Pilgrim Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1978

234 N.L.R.B. 136 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pilgrim Foods, Inc. and Local Union No. 633 of New
Hampshire (Chauffeurs, Teamsters and Helpers)
a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases I-CA-11448 and 1-RC-14181
January 9, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On June 6, 1977, Administrative Law Judge Benja-
min K. Blackburn issued the attached Decision in
this proceeding. Thereafter, General Counsel and
Respondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge to
the extent consistent herewith.
1. We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(1) of the Act
by creating an impression of surveillance, soliciting
and dealing with employee grievances, promising
benefits, and threatening reprisals, all in order to
discourage union activity, and withholding a prom-
ised wage increase because an employee had voted in
a Board-conducted election.
2. For the reasons set forth below, we do not
adopt the Administrative Law Judge's conclusions
that Respondent did not violate Section 8(a)(3) and
(1) of the Act by discharging employee Sidney Basha.
The pertinent facts are fully set forth in the
attached Decision. Briefly, Sidney Basha was hired
as a full-time truckdriver for Respondent's Green-
ville facility in the spring of 1975. At that time Plant
Manager Edwin West and Assistant Plant Manager
Robert Hinchee told Basha that Greenville was
nonunion and they wanted to keep it nonunion. In
the fall of 1975, on occasion, some merchandise
would be missing so that the amount of goods
Respondent's drivers actually delivered did not
always equal the amount indicated on the bill of
lading. Consequently, Respondent's customers were
billed for goods they had not received. On November
18, 1975, Respondent placed a rule on the drivers'
clipboards requiring them to report any missing
merchandise to Hinchee before they left a customer's
place of business. Since truckdriver Basha was laid
off on that day prior to reading his clipboard, he did
not learn of the new rule.
Basha was recalled to work as an extra driver on an
on-call basis during the first week of December 1975.
Thereafter, he attended a union meeting on Decem-
ber 7 and hosted a union meeting on December 14.
He also solicited five authorization cards. On De-
cember 15, 1975, after a majority of the employees in
the unit had signed authorization cards, the Union
demanded that Respondent recognize and bargain
with it, and Respondent refused. Subsequently, the
Union filed its petition in Case l-RC-14181 seeking
a Board-conducted election, and a hearing was
scheduled for January 26, 1976.
On January 16, 1976,1 Basha was to deliver 1,000
cases of mustard. The load was two cases short, and
Basha noted the shortage on the bill of lading but did
not telephone Hinchee to advise him of the short-
ages, as required by the November 18, 1975, rule.
Respondent's executive vice president, Santich, no-
ticed the bill of lading on Friday, January 23, and
telephoned Hinchee, who stated that he did not have
any knowledge of the matter. Hinchee then called
Basha, who said he was pretty sure the load had been
two cases short. Hinchee subsequently telephoned
Santich, and they agreed to defer the question of
Basha's failure to report the shortages until Monday,
January 26, when they were scheduled to meet at the
Board hearing. On January 26, prior to the hearing,
Hinchee and Santich discussed the union situation
and concluded that all the petitioned-for employees
were prounion. They also decided to discharge
Basha. On January 27, Hinchee discharged Basha,
allegedly for failing to call about the shortages on
January 16. Either at this time or a few days later,
Basha told Hinchee that he had no knowledge of the
rule, but Hinchee refused to reconsider the decision
to discharge him.
As the Administrative Law Judge found and the
record establishes, Basha was a leading force in the
Union's efforts; thus, he attended a union meeting,
held a meeting at his house, and solicited authoriza-
tion cards. Also Respondent knew or believed that
Basha favored the Union. Furthermore, Respondent
opposed the Union and engaged in violations of
Section 8(a)(1).
Nevertheless, the Administrative Law Judge con-
cluded that Respondent discharged Basha for violat-
ing the rule about reporting shortages and not
because he engaged in union activity. In so conclud-
ing, the Administrative Law Judge reasoned that
discharging Basha would not have served an antiun-
ion purpose, because Respondent thought that all the
employees in the unit were prounion, and hence
I All dates hereinafter are 1976, unless otherwise indicated.
234 NLRB No. 23
136
PILGRIM FOODS, INC.
eliminating one potential "yes" vote would not have
affected the results of the election. 2
Contrary to the Administrative Law Judge, we
conclude that the asserted reason for Basha's dis-
charge was pretextual, since the reasons proffered by
Respondent in support of its defense of Basha's
termination do not withstand scrutiny.
First, Basha's failure to call in the fact that he was
2 cases short out of a delivery of 1,000 cases is a
technical violation in that he did fail to telephone
Hinchee before leaving the customer's place of
business, but Hinchee admitted on cross-examina-
tion that "As long as a driver had it [the shortages]
on the bill of lading then it would not foul anything
up."
Second, Basha's discharge for the minor transgres-
sion is disparately harsh in comparison with Respon-
dent's discipline of other employees. The only other
discharge of a truckdriver, in the 4 years Hinchee
worked for Respondent, was for carrying his girl-
friend in the truck with him after Respondent had
promulgated a rule forbidding such conduct in
response to the driver's past misconduct.3 In addition
Basha's conduct is different from that of the previ-
ously discharged driver in that the other driver
knowingly violated a rule created because of his own
past conduct, whereas Basha had not previously been
made aware of the call-in rule and, although Basha
had told Hinchee that he (Basha) did not know of the
rule, Hinchee did not reconsider his decision to
discharge him. Basha's discharge is also severe in
comparison to Respondent's mere written reprimand
and 1-week suspension of a driver who left 72 cases
at the premises of the wrong customer, which
Hinchee conceded resulted in a great loss of time and
money.
Third, if Hinchee had been concerned about the
rule infraction, he would have mentioned it to Basha
on January 23, instead of merely asking him if the
delivery had been two cases short.
2 We do not adopt the Administrative Law Judge's reasoning. Respon-
dent's discharge of a leading union adherent 2 weeks pnor to the election
had a discouraging impact on the employees' organizing efforts. Thus, the
discharge of Basha had a greater effect on the election than merely
eliminating his potential "yes" vote.
