Quality Packaging, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1982

265 N.L.R.B. 1141 (N.L.R.B. 1982)

QUALITY PACKAGING. INC.
Quality Packaging, Inc. and Janice Craig and Ware-
house, Mail Order and Retail Employees Union,
Local 853, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Gloria
Williams. Cases 32-CA-3735, 32-CA-3767,
and 32-CA-3770
December 16, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On July 7, 1982, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge. 2
1 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In fn. 8 of his Decision, the Administrative Law Judge inadvertently
erred in describing the testimony recounted in the accompanying text as
having been given by Personnel Manager Milano and corroborated by
employee Williams. The record shows that the testimony was in fact
given by Williams and corroborated by Milano.
In sec. 111,C,5, par. 2 of his Decision, the Administrative Law Judge
inadvertently erred in stating that Coolidge, Respondent's executive vice
president, had espoused a union-shop clause in a meeting with employees.
The record shows that Coolidge had in fact espoused an open-shop
clause.
In sec. 111,B,7, par. 7 of his Decision, the Administrative Law Judge
found that employee Baca testified that seniority was followed in the past
when Respondent laid off and recalled its employees. While the record
does show that Baca testified that Respondent followed seniority in re-
calling its employees, it is not clear that she also stated that seniority was
followed in effecting layoffs. Inasmuch as the two other employees relied
upon by the Administrative Law Judge for his finding did testify that se-
niority was followed in both layoffs and recalls, we find that the record
adequately establishes that seniority was also used to effect layoffs.
2 We hereby modify the third par. of the Administrative Law Judge's
remedy to include the traditional citation to Florida Steel Corporation, 231
NLRB 651 (1977), the case which states the rule regarding the amount of
interest due on backpay awards.
Inasmuch as the recommended Order does not contain all the language
traditionally used by the Board in remedying violations of the nature
found herein, we will issue a new Order in lieu of that of the Administra-
tive Law Judge. We will also issue a new notice to employees which
conforms with the new Order.
Member Jenkins finds it unnecessary, contrary to the Administrative
Law Judge, to apply Wright Line, a Division of Wright Line. Inc., 251
NLRB 1083 (1980), in considering the discharges of employees Williams
265 NLRB No. 142
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Quality Packaging, Inc., Union City, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Giving written and oral warnings to employ-
ees and restricting them to a particular work area
because of their activities on behalf of Warehouse,
Mail Order and Retail Employees Union, Local
853, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organiza-
tion.
(b) Discharging or otherwise discriminating
against employees because of their union or other
protected concerted activities.
(c) Failing to recall employees from layoff in
order of their seniority because of their union or
other protected concerted activities.
(d) Unilaterally altering its method of recalling
employees from layoff without notice to or bar-
gaining with the Union as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time employees
including packers, cookers, roasters, shipping
and receiving clerks, quality control employ-
ees, custodial employees, truck drivers, ma-
chine operators, machine assemblers and main-
tenance employees employed by the Respond-
ent at its Union City, California facility; ex-
cluding all other employees, all office clerical
employees, guards and supervisors as defined
in the Act.
(e) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them under Section 7 of the
Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Offer Gloria Williams, Janice Craig, and
Denise Baca immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed.
(b) Make whole employees Gloria Williams,
Janice Craig, Denise Baca, Rita Lozano, Tomilyn
and Craig, inasmuch as the reasons advanced by Respondent to justify
their discharges in fact either did not exist or were not relied upon. See
Limestone Apparel Corp., 255 NLRB 722 (1981).
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sardella, Sylvia Ancona, Sheila Vigil, Alicia Olgin,
and Nigar Kahn for any loss of earnings they may
have suffered due to the discrimination practiced
against them by paying each of them a sum equal
to what he or she would have earned absent such
discrimination, less any net interim earnings, plus
interest, as provided in "The Remedy" section of
this Decision, as amended.
(c) Expunge from its files any reference to the
discharge of Gloria Williams and Janice Craig on
June 1, 1981, and to the warning notice given to
Esther Bueno on May 6, 1981, and notify them in
writing that this has been done and that evidence
of these unlawful actions will not be used as a basis
for future personnel actions against them.
(d) Upon request, bargain collectively with the
Union as the exclusive bargaining representative of
employees in the unit described in paragraph l(d),
above, regarding the method of recalling employ-
ees from layoff.
(e) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its facility in Union City, California,
copies of the attached notice marked "Appendix."3
Copies of said notice, on forms provided by the
Regional Director for Region 32, 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 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(g) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges violations not specifi-
cally found herein.
s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT give written or oral warnings
to employees or restrict them to a particular
work area because of their activities on behalf
of Warehouse, Mail Order and Retail Employ-
ees Union, Local 853, affiliated with the Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
or any other labor organization.
WE WILL NOT discharge or otherwise dis-
criminate against employees because of their
union or other protected concerted activities.
WE WILL NOT fail to recall employees from
layoff in order of their seniority because of
their union or other protected concerted activ-
ities.
WE WILL NOT unilaterally alter our method
of recalling employees from layoff without
notice to or bargaining with the Union as the
exclusive bargaining representative of our em-
ployees in the following appropriate unit:
All full-time and regular part-time employ-
ees including packers, cookers, roasters,
shipping and receiving clerks, quality con-
trol employees, custodial employees, truck
drivers, machine operators, machine assem-
blers and maintenance employees employed
by the Employer at its Union City, Califor-
nia facility; excluding all other employees,
all office clerical employees, guards and su-
pervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them under Sec-
tion 7 of the Act.
WE WILL offer Gloria Williams, Janice
Craig, and Denise Baca immediate and full re-
instatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent
1142
QUALITY PACKAGING, INC.
positions, without prejudice to their seniority
or any other rights or privileges previously en-
joyed.
WE WILL make whole employees Gloria
Williams, Janice Craig, Denise Baca, Rita
Lozano, Tomilyn Sardella, Sylvia Ancona,
Sheila Vigil, Alicia Olgin, and Nigar Kahn for
any loss of earnings they may have suffered
because of our discrimination against them,
with interest.
