeting with Drew on Thursday,.
September 23, Drew told Babb that he had promised Ha-
nell a letter of recommendation. I credit Babb's testimony
that he told Drew that he should not give a letter of recom-
mendation to Hanell because he was terminated for incom-
petency and that the Compans should not recommend that
type of employee to other employers. I further credit
Babb's testimony that he said nothing to Drew about any
grievance or charge filing or other union contact by Hanell
during this conversation. As before noted, I did not find
Drew to be a credible witness, and with respect to this
particular conversation wherein he was told not to issue the
recommendation he testified variously. On direct examina-
tion. he first testified that Babb said he did not think it
would be advisable for Drew to write a letter of recommen-
dation, because it might cause problems later on as to why
the Company had fired Hanell. Upon refreshment by Gen-
eral Counsel from his pretrial affidavit. Drew testified that
Babb told him that he should not write a letter of recom-
mendation for Hanell because Hanell had filed with the
labor union and would cause problems later on. On cross-
examination bh the Respondent Employer. Drew testified
that when he first mentioned to Babb that he was thinking
about giving a letter of recommendation to Hanell, Babb
said nothing. but that he was then called to Babb's office
maybe a week or so later, at which time Babb brought up
the subject. On cross-examination by the Respondent
Union, Drew testified that his initial account of Babb's
instruction not to write a letter of recommendation, which
he gave on direct examination. was true. In his pretrial
affidavit, which was offered into evidence by the General
Counsel for "purpose of impeachment and admission."
which I first rejected and then received for the sole purpose
of reviewing that portion of the affidavit relating to this
conversation with Babb about the recommendation of Ha-
nell. Drew said that "Dennis Babb told me that he would
prefer that I not w'rite a letter for Ron. since Ron had filed
a complaint over his being fired through the Union." I note
that this pretrial affidavit swas given on December 9, 1976.
after Hanell's grievance had been filed and rejected. Apart
from the fact that Babb was a more credible witness than
Drew. and Drew's testimony is patently unreliable on the
basis of internal inconsistencies as set forth alone, it is clear
from the record that Hanell did not file any grievance or
charge until after this conversation between Babb and
Drew allegedly occurred. Therefore. I cannot and do not
credit Drew's testimony in any respect, and expressly dis-
credit it. Babb and Company President Hoch agree that
Babb called Hoch on the phone shortly after Hanell's ter-
mination and reported to him that he had told Drew not to
give a letter of recommendation to Hanell because letters
of recommendation should not be given to terminated peo-
ple, whereupon Hoch agreed with him that he had done the
right thing. When Hanell went to the plant to see Mark
Drew on Thursday,. September 23, about the letter of rec-
ommendation, Drew told him that he had been forbidden
by Babb to give such a letter to Hanell. Nothing further
was said about it between Drew and Hanell.
617
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hanell met Local 100 President George Dorsey in the
plant lunchroom, where Dorsey was talking to employees,
in mid-October 13 and requested and received a grievance
form from him, which he completed and returned to Dor-
sey that same day. Dorsey asked Hanell why' he had been
fired and received the reply that it was for incompetency.
In response to Dorsey's further queries. Hanell told him
that his supervisor was giving him more work than he
could do. Charles Hoch and Dorsey agree that Dorsey
called Hoch after receiving the grievance from Hanell and
requested a meeting on it. Hoch estimates it was sometime
from mid- to late October that the meeting was held. This
is consistent with Dorsey's estimates that the grievance was
filed on October 17 or 18. and that it was shortly thereafter
that he met with Hoch. Two days after Dorsey received the
grievance, he inquired among the employees in Hanell's
immediate work area and secured signed statements from
several employees, including Supervisors Powalski and
Drew and contested supervisors Sabinske and Dolph. He
asserts, without contradiction, that he talked to other rank-
and-file employees to a total of about 10 or I I people in all.
but no one else would give him written statements. The
statements that he received from the names above recited
all reflected that Hanell was indeed incompetent at his
work. On or about October 22 14 there Awas a union meeting
held at the plant. Hanel] visited the plant in an effort to
talk to George Dorsey about his grievance. Hanell testifies
that when he arrived at the plant there was a union meet-
ing, but he met Dennis Babb, outside the meeting place,
who told him that he would have to wait and talk to Dor-
sey after the meeting was over. Hanell testifies that he said,
"Fine, I will wait," and was permitted by Babb to wait for
Dorsey on Company premises. Babb testifies that Hanell
appeared at the cookie store at the entrance of the plant in
the late afternoon after working hours and asked if he
could speak to George Dorsey, to which Babb replied that
he could but would have to wait in the cookie store. Hanell
agreed and waited there. Later that afternoon Babb saw
Hanell talking to Dorsey outside Babb's office. He states
that he did not order Hanell out of the plant at anytime,
and does not recall Hanell asking him to go to the union
meeting. What he recalls is that Hanell asked to speak to
George Dorsey and that Babb said it was all right but he
would have to wait in the cookie store. In any event, after
the meeting was over, according to Hanell who is uncon-
tradicted on this point and supported in part by Babb's
testimony that he saw Hanell with Dorsey, Hanell talked
with Dorsey near Babb's office in the plant. He asked Dor-
sey about the grievance and what his chances were of get-
ting back to work. Hanell states that Dorsey told him that
there was no way that he could get his job back that he
l D)orsev recalls that he is not sure of the date hut bhat it as on October
17 or 18. Haianell states that he believes it was on October 7 or 14. but he is
not sure of the date at all. I note that the grievance bears the date September
22, but Dorse) explained that he put that date on in error after }tanell had
filled out the grievance form I am persuaded front an examination of the
testimony of the two as to when the grievance was in fact filed and the
circumstances surrounding it, as well as the events following. that the griev-
ance was actually filed about the time Dorsey estimates
could see, hut he was going to try again and wanted to
know if Hanell wanted anything like backpay or anything
similar out of the grievance. Dorsey also promised to con-
tact Hanell the following day, or as soon as possible. Unac-
countably, Hanell testified on cross-examination that when
he talked to Dorsey on October 22, Dorsey told him that
there was still a possibility he might be rehired because
Dorsey thought the case was a good one. In view of this
pattern of inconsistency between Hanell's testimony on di-
rect and the cross-examination, even in the absence of tes-
timony by Dorsey on the matter, I am not inclined to rely
on Hanell's latter version of Dorsey's stated opinion of the
merits of the grievance. Indeed. I would note that the origi-
nal version he gave on direct examination to the effect that
Dorsey didn't think that he could get him his job back is
probably more likely to be true in all the circumstances,
including the reasons for discharge and the results of
Dorsey's investigation.