3 The Administrative Law Judge erroneously stated that Respondent
promulgated the rule at the same time it discharged the driver.
4Federal-Mogul Corporation, 224 NLRB 325. 338 (1976).
s An election was conducted on February 12, 1976, pursuant to a
Stipulation for Certification Upon Consent Election. The tally was four for,
and four against, the Petitioner; there were four challenged ballots.
Basha and three other employees not on the Norris-Thermador list
executed by Respondent and the Union cast challenged ballots. The
Administrative Law Judge found the list to be binding and sustained the
challenges. However, he recommended that, in the event the Board did not
adopt his conclusion that Respondent's discharge of Basha did not violate
Sec. 8(a)(3) and (1) of the Act, Basha's ballot be opened and counted as it
falls within the exception of Norris-Thermador Corporation, 119 NLRB 1301
Fourth, Hinchee acknowledged that Basha had
never been engaged in any other improper conduct,
had never received any warnings concerning his
work, and had been in all other respects a "pretty
good employee."
On the basis of the facts set forth above, especially
Respondent's demonstrated animus, the fact that
Basha's prior performance had been acceptable to
Respondent, the minor nature of his misfeasance,
and Respondent's disparate treatment of Basha, we
find that the reason assigned for Basha's discharge
was pretextual. 4 Further, as the Administrative Law
Judge found, the timing of Basha's discharge imme-
diately following Hinchee's and Santich's discussion
of the Union buttresses the conclusion that he was
unlawfully discharged. Accordingly, we find that
Respondent violated Section 8(a)(3) and (1) of the
Act by discharging Basha for being active in the
Union's organizational effort.
3. We further find, contrary to the Administrative
Law Judge, that Respondent violated Section 8(aX5)
and (1) of the Act by refusing to bargain with the
Union.5 It is clear, as set forth above, that the Union
had been designated by a majority of the employees
in an appropriate unit at the time it requested
recognition and bargaining. We are persuaded that a
bargaining order is required in light of our conclu-
sions that Respondent, upon receiving the Union's
demand, embarked on a course of serious unfair
labor practices of discharging an employee for his
union activity; creating an impression of surveillance
of its employees' union activities; soliciting and
dealing with grievances in order to discourage union
activities; promising benefits if its employees would
refrain from union activity; threatening reprisals if its
employees did not refrain from union activity; and
withholding a promised wage increase because an
employee had voted in a Board-conducted election.
The unfair labor practices involved all employees in
the unit8 and, taken together, undermined the
(1958), that the list is contrary to the Act or Board policy. Although we do
not adopt the Administrative Law Judge's dismissal of the 8(aX3) and (1)
allegation with respect to Basha's discharge, we nonetheless conclude that
the challenge to his ballot should be sustained. Basha was excluded from the
list on the basis that he was a temporary fill-in employee and had been
discharged. Subsequent to the execution of the list, the Union objected to
Basha's exclusion on the basis that he was a regular part-time employee.
Since the question of Basha's eligibility based on whether he was a regular
or casual part-time employee does not involve a statutory exclusion, but
rather a determination of his community of interests with other employees
in the unit, no circumstances are presented warranting departure from the
Board's practice of honoring the Norris-Thermador list. Prior Aviation
Service, Inc., 220 NLRB 460, 461 (1975). Accordingly, we find the Norris-
Thermador list binding on the parties as to the ineligibility of Basha.
6 The appropriate unit consists of eight employees, and Respondent
solicited grievances from and promised benefits to all of them. Respondent's
threats of reprisals were made to the leading union adherent, and it can be
inferred that these threats were communicated to all the unit employees.
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's majority status. 7 We find that they were so
pervasive and widespread that their coercive effects
cannot be eliminated by traditional remedies, and
the possibility of conducting a fair election is
improbable. Accordingly, we shall issue a bargaining
order.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices, we shall order it to cease and
desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent violated Section
8(a)(3) and (1) of the Act by discriminatorily dis-
charging Basha, we shall order that the Respondent
offer to fully and immediately reinstate him to his
former job or, if that job no longer exists, to a
substantially equivalent job. We shall also order that
Respondent make him whole for any loss of earnings
he may have suffered by reason of the discrimination
against him, by payment of a sum of money equal to
that which he would have earned from the date of his
unlawful discharge, less his net earnings, if any,
during such period, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950). Interest on the backpay shall be comput-
ed as set forth in our Decision in Florida Steel
Corporation, 231 NLRB 651 (1977).8
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union, we shall order
it to recognize and bargain with the Union from
January 13, 1976, the first known date Respondent's
unfair labor practices commenced, after the Union's
demand on December 15. 9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Pilgrim Foods, Inc., Greenville, New Hampshire, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Creating the impression of surveillance of its
employees' union activities.
(b) Soliciting and dealing with grievances in order
to discourage union activities.
(c) Promising benefits if its employees refrain from
union activities.
(d) Threatening reprisals if its employees do not
refrain from union activities.
I The Kroger Co., 228 NLRB 149(1977).
s Interest shall be computed according to the "adjusted pnme rate" used
by the U.S. Internal Revenue Service for interest on tax payments. See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
(e) Withholding promised wage increases because
employees have voted in a National Labor Relations
Board election.
(f) Discharging or otherwise discriminating against
employees for supporting or engaging in activities on
behalf of Local Union No. 633 of New Hampshire
(Chauffeurs, Teamsters and Helpers) a/w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other
labor organization.
(g) Refusing to recognize and bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Local
Union No. 633 of New Hampshire (Chauffeurs,
Teamsters and Helpers) a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All full and regular part-time truckdrivers, ship-
pers and receivers and truck mechanics at the
Respondent's Greenville plant, exclusive of all
other employees, guards, professional employees
and all supervisors as defined in the Act.
(k) In any other manner interfering with or
attempting to restrain or coerce employees in the
exercise of rights guaranteed them in Section 7 of the
Act.
2. Take the following action necessary to effectu-
ate the policies of the Act:
(a) Offer Sidney Basha full and immediate rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, with full
seniority, privileges, and benefits, and make him
whole for any losses he may have suffered because of
the discrimination practiced against him, in accor-
dance with the provisions set forth in the section of
this Decision entitled "The Remedy."