WE WILL expunge from our files any refer-
ences to the discharges of Gloria Williams and
Janice Craig on June 1, 1981, and to the warn-
ing notice given to Esther Bueno on May 6,
1981, and WE WILL notify them that this has
been done and that evidence of these unlawful
actions will not be used as a basis for future
personnel actions against them.
WE WILL, upon request, bargain collectively
with the Union as the exclusive bargaining
representative of the employees in the unit de-
scribed above, regarding the method of recall-
ing employees from layoff.
QUALITY PACKAGING, INC.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in Oakland, California, on March 2,
1982. The charge in Case 32-CA-3735 was filed on June
26, 1981, by Janice Craig, an individual. The charge in
Case 32-CA-3767 was filed on July 8, 1981, by Ware-
house, Mail Order and Retail Employees Union, Local
853, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Union), and a first amended
charge was filed by the Union on July 21, 1981. The
charge in Case 32-CA-3770 was filed on July 9, 1981, by
Gloria Williams, an individual.
Thereafter, on August 17, 1981, the Regional Director
for Region 32 of the National Labor Relations Board
(herein called the Board) issued an order consolidating
cases, consolidated complaint and notice of hearing, con-
solidating the captioned matters for hearing, and alleging
that Quality Packaging, Inc. (herein called Respondent),
has violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended (herein called the Act).
The parties were afforded a full opportunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and counsel for Respondent.
Upon the entire record,' and based upon my observa-
tion of the witnesses and considerations of the briefs sub-
mitted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is a California corporation, with an office
and principal place of business located in Union City,
California, and has been engaged in the nonretail proc-
essing and packaging of seeds and nuts. Respondent, in
the course and conduct of its business operations, annual-
ly sells and ships goods valued in excess of $50,000 di-
rectly to customers located outside the State of Califor-
nia. It is admitted, and I find, that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are: (1)
Whether Respondent violated Section 8(a)(1) of the Act
by various acts and conduct; (2) whether Respondent
violated Section 8(a)(3) of the Act by the discharge of
two probationary employees; and (3) whether Respond-
ent violated Section 8(a)(3) and/or (5) of the Act by its
method of recalling or failing to recall, employees from
layoff.
B. The Facts
I. Background
In January 1981,2 at Respondent's Union City plant,
certain employees requested a meeting with Respond-
ent's executive vice president, Weston Coolidge, to dis-
cuss wage increases. All the packers, about nine employ-
ees, were present. Coolidge denied the employees' re-
quest for a wage increase.
About 6 weeks later, in March, four employees, in-
cluding Esther Bueno, contacted and met with a repre-
sentative of the Union, Rome Aloise. Authorization
cards were signed. The next day, Bueno passed out cards
at work, and gave Supervisor John O'Teter a card.
O'Teter accepted the card, but apparently no conversa-
tion ensued. Thereafter, some four or five union meetings
were held, and several of the meetings were attended by
company supervisors in addition to the unit employees.
On April 3, the Union sent a letter to the Company
stating that it represented a majority of employees in an
appropriate unit, and requesting recognition. Thereafter,
The General Counsel's unopposed motion to correct the transcript,
as set forth on p. 2 of the General Counsel's brief, is hereby granted.
s All dates or time periods hereinafter are within 1981 unless otherwise
specified.
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a representation petition was filed. The election was held
on May 29. The Union prevailed by a vote of 21 to 7.
On June 8, the Union was certified as the exclusive col-
lective-bargaining representative of the employees in an
appropriate unit.3
2. Esther Bueno's warning
Esther Bueno was hired in July 1977 and, with the ex-
ception of one other individual, was the most senior em-
ployee on Respondent's payroll. In April, Bueno was as-
signed to work at Respondent's Hayward plant as an in-
spector, picking debris from processed peanuts prior to
packaging. Part of the job entailed bringing the foreign
matter, on a daily basis, to Plant Manager Tony Lewis at
the Union City plant.
On the afternoon of May 5, shortly before quitting
time, Bueno was attempting to locate Lewis at the Union
City plant where she had gone to deliver debris. Another
employee, Gloria Ramirez, called her over. A conversa-
tion ensued, and after "a minute or two," according to
Bueno, Ramirez noticed Lewis and indicated that they
had better discontinue the conversation. Immediately
thereafter, Lewis told Bueno to "leave the girls alone,
not to talk to them." Bueno said okay. Bueno volun-
teered that Lewis had a reputation for being a stern su-
pervisor, but testified that it was common for employees
from one plant to converse with employees from the
other plant.
The next day, Lewis delivered a written warning to
Bueno at the Hayward plant, and read the warning to
her.4 He brought Nick Milano, personnel manager, as a
witness. Bueno, believing the warning was unfair, re-
fused to sign it. Lewis told her to thereafter refrain from
going to the other plant whatsoever; that if she had any
business there at all she should go to the front office; and
that, beginning that very day, he was going to send
someone to pick up the foreign matter. Gloria Ramirez
received no verbal or written warning regarding the inci-
dent.
3 The unit is described as follows:
All full-time and regular part-time employees including packers,
cookers, roasters, shipping and receiving clerks, quality control em-
ployees, custodial employees, truck drivers, machine operators, ma-
chine assemblers and maintenance employees employed by the Re-
spondent at its Union City, California facility; excluding all other
employees, all office clerical employees, guards and supervisors as
defined in the Act.
The warning notice is as follows:
On 5/5/81 before quitting time you were observed in the packing
area of the Western Avenue plant talking with several different em-
ployees and creating a distraction during working hours.
ACTION TO BE TAKEN
Your presence and activity in the Packing Area of the Western
Avenue Plant constitutes an act of gross misconduct. Your assigned
work area is in the Hayward Plant. Your only function in the West-
ern Avenue Plant was to deliver a box of debris which you have
picked out of the processed peanuts at the Hayward Plant. In the
future you are forbidden from entering the Western Avenue Plant at
any time unless otherwise directed by your supervisor. You may
come into the offices of the Western Avenue Plant for legitimate
business purposes. Any act of leaving your assigned work area with-
out authorization may result in further disciplinary action up to and
including termination.