On October 26, Hanell sent a letter to Dorsey detailing
the remedy, including reinstatement and reimbursement
for various things, that he expected from the processing of
his grievance. Sometime between the period of October 22
and October 28, as I reconstruct the dates from the reason-
able probabilities inherent in the record, Dorsey met with
Charles Hloch, Dennis Babb, and Mark Drew with respect
to Hanell's grievance. Babb told Dorsey that Hanell was
incompetent and produced two memos to his file dated
August 26 and September 8. 1976, reflecting that he and
others had talked to Hanell about getting behind in his
work on those days. There was some further discussion
about Hanell being unsafe on the job and the inability to
find him on occasion for a couple of hours, as well as
loafing and similar incidents. Dorsey raised the matter of
the letter of recommendation, and inquired as to why Ha-
nell was told that he would be given a recommendation
and then not given one. Babb and Drew advised him that
Babb had instructed Drew not to give him one, and Hoch
said that the Company did not give letters of recommenda-
tion to terminated employees. Dorsey asked for Hanell's
reinstatement and was refused. He told the company repre-
sentative that Hanell had admitted that at times he could
not do his work because it was too much for him, and that
if they could reinstate him that he might possibly change
and turn into a good employee. The Company still refused
to reinstate him.
Dorsey credibly testified that, in view of the circum-
stances revealed by his investigation of the matter, he did
not believe that the Union could successfully arbitrate, so
he did not pursue the matter further and wrote a letter to
Ron Hanell so advising him. The letter to Hanell from
Dorsey, dated October 28. 1976, relates that Dorsey's in-
vestigation revealed that Hanell came to work tired, would
stand around with his hands in his pockets as if he had
nothing better to do, was unsafe on the job, and could not
supply the line fast enough. The letter goes on to relate that
these conclusions were backed up by some of Hanell's fel-
low employees and that the Union had no alternative but
to agree with his termination.
14 All witnesses but Babhb placed the date as October 22. hut Babb places
it as October 25 on the basis of his personal records.
618
PARTY COOKIES. INC
Discussion
I conclude and find that Babb rescinded the letter of
recommendation offer made by Mark Drew because the
Company did not wish to recommend an incompetent em-
ployee to other employers. The General Counsel has not
shown by a preponderance of the credible evidence, or
even an appreciable amount of it, that the letter of recom-
mendation was refused because Ron F. Hanell had "filed a
grievance and engaged in other union activities and con-
certed activities for the purpose of collective bargaining
and mutual aid and protection," nor that the Employer
took such action because it even suspected Ron Hanell "sas
about to engage in such activities. Similarly. I find and
conclude that Dennis Babb did not, on or about October
22, 1976, unlawfully prevent Ron Hanell from attending a
union meeting. Hanell did not request to attend a union
meeting, but requested to see Dorsey who was conducting
a union meeting. In all the circumstances, including a con-
sideration of the fact that Hanell was a discharged emploN-
ee with no right of access to the Employer's premises.
Babb's action in telling Hanell that he would have to waitt
for Dorsey, and then permitting him to wait for and talk to
Dorsey on company premises cannot be said to be discrim-
inatory. I will therefore recommend that the allegation of
the complaint relating to the prevention of union members
from attending union meetings be dismissed. I have credit-
ed the testimony of Dennis Babb over that of Ron Hanell
with respect to their conversation about union representa-
tion at the time that Babb confirmed that Hanell was dis-
charged on September 17. and I find nothing unlawful in
Babb's response to Hanell's inquiry, as to whether or not
he should have a union steward present, to the effect that
Babb had no knowledge that this was necessary. Ilanell
did not ask for a steward nor specifically request that one
could be present. It might be inferred from Babb's testi-
mony that Hanell's inquiry as to whether or not he should
have a union steward present might possibly be translated
as a request for one, but I do not think that the stature of
the evidence is sufficient to warrant such a finding. In any
event, Babb was merely reiterating a decision already made
and announced to discharge Hanell. Babb did not seek to
interview Hanell or question him about the reasons for his
discharge. Hanell had in fact already been discharged by
Drew, and the Respondent Employer was under no con-
straint to permit Hanell union representation at the mere
announcement of an already effectuated discharge. Hanell
already knew he was fired and was not in a situation like
that contemplated by Weingarten 5 where the employee
has not as yet been disciplined and is entitled to union
representation during an interview which the employee
reasonably believes may lead to discipline. Further, I con-
clude the General Counsel's allegation that the Employer
kept the name and address of the Union a secret from its
employees from on or about July I through October 15,
1976, to be without merit. It is patent from the evidence
adduced by the General Counsel, and that stipulated to by
the parties, that all employees were presented with three-
5 N L RB v J 'eingarten. Inc. 4201 t S 251 1975s
part union application and checkoff cards upon com-
mencement of their employment, and that these three
cards each bore the name of the Union conspicuously
placed thereon. I know of no requirement on the part of an
employer to make a specia; point of advising its employees
as to where that union is physically located, and there is no
evidence whatsoever that the Respondent Employer made
any effort to keep the Union's address a secret.
I further conclude and find that the General Counsel has
not shown by a preponderance of the evidence that the
Respondent Union either acted in bad faith toward
Hanell's grievance or was motivated by arbitrary. irrele-
vant, or invidious considerations in failing to pursue
Ilanell's grievance to arbitration. In my opinion, Dorsey
represented Hanell to the extent the grievance required.
and his failure to pursue it further than he did was a rea-
sonable exercise of his discretion in the light of what he
discovered during his investigation and discussions of the
grievance with Hanell and the Employer. The evidence sur-
rounding the handling of Hanell's grievance decisively re-
futes the General Counsel's contention that the Respon-
dent Union failed to afford fair representation to Ron
Htanell with respect to his grievance," and there was no
evidence whatsoever adduced that the Union failed in an?
other manner to take reasonable steps to fairly represent
an' member in a grievance with the Respondent Employer.
Although I have not previously referred to this allega-
tion. I deem it appropriate at this point to reject the Gener-
al Counsel's contention that the Union unlawfully failed
and refused to provide stewards and other representatives
necessary to administer the contract and represent the em-
ployees thereunder, and failed to advise employees covered
by the contract of its identity or location. It is obvious that
the employees were aware of the identity of the Union: 7 it
is established that the Union posted its contract on the
Company's bulletin board commencing in late July 1976,
and later distributed copies to employees. The record
shows that Union President Dorsey was in and out of the
plant at various times almost from the date of its opening.