(b) Recognize and bargain collectively from Janu-
ary 13, 1976, with Local Union No. 633 of New
Hampshire (Chauffeurs, Teamsters and Helpers) a/w
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of the employees in the unit
herein found appropriate with respect to rates of pay,
wages, hours of employment, and other terms and
conditions of employment.
M Trading Port, Inc., 219 NLRB 298 (1975), and The Kroger Co., 228
NLRB 149 (1977). Chairman Fanning would find that the bargaining
obligation arose on December 15, 1975, the date the Union requested
Respondent to recognize and bargain with it and was refused.
138
PILGRIM FOODS, INC.
(c) Post as its plant in Greenville, New Hampshire,
copies of the attached notice marked "Appendix."10
Copies of said notice, on forms provided by the
Regional Director for Region 1, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to determine the amount of
backpay due under the terms of this Order.
(e) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of the Order,
what steps Respondent has taken to comply here-
with.
MEMBER MURPHY, dissenting in part:
I agree with my colleagues and the Administrative
Law Judge that Respondent violated Section 8(aX1)
of the Act by creating an impression of surveillance,
soliciting and dealing with grievances, promising
benefits, threatening reprisals, and withholding a
promised wage increase to an employee who had
voted in a Board-conducted election, and Section
8(a)(5) by refusing to bargain with the Union.
However, contrary to my colleagues, I would adopt
the Administrative Law Judge's finding that Respon-
dent's discharge of employee Basha did not violate
Section 8(a)(3) and (1) of the Act.
The majority opinion recites nothing not consid-
ered by the Administrative Law Judge, upon which
he concluded that Basha was discharged for failing to
report missing cases as required by Respondent's
rule. The rule requiring Respondent's truckdrivers to
report missing merchandise before leaving a custom-
er's place of business was posted on November 18,
1975, to cure Respondent's recurring problem of
shortages and the failure to report them. Clearly, on
January 16, Basha's delivery was two cases short,
but, instead of calling the Respondent's plant manag-
er as required, he merely noted the shortages on the
bill of lading. Immediately upon learning of Basha's
transgression of the November 18 rule, Respondent
discharged him.
Nor does the majority opinion justify a conclusion
contrary to that reached by the Administrative Law
Judge. First, the majority may not substitute its
judgment for management's by finding that Basha's
rule infraction was so minor as not to warrant
discharge. Second, the circumstances relied upon to
show that Basha was disparately treated are in fact
inapposite. Respondent's discharge of Basha was
consistent with its practice of promulgating a written
rule concerning drivers' conduct when a problem
became serious, and discharging any employee who
violated the rule. Thus, where a driver had carried a
passenger in Respondent's truck, Respondent adopt-
ed a rule against that practice and the employee was
later discharged for violating that rule and, when a
driver delivered the wrong goods to a customer, a
transgression not covered by any existing rule,
Respondent suspended the driver and issued a rule
requiring drivers to call in after completing a
delivery.
Lastly, I am not persuaded by the General Coun-
sel's contention that the timing of the discharge
further buttresses the conclusion that Basha was
unlawfully discharged. Even though the decision to
discharge Basha was made on the same day that the
election agreement and the Norris-Thermador list
were executed, it is unrefuted that the timing of
Basha's discharge also coincided with Respondent's
discovery of Basha's violation of the rule. Respon-
dent learned of Basha's infraction of the call-in rule
on Friday, January 23, 1976, and decided to dis-
charge him early the following Monday, January 26.
For all the above reasons, I find that the General
Counsel has failed to establish by a preponderance of
the evidence that the Respondent's reason for the
discharge of Basha was pretextual. Accordingly, I
would dismiss that allegation of the complaint.
to In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all
employees the right:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things.
WE WILL NOT create the impression of surveil-
lance of your union activities.
139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT solicit and deal with your
grievances in order to discourage union activities
among you.
WE WILL NOT promise you benefits if you
refrain from union activities.
WE WILL NOT threaten you with reprisals if you
do not refrain from union activities.
WE WILL NOT withhold promised wage in-
creases because you have voted in a National
Labor Relations Board election.
WE WILL NOT discharge or otherwise discrimi-
nate against employees for supporting or engag-
ing in activities on behalf of Local Union No. 633
of New Hampshire (Chauffeurs, Teamsters and
Helpers) a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization.
WE WILL NOT refuse to recognize and bargain
collectively concerning rates of pay, wages, hours,
and other terms and conditions of employment
with Local Union No. 633 of New Hampshire
(Chauffeurs, Teamsters and Helpers) a/w Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America.
WE WILL NOT in any other manner interfere
with or attempt to restrain or coerce you in the
exercise of your Section 7 rights.
WE WILL offer Sidney Basha full and immedi-
ate reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent
position, and WE WILL make him whole for his
loss of earnings because of our discrimination
against him, plus interest.
WE WILL recognize and bargain collectively
with Local Union No. 633 of New Hampshire
(Chauffeurs, Teamsters and Helpers) a/w Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of North America as
the exclusive representative of all employees in
the bargaining unit described below with respect
to rates of pay, wages, hours of employment, and
other conditions of employment. The bargaining
unit is:
All full and regular part-time truckdrivers,
shippers and receivers and truck mechanics
at the Respondent's Greenville plant, exclu-
sive of all other employees, guards, profes-
sional employees and all supervisors as
defined in the Act.
PILGRIM FOODS, INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The petition in Case l-RC-14181 was filed on December
17, 1975.1 A Stipulation for Certification Upon Consent
Election was executed on January 26 and approved on
January 27, 1976. The election was held on February 12. It
resulted in a four-four tie with four challenged ballots
being determinative. The Union filed objections on Febru-
ary 19.
The charge in Case I-CA-I 11448 was filed on February
17, amended on March 8, and amended again on March
26. The Acting Regional Director issued a Consolidated
Report on Objections and Challenged Ballots in Case 1-
RC-14181 on March 31. He noted that issues raised by
objections and challenges were identical with those in Case
I-CA-11448 and stated that the two cases would be
consolidated for hearing. The Regional Director consoli-
dated them and issued a complaint in Case I-CA-I 1448 on
April 16.