Coolidge, Respondent's executive vice president, testi-
fied that Bueno is an excellent worker and one of the
best packaging employees. She was assigned to straight-
en out a quality control problem at the Hayward plant.
On May 5, while Coolidge was talking to Nick Milano,
personnel manager, in the plant area, he observed Bueno
talking to two or three employees, including Gloria Ra-
mirez, while the employees were performing their
cleanup work. 5 Coolidge called this to Lewis' attention,
and Lewis went over and spoke with Bueno. Subse-
quently it was decided to advise Bueno in writing of her
misconduct, and also to instruct her to remain at the
Hayward plant and not to give her the opportunity to in-
terrupt employees' work. Also, according to Coolidge, it
made more economic sense for someone to come from
the other plant to collect the debris from Bueno. Coo-
lidge characterized the matter as "really a very minor in-
cident," and testified that Bueno was given the warning
to avoid "misunderstandings like this in the future."
Coolidge testified that Bueno initiated the aforemen-
tioned meeting in January during which the packing em-
ployees requested a wage increase. He stated that, insofar
as he was aware prior to the election, Bueno was the
only person who was supporting the Union as she was
very outspoken about it, and even attempted to solicit
supervisors to support the Union.
The Company's disciplinary procedure, contained in a
written policy manual, is as follows:
The purpose of the Disciplinary Procedure is to
provide an orderly means whereby each employee
can have proper notice and warning regarding un-
acceptable conduct or work performance on the
job.
Step I-Verbal Warning: Your supervisor will
verbally discuss your unacceptable conduct or work
performance with you before any other action is
taken.
Step 2-Written Warning: (White Copy) If you
fail to correct your poor conduct or work perform-
ance after you have been verbally warned, you will
receive a Written Warning.
3. Company meetings
Respondent/held four meetings prior to the election.
Employee Denise Baca testified that at various meetings
Coolidge said the Company had wanted to give the em-
ployees a raise in April, but was unable to grant the raise
because of the Union; and that the Company would not
negotiate with the Union if it were voted in. 6
Janice Craig testified that, at the meeting the day prior
to the election, Coolidge mentioned the wage increase
that was requested but denied in January, and went on to
say that it was his opinion the Company should reconsid-
er the employees' request, and that the Company was
thinking about doing so, perhaps in July. Nigar Kahn
I Milano essentially corroborated the testimony of Coolidge in this
regard and identified Gloria Williams as one of the employees Bueno was
talking to.
6 There is no complaint allegation that Respondent stated it would not
negotiate with the Union.
1144
QUALITY PACKAGING, INC.
testified that during this meeting Coolidge stated that the
economic situation had not been good in January, but
now that the Company was "catching up" it had been
"thinking about giving us" a raise. Sheila Vigil also testi-
fied that Coolidge mentioned that the Company was
considering a wage increase for the employees in July,
depending on how things go.
Coolidge testified that at the meeting in January he ad-
vised the employees of various reasons for denying them
a wage increase, explaining that their timing was bad,
that Respondent had just given a bonus in December
1980, and that the job market did not warrant a raise as
the employees were performing unskilled work and were
easily replaceable. He further advised them, however,
that the Company would take their request under consid-
eration, and that, although there was nothing the Com-
pany could do at that point in time, their request would
be reviewed at some later date.
Coolidge testified that during the election campaign
Respondent held four meetings with the employees. The
first and last meetings were conducted by Coolidge, the
two middle meetings by Nick Milano. At the first meet-
ing, Coolidge told the employees that management was
not in favor of any union organization, that Coolidge had
personal dealings with Local 853 in the past and he seri-
ously questioned the credibility and integrity of that
local, and that he could see some real problems down
the road. He said that, should the Union win, the Com-
pany would be required to bargain in good faith, and
would do so. He said that no one would be punished for
having voted for the Union, and that he was making no
promise of an increase in wages or benefits now or at
any other time should the Union be defeated, as he was
legally prohibited from making such promises. He also
said the employees could wear whatever union buttons
or insignia they desired during the campaign.
The next meeting conducted by Coolidge was held the
day before the election. Coolidge stated the Company
was opposed to the Union, but that the employees should
not fear any retaliation for voting as they desired. He
again stated that the Company would bargain in good
faith to the extent required, and that the employees
should consider any expectations beyond those required
by law to be unrealistic, emphasizing this by telling the
employees "don't think that when you walk in here
Monday morning that you are going to now double your
wages and have greater benefits." He also told the em-
ployees that if the Union was not elected he would in-
clude input from the employees in the wage review that
the Company would be conducting in July. During the
course of this meeting, one of Respondent's owners, Joe
Mozingo, in an emotional appeal, exhorted the employ-
ees to vote no.
4. The peanut pins
On the day of the election, Ron Mozingo, co-owner of
Respondent, indiscriminately distributed to each employ-
ee, supervisor, and member of management a small metal
"peanut pin," sometimes giving employees extra pins for
their husbands. The pins, estimated to be worth less than
10 cents, had been purchased as a promotional item for
an upcoming trade convention, and by coincidence had
been delivered to Respondent the morning of the elec-
tion. Although packaged peanuts are Respondent's pri-
mary product, the pin did not bear Respondent's name
or any other legend. Mozingo made no comments when
passing out the pins, nor did he wait to observe whether
the employees wore the pins, or in any manner indicate
approval or disapproval of those employees who elected
to wear or not wear the pins. Moreover, many employ-
ees who were wearing union buttons elected to also
wear the peanut pin on their clothing.
5. The discharge of Gloria Williams
Gloria Williams began working for Respondent on
May 1. She was hired by Plant Manager Tony Lewis,
and was a probationary employee. Williams testified that,
during the company meeting the day before the election,
Coolidge told the employees that, in the event the Union
won the election and negotiations took place, he would
be the Company's bargaining representative. This
prompted Williams to raise her hand and ask, "Does that
mean that you could go on a four-week vacation to
avoid negotiations?" Coolidge answered, "Well, that's a
good question . . . they would have to negotiate with
me, and I would have to be there." Williams also asked,
apparently after Coolidge mentioned the possibility of a
strike, whether an employee could work some days and
strike some days. Coolidge answered that this could not
be done.