SimilarlN, Dorsey's identity was known among the employ-
ees. There is no evidence of the employment of restraint or
coercion by the Union to inhibit grievance filing, and I
have seen no evidence whatsoever in this record that any
employee was deprived of fair representation or contractu-
al benefits due to any laxity on the part of the Union in
administering its contract, or representing the employees,
or advising employees of its address. Accordingly, I will
recommend the allegations of the complaint referring to a
r See i ',I,,, P',Aitngh,u, Diiion, A malgamnated MewI (Cuter, and
Butrher ilfrk men (I PI4H.l AiF4 ('10 (Omaha ParAing (omprani. 206
NlRH 576, 7'9 119'71 fir al dlicus,, n If the duty to represent.
I Atlhoulh the failt that the emplteee signed the union card, a1 the time
that the w ere hired doce noct eitahlish that thes were aware of the locatiton
of the t mnon hecaue Ihe cGrd, have no address on them. the General
(',unsel' ,, cottllton that eniplisee Acre not made aware of the Identilt of
the t nmln h, the cards which thes signed. because there is no evidence Ihat
thes got a cops of the cards. altrihutes a lack of Intelligence and powers of
oheraion t to the emp'loee, whlch I find to be totalls unwarranted I do
not behliee thit it can be rationall, concluded that emplosees who sign
three cards. wth the I nlon"s name prominently displased thereon. which
desilgnate the I mnn I, represent them and authorlze the deduction of
mones from their pa., i,,uld experience selecille amnesla onie theN parted
'iLil Ih ct , nei d card,
619
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failure and refusal to provide necessary union representa-
tives 18 and the failure to advise employees of the Union's
identity or location be dismissed.
C. Penny Lynne Childers
Childers received written warnings for absenteeism on
November 8, 1976, and January 7, 1977, and was subse-
quently discharged on February 23, 1977. The reason ad-
vanced by the Employer for her discharge is absenteeism.
The Employer has a written absentee policy reading as fol-
lows:
ABSENTEE POLICY "9
Your job is as necessary and important as any in the
company. Completing the finished product calls for
team work and cooperation; therefore, you are expect-
ed to work everyday except in cases of sickness or
emergencies. If you cannot attend work, please call
between 8:00 a.m. and 9:00 a.m., if you work on the
Ist shift. If you are on the 2nd, call between 2:00 p.m.
and 3:00 p.m.. If you call at any other time we will not
accept the excuses. If you miss 3 or more days you
must bring in an excuse from the doctor. You will be
given two warnings, either oral or written, regarding
excessive absenteeism. If you receive a third warning,
this is grounds for a dismissal.
Notwithstanding the reference to a doctor's excuse in the
Company's written policy, it is clear from the testimony of
employees Childers, Lord, and Henn that written warning
were issued to them even though they presented doctors'
excuses, and that Dennis Babb specifically rejected these
excuses at the time written warnings were issued. Further-
more, employee Lord testified that when she received prior
approval, in about September 1976, for a series of dentist
appointments, she was told by Babb that the Employer had
to have full-time, not part-time, employees. Lord received
her written warning in October or November 1976, and
Henn received a written warning on November 8, 1976.
Neither one is alleged in the complaint to have been dis-
criminatorily motivated, nor is there any evidence or alle-
gation that the warnings of November 8, 1976, and Janu-
ary 7, 1977, to Childers were discriminatorily motivated by
an activity protected under the Act.
Childers testifies that sometime in January, after she had
received her January 7 warning, the new assistant plant
manager, Fred Parker, who had been hired into that posi-
tion on January 10, 1977, came to where she was working
and spoke to her. During the course of her testimony, she
described this conversation three different times. The first
version is as follows:
18 The General Counsel provides no guidance as to what number of steu-
ards, or other representatives. the Union should havse provided or when the
Union should have done so. General ( ounsel has elected not to reveal this
secret formula or provide any legal authority for his conclusion, and I find
nothing in the record to indicate that fair union representation was denied
any'one by the delay of the election of stewards to Ocltober 22. 1976
This policy is set forth as part of a two-page document entitled '"vel-
come to Party Cookies ( ompany" distributed to employees
A. He said that he was Fred, which we all knew.
And he called Ruby by her name. He said, "Hi,
Ruby." And he said Hi-I can't remember if he said
Kay or who he had said. And I said, "No, I am Pen-
ny."
He says, "Oh, Yes. You are the troublemaker
around here." Which I in turn asked him what he
meant by that. He said, always running off to the
Union with your problems. And I got a little mad at
him.
JtI XiE WOLFE: Did you say anything?
THEi W1TNESS I just told him-I said-I didn't say
really much of anything. I says, "Well, that is a fine
how do you do." I do remember saying that. And I
just turned my back on him.
On cross-examination, Childers testified as follows:
Q. And would you go through once again and tell
us how that conversation came about, who said what?
A. Ruby Fretigello [sic] and I were by the oven
making trays, waiting for the cookies to come down.
And F:red Parker walked up and he called-he said,
"Good morning, Ruby," and he said good morning-I
can't remember whose name he said, but it wasn't my
name. And I said. "No, I am Penny." And he says,
"Oh. Yes. You are the troublemaker around here."
*
Q. I see, And what was said then?
A. I asked him what did he mean by that, and he
said, "Well, you are running off to the union." He
said, "You go to the Union. You go by the contract.
You go by the union contract."
Q. Well, did he say that you were running off to the
union or you were going by the union contract or
both?
A. He said, "You are always . . ." I can't remem-
ber exactly how he said it. But he did say, "You al-
ways run to the union. You always go to the union.
You go strictly according to contract."
Q. Now did he say you go to your union?
JUXDGE WOLFE: Either in words or substance?
THL WI'NESS: No. He said, "You are always going
according the union contract." He did not say you go
running to your union.
Later on Childers testified to this incident as follows:
A. We were packing on the line, making trays, little
five pound trays and Fred Parker walked up and he
said hello to Ruby and he called me someone else's
name-Kay or Sharon. And I said, "No, I am Penny."
And he said, "Oh, yovuare the troublemaker around
here." And I said, "What do you mean by that?" And
he said, "I understand that you go according to the
union or strictly by the Union."