The hearing was held before Administrative Law Judge
Wellington A. Gillis in Nashua, New Hampshire, on
October 12, 13, and 14, 1976. At the conclusion of the
hearing, the General Counsel and Respondent argued
orally, and the parties were given leave to file briefs which
were received from the General Counsel and Respondent.
Following the hearing, Judge Gillis died before he was able
to write his Decision. Upon notification of Judge Gillis'
death, all parties consented to the issuance of a Decision by
another Administrative Law Judge based on the record
made before Judge Gillis, pursuant to Section 102.36 of the
Board's Rules and Regulations, Series 8, as amended. On
April 1, 1977, the Chief Administrative Law Judge desig-
nated me to prepare and issue a Decision on the basis of
said record.
Upon consideration of the entire record in this proceed-
ing, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New Hampshire corporation, is engaged
at Greenville, New Hampshire, in the business of packag-
ing and distributing certain food products. During calen-
dar 1975 it shipped products valued in excess of $50,000
directly to customers located outside the State of New
Hampshire.
II. THE UNFAIR LABOR PRACTICES
A. The Discharge of Sidney Basha
1. Facts
Respondent's basic operation is located in Brooklyn,
New York. Paul Santich, its executive vice president, has
his office there. Truckdrivers who work for Respondent out
of its Brooklyn facility are unionized. The Greenville, New
I Dates (other than those on which the hearing was held) are late 1975 or
early 1976 as the case may be.
140
PILGRIM FOODS, INC.
Hampshire, plant is nonunion. It is supervised by Plant
Manager Edwin West and his assistant, Robert Hinchee.
Sidney Basha was hired as a truckdriver in Greenville in
the spring of 1975. His most recent employer just before he
went to work for Respondent was a trucking firm whose
drivers are represented by the Union. Basha did not reveal
that fact when he was hired. When West and Hinchee
interviewed Basha before hiring him, they pointed out to
him that the Greenville part of Respondent's operation was
nonunion while the Brooklyn part was union. They said
they wanted to keep Greenville nonunion.
In the fall of 1975 Respondent was plagued by discrepan-
cies between the amounts of goods actually delivered to
customers and the amounts which the bills of lading turned
in by truckdrivers indicated had been delivered. Putting the
uncorrected data into the computer caused customers to be
billed for goods they had not actually received, with
predictable results. Consequently, Santich instructed Hin-
chee to order his drivers to check with Greenville when
they were on the road and a situation arose where the
amount of product on the truck did not match the figure on
the bill of lading. On November 18 Hinchee promulgated
the following rule by placing a copy on the dispatch
clipboard of each driver:
If there is any merchandise missing on your truck,
and it has not been marked off on your bill of lading
[i.e., by entry of a figure in the column headed
"Quantity Shipped if Different" which differed from
the figure entered in the column headed "Quantity
Ordered and Shipped" on the bill of lading], you are to
call me before you leave the customer's place of
business.
There has been to [sic] much missing goods that do
not correspond with the shipping orders.
Basha's last trip for Respondent as a regular truckdriver
was made on November 18. Hinchee decided on that day
to lay off Basha and one other driver for economic reasons.
He left a notice on a master schedule next to the drivers'
clipboards for Basha and the other man to report to him
when they returned to the plant. When Basha came in, he
looked only at the master schedule before reporting to
Hinchee to be laid off. He, therefore, did not learn of the
new rule either at that time or thereafter.
Hinchee recalled Basha sometime during the first week
in December with the understanding that Basha would act
as an extra driver on a when-needed basis. Basha first
worked in this capacity on December 5. In the meantime,
Robert Martin, one of Respondent's regular drivers, had
contacted the Union and arranged for an organizer to meet
with some of the drivers on Sunday, December 7. Martin
was involved in an accident on December 6 and hospital-
ized. Consequently, Martin was not present when Thomas
Piper, business agent for the Union, met with three of
Respondent's four regular drivers, its one mechanic (Ron-
ald Jones), and Basha on Respondent's parking lot. The
plant was closed, and there were no supervisors around to
observe this meeting.
2 Events triggered by Piper's call to West which are not directly related to
the issue of Basha's discharge are taken up in the section below entitled
"*'Independent 8(aX ) Allegations."
When Piper had finished his explanation of union
representation to the drivers, he gave Basha a blank
authorization card for each man present. (The men did not
sign up immediately because they wanted an opportunity
to discuss the matter among themselves before doing so.)
All five of the men who met with Piper on the parking lot
subsequently signed cards and dated them December 7.
Basha collected them and turned them in to Piper at a
meeting held at Basha's house on December 14. Basha and
Piper went from the parking lot to the hospital. Martin
signed an authorization card and gave it to Piper. He dated
it December 3 as evidence that his union activity had
preceded his incapacitating accident.
Piper telephoned West on December 15 and demanded
recognition as the representative of Respondent's truck-
drivers, shippers, receivers, and mechanic. (Piper followed
up his telephone call with a demand letter dated December
15.) When West declined, the Union turned to the Board's
election machinery.2 Case l-RC-14181 was eventually
noticed for hearing on January 26. After the notice of
hearing was issued and before January 26, Basha unwit-
tingly fell afoul of the November 18 rule relating to
shortages at time of delivery.
On January 16 Basha delivered 1,000 cases of German-
style mustard to a customer in Roxbury, Massachusetts.
When the load proved to be two cases short, Basha did not
call Hinchee from Roxbury. Instead he merely entered the
number 998 in the "Quantity Shipped if Different" column
of the bill of lading, wrote "2 short Sid" under it, and
turned in the bill of lading in a routine manner when he
returned to Greenville. The bill of lading was routinely
forwarded to Brooklyn, where it came to Santich's atten-
tion on Friday, January 23.
Santich immediately telephoned Hinchee. Hinchee told
Santich he knew nothing about the matter but would
contact Basha and call Santich back. Hinchee telephoned
Basha. Basha, unaware that he had violated a standing
rule, told Hinchee he was pretty sure the load had, in fact,
been two cases short. Hinchee telephoned Santich and
reported what Basha had said. Santich and Hinchee agreed
to defer until the following Monday, January 26, when they
were scheduled to get together in Boston for the hearing in
Case l-RC-14181, the question of what to do about
Basha's failure to call Hinchee on January 16 before
delivering the mustard.