Williams wore a union button the Friday of the elec-
tion, and voted in the election.
Williams was discharged the following Monday morn-
ing, June 1. Tony Lewis called her in. Milano was
present. Lewis said he was sorry but Respondent had to
let her go, that "It's just not working out." Williams
asked what he meant, and Lewis said he did not have
time to explain then, as he was busy, and left the office.
He came back with her check and Williams, who had
been sitting there crying, asked "can't you talk to me,"
and explained that she did her work and needed the job.
Lewis said, "Well, your machines are always breaking
down." Williams said that was not her fault,7 and Lewis
said that is the way it goes. Williams asked when she
could come back, and Lewis said, "Probably in about a
year."
Milano said he would show her out and Williams re-
quested permission to go to the restroom first in order to
compose herself. She remained in the restroom about 10
minutes, and then decided to go into the lunchroom to
talk to the other employees, disobeying Milano's direc-
tive not to enter the lunchroom. She announced to the
employees in the lunchroom that she had been dis-
charged and asked for Janice Craig, as she had Craig's
jacket. As she exited from the lunchroom, Milano ad-
vised her, "That's one of the reasons why, you know,
you're going, because of your attitude." Williams said
she had to get something out of her locker, and proceed-
ed to do so. When Milano requested the return of her
locker key, Williams refused to hand it to him, and said
I Williams testified that as a packer she had nothing to do with the
operation of the machines.
1145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was going to return the key to the secretary in the
main office who had issued it to her. She then went to
where the employees, who had apparently returned from
their break, were packing peanuts, and said she wanted
to give them her phone number. Finally, Milano was
able to escort her out.8
Williams testified that she had been given no verbal or
written warnings, or told that her performance was not
good, or that she had a poor attitude, or was criticized in
any other way. Moreover, on May 7, Williams ap-
proached Lewis and asked him whether she was going
to become a permanent employee, "because I see people
coming and going all the time." Lewis said, according to
Williams, that he could not discuss the reasons for the
turnover of employees, and indicated that punctuality
and proper attendance were of paramount importance.
He also said, however, "you are a permanent employee."
According to Coolidge, Lewis left the Company 3 or
4 months prior to the hearing under congenial circum-
stances, and has remained in the area. Lewis did not tes-
tify in this proceeding, and there is no explanation in the
record for his failure to do so.
Regarding Williams' discharge, Coolidge testified that
on the Wednesday prior to the election Lewis mentioned
to Coolidge that he did not like Williams' attitude; that
he had seen her talking with other people while she was
supposed to be working; that she was a "smart ass" and
seemed to have a hostile, arrogant, and belligerent dispo-
sition toward her supervisors; and that because of these
considerations he was going to let Williams go. Lewis
related no specific instances of these matters to Coolidge.
Coolidge instructed Lewis to wait until after the elec-
tion, as he wanted to avoid a potential problem with the
Union regarding the discharge.
Coolidge recalled that Williams did ask a question at
the company meeting the day before the election about
whether an employee could strike and work at the same
time.
Milano began working for Respondent on April 1. He
was present during Lewis' discharge conversation with
Williams, and testified that Williams was discharged for
her attitude, for a disregard for certain supervisory staff,
and for spending more time talking to other employees at
other machines than being at her own machine. Howev-
er, he never personally observed any occasions when
Williams was allegedly disrespectful, and only saw her
talking on one occasion; namely, to Bueno on the occa-
sion of Bueno's May 5 warning. Milano had no personal
knowledge of whether Williams was unwilling to take di-
rections from supervisors, and was not consulted by
Lewis regarding Williams' termination.
6. The discharge of Janice Craig
Janice Craig was hired as a packer on May 19 by
Tony Lewis. She told Lewis that she had three sons, and
was looking for a permanent job. Lewis said as long as
she got along with her fellow workers, had a good work
record, and did not miss work there should be no prob-
lem.
8 Although the above account was given by Milano, Williams' testimo-
ny indicates that it is essentially correct.
Craig spoke to employees about the Union, expressing
her opinion that she could not blame them for wanting
union representation. She attended the company meeting
the day before the election. During the course of the
meeting, according to Craig, Coolidge stated that should
he be required to bargain with the Union he would re-
quest an open shop. Craig asked him what "open shop"
meant, and when Coolidge replied that employees would
thereby have their choice of whether or not they should
belong to the Union, Craig responded that she had never
heard of such a thing. Coolidge then asked another em-
ployee, who apparently was knowledgeable about the
matter, whether he (Coolidge) was correct in his expla-
nation, and the employee agreed that he was. Thereupon,
Craig reiterated that she had never heard of such a thing,
and Coolidge "yelled" at her, according to Craig, "Well,
you're not from here, are you?" Craig replied, "Well,
I've been here a while."
Craig wore a union button on the date of the election.
She also received a peanut pin from Ron Mozingo, and
put it on. Craig further testified that on the day of the
election Tony Lewis came by, "walked straight toward
me and stopped right in front of me, and asked me very,
very bluntly, you know, 'What's your name?"' Craig said
she responded "the same way he asked me."
Craig was fired the following Monday, apparently im-
mediately prior to Williams' discharge. During the dis-
charge conversation, witnessed by Milano, Lewis told
Craig that her work had been reviewed, and that it was
not up to par. He said Respondent was going to have to
let her go, and handed her her check. She asked if she
could have the reason in writing. Lewis replied that she
would have to come back when Coolidge was present,
and that Milano would see her off the premises. She left,
and did not again request a written statement of the
reason for termination.
Craig testified that she never received any complaints
about her work performance or attitude. She acknowl-
edged, however, that during her first week at work she
observed that employees sometimes used their teeth to
open defective bags of peanuts for repackaging. On one
occasion during this first week she was observed opening
packages with her teeth by Milano, who said, "Don't
you think that's rather unsanitary?" At the same time she
did not know who Milano was, and made no reply to
him. She never again opened bags with her teeth. Craig
was insistent that it was Milano, rather than Coolidge,
who spoke to her about opening bags with her teeth.