Childers says that, about a week later, Parker told her
that Union President George Dorsey was in the plant and
asked if she didn't have something to tell Dorsey. She
asked what he meant, and he said that he just figured that
she wanted to talk to Dorsey. When called as a rebuttal
witness, Childers testified that after this conversation with
620
PARTY COOKIES. INC
Parker, he came up to her on a later occasion to talk to
"us" and she said. "Oh. yes, remember I am the trouble-
maker." She does not testify as to what provoked this state-
ment, and it was not mentioned on direct examination dur-
ing the General Counsel's case in chief but was elicited as
rebuttal to the testimony of Fred Parker set forth below.
She goes on to say that Parker then told her that if she had
any problems he was the man to see.
Childers further testified that about a week after Parker
asked her if she had anything to tell George Dorsey. Dor-
sey was leaving the plant when Parker walked up to her
and other employees and said "You had better go grab
George. You didn't tell him nothing today."
Parker does not recall when he first met Childers and
does not recall introducing himself to her. He further testi-
fied that he did not recall ever telling her that he knew who
she was, that he thought that she was a troublemaker. or
that she was a troublemaker. He also denied ever having
any discussions with Penny Childers about anything or
Penny Childers ever saying that she was a troublemaker.
but then testified that he knew who Childers was and did
have short conversations with her wherein she said that she
was a troublemaker. Parker then elaborated that Childers
told him that she was a troublemaker. and that he should
watch out for her because she was a troublemaker and he
was going to have trouble with her. He replied that if she
had any trouble or problems to see him about it. He recalls
no other conversations with Childers and denies discussing
the Union with her, telling her to file grievances, telling her
a union representative was in the plant, telling her that
Dorsey was there and she ought to catch him before he left,
or asking her why didn't she talk to George Dorsey be-
cause he was now there. Parker places his conversation
with Childers shortly after he was hired on January 10. On
cross-examination, he avers that the conversation with
Childers that he related arose when Childers called him to
her. He says she had no problem at that time. and recalls
no further conversation than what he has already related.
The Employer called employee Ruby Fratogillo as a wit-
ness. She denied hearing Fred Parker call Childers a trou-
blemaker or telling anybody that he had so called her. but
conceded that she did give a pretrial affidavit to the Board
in which she untruthfully related that Parker did at one
time call Childers a troublemaker, and stated that she
made this pretrial statement because Childers had urged
her to, after she had told Childers that she did not remem-
ber Parker ever saying that Childers was a troublemaker.
In sum, Fratogillo recanted her pretrial statement, conced-
ed that it was not true at the time that she gave it. and
testified that Parker did not call Childers a troublemaker.
The parties made various arguments in their briefs regard-
ing the testimony of Fratogillo, which I have carefully con-
sidered. Childers denied the statements of Fratogillo to the
effect that she urged her to tell the Board things that she
did not have knowledge of. In all the circumstances. I am
persuaded that the testimony of Fratogillo is of little pro-
bative value. In view of the direct conflict between her
testimony at trial and her sworn pretrial statement, I am
persuaded that her testimony before me is of questionable
reliability at best, and I do not rely on the evidence prof-
fered by her in either instance, or credit her assertion that
Childers asked her to make sworn statements about things
she had no recollection of.
With respect to her union activity. Childers states that
although she attended the union meeting on October 22 (or
25). 1976. she did not stav for the entire meeting. There is
no esidence that she took an active part in the discussion in
that meeting. The only other union meeting that she at-
tended was on February 17, 1977. 1 am persuaded from a
synthesis of all the testimony about the content of this
meeting that she made various complaints at the meeting
about being falsely accused of writing a letter to Babb's
wife, the ladies' bathroom. Babb's attitude towards the
girls. and certain aspects of the Company's absentee policy
including their refusal to accept doctors' excuses. I am also
persuaded that others voiced the same complaints, and she
was among the more vocal complainers at the February 17
meeting.
Prior to the Februar, 17 meeting, on or about February
10 or II11. after Childers asked line leaders Sabinske and
Dolph wh' another employee could not change jobs with
her and trs it out because the other employees were com-
plaining about it. Dennis Babb came out into the plant.
She asked him the same question and Babb changed the
two around on their jobs without further incident. At some
other time in February. employee McDonald was upset
because a newer employee had been put on her job, and
she talked to Childers about it. Dolph and Sabinske also
entered into the conversation, and Childers voiced her
opinion that it was not fair because McDonald had senior-
ity. Dolph allegedly said that seniority meant nothing, and
Sabinske said that job ability counted. According to Child-
ers, she saw Dolph and Sabinske go into Babb's office, and
thereafter McDonald ran the job that she wanted. Childers'
testimony with regard to her activities on behalf of these
two employees in February is uncontroverted, and I there-
fore credit her with respect to these events. There is no
evidence the Employer criticized Childers or harbored any
grudges against her because of these two incidents.
Although I have difficulty seeing any relevance to the
issues before me, it appears that sometime after she re-
ceived her second warning on January 7. Childers had a
conversation with Supervisor Powalski and Dolph, wherein
she was asked if she knew who had written a personal letter
to Babb's wife. She denied such knowledge. Dolph told her
that she had been blamed for it. and she also denied that.
Niether Childers' nor Parker's testimony is a model of
internal consistency. but after a careful consideration of
the comparative demeanor of the two as they testified (in-
cluding the distinct impression given by Childers that she
was making a conscious effort to bolster her case), and the
fact that there is no evidence of any union activity or con-
certed protected activity or any other activity, protected or
unprotected, by Childers prior to the alleged January state-
ments by Parker, with the possible exception that the Re-
spondent might have suspected her of writing a personal
letter to Babb's wife which appears to have been totally
unconnected to any statutorily protected activity, that
would logically provoke Parker to call Childers a "trouble-
maker," I am persuaded that Parker's testimony is the
more credible. I therefore conclude and find that Childers.
not Parker, affixed the label of "troublemaker" to herself.
621
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Why she would do so is largely a matter of speculation, but
I believe the most probable reason, and indeed the only
remotely ascertainable one from the record before me, is
an angry reaction by Childers to the alleged inquiries of
Powalski 20 and Dolph in January regarding the letter to
Babb's wife. On the basis of the evidence before me, I am
convinced that the General Counsel has not shown by a
preponderance of the credible evidence that Fred Parker
committed violations of Section 8(a)( I) of the Act as al-
leged in the complaint.
Childers testified that, on February 21, Dennis Babb
walked up to her and said good morning, to which she
replied in like fashion. Babb commented that she looked
like she was mad about something, and she said that she
was indeed mad about something. She told him that she
had been accused of saying something that she really
didn't say at the union meeting. Babb replied, "Well, you
girls weren't satisfied with the way things were," and went
on to say "You always have to run off to the union. Now
things are going to change in the future." This closed the
conversation.