Hinchee met Santich at Logan Airport in Boston on the
morning of January 26. As they rode from the airport to
the Regional Office with Respondent's lawyer, they dis-
cussed both Basha and Respondent's position in the
upcoming hearing. With respect to the latter, they dis-
cussed Respondent's chances of avoiding unionization of
its employees. They concluded that all of the employees
petitioned for, Basha included, were prounion. With
respect to the former, Santich decided that Basha would be
discharged for violating the November 18 rule on January
16. In the course of talking about that decision, Santich
and Hinchee assumed without discussion that Basha had
been aware of the rule.
141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the Regional Office, the Board agent handling Case
l-RC-14181 explored the possibility of a consent election
before opening the hearing. As matters developed, the
hearing never opened for the parties were finally able to
agree not only on all the details required to execute a
Stipulation for Certification Upon Consent Election, in-
cluding the unit description, but also on the individuals
included in that unit and entitled to vote in the election.
They named those employees in writing and executed a
signed stipulation which provided that they and no others
would be permitted to vote in the election the parties had
agreed to hold on February 12, thereby producing what is
known in Board jargon as a Norris-Thermador list (Norris-
Thermador Corporation, 119 NLRB 1301 (1958)).
In the discussions which led up to the execution of these
two documents, Respondent took the position Basha was
not properly includable in a unit of truckdrivers because he
was a temporary employee rather than a regular part-timer.
It also argued the question was moot in any event because
it had already decided to discharge him for violation of the
rule about reporting shortages. In the course of that stage
of the discussion, Santich said something about pilferage
and Hinchee cautioned him not to make such a charge
because Respondent had no proof Basha was to blame for
the missing mustard.
The Union wanted to include Respondent's mechanic in
the unit. Respondent took the position he should not be in.
Finally, agreement was reached on the basis of the Union
giving up on Basha and Respondent giving up on the
mechanic. In reaching this compromise, Piper, the Union's
representative at the conference, was guided by the advice
of the Board agent. As a result, the unit agreed to was "all
full and regular part-time truck drivers, shippers and
receivers and truck mechanic" with the usual exclusions.
The Norris-Thermador list named Respondent's four regu-
lar truckdrivers, three shippers and/or receivers, and one
mechanic.
At a break in the conference, Hinchee called his office in
Greenville and ordered that Basha not be permitted to
leave on a trip he was scheduled to begin that afternoon.
When Basha came to work, he was told to report to
Hinchee next morning. When Piper telephoned Basha on
the evening of January 26 and told him what had been
agreed at the conference in the Regional Office, Basha got
the impression he was going to be discharged for stealing
the missing mustard.
Basha saw Hinchee on January 27. Hinchee discharged
Basha for violating the rule about reporting shortages on
January 16. Either at this time or a few days later when
Basha returned to the plant to ask Hinchee for a letter
stating why he had been discharged (the record is not
clear), Basha protested that he had no knowledge of the
November 18 rule. Hinchee permitted the discharge to
stand nonetheless.
Sometime shortly after talking to Basha on the evening
of January 26, Piper informed the Board agent who was
handling Case l-RC-14181 that the Union did not consid-
er itself bound by the Norris-Thermador list with respect to
Basha. The Board agent did not relay this oral message to
Respondent. Piper first indicated the Union's position in
writing in a letter to the Regional Director dated February
4. He tendered proof Basha was a regular part-timer rather
than a temporary employee and noted that an unfair labor
practice charge would be filed contesting Basha's dis-
charge. He did not send a copy of this letter to Respondent.
Respondent first learned the Union was attempting to
withdraw from the Norris-Thermador agreement on Febru-
ary 10 when Piper sent it the following mailgram:
Regarding stipulation agreement in Case Number I-
RC-14181 it is the opinion of the Union in the case of
Sidney Basha that he is eligible to vote. Despite our
stipulation of agreement the Union will not abide by
said agreement.
On March 26, Roland Caron, one of Respondent's
regular truckdrivers, was reprimanded in writing, suspend-
ed for I week, and warned that a recurrence would lead to
his discharge for leaving 72 cases of salad-style mustard at
the premises of a customer to whom they were not
consigned. This incident resulted in Hinchee promulgating
the following rule on April 2 under the heading of
"Deliveries":
Effective April 5, 1976 all drivers will call Bob
Hinchee or Ed West when they have completed a
delivery at a customers [sic] place of business. This is to
include all deliveries made by Pilgrim Food drivers. At
the time of this call any descrepancy [sic] must be
reported.
In the 4 years Hinchee has worked for Respondent, the
only other driver discharged was let go for carrying his girl
friend with him in the truck. Hinchee promulgated a rule
forbidding such conduct at that time as a result of the
incident which led up to the discharge.
2. Analysis and conclusions
In his brief, the General Counsel argues as follows that
Basha was discharged because of his union activities and
not because he violated the November 18 rule:
The record leaves no doubt that Basha was dis-
charged in violation of the Act. Indeed, under all the
circumstances of this case, any other conclusion would
be totally absurd. The evidence in support of this
conclusion may be summarized as follows ....
Five sections follow. There can be no serious quarrel with
the points the General Counsel makes in the first four.
They are that "1. Basha, in fact, was a leading force in the
Union's efforts. . . . 2. Respondent knew or believed that
Basha favored the Union.... 3. The timing of Basha's
discharge further buttresses the fact that he was unlawfully
discharged .... 4. The record plainly reveals strong
evidence to support a finding that Respondent was bitterly
opposed to unionization and was willing, able, and, in fact,
did engage in numerous instances of unlawful conduct"
(the last phrase in point 4 being a reference to the events
discussed in the section of this Decision which follows this
one). However, at point 5-"The reason alleged for the
discharge of Basha is false"-the argument breaks down.
142
PILGRIM FOODS, INC.