Coolidge testified that his only contact with Janice
Craig took place 10 days or so after she was hired. He
was walking through the plant and noticed one of the
employees opening bags with her teeth. He advised her
that such a practice was unsanitary. The employee made
some "flip" comment and treated him with a little hostil-
ity. He called the matter to Lewis' attention, and pointed
out Craig whom he did not know at the time, and said
he did not like the way she responded to criticism.
Lewis said he did not like the way she acted either, that
she tended to be hostile toward him, and that he had
been thinking of letting her go. Coolidge told Lewis to
keep an eye on her. A few days before the election, at
1146
QUALITY PACKAGING, INC.
the same time Lewis advised Coolidge that he was going
to discharge Williams, he also stated he was going to dis-
charge Craig. Coolidge told him to wait until after the
election to effectuate both discharges, so the Union
would not be able to raise this as an issue.
Milano testified that he had no personal knowledge of
Craig, and that at the discharge interview Lewis indicat-
ed to Craig that she was being discharged because of her
attitude and unsanitary practice.
Nigar Kahn testified that she has worked for the Com-
pany since 1979, that all the supervisors, including
Lewis, have observed the employees opening bags with
their teeth, and that this longstanding practice has been
permitted. Kahn stated that employees open bags with
their teeth on a daily basis.
7. The layoff and recall
In early June, shortly after the election, Business Rep-
resentative Rome Aloise met with Coolidge and Milano
to discuss preliminary matters concerning the negotia-
tions. Thereafter, on June 22, Aloise sent a letter to Re-
spondent naming the employees who would be on the
union negotiating committee, requesting a seniority list
and other information, and suggesting that bargaining
commence the first week in July. Also, Aloise enclosed
for Respondent's consideration a proposed contract con-
taining a conventional departmental seniority clause gov-
erning layoffs and recalls.
The first negotiating meeting was held on July 6 or 7,
and Respondent provided the Union with a seniority list.
No mention was made that Respondent had apparently
commenced laying off employees on July 2. By July 7 or
8, the entire complement of packers, with the exception
of Patti Silva and Esther Bueno, the two most senior
packers, had been laid off.
The next negotiating session was held in or about mid-
July. There was some discussion regarding seniority.
Coolidge stated that the Company did not recognize se-
niority and customarily selected employees to be laid off
or recalled on the basis of other criteria. The parties con-
tinued to meet periodically, but at no time was the Union
notified of Respondent's plans to recall the employees, or
of the manner in which the recalls were to be conducted.
On July 20 and 21 eight employees were recalled to
work. Each had less seniority9 than the remaining seven
employees, who had been employed by Respondent from
8 to 27 months. Five employees of this latter group were
not recalled until various dates in August; one, Nigar
Kahn, was not recalled until October after persistent ef-
forts to obtain reemployment; and one, Denise Baca, was
never recalled, as discussed below.
Respondent acknowledged that it was aware of the
prounion sympathies of each of these employees, particu-
larly because they all wore union buttons on the day of
the election. In addition, it is clear that various supervi-
sors attended union meetings and observed the presence
of these employees, and that many of the more senior
* All of the eight employees recalled on July 20 and 21 had been hired
in May and June and were therefore still within their 500-hour probation-
ary period; one had been hired on May 28, the day before the May 29
election; and five had been hired after the election on various dates be-
tween June 3 and 15.
employees were involved in requesting the January pay
raise, the denial of which prompted the union activity.
Three employees, namely, Esther Bueno, Sheila Vigil,
and Denise Baca, testified without contradiction that se-
niority was followed during numerous previous layoffs,
which occurred about twice a year, both in laying off
and recalling the packaging employees. Further, during a
layoff situation in January 1979, Respondent posted two
different memos to the employees announcing the neces-
sity for the layoffs and stating that callbacks would be
made in order of seniority.
Coolidge testified that he was "really not sure" how
the layoff was handled in 1981. However, he stated that
company policy had always been that the plant manager,
in this case Lewis, was to use his judgment in the matter,
and to lay off and recall employees according to their at-
titude and ability to do the work; and that their seniority
date would be determinative only if the aforementioned
factors were equal among two or more employees. Re-
garding the aforementioned 1979 memos, Coolidge testi-
fied that the memos were issued and posted by the con-
troller and that he does not know what the controller
meant by "seniority," or what authority the controller
had to speak for the Company.
C. Analysis and Conclusions
1. The warning to Bueno
I find that the warning letter given to Bueno was vio-
lative of Section 8(aX1) and (3) of the Act, as alleged.
Bueno was admittedly an excellent employee. She had
been employed by Respondent since 1977, longer than all
but one other unit employee, and had no history of being
reprimanded, warned, or disciplined for any reason. Re-
spondent was well aware of her outspoken support of
the Union. Indeed, Respondent's executive vice presi-
dent, Coolidge, claimed that prior to the election, to his
knowledge, Bueno was the only employee who was ac-
tively promoting the Union.
Respondent's animus toward the Union is clear, as ex-
hibited by Coolidge's remarks during his talks to the em-
ployees. Moreover, Respondent has offered no explana-
tion for failing to simply give Bueno a verbal warning
for her alleged misconduct, which Coolidge character-
ized as "really a very minor incident." Rather, Respond-
ent reacted by issuing a written warning to Bueno
which, according to the established disciplinary proce-
dure, is to be given only if the employee fails to correct
poor conduct following a verbal warning. Moreover,
there is no explanation for Respondent's inconsistency in
describing the incident as very minor, yet issuing a
strongly worded warning for "gross misconduct" which
threatened discharge should Bueno leave her assigned
work area without authorization.
From the foregoing, it is clear that the warning notice
was issued to Bueno because of her union activity, and
indeed constituted an effort to isolate Bueno from the
other unit employees. Moreover, I find that, but for her
union activity, Bueno would not have received even a
1147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
verbal warning for speaking to Ramirez.' ° The record
shows that such conversations were not contrary to es-
tablished procedure, and neither Ramirez nor any other
employees received warnings regarding the matter. Thus,
I find the verbal warning to also be violative of the Act.