Although I have not credited Childers in some instances
where her testimony has been controverted by witnesses
and other evidence, I credit Childers' account of the Feb-
ruary 21, 1977, conversation with Babb, which he does not
deny, and conclude that his statement clearly implies
knowledge that Childers and others had taken their com-
plaints to the Union, and impliedly threatens employees who
do so with unspecified reprisals in the future. Such a threat
violates Section 8(a)(1) of the Act as an interference with and
restraint on employees' rights to utilize union representation
in presenting their grievances about working conditions.
Mamie Jimison, when called as a witness by the General
Counsel, testified that about February 19, 1977, Babb
came back to give her a message, and that she asked him if
he had heard what had gone on at the union meeting, to
which he replied that he knew everything that went on.
According to Jimison, the conversation only lasted 2 or 3
minutes and Babb left. On cross-examination, Jimison tes-
tified that after she asked Babb if he knew what had been
said or what had gone on at the union meeting the night
before and received a reply that he did know what had
gone on, she told him that she had heard that Childers had
said at the meeting that Parker was putting his hands on
her or something to that effect. Although her testimony
was confused at times, Jimison impressed me as a witness
trying to be honest and relate what she recalled to the best
of her ability. She concedes that all she had heard about
the meeting was just gossip and that the only thing that had
taken her interest was the part about Fred Parker which
she had mentioned to Babb. She further testified that she
had never seen Fred Parker do anything other than pat
employees on the shoulder in a friendly fashion, but
doesn't remember telling Babb this. She does not recall
everything that Babb said, or whether or not he said any-
thing, about Parker during the conversation. Jimison was
20 That Powalski even talked to Childers in January is dlouhtful at best
Babb testified that Powalski left the Respondent l mploy er's cmplo ment in
December. and General Counsel raised no evidence to the contralrs other
than Childers' testimony herein above.
still employed by the Company at the time of the hearing.
Babb testified that he did talk to Jimison about Parker
on February 21 (as opposed to February 19).21 Babb relates
that he had gone to give Jimison a message, and she told
him there was a union meeting the prior week and that
Penny Childers had accused Fred Parker of patting several
of the girls on the derriere. She also told Babb that this was
not true and she was concerned that Parker might lose his
job over it. Babb assured her that Parker would not lose his
job, and denies saying anything about the union meeting
during the conversation, or saying that he knew what had
been going on at the union meetings. He concedes that he
knew that there was a union meeting because it was posted
on the bulletin board in the lunchroom. Jimison was then
recalled by General Counsel and testified that she did not
tell Babb that Childers had said that Parker was patting
people on the rear, but may have said that he was patting
people on the shoulder. She further states that she never
told Babb at any time that Childers had said that Parker
was patting people on the rear, or told Babb that any state-
ment Childers was making that Parker was so patting peo-
ple was false, or at any time telling Babb that it would not
be fair if Parker should lose his job over such a statement
by Childers about something that did not happen.
It is always difficult to assess credibility in a one-on-one
situation like that of Jimison and Babb with respect to this
February conversation concerning Parker. I was particu-
larly impressed by the sincerity and candor of Jimison who
appeared to be stating that which she recalled to the best of
her ability, and her unshaken testimony that Babb did tell
her that he knew what had gone on at the union meeting. I
therefore credit Jimison's testimony that Babb told her that
he knew what had gone on at the meeting and her version
of the conversation regarding Childers and Parker. In ar-
riving at this conclusion I have taken note that Jimison was
still employed by the Company and would not be likely to
give false testimony contrary to that of her superior who
still controlled her working conditions. 22
Childers took off work on February 22, and claims that
she was off due to an upper respiratory infection and that
she had advised someone at the Company that she would
not be in. On this same day, the Company and Union met
together to discuss various problems that had been brought
to the Union's attention at the February 17 meeting. There
is no evidence that Childers' name was mentioned at this
meeting other than in the context of absenteeism. The par-
ties discussed a list of several problems. The Union specifi-
cally initiated a discussion of absenteeism and the
Company's policy thereon. In the course of this discussion
on the question of absenteeism, Babb produced the records
of Childers, and employees VanLoon, Shidler, and Assis-
tant Union Steward Wisenbaugh, who were the worst of-
fenders in terms of being absent from work. The records of
these employees were introduced into evidence, and they
do indeed reflect that Childers had the worst record. Wis-
enbaugh was present at the meeting, and she was asked to
explain. She replied that she knew about her absenteeism
h lc ruars 21. a NMonda,.t appears a more logical date than February 19.
a Siturdas
"Federal Statinlo SinkA Dio otI narcol nd Industries. Inc. 197 NLRB 489.
491 11972.
622
PARTY COOKIES, INC
and was trying to improve it. It appears from a synthesis of
the testimony of Hoch, Babb, and Union Steward Barnes.
that Hoch asked Babb to bring the girls into the office so
that they could talk to them. There is no evidence as to
whether or not they talked to VanLoon and Shidler at this
meeting. Babb left the meeting to get Childers and found
that she was not at work that day. There was general agree-
ment among the company and union officials present that
Childers' absence record was indeed excessive, and Hoch
stated that he thought Childers should be terminated. The
union officials agreed that Childers's absences warranted
termination. All of them examined the absentee records
before reaching this agreement.
Childers came to work on February 23 and was called
into Babb's office where he terminated her. He told her
that it was for absenteeism and that she had missed 13
days. She protested that one of these days was the day that
she was sent horn at 2:30 and another was a date on which
she had left work at I o'clock. Babb refused to argue with
her, and the discharge letter was signed by her and the
company and union representatives present. She then left.
With regard to the Company's policy on absenteeism,
Babb asserts that he monitored absenteeism on a twice-a-
month basis. He also says that he pointed out at the meeting
with the Union that he based a finding of excessive absentee-
ism on a determination that any employee who missed 10
percent or more of the work scheduled for him over a 2-month
period would be excessively absent.
The parties stipulated that upon review by the Company
of its records on or about November 18, 1976, employees
Penny Childers, Kay Shidler, and Mary' VanLoon received
a first written warning. The parties also stipulated that
upon a second review by the Company of the records of
the employees on or about January 7, 1977, employee Pen-
ny Childers received a second warning, as did Mary' Van-
Loon, Kay Shidler did not receive a written warning, and
Delores Wisenbaugh received a first warning. All of these
warnings were for absenteeism. The parties further stipu-
lated that the Employer had not discharged any employee
other than Penny Childers at its Michigan City facility for
absenteeism.