In summary, the General Counsel contends Respondent
seized on rule violation as a pretext to mask its real motive
of getting rid of a known "yes" vote in order to affect the
outcome of the election, thus bringing about the situation
which now exists, i.e., four "yes" votes and four "no" votes
by the eight persons on the Norris-Thermador list agreed to
by Respondent. While the timing of the decision on
January 26 to discharge Basha does "further [buttress] the
fact that [Basha] was unlawfully discharged" in that it
came on the very day the election agreement and Norris-
Thermador list were worked out, it is not dispositive, for it
is equally consonant with the unrefuted facts surrounding
the timing of Respondent's discovery Basha had violated
the rule and the process it went though thereafter in
arriving at the decision to discharge him. The same is true
of the General Counsel's union activity, company knowl-
edge, and animus arguments. None of them alone is
dispositive. Even linked to timing and to each other they
are inconclusive, absent a finding that the General Counsel
is right as to the pretextual nature of Respondent's stated
reason. The record considered as a whole will not sustain
such a finding.
The key question is exactly what Respondent faced and
what it knew as it dickered on January 26 over the terms
and conditions of the election held on February 12. There
is nothing in the record to suggest Respondent knew on
January 26 that four persons, including Basha, would
attempt to vote on February 12 and wind up casting
challenged ballots. (All four challenges are considered
below in the section entitled "The Representation Case.")
What it did know-or, more precisely, what it thought it
knew-is contained in this portion of the testimony of
Hinchee as he was interrogated by the General Counsel:
Q. And isn't it true that the company suspected
that Sidney Basha was a potential vote, yes, for the
union?
A. I don't know.
Q. You have no idea?
A. When you say, company, I know how I felt, but
as far as the company, no, I don't.
Q. Well, I'll rephrase myself, I might have phrased
the question wrong. Isn't it true that the company
suspected, did you?
A. Pardon me?
Q. Isn't it true that you suspected that Sidney
Basha might very well vote for the union?
A. I guess so, asfar as I was concerned all ten [a slip
of the tongue for "nine"] were going to vote. [Emphasis
supplied.]
An inference that Respondent took a blind shot at Basha
on January 26 in hope the elimination of one sure "yes"
vote would tip the election in its favor is illogical given the
situation that existed.3 The Union had in its possession
authorization cards signed by six persons in a unit of, at
most, nine employees, five cards in a unit of eight
3 I do not understand the General Counsel to be contending Basha was
discharged because Respondent thought he was the instigator or leader of
the union movement among its employees and/or because it sought to
frighten other employees into ceasing their support of the Union by making
an example of Basha. In any event, Basha was not the instigator or leader of
employees if Basha is eliminated. There is nothing in the
record to indicate that one of the other five supporters of
the Union had changed his mind prior to January 26 or
that, if he had, Respondent was aware of the fact. The only
evidence of this is the fact that on election day only four
employees in the unit of eight Voted for the Union. Thus,
an inference Respondent knew, as of January 26, that
eliminating Basha would create a four-four deadlock on
election day turns on a finding it thought the nine-man unit
was divided five to four in favor of the Union. There is the
beginning of a basis for such a finding in the fact that the
nine-man unit consisted of five truckdrivers, Basha includ-
ed, and four nontruckdrivers. However, the record will not
permit the inference required to sustain this approach
because the facts detailed in the next section establish
beyond a doubt Respondent was aware that Jones, the
mechanic, was prounion. Finally, if an inference is drawn,
despite Hinchee's quoted testimony, that Respondent knew
or suspected the truth-that the Union had signed up six
employees in a nine-man unit-eliminating one known
union supporter from the unit would not have served
Respondent's purpose. Discharging Basha to get rid of a
"yes" vote still left it in a situation where the Union was
likely to win the election. Therefore, I cannot draw any
inference which would cause me to find Respondent's
stated reason for discharging Basha is a pretext. The only
facts I can find on this record are that, on the day
Respondent decided to discharge Basha, it thought all its
employees in the unit involved in Case l-RC-14181 were
prounion and, therefore, discharging Basha would not have
served an antiunion purpose. Since the General Counsel
has not established by a preponderance of the evidence on
the record considered as a whole that Respondent's stated
reason for getting rid of Sidney Basha was a pretext, it
follows Respondent did not violate Section 8(aX3) and (1)
of the National Labor Relations Act, as amended, when it
discharged him on January 27, 1976.
B. Independent 8(a)() Allegations
I. Attributed to Robert Hinchee
When Edwin West, the plant manager, hung up the
telephone after talking to Thomas Piper on December 15,
he told his assistant, Robert Hinchee, that the Union was
claiming to represent the Greenville drivers, shippers,
receivers, and mechanic. Hinchee went to the garage and
spoke to Ronald Jones, the mechanic. He asked Jones if
the call which West had just received was legitimate. Jones
said he did not know. He added that the men wanted more
money and more hours. This brief exchange underlies an
allegation in the complaint that Respondent, in the person
of Hinchee, interrogated "its employees concerning their
Union activities" on December 15. There was nothing
coercive about the question Hinchee put to Jones on this
occasion. I find, therefore, it did not violate Section 8(aX I)
of the Act. Numerous other independent 8(aXl) allegations
union activity (Martin was the instigator, Jones, the leader), and there is no
evidence Respondent mistakenly thought Basha played either role. Whether
this approach is considered to be one theory or two, it fails for the same
reason as the one analyzed above. It requires an inference which I am
unwilling to draw in the face of Hinchee's quoted testimony.
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grow out of two other series of events in which Hinchee
became involved.
a. The abortive bargaining
Shortly after the first of the year, Hinchee talked to Jones
again about the union situation. This conversation set in
motion a train of events which culminated before January
26, the day the conference was held in Case I-RC-14181 in
the Regional Office. Jones said the whole situation could
have been avoided if Hinchee had just given the men a 25-
cent-an-hour raise when he had cut back on their hours in
December. Hinchee said he knew Jones was the spokesman
for the men. He asked Jones to get together a list of what
the men wanted and bring it to him. Jones promised to do
so.