See Keller Manufacturing Company, Inc., 237 NLRB 712,
726-727 (1978); St. Alphonsus Hospital, 261 NLRB 620
(1982); Hedison Manufacturing Company, 249 NLRB 791,
810 (1980); Dutch Boy, Inc., Glow-Lite Division, 262
NLRB 4 (1982).
2. The promise of a wage increase
None of the various employees who testified regarding
the company meetings appeared to have an accurate or
complete recollection of Coolidge's remarks, and several
employees gave very abbreviated and confused accounts
of what they believe Coolidge said concerning the wage
increase. Moreover, no one contradicted Coolidge's
claim that at the first meeting he specifically told the em-
ployees he was making no promise of an increase in
wages or benefits then or at any other time, or that in
January, prior to the union activity, he told the employ-
ees that their request for a wage increase would be re-
viewed at some later date.'
I credit Coolidge's admission that at the last meeting,
the day before the election, he told the employees that,
in the event the Union was not elected, he would include
input from the employees in the wage review that the
Company would be conducting in July. However, I do
not conclude that this latter statement, in context, is vio-
lative of the Act. Rather, it appears to be nothing more
than a reiteration of his prior statement to the employees,
in January, that their request would be considered in the
future. Moreover, I find that he did tell the employees at
the company meetings that he would bargain in good
faith with the Union. Thus, I find that Coolidge's state-
ment, coupled with the representation that he would bar-
gain with the Union in good faith, and absent any other
threats or promises of benefit, is not violative of Section
8(a)(1) of the Act.
3. The peanut pins
It is clear that on the day of the election one of Re-
spondent's owners passed out peanut pins to employees
and supervisors alike. Employees were free to wear them
or not as they saw fit, and many elected to wear them
along with their union badges.
The General Counsel contends that the distribution of
the pins constitutes a subtle form of coercive interroga-
tion in violation of Section 8(a)(l) of the Act. I disagree.
As the Board has stated in Quemetco, Inc., 233 NLRB
470 (1976), the gravaman of unlawful interrogation stems
from "the effort to ascertain the individual employee's
sympathies by the employer who wields the economic
power over that individual." The manner and the cir-
cumstances under which the pins were distributed do not
warrant the finding of a violation, as the pins, even if
worn, did not purport to show employees' sympathies.
See Mclndustries, Inc., 224 NLRB 1298, 1299-1300
'o It appears unncessary to determine whether Beuno was speaking
only with Ramirez, or also with other employees.
(1976); cf. Great Western Coca Cola Bottling Company,
d/b/a Houston Coca Cola Bottling Company, 256 NLRB
520 (1981). Therefore, I shall dismiss this allegation of
the complaint.
4. The layoff and recall
It is not alleged that the layoff in early July was discri-
minatorily motivated. Rather, it appears that the layoff
was for economic reasons, due to a decline in business,
which occurred several times annually. Moreover, the
record indicates that the layoff of employees, commenc-
ing on July 2, was in accordance with their seniority.
However, the recall from layoff was admittedly
unique. Respondent contends that on prior occasions em-
ployees were laid off and recalled as a group, thus obvi-
ating the need to be selective. However, according to
Coolidge, the situation in July did not lend itself to a
group recall, I ' as business and therefore the need for ad-
ditional employees increased gradually. As a result, the
recall from layoff, solely the prerogative of Plant Man-
ager Lewis, was governed by factors such as attitude and
work performance, rather than seniority which, accord-
ing to Coolidge, has never been used as the primary basis
for layoffs or recalls.
Moreover, it is significant that Lewis, the only person
who had actual knowledge of Respondent's motivations
for recalling employees virtually in inverse seniority, did
not testify. In addition, the record indicates that the
packaging employees had supervisors other than Lewis,
but no other supervisors were called to testify regarding
the work performance of the employees in question. See
Martin Luther King, Sr., Nursing Center, 231 NLRB 15,
fn. 1 (1977); Wm. Chalson & Co., Inc., 252 NLRB 25, 34-
35 (1980).
I discredit Coolidge's testimony. Respondent proffered
no documentary evidence to corroborate Coolidge's tes-
timony that prior recalls were made in groups rather
than on an individual basis, and the credible testimony of
several employees, Bueno, Vigil, and Baca, shows that
they were recalled by seniority on all prior occasions.
This conclusion is reinforced by Respondent's memos
which explicitly notify the employees that they will be
recalled by seniority. Moreover, Coolidge's testimony
that Respondent's comptroller had no authorization to
issue such memos is patently incredible. I thus find that,
in fact, Respondent had an established policy of follow-
ing seniority in such matters.
No specific reasons were given for Respondent's fail-
ure to recall employees by seniority. Indeed, Coolidge
said he left this up to Lewis and he was not privy to
Lewis' reasons for recalling the employees as he did.
Further, it appears contrary to commonsense and good
business practices to select employees for recall who had
worked merely a few weeks and were in their probation-
ary period, rather than proven employees with accept-
able work records who had been employed for substan-
tial periods of time.'2 It is equally improbable that Re-
"I Respondent did not proffer a rationale for laying off but not recall-
ing the employees in accordance with seniority.
" While some of these employees had occasionally been given verbal
or written warnings for various reasons during their tenure with Re-
Continued
1148
QUALITY PACKAGING, INC.
spondent, without exception, would find all of the senior
employees who were laid off to be inferior on the basis
of attitude and work performance to all the new hires.
The record is devoid of probative evidence establish-
ing any lawful business justification for Respondent's
modus operandi in recalling the senior employees as it did
and, from the foregoing, it appears that the only rational
conclusion to be drawn from Respondent's conduct is
that such a method of recall was discriminatorily moti-
vated. The record clearly shows that more senior em-
ployees were instrumental in bringing in the Union, and
Respondent was well aware of their efforts. Obviously,
Respondent was attempting to rid itself of the staunch
union adherents, at a time when initial contract negotia-
tions were proceeding, hoping that the employees would
obtain other employment during the protracted layoff or,
at the least, attempting to punish them for selecting the
Union as their bargaining representative. By such con-
duct I find that Respondent has violated Section 8(a)(1)
and (3) of the Act as alleged. See Overnite Transportation
Company, 261 NLRB 650 (1982).