Discussion
Dennis Babb's statements to Childers and Jimison on
February 21 fairly imply that Babb did have knowledge of
what happened at the February 17 union meeting, and his
statement to Childers also carries with it an announcement
of the Respondent Employer's aversion to the girls taking
problems to the Union, as well as an expression of intent to
retaliate against such activity by making some unspecified
changes at the plant.
One of the major topics of discussion between the C(om-
pany and the Union on February 22 was the Employer's
policy on absence. The Union raised employees' com-
plaints about the policy and its application. and requested
an explanation. I am persuaded, by Babb's comments the
day before, that the Respondent Employer was aware that
Childers had complained to the Union, as had others,
about the administration of the absence policy. I have ear-
lier found that the Respondent Employer, by Babb's state-
ment to Childers, had expressed its hostility to employee
complaints to the Union. It was within this framework of
union inquiries based on employee complaints to which the
Company was averse that Childers was discharged.
Childers' absence record was the worst. That is uncon-
troverted. She was also absent from work the very day that
the Union and the Company were explaining the absence
policy as a result of employee complaints thereon pre-
sented by the Union, and was unsuccessfully sought by
Babb in order that she might discuss her absence record
with the Union and Company jointly. When Babb reported
back that she was absent from work that day. the Respon-
dent Employer announced its intent to discharge her, with
which the Union agreed.
I am persuaded that Childers' discharge was motivated
by her and other employees' complaints at the union meet-
ing, the Company's hostility toward such complaints, and
the Company's knowledge that she made complaints.2" The
discussion of the absence policy, Childers' bad attendance
record, and her fortuitous absence on the very day of the
meeting presented the Respondent Employer with a color-
able reason to make an example of Childers, an action
reasonably calculated to discourage employee complaints
to the Union. An argument that either her record or her
absence on February 22, which probably was an irritant to
the Employer when Babb sought but could not find her, or
both was the determinative factor in the decision to termi-
nate her does not bear close scrutiny because, as General
Counsel points out, Childers had not been absent the re-
quired 10 percent of assigned work after her warning of
January 7. even including February 22. The Respondent
Employer did not, therefore, apply the formula expounded
by Babb in Childers' case. There is no explanation of its
failure to so do. In view of Babb's careful explication of the
methodical way in which he conducted his reviews of ab-
sences and the percentage of absences required to trigger a
conclusion of excessive absenteeism, and the absence of
an) credible reason for deviation from that formula in
Childers' case. I conclude that excessive absenteeism was
not the real reason for her termination. I further conclude
that the advancement of an untenable reason for discharge,
where protected activity is present, spells pretext, and pre-
text gives rise to a fair inference of unlawful motivation.24
Accordingly, I find and conclude that the Respondent Em-
ployer discriminatorily discharged Penny Childers on Feb-
ruars 23. 1977, in order to discourage union activities
among its employees. and thereby violated Section 8(a)(3)
and (I) of the Act.
D. Miscellaneous
The General Counsel contends that the Respondent Em-
ployer violated Section 8(a)(I) and (2) of the Act by the
conduct of its supervisors and agents Dennis Babb, Linda
Powalski. and Sharon Sabinske, in attending and partici-
pating in meetings of Local 100 in October 1976.
I 1 hat ,he complained ahout other things as well a, the absence polhc,
a.Ild hat the it 1lin icqu ieced an her discharec do not. In ni' opinlon,
milhlalzt Io the co.ntr.ir
-(,. r, /',,,linrtc I,/ 'I11 NI RH 71' 71'2 14)4t
623
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Dorsey met with the employees on two occasions
in October 1976 at the plant after working hours. The dates
are somewhat uncertain, but I conclude that the first was
about mid-October, and was the one at which Hanell filed
his grievance. The second was on October 22 or 25, 1976.
At the meeting of October 22 or 25, Babb, Powalski, and
Sabinske were present. Babb again introduced Dorsey as
the Union's president, and he and Powalski then left with-
out further participation in the meeting. At the end of the
union meeting, Babb was invited in to answer some ques-
tions that Dorsey did not know the answer to. The record
is unclear as to what these questions were. Sabinske was
present throughout the October 22 meeting, but took no
active part in it. Some of the employees asked Sabinske to
leave because they thought her a supervisor, but she re-
fused because she was still paying union dues. There is
sufficient evidence from Babb's testimony that (l) employ-
ees who refused to follow the instructions of Penny Dolph
or Sabinske would be insubordinate, (2) during the July to
October 1976 period the two had the same duties as stipu-
lated Supervisor Powalski except interviewing applicants,
(3) when employees sought permission to leave the plant
their "immediate supervisor" (Dolph or Sabinske) would
ask Powalski, and (4) both Dolph and Sabinske made de-
terminations as to which employees to place on which job,
and when to move them to a different position, to establish
a prima facie determination that Sabinske and Dolph were
statutory supervisors, albeit the lowest level ones. I do not,
however, find any evidence that the Respondent Employer
encouraged, authorized, or ratified Sabinske's limited par-
ticipation in the October 22 meeting, or that the employees
in attendance were given any reason to believe Sabinske
was acting on behalf of the Employer. 2 5 On the contrary, it
is plain that she was claiming her right to stay solely be-
cause she paid dues to the Union, and the only thing she
did was sit in, so far as the record shows. I do not find
Sabinske's attendance at this meeting sufficient to support
a finding of an independent violation of Section 8(a)(1)
and (2).
On the basis of the foregoing facts and conclusions, I
find no merit in the allegation that the Company violated
Section 8(a)(1) and (2) by the conduct of its supervisors
and agents participating in union meetings.
Although I have found that the Respondent Union, Lo-
cal 100, has violated the Act, the collective-bargaining
agreement, membership, and checkoff referred to herein all
run to Local 100, and there is no basis on the evidence
before me upon which to hold the Allied Workers Interna-
tional Union liable for the unfair labor practices of its con-
stituent, Local 100, and I will therefore so recommend.
IV. THE EFFECT OF THE UNFAIR LABOR PRA(CTICES UPON
COMMERCE
The unfair labor practices of the Respondents set forth
above, occurring in connection with the operations of Re-
spondent Company described in section I above, have a
close, intimate, and substantial relationship to trade, traf-
25 Vassau and Suffolk Contractors' Assocaiuiosl. Inc 118 NLRB 174. 181
(1957).
fic, and commerce among the several States and tend to
lead to labor disputes, burdening and obstructing com-
merce and the free flow of commerce.