Around the same time, Hinchee visited the home of
Sheldon Stokes, one of Respondent's truckdrivers. He told
Stokes substantially the same thing he had told Jones. He
said that he could not guarantee anything but, if the men
would get together and give him a list of what they wanted,
he would forward the list to the home office in the hope
that something could be worked out.
Jones got the men together and they prepared a list. It
contained such items as a wage of $6 an hour, overtime,
and the like. Jones gave the list to Hinchee. Jones indicated
there were other items the men wanted which were not on
the list. Hinchee drew up an expanded list which included
all the points raised by Jones either in writing or orally. He
duplicated this piece of paper and gave Jones a copy for
each employee. He told Jones he would get back to him
after checking with Paul Santich, Respondent's executive
vice president. He said any decisions about what the men
wanted were up to Santich.
Jones reported to Piper that Respondent was trying to
get out of the hearing scheduled for January 26 by
satisfying the men's demands directly. Piper told Jones
that, if the men were able to get everything they were
asking for, they would be as well off without the Union as
with it.
Hinchee conferred with Santich. Santich told Hinchee
Respondent could not afford many of the things the men
wanted. He also said Respondent could not bargain with
the men directly in any event. Thereafter, Hinchee met
again with Jones. This time Stokes and another truckdriver,
Roland Caron, were also present. Hinchee went down the
expanded list item by item saying no as to each on the
ground that it would cost too much. He also said
Respondent could not bargain with the men directly until
the Union was out of the picture. In the course of
discussing the cost of what the men wanted, Hinchee said
Respondent had checked with another trucking company
and learned the other company could do Respondent's
work cheaper than Respondent could do it with its own
employees if the men got everything on the list.
Sometime after January 26 but before the election,
Hinchee told Jones that if the Union won the election he
would have to cut hours or hire more drivers to reduce
costs.
It is obvious Hinchee's purpose in acting as he did was to
try to head off unionization, hopefully before the Union's
petition even got to the hearing stage, by satisfying the
demands which had caused Respondent's employees to
turn to the Union in the first place. Only Santich's better
understanding of Respondent's legal obligations in the
situation which existed kept Hinchee from actually carry-
ing direct bargaining with the men to the haggling stage.
Why Hinchee did what he did is of no consequence, of
course, as to the question of whether he interfered with,
restrained, or coerced employees in the exercise of their
statutory rights. That the things Hinchee said and did in
trying to head off unionization in this manner were serious
enough and pervasive enough to rise to the level of illegal
interference, restraint, and coercion is as obvious as his
motive. I find, therefore, that Respondent, in the person of
Robert Hinchee, violated Section 8(a)(X1) of the Act by
creating an impression of surveillance of its employees'
union activities, soliciting and dealing with grievances in
order to discourage union activities, impliedly promising
benefits if its employees would refrain from union activi-
ties, and threatening reprisals if they did not.
b. George Huszar's raise
On February 5 George Huszar, a forklift operator in the
Greenville plant, told Hinchee he was quitting to take a job
that paid 30 cents more per hour. Hinchee said he would
give Huszar a 30-cent raise in order to keep him. Hinchee
asked Huszar if he was in the unit that was to vote on
February 12. Huszar said no. Hinchee said he would give
the raise on February 19 because he did not want to give it
before the election but would make it retroactive to
February 5. On February 12 Huszar took it into his head to
try to vote and cast a challenged ballot. On February 13
Hinchee told Huszar the raise was canceled because it was
illegal for him to give a raise to an employee who had voted
in the election. Huszar quit.
The 8 (aXI) violation here is as obvious as those Hinchee
committed when he tried to head off the January 26
hearing by bargaining directly with the employees in the
unit. He gave Huszar a raise which was legal because it was
given under circumstances having nothing to do with the
pending election. Huszar thereafter, for reasons not reveal-
ed in the record, decided to participate in the election.
Even though he was mistaken as to his eligibility to vote
(see "The Representation Case" below), he had a statutory
right to do what he did. Because he did it, Hinchee took his
raise away from him, thereby penalizing him for doing that
which he had a right to do. While the complaint is incorrect
in characterizing the question which Hinchee put to Huszar
on February 5 as a coercive interrogation or Hinchee's
stated reason for wanting to make the raise retroactive as a
notice to employees that "the grant of wage increases to
them was conditioned upon the outcome of [the] represen-
tation election," there can be no doubt that Hinchee did
indeed withhold a wage increase on February 13 which had
been promised to an employee because he had voted in the
election. I find Respondent violated Section 8(aX1) by
interfering with an employee's Section 7 rights in that
manner at that time.
144
PILGRIM FOODS, INC.
2. Attributed to Paul Santich
Sometime around January 26 Ronald Jones, Respon-
dent's mechanic, bumped into Paul Santich, Respondent's
executive vice president, as Jones was leaving and Santich
was entering the Red Brick Inn in Greenville. Santich
asked Jones, "What about the Union?" Jones said he did
not really know how matters stood. Santich said he
understood Jones was the spokesman for the men. Jones
said he was. Santich said if Respondent had to go union the
whole town would go union.
The complaint alleges interrogation and impression of
surveillance violations based on this conversation. I dis-
agree. There was nothing coercive in this brief exchange.
The "spokesman" comment differs from the same remark
made to Jones by Hinchee which I have already found
constituted an impression of surveillance violation. There,
Respondent revealed for the first time it was enough aware
of union activity among its employees to know who was
their leader, thus giving reason for employees to believe
Respondent was keeping an eye on what they were up to.
Here, Santich merely indicated he was aware of what had
gone on between Jones and Hinchee when Hinchee tried to
bargain directly with the men.
C. Gissel
Regardless of whether Sidney Basha was in the unit on
December 15 as a regular part-time truckdriver or out of it
as a temporary employee, the Union represented a majority
of employees in a unit appropriate for the purposes of
collective bargaining when it demanded recognition. The
only issue posed by the 8(a)(5) allegations of the complaint
is whether the unfair labor practices Respondent commit-
ted thereafter have created a situation in which the
authorization cards the Union obtained from employees on
December 7 and 14 are a better indication of their desires
to be represented by the Union than a Board election
under the principle enunciated by the Supreme Court in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). I
do not think so. The fact that the 8(a)(1) violations which
Hinchee did commit prior to the election all arose in the
context of a misguided attempt to bargain directly with the
men which was quickly aborted once Hinchee's activities
came to the attention of higher management prevents them
from being so persuasive that their effect on the employees,
if any, cannot be eradicated by the application of tradition-
al Board remedies. I find, therefore, Respondent did not
violate Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union on and after
December 15, 1975, as the collective-bargaining represen-
tative of its employees.