It is also contended that Respondent's unilateral depar-
ture from its established past practice, found herein, of
recalling laid-off employees in order of seniority consti-
tutes a violation of Section 8 (a)(5) of the Act. I agree.
Although there was bargaining over this matter to
some extent, neither party has maintained that a bargain-
ing impasse was reached either over this issue or over
the entire contract. Indeed, there were only several ne-
gotiating sessions prior to the recall, and sometime after
August, according to Union Representative Aloise, Re-
spondent changed its position regarding seniority, and
apparently agreed to recognize the concept of seniority,
with certain qualifications.
Respondent's unilateral change of this existing condi-
tion of employment by failing to recall employees in July
in accordance with their seniority is clearly violative of
the Act, regardless of its motive. Allen W. Bird II, Re-
ceiver for Caravelle Boat Company, a Corporation, and
Caravelle Boat Company, 227 NLRB 1355, 1357 (1977);
Hamilton Electronics Company, 203 NLRB 206, 209
(1973); Amoco Chemicals Corporation, 211 NLRB 618, fn.
2 (1974). By such conduct I find that Respondent has
violated and is violating Section 8(a)(1) and (5) of the
Act, as alleged.
Sheila Vigil began working for Respondent in Septem-
ber 1980. She was involved in an automobile accident on
June 2, prior to the layoff, and was granted a month's
sick leave. On June 10, Respondent sent her a letter in-
forming her that her name had been removed from the
payroll, and that "When your doctor releases you to full
unrestricted duty we will consider rehiring you for the
first available opening." Vigil was released by her
doctor, and on July 6 reported back to work with a doc-
tor's release. Lewis told her that employees were on
layoff, and she would be called when everyone returned
to work. She was not recalled until August 13. Respond-
ent does not maintain that she was treated as a new em-
ployee, and apparently takes the same position regarding
spondent, primarily for attendance, the record shows that such warnings
had not previously been utilized as a basis for recall selection. Rather, as
found above, seniority, not work performance, was determinative.
Vigil as it takes with the other more senior employees;
namely, that Vigil was not recalled in accordance with
her seniority because of her attitude and work perform-
ance. It is therefore clear, and I find, that, by such con-
duct toward Vigil, Respondent has violated Section
8(aXl), (3), and (5) of the Act for the reasons set forth
above.
Respondent maintained that it attempted to phone laid-
off employee Denise Baca on the mornings of August 12
and 13 in order to recall her to work. Baca testified that
she was away from home at these particular times. How-
ever, she testified without contradiction that prior there-
to she had remained at home since the layoff, waiting for
Respondent's call. Apparently it was the practice of em-
ployees who had been laid off to wait for the anticipated
phone call each morning so that they would not forfeit
their recall position. Had Respondent recalled her in ac-
cordance with her seniority, it is probable she would
have been recalled on July 20 or 21, and that she would
have been home to accept the call. Any uncertainty in
this regard must be resolved against Respondent.
N.L.R.B. v. Miami Coca-Cola Bottling Company, 360
F.2d 569, 575-576 (5th Cir. 1966); Southern Household
Products Company, Inc., 203 NLRB 881 (1973); Gulf
States United Telephone Company, 253 NLRB 603, fn. 2
(1980). Moreover, having found that Respondent's failure
to recall employees, including Baca, in order of seniority
constituted an unlawful attempt to, in effect, discharge
them, it is clear that Respondent had an affirmative duty
to contact Baca and offer her reinstatement. Therefore,
simply placing a telephone call to Baca under the cir-
cumstances was insufficient.
5. The discharge of Janice Craig
I credit Coolidge, and find that it was he, rather than
Milano, who admonished Craig for opening packages of
peanuts with her teeth. There is no contention that this
admonition was motivated by Craig's union sympathies.
Indeed, at that point, a week or 10 days after Craig's em-
ployment commenced, there is no evidence of Respond-
ent's knowledge that Craig favored the Union. I further
credit Coolidge's assertion that he was somewhat piqued
at Craig's admitted failure to respond in what he deemed
to be an appropriate manner. Following Coolidge's ad-
monition, however, there is no reliable record evidence
that Craig gave Respondent any legitimate reason to
question her attitude or work performance, both Coo-
lidge and Milano professing total ignorance of any direct
knowledge concerning Craig.
Although Craig was ineligible to vote in the election,
she was supportive of the Union. On the day prior to the
election, at a company meeting, Coolidge "yelled" at
Craig for the outspokenness she exhibited in persistently
asserting her apparent disregard for a union-shop clause
which Coolidge espoused; and, on the following day,
while Craig was wearing a union button, Lewis pointed-
ly asked her name for no apparent reason. That very
evening her final check was prepared.
Further, I credit Craig and find that during the dis-
charge conversation Lewis did not mention unsanitary
practices as one reason for her discharge. The record
1149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shows that this practice, namely, employees' opening
bags with their teeth, was accepted by Lewis, and was
frequently engaged in by other packaging employees.
Respondent's assertion of a false reason for the discharge
lends further support to the contention that Respondent's
motive was other than legitimate.
While the record indicates that Craig was outspoken
and perhaps was not entirely deferential to supervision, I
conclude from the foregoing, including the additional se-
rious unfair labor practices found herein, that the Gener-
al Counsel has presented a prima facie case supporting
the inference that Craig's favoritism toward the Union
was a "motivating factor" in Respondent's decision to
terminate her. Accordingly, under the precedent of
Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083 (1980), the burden shifts to Respondent to demon-
strate that, even in the absence of Craig's prounion con-
duct, she would nevertheless have been terminated.