V TIIF REMEDY
Having found that the Respondents have engaged in cer-
tain unfair labor practices, I shall recommend that they be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent Company unlawfully
recognized and rendered support to Respondent Union,
Local 100, at its Michigan City. Indiana, plant and unlaw-
fully imposed a contract with that union containing union-
security and checkoff provisions, I shall recommend that
the Respondent Company withdraw and withhold all rec-
ognition from Local 100, Allied Workers Union, a/w Al-
lied Workers International Union, as the collective-bar-
gaining representative of its employees at its Michigan
City, Indiana, plant and cease giving effect at that location
to its contract, without, however, requiring the Respondent
Company to vary any wage or other substantive features
established under the same contract.
Inasmuch as I have found violations of Section 8(a)(3)
and (b)(2) in the unlawful extension of the union-security
contract to the employees at Michigan City, I shall recom-
mend that the Respondent Employer and the Respondent
Union, Local 100, be ordered, jointly and severally, to
reimburse the employees for dues and fees unlawfully ex-
acted from them with interest thereon to be computed in
the manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).26 My recommended order will also re-
quire the Respondent Employer to offer unconditional re-
instatement to Penny Lynne Childers to her former job or,
if that job no longer exists, to substantially equivalent em-
ployment, and make her whole for all wages lost by her as
a result of her unlawful discharge, such backpay and inter-
est thereon to be computed in the manner prescribed in
F W. Woolworth Conmpany, 90 NLRB 289 (1950), and
Florida Steel Corporation, supra.27
(CON( I:SIONS OI LAW
1. The Respondent Employer, Party Cookies, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Respondent Union. Local 100, Allied Workers
Union, a/w Allied Workers International Union, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By unlawfully assisting and supporting the Respon-
dent Union, Local 100, and by the unlawful extension of
the union-security contract to its employees at Michigan
City, the Respondent Company engaged in unfair labor
practices within the meaning of Section 8(a)(1), (2), and (3)
of the Act.
4. By obtaining recognition as the sole bargaining repre-
sentative of the employees at Michigan City, Indiana, by
See generallb Isir Plulmbing & Heating ( 1., 138 NLRB 716 (1962).
See In. 26, rl/pra
624
PARTY COOKIES. INC(
submitting them to the terms and conditions of the collec-
tive-bargaining agreement as found herein, and b' unlaw-
fully extending the union-securit! contract to them, the
Respondent Union, Local 100, restrained and coerced, and
is restraining and coercing the employees of the Respon-
dent Company in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8(b)( 1 )(A) and
(2) of the Act.
5. By discharging Penny Lynne Childers. the Respon-
dent Employer engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (I of the Act.
6. By threatening employees with changes in their work-
ing conditions because they took their complaints about
working conditions to the Union. the Respondent :m-
ployer violated Section 8(a)( ) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) of the Act.
8. The Respondent Employer and the Respondent
Union, Local 100, have not committed any other unfair
labor practices alleged in the complaint.
9. The Respondent. Allied Workers International
Union, has not committed any unfair labor practices al-
leged in the complaint.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act. I hereby issue the following recorm-
mended:
ORDER 2
A. Party Cookies. Inc.. Michigan City, Indiana. its offi-
cers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Contributing support and assistance to Respondent
Union or to any other labor organization of its employees.
(b) Recognizing Respondent Union, Local 100. as the
bargaining representative of any of its employees at its
Michigan City plant for the purpose of dealing with the
Company concerning grievances, labor disputes. wages,
rates of pay, hours of employment, or other conditions of
employment, unless and until said labor organization shall
have demonstrated its exclusive majority-representative
status pursuant to a Board-conducted election among the
said employees at Michigan City, Indiana.
(c) Giving effect to the collective-bargaining agreement
of April 1, 1976, between the Respondents, or to any exten-
sion, renewal, or modification thereof (insofar as it applies
to employees at the Michigan City plant). provided, how-
ever, that nothing herein shall require the Respondent
Compaty to vary or abandon any wages, hours, or other
substantive features of its relations with its employees at
Michigan City which the Respondent Company has estab-
lished in the performance of a contract, or to prejudice the
2: In the event no exceptions are filed as pro, ided hb Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board. ihe findinve.
conclusions. and recommended Order herein shall. as presided in Sec
102.48 of the Rules and Regulations. he adopted hs the Board and herome
its findings, conclusions, and Oldesl. a.d all di leicions theSeto shall he
deemed aised for all purposes
assertion bh employees of any rights they may have there-
under.
(d) Threatening employees with loss of their jobs for
failing or refusing to sign membership and or dues-check-
off authorizaioon cards.
(e) Threatening employees with changes in their work-
ing conditions because the employees take their complaints
about working conditions to the Union.
if) Discouraging union activity, or protected concerted
activity. by discharging employees or otherwise discrimi-
nating in any manner with respect to their tenure of em-
ployment or any term or condition of employment.
(g) In any other manner interfering with the rights guar-
anteed employees in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Re-
spondent Union. Local 100. as the exclusive bargaining
representative of its employees at Michigan City for the
purpose of dealing with it concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment. or other
conditions of employment unless and until said labor orga-
nization shall have demonstrated its exclusive majority-
representatie status pursuant to a Board-conducted elec-
tion among its employees at the Michigan City. Indiana.
plant.
(b) Jointly and severally with the said Respondent
Union. Local 100, reimburse its employees at Michigan
Cit\. Indiana, for an 3 initiation fees, dues, or other moneys
paid or checked off pursuant to the aforesaid agreement or
any extension. renewal. modification, or supplement
thereof. or to any agreement superseding it, plus interest
thereon computed in the manner set forth in the section of
this Decision entitled "The Remedy."
(c) Offer Pennx Lynne Childers immediate and full rein-
statement to her former job or. if that job no longer exists,
to substantially equivalent employment without prejudice
to anx seniority and other rights and privileges previously
enjoyed by her.
(d) Make Penny Lynne Childers whole for any loss of
pay she may have suffered as a result of the Respondent
Employer's discrimination against her. Said backpay shall
he computed in the manner set forth in the section of this
Decision entitled "The Remedy."
(e) Preserve and. upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records and reports and all other records required to
ascertain the amount of any backpay due Penny Lynne
Childers under the terms of this recommended Order.