111. THE REPRESENTATION CASE
The unfair labor practices which Robert Hinchee com-
mitted in the course of his efforts to head off the Union by
bargaining directly with unit employees are the objections
which have been referred to me in Case I-RC-14181. On
the basis of those findings, I recommend that, if the Board
does not reverse me on the Gissel issue, it set aside the
election held in that case on February 12, 1976, and direct
that a second election be held at such time and under such
circumstances as the Regional Director deems appropriate,
provided that a reversal on the issue of Sidney Basha's
discharge does not lead to an amended tally of ballots
which results in certification of the Union on the basis of
the election held on February 12.
The four challenged ballots from the February 12
election which have been referred to me were cast by
Sidney Basha, George Huszar, Phillip Belanger, and Jean
LaBonte. None of their names appears on the Norris-
Thermador list.
In Norris-Thermador Corporation, 119 NLRB 1301, the
Board said:
The Board is also of the opinion, however, that
parties to a representation proceeding should be per-
mitted to definitively resolve as between themselves
issues of eligibility prior to the election if they clearly
evidence their intention to do so in writing. According-
ly, the Board has concluded that hereafter, where the
parties enter into a written and signed agreement which
expressly provides that issues of eligibility resolved
therein shall be final and binding upon the parties, the
Board will consider such an agreement, and only such
an agreement, a final determination of the eligibility
issues treated therein unless it is, in part or in whole,
contrary to the Act or established Board policy.
[Footnote omitted.]
Since that landmark decision, the Board has applied the
"contrary to the Act or established Board policy" excep-
tion in cases involving probationary employees (Westlake
Plastics Company and Crystal-X Corporation, 119 NLRB
1434 (1958)), and supervisors (Lake Huron Broadcasting
Corporation, 130 NLRB 908 (1961); Fisher-New Center
Company, 184 NLRB 809 (1970); Laymon Candy Company,
199 NLRB 547 (1972); but cf. Prior Aviation Service, Inc.,
220 NLRB 460 (1975)). It has failed to honor a Norris-
Thermador list agreement in a situation where, apparently,
it would have otherwise done so when an employee was
inadvertently omitted from the list and there was no
dispute as to his eligibility (Southampton Marine Corpora-
tion, 217 NLRB 649 (1975), distinguishing Pyper Construc-
tion Company, 177 NLRB 707 (1969), where the Board held
a Norris-Thermador list binding on the parties even though
the name of the employee at issue had not come up during
the negotiations which led to their stipulation.) In the event
the Board reverses me on the issue of Sidney Basha's
discharge, I recommend that it order his challenged ballot
be opened and counted on the ground that an employee
who has been left off a Norris-Thermador list because of the
employer's discrimination against him falls within the
exception language of the Norris-Thermador decision,
where, as developed below, the employee would otherwise
have been in the unit at the time the parties prepared and
stipulated to the list. In the event I am sustained on the
issue of Basha's discharge, I recommend the challenges to
all four ballots be sustained on the ground the Norris-
Thermador list is binding on the parties.
In the event I am reversed on the issue of the binding
nature of the stipulation which the parties entered into
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when they drew up a Norris-Thermador list, I recommend
the challenges be disposed of on the following basis:
Sidney Basha: In the period from his recall in December
on a when-needed basis to his discharge in January, Basha
worked the following numbers of hours: Week ending
December 10 - 30; 17 - 57.25; 24 - 0; 31 - 0; January
7 - 12; 14-- 21.5; 21 - 50.25; 28 - 47.
On the basis of this data I find he was, as of January 26,
1976, a regular part-time truckdriver rather than a tempo-
rary employee. Since that status places him within the
express inclusion in the unit agreed to by the parties of "all
. . .regular part-time truck drivers," I recommend that the
challenge to his ballot be overruled.
George Huszar: George Huszar operated a forklift in the
plant. His job was to lift pallets bearing products and carry
them to the warehouse. Occasionally, rather than deposit
the loaded pallet in the warehouse he drove it directly into
a truck being loaded. Since his duties were not those of a
shipper, he did not fall within the unit agreed to by the
parties. I recommend, therefore, that the challenge to his
ballot be sustained.
Phillip Belanger and Jean LaBonte: Phillip Belanger
operates the label machine in the plant; Jean LaBonte, the
filler. During the busy season, which runs from September
to December, they work at their machines on Saturday, as
well as during the week. During the remainder of the year,
they come in on Saturdays to clean their machines.
Occasionally, when they are in the plant on Saturday and
not operating their machines, they help regular ship-
per/receivers unload trucks. Since their duties are not those
of a receiver, they do not fall within the unit agreed to by
the parties. I recommend, therefore, that the challenges to
their ballots be sustained.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Pilgrim Foods, Inc., is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Local Union No. 633 of New Hampshire (Chauf-
feurs, Teamsters and Helpers) a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By creating an impression of surveillance of its
employees' union activities, by soliciting and dealing with
grievances in order to discourage union activities, by
promising benefits if its employees would refrain from
union activity, by threatening reprisals if they did not, and
by withholding a promised wage increase because an
employee had voted in a National labor Relations Board
election, Respondent has violated Section 8(aX)(I) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The allegations of the complaint that Respondent
violated Section 8(aX I) of the Act by interrogating employ-
ees concerning their union activities and by conditioning a
wage increase on the outcome of a Board election have not
been sustained.
6. The allegations of the complaint that Respondent
violated Section 8(a)(3) and Section 8(a)(5) of the Act have
not been sustained.
7. All full and regular part-time truckdrivers, shippers
and receivers, and truck mechanic employed at Respon-
dent's Greenville, New Hampshire, plant, excluding all
other employees, guards, professional employees, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
[Recommended Order omitted from publication.]
146