It is clear that Respondent has not met this burden of
proof. Thus, Respondent presented no witness with any
direct knowledge of Craig's conduct or attitude subse-
quent to the first week of her assignment. Obviously,
something else occurred after that time which occa-
sioned Craig's discharge and, given the failure of Re-
spondent to provide any evidentiary justification for ter-
minating Craig, I conclude that her discharge was moti-
vated by her clearly expressed favoritism for the Union.
As noted, this conclusion is further supported by Re-
spondent's demonstrated propensity to engage in similar
violations of the Act.
On the basis of the foregoing, I find that Janice Craig
was discharged in violation of Section 8(aXl) and (3) of
the Act, as alleged.
6. The discharge of Gloria Williams
The unrebutted record evidence shows that early in
her employment Williams had been told by Lewis that
she indeed was a permanent employee even though she
was within her probationary period. Williams was also
outspoken at the company meeting the day before the
election, and wore a union button on Friday, the day of
the election.
I credit Williams and find that the following Monday,
during the discharge conversation, after persistently
asking why she was being discharged, Lewis' only re-
sponse was that her machines were always breaking
down. However, the unrebutted record testimony shows
that the packagers are in no way responsible for the op-
eration of the machines.
It is probable that Respondent's various assertions that
Williams was fired because of her "smart ass" attitude re-
flect Respondent's disapproval of Williams' outspoken-
ness at the company meeting conducted by Coolidge,
during which meeting Williams implicitly questioned
Coolidge's comments that he would bargain with the
Union in good faith. Moreover, the only record evidence
regarding Williams' talking to other employees, another
asserted reason for discharging her, is Milano's testimony
that Williams was seen talking to Bueno Again, in this
regard, Williams' conduct is related generally to union
activity as Bueno received a verbal and written warning,
and was unlawfully restricted to her work area, as a
result of this conversation with employees, allegedly in-
cluding Williams.
Williams' conduct in disobeying Milano and not leav-
ing the premises immediately upon her discharge may be
indicative of her attitude toward supervision. However,
such behavior, occurring upon being summarily dis-
charged for an obviously erroneous reason, may simply
reflect temporary indignation rather than a general disre-
gard for supervision. Moreover, there is no evidence that
prior to her discharge this attitude was exhibited outside
the context of the aforementioned company meeting,
during which she, in effect, confronted Coolidge.
Again, I believe that the General Counsel has present-
ed a prima facie case supporting the inference that Wil-
liams' union activity was a "motivating factor" resulting
in her discharge, and that Respondent has not met its
burden under Wright Line of demonstrating that Williams
would have been terminated even in the absence of such
activity. In short, Respondent presented insufficient pro-
bative evidence supporting its proffered motivation for
the discharge. Thus, neither Lewis, who was solely re-
sponsible for Williams' discharge, nor any other supervi-
sors or employees were called upon to provide testimoni-
al support for the conclusionary hearsay testimony pre-
sented by Coolidge and Milano regarding the reasons for
the discharge of Williams.
On the basis of the foregoing, including the additional
unfair labor practices found herein, I conclude that Wil-
liams was discharged in violation of Section 8(aX1) and
(3) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(aXl) of the Act
by issuing a verbal and written warning to employee
Esther Bueno, and by restricting her to a particular work
area.
4. Respondent has violated Section 8(aXl) and (3) of
the Act by discharging employees Gloria Williams and
Janice Craig, and by failing to properly recall from
layoff in order of seniority employees Rita Lozaro, To-
milyn Sardella, Sylvia Ancona, Sheila Vigil, Alicia
Olgin, Nigar Kahn, and Denise Baca.
5. All full-time and regular part-time employees in-
cluding packers, cookers, roasters, shipping and receiv-
ing clerks, quality control employees, custodial employ-
ees, truck drivers, machine operators, machine assem-
blers, and maintenance employees employed by Quality
Packaging, Inc. at its Union City, California, facility, ex-
cluding all other employees, all office clerical employees,
guards 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.
6. Since June 8, 1981, the Union has been the certified
collective-bargaining representative of all employees in
the aforesaid appropriate unit for the purposes of collec-
1150
QUALITY PACKAGING, INC.
tive bargaining within the meaning of Section 9(a) of the
Act.
7. Respondent has failed to bargain with the Union,
and thereby has violated Section 8(a)(1) and (5) of the
Act by unilaterally changing the terms and conditions of
employment of the employees in the aforesaid appropri-
ate unit without first bargaining to impasse over its
method of recalling employees from layoff.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent violated and is violat-
ing Section 8(a)(1), (3), and (5) of the Act, I recommend
that it be required to cease and desist therefrom and
from in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
under Section 7 of the Act, and take certain affirmative
action described herein, including the posting of an ap-
propriate notice attached hereto as "Appendix."
Having found that Respondent unlawfully discharged
employees Janice Craig and Gloria Williams, it is recom-
mended that Respondent make them whole, with inter-
est, for any loss of pay they may have suffered as a
result of the discrimination against them, and offer them
immediate reinstatement to their former positions with-
out loss of seniority or other benefits. Said backpay is to
be computed in the manner prescribed in F. W. Wool-
worth Company, 90 NLRB 289 (1950), and Florida Steel
Corporation, 231 NLRB 651 (1977). See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Having found that Respondent, in violation of Section
8(a)(1), (3), and (5) of the Act, unlawfully delayed the
recall from layoff of employees Rita Lozano, Tomilyn
Sardella, Silvia Ancona, Sheila Vigil, Alicia Olgin, and
Nigar Kahn, and that Respondent has unlawfully failed
to recall employee Denise Baca from layoff, it shall be
recommended that Respondent offer Denise Baca imme-
diate reinstatement to her former position and pay to
each aforementioned employee a sum of money equal to
the amount he or she would have earned from the date
he or she would have been recalled, less his or her earn-
ings during said period, to be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289
and Isis Plumbing & Heating Co., 138 NLRB 716.
IT IS FURTHER RECOMMENDED that Respondent ex-
punge from its records the warning notice issued to
Esther Bueno, and also expunge from its records any ref-
erence to the discharges of Janice Craig and Gloria Wil-
liams.
[Recommended Order omitted from publication.]
1151