(f) Post at its Michigan City, Indiana, plant copies of the
attached notice marked "Appendix A." 29 Copies of said
notice on forms provided by the Regional Director for Re-
gion 25. after being duly signed by Respondent Company
or its representatives. shall be posted by Respondent Com-
pany immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
: In the e.eni that this Order is enfoirced h) a judgment of a United
Si;lles ( 'url of Appeals, the .ord, in the notice reading "Posted b) Order
of the Na.nilnll Ihabor Relal.on Board" shall read "Posted Pursuant to a
.ludemenl of the t loted States (' )urt of Appeals Enforcing an Order of the
Nallonal I.ahbor Relat.ion Bioard
625
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent Company to insure that said notices are not al-
tered, defaced, or covered by any other material.
(g) Post at the same places as set forth in (f) above, and
as soon as they are forwarded by the Regional Director,
copies of Respondent Union. Local 100's notice herein
marked "Appendix B."
(h) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps have been
taken to comply herewith.
B. Local 100, Allied Workers Union, a/w Allied Work-
ers International Union, its officers, agents, and represen-
tatives shall:
I. Cease and desist from:
(a) Acting as the exclusive bargaining aagent of any of
Respondent Company's Michigan City. Indiana. employ-
ees for the purpose of dealing with the Company concern-
ing grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment unless
and until said Respondent Union shall have demonstrated
its exclusive majority-representative status pursuant to a
Board-conducted election among the employees at the
Michigan City, Indiana, plant.
(b) Giving effect to the April 1, 1976. collective-bargain-
ing contract between the Respondent Company and Re-
spondent Union, Local 100, insofar as it affects employees
at the Michigan City plant, or to any extension, renewal, or
modification thereof.
(c) In any other manner restraining or coercing employ-
ees at the Michigan City, Indiana, plant of the Respondent
Company in the exercise of rights guaranteed them in Sec-
tion 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Jointly and severally with Respondent Company
reimburse said Company's Michigan City, Indiana, em-
ployees for any initiation fees, dues, or other moneys paid
or checked off pursuant to the agreement applied to Re-
spondent Company's employees or to any extension, re-
newal, modification, or supplement thereof, or to any
agreement superseding it, plus interest thereon computed
in the manner set forth in the section of this Decision enti-
tled "The Remedy."
(b) Post in conspicuous places in the Respondent
Union, Local 100's business office, meeting halls, and
places where notices to its members are customarily post-
ed, copies of the notice attached hereto marked "Appendix
B." 30 Copies of said notice, on forms provided by the Re-
gional Director for Region 25, shall, after being duly
signed by an authorized representative of Respondent
Union, Local 100, be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter. Reasonable steps shall be taken by Respondent
Union, Local 100, to insure that said notices are not al-
tered, defaced, or covered by any other material.
(c) Furnish to the Regional Director signed copies of the
aforesaid notice for posting by Respondent Company at its
Michigan City, Indiana, plant in places where notices to
employees are customarily posted. Copies of said notice,
on forms provided by the Regional Director. shall, after
being signed by the Respondent Union, Local 100, as indi-
cated, be forthwith returned to the Regional Director for
disposition by him.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken to comply herewith.
11 Is -I RTHI R ORI)ERFI) that the complaint be dismissed
insofar as it alleges violations of the Act not found herein.
" Sc fn 29. urpar
APPENDIX A
Not IC(E To EMPLOYEES
PosrlD BY ORDER OF I HE
NAIIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has Found
that we violated the National Labor Relations Act and has
Ordered us to Post this notice and carry out its Terms.
Wit W i.I Noi assist or contribute support to Local
100, Allied Workers Union, a/w Allied Workers Inter-
national Union, or any other labor organization of our
emplos ees.
WE wnl, NOI recognize said union as the exclusive
bargaining representative of our employees at the
Michigan City. Indiana, plant, unless and until said
labor organization shall have demonstrated its exclu-
sive majority-representative status pursuant to a
Board-conducted election among said employees.
W will. No-r give effect to the collective-bargaining
contract of April 1, 1976, with the Union, insofar as it
affects employees at the Michigan City. Indiana,
plant, but wFr will. NOT vary or abandon those wages,
hours, or other substantive features of our relations
with our employees, established in performance of
said agreement, or prejudice the assertion by employ-
ees of any rights they have thereunder.
WF WIl. NOT threaten employees with loss of jobs
for failure or refusal to sign union membership appli-
cation and/or dues-checkoff authorization cards.
WE WIL.L NOT threaten employees with changes in
working conditions because they complain to a union
about their working conditions.
Wr will NOT discourage union activities, or protect-
ed concerted activity, by discharging any of our em-
ployees. or in any' other manner discriminating against
them in regard to their tenure of employment or other
term or condition of employment.
WI Wiin NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed by Section 7 of the Act.
WL will.. jointly and severally with Local 100, Allied
Workers Union, a/w Allied Workers International
Union. make whole the employees of the Michigan
City, Indiana, plant for dues and initiation fees paid to
the above-named labor organization, plus interest
thereon.
626
PARTY COOKIES. INC.
WF wii.l offer Penny Lynne ('hilders immediate and
full reinstatement to her former job or. if that iob no
longer exists, to substantially equivalent emplo, ment.
without prejudice to her seniority or other rights or
privileges enjoyed by her, and make her whole for any
loss of pay she may have suffered bh reason of her
discharge, with interest computed thereon.
All our employees are free to become or remain. or to
refrain from becoming or remaining, members of the
above-named or any other labor organization.
PARTY COOKIES, IN(
APPENDIX B
Noric-. To MLMBEIRS
POSIED BY ORDER 01 ITHi
NATIONAl. LABOR REL.AIIONS BOARI)
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we have violated the National Labor Relations Act
and has Directed us to post this notice and carry out its
terms.
W[i wlli NoT act as the exclusive bargaining repre-
sentative of the employees of Party Cookies, Inc., at its
Michigan C'it}. Indiana, plant, unless and until we
have demonstrated our exclusive majority-representa-
tive status pursuant to a Board-conducted election
among the said employees.
WVvi vn1 solt give effect to the collective-bargaining
agreement dated April 1. 1976. between the Company
and ourselves, insofar as it applies to the Michigan
('ity, Indiana, plant employees, or to anv extension.
renewal, or modification thereof affecting the said em-
plos ees.
Vil wi li NOi in any' other manner restrain or coerce
the aforementioned employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
WI uilI jointl) and severally with Party Cookies.
Inc.. make whole the emploNyees at the Michigan City,
Indiana. plant for dues and initiation fees paid by
them to us. plus interest thereon.
Lo( ,1 100, A I :i) W()ORKtRS UNION a. w ALI IE)
WORKI RS IN11 RN Ai()ONA UNION
627